Philadelphia Criminal Defense Blog

Zak Goldstein 11/26/19 Zak Goldstein 11/26/19

Update: 10-year "look back" for DUI Runs from Prior DUI

When will my prior DUI count for my sentence in my new case?

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Mock, holding that the ten-year look back period for DUI offenses begins at the time of the conviction for the previous DUI, not when the defendant committed the prior DUI. This case is significant because in Pennsylvania, if you are convicted of a driving under the influence you could be subject to a mandatory minimum sentence. The mandatory minimum depends on whether you have any prior convictions for DWI, and a prior conviction can make the potential mandatory minimum significantly worse. Therefore, this case can make the potential exposure for a DUI worse for some defendants.

Commonwealth v. Mock

On June 3, 2006, the defendant was arrested for DUI. He was subsequently convicted of that DUI on March 27, 2007. Approximately ten years after he was arrested for his prior DUI, the defendant was arrested again for another DUI. Specifically, on July 10, 2016, at approximately 1:00 A.M., an officer with the Mifflin County Police Department stopped the defendant after observing him cross the fog and center lines several times while driving on the highway. The officer then arrested him and the defendant subsequently consented to a blood test which revealed a blood alcohol content of .21%. He was then charged with DUI-highest rate of alcohol.

Because of his prior conviction, the Commonwealth deemed the instant offense a second offense and graded it as a misdemeanor of the first degree. This is significant because it subjected the defendant to increased penalties. Before proceeding to trial, the defendant filed a motion to quash the information, arguing that the Commonwealth improperly characterized the new charge as a second offense. The defendant argued that § 3806(b) negates his 2006 conviction’s applicability because that DUI occurred in in June 2006, which was more than ten years from the date of his current offense.

The trial court rejected the defendant’s argument. The court’s logic was that because the defendant was not convicted of his prior offense until March 2007, his current DUI fell within the 10-year look back period of § 3806. In other words, it did not matter that he was arrested for his DUI in June of 2016; all that mattered was that he was convicted of the new offense in 2017. The defendant then proceeded to a stipulated bench trial and was convicted of DUI-highest rate of alcohol, as a second offense. The trial court sentenced the defendant to the mandatory minimum sentence of 90 days to five years imprisonment, as well as fines, costs, and related penalties. The defendant then filed a timely appeal to the Pennsylvania Superior Court.

The Defendant’s Appeal to the Superior Court

On appeal, the defendant argued that the Commonwealth improperly characterized the new offense as a second offense which subjected the defendant to enhanced grading and sentencing penalties. The Superior Court, in a divided opinion, denied the defendant’s appeal. The majority stated that it had analyzed the plain language of the statute and determined that “any conviction, regardless of timing, counts as a ‘prior offense.’” The majority therefore agreed with the trial court’s conclusion that the defendant’s DUI was properly graded as a second offense because his earlier conviction took place within ten years of his commission of the present offense. The defendant then filed a petition for allowance of appeal with the Pennsylvania Supreme Court. The Pennsylvania Supreme Court agreed to hear his case to resolve the question of, for purposes of § 3806, whether the court should use the date of the defendant’s conviction or the date of when the DUI occurred.

Why Does It Matter When I Was Convicted of My Previous DUI or When I Committed It?

The reason it matters is because of § 3806. § 3806 holds that if someone has a prior DUI conviction within ten years of their current DUI, then they are subjected to increased penalties. This is significant because in Pennsylvania, if you are convicted of a DUI you will be subjected to a mandatory minimum. The mandatory minimums differ depending on the particular DUI that you were convicted of. For example, let’s assume you are found guilty of § 3802 (D)(2) (driving while under the influence of a controlled substance. This is your first DWI so you will be subjected to the mandatory minimum of three days incarceration. However, if this was your second DWI, then you will be forced to serve 90 days incarceration. This is also a mandatory minimum sentence, and therefore the judge does not have discretion to lower the sentence. As one can see, the timing of one’s prior DUI can have profound consequences for an individual.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court denied the defendant’s appeal. In making its decision, the Pennsylvania Supreme Court was generally dismissive of the defendant’s argument. The Court analyzed the language of the § 3806 and found that it was clear that the ten-year look back period runs from the occurrence date of the present offense to the conviction date of the earlier offense. The Court concluded that this language is “unambiguous.” Further, the Court stated that if the Court were to adopt his interpretation of the statute it would produce “an absurd result” and that his reading of the statute was “merely a means to a preferred end.” As such, the Court found that the defendant was properly sentenced as a second-time offender. Consequently, the defendant will not get any relief and he will be forced to serve his sentence.

Facing Criminal Charges? We Can Help.

Goldstein Mehta LLC Criminal Defense Lawyers

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, DUI, 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 11/22/19 Zak Goldstein 11/22/19

PA Supreme Court: Forcing a Defendant to Reveal Password Violates 5th Amendment

Can the Police Force You to Reveal Your Computer Password in Pennsylvania?

The Pennsylvania Supreme Court decided the case of Commonwealth v. Davis, holding that the government cannot force you to provide the password to your computer without violating the Fifth Amendment even where the government can prove that you knew the password and it was your computer or electronic device. This decision represents a tremendous victory for privacy rights and Fifth Amendment rights and will likely have an impact on cases involving computer-related offenses such as possession of child pornography and even financial crimes. It is, however, important to remember that this decision does not prevent the police from searching your computer with consent or after obtaining a search warrant or from breaking into it themselves if they are able to do so. It also may not apply to federal agents. Nonetheless, you should remember that if the police are asking you for your password, you should ask to speak with a lawyer before giving it to them.

Commonwealth v. Davis

On July 14, 2014, agents of the Office of Attorney General (“OAG”) discovered that a computer at an identified internet protocol (“IP”) address that was registered with Comcast repeatedly utilized a peer-to-peer file sharing network, eMule, to share child pornography. Specifically, agents used a computer with software designed to make a one-to-one connection with the computer at the aforementioned IP address and downloaded a file, later confirmed to contain illegal pornography, which was saved to the OAG computer. Based upon its transfer and review of the file, the OAG obtained a court order to compel Comcast to provide subscriber information associated with the IP address. Comcast disclosed that the defendant was the subscriber and had registered to the account to his address.

The OAG then applied for, received, and executed a search warrant at the defendant’s apartment. One of the OAG agents informed the defendant that he was not under arrest, but that the search involved an investigation of child pornography. The defendant was then read his Miranda warnings and waived his Miranda rights. The defendant acknowledged that he was the sole user of a Dell computer. He admitted to having prior illegal pornography convictions, but denied the computer contained any illegal pornographic images. The defendant then declined to answer additional questions without a lawyer. Subsequent examination of the computer revealed that the hard drive had been “wiped,” which resulted in the removing of data entirely or rendering it unreadable. Prosecutors did not file charges at this time.

Some time later, a different OAG agent identified a different illegal video that was shared with a different IP address utilizing the eMule server. Another administrative subpoena was sent to Comcast regarding this IP address. Again, the results of the subpoena produced the defendant’s name and contact information. On October 20, 2015, the OAG executed another search warrant at the defendant’s residence. At the defendant’s apartment, the agents discovered a single computer, an HP Envy 700 desktop. After being Mirandized, the defendant informed the agents that he lived alone, that he was the sole user of the computer, and that he used hardwired internet services which are password protected. The defendant gave a statement that he previously watched pornography on the computer, that he believed to be legal; he previously had been arrested for child pornography; and that child pornography was legal in other countries so he did not understand why it was illegal in the United States. The defendant was then subsequently arrested.

While in transit to his arraignment, the defendant spoke openly about watching various pornographic movies, indicating that he particularly liked watching 10, 11, 12, and 13-year olds. An OAG agent then requested that the defendant then provide him with the password to the computer and the defendant responded “it’s 64 characters and why would I give that to you? We both know what’s on there. It’s only going to hurt me. No [expletive] way I’m going to give it to you.” While in the holding cell, the agents continued to inquire about the password, but the defendant would not tell them it.

The defendant was subsequently charged with two counts of disseminating child pornography and two counts of criminal use of a communication facility. On December 17, 2015, the Commonwealth filed a pre-trial motion to compel the defendant to divulge the computer password. The defendant responded by invoking his right against self-incrimination. A hearing was held, and the trial court granted the Commonwealth’s motion to compel. Specifically, the trial court relied upon the “foregone conclusion” exception to the Fifth Amendment privilege against self-incrimination and ordered the defendant to supply the Commonwealth with any passwords used to access the computer within 30 days. The defendant filed an interlocutory appeal.

The Superior Court’s Decision

The Superior Court affirmed the trial court’s decision. The Superior Court explained that the Fifth Amendment right against self-incrimination is not violated when the information communicated to the government by way of a compelled act of production is a foregone conclusion. The court reasoned that the foregone conclusion exception provides that an act of production does not involve testimonial communication where the facts conveyed already are known to the government. The defendant then filed a petition for allowance of appeal to the Pennsylvania Supreme Court, and the Court agreed to hear the case. The question for the Pennsylvania Supreme Court was: “May [the defendant] be compelled to disclose orally the memorized password to a computer over his invocation of privilege under the Fifth Amendment to the Constitution of the United States, and Article I, Section 9 of the Pennsylvania Constitution?”

What is the Fifth Amendment?

The Fifth Amendment of the United States Constitution provides that “no person...shall be compelled in any criminal case to be a witness against himself.” This privilege not only applies to a defendant in a criminal trial, but in any proceeding, civil or criminal, formal or informal, where the answers might incriminate the speaker in future criminal proceedings. Appellate courts have held that the privilege does not protect a suspect from being compelled to produce “real” or physical evidence. Thus, if the government knows that you have paperwork in your house that could implicate you in financial crimes, the government may still be able to compel you to produce that paperwork despite the fact that producing it incriminates you.

Instead, the privilege only protects an accused from being compelled to testify against himself, or otherwise provide the government with evidence that is testimonial or communicative in nature. To invoke the Fifth Amendment privilege against the forced provision of information, a defendant must show (1) that the evidence is self-incriminating; 2) the evidence is compelled; and 3) the evidence is testimonial in nature. Returning to the paperwork example, the government may not be able to compel you to produce paperwork that it does not really know about because the act of production admits that the paperwork is yours and therefore is testimonial.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court reversed the lower courts’ rulings and held that a defendant cannot be forced to provide his password when he asserts his Fifth Amendment rights. Specifically, the Pennsylvania Supreme Court found that the disclosure of a password is testimonial in nature and thus is entitled to Fifth Amendment protections.

In its decision, the Court made a distinction between physical production and testimonial production. Specifically, when the government compels a physical act, such production is not testimonial and the Fifth Amendment protections do not apply. However, an act of production may be testimonial when the act expresses some explicit or implicit statement of the fact that certain materials exist, are in the defendant’s custody or control, or are authentic. The crux of whether an act of production is testimonial is whether the government is forcing the defendant to use the “contents of his own mind” in explicitly or implicitly communicating a fact. Further, the Court held that the “foregone conclusion” exception as articulated by the United States Supreme Court did not apply to passwords and therefore was not applicable to the instant case. As such, the defendant will not be forced to provide the Commonwealth with his password, and they will not be able to use that information against him in his trial unless they can break into the computer on their own.

Should I give the police my password if they ask for it?

It is extremely important to remember that this case dealt with the police asking for a password after a court had ordered the defendant to provide it. In any other circumstance, it would be clear that the defendant did not have to give the police his password or speak with them at all. Instead, if you are under investigation or facing charges and police are asking you questions or asking for passwords, you should immediately ask to speak with an attorney prior to making a statement or helping them access your electronic devices.

Facing Criminal Charges? We Can Help.

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, VUFA, Possession with the Intent to Deliver, 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 11/20/19 Zak Goldstein 11/20/19

PA Supreme Court: Gun's Serial Number Must Be Changed or Removed for Conviction of Possessing Firearm with Obliterated Serial Number

The Pennsylvania Supreme Court decided the case of Commonwealth v. Smith, holding that to convict a defendant of the crime of possession of a firearm with an altered manufacturer’s number (“VUFA 6110.2”), the serial number must have been removed or changed in a “material way” that makes it look like a different number, in whole or in part, to the naked eye. This decision is significant because in Philadelphia (and in other parts of Pennsylvania), prosecutors will routinely charge defendants with VUFA 6110.2 when there is even the slightest mark on the serial number.

Commonwealth v. Smith

On June 12, 2016, Pennsylvania State Police troopers initiated a traffic stop of a vehicle driven by the defendant. The defendant was stopped because his license plate was not illuminated. As the troopers approached the vehicle, they observed “furtive” movements by the vehicle’s occupants. The troopers requested the defendant’s license and registration, at which point either the defendant or his passenger opened the glovebox. When the glovebox was opened, the troopers observed a plastic vial containing marijuana. A subsequent search of the vehicle revealed a firearm, ammunition, and a clip under the driver’s seat. The manufacturer’s number on the firearm appeared to have been scratched, but it was still legible.

The defendant was arrested and charged with VUFA 6110.2, firearms not to be carried without a license, receipt of stolen property, possession of a controlled substance, and various traffic offenses. At the defendant’s stipulated bench trial, the Commonwealth introduced photographs of the firearm, which showed that the manufacturer’s number had multiple scratch marks. The parties did not dispute that the number was still legible. The trial court noted that the serial number showed clear signs of intentional tampering and wearing of the serial number and that the number was “clearly abraded.” As such, the trial court determined that the serial number had been, at a minimum, altered from its original state. The defendant was then found guilty and sentenced to three to six years incarceration. The defendant then filed a timely appeal to the Pennsylvania Superior Court.

The Defendant’s Appeal to the Superior Court

The defendant appealed to the Superior Court, arguing that the evidence was insufficient to sustain his conviction because the manufacturer’s number, although scratched, was legible to the naked eye and thus the Commonwealth failed to establish that the number was “altered, changed, removed, or obliterated” as required by VUFA 6110.2. Specifically, the defendant argued that to be convicted of VUFA 6110.2 the serial number must be illegible to the naked eye. The Superior Court unanimously rejected the defendant’s argument. The defendant then filed a petition for allowance of appeal to the Pennsylvania Supreme Court. The Pennsylvania Supreme Court agreed to hear the defendant’s case.

What is VUFA 6110.2?

VUFA 6110.2 provides: “[n]o person shall possess a firearm which has had the manufacturer’s number integral to the frame or receiver altered, changed, removed, or obliterated.” Previous appellate decisions have required that the number’s alteration be man-made. In other words, if the number is naturally corroded, a defendant is not guilty of VUFA 6110.2 simply because he is in possession of a gun whose markings had become illegible due to natural causes. However, whether a serial number has worn away over time or been intentionally removed is not always clear.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court reversed the defendant’s conviction and found that the evidence was not sufficient to convict him of VUFA 6110.2. In making its decision, the Court first analyzed the VUFA 6110.2 statute. The Court found that the term “altered” is capable of multiple reasonable interpretations and thus the term is ambiguous. Therefore, the Court then analyzed the legislative intent behind VUFA 6110.2. The Court opined that the Pennsylvania Legislature drafted VUFA 6110.2 because the manufacturer’s serial number is an important tool used by police officers in identifying the owner of weapons used in criminal offenses. To safeguard this tool, the legislature found it important to pass a law that prohibits individuals from altering, changing, removing, or obliterating these numbers.

In the instant case, the serial numbers on the defendant’s gun were still visible. In fact, the Commonwealth conceded this fact at trial. Therefore, the Pennsylvania Supreme Court held that to be convicted of VUFA 6110.2, the Commonwealth “must establish that the number was changed in a material way, such as by making it look like a different number, or that it was rendered illegible, in whole or in part, to the naked eye.” In this case, because the defendant’s gun’s serial number was not illegible, the evidence was insufficient to convict him of VUFA 6110.2. Therefore, his conviction on this charge will be vacated, and his case will be remanded for re-sentencing.

Facing Criminal Charges? We Can Help.

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, Aggravated Assault, illegal gun possession, 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 11/14/19 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.