Philadelphia Criminal Defense Blog

Zak Goldstein 11/12/20 Zak Goldstein 11/12/20

PA Superior Court Allows Individual Challenges to PA's Sex Offender Registration Statute

The Pennsylvania Superior Court has decided the case of Commonwealth v. Commonwealth v. Muhammad, holding that, in some cases, SORNA creates an unconstitutional presumption that a defendant will commit future sex offenses. This is a huge decision because it may provide individual defendants with an opportunity to challenge their registration requirements even if they are convicted of a sex crime. This is particularly important because some crimes require that, if convicted, a defendant register under Pennsylvania’s Megan’s Law even when the crime was not sexual in nature. In Muhammad, the Court found that the individual defendant should not have been required to register a a sex offender despite her SORNA conviction because she had no prior record, was unlikely to re-offend, and was convicted of interfering with the custody of a minor, which is not actually a sex crime.

Commonwealth v. Muhammad

The defendant’s sister and her former partner shared custody of their three-year-old child. In 2014, pursuant to a valid custody order, the former partner was to have primary physical custody of the child and the defendant’s sister was to have custody of her on the weekends. Both parties had written notice that if any party felt that another party had violated the order, they were to file a motion in court.

The former partner was incarcerated between April 2015 and June 2016. During this time, the child was in the care of the defendant’s sister. After she was released from prison, the former partner contacted the defendant’s sister so that she could see the child and spend time with him. Upon agreement, the former partner picked up the child in Philadelphia. There was also an agreement that she would return him that following Sunday. While the child was in her care, the former partner noticed that the child had bruises. As such, she decided that she would not return the child to the defendant’s sister.

On that Monday, the defendant’s sister arrived at the former partner’s house in Reading, Pennsylvania. She was accompanied by the defendant and her friend. The defendant’s sister grabbed the child and tried to put him in the vehicle. A struggle ensued with other members of the former partner’s family. Eventually the defendant drove away with her sister, the child, and the former partner’s 17-year-old daughter. While driving, the 17-year-old daughter began yelling for help. The defendant told the 17-year-old daughter that she was not going home.

The Reading Police were called and they attempted to call the defendant as she was driving away. Eventually, an officer was able to speak with the defendant and he told her to bring the children back home. The defendant told the officer that she was not going to do that. She would also not let the 17-year-old daughter speak to the police either. Eventually, the defendant drove to the Chestnut Hill train station where they gave the three-year-old child to the defendant’s mother and sister. The defendant then drove to the bus station in Philadelphia. The defendant bought the 17-year-old a bus ticket back to Reading. The 17-year-old then borrowed a stranger’s phone and called the former partner and told her what happened. The Reading police arrived in Philadelphia and drove the 17-year-old home. The next day, the three-year-old child was returned to the former partner.

The defendant was subsequently arrested and charged with interference with custody of children, false imprisonment, unlawful restraint, and conspiracy to commit these offenses. The defendant elected to proceed by bench trial where she was subsequently found guilty of all charges. Unfortunately, because of her conviction for interference with the custody of children, she was required to register under SORNA despite the fact that she had not even committed a sex crime.

Prior to sentencing, the defendant filed a motion raising a series of constitutional challenges to SORNA. The trial court denied the defendant’s motion. She was subsequently sentenced to three to twenty-three months’ imprisonment and was forced to register under SORNA. Notably, at her sentencing, the trial court found that this was the defendant’s first contact with the criminal justice system and this incident was “totally out of character for her.”

The defendant then filed a timely post-sentence motions which were denied. She then filed a timely appeal. On appeal, she argued that SORNA was unconstitutional as it created an irrebuttable presumption that those who are convicted of the enumerated offenses “pose a high risk of committing additional sexual offenses.” The defendant further argued that this deprives individuals like her of the fundamental right to reputation.

The Superior Court’s Decision

The Superior Court reversed the lower court and held that the defendant did not have to register under SORNA. The Court found that the defendant’s appeal amounted to an “irrebuttable presumption” challenge. An irrebuttable presumption is unconstitutional when it 1) encroaches on an interested protected by the due process clause, 2) the presumption is not universally true, and 3) reasonable alternative means exist for ascertaining the presumed fact. The Superior Court then applied this test to the specific facts of the defendant’s case.

In doing so, the Superior Court found that “SORNA encroaches on a due process right of [the defendant].” According to the Superior Court, registering as a sex offender creates a presumption that the defendant is a dangerous adult who is likely to commit further sexual offenses. This designation would affect her future employment prospects and limit her ability to obtain education and housing. Consequently, she would have a difficult time functioning as a productive member of society. Further, the Superior Court also stated that the current SORNA statute fails to provide the defendant with a meaningful opportunity to rebut the claim that she is a danger to reoffend.

The Superior Court then reviewed the record to see if whether SORNA’s presumption that sexual offenders present a high risk of recidivating was applicable for the defendant. In this case, there was no evidence that the defendant intended to commit any sexual acts towards anyone. Further, this was her first conviction for any crime. As the trial court stated during her sentencing hearing, this was “out of character” for the defendant. Therefore, there was no evidence to suggest that she was at a high risk to commit any sexual offenses.

Finally, the Superior Court found that there are other reasonable alternatives exist to determine whether someone is at risk of being a sex offender. According to the Superior Court, the Commonwealth could have utilized the Sexual Offenders Assessment Board to determine whether the defendant was at risk for engaging in sexual misconduct. They did not do that in this case. Therefore, the Superior Court found that the facts of the defendant’s case satisfy all the requirements that she was unconstitutionally presumed to be a sex offender. Therefore, the order that she must comply with SORNA is vacated and she will no longer have to register as a sex offender.

It is not totally clear yet what the long term effects of this ruling will be or if it will be appealed to the Pennsylvania Supreme Court. However, based on this ruling, it may be possible to challenge the registration requirements at sentencing for a defendant who has been convicted of a SORNA offense.

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

Challenging a State Court Conviction in Federal Court in Pennsylvania

28 U.S. Code § 2254 provides one last chance for appealing a wrongful state court conviction by filing a petition in federal court. This type of petition would typically be filed once all other appeals have been exhausted. This means we may be able to help you even if the appeals courts have upheld a conviction on direct appeal and a post-conviction relief act petition filed in state court has been denied.

A criminal defendant who received the ineffective assistance of counsel in their state court trial, on direct appeal, or in the first round of state court PCRA proceedings may be eligible for relief in federal court. It is important to note that federal habeas petitions are extremely complicated and that the deadlines for filing them are very strict, so it is important to consult with an experienced defense attorney as soon as possible if you are considering filing one for your case. This article does not discuss all of the potential issues that a defendant may face in filing a successful federal habeas petition.

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Zak Goldstein 10/29/20 Zak Goldstein 10/29/20

PA Supreme Court: Police Can't Search Your Phone Just Because You're Near Drugs and Guns

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Johnson, holding that a defendant’s proximity to drugs and guns is not sufficient probable cause to obtain a search warrant for a defendant’s cell phone. This decision is significant because cell phones often contain very private and intimate details about our lives. Additionally, they can also obtain very incriminating details that prosecutors will use against defendants at trial. Thankfully, Johnson places a higher burden on the government to access these details, and so this is a big win for both privacy advocates and criminal defendants.

Commonwealth v. Johnson

In 2014, Pittsburgh police officers received a 911 call from an anonymous caller. The call stated that shots were fired inside an apartment. The officers subsequently went to this apartment and as they approached the apartment, they smelled a strong odor of burning marijuana coming from inside of the apartment and could hear people talking, too. The officers then knocked on the door and announced their presence. They continued knocking for several minutes with no response.

Eventually, a woman opened the door and the officers entered the apartment and conducted a protective sweep and detained five individuals, one of them being the defendant. During their sweep, the officers observed in plain view two bricks of heroin on a shelf. They also recovered three stolen firearms hidden together above the apartment’s hot water tank. The five detained individuals were placed under arrest. Officers then secured the apartment and obtained a search warrant. When they searched the defendant, they found two cell phones on his person. During their search of the apartment, the officers recovered an additional 717 bags of heroin and three cell phones. Four months after they recovered the cell phones, the officers requested and obtained an additional search warrant for the cell phones that they recovered, including the phones found on the defendant.

The defendant was charged with Possession with the Intent to Deliver (“PWID”), VUFA § 6105, Knowing and Intentional Possession of a Controlled Substance (“K/I”), and Small Amount of Marijuana (“SAM”). The defendant then filed a motion to suppress the drugs, cell phones, and firearms that were recovered in the apartment because he argued they were illegally obtained. This motion was denied. After this motion was litigated, the Commonwealth turned over additional discovery to the defendant. Specifically, they provided him with text messages that were recovered from his phone that “referenced stamp bags of heroin which had the same stamp as [the] bags recovered from the apartment.”

The defendant filed a subsequent motion to suppress these text messages, arguing that the search warrant should never have been granted given that the officers lacked probable cause to search his phone. The defendant argued that the police were going through his phone to figure out who the guns and drugs belonged to and that this was an improper attempt to ascertain that information. Unfortunately for the defendant, the suppression court did not agree with him and denied this motion to suppress too.

The defendant then elected to proceed by a bench trial. He was found guilty of PWID and K/I, but was found not guilty of VUFA 6105, and SAM. He then filed an appeal with the Pennsylvania Superior Court which was denied. According to the Superior Court, the fact that the defendant “was found ‘in close proximity to firearms and evidence of the distribution of heroin’ established a probable cause to believe more evidence relating to narcotics distribution would be found on his cell phone.” The defendant then filed a petition for allowance of appeal to the Pennsylvania Supreme Court who agreed to hear his case. For purposes of this blog, only the search warrant pertaining to the defendant’s cell phones will be addressed.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court reversed the lower courts’ decisions and remanded the defendant’s case for a new trial. In its decision, the Pennsylvania Supreme Court rejected the notion that because there was probable cause to arrest the defendant for constructively possessing the drugs and guns that that there was also probable cause to search his cell phone for evidence of those same offenses. The Court stated that there must be a link or some facts to show that the cell phone contains evidence of criminality.

In the instant case, the Court found that there was no such link. There was nothing in the affidavit to suggest that the defendant was personally in possession of the drugs or that he was even aware they were in the apartment. Additionally, because the police originally went to the apartment on the basis of an alleged emergency, the police did not have the support of a long-term drug trafficking investigation to bolster their affidavit. The only thing that the affidavit of probable cause established was that the defendant was present in a place where illegal contraband happened to be found. This was not sufficient to get a search warrant for a cell phone. Therefore, the defendant should receive a new trial without the illegally seized evidence.

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Zak Goldstein 10/22/20 Zak Goldstein 10/22/20

PA Superior Court: NJ Aggravated Assault Conviction Not a Prior "Strike"

The Pennsylvania Superior Court has decided the case of Commonwealth v. Johnson, holding that a defendant’s conviction for third-degree aggravated assault in New Jersey does not qualify as a prior “strike” offense under 42 Pa. C.S.A. § 9714. This decision is significant for people who have convictions in other states because it requires a trial judge to analyze said conviction to determine whether it qualifies as a strike offense in Pennsylvania. As this decision shows, “strike” offenses are very serious and can result in lengthy mandatory minimum sentences at sentencing for subsequent offenses.

Commonwealth v. Johnson

In 2018, the complainant was working as a cashier at a convenience store in Chester County, Pennsylvania. At about 7:45 p.m., a customer approached the counter with a bag of chips. The complainant asked for twenty-five cents to which the man then proceeded to drop the chips and pull a gun on him. The complainant told him not to “play” unless he wanted to go to jail and advised him that there were cameras in the store. The man then left the store with the chips and the complainant followed him demanding payment. The man then re-entered the store, put the chips back on the counter, and told the complainant that he made a mistake and did not want the chips. The man then left the store.

The complainant did not immediately report the robbery. The following day when his manager came into the store, the complainant told him what happened. The two men then viewed the security camera video and saved the video footage of the robbery. Later that day, the man who committed the robbery entered the store. The cashier recognized this man as the robber from the night before. Upon seeing the complainant, the man abruptly left the store. The complainant reviewed the footage and confirmed it was the person who robbed him the night before and called the police.

About five minutes later, an officer with the Chester Police Department arrived at the convenience store. The officer reviewed the footage and sent out a “flash” including a description of the individual and what he was wearing. The officer then left the store and began to search for the suspect himself. About fifteen minutes after he left the store, he came across the defendant. The officer detained the defendant and the complainant made an identification of him. The defendant was subsequently arrested and charged with robbery and possessing an instrument of crime (“PIC”).

The defendant proceeded by way of a jury trial where he was convicted of both charges. He was then sentenced to a term of ten to twenty years of imprisonment. The reason he received that sentence was because the trial court determined that this was a “second strike offense” based on his prior New Jersey conviction for aggravated assault graded as an indictable offense (felony) of the third-degree. Afterwards, the defendant filed a timely appeal raising multiple issues. For purposes of this blog, only his sentencing issue will be addressed.

What is Pennsylvania’s Strike Statute?

42 Pa. C.S.A. § 9714 is the statute that governs second and third strike offenses. It states:

(a) Mandatory sentence.--
(1) Any person who is convicted in any court of this Commonwealth of a crime of violence shall, if at the time of the commission of the current offense the person had previously been convicted of a crime of violence, be sentenced to a minimum sentence of at least ten years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. Upon a second conviction for a crime of violence, the court shall give the person oral and written notice of the penalties under this section for a third conviction for a crime of violence. Failure to provide such notice shall not render the offender ineligible to be sentenced under paragraph (2).
(2) Where the person had at the time of the commission of the current offense previously been convicted of two or more such crimes of violence arising from separate criminal transactions, the person shall be sentenced to a minimum sentence of at least 25 years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. Proof that the offender received notice of or otherwise knew or should have known of the penalties under this paragraph shall not be required. Upon conviction for a third or subsequent crime of violence the court may, if it determines that 25 years of total confinement is insufficient to protect the public safety, sentence the offender to life imprisonment without parole.

42 Pa. C.S.A. § 9714(g) also lists the offenses that qualify as a “strike” offense. It should be noted that not every crime of violence qualifies as a strike offense. For example, only two of the nine subsections of Pennsylvania’s aggravated assault statute qualify as a “strike” offense. Thus, it can be inferred that these mandatory minimum sentences are only reserved for the most serious crimes.

The Superior Court’s Decision

The Pennsylvania Superior Court remanded the defendant’s case for a new sentencing hearing. In making its decision, the Court analyzed New Jersey’s aggravated assault statute. New Jersey defines third-degree aggravated assault as when a person “[a]ttempts to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury. The New Jersey Code of Criminal Justice defines “significant bodily injury” as: “bodily injury which creates a temporary loss of function of any bodily member or organ or temporary loss of any of the five senses.” This is different from Pennsylvania’s aggravated assault statute which requires “serious bodily injury” which is defined as “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

This distinction proved to be important for the Pennsylvania Superior Court. It found that the defendant’s New Jersey conviction was not serious enough to warrant a classification as a prior “strike” offense. Therefore, the statutes were not equivalent, and a conviction under the statute did not constitute an equivalent offense. Therefore, the defendant did not qualify for an enhanced sentence under 42 Pa. C.S.A. § 9714. As such, the Superior Court vacated his sentence, and his case will be remanded for re-sentencing.

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