Philadelphia Criminal Defense Blog

Zak Goldstein 10/11/19 Zak Goldstein 10/11/19

PA Superior Court Finds Trial Court Properly Dismissed Circumstantial First Degree Murder Case

The Superior Court has decided the case of Commonwealth v. Perez, holding that the evidence that was presented at the preliminary hearing was not sufficient to force the defendant to face trial for the charges of first degree murder and possession of an instrument of a crime. The evidence that was presented against the defendant was entirely circumstantial, and the Court ultimately ruled that it was simply not enough to show even at a preliminary hearing that the defendant probably killed the complainant. This case is important because it shows that the preliminary hearing judge or magistrate should not simply approve charges merely because the Commonwealth has filed them. instead, the judge should review the evidence and determine whether there is really enough for the case to proceed to the trial level.

Commonwealth v. Perez

Two men went to a bar in Philadelphia. When they arrived, the defendant was also there. While one of the men was talking to a friend, the eventual-victim was dancing with a woman about five to eight feet away from the defendant. At approximately 1:50 AM, a bouncer spotted the victim and the defendant pushing one another. The two men were shoving one another in the center of two groups, comprised of between five and fifteen people each, when the bouncer stepped in and separated them. The victim told the bouncer that he and the defendant knew each other and that everything was “cool.”

A few minutes later, the decedent and the defendant were shoving one another again. The bouncer saw the defendant make a movement towards the victim’s neck, but he did not see the defendant actually stab the victim, nor did he observe a weapon of any kind in the defendant’s hands. However, when the bouncer and a colleague stepped in to break up the second shoving match, he noticed that the victim was holding his neck and that blood began “gushing out.” The victim’s friend only noticed something was wrong when the two bouncers moved to separate the victim and the defendant.

The friend then tried to speak with the victim outside of the bar, but the victim was unable to speak due to the severity of the wound. The friend applied pressure on the wound to stop the bleeding. Shortly after doing this, the friend saw the defendant exit the bar. According to the friend, the defendant had blood on his shirt. As such, the friend approached the defendant and punched him in the face because he believed that he was the cause of the victim’s injuries. The defendant then went back into the bar.

Later in the night, the bouncer saw the defendant walking around the bar in a tank top. The bouncer then approached the defendant and asked him why he was not wearing a shirt. The defendant stated that he took off the shirt and threw it in the trashcan after it got covered in blood. The defendant was then detained by the bar’s security not because of the incident, but because he owed $600 on his tab.

At approximately 2:00 AM, a pedestrian alerted a Philadelphia Police Officer of the stabbing. Upon entering the bar, the staff directed the officer to the defendant. The defendant was sitting alone at a table. The defendant was asked if he was involved in a fight. He denied being involved. He was also asked why he was not wearing a shirt. The defendant then showed the officer his bloody shirt. The officer then asked the defendant how he got blood on his shirt and he responded that he got hit. The defendant was subsequently arrested. The police were unable to find the weapon that was used to cut the victim’s throat.

The victim died at the hospital later that day. The medical examiner’s officer determined that his death was caused from a stab wound he sustained to his neck, which severed his jugular vein and trachea. The defendant was then charged with first-degree murder and possession of an instrument of a crime. On March 22, 2017, a preliminary hearing was held. At the hearing, the above facts were introduced into evidence. Additionally, the Commonwealth moved several exhibits into evidence including a DNA laboratory report indicating that the blood found on the defendant’s shirt belonged to the victim. At the conclusion of the hearing, the municipal court judge dismissed the charges for lack of evidence. The Commonwealth refiled charges later that day. The defendant’s case was then brought before the Court of Common Pleas where a different judge again dismissed the case for lack of evidence. The Commonwealth then filed a timely appeal.

What Happens at a Preliminary Hearing?

In Philadelphia, a defendant is only entitled to a preliminary hearing if he or she is charged with a felony. The purpose of the preliminary hearing is to determine whether the Commonwealth has made out a prima facie case for the offenses charged. A prima facie case consists of evidence, read in the light most favorable to the Commonwealth, that sufficiently establishes both the commission of a crime and that the accused is probably the perpetrator of that crime. Further, at these hearings, the evidence must be considered in the light most favorable to the Commonwealth. At these hearings, the Commonwealth need not prove the elements of the charged crimes beyond a reasonable doubt. Instead, the prima facie evidence standard requires evidence of the existence of each and every element of the crime charged. Finally, and understandably very frustratingly, credibility of the evidence are not factors at this stage. With all of that being said, practically speaking, it is a much easier for the Commonwealth to get a case through the preliminary hearing level than it is for the Commonwealth to obtain a conviction.

The Superior Court’s Decision

The Commonwealth appealed the dismissal of the charges, and the Superior Court upheld the dismissal of the charges against the defendant. Although the Superior Court acknowledged that the Commonwealth has a very low burden to meet at these hearings, the evidence that was presented was simply not sufficient. The Superior Court highlighted that the defendant cooperated with the police, did not leave the scene, and denied his involvement in a fight on the night in question. Further, the Superior Court rejected the Commonwealth’s argument that only the defendant could have committed this crime. In its decision, the Superior Court emphasized that the bouncer did not actually witness the decedent get stabbed nor did he see the defendant with a weapon. As such, the evidence that was presented was not sufficient to establish that the defendant probably committed the crimes of first degree murder and possession of an instrument of a crime. Therefore, the defendant will not have to go to trial on these charges.

Facing Criminal Charges? We Can Help.

Philadelphia Criminal Defense Lawyers 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, Rape, and 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 10/7/19 Zak Goldstein 10/7/19

PA Superior Court: Odor of Marijuana Still Contributes to Probable Cause

The Pennsylvania Superior Court decided the case of Commonwealth v. Batista, holding that the smell of fresh marijuana, along with other indications that the property was being used as a grow house, provided police with probable cause to obtain a search warrant for the premises. Although there has been a liberalization of marijuana laws in Pennsylvania and Philadelphia, it is still illegal to grow and possess marijuana under many circumstances. Therefore, appellate courts have continued to hold that the odor of marijuana may give police probable cause to conduct a search.

Commonwealth v. Batista

Officer Beattie of the Philadelphia Police learned from an unidentified source that a major marijuana growing operation was occurring at the defendant’s residence. Officer Beattie also learned from the unidentified source “that you can smell the odor of fresh marijuana coming out of the exhaust system that’s located in the front window of the first floor.” Officer Beattie and two other investigators went to see and smell the residence. The officers observed “a surveillance camera directed at the front door…a gated-in lot, with a shed located inside of the lot, and a surveillance camera” which faced the front of the property. Multiple officers then walked by the front of the residence and smelled a strong odor of fresh marijuana coming from the exhaust system that was running in the first-floor window.

Officer Beattie then performed a real estate check that revealed that the defendant was the owner of the property. Officer Beattie next applied for a search warrant of the residence based on the above information. Additionally, Office Beattie included that he has been a Philadelphia police officer for approximately 23 years and assigned to the Narcotics Bureau for 20 of those years. The magistrate then concluded that there was sufficient probable cause to suspect the defendant of illegally growing marijuana in his garage and issued a search warrant.

The next day, the police executed a search warrant and uncovered 91 marijuana plants in the defendant’s garage. The defendant was then placed under arrested and he was charged with various drug-related offenses. The defendant then filed a motion to suppress which was denied. The defendant then proceeded to a bench trial where he was found guilty of possession of marijuana with the intent to deliver and possession of drug paraphernalia. The defendant was then sentenced to an aggregate sentence of 11 ½ to 23 months incarceration. He appealed.

The Defendant’s Appeal

In his appeal, the defendant argued that the magistrate’s finding of probable cause was erroneous. Specifically, he argued that marijuana is legal in Pennsylvania and decriminalized in Philadelphia. Further, he stated that “medical marijuana became legal in Pennsylvania more than one year before the search of his home when the legislature enacted the Medical Marijuana Act.” Also, he stated that because Philadelphia made possession of marijuana a civil offense the smell of marijuana is not indicative of criminal activity. Therefore, because of these new developments in the law regarding marijuana, the defendant argued that the policed lacked probable cause to search his residence.

Can the Police Stop Me if They Smell Marijuana?

Probably. In general, marijuana is still illegal under state and federal law. The fact that Philadelphia has stopped enforcing most marijuana prohibition does not mean that police do not have reasonable suspicion or probable cause based on the odor of marijuana. Further, there are very few medical marijuana dispensaries in the state of Pennsylvania, and the fact that some people now have medical marijuana does not necessarily mean that the odor of marijuana does not provide reasonable suspicion or probable cause for police to make a stop or search. However, as marijuana laws continue to be liberalized, it is possible that courts will eventually find that the odor of marijuana does not provide reasonable suspicion or probable cause for police to search someone because the police should not just assume that the person does not have a prescription to smoke marijuana.

The Superior Court’s Decision

The Superior Court denied the defendant’s appeal. The Superior Court found that though the defendant’s argument was “novel,” he still would not prevail. The reason was, as discussed above, is that the police are still allowed to stop someone when they smell marijuana. Additionally, there was no evidence that his residence qualified as a dispensary. As the Superior Court noted, a very small number of growers have been qualified as a “grower/processor” under the Medical Marijuana Act. As of now, there can only be, at most, 25 of these growers/processors. Further, the Superior Court deferred to Officer Beattie’s experience as a narcotics officer. It is important to note that the Superior Court did not rely entirely on the odor of marijuana alone in justifying the search. The officer also noted other factors such as the camera, the exhaust system, and things of that nature in concluding that the defendant was operating a grow house. Had the officer merely smelled marijuana, the outcome may have been different. Therefore, the Superior Court held that there was sufficient probable cause to issue the search warrant. As such, the defendant will not get a new trial and he will have to serve his sentence.

Facing Criminal Charges? We can help.

Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

Zak Goldstein 10/1/19 Zak Goldstein 10/1/19

PA Supreme Court: Search Warrant Allows Police to Search Entire Apartment Even if Suspect Has Roommates

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Turpin, holding that having a roommate does not convert a single resident unit into a multi-resident unit for purposes of the Fourth Amendment. This decision is significant because so many people live with a roommate. Nonetheless, if the police have probable cause that one person is engaged in illicit activity in the residence, Turpin allows the police to search the entire residence even if the police know that the suspect has roommates who have their own rooms.

Commonwealth v. Turpin

On December 4, 2014, Detective Mellot of the Cumberland County Drug Task Force began investigating Mr. Irvin, the defendant’s roommate based on information received from a confidential informant regarding the sale of heroin. Detective Mellot contacted Mr. Irvin’s parole officer who informed him that he was living in Mechanicsburg, Pa. Based on this information, Detective Mellot conducted surveillance of the residence and observed an unusually high number of individuals making short visits there.

In mid-February 2016, Detective Mellot interviewed a second confidential informant who stated he purchased heroin from Mr. Irvin on a regular basis and had bought heroin from the defendant’s and Mr. Irvin’s residence. As this information had been corroborated by his surveillance, Detective Mellott arranged for the confidential informant to conduct a controlled buy from Mr. Irvin. While the confidential informant was arranging to meet Mr. Irvin at a nearby business, Detective Mellott surveilled the residence and observed multiple individuals enter and then quickly exit, which Detective Mellott believed was indicative of drug dealing. Detective Mellott then observed two people exit the residence and enter a black Cadillac that Mr. Irvin was known to drive. Detective Temple, who was surveilling the location of the controlled buy, observed the same black Cadillac at the buy location. A male and female then exited the Cadillac and then the male conducted a hand-to-hand transaction with an unknown individual. Afterwards, the male instructed the confidential informant to enter the business.

At this time, Detective Colare entered the business with the confidential informant and positively identified Mr. Irvin as the male with whom the confidential informant interacted. The detectives observed Mr. Irvin drive back to the residence and enter the property. The confidential informant then provided Detective Mellott with ten bags of heroin, stamped “Blue Magic,” that were purchased from Mr. Irvin. Based on the above information, Detective Mellot obtained a search warrant for Mr. Irvin and the defendant’s residence.

Police executed the search warrant in February 2015. The defendant was placed in a vehicle by Sergeant Curtis of the Mechanicsburg Police Department and the two discussed the living arrangements of the residence. The defendant told Sergeant Curtis that he and Mr. Irvin both lived there and each occupied one of the two bedrooms. Thereafter, Sergeant Curtis brought the defendant back into the house so he could get his shoes from his bedroom. There was no evidence that the defendant’s bedroom ever had a padlock on the door, and there was not a separate room number or mailbox on the outside of the bedroom door which would make it seem like an individual apartment.

The officers then searched the entire house, including the defendant’s bedroom. Recovered from his room were a firearm, ammunition, six bags of heroin including one bag stamped “Blue Magic,” a bag of marijuana, and $902 in cash. The police also recovered 37 bags of heroin, some stamped “Blue Magic,” and a case of $1,000 from Mr. Irvin’s room as well as 200 bags of heroin from the living room. The police then returned to the house on March 10, 2015 and recovered 80 bags of heroin from the second-floor bathroom, which was adjacent to the defendant’s bedroom. Based on the above, the defendant was arrested and charged with possession of a controlled substance, and one count each of conspiracy to commit possession with the intent to deliver and receiving stolen property.

The Defendant’s Motion to Suppress

The defendant filed a motion to suppress claiming that the search warrant was overbroad because it did not limit the specific areas to be searched to those under the control of Mr. Irvin and the warrant was improperly executed because the police were made aware of its overbroad nature from the defendant’s conversations with Sergeant Curtis. At the suppression hearing, the above facts were put on the record. The defendant also testified at the hearing. He testified that he and Mr. Irvin occupied separated bedrooms at the residence, he would shut his bedroom door when he was not home; Mr. Irvin and he occupied separate bedrooms at the residence; he would shut his bedroom door when he was not home; and that Mr. Irvin was not permitted to enter his bedroom without permission.

The trial court denied the defendant’s motion to suppress. The trial court held that the warrant was not overbroad and that a search warrant to a residence “need not specify each and every room of a residence to be searched.” Further, the trial court held that the search warrant was not improperly executed. After the denial, the defendant proceeded to a jury trial where he was convicted of all charges. The court then subsequently sentenced him to an aggregate term of one year less one day to two years less two days of county imprisonment to be followed by three years of probation. The defendant then filed a timely appeal to the Pennsylvania Superior Court. The Superior Court denied the defendant’s appeal. The defendant then filed a petition for allowance of appeal to the Pennsylvania Supreme Court which was granted.

Does a Search Warrant Have to Be Specific?

Yes. The Fourth Amendment prohibits the issuance of any search warrant except one that is specific and particular to the place to be searched and the persons or things to be seized. As such, the police are limited to searching in those areas where the suspected contraband could be found. Usually, the police are searching for guns and drugs and therefore the police have a broad scope of places that these items could be found. However, let’s say hypothetically that the police have a search warrant for a missing tuba. Obviously, tubas are very large and heavy and probably would not fit in a shoebox. So, in this hypothetical, if the police were searching only for a tuba and they looked into a shoebox and found contraband, then the defendant could have a valid argument at suppressing this contraband because the police went beyond the scope of the search warrant.

I Live in an Apartment Building. If the Police Get a Search Warrant for My Neighbor’s Apartment, Can They Search Mine Too?

No. In prior decisions, the Pennsylvania appellate courts have been very clear that a search warrant has to be particularized to the residence that is being searched. To give an example of this, let’s assume that a defendant lives at 123 Broad Street and that it is a multi-tenant building. If the police were to get a search warrant for only 123 Broad Street and they search every apartment in 123 Broad Street and the police find contraband in the defendant’s apartment, then he will have a very good argument for suppressing that contraband because the search warrant was not specific enough for the defendant’s house. However, this was not the issue in the instant case. In the instant case, the residence in question was a single living unit, not a multi-tenant unit as stated in the above hypothetical.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court denied the defendant’s appeal. In its opinion, the Pennsylvania Supreme Court adopted the federal rule which allows the police to search the entire residence even if the target of the search warrant has roommates. The Court went on to say that a roommate can obtain relief if it is shown that his particular room was a separate and independent unit. It is not enough that the roommates are prohibited from entering the other’s room without permission. As such, the defendant will not be entitled to relief and therefore he will not get a new trial.

Facing criminal charges? We can help.

Zak Goldstein 9/28/19 Zak Goldstein 9/28/19

PA Superior Court: Trial Court Abused Discretion in Dismissing Case Due to Witnesses Being Late

The Superior Court has decided the case of Commonwealth v. Ligon, holding that the trial court abused its discretion when it dismissed a criminal case due to the late arrival of witnesses despite the fact that the prosecutor indicated that he was ready to begin the trial and that they were on their way.

Commonwealth v. Ligon

Philadelphia police arrested the defendant in March 2012 and charged him with multiple crimes, including charges of robbery, burglary, aggravated assault, and various violations of the Uniform Firearms Act. The charges stemmed from an alleged incident that took place in September 2011 involving a Mr. Brady and his grandmother Ms. Martin.

The defendant’s case would be subsequently continued five times before his preliminary hearing was held and the municipal court judge found that there was enough evidence to go to trial on the charges. After his preliminary hearing, his case was then assigned to a Court of Common Pleas judge. When it reached the trial room, his case again was continued a “copious” amount of times. Eventually, his case again was continued and then reassigned to a different trial judge. This trial judge then granted two more continuances, one due to a court conflict and one because the assigned prosecutor had another trial.

The trial finally began on December 5, 2016 and on that day, the parties picked a jury. The following morning, before the jury came into the courtroom, the assigned prosecutor told the trial court that the complaining witnesses had not arrived. The prosecutor stated that although she had arranged a ride for the complaining witnesses, they did not answer the door. The prosecutor further stated that she had been in constant contact with them, having spoken with both the day before trial and having met with one of them on the Friday preceding trial. Based on these conversations, the prosecutor asked for “a little bit more time” for the witnesses to arrive. The trial court said that it could “probably give [the Commonwealth] till 11 [AM].”

When the court reconvened at 11:00 AM, a different prosecutor addressed the court and explained that the probation officer of Mr. Brady was attempting to contact him and that the Commonwealth had arranged for additional transportation to get him because Mr. Brady was in a wheelchair. The trial court then stated that it would recess the proceedings until 11:45 AM. At 12:00 PM, the assigned prosecutor stated that the witnesses were “on their way” and that she was ready to proceed with trial and asked if she could begin with her opening statement. The trial court replied that the witnesses were supposed to be there at 9:30 AM. The prosecutor then repeated that the witnesses were on their way. She then stated that she could do the opening statement and then put on another witness by the end of which she was “absolutely certain” the complaining witnesses would arrive. The trial court declined to allow the prosecutor to proceed with her case and discharged the case against the defendant. The Commonwealth then filed a timely appeal, arguing that the trial court abused its discretion when it discharged the case against the defendant.

What is the Abuse of Discretion Standard?

It can often be difficult for an appellant to win a case on an abuse of discretion standard. The abuse of discretion standard requires appellate courts to give great deference to the trial court in making its decision. As stated in a recent Pennsylvania Supreme Court case, an abuse of discretion only occurs “where the trial court misapplies the law, or where the judgment is exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will.” Further, appellate courts are not supposed to step in the shoes of the trial court. As such, this standard can be very difficult to win under, and usually the appellate courts will defer to the trial court. It is worth noting that it is usually defendants who, on appeal, argue that the trial court abused its discretion.

The Superior Court’s Decision

The Superior Court held that the trial court abused its discretion when it discharged the case against the defendant. In its brief opinion, the Superior Court stated that a trial court must take into account the public interest when determining whether to dismiss a case. The Superior Court stated that the trial court did not do this. The Superior Court’s opinion omits any real discussion on why the public interest was harmed by the dismissal of this case. Further, the Superior Court essentially stated that trial courts are to assume that prosecutors are telling the truth when they say they will be ready for a case.

Further, the Superior Court cited Commonwealth v. Carson in support of its position that the trial court abused its discretion. Carson is easily distinguishable from the instant case. In Carson, the trial court stated the reason the case was discharged was because of its court schedule and specifically chastised the Allegheny District Attorney’s Office for its tardiness and its excuses. In the instant case, the trial court did not state its schedule was the reason why the case was being discharged. It stated that the case had not gone to trial in the 1,782 days after the complaint had been filed. Further, it ignored the fact that the Commonwealth offered no corroborative evidence that their witnesses were actually coming to court. As such, the only evidence to support this was the Commonwealth’s representations. Nonetheless, the Superior Court still found that the trial court abused its discretion in dismissing the case and therefore the defendant will have to face trial for these charges (assuming the witnesses actually show up to court).

Facing criminal charge? We can help.

Criminal Defense Attorneys 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 state and federal courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and 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.