Philadelphia Criminal Defense Blog
PA Supreme Court: Trial Courts May Reject a Nolle Prosse Motion Under the “Valid and Reasonable” Standard
Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Supreme Court has decided Commonwealth v. Harrison, holding that a trial court still gets the final say on whether a district attorney may abandon a case by entering a nolle prosequi or nolle prosse. The Court reaffirmed the old Reinhart test: the Commonwealth’s reason for dropping the case must be valid and reasonable, and refused to extend the much more deferential In re Ajaj standard, which only applies to a DA’s decision to disapprove a private criminal complaint at the front end of a case.
The Facts
In May 2018, the complainant walked into a Santander Bank in York and tried to withdraw money without ID. His mother later told police he had just been released from the hospital and seemed delusional. The complainant refused to leave, and the bank called 911.
The defendant, who was a police officer, responded. After the complainant would not leave, the defendant tried twice to Tase him without success. A second officer arrived, and the two of them wrestled the complainant to the ground, handcuffed him, and walked him out to the patrol car. When the complainant would not bend down to get into the back seat, the defendant said he was going to drive-stun the complainant in the thigh. Instead of drawing his Taser, he drew his Glock, put it against the complainant’s thigh, and pulled the trigger. The complainant yelled, “Dude why’d you shoot me?” He spent 17 days in the hospital.
The state police charged the defendant with one count of negligent simple assault, a second-degree misdemeanor. The magistrate held the case for court.
The DA Tries to Drop the Case — Twice
The York County DA never tried the case. Instead, it filed two motions to nolle prosequi or suspend/dismiss the charges.
The first motion argued that prosecution was no longer in the interests of justice. The defendant had a 16-year career, was remorseful, his department had been disbanded, and he had agreed to speak to police cadets about avoiding this kind of mistake. The DA said continued prosecution would be punishment for punishment’s sake. The trial court denied the motion. The complainant, the actual victim, testified that no one from the DA’s office had ever spoken to him and that he had learned about the motion from the newspaper.
The second motion took a different angle. A bank customer named Harry Harrington, who had witnessed the shooting, had died in March 2019. The DA now claimed Harrington was the only independent witness and that without him the Commonwealth could not meet its burden of proof. The trial court called the motion “quite lame.” Harrington had died before the DA filed the first motion, in which the DA did not even mention his death. There were other witnesses, including the bank cleaner, who had no connection to either the police or the victim and who had already testified at the preliminary hearing that she saw the defendant shoot the complainant.
The Superior Court affirmed. The DA appealed to the Supreme Court.
The Supreme Court’s Decision
Chief Justice Todd wrote for the majority, joined by Justices Donohue, Wecht, and Brobson. Justices Dougherty and Mundy concurred in part and dissented in part. Justice McCaffery did not participate.
The Court refused to give the DA the deference it wanted. Ajaj holds that a court may overturn a DA’s rejection of a private criminal complaint only for bad faith, fraud, or unconstitutionality. The DA argued the same narrow standard should apply when it wants to drop a case it already filed. The Court said no. Once the DA brings charges, gets a magistrate to hold them for court, and pulls the judiciary into the case, the trial court is not a rubber stamp. It can, and must, independently evaluate whether the DA’s reason for walking away is valid and reasonable.
The Court traced the rule back to an 1850 statute that has always required the trial court’s written approval before a DA can enter a nolle prosequi. That requirement now lives in the Judicial Code and in Pa.R.Crim.P. 585. The Court reaffirmed Reinhart: the trial court accepts the DA’s factual claims if they are supported by a preponderance of the evidence, and then makes its own legal judgment on whether the reason is good enough.
Applying that test, the Court agreed with the trial court that the DA’s second reason, Harrington’s death, was neither valid nor reasonable. Other witnesses could establish what happened, there was video from inside the bank, and the DA had not bothered to mention Harrington’s death in its first motion more than a year after he died.
Why It Matters
This decision keeps the trial court in the picture. A DA cannot get a case held for court and then unilaterally walk away because the office has changed its mind, especially when the victim opposes the dismissal. The reason has to hold up to actual scrutiny.
It is also a useful boundary on Ajaj, which Commonwealth offices have been trying to stretch into other contexts. Harrison confines it to the front end of a case — the decision to charge in the first place — and leaves Reinhart in charge of everything that comes after.
The case cuts both ways for the defense. A defendant who has negotiated a quiet nolle prosse cannot count on the trial court rubber-stamping it. But a defendant whose case the DA is trying to drop in a way that hurts the defense, for example, dropping then refiling, or dropping to avoid an unfavorable ruling, has real ammunition to insist that the court take an independent look at the reason.
Facing Criminal Charges? We Can Help.
Goldstein Mehta LLC Criminal Defense
If you or a loved one are facing criminal charges, serving a state sentence in Pennsylvania, or exploring a direct appeal or PCRA petition, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey, and we have won criminal appeals and PCRAs in state and federal court — including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
PA Supreme Court: “Malice Is Malice” — No Heightened Standard for Third-Degree Murder in DUI Cases
Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Supreme Court has decided the case of Commonwealth v. Peters, affirming the defendant’s convictions for third-degree murder and aggravated assault arising out of a fatal DUI crash on Interstate 95 and rejecting the argument that DUI cases are governed by a heightened, “essentially certain to occur” standard for malice. The Court held, in the words of Justice Dougherty’s majority opinion, that “malice is malice,” meaning the same long-standing standard from Commonwealth v. Taylor applies regardless of whether the defendant drove drunk, fired a gun, or engaged in some other reckless conduct.
The Facts of Commonwealth v. Peters
The defendant attended an office holiday party at Ruth’s Chris Steak House in Philadelphia on December 5, 2019. The open bar started at 5:00 p.m., and the defendant drank vodka in a private room until around 8:00 p.m., when he and his coworkers moved to the public bar and he switched to bourbon. Around 10:00 p.m., a coworker offered the defendant a ride home. He declined, and instead asked her to drop him at another bar called Rogue’s Gallery, where he continued drinking beer until midnight.
The defendant had driven his Mazda SUV to work that day. Surveillance footage from the parking garage showed that he had trouble operating the payment kiosk and could not exit the garage normally — when the mechanical arm did not lift, he got out, manually forced one of the arms up, and broke it in the process before driving away with the broken arm dangling behind him.
Once on Interstate 95, the defendant straddled the fog line, exited into New Jersey without using a turn signal, then turned around and re-entered Pennsylvania. Two motorists called 911 to report that the Mazda was passing at high speed, alternating between excessive speeds and speeds well below the limit, and that the taillights were off. Around 1:00 a.m., the defendant crashed into the rear of a Mazda driven by Juan Tavarez, who was driving home from work in the right lane at or just below the 55 mile-per-hour limit, with his flashers on, with three passengers in the car. Tavarez’s car hit a concrete wall and burst into flames. Tavarez and his son Charlys escaped. His other son, Juan Jose Tavarez Santelises, and his coworker, Claribel Dominguez, did not. Both died from thermal burns.
Black box data showed the defendant was driving 113 miles per hour five seconds before the crash and accelerated to 115 miles per hour half a second before impact. He braked, at most, four-tenths of a second before the crash. His blood alcohol concentration was .151, nearly twice the legal limit of .08. At trial, the defendant testified that he had unbuckled his seatbelt and reached for his phone in his backpack on the passenger-side floor because he wanted to check the GPS, and only looked up in time to see the other car.
A Bucks County jury convicted the defendant of fourteen offenses, including two counts each of third-degree murder and aggravated assault. The trial court sentenced him to an aggregate term of 19½ to 39 years in state prison. An en banc Superior Court affirmed, with three judges dissenting.
The Issue: Is There a Different “Malice” Standard for DUI Cases?
The defendant argued on appeal that the Supreme Court’s decisions in Commonwealth v. O’Hanlon and Commonwealth v. Packer had effectively created a DUI-specific malice standard requiring proof that death or serious bodily injury was not just likely, but “essentially certain to occur.” On his reading, the Superior Court majority improperly relied on the more general formulation — a conscious disregard for an unjustified and extremely high risk that the defendant’s actions might cause death or serious bodily injury — which, in his view, only applied to non-DUI cases.
The Commonwealth, by contrast, argued that the Pennsylvania Supreme Court has never created two separate malice standards. There is one definition of malice, drawn from Commonwealth v. Drum and refined in Taylor, and it does not change based on whether the underlying conduct happened to involve alcohol.
The Supreme Court’s Holding: One Standard
A six-Justice majority of the Supreme Court agreed with the Commonwealth and affirmed. Justice Dougherty wrote the opinion, which Chief Justice Todd and Justices Donohue, Wecht, Mundy, and Brobson joined. Justice McCaffery did not participate.
The Court traced the malice standard back to Drum and through Taylor, where a four-Justice majority held that the defendant consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily harm to another, and therefore acted maliciously. The Court then catalogued more than half a century of Supreme Court and Superior Court decisions repeating the same formulation, in both DUI and non-DUI cases.
The Court rejected the defendant’s reading of O’Hanlon. The “essentially certain to occur” language in O’Hanlon, the Court explained, was not a new test for DUI cases; it was simply O’Hanlon’s way of distinguishing ordinary recklessness from the heightened recklessness required for aggravated assault, a statute that has nothing to do with DUI. The Court also pointed out that just four years after O’Hanlon, it relied on the same language in Commonwealth v. Thompson, a shooting case, which would not have made sense if O’Hanlon had really created a DUI-only standard.
The Court read Packer the same way. Although Packer used the “essentially certain to occur” phrase in summarizing O’Hanlon, the Court emphasized that Packer itself ultimately defined malice as a “conscious disregard for an unjustified and extremely high risk that a chosen course of conduct might cause a death or serious personal injury,” and applied that standard, not a separate one, to find malice on Packer’s facts.
The Court therefore restated the rule in plain terms: malice is present if the defendant consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily harm. That standard is the same regardless of whether the defendant drove drunk, fired a gun, or engaged in any other reckless conduct.
Application to the Facts
Applying that standard, the Court held the evidence was sufficient to support the third-degree murder and aggravated assault convictions.
The Court emphasized several pieces of evidence beyond the simple fact that the defendant drove drunk, which the Court reaffirmed is not, standing alone, enough to establish malice. The defendant had been drinking heavily for roughly seven hours. He turned down a coworker’s offer of a ride home. His difficulty operating the payment machine and his decision to break the parking garage gate to get out should have alerted him that he was in no condition to drive. On I-95, he straddled the fog line, alternated between excessive and unusually slow speeds, drove with his taillights off, nearly sideswiped one motorist, and missed his exit twice even though he had lived in the area for six years. Two different motorists found his driving alarming enough to call 911.
Most significant to the Court was the defendant’s decision, while driving 113 miles per hour with a BAC of .151, to unbuckle his seatbelt and rummage on the passenger-side floor for his phone in order to check the GPS. He could have pulled over instead. He did not even slow down. The black box data showed he actually accelerated to 115 miles per hour half a second before the crash. The Court agreed with the Superior Court majority that this conduct virtually guaranteed an accident would occur.
The Court rejected several mitigating arguments. The fact that the defendant tapped the brake at most four-tenths of a second before impact did not break the chain of malice. At 115 miles per hour, the Court observed, the defendant was traveling roughly 168 feet per second, and braking that late was, in the Court’s words, “just as futile as trying to catch a fired bullet.” The defendant’s argument that no one had verbally warned him he was too drunk to drive was also unpersuasive; the Court held that the absence of an explicit warning does not free a defendant to ignore obvious signs that it is unsafe to keep driving. The lack of post-crash belligerence or flight likewise meant little, because the defendant had to be removed from the vehicle and taken to the hospital for a week.
Why This Decision Matters
Peters settles a question that has been bouncing back and forth between the Superior Court and the Supreme Court for years: whether DUI homicide and aggravated assault cases get a heightened mens rea standard. The answer is no. Going forward, the Commonwealth needs to prove the same Taylor-style malice in a fatal DUI case that it would prove in a shooting or beating case — a conscious disregard for an unjustified and extremely high risk of death or serious bodily injury.
That said, the decision should not be read as turning every DUI fatality into a third-degree murder case. The Court reaffirmed that the choice to drive while intoxicated, by itself, does not establish malice. The Court’s analysis of the facts, which included turning down a ride, breaking the garage gate, sustained reckless driving for nearly an hour, near-misses, ignoring 911-worthy warning signs from his own driving, and finally taking his eyes off the road at 113 miles per hour to look for his phone, is what carried the day. Those are the kinds of aggravating, sustained-recklessness facts that the Superior Court has long required for a malice finding in a DUI case under decisions like Commonwealth v. Kling. The result in a more typical impaired-driving fatality, without that level of additional aggravating conduct, may still come out the other way, as in Commonwealth v. Comer, where the impaired defendant’s car rubbed the curb and the accident immediately followed.
Practically, this means that in serious DUI cases, defense counsel needs to focus less on whether there was an explicit verbal “warning” or other formal notice, and more on whether the totality of the conduct really shows the kind of sustained, conscious disregard for risk that the Court found here. Charging decisions, plea negotiations, jury instructions, and sufficiency challenges in vehicular homicide cases will all be shaped by Peters going forward.
Facing Criminal Charges? We Can Help.
Goldstein Mehta LLC Criminal Defense
If you or a loved one are facing criminal charges, serving a state sentence in Pennsylvania, or exploring a direct appeal or PCRA petition, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey, and we have won criminal appeals and PCRAs in state and federal court — including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
PA Superior Court: Jurors Briefly Seeing Victim’s Service Dog Outside Courthouse Does Not Warrant New Trial
Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Superior Court has decided the case of Commonwealth v. Roberts, 2026 PA Super 65 (March 30, 2026), affirming the defendant's conviction and holding that the trial court did not abuse its discretion in denying the defendant's motion for a new trial based on jurors briefly seeing the complainant’s service dog outside the courthouse. The court found that this incidental and fleeting exposure did not create a reasonable likelihood of prejudice under the Carter by Carter v. U.S. Steel Corp. framework.
The Facts of Commonwealth v. Roberts
The defendant was employed as a band director at Crestwood Area High School in Luzerne County when he was charged with inappropriately touching a 15-year-old student, K.F. The complainant had participated in the band program playing saxophone and clarinet. According to the complainant’s testimony, when she was in eighth grade, the defendant had a one-on-one class with her where she was the only student. She testified that during these sessions, the defendant began sitting close to her and repeatedly touching her thigh in a way that made her feel uncomfortable. The complainant routinely pulled away, but the defendant persisted.
When the complainant entered ninth grade, the defendant appointed her as the leader of the clarinet section in marching band. Prior to performances, band members would routinely assist each other in making sure their uniforms looked sharp. The defendant allegedly used these opportunities to personally adjust the complainant's uniform, with his hands lingering over her body as he adjusted her sash and cape.
The complainant’s father died in February of her ninth grade year. The defendant unexpectedly attended the wake, leaned in, hugged the complainant, and commented that he could hug her because they were not in school. The complainant testified that this exchange made her uncomfortable.
By her sophomore year, the defendant had promoted the complainant to drum major, the second-highest position in the band hierarchy. During that year, as band members were filing out of the band room to go to the practice field, the defendant allegedly held the complainant back from joining her classmates, telling her he had something to say. While standing behind her in an alcove outside the band room doors, he allegedly grabbed her buttocks and then placed his hands on her shoulders and told her in a quiet voice that if she told anyone, he would make her life hell. When the defendant was eventually placed on leave from his position for an unrelated reason, the complainant reported the conduct to police.
The defendant was charged with institutional sexual assault, corruption of minors, indecent assault of a person less than 16 years of age, indecent assault by forcible compulsion, and harassment. A jury trial began on June 25, 2024, and the jury convicted the defendant of all charges on June 27, 2024.
The Service Dog Issue
Before trial, both parties and the trial court discussed the fact that the complainant had a service dog. Outside the presence of the jury, the parties agreed to a number of measures designed to minimize any potential prejudice from the jury learning about the service dog. Under this agreement, the service dog would not accompany the complainant to the witness stand while she testified. The dog would remain in the hallway with the complainant's mother at all times, so that there would be no inference that the dog belonged to the complainant. When the complainant, her mother, and the dog were in the courtroom, they would be seated prior to the jurors entering and would sit in an area least visible from the jury box. The defense raised concerns on the record that jurors might draw inferences from the presence of the service dog, and the trial court acknowledged those concerns, explaining that the agreed-upon measures were specifically designed to limit the jury’s exposure.
During trial, these prophylactic measures were followed, and there was no issue with the service dog inside the courtroom. However, on June 27, 2024, the Times Leader newspaper published an article reporting that despite efforts to keep the jury from seeing the service dog, several jurors exited the courthouse for a lunch break at the same time the complainant and her service dog were also leaving the building.
After the jury returned a guilty verdict on all counts, defense counsel filed a motion for a new trial on July 9, 2024, arguing that the agreed-upon measures had been violated because jurors saw the complainant with her service dog outside the courthouse. The trial court held a hearing on August 21, 2024, at which a reporter testified and security video footage was reviewed. The reporter testified that at around noon on June 27, 2024, he was exiting the courthouse and the complainant was a few people in front of him, also exiting, while holding her service dog by the leash. He testified that two jurors were behind the complainant in the area of the courthouse exit at the time. After reviewing the evidence and testimony, the trial court denied the motion for a new trial.
The trial court sentenced the defendant to an aggregate term of six to 23 ½ months in jail followed by three years of probation. After the denial of his post-sentence motion, the defendant appealed to the Superior Court.
The Superior Court’s Analysis
The Superior Court began by reviewing the standard for granting a new trial based on extraneous influences on a jury. The court cited Commonwealth v. Wardlaw, 249 A.3d 937 (Pa. 2021), for the proposition that a new trial motion is designed to bring before the trial court defects in the prior proceedings or after-discovered evidence which require that the verdict be set aside. The court also noted that the standard of review for such motions is highly deferential to the trial court, which will not be reversed absent a clear abuse of discretion or an error of law, citing Commonwealth v. Morales, 326 A.2d 331 (Pa. 1974).
The court then turned to the framework for evaluating claims of extraneous influence on the jury. The court discussed Pratt v. St. Christopher's Hospital, 866 A.2d 313 (Pa. 2005), and the seminal case of Carter by Carter v. U.S. Steel Corp., 604 A.2d 1010 (Pa. 1992), which established that a new trial will be granted in cases of extraneous influence on a jury only where there is a reasonable likelihood of prejudice. In determining reasonable likelihood of prejudice, the trial court should consider: 1) whether the extraneous influence relates to a central issue in the case or merely a collateral issue; 2) whether the extraneous influence provided the jury with information they did not have before them at trial; and 3) whether the extraneous influence was emotional or inflammatory in nature.
Applying this framework, the Superior Court affirmed the trial court’s denial of the new trial motion. The court found that the trial court had held an appropriate hearing, heard testimony from the reporter who witnessed the incident, and reviewed the security footage. The trial court concluded that the jurors’ view of the service dog in the complainant’s control was incidental and fleeting. Importantly, because the complainant’s mother was present during the incident and was holding the dog’s leash along with the complainant, the “designed ambiguity” regarding who owned the service dog was preserved. In other words, even if jurors saw the dog, it would not have been clear that the dog belonged specifically to the complainant rather than her mother. The Superior Court found no abuse of discretion in the trial court’s conclusion that the brief encounter outside the courthouse did not create a reasonable likelihood of prejudice in a typical, objective juror.
The judgment of sentence was affirmed. This result is unfortunately not that surprising as both the Superior Court and the Supreme Court have actually blessed the use of service dogs while witnesses testify on the stand. There are rules that govern the use of such dogs, and the jurors are not supposed to be able to see the dog while the witness testifies, but if a witness may have a dog with them on the stand at times, then it was very unlikely that the Court was going to reverse a conviction where jurors simply may have seen the witness with a dog while exiting the courthouse.
Facing Criminal Charges? We Can Help.
Goldstein Mehta LLC Criminal Defense
If you or a loved one are facing criminal charges, serving a state sentence in Pennsylvania, or exploring a direct appeal or PCRA petition, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey, and we have won criminal appeals and PCRAs in state and federal court — including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
PA Superior Court: Police Do Not Need a Warrant to Get Your Internet Subscriber Info
Criminal Defense Lawyer Zak T. Goldstein, Esquire
On April 22, 2026, the Pennsylvania Superior Court decided Commonwealth v. Zealor, 2026 PA Super 81, holding that police and prosecutors do not need a search warrant to obtain subscriber information, payment information, and internet connection records from an internet service provider. Instead, prosecutors can get this information through an “administrative subpoena” — a request signed by a Deputy Attorney General rather than a judge — under 18 Pa.C.S.A. § 5743.1.
The Facts of Zealor
Pennsylvania State Police were watching a peer-to-peer file-sharing network called BitTorrent for people sharing child pornography. They received a tip about a particular IP address (essentially the “phone number” of an internet connection) and downloaded files from it that turned out to include child sexual abuse material.
A Deputy Attorney General then sent an administrative subpoena to Comcast under 18 Pa.C.S.A. § 5743.1, a Pennsylvania statute that lets prosecutors obtain certain subscriber information from internet providers. Comcast told them the IP address belonged to a company called Digital Media, LLC, the company that provided the internet service for an apartment complex in Norristown. A second administrative subpoena to Digital Media identified the specific tenant whose connection was being used to share the files. Police then obtained a search warrant for that tenant’s apartment, found tens of thousands of images and videos, and the defendant was ultimately convicted on fifty counts of possessing child sexual abuse material.
Before trial, the defendant moved to suppress all of the evidence, arguing that police needed an actual search warrant and not just a prosecutor-signed subpoena to get the information from his internet provider. The Superior Court disagreed and affirmed his conviction.
Why the Court Said No Warrant Was Needed
The court relied mainly on its earlier decision in Commonwealth v. Kurtz, 294 A.3d 509 (Pa. Super. 2023), aff’d, 348 A.3d 133 (Pa. 2025), and on federal cases like United States v. Christie, 624 F.3d 558 (3d Cir. 2010). The court reasoned that under the “third-party doctrine,” when you voluntarily hand information over to a third party like your bank or your internet provider you generally lose your right to keep it private from the government, and so the defendant had no right of privacy here.
Applying that doctrine, the court held there is no reasonable expectation of privacy in:
• Your name, address, and basic payment information with your internet provider;
• Your IP address; or
• The connection logs showing which other IP addresses you connected to.
The court also distinguished Carpenter v. United States, 585 U.S. 296 (2018), the U.S. Supreme Court case that required warrants for cell phone location data, by reasoning that location data is generated automatically just by your phone being on, while peer-to-peer file sharing involves actively choosing to connect to other users.
Finally, the court rejected the argument that prosecutors could not subpoena out-of-state companies like Comcast, holding that the statute itself allows service on foreign corporations.
The Issue May Be Subject to Further Review
Even though Zealor is a loss, this is still a live issue, and we expect it to keep being litigated.
First, the Pennsylvania Supreme Court’s decision in Kurtz, which the Zealor court relied on so heavily, was a fractured plurality. Three justices agreed there was no expectation of privacy, three concurred on different grounds, and Justice Donohue dissented. A plurality decision does not bind future courts the way a majority opinion does, so the foundation for Zealor is shakier than it looks. Additionally, Kurtz dealt with the IP address itself, whereas this case deals with the information behind an IP address, making Kurtz distinguishable.
Second, and more importantly, the defendant in Zealor did not really argue that the Pennsylvania Constitution provides more privacy protections than the federal Fourth Amendment. The Pennsylvania Supreme Court has repeatedly held that our state constitution provides broader privacy rights than federal law in important areas including bank records and the rejection of the federal “good faith exception” to the exclusionary rule. See Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991). The defendant in Zealor did not develop that kind of argument, and the court therefore analyzed the state and federal questions together as if they were the same. They are not.
That leaves the door open for additional challenges to these “subpoenas,” which are really just demand letters. A future defendant who actually makes a strong Pennsylvania Constitution argument and asks the Pennsylvania Supreme Court to require a warrant for this kind of internet subscriber information as a matter of state law would be in a much better position. The Pennsylvania Supreme Court could also grant review in this case or in another case which preserves the stronger state constitutional issue.
The Bottom Line
Zealor is a setback for these challenges, but it may not be the final word. If you have been charged in a case where police started by sending an administrative subpoena to your internet provider, your attorney should likely still be challenging these subpoenas, and most importantly, the attorney should make both Fourth Amendment and Pennsylvania Constitutional arguments. The law in this area is unsettled and changing, and the strongest version of the privacy argument has not yet been decided by the Pennsylvania Supreme Court.
Facing criminal charges? We can help.
Goldstein Mehta LLC Criminal Defense
If you or a loved one are facing criminal charges, serving a state sentence in Pennsylvania, or exploring a direct appeal or PCRA petition, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey, and we have won criminal appeals and PCRAs in state and federal court — including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.