Philadelphia Criminal Defense Blog

Zak Goldstein 3/3/18 Zak Goldstein 3/3/18

PA Superior Court: Drug Overdose Response Immunity Statute Applies to Person Overdosing

The Superior Court has just decided the case of Commonwealth v. Lewis, holding that Pennsylvania’s Drug Overdose Response Immunity statute provides immunity for both the reporter of a drug overdose and the victim of a drug overdose, so long as the conditions of the statute are met. It also applies even where the victim of the overdose makes the call for help themselves and there is no separate reporter. Pennsylvania’s drug overdose immunity statute is very limited and does not provide immunity against serious felony charges, but this is a good opinion which encourages people who may be in the middle of a drug overdose to seek help instead of worrying about whether they will be arrested for minor drug offenses.

Commonwealth v. Lewis

In Lewis, the defendant called 911 from her hotel room to report that she had overdosed on prescription pills. Police responded and took her to the hospital. While assisting her, police saw more pills and paraphernalia for smoking marijuana in her room. The police questioned her about the drugs, and she admitted that they belonged to her and that she smokes marijuana. Lewis received treatment at the hospital and recovered. Prosecutors, of course, charged her with possession of drug paraphernalia.

Prior to trial, Lewis moved to dismiss the charges, claiming immunity to prosecution under the Drug Overdose Response Immunity statute. The trial court denied the motion. The trial court ruled that the act did not apply to her case because 1) Lewis did not actually need immediate medical attention, and 2) the Act did not apply to self-reported overdose victims. The court ultimately convicted Lewis of drug paraphernalia in a bench trial and sentenced her to three months’ probation. Lewis appealed, arguing that the court should have granted her motion to dismiss because she was immune to prosecution under the act.

What is the Drug Overdose Response Immunity Act?

Pennsylvania has a very limited statute which seeks to encourage people who observe someone else in the middle of a drug overdose to call for help instead of worrying about criminal prosecution. In order to further this goal, it provides immunity to prosecution for minor drug offenses such as the knowing and intentional possession of a controlled substance for personal use and possession of drug paraphernalia. It also provides immunity against violations of probation and parole. Notably, it does not provide immunity to serious offenses. For example, the statute does not provide immunity to Possession with the Intent to Deliver charges or the extremely serious and increasingly-prosecuted homicide charges of Drug Delivery Resulting in Death.

Can I be prosecuted if I call for help for a friend who is overdosing?

In order to qualify for immunity, the defendant must meet three criteria:

the person reported, in good faith, a drug overdose event to a law enforcement officer, the 911 system, a campus security officer or emergency services personnel and the report was made on the reasonable belief that another person was in need of immediate medical attention and was necessary to prevent death or serious bodily injury due to a drug overdose;
the person provided his own name and location and cooperated with the law enforcement officer, 911 system, campus security officer or emergency services personnel; and
the person remained with the person needing immediate medical attention until a law enforcement officer, a campus security officer or emergency services personnel arrived.

The statute further addressees the victim of the overdose. It provides:

Persons experiencing drug overdose events may not be charged and shall be immune from prosecution as provided in subsection (b) if a person who transported or reported and remained with them may not be charged and is entitled to immunity under this section.

The statute has a good purpose, but it does not protect you if you call in an overdose and have potential criminal liability for drug distribution or drug delivery resulting in death.

The Statute Applies to People Who Call For Help with Their Own Overdose

The issue in this case arose because the plain language of the statute seems to imply that a second person has called in the drug overdose on behalf of the victim. It does not directly address what should happen when there is no second person and it is the victim themselves making the phone call for help.

The Superior Court, seeking to encourage more people to seek help instead of worrying about whether they will face minor drug possession charges, held that the statute did protect the defendant in this case. The Court noticed that the Act does implicitly condition the grant of immunity on the presence of two parties: a reporter and a victim. However, the Court found that the implicit requirement was unintended. The Act does not explicitly provide immunity for self-reporters, but excluding self-reporters from the immunity granted by the Act would result in an absurd result. Under the trial court’s reasoning, Lewis would not be immune because she called 911 herself. Had she called a neighbor and asked a neighbor to call 911, Lewis would have been immune had the neighbor done so and otherwise complied with the requirements of the statute.

The Superior Court recognized that the Legislature likely did not intend this absurd result, and therefore the Act should be interpreted to apply in situations such as this where the victim and the reporter were the same person. The Court also found that the trial court was too strict in interpreting the requirement that the person actually needed immediate medical attention. Instead, the Court ruled that the person must only reasonably believe that they need immediate medical attention to avoid serious bodily injury or death. Here, there was no evidence that Lewis’s belief was unreasonable. Accordingly, the Act applied and prevented her prosecution for drug paraphernalia charges. The Superior Court reversed the conviction.

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Zak Goldstein 3/2/18 Zak Goldstein 3/2/18

PA Superior Court: Commonwealth May Not Rebut Claim of Self-Defense by Showing Defendant Has Prior Conviction for Violent Offense

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Superior Court just announced its decision in Commonwealth v. Crosley, holding that the Commonwealth cannot use a defendant’s prior conviction for a violent offense in order to rebut a defendant’s claim that the complainant was a violent person who started the altercation. Instead, testimony to this effect by a criminal defendant in an assault or homicide trial would open the door only to evidence of the defendant’s reputation for violence. This decision limits the Commonwealth’s ability to rebut claims of self-defense in that the Commonwealth may not tell a judge or jury that the defendant has a prior conviction for assault or some other violent crime.

Commonwealth v. Crosley

This case had an unusual set of the facts. It is unclear how the defendant and the decedent met, but at some point the decedent gave the defendant permission to live in his shed. The defendant was not allowed inside the house without permission. When it was cold, the decedent would permit the defendant to live in the basement of the house. Additionally, the decedent was married and had a child living at the residence.

Eventually, the decedent’s wife tired of this arrangement. She wanted the defendant off of the property, so the decedent went and told the defendant that he would have to move out. The decedent’s wife testified that the decedent was unarmed when he went to speak with the defendant.

While she was in the shower, the decedent’s wife heard what she believed to be a gun shot. She instructed her daughter to go check on the decedent. The daughter then went to the basement where she observed the decedent and the defendant struggling for a gun. Upon seeing this, the daughter ran upstairs and told her mother what she saw. The decedent’s wife then went to her window where she observed the defendant chasing the victim and shooting at him. She yelled at the defendant to stop, and the defendant replied that the decedent “takes me for a fool.” The wife went outside and found the decedent lying on the sidewalk with a bullet hole in his chest. He was alive at this point and taken to a local hospital, where he succumbed to his injuries.

Police arrested the defendant and questioned him. He waived his Miranda rights and gave a statement to the police. He claimed that he had shot the decedent in self-defense. He further told the police about prior incidents in which the decedent had possessed a gun and threatened the defendant with the gun. He mentioned one specific instance where he had disarmed the decedent and hid the decedent’s gun. He took the police to the location where he had hidden the gun. The police recovered the gun and some ammunition.

Prior Bad Acts in Self-Defense Cases

After the decedent died, prosecutors charged the defendant with Murder, gun charges, and possession of an instrument of a crime. Prior to trial, the Commonwealth filed a Motion in Limine asking the trial court to allow the introduction of the defendant’s existing Aggravated Assault conviction. The trial court held a hearing, and the court ruled that the Commonwealth could introduce evidence of the Aggravated Assault conviction if the defendant took the stand and told the jury that the decedent was a violent person and that he had acted in self-defense. Undeterred, the defendant took the stand and testified that the decedent was a violent person who had attacked him first. The defendant also testified that he, the defendant, never carried a weapon and was not a violent person. The jury convicted the defendant of third-degree murder and the gun charges. The Court sentenced him to a lengthy period of state incarceration followed by a period of probation and also ordered him to pay $7,864.72 in restitution to the Pennsylvania Victim’s Compensation Fund. The defendant appealed.

What is Character Evidence?

The defendant raised several issues on appeal. First, he argued that the trial court erred in permitting the Commonwealth to introduce evidence of his prior Aggravated Assault conviction in order to rebut his assertion that the complainant was the violent aggressor. In general, character evidence is extremely important in Pennsylvania. Pennsylvania law permits criminal defendants to introduce character evidence to show that they are not the type of person who would commit the crime charged. In other words, a defendant who has no prior record may introduce evidence about his or her law abidingness, truthfulness, and non-violence to show that he or she would not have committed a crime. Under Pennsylvania law, the jury will then be instructed that character evidence alone may be enough for the jury to find reasonable doubt. Typically, in Philadelphia, if a defendant has good character, meaning no prior record, the Commonwealth will stipulate to it and the defendant may not have to call live witnesses to testify to the character evidence. When the defense does call character witnesses, the witnesses must testify only about the defendant’s good reputation for the relevant character traits; the witness may not testify about specific good things that the defendant has done or the witness’s own personal opinion.

Although the defense may introduce character evidence, the Commonwealth generally may not introduce evidence of a defendant’s bad character or prior criminal history for the purposes of proving that the defendant is a bad person who would commit the crimes charged. The logic behind the rule is that just because an individual committed a crime at some point in their life, it does not necessarily follow that they committed this particular crime. However, there are exceptions to the rule. The Commonwealth may try to introduce evidence of prior convictions through Pa.R.Crim.P. 404(b).

What is a 404(b) motion?

Although the Commonwealth may not introduce character evidence to show that a defendant committed a crime because he has a character for criminality, the Commonwealth can introduce prior criminal contacts to rebut certain defenses. The rules permit the Commonwealth to file a 404(b) Motion. A 404(b) motion is commonly referred to as a “Prior Bad Acts Motion,” and prosecutors file them to rebut certain defenses such as mistake, fabrication, lack of knowledge. The Commonwealth may also introduce these “bad acts” to show that it was part of the defendant’s Modus Operandi or was part of a common scheme.

Let’s do an example of common scheme. Suppose that an individual is charged with Possession with Intent to Deliver a Controlled Substance, or selling drugs. More specifically, let’s say that he is accused of selling heroin with an X stamp on the package on the southwest corner of D and Allegheny Streets. Let’s also assume that he has a prior conviction for selling heroin with an X stamp on the package on the southwest corner of D and Allegheny Streets from a month prior to the arrest of his current case. If the Commonwealth were to file a 404(b) motion to introduce that prior conviction, they would have a decent argument that the defendant is engaged in a common scheme to sell heroin with X stamps on the package at the southwest corner of D and Allegheny Streets. Technically, this example did not address the defendant’s character. However, if a judge or a jury hears that a defendant has a prior conviction for selling drugs and is currently on trial for selling drugs, it is much more likely that he will be found guilty of the current offense because juries have a very hard time disregarding the fact that the defendant has a prior conviction. Accordingly, these 404(b) motions can make or break a case.

The Pennsylvania Superior Court Limits the Commonwealth’s Introduction of Character Evidence to Rebut a Claim of Self-Defense

In cases involving crimes of violence, however, the Commonwealth may sometimes introduce character evidence when the defendant raises the issue of self-defense. The prosecution may not introduce this evidence as part of its case-in-chief, but if the defendant introduces evidence that the complainant was the aggressor and a violent person, it opens the door for the prosecution to attack the defendant’s character.

As previously explained, there are different rules for the Commonwealth and defendants when it comes to introducing character evidence. The rule governing character evidence is Rule 405. Typically, as the Crosley court explained, only defendants can introduce specific instances of conduct and this can only be done for alleged victims. As such, a defendant cannot introduce specific instances of conduct to show his character for non-violence. He would need a witness to discuss his reputation for non-violence. However, if a defendant is attacking a victim’s character, he can then use specific examples (i.e. a prior conviction of the witness for assault) to show that the witness was a violent person.

In rebuttal, the Commonwealth may only attack the defendant’s character through reputation evidence. The Commonwealth cannot bring in specific instances (i.e. a prior conviction) to rebut his claim. Therefore, in Crosley, the lower court erred in admitting Mr. Crosley’s prior aggravated assault conviction to rebut his self-defense claim. The Commonwealth would have had to call someone who knew the defendant to speak about his reputation for violence to rebut his self-defense claim.

Unfortunately for the defendant, the Superior Court held that the trial court did not completely err in allowing the Commonwealth to introduce the conviction. The defendant testified at his trial that “[he] never [carries] a weapon.” The problem with this statement is that his prior conviction involved a weapon. Therefore, the Superior Court held that the Commonwealth was allowed to introduce this conviction (which was a guilty plea) to impeach him. The defendant’s other grounds for appeal were also denied. Specifically, there was sufficient evidence to show that he committed third degree murder (as stated above, there was a witness who saw him shooting at the victim) and that the record supported a factual finding that there were costs incurred in trying to save the victim’s life and ultimately the disposition of his remains.

Call the Award-Winning Criminal Law Office of Goldstein Mehta LLC if You Are Charged with a Crime of Violence

The rules of evidence can be complicated. If you are facing serious criminal charges, you need a defense attorney who will use them to your advantage. Our award-winning Philadelphia criminal defense lawyers have successfully fought countless cases at trial and on appeal. We offer a 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.

Zak Goldstein 2/24/18 Zak Goldstein 2/24/18

PA Supreme Court Agrees Police May Not Search Cell Phone Without Warrant

Zak Goldstein - Philadelphia Criminal Defense Attorney

Warrantless Searches of Cell Phones in Pennsylvania

The Pennsylvania Supreme Court has just decided the case of Commonwealth v. Fulton, agreeing with the United States Supreme Court that law enforcement officers generally may not search a cell phone incident to a defendant’s arrest without first obtaining a search warrant. The Court further concluded that the introduction of the evidence obtained from the illegal search of the defendant’s phone in this homicide case did not amount to harmless error. Therefore, the Court reversed the defendant’s conviction and ordered a new trial.

The Facts of Commonwealth v. Fulton

On June 15, 2010, Philadelphia police received a call from Michael Toll reporting that he had been shot. Police responded to the call and found Toll in a vehicle on the sidewalk with gunshot wounds on the right side of his body. Toll told the police that Jeff shot him, and he gave them a description of Jeff. Police took Toll to the hospital and searched the car. They recovered a cell phone, and the cell phone showed that Toll had exchanged phone calls with someone listed in the phone as Jeff. Police determined that the number for Jeff was linked to a prepaid phone with no subscriber information.

Toll eventually died from his wounds. On the morning that he died, police received a call concerning drug activity and a man with a gun at a specific address. Police responded to the call and found several individuals in and around a 2002 green Mercury Marquis. The police saw a gun, a gun holster, and cell phones in the vehicle. They arrested the four men who were nearby. One of those men was Fulton, the defendant in this case. Police took a cell phone from Fulton incident to his arrest and obtained a search warrant for the vehicle but not the phone.

The Search of the Phone

The phones were given to Homicide Detectives who were investigating Toll’s death. The detectives opened the phones, turned them on, and examined them in order to determine the phone number associated with each phone. One of the phones turned out to have the same number as the phone number for Jeff that was in the decedent’s phone. Homicide detectives did not obtain a warrant prior to going through the phones. Further, detectives began answering incoming calls to the phone that had been linked to Jeff.

One person called and eventually told detectives that the phone number belonged to Fulton and that she regularly purchased heroin from him. Armed with this information, detectives interrogated Fulton, and Fulton promptly incriminated himself in the shooting. Police obtained a search warrant for Fulton’s residence and found ammunition which was the same as that used in the fatal shooting. Police also interviewed some of the other men who they had arrested along with Fulton and obtained statements from them which implicated Fulton in the murder. Accordingly, police charged Fulton with murder.

The Motion to Suppress

Prior to trial, Fulton moved to suppress the evidence obtained from the warrantless search and use of the cell phone. The trial court denied the motion, but the trial court made its decision prior to the United States Supreme Court’s decision in Riley v. California holding that police must obtain a warrant prior to searching a cell phone. Fulton went to trial and was eventually convicted of third-degree murder and sentenced to 15-30 years of incarceration. Fulton appealed to the Superior Court, and the Superior Court denied the appeal.

By the time of the Superior Court’s decision, the United States Supreme Court had held that police may not search a phone without a warrant. The Superior Court recognized that police should have obtained a search warrant for the phone, but it held that the intrusion into the phone was minimal because police did not review personal data or social media located on the phone. Therefore, the Superior Court held that Riley did not apply. It also found that to the extent that the police violated Fulton’s rights, the introduction of the illegal evidence amounted to harmless error which would not justify overturning the third-degree murder conviction.

Petition for Allowance of Appeal

Fulton filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court, and the Pennsylvania Supreme Court ultimately overturned the defendant’s conviction. The Court concluded that there was really no dispute. Riley’s holding could not be clearer: in order to access any information on a cell phone, police must first obtain a warrant. The Supreme Court did not create an exception for what police or courts may deem a minimally invasive search of a cell phone. The Court specifically rejected a case-by-case test for searches of phones. Instead, it held that police simply must get a warrant or they cannot use the results of the search of a cell phone in court. Any search of a cell phone requires a warrant.

The Court concluded that homicide detectives conducted three separate searches of the phone without a warrant. First, they searched the phone by powering it on. Second, they searched the phone by going into it and obtaining its phone number. Third, they searched the phone by monitoring incoming calls and text messages.

Having concluded that the police violated Fulton’s rights by searching the phone without a warrant, the Court next found that the constitutional violation did not amount to harmless error. The Court ruled that all of the evidence that was found due to the searches of the phone must be suppressed. This included the existence of the woman who identified Fulton as a drug dealer, her statement, and the evidence that the phone number was the same number as that for Jeff. Given the extensive use of this evidence against the defendant at trial and the fact that much of the evidence was contradicted and inconsistent, the Supreme Court rejected the idea that the conviction could stand under the harmless error doctrine. Accordingly, the Court vacated the conviction and ordered a new trial for Fulton without the illegally seized evidence.

Zak Goldstein 2/23/18 Zak Goldstein 2/23/18

Third Circuit Applies Good Faith Exception to FBI Reliance on Jurisdictionally Defective Search Warrant in Child Porn Malware Case

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esq.

The Third Circuit has just decided the case of United States v. Werdene. In Werdene, the Third Circuit held that Federal Bureau of Investigation agents acted in good faith on a jurisdictionally defective search warrant which authorized them to install malware/tracking software on users outside of the district in which the warrant was issued as part of an investigation into child pornography. The facts of the case are notable because in this case, the Government seized a child pornography server and continued to operate it, thereby distributing child pornography as part of its attempt to identify the users of the server. Nonetheless, because agents believed they had obtained a valid search warrant, the Third Circuit held that the lower court properly declined to suppress the resulting evidence.

United States v. Werdene

The Werdene case began with an FBI investigation into a website called Playpen. Playpen was a forum on the dark web that was used to distribute child porn. Specifically, Playpen was on the Tor network. Users were able to conceal their actual IP addresses while accessing the network, making it difficult for law enforcement to track the users of the website even if law enforcement seized the site itself. Under normal circumstances, when law enforcement seizes a website, officers can obtain logs of the IP addresses which have accessed the site. They can then trace those IP addresses back to specific internet accounts and obtain search warrants for those users’ homes or businesses. The Tor network prevents the server that the user accesses from recording the user’s actual IP address, thereby making it difficult, if not impossible, for law enforcement to obtain a list of IP addresses that accessed the site even after they seize the server itself.

In 2014, the FBI learned that Playpen was actually being hosted on a computer in North Carolina. The FBI quickly arrested the owner of the site and also obtained a warrant to seize the server. The FBI then moved the server to a government facility in the Eastern District of Virginia and obtained a wiretap order to monitor the communications on the server. The FBI continued to operate the Playpen website and distribute child pornography in the hopes of developing a method to circumvent Tor and identify the users of the website.

In order to get around Tor's privacy protections, the FBI created a form of malware that would provide it with a user’s IP address when the user accessed the site. The FBI changed Playpen’s code so that when a user accessed the website, the user would automatically download software which would search the computer for its IP address and other identifying information and transmit that information to the FBI.

Prior to deploying this software, the FBI obtained a search warrant from a magistrate judge in the Eastern District of Virginia permitting it to deploy the malware on the computers that accessed the website. The order authorized the FBI to install the code on computers “wherever located.” Thus, this one warrant issued by a single Magistrate Judge in Virginia authorized the FBI to search computers across the world, most of which were located outside of that judicial district in Virginia.

The data from the malware eventually revealed that the defendant in the case had accessed the site and downloaded child pornography. The FBI obtained a search warrant for his home from a magistrate judge in the Eastern District of Pennsylvania, seized his computers, and found incriminating materials. Accordingly, federal prosecutors charged him with possession of child pornography in violation of 18 U.S.C. Sec. 2252(a)(4)(B).

Motion to Suppress

Werdene moved to suppress the evidence, arguing that FBI agents relied on an improperly issued search warrant because the warrant failed to comply with the jurisdictional requirements of then Rule 41(b) of the Federal Rules of Criminal Procedure. Rule 41(b) has since been amended to avoid the issues raised by this case. At the time, it gave a magistrate judge the power to “issue a warrant to search for and seize a person or property located within the district.” It also contained four exceptions, none of which authorized a magistrate judge to issue a search warrant for property outside of the judge’s district. Accordingly, the Third Circuit found that the search warrant was invalid because the magistrate judge did not have the authority under the rules to issue it. The court further concluded that the warrant was void ab initio, meaning it would be the same as if the Government had no warrant at all.

The Good Faith Exception to the Exclusionary Rule

Nonetheless, the Third Circuit refused to suppress the evidence. Instead, it found that the agents acted in good faith when they relied on the defective search warrant. The purpose of the exclusionary rule, which requires the suppression of some illegally seized evidence, is to deter illegal police conduct. Where suppression of the evidence would have no deterrent effect because police acted in good faith, federal courts will refuse to suppress the evidence.

Notably, Pennsylvania courts have repeatedly rejected this good faith exception and held that the Pennsylvania Constitution, unlike the United States Constitution, requires the suppression of illegally seized evidence even where the police acted in good faith. Here, the court found that the FBI believed they had a valid search warrant. Therefore, there would be no deterrent effect to be gained suppressing the evidence. The error was committed by the judge, not by the FBI. Accordingly, the court found that the good faith exception applied and refused to reverse the trial court’s decision.

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