Philadelphia Criminal Defense Blog

Zak Goldstein 4/4/20 Zak Goldstein 4/4/20

PA Superior Court: Police Properly Conducted Inventory Search of Vehicle Where Unlicensed Driver Parked at Gas Pump During Stop

The Pennsylvania Superior Court has decided the case of Commonwealth v. Peak, holding that police properly conducted an inventory search of a car which had to be towed because the driver had parked at a gas pump and did not have a valid driver’s license.

Zak Goldstein - Criminal Lawyer in Philadelphia

The Facts of Peak

In Peak, the defendant was charged with Possession with the Intent to Deliver following a traffic stop. On March 3, 2017, a police officer was on routine patrol in a marked police car. While he was driving, he saw a Buick Sedan out in the intersection that seemed to be confused about whether it was turning left or right. The car had no turn signal and eventually turned left. The officer made a U-turn to conduct a traffic stop. Before he could, the car pulled up to a gas pump at a local convenience store near the intersection. The officer pulled behind the Buick and ordered the driver of the Buick to remain in the car.

The officer approached the defendant and asked for his license and insurance. He immediately smelled an odor of burnt marijuana. Nonetheless, he ran the defendant’s license and learned that the defendant’s driver’s license had been suspended. He then told the defendant to get out of the car and grab any of his belongings. He asked to whom the car belonged, and the defendant replied that it belonged to his sister. The officer told the defendant that he would have to have the car towed, and the defendant did not make any objections to the officer. He also told the defendant that he was not planning on arresting him but would send citations in the mail.

The Inventory Search of the Car

The officer then called a private tow company and began conducting an inventory search of the defendant’s car. He felt that it was necessary to tow the car because it was not in a legal parking spot but was instead parked directly in front of an operable gas pump. This was impeding the business’s ability to sell gas as normal. He felt that it was important to conduct an inventory search to document any valuables in the vehicle and protect the police from any claims concerning missing or damaged property. The defendant did tell the officer that he was trying to get someone to come get the car, and the defendant did begin making phone calls. Nonetheless, the tow truck arrived within ten minutes.

Prior to the tow truck taking the car, the officer conducted the inventory search and found bundles of heroin in the car. He then arrested the defendant, searched him, and found $1,700. Prosecutors charged the defendant with Possession with the Intent to Deliver based on the amount of the heroin.

The trial court denied the motion to suppress, found the defendant guilty of PWID, and sentenced him to three to six years’ incarceration followed by a period of probation. The defendant eventually appealed to the Pennsylvania Superior Court.

The Pennsylvania Superior Court’s Ruling on Appeal

The Superior Court denied the appeal. First, the court found that the defendant did have standing to bring a motion to suppress and that he had a reasonable expectation of privacy in the vehicle despite the fact that he did not own it. He had borrowed it with his sister’s permission and had been legally driving it at the time of the stop. Therefore, he had a reasonable expectation of privacy in the car despite the fact that he was not the registered owner. He had also testified that although it was not registered to him, he had purchased it himself with his own money and then put it in his sister’s name.

What is an inventory search?

Nonetheless, court denied the motion because it found that the police properly conducted an inventory search of the vehicle. Under Section 6309.2 of the Pennsylvania Motor Vehicle Code, police officers are directed to immobilize or tow a vehicle when they find that a person has operated that vehicle on a highway or trafficway without a valid driver’s license. When the police have to tow a vehicle, they are permitted to conduct an inventory search of the vehicle. An inventory search is permissible when 1) the police have acted lawfully in impounding the vehicle and 2) the police have acted in accordance with a reasonable, standard policy of routinely securing and inventorying the contents of the impounded vehicle.

The critical question when litigating these types of motions is whether or not the police actually had to tow the vehicle. In general, if the police can just leave the vehicle on the street in a lawful parking spot or allow someone else to come get it, then they do not necessarily have the authority to tow it and conduct an inventory search. At the same time, if the vehicle is jeopardizing public safety in some way or has not been parked legally, then the police may have the authority to tow the vehicle. If they have that authority, then they are allowed to first search the car even without a warrant.

The decision to tow the vehicle must be based on public safety; it cannot be motivated by a desire to search the car on a hunch. Thus, in Commonwealth v. Laganella, the Pennsylvania Supreme Court found that evidence should be suppressed where the police had no reason to tow a car from a lawful parking spot. Here, however, the car was parked blocking a gas pump, preventing customers from getting gas. The owner did not want his pump blocked, and there was no one else there to drive the vehicle away immediately. The fact that someone might have been able to come at some point in the future did not change the analysis. Therefore, the Superior Court found that the police properly towed the vehicle and therefore had the right to conduct an inventory search. Accordingly, the Superior Court denied the criminal appeal.

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Zak Goldstein 3/31/20 Zak Goldstein 3/31/20

PA Superior Court: Hospital Interrogation May Require Miranda Warnings

The Pennsylvania Superior Court has decided the case of Commonwealth v. Harper, holding that trial counsel provided the ineffective assistance of counsel in failing to 1) move to suppress the defendant’s confession for lack of Miranda warnings, 2) object to the introduction of the defendant’s confession at trial based on the corpus delicti doctrine, and 3) object to impermissible lay opinion testimony from the arresting officer that the defendant’s gun shot wound must have been self-inflicted.

The Facts of Harper

In Harper, police officers charged the defendant with persons not to possess firearms (VUFA 6105) and firearms not to be carried without a license (VUFA 6106) after he made incriminating statements to a police officer while in the hospital. At trial, the Commonwealth presented the testimony of a local police officer who testified that he and his partner responded to a report of a shooting. They were told to go to the hospital to speak with the defendant. When they arrived, the defendant was in a hospital bed and had received medical treatment for a gunshot wound. The officer saw that the defendant had a gunshot in his knee area.

The officer testified that based on his experience and his observation of the angle and location of the wound, the defendant had a self-inflicted gunshot wound. This would be a problem for the defendant with respect to the gun charges because it would establish that he must have possessed a firearm illegally in order for the wound to have been self-inflicted. The criminal defense attorney failed to object to this opinion testimony from the officer.

Suspicious that the wound had been self-inflicted, the officer began questioning the defendant. The officer told the defendant that he was going to perform a gunshot test on his hands to see if he had recently fired a gun. He was bluffing, but the defendant believed him. He also told the defendant that he was going to check his clothes for residue, as well. The officer then actually administered a fake test by swabbing his hands with a Q-tip and saline. The defendant promptly confessed to shooting himself, thereby establishing the illegal gun possession.

After successfully obtaining this full confession, the police decided that it was then time to administer Miranda warnings. The defendant received his Miranda warnings and then confessed again. The United States Supreme Court has held that this kind of two-step Miranda warning procedure is unconstitutional.

The police never found the gun. There was no evidence at trial that anyone saw the defendant shooting anyone, getting shot at, or possessing a gun. The parties stipulated that he had a felony conviction which made him ineligible to possess a firearm. He did not testify. The court found the defendant guilty and sentenced him to three to six years’ incarceration followed by three years’ probation.

The PCRA Petition

Instead of filing a direct appeal to the Superior Court, the defendant pursued a Post-Conviction Relief Act Petition in the Court of Common Pleas. In the Petition, the defendant alleged that he received the ineffective assistance of counsel from his trial attorney. Specifically, he alleged that his attorney was ineffective in 1) failing to move to suppress the statement on Miranda grounds, 2) failing to object on corpus delicti grounds, and 3) failing to object to the officers opinion testimony regarding the wound being self-inflicted. The trial court denied the PCRA Petition, and the defendant appealed to the Pennsylvania Superior Court.

Are Miranda warnings required for hospital interrogations?

First, the defendant alleged that his criminal defense attorney should have moved to suppress his hospital confession on the grounds that police failed to provide him with Miranda warnings prior to questioning him. In general, the police must provide Miranda warnings prior to questioning a suspect when the suspect is in custody AND the police are going to ask questions or make statements reasonably likely to elicit an incriminating statement. Here, it was clear that the police asked questions which were designed to obtain incriminating information. Therefore, the real issue was whether the defendant was in custody for Miranda purposes when they questioned him at the hospital given that they had not transported him to the police station, put him in handcuffs, or told him that he was under arrest.

The Superior Court found that he was in custody. A person is in custody when the officer’s show of authority leads the person to believe that he is not free to decline the officer’s request or otherwise terminate the encounter. A court must consider the totality of the circumstances, including factors such as “the basis for the detention; the duration; the location; whether the suspect was transported against his will, how far, and why; whether restraints were used; the show, threat, or use of force; and the methods of investigation used to confirm or dispel suspicions.”

The Superior Court found that the defendant was in custody for Miranda purposes. First, the officers believed that he was likely guilty and so it is likely that their behavior would have reflected that belief. Second, the officers did not simply ask questions. Instead, they issued commands that the defendant submit to the fake gunshot powder residue test. Third, based on the defendant’s condition and the commands issued by the officers, a reasonable person in the defendant’s position would not have felt free to leave. Therefore, the defendant was in custody for Miranda purposes, and a motion to suppress his statement would have been successful. The Court found that trial counsel was ineffective in failing to move to suppress the statement because such a motion would have been granted. The Court reversed the defendant’s conviction as there was no other evidence linking him to possession of a firearm.

What is corpus delicti?

Second, the PCRA Petition also alleged that the trial lawyer was ineffective in failing to object to the admission of the statement on corpus delicti grounds. Corpus delicti is a doctrine of criminal law which stands for the proposition that the Commonwealth must show that a crime actually occurred before using a defendant’s statement to convict him at trial. In order to prove corpus delicti, the Commonwealth must show that the evidence is more consistent with a crime than with an accident. This protects a defendant from being convicted based solely on a statement where it is possible that no crime actually occurred. In order for a statement to be admissible, the prosecution must prove the corpus delicti by a preponderance of the evidence. In order for the statement to actually be considered by the fact finder, the Commonwealth must prove a crime occurred beyond a reasonable doubt.

Here, the Commonwealth failed to establish the unlawful possession of a firearm with any evidence other than the defendant’s statement. It showed only that the defendant had been shot. It did not show, without his statement, that he had actually possessed the gun or that anyone ineligible to do so had possessed the gun. Accordingly, it was just as possible that someone else who could possess a gun lawfully had shot the defendant. Therefore, the Commonwealth failed to establish corpus delicti. Had the defense attorney objected on this basis, the court would have sustained the objection, and the confession would have been inadmissible. Accordingly, the Superior Court found the defense attorney ineffective on this basis and would have reversed the conviction for this reason, as well.

May a police officer testify that a gunshot wound is self-inflicted?

Finally, the defendant alleged that his trial attorney provided the ineffective assistance of counsel in failing to object to the officer’s opinion testimony that the wound was self-inflicted. Under Pennsylvania Rule of Evidence 701, some opinion testimony from witnesses is admissible where the testimony is a) rationally based on the witness’s perception, b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

The defendant alleged that the officer’s testimony violated part c of the rule in that it was really based on scientific, technical, or other specialized knowledge that would require the officer to be qualified as an expert in gunshot wounds. The Commonwealth never sought to tender the officer as such an expert or establish that he really had the qualifications to provide this type of opinion. Therefore, the Superior Court found that the defense attorney was ineffective in failing to object to this improper opinion testimony that the wound was in fact self-inflicted. Given that the Court agreed with the defendant with respect to all three allegations in the PCRA Petition, it reversed his conviction and remanded the case to the trial court for a new trial.

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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.

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