Philadelphia Criminal Defense Blog

Zak Goldstein 1/14/26 Zak Goldstein 1/14/26

En Banc Pennsylvania Superior Court Clarifies That Probation May Run Concurrently with Incarceration

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has issued a significant en banc decision in the case of Commonwealth v. Jennings, resolving a recent conflict in Pennsylvania sentencing law. Overruling several recent panel decisions, the Court held that trial judges are in fact permitted to sentence defendants to terms of probation that run concurrently with terms of incarceration, including state prison sentences.

This decision restores the sentencing flexibility that defense attorneys and judges have long utilized and clarifies the plain language of the Sentencing Code.

The Facts of the Case

In Commonwealth v. Jennings, the defendant was convicted of attempted statutory sexual assault, unlawful contact with a minor, and related offenses after engaging in sexually explicit conversations with an undercover detective posing as a 14-year-old girl.

Due to prior convictions for rape and involuntary deviate sexual intercourse (IDSI) from 1989, the defendant faced mandatory minimum sentencing provisions which required the judge to impose a sentence of at least 25 to 50 years in prison. The trial court went well above that and ultimately sentenced him to an aggregate term of 50 to 100 years of incarceration. Relevant to this appeal, for the charge of criminal use of a communication facility (CUCF), the judge imposed a seven-year term of probation to run concurrently with the state prison sentence.

The defendant appealed, arguing that the sentence was illegal. He relied on recent Superior Court decisions which had suggested that probation cannot be served while a defendant is incarcerated because probation is, by definition, a "less restrictive" alternative to jail meant for rehabilitation in the community and that it is not even possible to comply with the conditions of probation while in custody. For example, an inmate in a state prison cannot remain in the county of conviction or report to the county probation officer.

The Legal Issue: Can Probation and Prison Run Together?

The primary issue before the en banc panel was whether a sentencing court has the authority to order a term of probation to be served at the same time as a term of total confinement.

This question arose because of a string of recent unpublished panel opinions (such as Commonwealth v. Qawiee, Commonwealth v. Patel, and Commonwealth v. Bowers) which had vacated such sentences as illegal. Those panels reasoned that under cases like Commonwealth v. Allshouse and Commonwealth v. Basinger, probation was incompatible with incarceration.

The Superior Court’s Decision

The Superior Court rejected the reasoning of those recent panels and affirmed the legality of concurrent probation. The Court based its decision on the plain text of 42 Pa.C.S.A. § 9721(a), which outlines the sentencing alternatives available to a judge (such as probation, guilt without penalty, partial confinement, total confinement, and fines). The statute explicitly states that the court “may impose them consecutively or concurrently.”

The Court held:

Therefore, by its plain language, Section 9721(a) permits trial courts to impose concurrent terms of probation and total confinement. . . . To the extent that [prior cases] suggest that the Sentencing Code provides no authority for imposing probation concurrently with a term of total confinement, we disapprove of their rationales.

The Court explained that concurrent probation still serves a purpose. Even while incarcerated, a concurrent probationary tail can serve as a deterrent. If the defendant commits a new crime or misconduct in prison, that probation could theoretically be revoked. More importantly, the Court emphasized that statutory text supersedes policy arguments about whether concurrent supervision is “practical.” In other words, the policy justifications only come into play for an ambiguous statute, and here, the Court concluded that the statute was not ambiguous. A trial court may impose consecutive or concurrent probationary and prison sentence.

Secondary Issue: Notice for Mandatory Minimums

The defendant also challenged his mandatory minimum sentence on the grounds that the Commonwealth failed to include the triggering facts (his prior convictions) in the criminal information, which is the formal charging document in Pennsylvania.

The Superior Court rejected this argument, as well. Relying on Pennsylvania Supreme Court precedent in Commonwealth v. Aponte, the Court held that prior convictions are a “sentencing factor,” not an element of the crime. Therefore, the Commonwealth is not required to list them in the criminal information. Providing reasonable notice of the intention to seek the mandatory minimum after conviction but before sentencing is sufficient to satisfy due process, although once a defendant has been convicted, it is too late for them to do anything about a mandatory minimum. A rule that requires notice prior to trial would be far better, but the appellate courts have not required that kind of notice.

Key Takeaways for Criminal Defendants

This decision is legally significant for several reasons:

Sentencing Flexibility: Judges often use concurrent probation as a way to close out a less serious count without adding a “tail” that keeps a defendant under state supervision for decades after their release. Jennings confirms this practice is legal.
Structuring Pleas: Defense attorneys can once again confidently negotiate plea deals that involve concurrent probation without fear that an appellate court will sua sponte vacate the sentence as illegal. Agreeing to a lengthy probationary sentence may in some cases result in less jail time for the defendant.
Mandatory Minimums: Unfortunately, the case serves as a reminder that the Commonwealth does not need to show its hand regarding mandatory minimums in the initial charging documents, provided they give notice before sentencing.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

Zak Goldstein 11/7/25 Zak Goldstein 11/7/25

Attorney Goldstein Wins Federal Suppression Motion in Electronic Contraband Case

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire, of Goldstein Mehta LLC recently secured a major victory in federal court when a judge granted his motion to suppress all evidence in a serious federal criminal case. The ruling, issued by the United States District Court for the Eastern District of Pennsylvania, resulted in the exclusion of every item seized by investigators and effectively ended the government’s case.

The client had been charged in federal court with offenses involving the alleged possession and production of unlawful digital material. The prosecution’s entire case depended on evidence taken from a series of search warrants that allowed agents to seize and examine the client’s computers, phones, and other electronic devices.

Attorney Goldstein challenged the legality of those searches in a “four corners” motion, arguing that the warrants were unconstitutional because they were not supported by probable cause. In particular, he demonstrated that the affidavits failed to draw any meaningful connection between the conduct being investigated and the belief that illegal material would be found on the client’s electronic devices. Instead, the government relied on a boilerplate assumption that people accused of sexual misconduct are likely to possess such material on their electronics. Attorney Goldstein argued that this “profile-based” reasoning violated long-standing Third Circuit precedent, which requires a clear factual nexus between the alleged crime and the evidence sought.

The federal judge agreed, ruling that the affidavits were too speculative to support probable cause and that the warrants were so deficient that the “good faith” exception did not apply. The court found that no reasonable officer could have believed that the affidavits established a sufficient basis to search the client’s home and devices. Because the subsequent search warrants were based on evidence obtained from the initial unconstitutional searches, all of the evidence in the case was suppressed.

This outcome is a tremendous win and a relatively rare event in federal criminal litigation. Federal suppression motions are extremely difficult to win. Courts often defer to the government’s investigative process, and they routinely apply a good faith exception where, as here, investigators obtain a search warrant even if the warrant itself turns out to be lacking. Attorney Goldstein’s success demonstrates the value of a deep understanding of constitutional law and the willingness to challenge law enforcement overreach through careful, methodical, and aggressive litigation.

Facing federal criminal charges? We can help.

Criminal Lawyer Zak T. Goldstein, Esquire

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also 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, and we frequently spot issues and defenses that other lawyers miss. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 9/30/25 Zak Goldstein 9/30/25

PA Supreme Court: Defendant Failed to Present Sufficient Evidence to Require Voir Dire Question on Whether Jurors Will Always Believe Alleged Child Abuse Victims

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Smith, affirming a trial court's broad discretion in refusing a specific jury selection question about a juror’s potential for bias in favor of the truthfulness of alleged child sexual assault victims. The Court concluded that based on the record presented to the trial judge, there was no abuse of discretion in denying the proposed inquiry because the defendant failed to show that jurors tend to believe child abuse complainants more than other potential witnesses. Had the defense presented more evidence to the trial court, however, the question may well have been required.

The Issue in Smith

The defendant, who had been convicted of child sexual assault charges, challenged the trial court's refusal to ask prospective jurors the following specific question during voir dire (jury selection):

Are you more likely to believe the testimony of a child alleging sexual abuse because you do not believe a child could lie about sexual abuse?

The defendant argued that in a case where the uncorroborated testimony of the child complainants was central to the Commonwealth’s case, his right to an impartial jury required a specific inquiry into a potential "fixed bias" that children do not lie about sexual abuse.

The Court's Ruling: Insufficient Evidence to Support the Question

The Supreme Court applied an abuse of discretion standard of review to the trial court’s ruling and rejected the defendant’s challenge as follows:

No Foundation at Trial: The Court noted that the defendant’s argument for the existence of this fixed bias was a "bald assumption" before the trial court as he "offered no support for the proposition that the inquiry addressed a fixed bias or prejudice.” Because the Court must review the trial court's decision based on the information it had at the time, the defense's later, more detailed arguments on appeal were not helpful in terms of retroactively showing that the trial court erred.

Adequate General Inquiry: The trial court had conducted extensive general and individual voir dire. This included informing the panel of the nature of the charges and asking if anything would prevent them from being

fair and impartial, as well as inquiring if they or anyone close to them had been victims of sexual assault or child abuse. The trial court also excused multiple jurors for cause who claimed an inability to be fair.

Fixed Bias vs. Credibility: The Court clarified that inquiries designed to uncover a fixed bias, such as one related to a certain category of witnesses, are not the same as instructions on general witness credibility. A fixed bias precludes an impartial determination of credibility. However, based on the lack of a foundation supporting the existence of this particular bias due to the defendant’s failure to develop the record at the trial level, the trial court did not abuse its discretion.

The Court's decision essentially provides a roadmap for future cases: a trial court is only free to refuse this line of inquiry if the party requesting it fails to present a developed, evidence-based argument for the existence of a fixed bias. Here, the defendant presented strong evidence of the bias to the Supreme Court such that the Court may well have reversed had the evidence been presented to the trial court, but because the trial court could only make a ruling based on the evidence presented at the time, the Supreme Court rejected the defendant’s challenge.

Unlawful Contact Remand: Reconsideration in Light of Strunk

The Court also addressed the defendant’s challenge to his convictions for unlawful contact with a minor (18 Pa.C.S. § 6318).

Commonwealth v. Strunk: Subsequent to the Superior Court's decision affirming in this case, the Supreme Court narrowed the scope of the unlawful contact statute in Commonwealth v. Strunk.

Strunk held that Section 6318 is an "anti-grooming statute" intended to criminalize and punish “communication designed to induce or otherwise further the sexual exploitation of children.”

The Outcome: Given the significant clarification in the law, specifically, the refinement of the sufficiency of the evidence required for convictions under Section 6318—the Supreme Court vacated the Superior Court's judgment on this issue and remanded the case for reconsideration in light of Strunk. The Superior Court will now have to apply the statute’s narrower focus on "communicative behavior” in this case on remand.

Ultimately, although the result is bad for this particular defendant, the case is good for defendants in general in that it shows that should a defendant make an adequate record, they might be entitled to ask potential jurors about whether they will always believe alleged child abuse victims. Similarly, the Court continues to hold that the unlawful contact statute is not nearly as broad as prosecutors typically claim.

Facing criminal charges? We can help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also 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.

Zak Goldstein 6/18/25 Zak Goldstein 6/18/25

PA Superior Court: Trial Court Erred in Quashing Charges From Online Sting Operation Run by Private Citizen Based on Factual Impossibility

Criminal Defense Lawyer Zak Goldstein — Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

In Commonwealth v. Aguilar, 2025 PA Super 118, the Pennsylvania Superior Court reversed the order of the Monroe County Court of Common Pleas dismissing criminal charges against a defendant who had been caught in an online sex sting operation run by a private citizen. The Superior Court held that the trial court erred in granting the defendant’s motion to suppress because a motion to suppress was not even the correct type of motion for a defendant to bring. The Court also ruled that even if the trial court properly construe the motion as a motion to quash, the trial court erred in granting it based on factual impossibility as factual impossibility is not a defense in Pennsylvania.

Background

The defendant was targeted by a group called LC Predator Catchers. Posing as a 15-year-old boy on dating apps, a private citizen allegedly engaged in explicit conversations with the defendant. According to the affidavit of probable cause, the defendant sent sexual messages and photos, offered to be “fuck friends,” and invited the fake minor to his home. The private citizen allegedly showed up at the defendant’s house, confronted him, and then notified the Pocono Mountain Regional Police Department. Police later conducted a Mirandized interview, during which the defendant allegedly acknowledged the sexual intent of his messages.

Prosecutors charged the defendant with:

Criminal Attempt – Corruption of Minors (both as a misdemeanor and felony under 18 Pa.C.S. § 6301(a)(1)),
Criminal Use of a Communication Facility (18 Pa.C.S. § 7512(a)).

Suppression and Trial Court Proceedings

The defendant filed a pretrial “motion to suppress,” arguing that all charges should be dismissed because his communications were with an adult civilian rather than an actual minor or police officer. He relied on the text of 18 Pa.C.S. § 6318 (the Unlawful Contact with a Minor statute), which explicitly requires the involvement of a real or undercover minor. Although the defendant was not actually charged under that statute for that reason, the trial court accepted his argument and reasoned that it was factually impossible for the defendant to have committed the charged offenses.

The trial court then sua sponte treated the suppression motion as a motion to quash and dismissed the criminal information in its entirety based on this impossibility argument. In its opinion, the trial court also concluded on its own that the Commonwealth failed to present a prima case at the preliminary hearing that the defendant committed a crime. The Commonwealth appealed.

The Superior Court’s Ruling

The Pennsylvania Superior Court reversed after concluding that the trial court made a number of mistakes.

Suppression Inapplicable: Because the communications were with a private citizen, not law enforcement, there was no Fourth Amendment or Pennsylvania constitutional violation. Thus, suppression was not a proper remedy.
Improper Sua Sponte Quashal: The defendant never filed a motion to quash. Under Pennsylvania law, quashal must be specifically requested in an omnibus pretrial motion, and sua sponte dismissal is generally improper. The Court emphasized that a suppression motion cannot be repurposed into a dispositive ruling on legal guilt.
Factual Impossibility Is Not a Defense: The Superior Court reaffirmed that under Pennsylvania law, factual impossibility is not a defense to an attempt charge. So long as the defendant believed he was communicating with a minor and took a substantial step toward completing the offense, he could be charged with attempt—even if the "minor" turned out to be an adult vigilante.
No Minor Required Under Charged Statutes: The Superior Court rejected the defendant’s argument that a minor or police officer was required to establish a violation of the statutes at issue. The Corruption of Minors statute, unlike § 6318, does not require the involvement of a real or fictitious minor. Likewise, the offense of Criminal Use of a Communication Facility requires only that the facility be used to facilitate a felony or attempted felony.
Prima Facie Case Was Established: The court found that the Commonwealth had produced sufficient evidence to support each element of the offenses charged. Chat logs, photographs, the defendant’s confession, and the arrangement to meet in person all constituted a prima facie case. Because no preliminary hearing had yet been held, the trial court’s ruling on evidentiary sufficiency was premature. Therefore, the Court reversed.

Conclusion

The Superior Court reinstated all charges and remanded the case for further proceedings. It emphasized that the charges did not require the involvement of an actual or undercover minor and that the trial court overstepped its role by misapplying both suppression doctrine and the law of attempt. Accordingly, the Court effectively held that private-citizen stings—though controversial—can lead to viable prosecutions in Pennsylvania.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Goldstein Mehta LLC Criminal Defense Attorneys

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also 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.