Philadelphia Criminal Defense Blog

Zak Goldstein 3/28/20 Zak Goldstein 3/28/20

PA Supreme Court: Failure to Provide Interpreter for Jury Selection Requires New Trial

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Diaz, upholding the Superior Court’s ruling that a defendant who needed but was not provided with a Spanish interpreter during the first day of jury selection should receive a new trial. The Court ruled that the failure to provide a defendant with an interpreter during a critical stage of trial results in a Sixth Amendment violation and automatically requires a new trial even if the defendant cannot prove prejudice (that the lack of an interpreter actually affected the proceedings).

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Facts of Diaz

In Diaz, the defendant was charged with rape of a child, endangering the welfare of a child, statutory sexual assault, indecent assault, corruption of minors, and conspiracy. Bucks County prosecutors alleged that the defendant sexually assaulted his girlfriend’s minor daughter multiple times when she was between the ages of ten and fourteen years old.

The defendant spoke some English, but he was not totally fluent. He retained private counsel for the preliminary hearing, and the Magisterial District Justice held the hearing in English without an interpreter. After the preliminary hearing, the defendant requested that his attorney obtain a Spanish interpreter for further proceedings because he felt that he had trouble understanding what happened at the preliminary hearing.

Prior to the argument on pre-trial motions, the defense attorney requested a Spanish interpreter for the defendant. There was no interpreter available that day, and the trial judge seems to have been upset that the defense attorney made the request at the last minute. After the judge asked why the request had not been made earlier, the defense attorney withdrew the request and informed the court that the defendant would only need an interpreter for his own testimony.

The trial court decided to move forward with the hearing on the pretrial motions and the first day of jury selection without the interpreter, but the judge agreed that an interpreter would be provided on the subsequent days of trial. Despite the defendant repeatedly saying that he did not really understand what was going on, the defense attorney agreed that that would work. The trial judge even mentioned that they should definitely get an interpreter for the second day of trial because “we got a PCRA looking at us in the face.” Nonetheless, the court proceeded with jury selection without an interpreter. In fact, the first day of trial, which took place without the interpreter, included pretrial motions, jury selection, opening statements, and direct and cross examination of the complainant. The defendant received an interpreter for the rest of the trial.

The jury found the defendant guilty of all charges. He was sentenced to 20-40 years’ incarceration and required to register as a sexually violent predator. The defendant appealed, new counsel was appointed, and the new attorney tried to raise the ineffective assistance of counsel on appeal. Because a criminal defendant generally cannot do that in Pennsylvania, the Superior Court dismissed the appeal.

The PCRA Petition

The defendant then filed a PCRA petition alleging the ineffective assistance of counsel, and the trial court appointed counsel for the PCRA. PCRA counsel amended the petition to raise numerous claims of ineffective assistance. This led to the reinstatement of the defendant’s appellate rights. The direct appeal was denied, and counsel then filed a second PCRA petition alleging that the defendant should receive a new trial because trial counsel provided the ineffective assistance of counsel in failing to properly request an interpreter for the whole trial.

The trial court held an evidentiary hearing in which it heard from various witnesses as to whether the defendant could understand and speak English. The court eventually concluded that the defendant did not speak English well enough to have his trial without an interpreter. Therefore, the trial court granted the PCRA petition and awarded a new trial for the defendant, finding that counsel was ineffective in failing to insist on an interpreter.

The Appeal

The Commonwealth appealed the granting of the PCRA Petition, and the Superior Court affirmed. The Commonwealth appealed again to the Pennsylvania Supreme Court, and the Supreme Court accepted the appeal.

The Supreme Court’s Decision

The Supreme Court upheld the decision of the trial court, finding that the defendant should have received an interpreter for the entire trial. In general, there are two standards for a PCRA Petition when dealing with the ineffective assistance of counsel. First, there is the general Strickland standard in which a defendant must show 1) a claim of arguable merit, 2) that counsel had no reasonably strategic basis for acting or failing to act, and 3) that the defendant actually suffered prejudice. This standard applies to most situations – for example, the failure to litigate a motion, the failure to object to certain evidence, and the failure to present witnesses or investigate potential defenses. This standard is more difficult to meet because a defendant not only has to show that the defense attorney should have done something differently, but also that it really could have made a difference in the proceedings.

Second,, there are some errors that are so fundamental to the right to a trial that they constitute structural errors and do not require a showing of prejudice. This standard applies in circumstances including: 1) the actual or constructive denial of counsel at a critical stage of trial; 2) when counsel fails entirely to provide meaningful adversarial testing of the prosecution’s case, and 3) circumstances wherein no lawyer, regardless of general competency, could have provided effective assistance of counsel. This also includes situations in which a defendant is prevented from conferring with counsel.

Here, the Pennsylvania Supreme Court found that the failure to provide an interpreter constituted a structural error in the proceedings because the defendant had no ability to communicate with his lawyer regarding the case during the trial. Therefore, defense counsel failed to provide the effective assistance of counsel by failing to object to the court proceeding through the first day of trial without an interpreter. The defendant will receive a new trial.

If you need a criminal defense lawyer in Philadelphia, PA, 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, DUI, 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 3/26/20 Zak Goldstein 3/26/20

PA Supreme Court Revives Sexually Violent Predator Designation

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Butler, reversing the Superior Court and finding Pennsylvania’s scheme for designating some sex offenders as “sexually violent predators” or “SVPs” constitutional. The Court rejected the Superior Court’s prior ruling that the mechanism for finding a defendant to be an SVP was unconstitutional because it allowed a judge to make the decision instead of a jury. This opinion will likely have an immediate and dramatic effect as prosecutors throughout Pennsylvania, many of whom had stopped pursuing the SVP designation in sex offense cases, will likely begin moving to have many defendants classified as sexually violent predators under Pennsylvania’s Megan’s Law. This classification requires lifetime Megan’s Law Registration for most defendants and carries with it a number of other negative consequences.

The Facts of Butler

In Butler, the defendant pleaded guilty to statutory sexual assault and corruption of minors after having sexual intercourse with a 15-year-old girl on approximately 50 occasions. Under Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”), the defendant was required to undergo an assessment by the Sexual Offender Assessment Board (“SOAB”) to determine whether he should be designated as an SVP. The SOAB recommended that he be designated an SVP, and the trial court held a hearing on the issue at sentencing. The judge found that the Commonwealth met its burden under the statute of producing clear and convincing evidence that the defendant was a sexually violent predator, and so the judge ordered that the defendant be designated as such. The trial court also imposed a sentence of 12 to 30 months’ incarceration followed by 90 months’ probation.

The defendant filed post-sentence motions, and the trial court denied those motions. He appealed to the Superior Court, and the Superior Court overturned the SVP portion of his sentence. The Superior Court found that Pennsylvania’s procedures for designating SVPs were unconstitutional because they allowed the trial judge to impose the additional punishment of being an SVP by making factual findings that should be made by a jury. Therefore, the Superior Court ruled that the defendant did not have to register as an SVP and that the whole scheme was unconstitutional because it allowed the judge to impose criminal punishment without a jury finding. Due to this ruling, prosecutors throughout Pennsylvania mostly stopped moving for SVP hearings, but the Commonwealth appealed in this case to the Pennsylvania Supreme Court.

What is a sexually violent predator?

The SVP designation is particularly problematic in Pennsylvania both because of the stigma that it entails and because it requires lifetime Megan’s Law registration even for offenses which would otherwise require a shorter registration period such as 15 years or 25 years. Under SORNA, an SVP must appear in person every three months to register and be photographed by the State Police. They must appear in person to report any changes to their registration information. They must submit to the registry their names, addresses, computer IP addresses, phone numbers, social security numbers, employer information, professional licensing information, vehicle information, and birthdates. Failure to comply with the Megan’s Law and sexually violent predator registration requirements is a serious felony.

Once an SVP registers with the State Police, the State Police notify the local police, and the local police must notify the SVP’s victim of the offender’s name, residence, address of employment, and any address at which the SVP is enrolled as a student. Local police must notify neighbors, the local county’s children and youth agency director, local school superintendents, local day-care centers and preschool programs, and local colleges and universities regarding the SVP. This notice must provide the person’s name, address, offense for which the person was convicted, a statement that the person has been designated an SVP, and a photograph of the person.

The offender must also attend monthly counseling sessions in a program approved by the SOAB and is financially responsible for paying for those sessions unless he or she can prove indigence. The offender must verify compliance with the counseling requirements during the quarterly registration, and failure to comply with the counseling requirement is a misdemeanor.

Many of these requirements are far worse than those imposed on other Megan’s Law registrants, particularly than those imposed on Tier I offenders. However, even someone who has been convicted of a Tier I offense can be designated a sexually violent predator.

The Pennsylvania Supreme Court’s Ruling

The Pennsylvania Supreme Court accepted the Commonwealth’s appeal and reversed the ruling of the Superior Court. The Superior Court had ruled that the SVP scheme was unconstitutional because the SVP designation constitutes criminal punishment and the fact-finding necessary to impose criminal punishment must be completed by a jury instead of a judge.

The Supreme Court rejected this finding, holding that despite all of the horrific consequences of SVP registration, the SVP designation is not a criminal punishment but instead an attempt by the legislature to help the offender and avoid re-offending. Because the Court ruled that the designation does not constitute criminal punishment, there is no requirement that a jury make the findings necessary for a person to be labeled a sexually violent predator. The Court also strongly approved of the fact that Pennsylvania did amend the statute to allow for an SVP to petition the trial court for removal from Megan’s Law after 25 years on the list.

This decision is difficult to reconcile with the Supreme Court’s recent decision in Commonwealth v. Muniz in which the Court held that requiring someone to register with Megan’s Law constitutes criminal punishment. Ultimately, the Court has now found that sex offender registration in general constitutes criminal punishment and cannot be imposed ex post facto, but the increased requirements of the SVP designation are not an additional criminal punishment. Therefore, the Court rejected the defendant’s arguments in Butler.

It is still important to note that there are a number of pending appeals regarding Pennsylvania’s Megan’s Law registration scheme and whether it is constitutional to make someone register based solely on the offense of conviction without any individualized fact finding as to whether the person is actually a risk to society. In the short term, it is extremely important that anyone who is charged with a sex offense retain a lawyer with experience in this field as avoiding the SVP designation is absolutely critical given the additional negative consequences that stem from such a finding. Our lawyers have extensive experience defending clients against sex offense charges and in contesting the sexually violent predator designation. We regularly work with some of the best experts in this field to have our clients evaluated and convince prosecutors and judges that they do not need to register for life.

If you need a criminal defense lawyer in Philadelphia, PA, we can help.

Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

Zak Goldstein 3/6/20 Zak Goldstein 3/6/20

Third Circuit Court of Appeals: Court May Consider Total Weight of Drugs Handled on Different Occasions at Sentencing

The Third Circuit Court of Appeals has decided the case of United States v. Diaz. The Court held that a trial court may consider the cumulative weight of drugs possessed by a defendant for purposes of his sentencing guidelines. This decision is important because it allows a trial court to aggregate all of the drugs that a defendant possessed on different occasions when calculating the guideline sentencing range, which can make the recommended sentence much higher. Even minor differences in the weight of drugs involved can have a dramatic effect on a criminal defendant’s sentencing guidelines.

United States v. Diaz

The defendant was charged along with five co-defendants with conspiracy to distribute and possess with the intent to distribute heroin. One of the co-defendants, Guzman, allegedly orchestrated the conspiracy. He distributed drugs to his co-defendants, including his mother and the defendant. All of the defendant’s co-defendants pleaded guilty. The defendant, however, pleaded not guilty and went to trial.

After being indicted, the defendant represented that he could not afford counsel and he was appointed a Criminal Justice Act (CJA) counsel to represent him. Shortly after his CJA counsel was retained, she accepted a position as an assistant district attorney with an unknown prosecutor’s office. As such, she withdrew from the defendant’s case and he was appointed a new attorney on July 13, 2016. The defendant was not satisfied with his new attorney’s representation. According to the defendant, his new attorney pressured him to plead guilty, did not accept his advice on submitting pre-trial motions, and failed to turn over discovery to him. Consequently, the defendant filed a pro se motion to remove his new attorney from the case. The court held a hearing, and the trial court attempted to resolves their issues. Despite the trial court’s best efforts, it was not able to assuage the defendant’s concerns. The court therefore gave the defendant a new court-appointed attorney.

Unfortunately for the defendant, his relationship with his new attorney was not great, either. On December 5, 2016, the defendant wrote the trial court a letter stating that he had not received requested documents from his new attorney. The trial court then issued an order acknowledging receipt of the defendant’s letter and then forwarded a copy of said order to his attorney. It is unknown if the attorney responded to the defendant.

A few months later, on February 7, 2017, the defendant wrote to the trial court again stating that he still did not have his requested discovery. The trial court then ordered the attorney to file a response to the defendant, however he did not. Shortly thereafter, the defendant filed another motion requesting a new attorney. The trial court did not seek any additional information from the attorney or the defendant. The trial court also did not schedule a hearing to address the defendant’s request or replace the attorney. About a month after the latest request from the defendant seeking new counsel, the attorney wrote to the trial court requesting a continuance. He also stated that he and the defendant had resolved all of their issues and that the defendant wished to continue having the attorney represent him. At the April 7, 2017 pre-trial conference, the defendant did not raise any issues between him and his attorney.

This harmony was short lived. Ten days after the pre-trial conference, the defendant again wrote to the trial court stating that the attorney failed to adequately represent him and to provide him his requested discovery. It is unclear if the trial court made a formal acknowledgment of this letter. Approximately two months later, the defendant wrote to the trial court again complaining of his attorney’s supposed shortcomings. However, the defendant did not specifically request a new attorney. On August 16, 2017 the defendant’s case proceeded to trial with the defendant being represented by his current attorney.

At his trial, multiple witnesses were called to testify against the defendant. These witnesses included his co-defendants (who had already pleaded guilty) and various DEA agents. Additionally, the Government introduced intercepted communications between the defendant and his co-defendants. The testimony showed that although the defendant was not the leader of the organization, he was involved in the drug trafficking. Specifically, the calls showed that he would primarily “bag” up the drugs and that he would also engage in selling on his own behalf. The testimony showed that on multiple occasions the defendant would bag 500 bags of heroin, which amounted to approximately 15 grams. At the conclusion of his trial, the defendant was found guilty of conspiring to distribute and possession with the intent to distribute.

At his sentencing hearing, there was some debate about the weight of drugs that were involved in this case. The defendant argued that only 15 grams of heroin should be attributed to him instead of the 30 grams that the Government alleged. This is significant because U.S.S.G. § 2D1.1(c)(12) governs the guidelines for 20-30 grams of heroin and, it may go without saying, but the guidelines are harsher for 20 grams in comparison to 15 grams. At the conclusion of the sentencing hearing, the defendant was sentenced to 33 months imprisonment and three years of supervised release. After his sentencing, the defendant filed a timely appeal. On appeal, the defendant raised three issues: the trial court’s failure to inquire into the defendant’s motion for appointment of new counsel, the improper admission of one of the DEA agent’s testimony, and finally the trial court’s attribution of more than 20 grams of heroin to the defendant at sentencing. For purposes of this blog, only the defendant’s issue of whether the trial court improperly attributed more than 20 grams of heroin to the defendant at sentencing will be discussed.

Does the Weight/Type of Drugs Matter for Determining a Defendant’s Sentencing Guidelines?

Yes. A defendant’s sentencing guidelines can be dramatically affected by the weight and type of drug that was involved. This is true in Pennsylvania too. In Pennsylvania, a defendant’s guidelines can be substantially different depending on how much heroin he possessed. For example, let’s assume that a defendant is convicted with Possession with Intent to Deliver with 50 grams of heroin and that he has no prior record. His guidelines on the case would be 22-36 months +/- 12. However, if this same defendant was convicted with 49 grams of heroin, his guidelines would be 9-16 months +/- 9 months. As one can see, the weight of the drugs is significant and one gram can make a huge difference in determining one’s sentencing guidelines.

The federal guidelines are no different. In the instant case, the defendant was arguing that the evidence only showed that he possessed 15 grams of heroin. This is significant because per the federal sentencing guidelines, that would make his offense graded as a level 14. However, if the drugs had a weight of 30 grams (as alleged by the Government), then the offense is graded as a 16. Assuming the defendant was a zero (which is unclear from the Third Circuit’s opinion), his guidelines would have been 15-21 months if it was just 15 grams. However, if it was actually 30 grams, then his guidelines would be 21-27 months. Therefore, the weight of drugs can have a significant impact on the guidelines regardless of whether your case is in federal or state court.

The Third Circuit’s Decision

The Third Circuit upheld the defendant’s conviction and sentence. Regarding the weight of the drugs, the Third Circuit found that there was an “ample basis for determining that the defendant was responsible for at least 20 grams of heroin.” The defendant would frequently bag 500 bags of heroin which amounted to 15 grams of heroin. Additionally, the defendant did this more than once. As such, the trial court found that the trial court did not err in attributing at least 20 grams of heroin to the defendant for purposes of sentencing. Therefore, his sentence will stand and he will not get 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 2/27/20 Zak Goldstein 2/27/20

Can a judge give a worse sentence if you file a motion to reconsider the sentence?

The Pennsylvania Superior Court has decided the case of Commonwealth v. Coleman, holding that a trial court may not sua sponte increase a defendant’s sentence after he or she files a post-sentence motion. This decision is significant because there is an all-too-common misconception among defense attorneys that if they file a post-sentence motion for a new trial or a reduced sentence, there is the possibility that the judge could retaliate by increasing the defendant’s sentence. As such, some attorneys are hesitant to file these motions for that incorrect reason. Hopefully, as a result of Coleman, this misconception will be put to rest.

Commonwealth v. Coleman

On August 7, 2017, the complainant was granted a temporary protection from abuse (“PFA”) order against her boyfriend, the defendant. When the PFA was issued, the defendant and the complainant were living together. Notably, the defendant was not on the lease of their shared residence nor did he ever possess a key.

Despite the PFA being issued, the defendant evaded attempts at being officially served with the PFA. Additionally, the defendant continued to go to their shared residence which resulted in the complainant staying at her grandmother’s home until the defendant could be officially served. On August 21, 2017, the defendant was finally served with the PFA order and an eviction notice. When he was served, he was hiding in the complainant’s daughter’s bedroom closet. The complainant was present when an officer offered to have him remove all of his property from the residence which the defendant declined. Because of the defendant’s actions, the complainant made a point to keep all of her windows and doors locked.

On August 25, 2017 at around 9:30 AM, the complainant was returning home when she noticed the defendant coming out of her house holding a bag. She would later testify that she did not observe any exterior sign of forced entry. However, she did testify that a few months prior to this she observed the defendant attempting to climb through her window. The complainant assumed that this is how the defendant entered her residence. She also would testify that she observed the internet box, which was in the defendant’s name, was missing from the house. At the time of this incident, the PFA was still active and thus the defendant did not have permission to be inside the home. The defendant would later testify that he and the complainant had a conversation where she gave him permission to enter the residence.

On August 30, 2017, the complainant went to the defendant’s new residence at his request. When she arrived, she noticed that the defendant’s new girlfriend was living at this residence. The complainant was not let in, but for unknown reasons the police were subsequently called. As a result, the defendant was subsequently arrested and charged with burglary, criminal trespass, criminal mischief, and contempt for violating the PFA order for his actions on August 25, 2017. The defendant elected to have a bench trial where the above testimony was presented and he was found guilty of burglary, criminal trespass, and contempt.

The trial court then conducted a subsequent sentencing hearing on August 23, 2018. At that hearing, it was determined that the defendant had a prior record score of zero and an offense gravity score of seven, which set the sentencing guidelines to 6 to 14 months’ incarceration, plus or minus 6 months. The trial court stated that it had reviewed the pre-sentence investigation report and the text messages that were provided to the court. The defendant’s attorney informed the trial court that the defendant was employed and no longer involved with the complainant. The defendant’s new girlfriend also testified on the defendant’s behalf.

The Commonwealth requested that the defendant receive a sentence of 6 ½ to 23 months’ incarceration for his actions. After arguments, the trial court elected to sentence the defendant to 12 to 24 months of incarceration which was to be followed by two years of probation. In its rationale, the trial court stated that the defendant “tortured” the complainant based on its review of the text messages.

The defendant then filed a post-sentence motion arguing that the court should not have sentenced him to a sentence greater than what was requested by the Commonwealth. In his motion, the defendant specifically referenced the trial court’s comment that the defendant “tortured” the complainant. A hearing was held on August 30, 2018. At that hearing, the defendant rested on his motion and requested that the trial court impose a county sentence.

The trial court then stated that it had reviewed the defendant’s motion and that even though it mentioned the word “torture” during the defendant’s sentencing, it was not a factor in the defendant’s sentence. Also during this hearing, it became known that the defendant had re-violated the PFA. In response to questioning by the trial court, the defendant stated that “[he] didn’t mean to violate the PFA.” It is worth noting that at this hearing, the Commonwealth did not request a modification of the defendant’s sentence nor did it file its own post-sentence motion. Nonetheless, the trial court re-sentenced the defendant to an increased sentence of 14 to 18 months of incarceration, followed by four years of probation. The defendant then filed another post-sentence motion which was denied and then he subsequently filed a timely appeal.

What is a Post-Sentence Motion?

Post-Sentence motions are an incredibly important, and often forgotten, part of criminal defense practice. A post-sentence motion is a request to do any of the following: modify one’s sentence, request a new trial (for a variety of reasons including: the acquisition of newly discovered evidence, prosecutor’s comments during closing argument, challenging the weight of the evidence, etc.), request a motion for judgment of acquittal, and challenge one’s guilty plea. As one can see, post-sentence motions gives the trial court an opportunity to correct a past wrong by either the jury or the trial court itself.

It is worth noting that these motions are frequently denied. However, that does not take away from their importance. They are incredibly important because if you do not file them on time, you can inadvertently waive certain issues for appeal. For example, if you do not file a post-sentence motion, you are not able to challenge the weight of the evidence or the discretionary aspects of an appeal. Therefore, it is imperative that your attorney files a post-sentence motion after your sentencing if you believe that you received an unduly harsh sentence or if you believe that there were serious issues with the evidence that was presented at your trial.

The Superior Court’s Decision

The Superior Court granted the defendant’s appeal. In its decision, the Superior Court relied on prior case law that stated that in order for a defendant’s sentence to be increased after a post-sentence motion is filed, the Commonwealth must also have filed a post-sentence motion. In other words, a trial court is not permitted to increase a defendant’s sentence unless the Commonwealth has filed a post-sentence motion specifically requesting a harsher sentence. Therefore, a defendant cannot be punished simply because he files a post-sentence motion requesting a more lenient sentence. Because the Commonwealth did not file a post-sentence motion in this case, the defendant’s current sentence will be vacated and he will receive his original sentence.

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, 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.