Philadelphia Criminal Defense Blog

Zak Goldstein 1/25/21 Zak Goldstein 1/25/21

Third Circuit Court of Appeals Rejects Entrapment Defense in United States v. Davis

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Third Circuit Court of Appeals has decided the case of United States v. Davis, holding that a defendant failed to prove that he had been entrapped when he willingly engaged with an agent, posing as a child, to meet and engage in sexual activity. Further, the Third Circuit held that an agent can be tenacious in their conversations with a defendant without entrapping them. Although this defendant did not win on appeal, the case does explain the basics of the entrapment defense in federal court. It also highlights the fact that entrapment can be a very difficult defense to prove in cases involving sex crimes.

United States v. Davis

The defendant answered an ad in the “w4m” section of Craiglist.com. This section is for women who are supposedly looking for casual sex with men. The ad was titled “Wild child” which was run, unbeknownst to the defendant, by an agent with the Pennsylvania Attorney General’s Office. The ad stated that the poster was an eighteen-year-old woman and requested that interested men respond “if you are looking for fun.” The defendant responded to the post. The agent identified himself as “Marissa” and stated that she was actually fourteen years old, to which the defendant stated “that’s ok, I know how to be respectful, do you wanna meet today?”

The defendant and “Marissa” eventually began text messaging one another. During the eight days that they texted, the defendant told “Marissa” that he was gay and lied about his age. Additionally, he avoided engaging in lewd conversation and expressed a fear of getting caught. He must have sensed that “Marissa” might not have genuine intentions because he asked if she was “affiliated with any type of law enforcement.” However, despite this concern, the defendant still engaged in grooming behavior with “Marissa.” He specifically asked her about her virginity, asked when she as not being supervised, and repeatedly offered to buy her gifts, including an iPad.

Eventually, the defendant and “Marissa” agreed that she would skip school and meet him at a McDonalds near her house in Pennsylvania. Once they came up with a plan to meet, their conversation became sexual. “Marissa” explained that she was concerned about getting pregnant to which the defendant assured her that he would “bring protection.” On the day they were supposed to meet, the defendant traveled from New York to the McDonalds where they were supposed to meet. He was subsequently arrested by the agent posing as “Marissa.”

During questioning, the defendant admitted that he knew “Marissa” was fourteen and that he had brought condoms for his visit with her. The defendant further admitted that he became attracted to young girls after visiting a water park and that he specifically liked 14-year-old girls because he believed prostitutes were unclean. The defendant would later testify at trial that he never made those statements to the agent.

The defendant was subsequently arrested and charged in federal court with one count of use of an interstate facility to attempt to knowingly persuade, induce, entice, and coerce a minor to engage in sexual activity and one count of travel in interstate commerce with intent to engage in illicit sexual conduct with a minor. The defendant elected to proceed by jury trial. At trial, he argued that he was entrapped to commit the crime and that he did not knowingly entice a minor because he believed “Marissa” was an adult who was role-playing as a fourteen-year-old. The jury was not swayed and convicted the defendant of the aforementioned charges. The defendant was subsequently sentenced to 127 months imprisonment and five years of supervised released. He was also required to register as a sex offender. The defendant then filed a timely appeal. For purposes of this blog, only the issue of entrapment will be discussed.

What is Entrapment?

Entrapment is an affirmative defense to a crime. It occurs when a defendant, who was not predisposed to commit a crime, does so as a result of the government’s inducement. To be successful in raising an entrapment defense, a defendant must establish two things: that there was government inducement of the crime and a lack of predisposition on the part of the defendant to engage in the criminal conduct. If a defendant makes this prima facie showing of these two elements, the burden then shifts to the government to disprove the entire defense by disproving one of the elements beyond a reasonable doubt.

Usually, the government will try to show that the defendant had a predisposition to commit the crime. The government can prove predisposition by showing one of the following: an existing course of criminal conduct similar to the crime for which the defendant is charged, an already formed design on the part of the accused to commit the crime for which he is charged, or a willingness to commit the crime for which he is charged as evidenced by the accused’s ready response to the inducement.

The Third Circuit’s Opinion

The Third Circuit affirmed the defendant’s conviction and sentence The defendant argued that he had been entrapped to commit these crimes because he lacked a predisposition to commit them. Specifically, he argued that that because he attempted to avoid sexual conversation with “Marissa,” his lack of criminal history, and the agent’s tenacity in the sting operation, the government induced him to break the law. The Third Circuit saw things differently. In its opinion, the Third Circuit found that the defendant did in fact have a willingness to commit these crimes. Specifically, the Third Circuit found compelling the defendant’s statements that he was attracted to young girls despite his denial of them at trial. Further, the Third Circuit also found that the defendant immediately asked “Marissa” to meet after she told him she was fourteen was significant to show that that he intended to commit these crimes. The Third Circuit rejected all of his other arguments on appeal. His convictions will stand, and he will not get a new trial.

Facing Criminal Charges? We Can Help.

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 1/12/21 Zak Goldstein 1/12/21

PA Superior Court: Police May Destroy Evidence So Long As They Do Not Do It In Bad Faith

The Pennsylvania Superior Court has decided the case of Commonwealth v. Donoughe. This decision reaffirms established law that states a defendant must make a showing that the police acted in bad faith when they destroy “potentially useful” evidence. This decision is obviously frustrating given that we, as a society, should expect that the Commonwealth should keep and maintain all evidence that is gathered during a case. Unfortunately, as Donoughe shows, that is not the case and thus defendants have an additional hurdle to overcome when they allege violations of this kind.

Commonwealth v. Donoughe

Pennsylvania State Troopers were driving on Pennsylvania Route 30 in Westmoreland County when they noticed the defendant’s blue Jeep Cherokee traveling at a high rate of speed. The troopers initiated pursuit of the vehicle and at one point had to travel at 94 miles per hour (“mph”) to maintain contact with the defendant. The speed limit on that part of the road was 55 mph. After an unknown amount of time spent following the defendant, the troopers activated their overhead lights and conducted a traffic stop of the defendant’s jeep in an adjacent store parking lot. At this time, the dashcam located on the troopers’ car initiated a mobile video recording (“MVR”) of the stop.

According to the troopers, upon reaching the driver’s side window, they were able to detect a strong odor of alcohol emanating from both the jeep and the defendant’s breath. While speaking with the defendant and requesting his documents, the troopers also noticed that the defendant’s eyes were bloodshot and glassy and his movements were very slow. Additionally, the troopers saw a case of unopened beer on the backseat. When the defendant was asked how much he had been drinking that evening, the defendant answered that he had two beers prior to driving.

The troopers then ordered the defendant to exit his jeep to undergo a field sobriety test. However, the troopers decided that because the defendant was short and obese it would be unfair to administer the full set of physical performance tests and so they only had the defendant perform the horizontal gaze nystagmus test and a portable breath test. Based on the results of those tests, the defendant was placed under arrested for DUI. He was then taken to the Greensburg Barracks where he performed a “legal breath test” which registered a .107% BAC which is above the legal limit.

The defendant was subsequently charged with DUI, careless driving, and speeding. The defendant then applied for and was accepted into Westmoreland County’s Accelerated Rehabilitative Disposition (“ARD”) program and his charges were held in abeyance upon successful completion of the program. Unfortunately, the defendant was removed from the ARD program after he failed to complete the terms of his ARD sentence. Criminal charges were subsequently refiled against him and he was listed for a non-jury trial.

The defendant filed an omnibus pre-trial motion to dismiss the two DUI counts on grounds that the MVR was not provided to the defense and thus was “potentially exculpatory” and “represented critical evidence necessary to preparing a proper defense.” The trial court denied the defendant’s motion. The court’s reasoning was that the defendant only gets relief when “potentially useful” evidence is destroyed in bad faith. Westmoreland County has a policy to destroy MVR recordings 90 days after a defendant’s acceptance into the ARD program and thus there. In this case, more than a year had passed since the defendant was arrested and when his charges were refiled against him and thus the video was destroyed as a result of county policy and not because of any animus towards the defendant.

The defendant subsequently went to trial and was found guilty of the aforementioned charges with the exception of careless driving. The defendant then filed timely post-sentence motions which were denied. He then filed an appeal. On appeal, he raised two issues. For purposes of this blog, only the issue of whether the trial court’s denial of his omnibus motion violated his due process rights will be addressed because the Superior Court found that the defendant waived his other issue.

When Does a Brady Violation Occur?

Pennsylvania courts created a three-part test to determine whether a Brady violation has occurred. First, there must be evidence that is suppressed by the prosecutor. Second, it must be shown that the evidence is favorable to the defendant. This means that the evidence could be used to impeach a Commonwealth witness or it could be exculpatory for the defendant. Finally, there must be a showing that the defendant was prejudiced by the withholding and/or destruction of this evidence. In other words, there must be a showing that the outcome of his case could be affected if this evidence was presented at trial.

In the instant case, the MVR evidence was not Brady issue because it was unknown whether the MVR would have been helpful to the defendant. The defendant therefore could not meet the third prong of the test. This is why this MVR video was described as “potentially useful.” Therefore, in order to prevail on a claim of “potentially useful” evidence, the Pennsylvania courts have required that a defendant show that the evidence was destroyed in bad faith on the part of the police. This is different from whether a Brady violation has occurred because the law allows for a defendant to get relief for a Brady violation even if the evidence was inadvertently lost or destroyed.

The Superior Court’s Decision

The Superior Court affirmed the defendant’s convictions. The Superior Court followed the established law and found that the defendant must make a showing that there was bad faith involved when the police destroy “potentially useful” evidence. This case was not a good test case to try and create new law. Specifically, in this case, the defendant conceded that the police did not act in bad faith because the MVR was destroyed in accordance with Westmoreland County policy. Further, the defendant did not even submit any reason as to why the MVR footage would have been exculpatory. Therefore, it was unlikely that the Superior Court was going to overturn an established precedent based on this set of facts. Consequently, the defendant will not get a new a trial and he will be forced to serve his sentence.

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Zak Goldstein 12/29/20 Zak Goldstein 12/29/20

PA Superior Court: Commonwealth Must Create Record of Preliminary Hearing to Survive Motion to Quash

The Pennsylvania Superior Court has decided the case of Commonwealth v. Lambert, holding that the Commonwealth bears the burden of ensuring that a recording or transcript is created at the preliminary hearing. If the Commonwealth fails to do so, then an entire case could be dismissed pursuant to a defendant’s motion to quash (also called a petition for writ of habeas corpus in most suburban counties).

This case should affect the manner in which magisterial district courts conduct preliminary hearings. Currently, many of them, including courts in Montgomery County and Delaware County, do not provide court reporters or make recordings of the proceedings. Instead, they require the defense to bring a court reporter to the hearing at the defendant’s expense. With the Superior Court’s decision in this case, however, it is now clear that the Commonwealth has an obligation to make a recording of the proceedings so that a defendant may challenge whether the prosecution successfully established a prima facie case in the Court of Common Pleas.

The Facts of Lambert

In Lambert, the defendant was charged in Butler County with Aggravated Assault, Harassment, and Recklessly Endangering Another Person. Middlesex Township Police had responded to a report of a domestic disturbance at the defendant’s residence. When they arrived, her son was waiting outside of the house. He told the responding officers that he and the defendant had engaged in a verbal argument. She then picked up a gun, pointed it at him, and threatened to shoot him. The son told the officer this versions of events both verbally and in a written statement, leading to the criminal charges.

The son, however, did not appear for the preliminary hearing. Instead, relying on the now-overruled cases of Commonwealth v. McCllelland and Commonwealth v. Ricker, the magistrate permitted the police officer to testify about what the complainant told him. This is classic hearsay, and it is now clear that a preliminary hearing may not be based entirely on hearsay. Neither party brought a court reporter to the preliminary hearing, so the court did not make any record of the proceedings. Nonetheless, the magistrate held the entire case for court, and the case went to the Court of Common Pleas.

The Motion to Quash

The defendant then filed a motion to quash (petition for writ of habeas corpus) in the Court of Common Pleas, arguing that the Commonwealth had failed to prove its case because it had only presented hearsay at the preliminary hearing. The Commonwealth summarized the proceedings from the preliminary hearing for the trial judge, but the Commonwealth had no transcript to give to the court because it had not recorded the proceedings in the district court and the district court did not provide a court reporter. Accordingly, the trial judge granted the writ of habeas corpus and dismissed the charges. The Commonwealth appealed.

The Superior Court’s Decision

On appeal, the Commonwealth argued that it had no obligation to make a record of the proceedings at a preliminary hearing. It argued that it had presented sufficient evidence, the defendant had the obligation to record the proceedings because the motion was made by the defendant, and the magisterial district justice’s decision was evidence that a prima facie case had been established.

The Superior Court rejected this argument and affirmed the decision of the trial judge. The Superior Court reasoned that the Commonwealth bears the burden at a hearing on a motion to quash of proving that it in fact established a prima facie case at the preliminary hearing that the defendant committed the crimes charged. Because the Commonwealth could not provide any record of the preliminary hearing and did not present any new evidence at the evidentiary hearing in the Court of Common Pleas, the Commonwealth failed to meet its burden. Therefore, the Superior Court agreed that the trial court properly dismissed the charges.

This is an important case, and it continues the recent trend by Pennsylvania appellate courts of re-establishing that preliminary hearings are important and that many of the rules of procedure and evidence apply during a preliminary hearing. The preliminary hearing is a key safeguard in making sure that innocent people do not remain in jail for months or years waiting for trial and in establishing that a defendant should have to go to trial in the first place. Recent decisions had undermined the protections offered by the preliminary hearing. But following this decision, it is now clear both that the Commonwealth may not rely on hearsay alone at a preliminary hearing and that the Commonwealth must create a record of the proceedings. If it does not, then either the case will be dismissed in the trial court or the Commonwealth will have to put on a second preliminary hearing.

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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.

Facing criminal charges? We can help.

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.