Philadelphia Criminal Defense Blog

Zak Goldstein 12/22/20 Zak Goldstein 12/22/20

Do the police need a search warrant to search a car in PA?

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Alexander, holding that police generally need a search warrant in order to search a motor vehicle in Pennsylvania. In this case, the Court overruled the case of Commonwealth v. Gary, in which a plurality of the Court had recently held that police did not need a search warrant to search a car in Pennsylvania. This is an important decision and significant victory for privacy rights as it prevents the police from searching a car without a warrant. It makes it more difficult for the police to search a car based merely on a hunch as they must now go through the process of drafting an affidavit of probable cause and presenting it to a judge prior to searching a car. In some cases, this can be done telephonically, but Philadelphia typically does not have those procedures in place.

Do the police need a warrant to search a car for a federal case?

It is important to note that federal law and Pennsylvania law are now very different in terms of whether the police need a search warrant prior to searching an automobile. The United States Supreme Court has repeatedly held that the police and federal agents do not need a warrant prior to searching a car pursuant to the federal automobile exception. Instead, officers only need probable cause. This means that if law enforcement officers at the state, federal, or local level may search your car without a search warrant and then use that evidence against you in federal court as long as they had probable cause cause for the search. In federal court, it is still possible to challenge an illegal search, but the police do not have to get a warrant first. However, the vast majority of cases are prosecuted in state court. Therefore, this opinion will affect most people.

Can the police ever search a car without a warrant in PA?

Under this new case, however, evidence from a warrantless search may not be used against you in Pennsylvania state court unless the police either obtain a search warrant based on probable cause or have exigent circumstances which justify their inability to obtain a search warrant in a timely manner. Exigent circumstances are something like an emergency - it means that there was something about the situation that made the search urgent either due to officer safety concerns or concerns that evidence could be lost. If the police have exigent circumstances, even under Alexander, they do not need a search warrant prior to searching a car so long as they have also probable cause. But in general, police in Pennsylvania should now obtain a search warrant prior to searching a car in most cases. If they do not get a search warrant and find some sort of contraband or incriminating evidence, that evidence could be suppressed by filing a motion to suppress prior to trial. Much of the litigation will likely now focus not only on whether police had probable cause but also whether it was really an emergency that they search the vehicle prior to presenting a warrant to a judge.

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It is also important to note that this case is likely retroactive - meaning that if you have charges pending against you from a search which took place prior to the case being decided, you may still be able to challenge the search based on this new case if the police did not get a warrant. Therefore, if you are facing criminal charges or are under investigation in Pennsylvania or New Jersey, you should speak with a Philadelphia criminal defense lawyer today. Call 267-225-2545 for a free criminal defense strategy session.

Zak Goldstein 12/18/20 Zak Goldstein 12/18/20

Third Circuit Court of Appeals: Fingerprints on Movable Object Insufficient for Criminal Conviction

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Third Circuit Court of Appeals has decided the case of Travillion v. Superintendent Rockview SCI, granting the defendant’s petition for habeas corpus and holding that fingerprints on a movable object, without additional evidence showing how or when they got there, may not be sufficient to convict a defendant. This opinion is important both because it is relatively rare for a federal court to overrule a state court on sufficiency grounds and because it highlights the problems with fingerprint evidence. In addition to not being nearly as reliable as it appears on TV, fingerprint evidence also cannot always tell the judge or jury how or when the fingerprints got on an object. If the fingerprints could have been left on an object at some point other than when the crime was committed, then they are not sufficient to show the identity of the person woh committed the crime.

Commonwealth v. Travillion

The defendant was charged with robbery. At trial, the Commonwealth presented two witnesses to prove their case. The first witness was a manager of a clothing store. The manager testified that one day, she entered the store, but she was running late because of inclement weather. She was the first one to enter the store. After she entered the store, she turned around to lock the door when she noticed someone behind her. This person was wearing a winter jacket and was holding a Manila folder in his left hand. The manager told the individual that the store was not open yet, but he pushed his way inside. At this point, the alarm was going off and the individual instructed the manager to turn off the alarm.

The individual then grabbed the manager by the arm and told her to open the safe near the cash registers. While in the process of getting the money, the individual left the Manila folder on the ground. After he determined that there was no more money in this safe, the robber then instructed the manager to take him to another safe that was located in her office. The manager would later testify that “nobody, but the district manager and my other assistants knew about the second safe.” In the process of going to the office, the robber forcefully ripped a sliding accordion door almost off its hinges. In total, the robber took approximately $6,400. During the robbery, the manager began to cry and said that she had children to which the robber said “I know.” The individual then instructed the manager to escort him to the back door. The robber then ran from the building across a parking lot to a four-door Ford Taurus which had the motor running and entered the front passenger side of the vehicle and then pulled away.

Once the robber left, the manager locked the doors and called the police. She then noticed the Manilla folder that was on the ground. She was unable to identify the robber because his face had been covered. She described the robber as very well spoken and approximately 5’10. Additionally, he was in his mid-twenties, had an athletic built, and based on his voice “led [her] to believe that he could have been African-American” though she did not know for sure. It should be noted that at the time of his arrest the defendant was 6’1, weighed 170 pounds, African-American, and had a medium frame build.

After the police arrived, they were able to get fingerprints from the folder as well as some papers that were inside the folder. According to the Commonwealth, after comparing the lifts from the folder to the defendant’s, they were able to determine that they belonged to the defendant. The Commonwealth was also able to retrieve a fingerprint from the door, but the fingerprint did not come back as the defendant’s. At trial, the detective would testify that the only fingerprints identified as belonging to the defendant were those on the Manila folder and one of the papers in the folder. The detective would further testify that people can touch things without leaving a fingerprint, and that it was possible that someone other than the defendant touched the Manila folder, but did not leave fingerprints. It should also be noted that there was no evidence presented at his trial that the defendant had any connection to the store (i.e. he was not a current/former employee or had a friend/relative who worked there).

The defendant proceeded by way of jury trial and he was found guilty of robbery and was subsequently sentenced to a mandatory 10 to 20 years’ incarceration that was to run consecutively to the separate sentence of life without the possibility of parole that he was serving as a result of a second-degree murder conviction. The defendant then filed a post-sentence motion which was denied. He then filed an appeal with the Pennsylvania Superior Court arguing that the evidence was insufficient to convict him.

The Pennsylvania Superior Court denied his appeal and his request for re-argument before the Superior Court en banc was denied. He then filed a petition for allowance of appeal with the Pennsylvania Supreme Court which was also denied. He then filed a Post-Conviction Relief Act (“PCRA”) petition which was denied and the Superior Court affirmed the denial of his PCRA petition too.

After he exhausted all of his remedies with the Pennsylvania courts, the defendant then filed a pro se habeas petition in federal court. A Magistrate Judge issued a Report and Recommendation (“R&R”) recommending dismissal of the defendant’s petition. With regard to the insufficient evidence claim, the R&R pointed to the testimony that the robber carried the Manila folder with his left hand into the store and that the defendant’s fingerprints from the left hand matched those on the folder and paper. The District Court then adopted the R&R as the opinion of the court and dismissed the habeas petition. The defendant then filed an appeal with the Third Circuit Court of Appeal and requested a certificate of appealability. The Third Circuit granted the certificate of appealability on the issue of whether the state court’s decision finding sufficient evidence to convict was a clearly unreasonable application of constitutional law.

The Third Circuit’s Decision

The Third Circuit reversed the defendant’s conviction and held that he could not be retried for the charge of robbery. In its decision, the Third Circuit found that the only evidence against the defendant that actually linked him to the robbery were his fingerprints on the Manila folder and paper, which the Third Circuit described as “easily movable objects.” What stood out to the Third Circuit was what evidence was missing in the case against the defendant. Specifically, the Third Circuit found that it was significant that the defendant’s fingerprints were not found anywhere else at the crime scene. Additionally, “[t]here was no evidence that the folder and paper were unavailable to [the defendant] that the folder and paper were unavailable to the defendant prior to the robbery, no evidence as to the age of the prints, and no evidence as to how long the prints could remain on the folder and paper after their impression.” The Commonwealth was also unable to prove when the prints were placed on the folder and the paper. Further, the manager’s description did not match the defendant’s physical characteristics. Finally, despite there being ample evidence that this was an inside job, there was no evidence presented at trial that the defendant had any connection whatsoever to the store.

Accordingly, the Third Circuit found that the evidence was not sufficient to convict the defendant and that it was objectively unreasonable for the previous courts to hold that a rational juror could have convicted the defendant beyond a reasonable doubt. Further, because the Third Circuit found that the evidence was insufficient to convict him, the defendant does not need to worry about being prosecuted again for this crime because double jeopardy applies to his case.

This case illustrates that there are a number of different ways to appeal a criminal conviction. In general, appeals start out with a direct criminal appeal to the Pennsylvania Superior Court. If the Superior Court denies the appeal, then it is possible to file a Petition for Allowance of Appeal to the Pennsylvania Supreme Court and later potentially the United States Supreme Court. Both the Pennsylvania Supreme Court and the United States Supreme Court accept very few cases.

If the direct appeals are unsuccessful, then the next round of appeals comes in the form of a Post-Conviction Relief Act Petition with the trial judge in state court. Those petitions typically allege the ineffective assistance of counsel. In other words, a PCRA Petition will usually allege that a defendant should receive a new trial because of something that the trial lawyer or appellate lawyer did wrong. Again, if the trial court denies the PCRA Petition, then the PCRA can be appealed to the Superior Court and Supreme Court. If that is unsuccessful, there is one more round of appeals in federal court. It is then possible to file a federal habeas petition pursuant to 28 USC § 2254. In that petition, it may be possible to challenge the prior rulings of the state courts as well as the ineffective assistance of PCRA counsel. Here, the defendant was successful in getting the Third Circuit to find that the state courts have ignored the constitution by finding the defendant guilty and upholding his convictions despite insufficient evidence to show that he committed the crime beyond a reasonable doubt. If you or your loved one may have been improper.y convicted in state or federal court, our criminal appeals lawyers can help you understand your appeal rights.

Facing Criminal Charges? We Can Help.

Philadelphia Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

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

PA Supreme Court: Police Officer Cannot Testify About "Normal" Response to Sexual Assault Unless Qualified as Expert

Philadelphia Criminal Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Jones, holding that a police officer cannot testify about child sexual abuse victims’ responses and behaviors unless they are properly qualified as an expert. This decision is significant because prosecutors frequently like to use police officers to bolster their complainants’ testimony by having police officers testify as to why they are offering inconsistent testimony, especially in sexual assault cases. Commonwealth v. Jones now holds that although a police officer may testify about typical victim behavior under some circumstances, which the Court did not define, the officer must first at least be properly qualified as an expert before they can offer such testimony.

Commonwealth v. Jones

The defendant was charged with rape, involuntary deviate sexual intercourse with a person under sixteen years of age, unlawful contact with a minor, aggravated indecent assault, sexual assault, statutory sexual assault, and other offenses following allegations by his stepdaughter that he repeatedly sexually abused her over a period of several years. According to the complainant, the first instance of abuse occurred when she was thirteen years old. The defendant told her that no one would believe her if she came forward. However, when the complainant turned 17, she told her mother about the alleged abuse.

The defendant was subsequently arrested and tried by a jury. Throughout the trial, defense counsel focused on discrepancies in the complainant’s version of events in an attempt to undermine her credibility. These discrepancies and inconsistencies related to the timing and the location of these assaults. In an attempt to bolster the complainant’s credibility, the Commonwealth called a detective who had interviewed the complainant during the course of his investigation.

During his direct examination, the detective testified that children can have difficulty remembering all the times they were sexually abused. Defense counsel objected to this and argued that this amounted to expert testimony and the detective had not been qualified as an expert. The trial court overruled the objection and allowed the testimony to come in. At the conclusion of the trial, the defendant was subsequently convicted of the aforementioned charges and was sentenced to twenty-seven to sixty years’ imprisonment. The defendant then filed a post-sentence motion which was denied. He then filed a timely appeal to the Superior Court.

The Superior Court’s Decision

On appeal, the defendant argued that the trial court abused its discretion by allowing the detective to testify that child sexual assault victims are often unable to recall specific details and dates of sexual assaults. He further argued that this evidence was actually expert testimony because it was not within the scope of knowledge possessed by the average layperson. Finally, because the detective had not been qualified as an expert witness, the trial court should have not allowed this testimony to be presented at his trial.

In a 2-1 decision, the Superior Court affirmed the defendant’s conviction. The majority explained that challenges to the admissibility of evidence typically rest within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. The Superior Court found that the detective’s testimony “constituted permissible lay opinion testimony because it was based on information within the detective’s personal knowledge and experience.” Consequently, the Commonwealth did not need to qualify the detective as an expert in order for him to testify. However, the dissenting opinion argued that 42 Pa. C.S. § 5920 was the dispositive statute for this question. According to the dissent, this statute overrules the previous decision in Commonwealth v. Dunkle which held that opinions regarding responses by child sexual assault victims fall within the knowledge of laypersons and thus a witness did not have to qualify as an expert to testify about the behaviors of these victims. Undeterred, the defendant then filed a petition for allowance of appeal which the Pennsylvania Supreme Court granted.

What is 42 Pa. C.S. § 5920?

42 Pa. C.S. § 5920 is titled “Expert testimony in certain criminal proceedings.” It provides:

(a) Scope.--This section applies to all of the following:
(1) A criminal proceeding for an offense for which registration is required under Subchapter H of Chapter 97 (relating to registration of sexual offenders).1
(2) A criminal proceeding for an offense under 18 Pa.C.S. Ch. 31 (relating to sexual offenses).
(b) Qualifications and use of experts.--
(1) In a criminal proceeding subject to this section, a witness may be qualified by the court as an expert if the witness has specialized knowledge beyond that possessed by the average layperson based on the witness's experience with, or specialized training or education in, criminal justice, behavioral sciences or victim services issues, related to sexual violence, that will assist the trier of fact in understanding the dynamics of sexual violence, victim responses to sexual violence and the impact of sexual violence on victims during and after being assaulted.
(2) If qualified as an expert, the witness may testify to facts and opinions regarding specific types of victim responses and victim behaviors.
(3) The witness's opinion regarding the credibility of any other witness, including the victim, shall not be admissible.
(4) A witness qualified by the court as an expert under this section may be called by the attorney for the Commonwealth or the defendant to provide the expert testimony.

It should be noted that 42 Pa. C.S. § 5920 was passed after Commonwealth v. Dunkle was decided. Dunkle was a Supreme Court decision which barred expert testimony on typical victim behaviors. As one can see by reading the statute, subsection (2) states “[i]f qualified as an expert, the witness may testify to facts and opinions regarding specific types of victim responses and victim behaviors” which strongly suggests that one must be an expert in order to testify about such things. Therefore, the dissent argued that this statute superseded it and was the controlling authority. The Pennsylvania Supreme Court was then tasked with deciding whether this position was correct and whether the trial court improperly admitted the detective’s testimony.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court reversed the lower courts’ decisions and granted the defendant a new trial. First, the Court held that 42 Pa. C.S. § 5920 at least partially overruled Commonwealth v. Dunkle. Next, the Court reviewed the facts of the instant case and the applicable law. It held that “testimony from a law enforcement officer concerning child victims’ typical behaviors and responses to sexual abuse, when based on that officer’s training and experience, falls within the realm of expert testimony.” Further, the Court continued that the average juror is not privy to the complex psychological dynamics surrounding sexual abuse and thus testimony about such issues cannot be qualified as lay testimony.

The Court found that, in the instant case, the detective provided insights gained through specialized occupational training and experience which was not within the average layperson’s knowledge. As such, the trial court committed an error when it permitted this testimony to be introduced at the defendant’s trial. The next step in the Court’s analysis was to determine whether the inclusion of this testimony amounted to harmless error.

In this case, the Court found that permitting the detective to testify about the stepdaughter’s ability to recall specific details did not qualify as harmless error. Specifically, the Court held that because the Commonwealth emphasized the detective’s training and experience, the jury may have given the detective’s testimony undue weight. Further, because the stepdaughter’s credibility was central to the case, allowing the detective to bolster her credibility by offering his testimony on the behaviors of sexual assault victims wrongfully prejudiced the defendant. Therefore, because the defendant was unfairly prejudiced by this testimony, the Court vacated his conviction, and he will receive a new trial.

Facing Criminal Charges? We Can Help.

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. We can also help you with an appeal. 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 11/28/20 Zak Goldstein 11/28/20

How do I get my stuff back from the police in PA?

Petitions for Return of Property in Pennsylvania Criminal Cases

A common question that we receive from clients who have been charged with crimes or had their belongings seized by the police is how to get those items back. In some cases, it is possible to get your things back from the government by filing a Petition for Return of Property pursuant to Pennsylvania Rule of Criminal Procedure 588. Whether or not and when you can get your things back depends on the nature of the item and the status of the criminal case, but in most cases where the item itself is not contraband or stolen, you may be able to seek its return either while the case is pending or within thirty days from the end of the case.

Pennsylvania Rule of Criminal Procedure 588

Pa.R.Crim.P. 588 governs the return of property in criminal court. The rule provides:

(A) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he or she is entitled to lawful possession thereof. Such motion shall be filed in the court of common pleas for the judicial district in which the property was seized.
(B) The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.
(C) A motion to suppress evidence under Rule 581 may be joined with a motion under this rule.

This means that a petition may be filed in the Court of Common Pleas where the case is or was being heard seeking the return of property. For example, if the police took your things while investigating the case and refuse to give them back despite them having no evidentiary value, you may be able to file a petition seeking an order from the court directing the police to return the items. If the items were seized during an illegal search or seizure, you may also be able to combine the motion for the return of your items with a motion to suppress.

How long do I have to file a petition for return of property?

The Pennsylvania Superior Court recently decided the case of Commonwealth v. Caviness, holding that a petition for return of property associated with a criminal case must be filed within thirty days of the conclusion of the case.

In Caviness, the defendant’s wife filed a motion for the return of some family photos which were on electronic devices that had been seized from the defendant. The petition was filed more than thirty days after the case had concluded, and the defendant had been convicted in the case. The Commonwealth opposed the petition, arguing that the family photos were on electronic devices which contained other contraband and that it did not have the resources to sort through the device to ensure that no contraband would be returned with the family photos. The trial court accepted the Commonwealth’s position and denied the motion.

The defendant’s wife appealed, arguing that the Commonwealth should be required to return all of the photos. The Superior Court rejected the wife’s argument on appeal, finding that the trial court lacked jurisdiction to entertain the motion under Rule 588 because more than thirty days had passed from the defendant’s sentencing. Therefore, the trial court no longer had jurisdiction over the case.

Thus, in order to file a motion with the criminal court, the motion must be filed either while the case is pending or within thirty days from the conclusion of the case. It is important to note that it may also be possible to seek the return of property in Commonwealth Court and that you may have longer to do so, but that process can be more complicated than filing the petition for return of property in criminal court.

The Commonwealth will also sometimes agree to allow the late filing of a petition (a nunc pro tunc petition) if there is a good reason for the delay.

What types of property can I get back?

Generally, you can seek the return of anything that is not contraband. Obviously, the law does not require the police to return drugs, illegal guns, or other items that were used to commit a crime even if the case is over or the search was conducted illegally. However, if the items no longer have evidentiary value or it can be shown that the police seized the items in an unconstitutional manner, then it may be possible to seek the return of property like cars, cash, and other valuable items.

The timing of such a petition depends on the nature of the case and status of a case. For example, it may not be possible to get property back right away because the police may need to process the items as evidence. But once that process has finished, it may be possible to seek the return of the property even if the charges are still pending. This frequently happens in cases involving cars - the police may want to dust the car for fingerprints or swab it for DNA, and that process may take a few days or even weeks. Once it is over, however, the police should return the car as they are unlikely to introduce the car itself at trial. If they refuse, it may be possible to obtain a court order directing them to do so.

How do I file the Petition?

In Philadelphia, a Petition for Return of Property must be filed in person on the second floor of the Criminal Justice center. It generally must describe the property, the circumstances under which it was seized, and it must also establish proof of ownership. In general, it is important to discuss the situation with your criminal defense lawyer prior to filing anything in court as there may be reasons why it may make sense to wait to file the petition until the case is over. Either way, the police cannot simply keep your things just because they want to, and a Philadelphia criminal defense lawyer may be able to help you get your property back.

Is a return of property different from a forfeiture?

Petitions for return of property are often closely related to forfeiture proceedings. In many cases, the Commonwealth initiates the litigation regarding whether property should be returned by filing a forfeiture petition. For example, if the police seize a large amount of cash while making an arrest for possession with the intent to deliver, the police will typically keep the cash. The prosecution will then file a forfeiture petition asking a judge to order that the Commonwealth should keep the money. In this situation, it often makes sense to move to stay the forfeiture proceedings until the criminal case is resolved. If the defendant wins the case or wins a motion to suppress, the government may be required to return the money. The main difference in this situation is that the Commonwealth files the petition instead of the defendant, and it usually makes sense to wait to resolve the forfeiture issue until the criminal case is over.

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