PA Superior Court Rejects Castle Doctrine Defense Where Victim Did Nothing More Than Bang on Defendant’s Front Door

Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Cannavo, holding that a defendant is not entitled to raise the Castle Doctrine defense solely because he subjectively believed that the victim was trying to enter his house. Instead, prior to instructing a jury on Pennsylvania’s castle doctrine defense, the court must find that there is evidence of record from which the defendant could have objectively, reasonably believed that someone was trying to enter his or her house without permission.      

The Facts of Commonwealth v. Cannavo

In Cannavo, the defendant was staying at a carriage house near West Chester University on Halloween in 2015. That night, the victim and his friends went out into West Chester wearing Halloween costumes. The victim and his friends were intoxicated. At 1:17 a.m., the victim and his friends attempted to enter a party around the carriage house, but were denied entry. After being denied entry to the party, the victim proceeded to bang on the defendant’s door. The defendant had a closed-circuit television system that permitted him to see the area outside his door. It is unclear how many times the victim banged on the defendant’s door, but there was no evidence presented at trial that the victim actually attempted to enter the defendant’s house beyond knocking on the door. The defendant, however, testified that he believed that the victim was attempting to break into his house, but there was nothing to support the defendant’s belief beyond the victim’s knocking on the door.

After the victim knocked on the door, the defendant fired a .40 caliber semiautomatic pistol through the door without opening it. The bullet went through the door and struck the victim in his small intestine and colon. The police later discovered that, because of the defendant’s prior criminal record, he was not allowed to possess the gun. Fortuntaely, the victim survived. The defendant was subsequently arrested and charged with attempted murder, aggravated assault, recklessly endangering another person, simple assault, and persons not to possess a firearm.

At trial, the defendant raised a claim of self-defense. Prior to the court’s instructions to the jury, the defendant requested a charge directing the jury to consider the castle doctrine, which would inform the jury of a presumption of a reasonable belief that deadly force was necessary for the defendant to defend himself based on the victim’s unauthorized entry into the defendant’s home. The trial court denied his request for this jury instruction. The jury then convicted the defendant of the above crimes, and the trial court subsequently convicted him, following a bench trial, of persons not to possess a firearm in violation of 18 Pa.C.S. Sec. 6105.

The trial court sentenced the defendant to an aggregate term of 25-50 years’ incarceration. The defendant filed post-sentence motions for reconsideration which were denied. He then filed a timely appeal to the Pennsylvania Superior Court. On appeal, the defendant raised two issues on appeal. For purposes of this article, only the issue of whether the trial court erred in denying the defendant’s request to instruct the jury on the castle-doctrine presumption.

What is the Castle Doctrine?

The Castle Doctrine is a basic tenet of American law. The ideological foundation for the castle doctrine is the belief that a person’s home is his castle and that one should not be required to retreat from his sanctum. The doctrine is of ancient origins and even the Bible references it. Ironically, even though this doctrine has existed for thousands of years, it was only codified into Pennsylvania law in 2011.

The Castle Doctrine defense, when available, is a legal rule that permits a defendant to lawfully use deadly force against another individual. The burden is on the defense to establish the factual support for the Castle Doctrine defense. To assert the Castle Doctrine defense, a defendant must establish that the victim is in the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered and is present within a dwelling, residence, or occupied vehicle. Further, a defendant must establish that he took his actions because he believed that his actions were necessary to protect against death, serious bodily injury, kidnapping, or rape. However, the unauthorized entry or attempted entry into the residence raises a presumption that the actions were in fact necessary to protect against death or serious bodily injury, thereby making it easier for the defendant to prove that he or she acted in self-defense. It is important to note that just because a defendant raises the Castle Doctrine defense does not mean that they are entitled to an acquittal. Rather, the burden switches to the Commonwealth to prove, beyond a reasonable doubt, that a defendant is not entitled to the Castle Doctrine defense (i.e. the  defendant did not credibly believe that he was in danger of death, serious bodily injury, etc.).   

There are limits to the Castle Doctrine, however. A defendant is not entitled to this defense if: the person against whom the force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner or lessee; the person sought to be removed is a child or grandchild or is otherwise in the lawful custody or under the lawful guardianship of the person against whom the protective force is used; the actor is engaged in a criminal activity or is using the dwelling, residence or occupied vehicle to further a criminal activity; or the person against whom the force is used is a peace officer acting in the performance of his official duties and the actor using force knew or reasonably should have known that the person was a peace officer. Taking all of this into consideration, a trial court must decide, based on the facts presented at trial, whether the evidence is sufficient to warrant the Castle Doctrine jury instruction. Whether the jury receives such a instruction is incredibly important because if the jury does not receve the instruction from the court, the jury will not likely find a defendant not guilty due to this defense.

Cannavo Was Not Entitled to the Castle Doctrine Defense

The Pennsylvania Superior Court affirmed the trial court’s denial to include the Castle Doctrine jury instruction. In Cannavo, the Superior Court ruled that it is not enough for the defendant to subjectively believe that the victim was trying to enter his home. Instead, there must also be factual support for a defendant’s belief that the victim was attempting to enter his or her home.  The Superior Court found that there was simply no evidence that the victim was trying to enter the defendant’s home and that the defendant’s subjective belief was not sufficient to receive the jury instruction. Further, assuming that the victim was actually trying to enter his home, the defendant was not entitled to raise this defense because he illegally possessed a firearm and was not justified in doing so. Accordingly, the trial court properly denied the defense’s motion for the relevant jury instruction. This defendant will not receive a new trial.

Facing Criminal Charges? We Can Help.

Philadelphia Criminal Defense Attorneys

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Possession with the Intent to Deliver, 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. 

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. 

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

Criminal Defense Attorney Zak Goldstein

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. 

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

Zak Goldstein - Criminal Defense Lawyer

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.