Philadelphia Criminal Defense Blog

Zak Goldstein 7/31/21 Zak Goldstein 7/31/21

PA Superior Court: Circumstantial Evidence May Authenticate Text Messages

The Pennsylvania Superior Court has decided the case of Commonwealth v. Orr, holding that the Commonwealth properly authenticated text messages that were used against Orr in his murder trial with circumstantial evidence. This decision provides helpful insight on what a court may require before admitting text messages at trial.

Commonwealth v. Orr

In 2015, a police officer received a call for a suspicious vehicle in York County, Pennsylvania. When the officer located the vehicle, he noticed an unresponsive female in the driver’s seat of a running Honda Odyssey Minivan. This woman had sustained multiple gunshot wounds and she did not have a pulse when the officer checked it. The officer determined that she was dead. An autopsy was later performed that showed that the decedent had suffered two gunshot wounds to the head, four gunshot wounds to the torso, two gunshot wounds to the right arm, and two gunshot wounds to her left arm.

The decedent was subsequently identified and her mother was contacted. The mother spoke to the police and informed them that the decedent and the defendant had a child together. She also told the police that she received a letter from the defendant stating that the decedent “didn’t die from jealousy, anger, or aggression, and she didn’t suffer.” In that same letter, the defendant wrote that he was “not guilty of her death.”

The police executed a search warrant of the defendant’s home in Harrisburg, Pennsylvania. While searching his home, they found a backpack with a gun and live ammunition. It was later determined that this gun was the gun used to kill the decedent. Further, the police analyzed the decedent’s cellphone. They found the defendant’s DNA on the phone. Additionally, they reviewed her phone and found text messages that appeared to have been sent from the decedent from the defendant.

In reviewing those messages, the police found several that discussed their ongoing custody dispute over their children. Further, the police found specific texts that implicated him in the decedent’s murder including messages that said things like: “I’m coming through your mom’s door cops called or not your goal for me to go to jail might happen;” “someone in your family are going to [feel] these bullets though and if I was you I’d move your van off of Market Street;” “I don’t give a fuck about no charge. If you don’t care about a bullet in ya’ll asses, so it is what it is. Over my seed, blood will spill.” The police were able to confirm that the defendant owned a cell phone.

After the police completed their investigation, the defendant was subsequently arrested and charged with murder. During trial, the Commonwealth sought to introduce the above text messages into evidence. Defense counsel objected to the text messages on authentication grounds. The trial court overruled the objections and admitted the text messages into evidence.

At the conclusion of the trial, the jury found the defendant guilty of first-degree murder. The trial court imposed the mandatory life sentence. The defendant then filed a timely appeal. On appeal, the only issue that was raised was whether the trial court improperly admitted the text messages into evidence.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the trial court’s decision. Rule 901 of the Pennsylvania Rules of Evidence governs the issue of authentication. The proponent of the evidence must introduce sufficient evidence that the matter is what it purports to be. Testimony of a witness with personal knowledge of the matter is enough to satisfy Rule 901. However, and importantly, the Superior Court also stated that Rule 901 may be satisfied via circumstantial evidence too.

Text messages are documents that are subject to the requirements of Rule 901, too. In its opinion, the Superior Court acknowledged the difficulty in establishing authorship of text messages because more than one individual can access an electronic device with or without permission. As such, appellate courts require that “authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person.” The Superior Court went on to conclude that text messages can be authenticated by using circumstantial evidence.

In this case, the Superior Court acknowledged that there was no direct testimony that showed the defendant sent the texts in question. However, the Superior Court found that there was sufficient evidence to demonstrate that the defendant sent them. It was clear that the defendant owned a cell phone. Further, the fact that there were other messages that referenced their ongoing custody dispute was additional evidence that the defendant authored the texts. As such, the Superior Court found that there was sufficient evidence to authenticate the text messages. Therefore, the Court denied the appeal.

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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 7/22/21 Zak Goldstein 7/22/21

Can you get your money back if the police take it illegally in Pennsylvania?

Return of Property Petitions in Pennsylvania

Following a recent ruling of the Pennsylvania Commonwealth Court, it is now clear that people who have had their money or other items seized by police officers who did not have probable cause may file a motion to suppress in the Court of Common Pleas and ask that a Common Pleas Judge order the police to return the property. This is called filing a return of property petition. Previously, it was clear that if the police filed criminal charges in conjunction with taking the property, then the defendant could file a motion to suppress and would be entitled to a return of the property if the motion to success was successful in the criminal case. It was unclear, however, what remedy existed for a person who has had his or her cash taken by the police but where the police have not filed charges or an actual forfeiture action.

The Commonwealth Court has now clearly ruled that a person who has had property stolen by the police may file a return of property petition in the Court of Common Pleas and move to suppress the evidence if the police did not have probable cause to take the property or engage in the search that led to the forfeiture. If the judge finds that the police acted illegally, then the Commonwealth must return the money or other property. This rule obviously does not apply to pure contraband like drugs or illegal guns. The Commonwealth Court reached this conclusion in the case of In Re: $300,000 U.S. Currency.

What is a Return of Property Petition?

In Pennsylvania, a Return of Property Petition may be filed when law enforcement officers have seized money or other valuable personal property like cars and watches on the suspicion that the property may be related to criminal activity. If the police do not file criminal charges or a defendant wins a related criminal case, then the return of property petition allows the defendant to ask a judge to order that the property be returned. Return of property litigation is very similar to a forfeiture action. In a forfeiture action, the government moves for a court order directing that it be allowed to keep seized property because the property was obtained through some illegal means. Forfeiture actions often accompany criminal charges. For example, if police officers find a large quantity of money while conducting a search that results in the discovery of drugs, the police will likely keep the money. Prosecutors should then file a forfeiture action if they do not plan to return the money. In many cases, however, the government does not necessarily file the separate forfeiture case. The forfeiture order could come along with a criminal sentence, or the government may simply keep the money.

If there is no criminal conviction, however, or the money is really unrelated to the conviction, then the person who had the money taken by the police can file to have that money returned. Prior to the Commonwealth Court’s recent decision, it was clear that a defendant in a forfeiture action or criminal case could file a motion to suppress and challenge the procedures by which the police recovered the property. If the police acted illegally, then the property should be returned. It was unclear whether a motion to suppress could be filed in a return of property case where the defendant initiated the litigation and the government never filed criminal charges or a forfeiture action.

Rule 588

Rule 588. Motion for Return of Property.
(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.

In Re: $300,000

An individual was stopped in Union County, Pennsylvania by a Pennsylvania State Police Trooper while he was driving his vehicle. During the search, the Trooper found $300,000 and seized the money. Despite this seizure, the individual was not charged with any crimes. Approximately a month after he was stopped and had his money taken from him, the individual brought a stand-alone return of property action in Union County Court of Common Pleas seeking the return of his property. A few weeks after this filing, the individual then filed a motion to suppress, seeking suppression of the property found in his car and all statements that were made to the police.

The Commonwealth opposed the Individual’s motion to suppress. The government argued that the individual could not bring a stand-alone motion to suppress in a return of property action prior to the Commonwealth filing criminal charges or initiating a forfeiture action. The trial court denied the individual’s motion to suppress arguing that a motion to suppress was “premature.”

The individual then filed a Petition for Permission to Appeal with the Commonwealth Court. In his petition, he asked for the Commonwealth Court to decide whether an individual aggrieved by the seizure of property could file a motion to suppress in conjunction with a motion to return property when the Commonwealth has not filed a forfeiture petition and no criminal charges have been filed. The Commonwealth Court agreed to hear his appeal. It should be noted that approximately six months after the trial court denied his motion to suppress, the Commonwealth filed a forfeiture petition against the individual. Consequently, the Commonwealth argued that the individual’s appeal was now moot because he now had the ability to file a motion to suppress evidence. In response, the individual argued that it was not moot because the Commonwealth could just “sit” on evidence it seizes “until the Commonwealth decides to provide an opportunity to the aggrieved individual to suppress the evidence.”

The Commonwealth Court’s Decision

The Commonwealth Court reversed the trial court’s decision. Regarding the Commonwealth’s argument that the individual’s appeal was moot, the Commonwealth Court found that this issue was capable of repetition, yet likely to evade appellate review. Further, this issue involved an issue important to the public interest and consequently the Commonwealth Court declined to deny the individual’s appeal because of mootness.

Turning to the merits of his appeal, the Commonwealth Court held that an individual can file a motion to suppress regardless of whether or not the Commonwealth has filed criminal charges or a forfeiture action. In making its decision, the Commonwealth Court first emphasized that though forfeiture hearings are “civil in form,” they are also “in their nature criminal.” As such, even though an individual is not entitled to all the rights that criminal defendants receive, they do have some rights. One of those rights is that they are entitled to the exclusionary rule of the Fourteenth Amendment and therefore individuals can file motions to suppress when their property has been unlawfully seized by the government. The United States Supreme Court has also weighed in on this issue and has held that “the Commonwealth may not permanently acquire derivative contraband which it has initially seized unconstitutionally.”

The Commonwealth Court then analyzed the relevant statutes at issue. Specifically, it looked at Rules 581and 588 of the Pennsylvania Rules of Criminal Procedure. In its analysis of these rules it found that motions to suppress were intended to be used by individuals to reclaim their property. Further, the Commonwealth Court also held that a person does not have to be a criminal defendant to initiate the proceedings. Instead, the Commonwealth Court found that it was the intent of the Pennsylvania General Assembly to allow any person who has had their property unlawfully seized be allowed to file a motion to suppress to regain their property. The reason is because if an individual was forced to wait until a criminal complaint or forfeiture petition was filed then the Commonwealth could hold someone’s unconstitutionally seized evidence in perpetuity. This was not acceptable to the Commonwealth Court and therefore it held that, in the future, individuals can file motions to suppress in conjunction with their motions to return property, regardless if a criminal proceeding or a forfeiture action has been initiated against them.

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Zak Goldstein 7/12/21 Zak Goldstein 7/12/21

PA Superior Court: Police May Not Prolong Traffic Stop by Asking Unrelated Questions About Guns

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Malloy, holding that the police may not prolong a traffic stop to go on a fishing expedition regarding whether the passenger in the vehicle has a license to carry a firearm. This case is significant because police officers will routinely extend traffic stops to see if they can find evidence of additional crimes. The decision in Malloy provides a powerful check to this intrusive process by the police.

Commonwealth v. Malloy

A Philadelphia Police officer was on routine patrol when he noticed an automobile that did not have a license plate. The officer activated his lights and sirens and pulled the vehicle over. As he walked towards the vehicle, he noticed that there was a license tag on the car’s rear windshield, but it was not properly displayed and secured. This was a violation of the Pennsylvania Motor Vehicle Code. The officer also noticed that there were several occupants within the car, including the defendant, who was seated in the rear behind the driver. The officer approached the driver and told him that he did not have a license plate on the back, to which the driver responded that he just got the car two days prior and still needed to get screws for the license plate. The officer seemed satisfied with this explanation and did not issue the driver a citation.

The officer then asked the defendant to roll down the passenger window. He asked the defendant for identification, and the defendant responded by pulling a lanyard out from his hooded sweatshirt. When the officer saw the lanyard, which suggested the defendant worked as a security guard, he immediately asked the defendant if he had a firearm on him. In the officer’s experience, it was common for people who worked in armed security positions at local bars to keep their identification badges in lanyards. The defendant responded that he did have a firearm because he worked in a security position at a local bar. The officer then asked where the firearm was, to which the defendant responded that it was on his right hip.

At that point, the officer asked the defendant to give him the firearm and to exit the vehicle so that he could secure the firearm before continuing his investigation. The defendant was then asked for his “identification documents.” The defendant gave him his “Act 235” card, but the card had expired. The defendant then told the officer that he had another card at his home. The officer then proceeded to contact the Pennsylvania State Police where it was determined that the defendant’s certification had actually expired. The defendant was subsequently arrested and charged with possession of a firearm without a license and carrying a firearm on a public street in Philadelphia.

Prior to trial, the defendant filed a motion to suppress to suppress the firearms and the statements made to the officer. At his suppression hearing, the above facts were entered into the record. At the conclusion of the hearing, the trial court denied the defendant’s motion to suppress. The defendant then entered into a stipulated trial where he was found guilty of both charges. At his sentencing hearing, the defendant was sentenced to five years of reporting probation. The defendant then filed a timely appeal. On appeal, the defendant argued that his statements and firearm should have been suppressed because the police illegally prolonged a routine traffic stop to conduct an unrelated investigation into whether he was legally allowed to carry a firearm.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the trial court’s denial of the defendant’s motion to suppress. In making its decision, the Superior Court reviewed prior appellate decisions including United States Supreme Court (“SCOTUS”) decisions. Specifically, the Superior Court reviewed Rodriguez v. United States, where SCOTUS held that when the police stop a vehicle for a motor vehicle violation, the stop may “last no longer than is necessary to effectuate that purpose.” In Rodriguez, SCOTUS did say that police officers are also allowed to ask a driver for his driver’s license, determining whether there are outstanding warrants against the driver, inspecting the automobile’s registration and proof of insurance, and other questions that are “aimed at ensuring the safe and responsible operation of vehicles on the highway.”

However, the Superior Court found that asking for a passenger’s documented authority to carry a firearm was not a permitted incidental inquiry during a traffic stop. Further, the Superior Court held that just because the defendant admitted to possessing a firearm did not mean that the officer was justified in prolonging the traffic stop to detain and investigate the defendant. The Superior Court cited the Pennsylvania Supreme Court decision Commonwealth v. Hicks, in which the PA Supreme Court held that the police cannot detain and investigate an individual simply because he is possessing a firearm. Further, the record at the defendant’s motion to suppress did not show any evidence that he was involved in any criminal activities or had engaged in any furtive movements. As such, the officer was not lawfully justified in detaining and investigating the defendant. Therefore, the denial of the defendant’s motion to suppress is vacated as well as his conviction. The defendant will get a new trial where the Commonwealth will not be allowed to use the firearm or the statements made to the police against him.

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Zak Goldstein 7/2/21 Zak Goldstein 7/2/21

SCOTUS: Warrantless Entry Into Home Not Automatically Justified by Flight of Misdemeanor Suspect

The United States Supreme Court has decided the case of Lange v. California, holding that the police may not automatically enter a fleeing misdemeanor suspect’s home. This decision is significant because police have frequently justified the entry into a defendant’s home on the basis that the suspect ran away from the police and they needed to enter the home in “hot pursuit.” This decision now restricts law enforcement and potentially only allows an officer to pursue a fleeing misdemeanor suspect into his home when there is a valid law enforcement emergency.

In determining whether a claimed emergency is legitimate, courts must now apply a totality of the circumstances approach to determine whether the officer was justified in entering a misdemeanor suspect’s home without a warrant. Further, it should be emphasized, that this decision only applies to misdemeanor cases. The police still can often enter a fleeing felony suspect’s home without a warrant.

Lange v. California

The defendant drove past a California highway patrol officer while playing his music very loudly and repeatedly honking his horn. The officer began to follow the defendant and then eventually activated his overhead lights to signal to the defendant that he should pull over. When the officer activated his lights, the defendant was about a hundred feet from his home. Rather than stopping, the defendant continued to his driveway where he entered his garage. The officer activated his lights solely due to the disturbance that the defendant was causing while driving.

The officer then parked his vehicle and followed the defendant into his garage and began to question the defendant. While questioning the defendant, he noticed that the defendant was showing signs of intoxication and he subsequently had the defendant perform field sobriety tests. The defendant did not perform these tests to the officer’s satisfaction and was arrested. The defendant later submitted to a blood test that showed his BAC was more than three times the legal limit.

The defendant was charged with DUI and a low-level noise infraction. Prior to trial, the defendant moved to suppress all the evidence that was obtained after the police entered his garage arguing that it had been a warrantless entry that violated his Fourth Amendment rights. Further, the prosecutor argued that because the defendant had fled from the officer, the officer did not have to obtain a search warrant to enter the defendant’s home because it was an exigent circumstance that permitted a warrantless entry into the defendant’s home.

The defendant’s motion to suppress was denied and the defendant was subsequently convicted of the aforementioned charges. The defendant then filed a timely appeal. The California Court of Appeal denied the defendant’s appeal, holding that the police are always allowed to enter a suspect’s home when said suspect is fleeing after the commission of a crime, regardless of whether it is a misdemeanor or not. The California Supreme Court declined to hear the defendant’s case. Undeterred, the defendant then filed a writ of certiorari with the United States Supreme Court to hear his case. The Court agreed to take his case because “[c]ourts are divided over whether the Fourth Amendment always permits an officer to enter a home without a warrant in pursuit of a fleeing misdemeanor suspect.”

The United States Supreme Court’s Decision

The United States Supreme Court vacated the defendant’s conviction and remanded it for additional proceedings. The Court held that there is no blanket fleeing suspect exception to the Fourth Amendment’s warrant requirement. Specifically, the Court held that police cannot automatically enter one’s home to pursue a suspect without considering the type of crime the suspect may have committed.

Courts across the country will now have to apply a totality of the circumstances approach to determine whether a valid law enforcement emergency exists to permit an officer to enter one’s home, without a warrant, to pursue a fleeing misdemeanor suspect. According to the Court, examples of such valid law enforcement emergencies include: imminent harm to others, a threat to the officer himself, destruction of evidence, or escape from the home. If any of these scenarios are applicable, then the police will not need a warrant to enter a suspect’s home. Therefore, the defendant’s conviction is vacated and his case is remanded back to the trial court. The trial court will have to make a determination, based on the facts of his case, whether the officer was legally justified in entering the defendant’s home without a warrant.

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