Philadelphia Criminal Defense Blog

Zak Goldstein 9/27/18 Zak Goldstein 9/27/18

PA Supreme Court Permits Filing of Second PCRA Where Attorney Filed First Petition Too Late

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Peterson. In Peterson, the Court held that where a Post-Conviction Relief Act (PCRA) Petitioner’s lawyer files the petition late, thereby resulting in the dismissal of the petition for failure to comply with the Act’s procedural requirements, the Petitioner may file a second PCRA Petition even outside of the one-year deadline for filing a PCRA. This is a great decision by the Court. It recognizes that a criminal defendant should not lose the ability to file a PCRA solely because a defense attorney, without telling the defendant, provided the ineffective assistance of counsel in failing to file a PCRA Petition on time.

The Facts of Peterson

In Peterson, the defendant pleaded guilty to two counts of first-degree murder in 1993 and received two consecutive life sentences. In 1995, the General Assembly enacted major amendments to Pennsylvania’s Post-Conviction Relief Act, including an amendment which required that all petitions be filed within one year of the date the judgment of sentence becomes final. The amendments included three exceptions to the one-year deadline. The relevant exception in this case provides: “the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence.”

These amendments gave Peterson the right to file a PCRA by January 16, 1997. Peterson’s family retained a private attorney to file a PCRA. The attorney drafted the PCRA but filed it one day late on January 17, 1997. The petition alleged that Peterson was not competent to plead guilty and therefore his plea was not a knowing, intentional, and voluntary waiver of his constitutional rights because Peterson had suffered a gunshot wound to his head that damaged the frontal lobes of his brain.

The trial court scheduled an evidentiary hearing and gave defense counsel time to obtain an expert to provide an opinion on Peterson’s mental competency at the time of the guilty plea. The court scheduled a hearing on November 5, 1997. The hearing apparently never took place on that date, and the docket does not indicate the reason why did it did not take place. Nothing happened for nearly fifteen years.

In September 2012, Peterson wrote a letter to the clerk of courts asking about the status of his case. The PCRA court then rescheduled the evidentiary hearing. At the hearing, a doctor testified that Peterson suffered brain damage prior to his plea and that he would not have had the ability to comprehend his position as one accused of murder. The doctor further opined that Peterson would not have been able to cooperate with his criminal defense lawyer and participate in his own defense.

Although not relevant to the disposition of the appeal, It is important to note that PCRA litigation often requires the defense to present actual evidence or expert testimony. It is not enough merely to allege in a Petition that a defense attorney should have retained the services of an expert witness. Instead, the defense attorney generally must retain, identify, and usually provide a report for the expert witness prior to filing the PCRA Petition or the defendant will not be entitled to an evidentiary hearing.

The Commonwealth did not hire its own expert. Instead, it called Peterson’s trial attorney and probation officer to testify. They both testified that they interviewed Peterson prior to the plea and he understood what was going on. The PCRA Court found the trial attorney and probation officer more credible and denied the Petition.

The Superior Court Appeal

Peterson appealed the denial of the PCRA Petition to the Superior Court. The Superior Court, acting sua sponte (meaning on its own), recognized that the first PCRA Petition had been filed one day beyond the relevant deadline. Therefore, the Superior Court quashed the appeal without reaching the merits of whether the PCRA Court properly denied the petition.

Peterson then filed a second PCRA Petition, asking the trial court to reinstate his appellate rights nunc pro tunc due to the ineffective assistance of counsel provided by the attorney who filed the first petition late. The trial court granted that second petition. It ruled that Peterson did not know of the deadline, did not know that his attorney had missed the deadline, and that Peterson could not have known these facts until he received the Superior Court’s opinion dismissing the direct appeal. Therefore, the trial court reinstated his appellate rights under the previously-mentioned exception to the one-year deadline.

With his appellate rights reinstated, Peterson again appealed the denial of the petition to the Superior Court. The Commonwealth also appealed, arguing that the trial court should not have reinstated Peterson’s right to appeal. The Superior Court agreed with the Commonwealth and again dismissed the appeal. The Court found that Peterson’s lawyer had not abandoned him but had simply filed a petition late. The Court held that while the PCRA timeliness requirements sometimes require harsh outcomes, the PCRA confers no authority to fashion ad hoc equitable exceptions to the PCRA time-bar.

The Petition for Allowance of Appeal

Peterson filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court. The Pennsylvania Supreme Court agreed to hear the appeal and ultimately reversed the decision of the Superior Court.

The Pennsylvania Supreme Court recognized that the complete abandonment of a petitioner by counsel has previously qualified petitioners for the after-discovered evidence time bar. At the same time, the failure of a PCRA lawyer to raise the best possible claims has traditionally not provided petitioners with a basis for filling subsequent petitions beyond the one-year deadline. Thus, the Court recognized that there is a difference between a complete deprivation of a petitioner’s rights, in which the petitioner cannot have any issues addressed at all, and an allegation that a PCRA lawyer should have raised certain claims instead of others.

The Court found that this case resulted in a complete deprivation of rights due to the obvious ineffective assistance of counsel in filing the petition late. Therefore, the Court found that Peterson qualified for the after-discovered evidence exception. Peterson was completely deprived of any consideration of his PCRA Petition. His lawyer’s ineffectiveness was a newly discovered fact, and Peterson did not know of this fact and could not have known of this fact through the exercise of due diligence. He filed his second PCRA Petition within sixty days after he learned that the petition had been filed late. Therefore, the Superior Court erred in dismissing the appeal, and Peterson will be entitled to have the appeal heard on the merits.

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If you are facing criminal charges, have been arrested, or are considering an appeal, we can help. Our experienced and understanding criminal defense attorneys have successfully defended thousands of clients. We have won cases involving serious charges like Homicide, Robbery, Rape, as well as appeals and PCRA Petitions. Our award-winning Philadelphia criminal defense lawyers offer a free 15-minute criminal defense strategy session. Call 267-225-2545 to speak with a defense attorney today.

Zak Goldstein 9/24/18 Zak Goldstein 9/24/18

PA Supreme Court: Once Emergency Ends, Police Must Leave Private Residence or Get a Warrant

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Wilmer, holding that if the police enter a residence to respond to an emergency, once the emergency ends, the police are no longer permitted to remain in one’s house absent a warrant or the existence of some other exception to the Fourth Amendment’s warrant requirement.

Commonwealth v. Wilmer

On October 27, 2013, while on foot patrol in Shippensburg, Pennsylvania, Pennsylvania State Troopers observed a number of people on the roof of a sorority house. One of these people appeared to be visibly intoxicated and unsteadily stumbling around on the roof. The troopers feared that this individual would fall off of the roof and injure himself, and so they approached the sorority and requested permission to enter. However, their request was denied. One of the troopers then attempted to kick the door open, but the kick failed. The people inside laughed at the trooper’s inability to kick the door open.

The same trooper then kicked through a window that was next to the door and then reached in and unlocked the door. While inside, the troopers called EMS and campus police to the scene. Unfortunately, the troopers’ efforts were for naught, and the individual they were attempting to save fell off of the roof. The troopers then began to leave the house. As the troopers exited the house, one of the troopers saw a bag of marijuana and a marijuana grinder on a coffee table, which he seized and took to his patrol vehicle. No one present at the sorority house claimed ownership of either the marijuana or the grinder.

This same trooper then re-entered the sorority house without a warrant. He claimed that his purpose for re-entering the house was to get information about the broken window and an air conditioning unit that was damaged by the troopers during this incident. The trooper knocked on a closed bedroom door. The trooper then spoke to the occupants of the room, which contained the defendant. The defendant raised her hand when the trooper asked if any of the occupants of the room lived in the house. The trooper then observed a glass marijuana bong and a pipe sitting in plain view next to her. The defendant admitted that the items belonged to her, and she was subsequently charged with one count of possession of drug paraphernalia.

The Motion to Suppress

The defendant filed a motion to suppress the evidence, challenging the legality of the troopers’ initial entry and their subsequent re-entry into the home after the man fell off fo the roof. The trial court denied the motion to suppress. The judge ruled that there were exigent circumstances that justified the entry, i.e. the intoxicated individual standing on the roof, and that the trooper’s re-entry “was justified by the exigent circumstances that gave rise to the original entry.” The defendant was found guilty and ordered to pay court costs and a $50 fine.

The defendant appealed to the Pennsylvania Superior Court. The Superior Court held that the initial entry was lawful given that the troopers were attempting to aid someone in danger. In regards to the one trooper’s re-entry, the Superior Court held that “when police are properly authorized to enter a dwelling under the exigent circumstances doctrine, they are also authorized to return to complete the necessary paperwork required by the emergency situation that allowed them to enter the building in the first place.” The defendant then filed a Petition for Writ of Certiorari to the Pennsylvania Supreme Court, and the Court accepted the case.

What is the Community Caretaking Exception to the Fourth Amendment?

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ”

— The Fourth Amendment to the United States Constitution

Under the Fourth Amendment, searches and seizures without a warrant are presumptively unreasonable subject only to specified exceptions. Over the years, the Supreme Court has created a number of specific exceptions that allow the police to search and seize one’s property without a warrant. One of these exceptions is the community caretaking exception. There are three exceptions that embody the “community caretaking exception.” These include: the public servant exception, the automotive impound/inventory exception, and the emergency aid exception. The emergency aid exception was the exception at issue in this case.

The emergency aid exception allows the police to enter one’s property or conduct some warrantless search to assist a person that the officer reasonably believes is in jeopardy. It is important to remember that just because an officer’s initial intrusion may be justified under the emergency aid exception, or for that matter any exception, it does not follow that the police are given unlimited and unfettered access to the property.

In Mincey v. Arizona, the United States Supreme Court held that numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. However, the Court noted, that the “warrantless search must be strictly circumscribed by the exigencies which justify its initiation.” Other legal scholars have addressed this issue. Professor Wayne LaFave addressed this issue in his treatise on search and seizure law. He wrote that a police officer may do no more than is reasonably necessary to ascertain whether someone is in need of assistance to provide that assistance. Further, he wrote, that once it is determined that the suspicion which led to the entry is without substance, the officers must depart rather than explore the premises further.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court held that the troopers’ re-entry was not justified under the emergency aid exception. The Court opined that the troopers’ initial entry into the residence was permissible to assist the visibly intoxicated young man stumbling around on the roof. However, once he fell, the troopers’ authority for a warrantless entry in the house ceased, and thus the troopers were required to leave the premises immediately. Further, the Court expressly rejected the Superior Court’s reasoning that the troopers’ re-entry into the home to obtain information to complete police paperwork was part of “one continuous episode” which permitted the re-entry without a warrant. Consequently, because the trooper did not observe the glass marijuana bong and the pipe in the house from a lawful vantage point, the suppression court erred in denying the defendant’s motion. The Court vacated the defendant’s sentence, and she will receive a new trial.

Facing Criminal Charges? We Can Help.

Criminal Defense Attorneys Demetra Mehta and Zak Goldstein

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 in cases involving charges such as Conspiracy, Aggravated Assault, and Attempted Murder. 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 9/19/18 Zak Goldstein 9/19/18

U.S. Third Circuit Court of Appeals Reverses Murder Conviction for Failure to Present Cogent Defense

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The United States Third Circuit Court of Appeals has decided the case of Workman v. Superintendent Albion SCI, et. al., holding that trial counsel’s failure to present a cogent defense based on the actual evidence presented at trial constituted the ineffective assistance of counsel. The Court found that because defense counsel’s entire defense was based on facts which were not at all based on the evidence presented by the Commonwealth, defense counsel was ineffective in defending Workman.

The Facts of Workman

In August 2006, Workman’s co-defendant shot the victim during an accident which occurred in Philadelphia, Pennsylvania. Hearing the shots, the defendant found the victim and co-defendant and then proceeded to shoot at the co-defendant a total of eight times. One of these bullets ricocheted off a solid object and struck the victim in the chest. The victim also had been shot by the co-defendant. Unfortunately, the victim died as a result of his injuries. According to the assistant medical examiner who testified a trial, either of the two bullets that struck the victim could have caused his death.

Workman and the co-defendant were charged with first-degree murder. Prior to the trial, the Commonwealth offered Workman a plea bargain of twenty years of incarceration in exchange for a guilty plea. Workman rejected this offer because, according to trial counsel, he could not be convicted for killing someone who was already dead. This theory was problematic because the facts did not support trial counsel’s theory because it was unclear as to whether or not the victim was still alive when Workman’s bullet struck him.

What is Transferred Intent?

Despite the undisputed fact that Workman did not intend to kill the victim, the Commonwealth proceeded on the theory of transferred intent and argued that Workman, in firing at the co-defendant, had intended to illegally kill the co-defendant. Therefore, his intent to kill co-defendant transferred when his bullet struck the victim. At trial, the medical examiner would testify that the wound to the victim’s chest, caused by the ricocheted bullet fired by Workman, was “much more immediately fatal,” but that the other bullet fired by the co-defendant could have caused death. Despite the evidence to the contrary, Workman’s defense attorney proceeded under the theory that the victim was already dead when Workman’s bullet struck him. Further, Workman did not present any evidence at his trial. Additionally, his trial counsel’s opening statement was five sentences long. The defense lawyer simply stated that the defense did not plan to present any evidence.

After the conclusion of the Commonwealth’s case, Workman’s trial attorney made a motion for judgment of acquittal, arguing that Workman could not be convicted of killing the victim because the victim was already dead. Workman’s trial attorney did this despite the fact that the evidence of record did not support this claim. The medical examiner had specifically testified that Workman’s bullet could have been the cause of death, and no one testified to the contrary or otherwise rebutted that testimony. The trial court denied trial counsel’s motion. Undeterred, trial counsel made the same argument during closing argument to the jury. Unfortunately for Workman, the jury was not persuaded, and it convicted Defendant of first-degree murder. The jury acquitted the co-defendant. Workman received a mandatory sentence of life imprisonment without parole. He filed direct appeals that were ultimately denied, and after his appeals were resolved, he filed a Post-Conviction Relief Act Petition alleging ineffective assistance of counsel.

Workman’s first PCRA petition was denied. Notably, in this petition, his PCRA lawyer did not allege that his trial counsel failed to present a realistic defense or that he provided incorrect advice that led Defendant to reject a plea offer. Instead, his PCRA attorney alleged that trial counsel’s only failure was in not requesting a jury instruction that indicated that the transferred intent doctrine also applied to Workman’s claim of defense of use of force to protect a third person. This was a bad claim for a PCRA because the jury instruction had actually been provided to the jury.

Habeas Petition

Workman then filed a pro se habeas petition to the Eastern District of Pennsylvania. In his petition, he alleged that because of trial counsel’s ineffective assistance, he rejected a guilty plea and did not testify. Defendant’s habeas petition was subsequently denied by the federal district court, and he then appealed to the Third Circuit. Although not addressed in this article, a considerable portion of the Third Circuit’s opinion focused on the procedural issues and whether or not Workman’s petition could be heard at all because of his failure to raise the issues in his PCRA petition. The Third Circuit held that the PCRA lawyer was ineffective in failing to raise these issues in his PCRA petition. Therefore, Workman should not be penalized for the lawyer’s ineffectiveness and could proceed on the merits.

What is Ineffective Assistance of Counsel?

In Gideon v. Wainwright, the United States Supreme Court held that if you are charged with a crime, you are entitled to an attorney. In Strickland v. Washington, the United States Supreme Court held that a defendant is entitled to a constitutionally adept attorney. In other words, if a defendant’s attorney is so bad, it is possible that the defendant’s Sixth Amendment right to counsel could be violated. In Pennsylvania, if you wish to proceed with an ineffective assistance of counsel claim, you must file a PCRA petition (as the defendant in this case did). Over the years, both Pennsylvania and Federal courts have made it relatively difficult to prevail on these claims. The courts give great deference to the trial attorney’s strategy. Nonetheless, if a petitioner can show that his claim has arguable merit, no reasonable basis existed for counsel’s action or failure to act, and the petitioner suffered prejudice as a result of counsel’s error, then he or she may be successful in getting a new trial.

Third Circuit Holds that Both the PCRA and Trial Attorneys Were Ineffective

In Workman, the Third Circuit was merciless in its criticism of Workman’s trial and PCRA attorneys. In regards to his PCRA attorney, the Court stated “it appears that [PCRA] counsel’s claim was that trial counsel was ineffective for failing to request a jury instruction that was actually given. This is the epitome of a doomed claim.” Because he did not raise any of the obvious and legitimate claims that should have been raised, the Third Circuit found that he was ineffective. Consequently, because defendant’s PCRA counsel was ineffective, he was still eligible for relief despite the procedural failures of his PCRA and habeas petitions.

The Court then addressed his trial attorney’s failures. The Court stated that “counsel’s utter and complete failure to test the Commonwealth’s case with appropriate cross-examination of [the medical examiner], his failure to present witnesses…in support of his position, or to adapt his argument to the testimony in evidence” rendered him ineffective. Further, the Court also held that his counsel “acted as not an advocate of is client but of his theory” and that he “fail[ed] to understand what was happening in the case in which he was ostensibly participating.” As such, because Workman’s trial counsel failed to adapt to the evidence that was presented at trial, he was ineffective. Workman will receive a new trial.

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Zak Goldstein 9/12/18 Zak Goldstein 9/12/18

Third Circuit Court of Appeals: Unnecessary 23-minute Extension of Traffic Stop Requires Suppression of Gun and Marijuana

The United States Court of Appeals for the Third Circuit has decided the case of United States v. Clark, holding that police violated Clark’s rights by questioning him and the driver of the car he was in for 23 minutes about subjects unrelated to the initial purpose of a traffic stop. The Third Circuit held that the trial court properly granted Clark’s motion to suppress a gun and marijuana found in the car because police impermissibly extended the stop for longer than was necessary to investigate the motor vehicle code violations that led to the stop.

The Facts of Clark

Clark is an excellent example of how police body camera footage dramatically changes the analysis of routine police searches and seizures. In Clark, police in New Jersey stopped a minivan because the driver was using his cell phone while driving, did not have his headlights on, and had an obstructed view. The police asked to see the paperwork for the vehicle. The driver handed over his license and insurance card, but he could not find the van’s registration. He said the van belonged to his mother, and he offered to call his mother and ask her if she knew where to find the registration. The officer told the driver that the stop was for the three traffic violations and asked whether his license was suspended. The driver said it was not. The officer then asked if the van belonged to the driver’s mother, and the driver confirmed that it did.

After speaking with the driver, the officer returned to his police car to run the paperwork. He confirmed that the driver’s license was valid, that the driver had a criminal record for drug charges, there were no outstanding arrest warrants for the driver, and the car was registered to a woman with the same last name and address as the driver. The officer then went back to the van and asked the driver about his criminal record. He asked whether the driver had been arrested, for what he had been arrested, and when was the last time he had been arrested. The driver confirmed he had been arrested for drug charges, most recently in 2006. The officer continued questioning the driver as to such things as where he was coming from, whether he and any warrants, and again how many times he had been arrested.

After questioning the driver for a few minutes, mostly about his criminal record, the officer asked the driver to step out of the vehicle. The driver did so, and the officer then began asking him about Clark, the passenger. After asking a few questions about Clark, the officer walked over to the passenger’s side of the van and asked similar questions of Clark. The officer then returned to the driver and accused him of lying. He then said he smelled marijuana coming from the passenger’s side and asked Clark to get out of the car. Clark complied. The officers told him to turn around for a pat-down, and Clark then told the officers that he had a gun. The officers searched Clark and recovered a gun and a small amount of marijuana.

Body camera footage showed that police had questioned the two men for about 23 minutes. Had the footage not been recorded, officers likely would have been able to describe the questioning as a “brief encounter,” and Clark would have had much more difficulty establishing what happened that led to the search.

The Motion to Suppress

After police arrested Clark, the United States Attorney’s Office adopted the case. A federal grand jury indicted Clark for possession of a weapon as a convicted felon in violation of 18 U.S.C. Sec. 922(g)(1). He filed a motion to suppress the gun and the marijuana, arguing that police had impermissibly prolonged the stop beyond its original purpose without the necessary reasonable suspicion or probable cause. The District Court granted the motion to suppress, finding that police had no real basis for extensively questioning the driver about his criminal history and that the officer had no reasonable suspicion to investigate other criminal matters beyond the traffic violations.

The Federal Appeal

After the District Court granted the motion to suppress, the United States appealed to the Third Circuit. The Third Circuit affirmed the trial court’s decision on appeal. The Court noted that even when a stop may be lawful at its inception, as the parties agreed in this case, a stop may become illegal as it progresses. In Rodriguez v. United States, the United States Supreme Court recently held that an initially-valid traffic stop may become unlawful when it lasts longer than is necessary for police to complete the mission of the stop. The authority for the seizure ends when tasks tied to the mission are or reasonably should have been completed. In order to prolong a stop beyond that point, a police officer must have acquired additional reasonable suspicion or probable cause during the investigation to justify additional investigation and a lengthening of the stop.

When police pull a suspect over for a traffic stop, the mission of the stop is to address the traffic violation that warranted the stop and address related safety concerns. This could include deciding whether to issue a ticket, checking the driver’s license and for any outstanding warrants against the driver, and inspecting the vehicle’s registration and insurance. These tasks are all part of ensuring roadway safety. Police may also take steps that are reasonably related to officer safety. However, not all investigation during a traffic stop qualifies as part of the traffic stop’s mission. For example, extensive questioning of the occupants of a vehicle, as occurred here, requires independent reasonable suspicion beyond the observation of a motor vehicle code violation.

Here, the extensive questioning of the driver regarding his criminal record and where he was coming from had nothing to do with the purpose of the stop. The questions were entirely unrelated to whether he had a driver’s license, insurance, and registration, and they had nothing to do with whether he was lawfully in possession of the car. The driver was cooperative with the officers, he provided proof of insurance and a valid driver’s license, he did not have any outstanding arrest warrants, and the police were able to confirm that the car belonged to the driver’s mother. Accordingly, the police had no basis for believing that the driver should not have been driving the car. Once police confirmed that all of the paperwork for the car was valid, they were required to either issue a ticket or let the car go. They had no authority to then turn to Clark, the passenger, and question him. By doing so, they unconstitutionally extended the length of the stop. Therefore, the District Court properly granted the motion to suppress the gun and the marijuana. This is a great case for individual privacy rights as the Third Circuit has now held that even a relatively short 23-minute stop can violate a defendant’s rights to be free from unreasonable search and seizures.

Facing criminal charges? We can help.

If you are facing criminal charges or are 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 in cases involving charges such as Conspiracy, Aggravated Assault, and Attempted Murder. 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.