Philadelphia Criminal Defense Blog

Zak Goldstein 7/14/20 Zak Goldstein 7/14/20

PA Superior Court: Acquittal on Underlying Reckless Endangerment Charge Does Not Prevent Conviction for Drug Delivery Resulting in Death

Philadelphia Criminal Defense Attorney Zak Goldstein

The Superior Court has decided the case of Commonwealth v. Burton, holding that a defendant may be convicted of Drug Delivery Resulting in Death (“DRDD”) despite being acquitted on the charge of Recklessly Endangering Another Person (“REAP”) in the same trial. This decision is not surprising given that it has long been the rule that with few exceptions, inconsistent verdicts do not usually warrant a new trial. As many criminal defense attorneys can tell you, inexplicable verdicts are not uncommon in jury trials. Because the judge cannot question the jury regarding its motivation, the reasons for these verdicts are usually unknown. Sometimes they are reached out of leniency, while it is also possible that the jury just may not understand the law. Here, the defendant’s acquittal on the REAP charge did not require an acquittal on the related drug delivery resulting in death charge.

Commonwealth v. Burton

On January 29, 2016, police officers responded to a call for an unresponsive person in Pottstown, Pennsylvania. Unfortunately, the officers were too late. When they arrived, the unresponsive person unfortunately had died. The officers found a syringe on the floor near her body. They also found three blue wax bags from the scene which contained fentanyl. The officers also recovered the decedent’s cell phone and prescription pill bottles.

Between 7:00 p.m. and midnight on January 28, 2016, the decedent exchanged text messages with an individual named “Rachel” in her phone. It was later determined that “Rachel” was the defendant. According to a detective who reviewed the text messages and testified at the defendant’s trial, the conversation between the defendant and the decedent was indicative of arranging a drug transaction. The police also recovered surveillance footage that showed the defendant walking near the decedent’s building while talking on his phone. The video footage also showed the defendant entering and leaving the decedent’s house.

On June 22, 2016, the defendant was arrested and charged with DRDD, REAP, criminal use of a communication facility, and possession with the intent to deliver a controlled substance (“PWID”). The defendant filed a motion to suppress the subscriber information relating to his cell phone which was denied by the trial court. Following a two-day trial, a jury found the defendant guilty of DDRD, criminal use of a criminal facility, and PWID. Notably, the jury acquitted the defendant on the REAP charge. On October 31, 2018, the trial court sentenced the defendant to an aggregate term of 13 to 35 years in a state correctional institution. The defendant then filed a timely appeal. On appeal, the defendant argued that he could not have been convicted of DDRD because he was acquitted on the charge of REAP.

What is Drug Delivery Resulting in Death in PA?

The crime of DDRD is governed by 18 Pa. C.S.A. § 2506. The statute provides:

A person commits a felony of the first degree if the person intentionally administers, dispenses, delivers, gives, prescribes, sells or distributes any controlled substance or counterfeit controlled substance in violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L. 233, No. 64),1known as The Controlled Substance, Drug, Device and Cosmetic Act, and another person dies as a result of using the substance.

The crime of DRDD is unique because unlike most crimes, it has two separate mental states that the Commonwealth must prove beyond a reasonable doubt to convict the defendant. First, the defendant must have intentionally sold the contraband. Next, the death of the decedent must be the reckless result of the actions of the defendant. Further, the penalty for DRDD can be quite severe. If a defendant is convicted of DDRD, they can face a maximum sentence of forty years. Although DRDD is not usually charged in Philadelphia state court, it is a very common charge in the surrounding counties (i.e. Bucks County) and is particularly serious when charged in federal court. Therefore, if you are charged with DDRD it is imperative that you have a highly skilled attorney representing you.

The Superior Court’s Decision

The Superior Court rejected the defendant’s argument that he could not be convicted of DRDD because he was acquitted on the charge of REAP. Unfortunately, these confusing and inconsistent jury verdicts are fairly common, and appellate courts are extremely reluctant to apply an acquittal on one charge to prevent a conviction on another except under extremely limited circumstances. Here, the Superior Court expressly rejected the argument that REAP is a lesser included offense of DDRD. The Superior Court found that the recklessness mental state is satisfied by the delivery of a drug whose dangers are widely known. Fentanyl is widely known to be extremely dangerous and frequently results in overdoses. Therefore, the defendant’s conviction for DRDD will stand, and he will be forced to serve his sentence.

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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 6/30/20 Zak Goldstein 6/30/20

PA Supreme Court Finds Use of Medical Marijuana Not a Probation Violation

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Gas v. 52nd Judicial District, Lebanon County, holding that judges and probation officers in Pennsylvania cannot issue blanket orders prohibiting probationers from using lawfully obtained medical marijuana. This is decision is a huge win for probationers because more and more people are being prescribed medical marijuana to treat their underlying physical and mental health conditions. There is a wide body of research that shows that medical marijuana can be very therapeutic. However, many conservative counties had moved to prohibit probationers from using marijuana even when the treatment has been provided by a doctor. This decision will allow probationers to receive the treatment that they need without fear from retribution by their probation officers or back judges.

Gass v. 52nd Judicial District, Lebanon County

In 2016, the Pennsylvania General Assembly enacted the Medical Marijuana Act. In a declaration of policy, it recognized that scientific evidence suggests that medical marijuana is one potential therapy that may mitigate suffering in some patients and also enhance their quality of life. The Medical Marijuana Act specifically stated that possession of medical marijuana is legal in Pennsylvania. It also stated that a person cannot be subjected to arrest, prosecution, or penalty in any manner on the basis of medical marijuana.

Three years after the passage of the Medical Marijuana Act, the 52nd Judicial District (Lebanon County) announced its “Medical Marijuana Policy” which prohibits the active use of medical marijuana while a defendant is under supervision by the Lebanon County Probation Services Department. In the instant case, the defendant was a probationer who was being supervised by Lebanon County’s probation department. She claimed that she suffered from a serious and debilitating medical condition. The defendant attempted other therapies, but they were not successful in treating her underlying condition. She then secured lawful authorization to use medical marijuana. However, because of Lebanon County’s Policy, she was not allowed to use it. The defendant subsequently filed a petition in the Commonwealth Court to challenge the validity of Lebanon County’s Policy.

The Commonwealth Court found that it lacked jurisdiction to hear the case, so it transferred jurisdiction to the Pennsylvania Supreme Court. In response to the defendant’s petition, the 52nd Judicial District argued that the General Assembly did not intend for the Marijuana Medical Act to override the court’s ability to supervise probationers and parolees. Further, the 52nd Judicial District argued that its probation services office has experienced disruptions and persistent difficulties when supervising probationers and parolees using medical marijuana. Finally, the 52nd Judicial District argued that it should prevail because its probationers must comply with all state and federal criminal laws and that probationers must refrain from using alcohol or “any legal or illegal mind/mood altering chemical/substance.”

Can you use medical marijuana while on probation in PA?

The Pennsylvania Supreme Court found that Lebanon County’s Policy violated the Medical Marijuana Act and held that Lebanon County probationers are allowed to use medical marijuana so long as it was lawfully obtained. In making its decision, the Pennsylvania Supreme Court reviewed the language of the Act. The Court found that although people with criminal records may be prohibited from delivering medical marijuana to patients, they can still qualify as patients under the Medical Marijuana Act. Further, the Legislature specifically prohibits individuals who are in custody at a correctional institution to be permitted to use medical marijuana.

This is significant because the Medical Marijuana Act omits any reference to individuals on supervision (i.e. probation). Therefore, the Legislature could have specifically prohibited probationers from using medical marijuana, but it chose not to. Additionally, the fact that they specifically addressed individuals in custody shows that the Legislature considered individuals involved in the criminal justice system and chose not to exclude probationers from using medical marijuana. Therefore, the policy violates the act, as did a revised policy which put the burden on the probationer to prove in a court hearing that the marijuana was medically necessary despite a doctor having already so determined. Because its policy violates the Medical Marijuana Act, Lebanon County can no longer enforce its policy and the defendant will be permitted to use medical marijuana while on supervision.

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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

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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