Philadelphia Criminal Defense Blog

Zak Goldstein 12/25/19 Zak Goldstein 12/25/19

PA Superior Court: Constructive Possession Allows for Firearms Conviction Even When Firearm Not Immediately Accessible

The Pennsylvania Superior Court has decided the case of Commonwealth v. Gomez, affirming the defendant’s conviction for gun charges even though the gun was not on him and was not immediately accessible to him because it was in a locked safe. The Court also affirmed the defendant’s conviction for receiving stolen property with respect to the firearm, which had been reported stolen, because it found that the circumstances showed a guilty conscience on the part of the defendant. This second part of the holding is important because it highlights the fact that mere possession of stolen property, including a gun, cannot support a conviction for theft or receiving stolen property. Instead, a defendant must have knowledge that the property was stolen.

Commonwealth v. Gomez

The defendant was stopped in Lancaster County, Pennsylvania while operating his vehicle. After he was stopped, he repeatedly refused to provide his license, registration, and insurance information. The defendant was not the sole occupant in the car as there were two other individuals in the car with him. According to the officers, the defendant and his companions were making furtive movements and were acting “strangely.” Specifically, the defendant called his attorney and also invited people on social media to come witness the stop by the police. His companions were flailing their hands and kicking bags. Based on these actions, the officers stated that they believed they were in danger. After repeatedly asking the defendant and his companions to exit the vehicle, the officers broke the window and physically removed them from the car.

The police then searched the vehicle. They found and recovered two firearms that had the defendant’s DNA on them. These firearms had previously been reported stolen. One of the firearms was recovered in a locked safe, while the other was found in the front center console. Also, the key to the safe was found on the defendant’s key ring. In addition to the firearms, the police also recovered heroin, fentanyl, methamphetamine, suboxone, marijuana, and other drug paraphernalia. The defendant was arrested and subsequently charged with possession with the intent to deliver (hereinafter “PWID”), various charges under the uniform firearms act (including persons not to possess a firearm (hereinafter “VUFA 6105”), receiving stolen property, and several traffic related offenses.

The Commonwealth chose to proceed under a bifurcated trial for the charges against the defendant. Specifically, the Commonwealth elected to try the defendant under the VUFA 6105 cases first and then would try him under the remaining charges. The reason the Commonwealth would do this is because they are then allowed to introduce the defendant’s prior conviction showing that he is prohibited from possessing a firearm. In the defendant’s case, he had a prior conviction for PWID which made him ineligible to possess a firearm.

The defendant chose a jury trial for the VUFA 6015 charges. At his trial, the above-mentioned facts were presented as well as his prior PWID convictions. Following the presentation of the evidence, the jury was instructed on the relevant law. Notably, defense counsel did not make any objections. At the conclusion of deliberations, the defendant was found guilty of the two charges. A few months later, the defendant proceeded with a bench trial on his remaining charges. The defendant stipulated to all the evidence presented at his previous trial. He was found guilty of the remaining charges. The defendant was subsequently sentenced to 12.5-25 years of state incarceration. The defendant then filed a timely post-sentence motion which was denied. The defendant then filed a timely appeal.

On appeal, the defendant made three arguments: first, that the evidence was insufficient to establish that he knew the weapons were stolen; second, that the Commonwealth failed to establish that he had actual possession of the gun that was found in the safe (he did not appeal his conviction for the firearm found in the center console); and finally that the trial court did not properly instruct the jury regarding possession of the firearm. For purposes of this blog, only the defendant’s second argument will be addressed.

Can I Be Convicted of a Possessory Offense Even if I am Not Actually Holding the Contraband?

Yes. You can still be convicted of a possessory offense even if you are not in actual physical possession of the contraband. Constructive possession is a legal term of art that allows a trier of fact to find that a defendant was in possession of the contraband even when they are not physically controlling it. To find that someone “constructively possessed” contraband, the finder of fact will analyze the facts to determine if the totality of the circumstances shows that the defendant was the possessor of the contraband. The trier of fact is allowed to rely on circumstantial evidence in making its decision too.

How Can a Prosecutor Prove that I Knew an Object Was Stolen?

Mere possession of a stolen good is not sufficient to convict a defendant of RSP. A prosecutor must prove beyond a reasonable doubt that the defendant knew the object was stolen or should have known that it was. To prove this, a prosecutor, like he can to prove possession, can use circumstantial evidence to show that a defendant knew or should have known an item was stolen. Prosecutors will often use the timing of a stolen good to show that a defendant had knowledge that it was stolen. For example, let’s assume that someone reports their car stolen at 12:00 PM. If a defendant was seen with the vehicle at 12:30 PM, a prosecutor can argue that he stole the car (or at the very least knew it was stolen) given the length of time between when the car was reported stolen and when the defendant was seen with it. This is just one example. Prosecutors can also argue that a defendant’s statement, how he was acting when he was arrested, alterations to the object, etc. can be sufficient proof to show that the defendant knew or should have known the object in question was stolen.

The Superior Court’s Decision

The Superior Court upheld the defendant’s conviction for illegally possessing the firearm in the safe. Regarding whether the evidence was sufficient to find that the defendant possessed the firearm, the court analyzed the facts of the case. The Superior Court found that even though that the gun was in the safe, and not immediately accessible to him, there was sufficient evidence to show that it was his firearm. Specifically, the defendant’s DNA was on the gun; he was in possession of the key to the safe where the gun was found; and the gun was found in his vehicle. As such, the Superior Court held that there was sufficient evidence to convict the defendant of illegally possessing the gun in the safe.

Additionally, the defendant’s other issues that he raised on appeal were also rejected. The Superior Court found that there was sufficient evidence to establish that he knew or should have known that the firearms were stolen. The Superior Court agreed with the defendant’s argument that there was not any direct evidence presented at trial that he knew the guns were stolen. However, the Superior Court found that there was sufficient evidence to establish that he knew or should have known they were stolen. In support of this, the Superior Court referenced the defendant’s prior convictions showing that he was not eligible to possess the firearms and his actions during the traffic stop. The Superior Court conceded “that this is not evidence that he knew the firearms in his possession were stolen…Nevertheless, these circumstances are sufficient to enable a fact-finder to infer that [the] defendant believed that the firearms were probably stolen.” Accordingly, he will be forced to serve his sentence and will not get a new sentencing hearing or 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 12/22/19 Zak Goldstein 12/22/19

PA Superior Court Reverses Theft Conviction Due to Insufficient Proof of Jurisdiction

The Superior Court of Pennsylvania has decided the case of Commonwealth v. Maldonado-Vallespil, holding that a defendant cannot be convicted of a crime unless the Commonwealth proves that the offense took place in Pennsylvania. In this case, the prosecution simply failed to introduce any evidence whatsoever as to where the theft crime took place.

Commonwealth v. Maldonado-Vallespil

On October 31, 2017, the defendant contacted the complainant. The defendant had been working for the complainant, but on this day, he told the complainant that he would not be working for him anymore. On that same day, the complainant arrived at work and noticed that some of his tools were missing. The complainant then contacted the police. Shortly after the police arrived, the complainant called the defendant with the police present and asked that he return the tools. The defendant admitted to previously having the tools, but he said that he had sold them. The defendant stated he would need to speak with the buyer of the tools to get them back. The Commonwealth never introduced any evidence as to where the defendant was at the time of the call or where the complainant had last seen the tools.

The police told the defendant that he needed to return the tools the following day. No charges were filed that evening so that the defendant would have time to get the tools back. The defendant then reached out to the complainant requesting more time, but his request was denied. The defendant subsequently failed to return the tools. The defendant was then arrested and charged with theft from a motor vehicle, receiving stolen property, and theft by unlawful taking. The defendant elected to have a jury trial.

At the conclusion of the prosecutor’s case, the defendant moved for a judgment of acquittal, arguing that the Commonwealth failed to establish jurisdiction. Following argument, the trial court denied that motion. At the conclusion of the defense’s case, defense counsel again moved for a judgment of acquittal, but again his motion was denied. After deliberations, the jury acquitted the defendant of all charges except receiving stolen property. On that charge, the defendant was then subsequently sentenced to one to five years in a state correctional facility. The defendant filed a timely appeal. On appeal, he argued that the trial court erroneously denied his motion for judgment of acquittal because the Commonwealth failed to establish the location of the criminal act.

Why does the location of the crime matter?

The reason it matters is because in Pennsylvania (and everywhere else in the United States), a person can only be convicted for a crime in the state in which they committed said crime. In Pennsylvania, jurisdiction is governed by 18 Pa. C.S.A. § 102. Specifically, §102(a)(1) states that an individual can only be convicted if “the conduct of which is an element of the offense or the result which is such an element that occurs within this Commonwealth.” Further, in Pennsylvania, it is not enough that the crime took place in Pennsylvania. The Commonwealth must also establish the particular county in which the crime occurred because district attorneys only have jurisdiction to prosecute cases that occurred in their particular county. In other words, if a defendant commits a crime in Philadelphia, the District Attorney for Bucks County ordinarily cannot prosecute the case unless certain exceptions apply. This is why, if you have ever watched a preliminary hearing in Philadelphia, one of the first questions a prosecutor will ask is whether a particular location is in the city and county of Philadelphia. The reason they do that is so they can establish jurisdiction.

The Superior Court’s Decision

In a divided opinion, the Superior Court held that the Commonwealth failed to establish jurisdiction and thus the defendant’s conviction must be vacated. In its opinion, the Superior Court carefully analyzed the trial record. After doing so, the Superior Court found that “nowhere in the testimony presented at trial is there any indication that [the defendant] or the tools were within the Commonwealth when [he] ‘received, retained, or disposed’ the tools.” More specifically, the Superior Court stated “the Commonwealth never established the defendant’s location, at the time he received, retained or disposed of the tools.” As such, the defendant’s conviction will be vacated, and he will not be subjected to another trial.

Facing Criminal Charges? We Can Help.

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Zak Goldstein 12/2/19 Zak Goldstein 12/2/19

If Police Get a Search Warrant, You Have to Submit to a Blood Draw

The Superior Court has decided the case of Commonwealth v. Palchanes, holding that the trial court properly convicted the defendant of obstructing the administration of law or other governmental function. In this case, police obtained a valid search warrant for the defendant’s blood due to a suspected case of DUI, the defendant refused to submit to the blood draw, and the police then charged him with a violation of 18 Pa.C.S. Section 5101. This case makes it clear that the failure to comply with a valid search warrant can be punished criminally.

The Facts of Palchanes

The defendant was pulled over by Hellertown Police for speeding. The investigating officer ultimately concluded that the defendant was likely under the influence of alcohol. The officer placed him under arrest and transported him to the county’s DUI processing center. The defendant refused to submit to a warrantless blood draw, so the officers applied for and obtained a search warrant for the defendant’s blood. Even after officers presented the defendant with the search warrant, the defendant continued to resist the blood draw. Prosecutors eventually filed charges against the defendant for obstructing the administration of law or other governmental function and tampering with evidence. The Commonwealth subsequently withdrew the tampering charge. A jury found the defendant guilty of obstruction and not guilty of DUI, and the defendant appealed.

The Superior Court Appeal

The defendant appealed to the Pennsylvania Superior Court. On appeal, he argued only that the evidence was insufficient to support his conviction for obstruction. Per the crimes code:

A person commits a misdemeanor of the second degree if he intentionally obstructs, impairs or perverts the administration of law or other governmental function by force, violence, physical interference or obstacle, breach of official duty, or any other unlawful act, except that this section does not apply to flight by a person charged with crime, refusal to submit to arrest, failure to perform a legal duty other than an official duty, or any other means of avoiding compliance with law without affirmative interference with governmental functions.

Thus, the crime has two elements: 1) an intent to obstruct the administration of law, and 2) an act of affirmative interference with governmental functions. Affirmative interference does not necessarily mean physical contact with an officer. Further, police are not obligated to inform you that you are going to be arrested or charged with a crime for failure to submit to a blood test or comply with a lawful order. Therefore, the Superior Court upheld the conviction in this case, finding that the defendant acted criminally in refusing to comply with the warrant.

Do I have to submit to a blood test if I have been arrested for DUI?

Based on this case, the answer is that it depends. If the police have not obtained a search warrant, then you do not have to submit to a blood test, and the failure to cooperate with the police in this regard cannot be used to subject you to criminal penalties or enhanced penalties for refusal upon conviction for DUI. It can, however, potentially be used as evidence against you as evidence of the consciousness of guilt in a DUI trial. If the police have obtained a search warrant, however, the Superior Court has now held you are legally required to comply with that search warrant and submit to the blood test.

Facing criminal charges? We can help.

If you are under investigation or facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients who were facing charges including DUI, Murder, Aggravated Assault, Possession with the Intent to Deliver, and Violations of the Uniform Firearms Code. We offer a free 15-minute criminal defense strategy session. Call 267-225-2545 to speak with an award-winning defense attorney today.

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.