Philadelphia Criminal Defense Blog

Zak Goldstein 11/14/19 Zak Goldstein 11/14/19

PA Superior Court: Improper Admission of Hearsay Statement that Defendant Managed House of Prostitution Requires New Trial

The Pennsylvania Superior Court has decided the case of Commonwealth v. Lu, holding that the trial court erred in allowing the Commonwealth to introduce a hearsay statement that the defendant, who was charged with promoting, managing, or supervising a house of prostitution, was the manager of the brothel. This case is important because it highlights the difference between inadmissible hearsay and statements which should not be admitted because they would violate a defendant’s right to confront his or her accusers under the confrontation clause.

The facts of Lu

In Lu, the defendant was charged with promoting, managing, or supervising a house of prostitution business under 18 Pa.C.S. Sec. 5902(b)(1) and criminal conspiracy. Police testified that they received a complaint from the FBI regarding certain Back Page postings that suggested that underage girls may be involved in prostitution. After conducting some investigation, a Philadelphia Police Officer called the number advertised on the Back Page posting. An Asian female voice answered the phone and arranged for a meeting with the officer at a certain address on Rhawn Street. The officer was told that the business would not open until 2 am. He was also told by text that there were four young girls and that he could do whatever he wanted for certain prices.

Later that night, the officer went to the address in plainclothes and rang the doorbell. The defendant opened the door and waved the officer into the foyer. The defendant spoke with the officer in English and led the officer into a room where three Asian women in lingerie were sitting on a sofa. The defendant then walked the officer closer to the girls and motioned with an open hand as if he were presenting them to the officer. The officer asked, “wow, I pick?” to which the girls laughed, but the defendant remained silent. The officer chose one of the women and went with her to the third floor of the building. The woman escorted him to a bedroom, put a bag of condoms and lubricant on the night table, and counted the money that the officer had brought with him. The woman explicitly agreed to have oral or vaginal sex with the officer for money, and the officer then asked who the defendant was. The woman told the officer that the defendant was the manager.

The officer then called for the arrest team. They entered the building, arrested the defendant, recovered various phones, and also found $2,900. The officer then identified himself as a police officer for the first time.

The criminal trial

The defendant was arrested and charged with the above defenses. Prior to trial, his defense attorney filed a motion in limine in the trial court asking the court to preclude the statement that the defendant was the manager because the woman who made the statement was not present in court to testify. The court found that the statement was admissible pursuant to a hearsay exception for statements made by the defendant’s co-conspirators during and in furtherance of the conspiracy. However, although the defense objected on confrontation grounds as well, the court did not provide any analysis for how the statement could be admissible under the confrontation clause. The defendant was convicted at trial and sentenced to 3-6 months’ incarceration. He appealed to the Superior Court.

The Appeal

On appeal, the defendant argued not only that the statement was hearsay, but also that its admission violated his right to confront the witnesses against him. The Superior Court ultimately agreed with the defendant that the statement should not have been admitted because the defendant did not have the opportunity to cross-examine the woman who made the statement. Whether or not the admission of a statement violates the Confrontation Clause generally depends on whether the statement is “testimonial.” Various appellate courts have held that statements are not testimonial when they are made to police or the first responders in order to obtain aid during an ongoing emergency. For this reason, the admission of 911 calls often does not violate the confrontation clause depending on the statement. However, when the statement is made not in response to an ongoing emergency but because police are simply investigating a potential crime, then the statement is typically considered testimonial and would be inadmissible at trial without the actual witness testifying. This is true even if the statement satisfies some exception to the rule against hearsay. Thus, a statement be admissible as non-hearsay or as a hearsay exception but still inadmissible under the confrontation clause.

The Superior Court reversed the defendant’s conviction. It found that the statement established that the defendant was the manager and that it was not made in response to any kind of ongoing emergency. Therefore, the statement was testimonial, and it should not have been admitted without the witness having to testify. Accordingly, the defendant will receive a new trial.

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

PA Superior Court: Adult Defendants Cannot Be Required to Register as Sex Offenders for Crimes Committed as Juveniles

The Pennsylvania Superior Court has decided the case of Commonwealth v. Haines, holding that adults may not be required to register as sex offenders when they are prosecuted and convicted for sex crimes that they committed while under the age of 18. This case is most likely to apply in situations where a defendant who was also a juvenile at the time is accused of committing some type of sex offense against another juvenile and the complainant then does not come forward until the defendant has become an adult. It is an important opinion which recognizes that children simply have not finished developing mentally prior to the age of 18 and so should not be punished as adults even when there is a delayed report of a sex offense.

The Facts of Haines

In Haines, the defendant pleaded guilty in 2017 to two counts of Indecent Assault of a person less than thirteen years of age. The charges related to incidents which occurred approximately ten years earlier when both the victims and the defendant were children. Specifically, the defendant was 14 or 15. The defendant pleaded guilty, but prior to sentencing, she moved to bar any sex offender registration requirement pursuant to the Supreme Court’s opinion in Commonwealth v. Muniz in which the Court held that SORNA registration is punitive.

The trial court denied the defendant’s motion and imposed sex offender registration requirements. The defendant appealed, arguing both that she could not be required to register under a statute which did not exist at the time of the offense as this would constitute an ex post facto violation and that the cruel and unusual punishment clause bars requiring an adult to register as a sex offender for a crime committed as a juvenile.

The Superior Court’s Opinion

The Superior Court agreed with the defendant on the juvenile issue. The court concluded that requiring an adult to register as a sex offender for crimes committed as a juvenile constitutes cruel and unusual punishment. The Court noted that lifetime registration for juveniles who commit sex crimes and are prosecuted while they are still juveniles has already been found unconstitutional by the Pennsylvania Supreme Court. It further noted that the United States Supreme Court has recognized that mandatory life imprisonment for juvenile defendants is also unconstitutional based on the inherent understanding of the fundamental differences between adults and children, children’s lack of maturity, and their undeveloped sense of responsibility leading to recklessness, impulsivity, and heedless risk-taking.

Synthesizing these two opinions, the Court quickly concluded that had the defendant been adjudicated delinquent at the time of the offense, she would not have been registered to register as a sex offender. The fact that she was subsequently convicted as an adult does not change the fact that she was a juvenile at the time of the commission of the offense. Therefore, she should not be held to an irrefutable presumption of re-offending even though she was not prosecuted until she had turned 26. Therefore, the Court reversed the portion of the sentence requiring the defendant to register as a sex offender.

This is an extremely important opinion as it is not uncommon for delayed reports of sex offenses to lead to prosecutions of adults for crimes committed when they were children. This opinion makes the collateral consequences of a conviction somewhat closer to what they would have been had there been a timely prosecution for the offense. As this case was decided by a three-judge panel of the Superior Court, it is very possible that the Court could grant en banc review or that the Pennsylvania Supreme Court could review the decision.

Facing criminal charges? We can help.

Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

Zak Goldstein 11/3/19 Zak Goldstein 11/3/19

PA Supreme Court: VUFA 6106 Statute Does Not Allow Conviction Based on Co-Defendant's Possession of Gun

The Pennsylvania Supreme Court decided the case of Commonwealth v. Peters, holding that a defendant cannot be found guilty of the Uniform Firearm Act § 6106 when another person possessed the gun. This decision will likely only apply to a limited number of cases, but it is still significant because it reduces a defendant’s potential exposure for a conspiracy when that defendant did not possess the actual gun.

Commonwealth v. Peters

In August 2011, the defendant was involved in a relationship with the complainant. On the night in question, the defendant was visiting the victim at his apartment. The defendant was complaining that her father lacked rent money and was facing eviction. The complainant then showed her $700 in cash and stated that he would give the money to her father. Later that evening, the defendant and the complainant got into an argument and the victim renounced his earlier promise to assist the defendant’s father.

Shortly afterwards, the defendant left the residence and texted the complainant. The two exchanged text messages and the defendant texted him saying that he was “going to get it.” The defendant then returned to the residence and shortly thereafter let two individuals inside the complainant’s residence. One of them had a gun. When the complainant saw the man with the gun, he ran towards his bedroom. One of the individuals ransacked his room demanding the money, while the other pointed his gun at the complainant. Because they were unable to find any money, the one assailant shot the complainant. The shot pierced his jaw, tongue, and shoulder and caused the complainant to lose some teeth. The assailants eventually found the $700 and fled. The complainant was taken to the hospital and was released several days later.

The defendant was subsequently arrested and charged with attempted murder, conspiracy, robbery, aggravated assault, and violation of the uniform firearm act § 6106 (hereinafter “VUFA 6106”) which prohibits the possession of a concealed firearm without a license. At trial, the parties stipulated that the defendant did not possess a license. After the trial, the defendant was found guilty and sentenced to 13-30 years’ incarceration. The defendant then filed a timely appeal. For purposes of this article, only the appeal concerning her conviction under VUFA 6106 will be discussed.

The Superior Court’s Decision

The Superior Court denied the defendant’s appeal. The Court concluded that the defendant could have been found guilty under a constructive possession theory. In its opinion, the Superior Court recited the standard for constructive possession and then stated that the defendant “had the power to control the firearm.” Notably, as discussed later, the issue of concealment was not addressed by the Superior Court. The defendant then filed a petition for allowance of appeal with the Pennsylvania Supreme Court, which was granted for a limited review of whether the defendant could have been found guilty of VUFA 6106 under a constructive possession theory.

What is Constructive Possession?

Constructive possession is a legal fiction that permits a defendant to be convicted of a possessory crime when the defendant is not in physical possession of an item (i.e. the defendant is not holding the contraband). It is an inference arising from a set of facts that possession of contraband was more likely than not. The evidence must show a nexus between the accused and the item to sufficiently infer that the defendant had the power and intent to exercise dominion and control over it. Constructive possession is usually established by the totality of circumstances. It is important to remember though that mere presence or proximity to the contraband is not sufficient to convict a defendant under a constructive possession theory.

Appellate courts have previously held that it is possible for two people to constructively possess the same item(s). Usually, constructive possession comes into play in situations where the defendant is in the same proximity as the contraband (i.e. the defendant is in a car where contraband is found). In the instant case, the defendant was found guilty of VUFA 6106 when her co-conspirator brought the gun with him to the residence. There were not any facts in the record to suggest that she ever physically possessed the weapon.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court granted the defendant’s appeal and reversed her conviction for VUFA 6106. The Court came to this decision after a very careful review of the record. Specifically, the Court found that the defendant had been found guilty as an accomplice liability theory because she did not actually participate in the shooting and robbery of the complainant.

The Court then analyzed the VUFA 6106 statute. To be convicted under VUFA 6106, a defendant must not only possess the firearm, but he/she must also conceal the weapon. The Court then stated that usually only the actual possessor of the firearm is capable of both concealment and possession. The Court went one step further and rejected the notion that the concealment on a different person can satisfy the concealment requirement for VUFA 6106. As such, the defendant’s conviction for VUFA 6106 is vacated, and she will be resentenced on the other charges.

Facing Criminal Charges? We Can Help.

Zak Goldstein 10/22/19 Zak Goldstein 10/22/19

PA Superior Court Reduces Double Jeopardy Protections in Philadelphia Felony Cases

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Johnson, holding that the double jeopardy protections provided to the citizens of Philadelphia by the Pennsylvania Supreme Court’s decision in Commonwealth v. Perfetto simply do not apply to felony charges. The Supreme Court previously held that police could not file separate traffic court cases and criminal charges when a traffic stop leads to an arrest for more serious charges. This wrongly-decided decision completely undermines the Supreme Court’s ruling and allows prosecutors to subject defendants to the expense, stress, and dual penalties associated with two separate prosecutions arising from the same incident.

Commonwealth v. Johnson

A Philadelphia police officer stopped the defendant for careless driving and discovered that he had been driving with a suspended license. The police removed the defendant from the vehicle, patted him down, and found some heroin. They arrested him and charged him with Possession with the Intent to Deliver (“PWID”) and knowing and intentional possession of a controlled substance (“K&I). They also cited him for driving on a suspended license.

Before the defendant went to trial on the PWID and K/I charges in the Court of Common Pleas, the defendant was found guilty of driving with a suspended license in the Municipal Court of Philadelphia. Consequently, the defendant filed a motion to dismiss his drug case under 18 Pa. C.S.A. § 110 (“Rule 110”), which provides double jeopardy protections to citizens of Pennsylvania. Specifically, the defendant argued that the Commonwealth should have tried the defendant for the driving with a suspended license charge and his PWID charge at the same time because they arose out of the same incident. Per the defendant, the failure to do this not only violated his rights under Rule 110, but also his right against Double Jeopardy under both the Pennsylvania and Federal Constitutions.

The trial court denied the defendant’s motion to dismiss. The trial court opined that because Philadelphia has a separate traffic court, the traffic citation can be disposed of without violating a defendant’s Double Jeopardy rights. The defendant then filed an interlocutory appeal arguing that the trial court improperly denied his motion to dismiss. While his appeal was pending, the Pennsylvania Supreme Court decided the case of Commonwealth v. Perfetto. Perfetto, which will be discussed in more detail, was factually similar to this case. Therefore, in his appeal, the defendant argued that Perfetto should control and the felony charges should be dismissed.

Is Philadelphia’s Court System Different from Other Court Systems in Pennsylvania?

Yes. A quick refresher on Philadelphia’s court system will be necessary to fully understand the Johnson decision. When a defendant is charged with a felony in Philadelphia, he or she will first usually have a preliminary hearing in Municipal Court. If the Municipal Court judge finds that the Commonwealth provided sufficient evidence to establish a prima facie case for the charges filed against the defendant, then the case will be transferred to the Court of Common Pleas for further proceedings including trial. The defendant cannot have his felony cases heard in the Philadelphia Municipal Court (unless it is a first offense marijuana PWID). The defendant also cannot plead to a felony, with the exception of the aforementioned crime, in Municipal Court.

If a defendant is only charged with misdemeanors or summaries, including traffic citations, then the defendant will not receive a preliminary hearing. Instead, the case will go straight to trial before a Municipal Court judge. It is difficult for the defendant to demand a jury at this stage, and there are no jury trials in the Municipal Court. If the defendant is found guilty of any of the charges filed against him or her, the defendant then has the right to a de novo appeal in the Court of Common Pleas. If the defendant chooses to de novo appeal his case, the defendant will get a new trial on the remaining charges. If the defendant wants to, he can also elect to have a jury trial once the case reaches the Common Pleas level. Most defendants do not appeal to the Court of Common Pleas, but this system often benefits the defense because the Commonwealth actually has to convict a defendant twice in order to obtain a final conviction.

What happened in Commonwealth v. Perfetto?

For a more detailed analysis, please refer to our previous blog about Commonwealth v. Perfetto. For purposes of this blog, only a brief summary of the decision will be given. Commonwealth v. Perfetto is a Pennsylvania Supreme Court that was decided earlier this year. This case was significant because it held that if a defendant is charged with both a criminal case and a traffic case (and the defendant is acquitted or found guilty of his traffic case before his criminal case was resolved), then Rule 110 would prohibit the subsequent prosecution of the criminal case because of Double Jeopardy. This case is very significant because so many defendants were given a traffic citation after they were arrested for their underlying criminal case.

Because of Perfetto, defendants used Rule 110 to dismiss not only misdemeanor cases, but felony cases too. It is important to note that the facts of Perfetto only involved a Municipal Court case (i.e. a case that has a maximum penalty of five years or less). Perfetto did not involve a felony case and its holding also did not explicitly address whether it applied to felony cases. More specifically, Perfetto did not address whether 18 Pa. C.S.A. § 112 (hereinafter “Rule 112”) was applicable. As discussed later, this would prove to be decisive for the Superior Court.

What is Rule 112?

Rule 112 states that a subsequent prosecution is not barred by a former prosecution if the former prosecution was before a court which lacked jurisdiction over the defendant or the offense. In its appeal, the Commonwealth argued that the defendant’s motion should not be granted on the PWID charge because the Municipal Court could not hear the defendant’s case because the charge has a maximum penalty of more than five years. In its brief, the Commonwealth conceded that the K/I charge should have been dismissed because the Municipal Court did have jurisdiction to hear that particular charge.

The Superior Court’s Decision

The Pennsylvania Superior Court held that the K/I charge was properly dismissed, but the defendant must face trial for the PWID charge. The Superior Court opined that a defendant cannot obtain Double Jeopardy relief for his felony case when his traffic case is resolved. The reason is because of Rule 112. Specifically, because a defendant cannot have a trial for a felony charge in Municipal Court (unless it is a marijuana PWID as previously discussed), Rule 112 is implicated. Therefore, because Rule 112 is implicated, the defendant’s Double Jeopardy rights were not implicated when a defendant resolves his traffic court case. As such, for now, the defendant will have to face trial on his remaining PWID charge. This case is likely to receive review by an en banc of the Superior Court and/or the Supreme Court.

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, Aggravated Assault, Possession with the Intent to Deliver, 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.