Philadelphia Criminal Defense Blog

Zak Goldstein 10/11/20 Zak Goldstein 10/11/20

PA Supreme Court Eliminates Public Record Presumption for Newly-Discovered Evidence PCRAs

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Small, eliminating the “public records presumption” with respect to Post-Conviction Relief Act (“PCRA”) litigation. The public-records presumption often allowed courts to dismiss PCRA Petitions based on newly-discovered evidence on the theory that a petitioner should have found out about potential evidence contained in records which were theoretically publicly available at an earlier date, thereby rendering petitions untimely. PCRA Petitions based on newly-discovered evidence generally must be filed within one year of the date on which the Petitioner learned of the new evidence. Of course, inmates don’t really have access to public records, and even when they have lawyers, their lawyers may not be aware of certain new evidence or facts. Therefore, the presumption unfairly resulted in the dismissal of countless petitions.

Commonwealth v. Small

The defendant and his co-defendant committed an armed robbery of a drug dealer in the co-defendant’s home in 1981. During the incident, the defendant stabbed the drug dealer and the decedent. The decedent died from his wounds. The defendant and his co-defendant were tried together in 1983. At their trial, the drug dealer testified and identified the defendant and his co-defendant as the assailants. The drug dealer also testified that the defendant stabbed him during the robbery, while the co-defendant was armed with a shotgun. During the struggle, the drug dealer was able to escape through a kitchen window.

The co-defendant testified in his own defense and provided a different account of the events. He admitted that he and the defendant intended to rob the drug dealer and the decedent. However, he denied wielding a shotgun. He testified that he and the defendant entered the apartment and ordered the decedent and the drug dealer on the floor. While tying up the drug dealer, he jumped up and struck the co-defendant. The defendant then came to the co-defendant’s aid and hit the drug dealer three times “with what sounded like punches.” The defendant then “punched” the decedent who cried out that he had been stabbed. The co-defendant stated that he left the apartment in a panic, but then they realized he had left his hat behind. The two men then went back to the apartment. They entered the apartment by breaking a kitchen window whereupon the co-defendant retrieved his hat and the defendant carried off a television set.

The defendant also testified in his own defense. He denied any participation in the crimes. He even denied making an incriminating statement that he had given to detectives which stated that he served as a lookout outside of the apartment. The defendant stated that the detectives approached him in the interrogation room with a statement already prepared and instructed him to sign it, but he refused to do so. At the conclusion of the trial, the jury found both the defendant and the co-defendant guilty of second-degree murder, robbery, aggravated assault, and criminal conspiracy. The defendant was sentenced to life imprisonment. His sentence was later affirmed by the Superior Court.

The PCRA Petition

Over the course of several decades, the defendant made several attempts to obtain relief under the PCRA. His first three PCRA petitions were denied and their dismissals were affirmed on appeal. The instant case has to do with his fourth PCRA petition which was filed in 2014. In this petition, the defendant alleged that the co-defendant testified during his own post-conviction proceedings in a manner that was substantially different than from his trial testimony. The defendant testified that he learned this in 2013 while conducting legal research in the prison library. Due to what the PCRA court characterized as “some administrative and inexplicable error,” the defendant’s petition was neither assigned to nor received by the PCRA court until April 2017.

The PCRA court issued a notice of its intent to dismiss this PCRA petition without conducting an evidentiary hearing. The defendant responded to the notice, contending that his averments satisfied the newly discovered fact exception to the PCRA’s time bar. The PCRA court reconsidered its intent to dismiss the defendant’s petition. The PCRA court stated that the defendant obtained this “newly discovered” evidence based on his reading of a 1998 Superior Court decision that affirmed the denial of the co-defendant’s PCRA petition. In that opinion, the court cites the co-defendant’s testimony from his evidentiary hearing. It stated that the co-defendant testified that the defendant killed the decedent for personal reasons, specifically because his wife had an affair with him.

This was obviously different than what the co-defendant testified to at their trial. Based on this representation, the PCRA court appointed the defendant an attorney to represent him. His attorney was then able to obtain transcripts from evidentiary hearings conducted from the co-defendant’s PCRA proceedings. Consequently, the defendant then filed an amended petition citing these transcripts and alleging that he was entitled to a new trial in light of the after-discovered evidence prong of the PCRA statute. It should be noted that both the Commonwealth and the defendant stipulated that these transcripts constituted “public records.”

In making its decision, the PCRA court gave significant weight to the evidence revealed in the 1993 transcripts. The court found the transcripts relevant because the co-defendant gave another version of events that was different than what he said at their trial. Based on these discrepancies, the PCRA court concluded that this amounted to newly discovered evidence and he was entitled to a new trial. The Commonwealth then filed a timely appeal.

On appeal, the Pennsylvania Superior reversed the PCRA court. Specifically, the Superior Court found that because these transcripts from the 1993 hearing were a matter of public record and therefore could not be considered “unknown” to the defendant. Further, the Superior Court found that the co-defendant’s testimony from the 1993 hearing was not significantly different than his trial testimony. Consequently, the defendant was not entitled to PCRA relief. The defendant then filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court, and the Court agreed to hear the case.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court eliminated the public record presumption of the PCRA. The Court analyzed the plain language of the newly discovered evidence prong of the PCRA and found that it only has two elements: “that the facts upon which the claim is predicated were unknown to the petitioner,” and that those facts “could not have been ascertained by the exercise of due diligence.” Further, the Court stated that “[t]his language plainly calls for a circumstance-dependent analysis of the petitioner’s knowledge, not that of the public at large.” In other words, the language of the newly discovered evidence prong of the PCRA has no requirement that the evidence be of public record and that this presumption was a judicially crafted presumption that was inconsistent with the plain language of the statute.

Unfortunately for the defendant, the elimination of the public records presumption did not mean that he would get a new trial. The Pennsylvania Supreme Court adopted the Superior Court’s finding that the co-defendant’s testimony from his 1993 hearing was not significantly different than what he testified to at their trial. The Court acknowledged that there were inconsistencies and omissions between what he testified to in 1993 and what he testified to at trial. Nonetheless, the co-defendant’s testimonies were consistent enough and therefore held that the defendant is not entitled to a new trial. As such, he will be forced to serve the remainder of his sentence. However, this opinion will help many petitioners going forward as they will be able to get into court by filing a PCRA even if the new evidence appeared in public records to which they do not have access outside of the one year window for filing a newly-discovered evidence petition.

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Zak Goldstein 10/4/20 Zak Goldstein 10/4/20

PA Superior Court: Police Can Stop You If You Don't Use Turn Signal To Switch Lanes

The Superior Court has decided the case of Commonwealth v. Gurung, holding that the police may legally stop you if you fail to use your turn signal when you switch lanes. This case is another example of how police can stop you while driving for an assortment of reasons. Therefore, individuals should take great caution while driving because even the slightest slip up can result in you being arrested and facing criminal charges.

Commonwealth v. Gurung

The Pennsylvania State Police (“PSP”) barracks located in Erie, Pennsylvania received a phone call from a local casino stating that the defendant and two others were heavily intoxicated and had just recently left their premises. The caller gave a description of the defendant’s vehicle to the police. A short time later, a PSP trooper spotted the defendant’s vehicle and followed it on Interstate 90. The trooper stated that he saw the defendant fail to activate his turn signal when changing lanes and moving onto an off-ramp. He also said that the defendant moved from the left lane to the right lane without a turn signal and then moved from the center lane to the right lane without using his turn signal. Notably, the defendant never drove in an unsafe manner.

The trooper then stopped the defendant’s car. It was unclear if he performed any field sobriety tests on the defendant. Nonetheless, the defendant ended up charged with DUI along with the summary offenses of Turning Movements and Required Signals, Careless Driving, and Unlawful Activities. The defendant then filed a motion to suppress. At the suppression hearing, the above facts were established by the Commonwealth. Additionally, the trooper testified that he believed he had probable cause to stop the defendant because he did not use his turn signal when he changed lanes. He further testified that he believed the defendant’s failure to use his turn signal while changing lanes violated 75 Pa. C.S.A. § 3334. The trooper further testified that his failure to use his turn signal while switching lanes was the only reason why he stopped the defendant.

At the conclusion of the hearing, the defendant argued that the language of § 3334 does not require drivers to activate a turn signal when changing lanes of traffic. Specifically, the defendant argued that § 3334(b) was the controlling subsection which omits any requirement to use a turn signal when switching lanes. The suppression court agreed and found that the Commonwealth failed to establish that the trooper had probable cause to stop the defendant and thus granted his motion to suppress. The Commonwealth then filed a timely appeal.

Can the Police Stop You Just For Failing to Signal in PA?

§ 3334 provides:

(a) General rule.--Upon a roadway no person shall turn a vehicle or move from one traffic lane to another or enter the traffic stream from a parked position unless and until the movement can be made with reasonable safety nor without giving an appropriate signal in the manner provided in this section.

(b) Signals on turning and starting.--At speeds of less than 35 miles per hour, an appropriate signal of intention to turn right or left shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning. The signal shall be given during not less than the last 300 feet at speeds in excess of 35 miles per hour. The signal shall also be given prior to entry of the vehicle into the traffic stream from a parked position.

(c) Limitations on use of certain signals.--The signals required on vehicles by section 3335(b) (relating to signals by hand and arm or signal lamps) shall not be flashed on one side only on a disabled vehicle, flashed as a courtesy or “do pass” signal to operators of other vehicles approaching from the rear, nor be flashed on one side only of a parked vehicle except as may be necessary for compliance with this section.

(d) Discontinuing turn signals.--Turn signals shall be discontinued immediately after completing the turn or movement from one traffic lane to another traffic lane.

The Superior Court’s Decision

The Superior Court reversed the lower court’s order granting the motion to suppress. In making its decision, the Superior Court reviewed the language of § 3334. The Superior Court found that the plain language of § 3334(a) provides that “no person shall…move from one traffic lane to another…unless and until the movement can be made with reasonable safety nor without giving an appropriate signal in the manner provided in this section.” As stated above, the defendant argued that § 3334(b) was the controlling subsection. However, the Superior Court rejected this argument because if they adopted his position it would “read[] the phrase ‘move from one traffic lane to another’ out of subsection 3334(a). That we cannot do.” Specifically, the Superior Court stated that you must read the entire statute together and not just focus on one specific subsection. Consequently, the order granting the defendant’s motion to suppress is reversed and the Commonwealth will be able to use whatever evidence that was suppressed by the lower court against him at trial.

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Zak Goldstein 9/25/20 Zak Goldstein 9/25/20

PA Superior Court: Odor of Marijuana No Longer Provides Automatic Probable Cause for Search of Car

Philadelphia Criminal Defense Lawyer Zak Goldstein

Can the police search your car if they smell marijuana in Pennsylvania?

The Superior Court has decided the case of Commonwealth v. Barr, holding that the smell of marijuana alone does not always give police officers probable cause to search a car. This decision is very significant because police officers often argue that they had probable cause to search someone’s property (usually an automobile) because they smelled marijuana. Further, suppression courts often treated the smell of marijuana as an automatic basis for upholding the legality of a search. That all changed when Pennsylvania legalized medical marijuana. Now, because the odor of marijuana could come from legally-possessed marijuana, police may not search a car solely because they detect an odor of marijuana. Instead, they must have specific reasons giving rise to probable cause to believe that a crime is ongoing or that they will find evidence of a crime if they search the car.

Commonwealth v. Barr

Two Pennsylvania State Police (“PSP”) troopers were on routine patrol in a marked police unit in Allentown, Pennsylvania. The troopers observed a silver Chrysler 300 making a U-Turn and they decided to follow the car. While following the car, they noticed the car was driving at a “fast rate of speed.” They then noticed that the car failed to stop at the solid white stop line on a road near the stop sign. Consequently, the troopers stopped the car for this alleged motor vehicle violation. After the troopers activated their lights and siren, the car pulled over immediately.

Upon approaching the car, one of the troopers immediately noticed the smell of burnt marijuana. The defendant’s wife was driving the vehicle, while the defendant was seated in the front passenger seat and his co-defendant was sitting in the backseat. The troopers then asked the defendant’s wife to exit the vehicle so they could interview her and confirm that she was not under the influence. A short time later, one of the troopers got into an argument with the defendant. Eventually backup officers arrived and the defendant exited the vehicle. The argument ended after the defendant exited the vehicle.

After he exited the vehicle, the troopers advised the defendant that they would search the automobile. The defendant then presented the trooper with a medical marijuana identification card that allows him to possess and ingest medical marijuana pursuant to this license. Despite the defendant showing the troopers his card, they still searched the car due to the odor of marijuana. The troopers found a “marijuana shake,” a sealed Ziploc plastic bag containing marijuana, baggies, and a loaded handgun. The defendant was subsequently arrested and charged with Persons Not to Possess a Firearm, Possession of Firearm Without a License, and Possession of a Small Amount of Marijuana.

Prior to trial, the defendant filed a motion to suppress. At the suppression hearing, the above facts were placed on the record. Additionally, the defendant’s doctor testified at this hearing. He testified that the defendant had an underlying health issue that qualified him for a medical marijuana card. Further, he testified that that there is no distinguishable physical difference between the green leafy medical marijuana and regular marijuana that is purchased on the streets. Also, he testified that there is no difference in odor when one smokes medical marijuana utilizing a vaping pen and the odor of smoking marijuana without a vaping pen. Finally, the fact that 143,000 patients in Pennsylvania are legally allowed to obtain, possess, and ingest medical marijuana was also placed on the record.

At the conclusion of the hearing, the trial court granted the defendant’s motion to suppress. In its decision, the trial court did not consider the smell of marijuana in its analysis as to whether the troopers had probable cause to search the automobile. The Commonwealth then filed a timely appeal. On appeal, they argued that the trial court erred when they granted the defendant’s motion to suppress because the officers had probable cause to search the automobile because the troopers smelled marijuana.

The Superior Court’s Decision

The Superior Court affirmed the lower court’s decision. In in its decision, the Superior Court first reviewed prior decisions that addressed this issue. The Superior Court stated that contrary to the Commonwealth’s position, there never was a per se rule that the odor of marijuana was always sufficient to establish probable cause. Next, the Court examined the realities of the Medical Marijuana Act. As a result of its passage, hundreds of thousands of law-abiding Pennsylvanians could potentially emit an odor of marijuana. As such, the argument that an individual is committing a crime solely on the basis of the smell marijuana was severely weakened because of the Medical Marijuana Act. The Court went on to say that if they allowed a per se rule that allowed officers to search one’s person or property solely because they smelled marijuana, it would subject law-abiding citizens to impermissible intrusions.

However, the Superior Court did state that the smell of marijuana can play a factor to determine whether the police had probable cause. Marijuana is still technically illegal unless an individual has been granted permission to possess it under the Medical Marijuana Act. Therefore, the lower court was wrong to not give it any weight when making its decision as to whether the officers had probable cause to search the automobile. Consequently, the defendant’s case will be remanded back to the lower court to review the record again to determine whether the troopers had probable cause to conduct their search. The court may give the odor of marijuana some weight, but the odor of marijuana alone no longer justifies a search.

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Zak Goldstein 9/19/20 Zak Goldstein 9/19/20

PA Superior Court: Speedy Trial Rule Requires Commonwealth to Make Reasonable Efforts to Extradite Defendant

The Superior Court has decided the case of Commonwealth v. Morgan, holding that PA’s speedy trial rule, Rule 600, applies to defendants who are incarcerated in other states and the Commonwealth must be diligent in extraditing them back to Pennsylvania to stand trial. The Commonwealth may not simply wait until a defendant finishes serving a lengthy sentence in a another state before proceeding on criminal charges in Pennsylvania. Morgan holds that the Commonwealth must take active steps to bring the defendant to trial even when he is incarcerated in a different state.

Commonwealth v. Morgan

In October 2008, while serving a sentence in Bucks County, the defendant absconded from a work release program. Shortly thereafter, the Bucks County Sherriff’s Office (“BCSO”) filed a written complaint charging the defendant with escape, and a magisterial district judge issued a warrant for his arrest. About a week later, the BCSO received notice that the defendant was being held on homicide and firearm charges in the state of Georgia.

A preliminary hearing was held in Bucks County, in absentia, and the defendant was declared a fugitive. The BCSO sent a fax to Georgia authorities requesting that a detainer be placed on the defendant and that extradition proceedings be commenced. An official in Richmond County, Georgia responded stating that the defendant waived extradition. However, the official advised the BCSO that if the defendant was convicted and sent to jail for his Georgia charges, they would need to secure a separate detainer with the Georgia Department of Corrections and then restart the extradition process.

In February 2010, the defendant was found guilty of involuntary manslaughter and possession of a firearm during the commission of a crime in Georgia. He was sentenced to a term of ten to twenty years’ incarceration in a Georgia prison. After his conviction, the Georgia authorities did not reach out to the BCSO or any Commonwealth employee. However, no BCSO or Commonwealth agent contacted the Georgia authorities for almost two years after his conviction.

In September 2012, the BCSO sent an email to the Richmond County’s Sherriff’s office requesting an update on the defendant’s case. The BCSO received a response that same day stating that he was now housed in a prison in Valdosta, Georgia and that in order to have a detainer lodged against him they would need to reach out to the Georgia Department of Corrections. The BCSO subsequently responded to this email and said that they would like a detainer lodged against him. However, the BCSO did not actually contact the Georgia Department of Corrections. Based on the record, the BCSO did not take any further action on the defendant’s case for six years.

In June 2018, the BCSO faxed a detainer request to the Georgia Department of Corrections. The Georgia Department of Corrections was able to confirm receipt of their email and then lodged a detainer against the defendant. By this point, the defendant had been incarcerated in Georgia for nearly a decade and had been scheduled to be released on October 15, 2018. The BCSO took him into custody on October 25, 2018.

Back in Pennsylvania, the defendant filed an omnibus motion arguing that his case should be dismissed pursuant to Rule 600(a)(2)(A). Specifically, he argued that the Commonwealth had failed to exercise due diligence in trying to bring him to trial. Following a hearing, the trial court denied his motion. In April 2019, the defendant then elected to have a bench trial where he was found guilty of escape. He was then sentenced three and a half years to seven years’ incarceration. The defendant then filed a timely appeal.

What is Rule 600?

Rule 600(A) states that a defendant must be brought to trial within 365 days of the filing of the criminal complaint and if he is not then the case should be dismissed. The purpose of Rule 600 is to protect a defendant’s speedy trial rights, while also protecting society’s right to effective prosecution of criminal cases. If a defendant is not tried within 365 days of the filing of the complaint, Rule 600 requires that the court determine whether the Commonwealth exercised due diligence and whether the circumstances that caused the delay of a defendant’s trial were beyond the Commonwealth’s control.

For the purposes of computing time under Rule 600, the court will determine whether or not the Commonwealth was duly diligent in litigating its case against the defendant. In other words, when the Commonwealth causes the delay (i.e. discovery is outstanding or they have not been able to contact a necessary witness) that time ordinarily goes against the Commonwealth. However, if the defense causes the delay, then that time is not factored in for purposes of 600. If the Commonwealth violates Rule 600, then the Court should dismiss the case with prejudice. Rule 600 is generally enforced more strictly in Philadelphia than in the surrounding counties, but it does apply throughout the state.

The Superior Court’s Decision

The Superior Court reversed the defendant’s conviction because they found that the Commonwealth was not duly diligent in bringing the defendant to trial. The Commonwealth filed its criminal complaint against the defendant in October 2018. As such, the Commonwealth was required to bring the defendant to trial within 365 days of that filing. However, the defendant was not brought to trial until April 2019, which was more than ten years after the expiration of the defendant’s mechanical run date under Rule 600.

The Superior Court found that it did not matter that the defendant was incarcerated in another state. It does not appear that Georgia would have extradited the defendant while his homicide charges were pending, and thus this time would not have counted against the Commonwealth. However, the Court found that there was no evidence that Georgia would not have cooperated and sent the defendant to Pennsylvania after he was convicted. Consequently, the Superior Court found that the Commonwealth did not act with due diligence because they waited more than eight years after he was convicted to reinitiate extradition proceedings against the defendant. Thus, the Commonwealth does not necessarily have to take steps to move for extradition while charge s are pending in another state, but once a defendant has been sentenced, the Commonwealth must try to extradite the defendant. Therefore, the defendant’s conviction is vacated and he will be released from prison.

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