Philadelphia Criminal Defense Blog

Zak Goldstein 6/21/20 Zak Goldstein 6/21/20

PA Superior Court: Car Stop in High Crime Area at Night Not Enough to Justify Search of Defendant's Vehicle

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Superior Court has decided the case of Commonwealth v. Arrington, holding that the police cannot search a person or car for weapons solely because they stopped that person at night in a high-crime area. Instead, there has to be something about the person’s behavior more than the timing and location of the search that would justify such an intrusion on someone’s Fourth Amendment rights.

Commonwealth v. Arrington

On October 25, 2016, Pittsburgh Police officers were on patrol in the Homewood neighborhood of Pittsburgh. At around 2:00 AM, the officers observed the defendant’s vehicle driving towards them in their lane of travel. The defendant’s vehicle remained in the incorrect lane of travel for several seconds before returning to the correct side of the road. The officers suspected that the defendant was driving under the influence of drugs or alcohol and conducted a traffic stop.

When the officers approached the defendant’s vehicle, they witnessed the defendant exhibit several signs of intoxication. The defendant did provide the officers with his driver’s license. However, because of his alleged intoxication, the officers asked the defendant to step out of the vehicle. The defendant did not immediately respond, so the officers physically removed the defendant from the vehicle, conducted a pat down search of him, and placed him in handcuffs. Once the defendant was detained, the officers ran the defendant’s name through the National Crime Information Center (hereinafter “NCIC”). This NCIC search revealed that the defendant had a revoked concealed-carry permit.

The officers then asked if the defendant if he was in possession of any weapons to which the defendant replied he was not. The officers subsequently searched the defendant’s car, without a search warrant, and found a handgun in the backseat. The handgun’s serial number was run through NCIC, and it came back that the weapon had been reported stolen. Police arrested the defendant. The officers then searched the vehicle again as well as the defendant. Upon searching the vehicle, the officers discovered 81 bags of heroin, U.S. currency, a digital scale, and four cell phones. After searching the defendant, they discovered additional U.S. currency and another bag of heroin.

Prosecutors filed various charges for firearms and drug trafficking offenses. Specifically, they charged the defendant with firearms not to be carried without a license (VUFA 6106), possession of drug paraphernalia, possession of a controlled substance, possession with the intent to deliver, and various traffic offenses. Notably, the defendant was not charged with DUI.

Prior to his trial, the defendant filed a motion to suppress arguing that the search of his vehicle was illegal. The trial court denied the motion. The defendant then elected to proceed by way of a non-jury trial where the court found him guilty of the previously mentioned offenses. He received fifteen months of probation. The defendant then filed a timely appeal.

Are the Police Allowed to Search My Vehicle for Weapons?

The police are only allowed to search your vehicle for weapons during a car stop (also known as a protective sweep) if they have reasonable articulable suspicion that you are armed and dangerous. To conduct this search, the officer must reasonably believe that his safety or the safety of others is threatened. If the search is found to be unreasonable, the judicial remedy is to exclude all evidence that derived from this illegal search.

In making this determination, the court will look at the totality of the circumstances to determine whether the officer’s actions were legally justified. Some of the factors that courts will consider are: whether the stop occurred at night; whether the defendant appeared to conceal something; whether the defendant was nervous during the interaction; whether the area the stop occurred is considered a high crime area; whether weapons are in plain view; and other factors that the trial court may deem appropriate.

The Superior Court’s Decision

The Superior Court reversed the trial court’s decision and held that the contraband and weapons found in the defendant’s car should have been suppressed. In making its decision, the Superior Court held that the evidence was not sufficient to establish that the officers reasonably believed that the defendant was armed and dangerous. Although the stop did occur at night, the defendant did not make any furtive movements nor did he display any nervousness. Further, the defendant provided the officers his driver’s license and no weapons were visible when he was initially stopped. According to the Superior Court, the only factors that supported reasonable suspicion was that the stop occurred at night and in a high-crime neighborhood. Therefore, because the defendant “posed no threat to the officers’ safety” the Superior Court reversed the trial court and ordered that the contraband seized from his car should have been suppressed. As such, the defendant’s conviction will be vacated, and he will get a new trial.

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Zak Goldstein 6/17/20 Zak Goldstein 6/17/20

PA Superior Court: Defendant Not Entitled to New Trial Where Jurors Made Racist Comments During Deliberations

The Pennsylvania Superior Court has decided the case of Commonwealth v. Rosenthal, holding that the defendant was not entitled to a new trial solely because members of the jury that convicted him made racist comments during deliberations. This decision is troubling given that jurors in criminal trials should be completely impartial.

Commonwealth v. Rosenthal

The defendant was arrested for allegedly misappropriating money from various nonprofit organizations with which he was involved. Prosecutors charged him with theft by unlawful taking, receiving stolen property, theft by deception, forgery, and misapplication of entrusted property and property of government or financial institutions. A jury found him guilty of all charges.

The trial court sentenced him to 21 years’ probation and ordered that he pay a substantial amount of restitution. The defendant later filed a timely post-sentence motion claiming that he should have received a hearing to determine whether he was entitled to a new trial based on a letter that he received from one of the jurors who expressed concerns about jury deliberations. In this letter, the juror stated that he voted to convict the defendant because he was “worn down” from the other members of the jury. Additionally, the juror stated that he heard ethnic “jokes” from his fellow jurors and that some of the jurors uttered stereotypes about Italian and Irish men.

The trial court denied the defendant’s post-sentence motion. He then filed a timely appeal. In his appeal, the defendant argued that he was entitled to a hearing on whether he should have been granted a new trial because some of the jurors made statements that showed racial and national origin animus. Because of this allegation of racial animus, he argued that the court should find an exception to the “No Impeachment Rule” of jurors and that the trial court erred in not having a hearing on the matter.

What is the No Impeachment Rule?

The “No Impeachment Rule” is found in Rule 606 of the Pennsylvania Rules of Evidence. The rule states that “during an inquiry into the validity of a verdict, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s vote or another juror’s vote; or any juror’s mental processes concerning the verdict.”

The purpose of the “No Impeachment Rule” is to prevent juror testimony regarding what transpired in the jury room because it “would destroy the security of all verdicts and go far toward weakening the efficacy of trial by jury.” However, there are exceptions to this prohibition. A juror is allowed to testify about prejudicial information that was improperly brought to the jury’s attention and whether there was an outside influence that was brought to bear on any juror.

The United States Supreme Court has also weighed in on the “No Impeachment Rule,” too. The Supreme Court has held that if there is evidence of racial animus that motivates a jury’s finding of guilt, the “No Impeachment Rule” may not be applicable. However, there are limitations to this exception, too. According to the Supreme Court, not every “offhand” comment qualifies. In order to overcome the “No Impeachment Rule” on the basis of racial animus, a defendant must show that one or more jurors made statements exhibiting overt racial bias. Further, there must also be a showing that the racial animus was a significant motivating factor in the juror’s vote to convict.

The Superior Court’s Decision

The Superior Court affirmed the defendant’s conviction. The Court highlighted several reasons as to why it agreed with the trial court’s decision not to have a hearing on whether the comments made by the jurors warranted a new trial for the defendant. First, the Superior Court highlighted the fact that there was no evidence that these “jokes” were directed at the defendant. Additionally, the Superior Court emphasized that the record did not indicate that the defendant, his attorney or any of the defendant’s witnesses were either Italian or Irish. As such, according to the Superior Court, there was no evidence to show that racial animus was a significant motivating factor in the juror’s vote to convict. Consequently, the defendant will not receive a new trial, and he will be forced to serve his sentence.

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Zak Goldstein 6/8/20 Zak Goldstein 6/8/20

PA Superior Court: Trial Judge Improperly Usurped Role of Jury By Deciding Gradation of Witness Intimidation Charge

Philadelphia Criminal Lawyer Zak Goldstein

The Superior Court has decided the case of Commonwealth v. Raymond, holding that the trier of fact must make a specific finding of how the defendant “intimidated” a witness before the trial court can impose an enhanced felony gradation for the charge at sentencing. The Superior Court rejected the Commonwealth’s argument that the court could decide the gradation itself in the absence of a specific ruling from the jury.

Commonwealth v. Raymond

Philadelphia police charged the defendant with intimidation of a witness, retaliation against a witness, and possession of an instrument of a crime (“PIC”) based on his interactions with the complainant. Prior to the initiation of this case, the complainant had cooperated with law enforcement officials who charged the defendant’s friend with first degree murder. At the preliminary hearing for the murder case, the complainant testified that the defendant’s friend murdered the victim in that case.

The defendant and the complainant knew each other because they had lived in the same neighborhood for years. As the complainant had agreed to testify against the defendant’s friend at his murder trial, the complainant was placed in a witness protection program and relocated to another neighborhood approximately ten to fifteen minutes away. The complainant testified that he was concerned for his safety in his former neighborhood and no longer kept in contact with friends there because he had been labeled a snitch.

Shortly before the murder trial, the complainant was outside with his wife and his daughter at his residence when the defendant approached in his vehicle. After the defendant exited the vehicle and greeted the complainant’s family, the complainant’s wife and daughter went inside the residence. While the two men were alone, the defendant told the complainant that “I know where you was at. I would have done reach out and touched you, but I wanted to give you an opportunity to make shit right.” The complainant interpreted the defendant’s statement as an effort to convince him not to testify at the murder trial. The complainant then subsequently asked the defendant to leave. The defendant then said that “I’ve been up to the prison to see [defendant’s friend]. I know everything. And you got to make this shit right.”

The complainant then went inside his residence. He watched from his window as the defendant went back to his car, grabbed a black firearm, and tucked it under his shirt. The defendant then said “what are you gonna do?” while he placed his hand on his gun. After the complainant shut his door, he heard the defendant say “I know where you’re at.” The defendant then drove away.

After the defendant drove away, he called the complainant’s cell phone and stated “I shouldn’t have came. I don’t want you to feel threatened.” The defendant then stated that he did not want to be involved as the matter was between the complainant and his friend. As a result of this incident, the complainant relocated his family again to an unspecified address, which required his daughter to change schools. The complainant testified against the defendant’s friend, and that person was convicted of murder.

After the murder trial, the complainant testified about two incidents that occurred that made him feel he was being retaliated against for his testifying against defendant’s friend. First, he saw two men in a van parked outside of his home. One of the men was the defendant’s friend from his old neighborhood. Additionally, the complainant also found a dead bird on his doorstep. This was symbolic because the defendant’s nickname was tweet. The defendant, however, was in custody during both of these incidents.

The defendant went to trial with a jury. The above testimony was presented and he was convicted of all charges with the exception of PIC. It should be noted that there was not a specific finding by the jury as to how the defendant “intimidated” the complainant. This is important because intimidation has various subsections which trigger different gradations - it can range from a misdemeanor carrying only a few years in prison to a felony for which someone can get twenty years.

After his conviction, he filed a motion for extraordinary relief arguing that there was insufficient evidence to support either of his convictions. Regarding the witness intimidation charge, the defendant was originally charged under §4952(a)(1) which, as shown below, does not fit the facts that the Commonwealth alleged. The defendant also argued that there was no evidence to show that he made a specific threat or used violence to retaliate against the complainant for testifying at his friend’s preliminary hearing and thus there was insufficient evidence to convict him of that charge. The trial court agreed that there was insufficient evidence to convict him for the retaliation against a witness charge, however it denied the defendant’s motions on the intimidation of a witness charge. At his sentencing, the defendant was sentenced to six to twelve years’ incarceration. The defendant then filed a timely post-sentence motion which was denied. He then filed a timely appeal to the Pennsylvania Superior Court.

What is an Intimidation of a Witness Charge in Pennsylvania?

The charge of intimidation of a witness is governed by 18 Pa C.S.A. § 4952. The statute provides that a person can be guilty of intimidating a witness:

if with the intent to or with the knowledge that his conduct will obstruct, impede, impair, prevent, or interfere with the administration of justice he intimidates or attempts to intimidate any witness or victim to” do any of the following:

Refrain from informing or reporting to any law enforcement officer, prosecuting official or judge concerning any information, document or thing relating to the commission of a crime.
Give any false or misleading information or testimony relating to the commission of any crime to any law enforcement officer, prosecuting official or judge.
Withhold any testimony, information, document or thing relating to the commission of a crime from any law enforcement officer, prosecuting official or judge.
Give any false or misleading information or testimony or refrain from giving any testimony, information, document or thing, relating to the commission of a crime, to an attorney representing a criminal defendant.
Elude, evade or ignore any request to appear or legal process summoning him to appear to testify or supply evidence.
Absent himself from any proceeding or investigation to which he has been legally summoned.

The penalty for being found guilty of intimidating a witness can be very severe. 18 Pa C.S.A. § 4952 (b)(1) lists how the charge of witness intimidation may be graded:

The offense is a felony of the degree indicated in paragraphs (2) through (4) if:
The actor employs force, violence or deception, or threatens to employ force or violence, upon the witness or victim or, with the requisite intent or knowledge upon any other person.
The actor offers any pecuniary or other benefit to the witness or victim or, with the requisite intent or knowledge, to any other person.
The actor's conduct is in furtherance of a conspiracy to intimidate a witness or victim.
The actor accepts, agrees or solicits another to accept any pecuniary or other benefit to intimidate a witness or victim.
The actor has suffered any prior conviction for any violation of this section or any predecessor law hereto, or has been convicted, under any Federal statute or statute of any other state, of an act which would be a violation of this section if committed in this State.
The offense is a felony of the first degree if a felony of the first degree or murder in the first or second degree was charged in the case in which the actor sought to influence or intimidate a witness or victim as specified in this subsection.
The offense is a felony of the second degree if a felony of the second degree is the most serious offense charged in the case in which the actor sought to influence or intimidate a witness or victim as specified in this subsection.
The offense is a felony of the third degree in any other case in which the actor sought to influence or intimidate a witness or victim as specified in this subsection.
Otherwise the offense is a misdemeanor of the second degree.

The statute requires the Commonwealth to prove specific things in order to obtain an enhanced sentence. If the Commonwealth wants the witness intimidation charge to be graded as a felony of the first degree, it is not sufficient to show that the underlying case was also listed as felony of the first degree or a murder, but they must also show that the defendant “intimidated” the witness in one of the enumerated ways listed in 18 Pa C.S.A. § 4952 (b)(1)(i)-(iv). In the instant case, the defendant argued that because the jury did not specifically find which way the defendant “intimidated” the witness, he was entitled to the least severe grading which is a misdemeanor of the second degree.

The Superior Court’s Decision

The Superior Court agreed with the defendant that his conviction should have been graded as a misdemeanor of the second degree. The reason is because the jury did not make a specific finding as to how the defendant “intimidated” the complainant. Per 18 Pa C.S.A. § 4952 (b)(1), a criminal defendant can only receive an enhanced grading if the trier of fact finds that the defendant “intimidated” a witness through one of those enumerated points. Because the jury did not make a specific finding of how the defendant “intimidated” the complainant, his conviction could not be upgraded to the higher grading. Therefore, the trial court should have found that it was a misdemeanor and sentenced him to a maximum of two years’ incarceration.

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Zak Goldstein 6/4/20 Zak Goldstein 6/4/20

PA Superior Court: Acquittal on New Charges Voids Prior Probation Violation for Same Alleged Conduct

The Pennsylvania Superior Court has decided the case of Commonwealth v. Giliam, holding that where a defendant has been found in violation of probation for a new arrest and is subsequently acquitted in that case, the violation of probation must be vacated as a result of the acquittal. This is a great case as it limits the ability of courts to find defendants in violation of probation for alleged criminal conduct of which they are ultimately acquitted.

The Facts of Gilliam

In Gilliam, the defendant pleaded guilty to terroristic threats and received a sentence of three years’ probation along with other conditions. Shortly after his sentencing, he was arrested and charged with aggravated assault, simple assault, and resisting arrest. The court lodged a probation detainer pending the outcome of the new case. A probation detainer holds a defendant in custody until the new charges are resolved unless the defense files a motion to lift the detainer and the court agrees to do so.

Before the new case could be resolved, the Commonwealth filed a motion to proceed with a probation violation hearing prior to trial. This procedure is called a “Daisy Kates” hearing as those were the names of the defendants in two appellate cases where the courts held that prosecutors could essentially conduct mini trials on the new charges at a probation hearing in order to convince the judge that a violation had occurred and the defendant should be sentenced for new criminal conduct.

Prosecutors like this procedure because violation of probation hearings are less formal, defendants have fewer protections than in a real trial, and the prosecutor must only convince a judge by a preponderance of the evidence instead of a jury beyond a reasonable doubt. These proceedings also may take place before the preliminary hearing, the exchange of discovery, and before the defense has had time to fully investigate the case. Accordingly, the odds are stacked against the defendant at a Daisy Kates hearing. Because Pennsylvania law allows judges almost unlimited discretion in imposing long sentences of incarceration following a probation violation, prosecutors can seek even longer sentences than they often would in the new case.

The Daisy Kates Hearing

The trial court agreed to hold the Daisy Kates hearing. At the hearing, one of the arresting officers and the defendant testified as to what happened. The court found the officer credible and that the defendant had lied. The court then found the defendant in violation of his probation and sentenced him to 2.5 – 5 years’ incarceration. This all took place despite the fact that the defendant was still presumed innocent on the new charges.

The Criminal Appeal to the Pennsylvania Superior Court

The defendant appealed the probation violation sentence to the Pennsylvania Superior Court. Appeals often move slowly, and while the appeal was pending, the defendant was found not guilty at his actual trial on the new charges. The defendant then argued to the Superior Court that the violation of probation sentence could not stand because he had been acquitted of the conduct for which the court found him in violation.

The Superior Court’s Ruling

The Superior Court agreed. The court noted that a defendant’s probation can be revoked in two circumstances: 1) the defendant violated a specific condition of his or probation (a technical violation), or 2) the defendant committed a new crime. A violation of probation does not occur simply when the probation court believes that probation is not working or that the defendant has engaged in antisocial conduct. Instead, there must actually be a new crime or a violation of a specific condition of probation.

Once a court finds a violation of probation, the court may only sentence a defendant to incarceration if: 1) the defendant has been convicted of a new crime, 2) the defendant’s conduct makes it likely that he or she will commit a new crime if not incarcerated, or 3) incarceration is essential to vindicate the authority of the court.

Here, the trial court found the defendant in violation of his probation solely because he had been arrested and charged with new crimes. He did not violate any other condition of his probation. Given that the new charges were the entire basis of the probation violation and that the defendant was subsequently acquitted of those charges, the probation violation could not stand. The court therefore found that the probation revocation sentence was void. The court further suggested that trial courts wait until after disputed criminal charges have been resolved before proceeding with probation violation hearings in order to avoid this perverse outcome of a defendant serving time for a probation violation which never actually happened.

Recent decisions such as this one have made it extremely difficult for the Commonwealth to proceed with probation violation hearings under the Daisy Kates doctrine. In a recent Pennsylvania Supreme Court case, the Court held that illegally seized evidence could no longer be used at such a hearing. Now, the courts have clarified that an acquittal will undo a prior violation of probation finding. Therefore, if you are facing a violation of probation due to an arrest on new charges, you should speak with one of our award-winning criminal lawyers about your options today.

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