Philadelphia Criminal Defense Blog

Zak Goldstein 12/4/18 Zak Goldstein 12/4/18

PA Superior Court: A decade in jail is too much time for selling a pill and a half to another inmate

Philadelphia Criminal Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Sarvey, holding that it is unreasonable to sentence a defendant to over ten years’ incarceration for attempting to distribute one and one-half pills of a controlled substance to another inmate while in prison. The Superior Court is often reluctant to overrule even the harshest of excessive sentences, so this is a great opinion for the defense which shows that there are some limits to a judge’s discretion in sentencing a defendant.

Commonwealth v. Sarvey

On July 26, 2011, the defendant was incarcerated at Jefferson County Correctional Facility when she attempted to give one-half of a tablet of Oxycodone and a tablet of Ambien to another inmate. The prison recorded the attempted sale on video. The defendant hid the pills under a commissary form and slid them under cell door toward another inmate’s cell.

A corrections officer noticed the papers being pushed underneath the defendant’s cell door and attempted to pick them up. The defendant refused to release the papers. After a struggle, the officer was able to take the papers away from her. The officer handed the form back to the defendant, and as the officer walked away she noticed a baggie containing two pills in the place where the paper had been. The officer confiscated the baggie.

The defendant was subsequently charged with two counts of possession with intent to deliver a controlled substance (hereinafter “PWID”), two counts of possession of a controlled substance by an inmate (hereinafter “possession by an inmate”), two counts of controlled substance contraband to confined persons prohibited (hereinafter “controlled substance to prison”) and two counts of criminal attempt. Some of these charges were added prior to trial when the Commonwealth filed a motion to amend the information on the eve of trial. On April 16, 2012, a jury found the defendant guilty of all charges.

At sentencing, the trial court sentenced the defendant to consecutive terms of incarceration on the PWID convictions (one to three years for one PWID count and one and one-half years to three years to three years for the second PWID count). The trial court further imposed consecutive terms of incarceration for each count of possession by an inmate (one and one-half years to three years on each count), and a term of incarceration of two to five years for each count of controlled substance to prison.

Unfortunately for the defendant, she was also on the trial judge’s probation for four other cases. The trial judge then revoked her probation on those cases and sentenced her to a term of confinement of one to two years plus five years of probation. In total, the defendant received a sentence of ten and one-half to twenty-four years of incarceration followed by five years of probation. The defendant then filed an appeal.

The Superior Court Appeal

The defendant filed a direct appeal to the Superior Court. In the direct appeal, the defendant only raised the issue that the trial court erred in granting the Commonwealth’s motion to amend the information to add charges on the eve of trial. However, the Superior Court found that the appeal was without merit. The defendant also petitioned the Pennsylvania Supreme Court to review her appeal, but the Court declined to do so.

With her appeals denied, the defendant then filed a Post-Conviction Relief Act (“PCRA”) petition alleging that her trial and appellate attorneys were ineffective in failing to challenge her sentence as excessive on appeal. At the PCRA hearing, her trial attorney testified that he did not object to her sentence nor did he file a post-sentence motion to reconsider the sentence. The trial court denied the PCRA Petition, and the defendant appealed the denial of the PCRA Petition to the Superior Court. She raised a number of issues in her appeal of the PCRA Petition, but she won relief only on the failure to appeal the excessive sentence.

Can you file a PCRA against an appellate attorney?

Yes. A defendant is entitled to competent representation at all stages of their criminal case and not just the trial. If the court finds that an appellate attorney provided the ineffective assistance of counsel when handling a defendant’s appeal, that defendant could be entitled to another appeal. For a more detailed summary of Pennsylvania’s Post-Conviction Relief Act, please see our other articles where we discuss PCRAs in more detail (https://goldsteinmehta.com/blog/important-changes-to-pas-post-conviction-relief-act-pcra).

Can I appeal my sentence in Pennsylvania?

Yes. In Pennsylvania, if a defendant is found guilty of a crime, they must be sentenced to a minimum and maximum sentence. Obviously, some crimes are more serious than others and carry the possibility for a longer sentence. For example, a felony of the first degree has a maximum of twenty years’ incarceration whereas a misdemeanor of the first degree has a maximum of five years’ incarceration. However, just because someone is found guilty of a crime does not mean that a judge has free rein to give them the longest sentence allowed by statute. Additionally, just because a defendant was found guilty of multiple convictions does not mean that a judge can give maximum consecutive sentences on each of the charges.

When fashioning a sentence, a judge is supposed to take several factors into consideration into consideration. First, the sentencing court must consider the sentencing guidelines for a particular defendant. The sentencing guidelines analyze the severity of the offense (also known as the offense gravity score) and the criminal history of the defendant (also known as the prior record score). Again, for a more detailed analysis of Pennsylvania sentencing guidelines, please refer to our Pennsylvania Sentencing Guidelines blog(https://goldsteinmehta.com/blog/i-got-arrested-what-am-i-looking-at-an-explanation-of-the-pa-sentencing-guidelines).

However, courts should consider additional factors when sentencing a defendant. For example, the sentencing court should consider factors such as the age of the defendant; the facts of the case; whether the crime involved violence; whether the defendant is a threat to the community; the rehabilitative needs of the defendant, etc. It should be noted that appellate courts are unlikely to overturn a defendant’s sentence. Judges are given an incredible amount of discretion when fashioning a sentence. In order to successfully appeal a sentence, the sentencing court must have been unduly harsh, as in Sarvey, in order for a defendant to successfully win an appeal on grounds that the sentencing court abused their discretion.

Sarvey’s sentence was excessive

In Sarvey, the Superior Court found that the defendant’s sentence was clearly unreasonable and that her attorney was ineffective for not objecting to it and filing a post-sentence motion. The Superior Court found that her attorney did not have a reasonable basis for his failure to file a post-sentence motion and appeal the discretionary aspect of her sentence. The Superior Court further opined that although the court had a history with the defendant and that distributing narcotics in prison is particularly dangerous, her sentence was “unquestionably harsh” as she had merely attempted to provide 1.5 pills to another inmate. Thus, a sentence with a minimum of more than ten years for such conduct was simply too harsh and an abuse of the trial court’s discretion. The Superior Court noted that although the charges do not technically merge for sentencing purposes, they are undeniably very similar and intended to punish the same type of conduct. Therefore, defense counsel was ineffective in failing to appeal the original sentence. Accordingly, Sarvey will receive a new sentencing hearing.

Facing Criminal Charges? We Can Help.

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 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 11/27/18 Zak Goldstein 11/27/18

PA Superior Court: Shooting Someone in the Calf Is Not Automatically Attempted Murder

The Pennsylvania Superior Court has decided the case of Commonwealth v. Predmore, finding that the trial court properly granted the defendant’s motion to dismiss the charge of attempted murder where the evidence showed only that the defendant shot the victim in the calf twice and missed with a third shot. Predmore is an excellent case which re-affirms the proposition that the serious charge of Attempted Murder requires the specific intent to kill. The Commonwealth may not prove Attempted Murder simply by showing that the defendant shot someone.

The Facts of Predmore

In Predmore, the complainant drove past his ex-girlfriend’s house and noticed the defendant’s vehicle. He stopped near the rear of the vehicle. The defendant left the house and walked into the parking lot. The defendant and the complainant then began to argue. The complainant’s ex-girlfriend broke up the argument, but the defendant then retrieved a gun from his car. He subsequently shot at the complainant three times, missing with one shot but striking him in the back of the calves twice. The defendant then left in his car, and the complainant went to the hospital. The defendant told the police that he had acted in self-defense. The Commonwealth charged the defendant with Attempted Murder, Aggravated Assault, Simple Assault, and Recklessly Endangering Another Person.

The defendant was held for court at a preliminary hearing. His defense attorney filed a petition for writ of habeas corpus (called a motion to quash in Philadelphia), asking the Common Pleas Judge to dismiss the Attempted Murder charge. After conducting a hearing on the motion, the trial court granted the motion and dismissed the Attempted Murder charge. The Commonwealth appealed to the Pennsylvania Superior Court.

The Superior Court Appeal

The Commonwealth filed an interlocutory appeal to the Superior Court, arguing that the trial court erred in dismissing the Attempted Murder charge and that the dismissal of the charge substantially handicapped the prosecution. An en banc panel of the Superior Court ultimately upheld the trial court’s ruling. The court began by noting that Attempted Murder requires the specific intent to commit a homicide. Thus, criminal attempt to murder is defined by reading Pennsylvania’s attempt statute with the first-degree murder statute. A conviction for Attempted Murder requires the prosecution to prove beyond a reasonable doubt that the defendant had the specific intent to kill and took a substantial step towards that goal. The mens rea element of Attempted Murder is the specific intent to kill, which is the same mens rea as first degree murder. The defendant must also have more than just the requisite mens rea. The defendant must also take a substantial step towards committing the intended killing. There is no such thing as attempted third degree murder under Pennsylvania law.

Here, the Commonwealth argued that the defendant attempted to kill the complainant by shooting at him repeatedly. However, the Superior Court rejected this argument. It agreed that the defendant had taken a substantial step towards the commission of a killing as shooting someone could lead to death, but it rejected the idea that the defendant had acted with the intent to kill. Attempted Murder requires more than just an action that could result in death – it requires an actual attempt to kill. Thus, had the defendant shot at the complainant’s head, or had the defendant said something that indicated that he wanted to kill the complainant, the Commonwealth may have presented sufficient evidence. The Commonwealth’s evidence failed to meet its burden, however, because the Commonwealth showed only that the defendant shot at the complainant’s legs from close range.

Notably, the Court’s opinion rejected the idea that the trial court should have just assumed the existence of the mens rea element from the defendant’s act of merely shooting a gun. In many preliminary hearings, magistrates tend to relieve the Commonwealth of its burden of actually showing that the defendant acted with a certain level of intent. Because the standard for holding a defendant for court at a preliminary hearing is less than the standard for obtaining a conviction at a trial, courts often assume that if something could have happened, the defendant may have intended for it to happen, and therefore actual evidence of mens rea is unnecessary.

The Superior Court explicitly rejected that argument here. The specific intent to kill may be inferred from the use of a deadly weapon on a vital part of a victim’s body. However, the legs were not a vital part of the defendant’s body. Further, there was no evidence that the defendant had shot at a vital part and missed because the defendant was only a few feet away from the complainant. There was also no verbal statement from the defendant that suggested an intent to kill or evidence of motive to kill. Therefore, there was no evidence of the requisite mens rea, and the Court upheld the dismissal of the Attempted Murder charge. A shooting is not automatically an Attempted Murder.

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 in cases involving charges such as Conspiracy, Possession with the Intent to Deliver, Robbery, 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 11/21/18 Zak Goldstein 11/21/18

PA Superior Court: Fire Risk from Growing Marijuana at Home Does Not Support Conviction for Risking Catastrophe or Recklessly Endangering Another Person

The Pennsylvania Superior Court has decided the case of Commonwealth v. McCoy, holding that growing marijuana in one’s home and the corresponding risk of fire do not provide enough evidence to support a conviction for Risking a Catastrophe or Recklessly Endangering Another Person.

Commonwealth v. McCoy

On December 22, 2015, Philadelphia police officers were called to a residence in Philadelphia. At the location, they met the defendant, who was complaining about trespassers. These trespassers were relative’s of the defendant’s recently deceased girlfriend. The defendant claimed that they were on scene and taking his property. While speaking to individuals in the apartment, one of the officers was informed by the mother of the defendant’s late girlfriend that the defendant was growing marijuana in his apartment.

One of the officers then asked the defendant where the marijuana was, and the defendant showed the officer to a closet in the front bedroom. The closet door was closed, but the officer noticed bags of potting soil and fans in the bedroom. The defendant then opened the closet door, revealing the marijuana plants inside. The defendant stated that he just grew the marijuana as a hobby and did not sell it. The officer then placed Appellant under arrest and called for a search warrant to be prepared. The police subsequently recovered 31 marijuana plants and one heat lamp. Notably, the defendant’s home is about fifteen feet away from his neighbor’s home. There was also a first floor apartment in the house, but no one was living there at the time.

Police arrested the defendant and charged him with Risking a Catastrophe, Possession of Marijuana, and Recklessly Endangering Another Person (“REAP”). The defendant filed a pre-trial motion to suppress his statements and the physical evidence. The trial court denied the motions and convicted the defendant following a bench trial.

At this trial, the Commonwealth called a fire marshal who was qualified as an expert in the field of fire prevention. He testified that the defendant had used ordinary household extension cords to plug in the lamps in the closet. He opined that this created a dangerous condition because the lamp could draw a greater voltage than that which the cord could handle. Additionally, the fire marshal stated that in his expert opinion, the defendant’s marijuana growing operation represented a risk of causing a fire and that it was “an extreme fire hazard.” However, the fire marshal admitted that he was not familiar with the particular type of sun lamp used by the defendant, and he did not see evidence of transformers or an irrigation system in the operation.

The defendant also testified at his trial. He testified that he used a fluorescent lamp which did not generate heat in his marijuana growing operation. He also stated that the metal foil used in his closet was to reflect light, not heat, to the marijuana plants. He further stated that he watered the plants with a spray bottle and that he and his late girlfriend would monitor them in the morning and evening.

At the conclusion of the trial, the court found him guilty of Risking a Catastrophe, Possession of Marijuana, and REAP. He received a sentence three years’ reporting probation. He appealed, arguing that the Commonwealth presented insufficient to convict him of either Risking a Catastrophe or REAP.

What is Risking a Catastrophe?

Risking a Catastrophe is a serious felony charge in Pennsylvania. 18 Pa.C.S.A. § 3302(b) provides:

“[a] person is guilty of a felony of the third degree if he recklessly creates a risk of catastrophe in the employment of fire, explosives, or other dangerous means listed in subsection (a) of this section (i.e. radioactive or poison materials).”

The fact that a catastrophe did not occur is not a defense to this statute. A catastrophe is defined as widespread injury or damage. However, courts have previously held that a risk of fire involving a single residence is not sufficient to establish a “catastrophe” for purposes of the statute. However, courts have held that if one has a methamphetamine lab in his or her home it is sufficient to convict a defendant of Risking a Catastrophe.

What is REAP?

18 Pa.C.S.A. § 2705 provides:

“[a] person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.”

To be convicted of REAP, one must have a conscious disregard of a known risk of death or great bodily harm to another person. The apparent ability to inflict harm is not sufficient to convict someone of REAP. Unlike most crimes, this is not a specific intent crime. As such, it is easier for the Commonwealth to prove the mens reas for REAP which is, unsurprisingly, recklessness.

The Superior Court Reverses the Convictions for REAP and Risking a Catastrophe.

After reviewing the record, the Superior Court reversed the convictions for REAP and Risking a Catastrophe. The Superior Court opined that though the defendant’s actions created a fire hazard, the record did not support that it had the potential for widespread injury or damage. Specifically, because he lived alone and the closest neighboring home was not in real danger of being engulfed by a potential fire from his house, he had not taken actions which sufficiently risked a catastrophe to justify a conviction under the statute.

The Superior Court further held that his actions were not “reckless.” Although the fire marshal described the defendant’s actions as “inadequate” to prevent a fire hazard, the Superior Court found that the defendant had taken steps that showed he was not being reckless. Specifically, the defendant watered the plants and monitored them twice a day. Further, the metal foil used in his closet was to reflect light, not heat. As such, according to the Superior Court, the defendant was not “reckless” and therefore was not guilty of REAP. Consequently, his convictions were reversed and he will be re-sentenced on his unchallenged possession of marijuana conviction.

Facing Criminal Charges? We Can Help.

Philadelphia Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

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, Possession with the Intent to Deliver, Robbery, 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 11/14/18 Zak Goldstein 11/14/18

PA Superior Court: Police Reasonably Conducted Warrantless Search of Defendant's Home After Defendant Fired Assault Rifle in Back Yard and Acted Crazy

The Pennsylvania Superior Court has decided the case of Commonwealth v. C.*, holding that police properly conducted a protective, warrantless sweep of the defendant’s home following corroborated reports that he had fired an assault rifle multiple times in the home. The Superior Court found that the police conduct in this case involved the emergency aid exception to the Fourth Amendment protection against warrantless entry into a home.

The Facts of C.

In August 2015, Philadelphia Police responded to a radio call indicating that multiple gun shots had been fired in the back yard of a residence in a high-crime area. The police peered into the back yard while perched upon a wall and saw a white male, the defendant, and numerous shell casings on the ground. They did not see a gun, but they secured the defendant and asked him if anyone was inside the house. He gave them inconsistent answers, so they performed a “protective sweep” of the home to make sure that no one had been injured. They found and seized an assault rifle on the second floor.

The police arrested the defendant, and the District Attorney’s Office charged him with a Violation of the Uniform Firearms Act (VUFA Sec. 6106), possessing instruments of crime, and recklessly endangering another person. The VUFA charge was ultimately dismissed because VUFA 6106 requires either that a gun be concealed or located in a car and that the defendant not have a license. There is an exception to the VUFA 6106 statute which provides that a defendant may conceal a gun in his or her home. Here, the evidence showed that the defendant lived in the house, so VUFA 6106 was not an appropriate charge.

Following the dismissal of the VUFA 6106 charge, the defendant filed a pre-trial motion to suppress the gun, which would help his case with respect to the possessing instruments of crime and recklessly endangering another person charges. The trial court granted the motion to suppress. It concluded that police searched the home solely because they wanted to find the gun; not because they were looking for injured people in the house. The court therefore found that police should have obtained a warrant prior to entering the house.

The Superior Court Appeal

The Commonwealth appealed the suppression of the gun to the Superior Court, and the Superior Court reversed. The Superior Court noted that in general, police may not search a house without a warrant. However, there are a number of exceptions to this general requirement. Although the warrantless entry and search of a home is presumptively unreasonable and illegal, there is an exigent circumstances requirement which may justify such a search. Exigent circumstances exist where the police reasonably believe that someone within a residence is in need of immediate aid. There are a number of factors which courts typically look at when determining whether exigent circumstances exist:

The gravity of the offense,
Whether the suspect is reasonably believed to be armed,
Whether there is above and beyond a clear showing of probable cause,
Whether there is strong reason to believe that the suspect is within the premises being entered,
Whether there is a likelihood that the suspect will escape if not swiftly apprehended
Whether the entry was peaceable, and
The time of the entry (entry at night is disfavored).

These factors apply in the typical case, but in this case, the real inquiry was whether the police reasonably believed someone inside the residence was in need of immediate assistance.

The Emergency Aid Exception and the Superior Court’s Decision

The Superior Court ultimately concluded that police acted reasonably in entering the house. They did not need ironclad proof of a likely, serious, life-threatening injury to invoke the emergency aid exception. Instead, they could err on the side of caution in this case given all of the circumstances. Here, the evidence showed that the defendant fired the gun multiple times in a neighborhood known for gun violence. The initial report suggested that he fired the gun in his back yard, but he also could have fired it in the home. When a witness flagged down the police, she told the police to be careful and described the defendant as acting crazy. Police corroborated the witness statement when they saw spent shells in the defendant’s backyard and by speaking with the defendant, who gave them inconsistent answers about whether anyone was inside. These inconsistent answers in particular suggested that maybe the defendant had a victim in the house who needed help. Therefore, under these circumstances, it was reasonably for police to confirm that he had not injured anyone by searching the house.

Ultimately, this case will likely be the subject of additional appeals as it conflicts with the Pennsylvania Supreme Court’s recent decision in Commonwealth v. Wilmer. For now, however, the case illustrates one of the rare circumstances in which police need not obtain a warrant prior to entering a residence. If police reasonably believe that someone inside may be in need of urgent assistance, then they may enter a house without a search warrant.

FACING CRIMINAL CHARGES? WE CAN HELP.

*The case name has been changed to an initial as the defendant’s case was ultimately dismissed following its remand to the trial court.