Philadelphia Criminal Defense Blog

Zak Goldstein 10/11/26 Zak Goldstein 10/11/26

PA Superior Court: Trial Court Cannot Revoke Bail Based Only on the Prosecutor’s Proffer

The Pennsylvania Superior Court has decided Commonwealth v. Moore, 2026 PA Super 228 (Pa. Super. Oct. 9, 2026), holding that a trial court abused its discretion when it revoked a defendant’s bail based only on the prosecutor’s unsworn description of what a witness had reported. The Commonwealth did not call a single witness or introduce a single exhibit. Applying Commonwealth v. Talley, 265 A.3d 485 (Pa. 2021), the Superior Court vacated the revocation order and directed the trial court to reinstate the defendant’s $500,000 bail.

The Facts of Commonwealth v. Moore

The Commonwealth charged the defendant in Clearfield County with indecent assault of a person less than 16 years of age, corruption of minors, and endangering the welfare of children. The complainant, a minor, lives in the home of the defendant’s brother. The trial court reduced bail from $1,000,000 to $500,000, and a professional surety posted bond in September 2025.

On the morning the jury trial began in August 2026, the prosecutor made an oral motion to revoke bail. The court declared a mistrial during the Commonwealth’s case and then heard the motion immediately. The prosecutor said the Commonwealth would call a woman who lives in the home with the complainant, but the Commonwealth never put her on the stand. Instead, the prosecutor described what she had reported: several toys had appeared on her porch the previous morning, including a duck, a squishy toy, an eraser-type toy, and a toy parrot with a commercially printed message. According to the prosecutor, the message read:

I could talk to you today or quietly fly away. It is up to you to make me stay. It all depends on what you say.

The prosecutor argued that the defendant left the toys because he had been to the house before, knew where the security cameras were, and avoided them, and that the verse itself was witness intimidation. Defense counsel called the motion “way, way past the line of speculation.” The toys carried no signature or name, anyone could buy them in a retail store, and the Commonwealth had no receipts or witnesses tying them to the defendant.

The court did not swear in any witnesses, admit any exhibits, or take any testimony. It revoked bail after hearing argument. In a later statement of reasons, the court acknowledged that the case was circumstantial but said the wording on the toy led it to believe the defendant left the items, and that no one else would have had a reason to leave them the day before trial and outside the cameras’ view.

The Superior Court’s Ruling

The defendant filed a petition for specialized review under Pa.R.A.P. 1610, which allows a party to seek review of an order granting or denying release or modifying the conditions of release before sentence. The Superior Court applied Talley, where the Supreme Court held that the Commonwealth must present a substantial quantity of legally competent evidence, meaning evidence admissible under the rules of evidence or covered by the criminal rules on release criteria. Talley, 265 A.3d at 524. The Commonwealth cannot meet that burden by stacking inference upon inference, and the court must look beyond the affidavit of probable cause and the prosecutor’s proffer. Id. at 525, 528.

The Commonwealth offered nothing but the proffer. It did not call anyone to testify about finding the items, when they appeared, or who bought them, and the trial court admitted no evidence connecting the defendant to the delivery. Because the trial court relied exclusively on the prosecutor’s unsworn proffer, it abused its discretion. The Superior Court vacated the order and remanded for reinstatement of the $500,000 bail and the prior conditions of release, without prejudice to the Commonwealth filing a renewed motion to revoke. Having granted relief, the Court did not reach the defendant’s argument that the trial court failed to state its reasons as Pa.R.Crim.P. 536 and 529 require.

The Takeaway

Moore is a narrow win. The Superior Court did not decide whether the inferences tying the defendant to the toys could ever support revocation. It vacated the order because the Commonwealth presented no evidence at all, and the Commonwealth can try again with live testimony. If it does, the defense can still argue that unsigned toys available in any retail store require exactly the kind of stacked inferences that Talley forbids.

Still, defense lawyers now have a precedential opinion holding that a proffer alone cannot support revocation. Prosecutors sometimes move to revoke bail based on what a witness or detective told them, and judges sometimes grant those motions without hearing from anyone under oath. When that happens, object, ask the court to make the Commonwealth call the witness, and insist that any ruling rest on evidence the court actually admitted. If the court revokes bail anyway, Rule 1610 offers a fast route to the Superior Court. The defendant filed his petition on September 1, and the Superior Court decided it on October 9.

Facing Criminal Charges or Appealing a Criminal Case in Pennsylvania? 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 10/2/26 Zak Goldstein 10/2/26

PA Supreme Court: Prosecutors May Not Use a Defendant’s Decision to Hire a Lawyer Against Him

The Pennsylvania Supreme Court has decided Commonwealth v. Jenkins, No. 66 MAP 2024 (Pa. Oct. 1, 2026), holding that a prosecutor violates a defendant’s due process right to a fair trial by telling the jury that the defendant consulted or retained a lawyer before police questioned or arrested him. But the defendant did not get a new trial. The Court held that the error is not structural and found it harmless this case because the trial judge gave a strong curative instruction and the evidence of guilt was overwhelming.

The Facts of Jenkins

On Valentine’s Day 2017, the defendant spent the evening drinking with a longtime friend and the friend’s girlfriend at their Dauphin County apartment. The friend felt dizzy and went to bed. The girlfriend told the defendant to leave, and he refused. She remembered him striking her and throwing her against a wall hard enough to damage it, and she remembered nothing after that. Motel surveillance video showed the defendant arriving at his room around 3:15 a.m. and carrying her limp body inside. She woke up in his room with her pants and underwear removed.

Two months later, after the defendant hired a lawyer, a detective interviewed him by phone with his attorney participating. The defendant denied any wrongdoing and specifically denied having sex with the complainant. DNA testing later identified his semen on the vaginal swab taken at the hospital, which is a tough fact. The Commonwealth charged him with rape of an unconscious victim, kidnapping, and related offenses.

The defendant did not testify at trial. In closing, the prosecutor told the jury that the defendant knew the case was serious, so “[h]e gets a lawyer. He gets an attorney. This isn’t some schlep who just went in and spoke with the police without the benefit of having someone there to protect your rights, no.” She then argued that when he had the chance to come clean with his lawyer on the call, “[h]e lies. He lies.”

Defense counsel unsurprisingly moved for a mistrial. The trial court denied the motion but, at defense counsel’s request, told the jury that the defendant had a right to counsel, that “when statements are given the law prefers that it be with counsel,” and that the jurors should draw no adverse inference from his use of a lawyer. The jury convicted him on all charges, and the court imposed 13 to 30 years of incarceration. A divided Superior Court panel affirmed.

The Supreme Court’s Decision

The Supreme Court affirmed, but it agreed with the defense on the central question. Writing for the majority, Chief Justice Todd explained that when a person has reason to believe police are investigating him, the decision to consult or hire a lawyer does not suggest guilt and has no relevance to whether he committed the crime. Relying on federal and out-of-state decisions, including the Third Circuit’s decision in United States ex rel. Macon v. Yeager, 476 F.2d 613 (3d Cir. 1973), the Court held that “it is error for a prosecutor to inform the finder of fact that a criminal defendant sought the advice or assistance of counsel prior to questioning by the police, or prior to arrest, for the criminal offense for which they are being tried, as it impacts the defendant’s due process right to a fair trial guaranteed by the Fourteenth Amendment.”

The Court found this prosecutor’s argument especially troubling because she tied the lie to the lawyer, suggesting that the defendant lied with his attorney’s help or blessing. The Commonwealth was free to argue that the DNA proved the defendant lied when he denied having sex with the complainant. The reference to his attorney added nothing to that point. It only undermined the defendant, and his lawyer, in the eyes of the jury.

The Court then rejected the defense argument that the error was structural and required automatic reversal. Applying Weaver v. Massachusetts, 582 U.S. 286 (2017), the Court found that a single improper comment at the end of a three-day trial did not infect the whole proceeding and that its effect could be measured against the rest of the evidence. Like other improper prosecutorial remarks, the comment is subject to harmless error review.

Finally, the Court held that the error was harmless beyond a reasonable doubt. The surveillance video, the DNA results, and the complainant’s testimony provided overwhelming evidence of guilt. The trial judge also gave a prompt instruction that directed the jury not to draw any adverse inference from the defendant’s use of a lawyer, and the Court presumed the jury followed it. The opinion closes with a warning to prosecutors that “this line of questioning should be scrupulously avoided.” Justice McCaffery, joined by Justice Donohue, filed a concurring and dissenting opinion.

The Takeaway

Goldstein Mehta Criminal Defense — Goldstein Mehta LLC Criminal Defense

Jenkins gives defense lawyers a clear, binding rule: the Commonwealth may not tell the jury that the defendant spoke with or hired a lawyer before police questioned or arrested him. But the rule helps only if trial counsel objects right away and moves for a mistrial. In distinguishing the federal and out-of-state cases that granted new trials, the Court pointed out that those cases involved no timely objection, no curative instruction, or an instruction that did not address the comment. Lawyers litigating this issue should also raise Article I, Section 9 of the Pennsylvania Constitution. The defendant in Jenkins did not argue that it provides greater protection, so the Court did not decide that question. But here, the evidence was still just too strong to overcome, so the defendant did not receive a new trial. In many cases, the evidence will not be quite as strong. Lawyers should always object to improper commentary on a defendant’s decision to retain counsel or remain silent in the face of questioning.

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Zak Goldstein 9/30/26 Zak Goldstein 9/30/26

PA Superior Court: Google and Facebook Are Not Government Agents When They Scan User Accounts and Report Internet Contraband to NCMEC

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Thomas, 2026 PA Super 209, holding that Google and Facebook do not act as agents of the government when they scan their users’ accounts for child sexual abuse material and report what they find to the National Center for Missing and Exploited Children (NCMEC). The defendant argued that federal law, which requires the companies to report this material and fines them if they do not, makes them instruments of law enforcement, so their warrantless searches of his accounts violated the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution. The Court rejected the argument in a published opinion. But the holding rests on a thin record, and the Court left the harder questions open.

The Facts of Thomas

In May 2023, Facebook and Google sent three CyberTipline reports to NCMEC stating that files had been uploaded through Facebook Messenger and to Google Photos. NCMEC forwarded the reports to the Pennsylvania State Police. A State Police corporal viewed the images, subpoenaed Verizon and Google for the subscriber behind the IP address, and obtained a search warrant for the defendant’s home in Fayette County. Police found child sexual abuse material on two of his phones. The defendant moved to suppress, arguing that Google, Facebook, and NCMEC were all acting as agents of law enforcement when they searched his accounts. The trial court denied the motion, a jury convicted him of twenty counts of possession, one count of dissemination, and one count of criminal use of a communication facility, and the court sentenced him to six to twelve years in prison.

The Superior Court’s Decision

The Fourth Amendment and Article I, Section 8 restrain the government, not private parties. Under United States v. Jacobsen, 466 U.S. 109 (1984), and Commonwealth v. Shaffer, 209 A.3d 957 (Pa. 2019), the police may use what a private party finds and turns over so long as they do not exceed the scope of the private search. The doctrine does not apply if the private party was really acting as an agent or instrument of the government, and the answer to that question depends on the degree of the government’s participation in the private party’s activities.

The defendant’s argument rested on 18 U.S.C. § 2258A, which requires providers to report apparent child sexual abuse material to NCMEC and fines them up to $1,000,000 for knowingly failing to do so. The Court held that the statute does not make Google and Facebook government agents because subsection (f) of the same statute says that nothing in it requires a provider to monitor its users or affirmatively search, screen, or scan for the material. Congress required the companies to report what they know and left the decision whether to look entirely to them. The Court then made a critical point: nothing in the record showed that Google and Facebook searched the defendant’s accounts at the government’s urging or through any manipulation or coercion. The Court cited decisions from five federal circuits reaching the same result and followed them.

The Court treated NCMEC differently. It acknowledged that Congress funds NCMEC, requires providers to report to NCMEC rather than to the police, requires NCMEC to forward every report to law enforcement, authorizes NCMEC to receive and distribute material that would be a crime for anyone else to possess, and immunizes NCMEC for doing so. It noted that the Second Circuit in United States v. Guard, 152 F.4th 375 (2d Cir. 2025), and the Tenth Circuit in United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016), have held that NCMEC is a government agent. The Court did not decide the question because the defendant never argued that NCMEC or the police looked at anything Google and Facebook had not already looked at. Without a scope argument, NCMEC’s status did not matter.

The defendant did win a new trial on the dissemination count, because the Commonwealth proved that charge entirely through the CyberTipline report, which it introduced as a business record through the corporal, and the Court held that an investigating officer who merely receives and relies on NCMEC reports is not a qualified witness who can authenticate them.

The Takeaway

The state actor argument is still open. The Court did not hold that Google and Facebook can never be government agents. It held that this defendant did not prove they were on a record that failed to provide any evidence as to why the companies scan their users’ accounts, how those systems came to exist, or what role law enforcement and NCMEC play in them. The Court said in so many words that the record did not support a finding that the government urged, manipulated, or coerced the searches. That may be an opportunity to build a better record in a future case. A defendant could subpoena the providers and develop testimony about the government’s participation in the design and operation of these scanning programs, where the hash databases the providers match against come from, and what the providers get in return presents a different case. The agency test turns on the degree of government participation, and no one in Thomas presented any evidence of participation to the trial court, so there was nothing to support the appeal.

The second open question is what happens when the police look at files that no human at the company ever opened. In Thomas, the Facebook report itself said that NCMEC never viewed the files, and nothing in the opinion says anyone at Facebook viewed them either. A computer flagged them, and the first person to actually open them may have been the trooper. The private search doctrine lets the police look at what a private party already looked at. It does not necessarily let the police look at something a private party's software only flagged. The defendant never made that argument, so the Court did not address it. It has to be raised in the suppression motion and supported with evidence at the hearing because the Superior Court will not consider it for the first time on appeal.

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 in jury trials, bench trials, preliminary hearings, and appeals in state and federal court. We have won cases involving the most serious charges, including first-degree murder, and we have obtained new trials and sentencing relief for our clients through direct appeals and PCRA petitions. We offer a free criminal defense strategy session to anyone who is facing charges or who may be under investigation. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 9/4/26 Zak Goldstein 9/4/26

PA Superior Court: Trial Counsel Ineffective for Failing to Move to Suppress Parole Violation Admission Obtained Without Miranda Warnings

The Pennsylvania Superior Court has decided Commonwealth v. Ames, 2026 PA Super 179 (Pa. Super. Aug. 10, 2026), holding that a parole agent conducted a custodial interrogation when he took a parolee into custody in handcuffs and shackles, read him the complainant’s allegations of new crimes, and presented him with a form on which he could admit that he had violated his parole by committing that conduct. The agent never gave Miranda warnings, so the signed admission should have been suppressed, and trial counsel had no reasonable basis for letting the Commonwealth use it at a trial where the whole defense was that the complainant had made the allegations up. The Court reversed the denial of the defendant’s PCRA petition and remanded for a new trial.

**What Happened in Commonwealth v. Ames?**

In 2016, the defendant pleaded no contest to simple assault and terroristic threats for assaulting his wife, L.A. While he was on parole for that case, L.A. alleged that he strangled her, beat her, threatened to kill her, and sexually assaulted her on two occasions in late 2018. In March 2019, she reported the incidents to his parole agent. The agent passed the allegations to the local police, and when the police did not file charges right away, he ordered the defendant to report to the parole office. When the defendant arrived, the agent handcuffed and shackled him, took him to an interview room, read him the notice of charges describing L.A.’s allegations in detail, and gave him the choice of a hearing on the violation or a signed waiver admitting it. The defendant signed the form admitting that he had violated parole by engaging in assaultive behavior and violating a no-contact order. The agent never gave Miranda warnings.

The Commonwealth charged the defendant with strangulation, aggravated assault, sexual assault, and related offenses. At trial, it introduced the signed admission and the agent’s testimony about the meeting. The defense argued that L.A. had fabricated the allegations to get the defendant in trouble with parole, and it called two medical experts, including L.A.’s treating physician, who testified that L.A. told her that storage containers had fallen on her. The jury convicted the defendant of everything, and the court sentenced him to forty and a half to eighty years in prison. The Superior Court affirmed on direct appeal. The defendant then filed a PCRA petition arguing that trial counsel should have moved to suppress the admission. The PCRA court denied relief, and he appealed.

The Superior Court’s Ruling

The Commonwealth conceded that the defendant was in custody, so the only question was whether the agent interrogated him. In Commonwealth v. Cooley, 118 A.3d 370 (Pa. 2015), the Pennsylvania Supreme Court held that a parole agent who handcuffs a parolee and questions him about new crimes must give Miranda warnings, because at that point the agent’s conduct is the functional equivalent of a police officer’s. The Commonwealth argued that Cooley did not apply because the agent never asked the defendant any questions and the meeting was a routine part of the parole process.

The Superior Court rejected both arguments. The agent did not bring the defendant in for routine administrative questions. He brought him in to find out whether he had committed the crimes L.A. described, laid out those allegations, told him he believed the defendant had violated parole by engaging in assaultive behavior, and then handed him a form on which he could admit it. That was an interrogation. Miranda protection is not limited to answers to questions; the agent’s words and actions were reasonably likely to elicit an incriminating response, and the defendant did not volunteer anything. A motion to suppress would have had merit.

Trial counsel had no reasonable basis for failing to file it. Her strategy was to show that L.A. was lying, and the signed admission told the jury that L.A. was telling the truth. No competent counsel would allow a confession to the charged conduct into evidence while arguing that the complainant invented the allegations. On prejudice, the Court noted that the defendant’s admissions alone were enough to convict him of several charges, and that the medical evidence was contested. Two defense experts testified that L.A.’s injuries did not match her account, and the Commonwealth did not call any expert to rebut the treating physician. Given that conflict, the confession likely had a substantial impact on the verdict. The Court reversed and remanded for a new trial.

Does a parole agent have to give you Miranda warnings?

Sometimes. Cooley held that a parole agent who questions a handcuffed parolee about new crimes must give Miranda warnings. Ames extends that rule to the situation where the agent does not actually ask anything but simply presents the parolee with an admission form. Anyone on parole or probation who is called in over new allegations should not sign anything admitting to criminal conduct without talking to a lawyer first because the Commonwealth could use the signed form as a confession in the criminal case. And where an agent has already obtained an admission from a client in custody without warnings, defense counsel should move to suppress it. Under Ames, the failure to file that motion can support a successful ineffectiveness claim and lead to a new trial.