Philadelphia Criminal Defense Blog

Zak Goldstein 10/12/21 Zak Goldstein 10/12/21

PA Superior Court: Not Every Fatal Automobile Accident Is Criminal

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Fretts, holding that a defendant should not be charged with homicide by vehicle solely because the defendant committed traffic offenses prior to a fatal accident. Instead, the traffic offenses must have actually caused the accident, and the defendant must have acted recklessly. In other words, fatal accidents, no matter how tragic, are not always a crime.

Commonwealth v. Fretts

The defendant was driving a garbage truck in Philadelphia and struck a bicyclist. The defendant was making a right turn and the bicyclist was traveling straight when the accident occurred. There was no evidence that the defendant was speeding at the time of the accident. The intersection where the accident occurred is regulated by a traffic light and both the defendant and the bicyclist were proceeding into the intersection when the light was green. After the accident, the defendant remained at the scene and he was not issued any traffic citations. Unfortunately, the bicyclist died from his injuries. The defendant was then subsequently charged with homicide by vehicle, involuntary manslaughter, and reckless endangerment.

At the preliminary hearing, the Commonwealth presented evidence to establish the above facts. Additionally, the Commonwealth played video of the incident. One of the videos showed that the bicyclist was in the defendant’s blind spot. The other video was video from the garbage truck. This video did not show the that defendant was distracted while driving the garbage truck, however it does show that the defendant failed to use a turn signal. Also, a photograph was presented that showed that the intersection had a bicycle lane and that there were signs that read “BEGIN RIGHT TURN LANE” and “YIELD TO BIKES.” For whatever reason, the Commonwealth did not formally submit the videos into evidence. At the conclusion of the preliminary hearing, the municipal court judge ruled that the Commonwealth had presented enough evidence to establish a prima facie case for all charges.

The defendant then filed a pretrial Motion to Quash, asserting that the Commonwealth failed to make out a prima facie case against him and seeking to have the Court of Common Pleas dismiss all of the charges against him. The trial court granted the motion to quash and dismissed all of the charges against the defendant. The Commonwealth then filed a notice of appeal. The Superior Court granted the Commonwealth’s appeal and remanded the matter back to the trial court to consider the video evidence.

The court held a new hearing, and at this hearing, the trial court again dismissed the charge of homicide by vehicle because the Commonwealth’s evidence was insufficient to show that the defendant acted recklessly. However, the trial court did not dismiss the charges of involuntary manslaughter or recklessly endangering another person. The Commonwealth then appealed to the Superior Court again. On appeal, the Commonwealth argued that the trial court erred when it held that the evidence was insufficient to establish a prima facie case because the evidence showed that the defendant failed to yield the right-of-way to the bicyclist, interfered with her straight procession across the intersection, and failed to signal his turn.

What is Homicide by Vehicle?

75 Pa.C.S.A. § 3732 governs the crime of Homicide by Vehicle. The statute provides:

Any person who recklessly or with gross negligence causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic except section 3802 (relating to driving under influence of alcohol or controlled substance) is guilty of homicide by vehicle, a felony of the third degree, when the violation is the cause of death.

This offense has three elements: 1) that the defendant violated a statute or ordinance relating to operating or use of a vehicle or regulation of traffic other than the driving under the influence statute; 2) that the violation caused the death of another person; and 3) that the defendant’s conduct was reckless or grossly negligent. The state of mind of gross negligence under the homicide by vehicle statute is the same as recklessness. A defendant acts recklessly when he had both the actual knowledge of a substantial and unjustifiable risk and disregarded that risk despite that knowledge.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the trial court’s decision because the evidence was insufficient to establish that the defendant acted recklessly. According to the Superior Court, there was no evidence that the defendant knew that there was a bicyclist beside the truck when he made the right turn, no evidence that he failed to look before he made the turn, and no evidence that distracted driving caused the accident.

Additionally, the Superior Court was unpersuaded by the Commonwealth’s argument that because the defendant violated three sections of the Vehicle Code (failure to yield to a bicyclist, interference with the bicyclist’s straight procession through the intersection, and failure to use a turn signal), that these violations were sufficient to show that the defendant was acting recklessly. The Superior Court held that none of these violations were probative to show that there was a conscious knowledge of a substantial risk or conscious decision to act notwithstanding the risk. Therefore, the defendant will not be forced to stand trial against the charge of homicide by vehicle.

Facing Criminal Charges? We Can Help.

Goldstein Mehta LLC Criminal Defense Lawyers

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 9/27/21 Zak Goldstein 9/27/21

3rd Circuit Court of Appeals: Gun Enhancement for Drug Trafficking Offenses Could Apply at Sentencing Even if Gun Nowhere Near Drugs

The Third Circuit Court of Appeals has decided the case of United States v. Denmark, holding that the two-level enhancement for possession of a dangerous weapon during a drug trafficking offense applied even though the defendant conducted the drug deal over FaceTime and did not possess guns when he delivered the drugs. This case provides almost no rational limit on when the enhancement can apply and allows a court to consider applying it even when the gun has almost nothing to do with the drugs.

U.S. v. Denmark

Pennsylvania police intercepted a suspicious package that had been shipped from California to York, Pennsylvania. The package contained five pounds of methamphetamine. Police later determined that the defendant shipped the package. A few months later, law enforcement recorded a FaceTime call with the defendant. During the call, the defendant confirmed his involvement with the shipment. The caller ordered an additional three pounds of meth from the defendant who was to ship the drugs to York, Pennsylvania. The defendant then went to the post-office to deliver the drugs. While he was making his delivery, he was not in possession of any firearms. When the package arrived, the caller confirmed its delivery via phone. The meth was in a heat-sealed bag, which was wrapped in several layers of shrink wrap.

Approximately a month later, police carried out a search warrant for the defendant’s residence. The police confirmed that the defendant had made the aforementioned call in that location, as the residence matched his background during the call. Police did not recovery any drugs, but they did find stashes of firearms and drug paraphernalia in various parts of the house. Specifically, the police found a semi-automatic assault rifle, a shotgun, two handguns, a heat-sealed plastic bag, shrink wrap, and a bullet-proof vest. The police also found several loaded and unloaded magazines for the handguns and the assault rifle and over 900 rounds of ammunition.

The defendant was subsequently arrested, and a grand jury indicted him on two counts of distribution and possession with intent to distribute at least 500 grams of meth. The defendant agreed to plead guilty to one of the counts in exchange for dismissal of the other count and a three-level reduction for acceptance of responsibility. At sentencing, the Probation Department calculated the defendant’s offense level at 35, which gave the defendant a Guidelines imprisonment range of 168 to 210 months and a mandatory minimum of 10 years. The calculation included a two-level enhancement for possession of a dangerous weapon.

During his sentencing, the defendant objected to the weapons enhancement, arguing that the firearms could not have been connected with his conviction because the meth had never been at his residence. The District Court rejected this argument and applied the two-level enhancement which resulted in the defendant’s guidelines being 168 to 210 months. The Court varied downward, based in part of his previous charitable service and family responsibilities. The Court sentenced the defendant to 135 months’ imprisonment. The defendant then filed a timely appeal. On appeal, the defendant argued that for the weapons enhancement to apply, the guns had to be “actually present at the crime.” Specifically, the defendant argued that the guns had to be physically near him while he transported the meth to the post office.

How is U.S.S.G § 2D.1(b)(1) Applied?

Section 2D.1(b)(1) provides that, in connection for unlawful manufacturing, importing, exporting, or trafficking of drugs “if a dangerous weapon (including a firearm) was possessed,” then a defendant’s offense level is increased by 2 levels. The sentencing commission created the enhancement because there could be an increased danger of violence when drug traffickers possess weapons. The enhancement is to be applied if there was a weapon present, unless it is clearly improbable that the weapon was connected with the offense.

In order for this enhancement to be applied, the Government must first prove by a preponderance of the evidence that a defendant possessed a dangerous weapon. The burden then shifts to the defendant “to demonstrate that the connection between the weapon and the drug offense was clearly improbable” or, in other words, that there was a lack of connection between the firearm and the drug offense. As a practical matter, the enhancement is usually applied if a firearm was present.

The Third Circuit’s Decision

The Third Circuit Court of Appeals denied the defendant’s appeal, though it stated that this case “was so tenuous as to place it on the outer edge of the sentencing enhancement.” The Third Circuit held that a firearm does not have to be physically close to drugs or drug paraphernalia for the sentencing enhancement to apply. Instead, the Government only needs to show that there is “a connection” between the guns and the drug trafficking offense.

In the instant case, law enforcement observed the defendant make a drug deal over FaceTime from his home. According to the Third Circuit, because the defendant agreed to sell meth via FaceTime in the same home where the guns were found, the guns were connected to his drug offense. The burden then shifted to the defendant to show that the connection between the drugs and the guns were “clearly improbable.” In making its decision as to whether it was “clearly improbable,” courts consider four factors: 1) the type of gun involved, 2) whether the gun was loaded, 3) whether the gun was stored near the drugs or drug paraphernalia, and 4) whether it was accessible.

The Third Circuit found that the defendant’s guns suggested they were connected to his drug activities. Additionally, the guns were loaded and they were accessible to the defendant. As such, the Third Circuit found that the connection between the guns and the defendant’s drug offense was not “clearly improbable” and therefore his appeal is denied and he will be forced to serve his sentence.

Facing Criminal Charges? We Can Help.

Zak Goldstein 9/24/21 Zak Goldstein 9/24/21

Attorney Goldstein Wins PA Superior Court Appeal of Motion to Suppress Gun

Philadelphia Criminal Defense attorney Zak T. Goldstein, Esquire, recently won a Superior Court appeal in the case of Commonwealth. v. T.G. In T.G., prosecutors had charged the defendant with possession of a firearm by a prohibited person (VUFA 6105), possession of a concealed firearm without a permit (VUFA 6106), and possession of a firearm on the streets of Philadelphia (VUFA 6108). T.G. had retained a different firm for his motion to suppress and trial. The trial court denied T.G.’s motion to suppress the gun, and a jury eventually convicted him. He was sentenced to 8-16 years’ incarceration.

T.G. retained Attorney Goldstein for his appeal to the Superior Court. On appeal, Attorney Goldstein challenged the trial court’s denial of the motion to suppress, the trial court’s decision to remove family members from the courtroom during jury selection, and the trial court’s refusal to properly instruct that it could consider questions regarding the credibility of the officers with respect the reasons for searching T.G.’s car when considering whether they believed the officers that T.G. in fact possessed a gun.

At the motion to suppress, the officer had testified as follows:

On November 23, 2017, a little after 1:00 a.m., Officer Alvarez was in a marked police car on routine patrol in the Germantown area of Philadelphia. Officer Alvarez was driving with his partner Officer William Benson in the passenger seat. At the time, Officer Alvarez had been a police officer for five years with four of those years assigned to the 14th District, which included Germantown. Since he began working in the district, Officer Alvarez estimated he has made about 15 to 20 arrests involving narcotics and firearms being found together.
Near the intersection of Germantown Avenue and Berkley Street, Officer Alvarez saw a 2011 Chevy Camaro traveling southbound on Germantown Avenue. T.G. was driving the Chevy Camaro and had a passenger with him in the front. Noticing that the Chevy Camaro had dark window tinting, Officer Alvarez began to follow the car for several blocks. Although the car did not swerve, speed or make any sudden stops, Officer Alvarez pulled the car over because of the possible violation under 75 Pa.C.S. § 4524.1. When he saw the officer’s lights, T.G. immediately pulled the Chevy Camaro, which was registered in his name, to the side of the road.
Officer Alvarez walked up to the driver’s side window and asked Griffin to lower his window; Officer Alvarez later testified that he could not see into the car because of the tint. After T.G. lowered his window, Officer Alvarez asked for his license, registration and insurance. As T.G. looked for the information, Officer Alvarez smelled an odor of burnt marijuana coming from inside the car, describing it as a “mediocre” smell but not overwhelming. Though he had no specialized training in identifying marijuana, Officer Alvarez was familiar with its odor through his experience as a police officer. Despite smelling marijuana, however, Officer Alvarez did not see any narcotics or paraphernalia inside T.G.’s car.
Besides the odor of marijuana, Officer Alvarez also noticed that T.G. appeared “very nervous” as he was looking for his information. According to Officer Alvarez, T.G. was breathing heavily and his hands were shaking. At the suppression hearing, though, Officer Alvarez admitted that T.G. did not have bloodshot eyes or dilated pupils.
After T.G. found his information in the glove compartment, Officer Alvarez asked him to exit the car. T.G. complied and got out. Officer Alvarez asked him if there was anything illegal in the car or if either he or his passenger had a permit to carry a firearm. T.G. responded that there was nothing illegal in the car and that his passenger had a permit to carry. Because T.G. was wearing a large puffy jacket, Officer Alvarez patted him down for weapons. Feeling none, Officer Alvarez put T.G. in the back of his patrol car without handcuffs.
Officer Alvarez then returned to the Chevy Camaro to conduct a warrantless search for narcotics based on the odor of marijuana. Although he did not find any narcotics, Officer Alvarez found a Ruger 9mm handgun under the driver’s seat. After finding the handgun, Officer Alvarez went back to his patrol car to check if T.G. had a license to carry. As he did this, Officer Alvarez heard T.G. moving around in the back. This prompted Officer Alvarez to put handcuffs on T.G. When Officer Alvarez tried to do so, T.G. pushed him away and took off running but was soon captured. T.G. was charged with persons not to possess, receiving stolen property, firearms not to be carried without a license, carrying firearms in Philadelphia and resisting arrest.

While the appeal was pending, Pennsylvania appellate courts decided the cases of Commonwealth v. Barr and Commonwealth v. Alexander. In Barr, the Pennsylvania Superior Court concluded that the odor of marijuana alone does not automatically justify the warrantless search of a car. Similarly, in Commonwealth v. Alexander, the Pennsylvania Supreme Court determined that absent exigent circumstances, police must obtain a search warrant prior to searching a motor vehicle. Given this change in the law, Attorney Goldstein filed a reply brief arguing that Barr was now controlling in this case and that the motion should have been granted because the odor of marijuana did not give the police the right to search the car.

The Superior Court agreed and remanded the case to the trial court. The Superior Court instructed the trial court to reconsider its ruling on the motion to suppress in light of Barr and Alexander. The trial court was instructed to determine if the police had any legitimate basis other than the odor of marijuana for searching the car and also to decide whether Alexander, which requires a search warrant, applies retroactively. If Alexander applied retroactively, then the trial court was also directed to evaluate whether police had the exigent circumstances necessary for searching the vehicle without a warrant.

Following the remand, Attorney Goldstein successfully convinced the trial court to reconsider its original ruling and grant the motion to suppress the gun. The Commonwealth argued that although the odor of marijuana alone does not provide the probable cause for a search, the marijuana along with T.G.’s nervousness, the late hour, the fact that T.G. said the passenger had a license to carry, and the puffy coat provided the Commonwealth with the necessary reasonable suspicion to conduct a frisk of T.G. and of the passenger compartment of the car. Attorney Goldstein argued that Alexander applied retroactively, that police should have obtained a search warrant prior to the search, and there was simply no legitimate basis for concluding that T.G. was involved in some criminal activity or armed and dangerous which would justify a frisk.

The trial court agreed with the defense and granted the motion to suppress. T.G., who would have had to serve up to 16 years in prison, was promptly released from state custody.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

Read the Opinion

Zak Goldstein 9/23/21 Zak Goldstein 9/23/21

PA Supreme Court: Partial Concealment May Not Be Enough to Convict for Carrying a Gun Without a Permit

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Montgomery, holding that partial concealment may not be sufficient to convict a defendant of carrying a firearm without a license (“VUFA 6106”). This is a significant decision because prior to this, trial and appellate courts would hold that even the slightest concealment was sufficient to convict a defendant of VUFA 6106. Now, courts will employ a totality of the circumstances test to determine whether a defendant was knowingly, intentionally, or recklessly concealing the firearm from ordinary observation.

Commonwealth v. Montgomery

A Philadelphia Police Officer was on patrol when he observed the defendant messing with what he believed to be the handle of a gun in his waistband. The defendant then entered a nearby store. Upon leaving the store, the defendant saw the officer and then re-entered the store. The officer proceeded to follow the defendant into the store. The officer searched the store and located a firearm on the top of a rack of potatoes, a couple of feet away from where the defendant was standing. At that time, the only other individuals in the store were a cook, two other employees, and a customer. Upon finding the gun, the officer stopped the defendant in the middle of the store and asked if the firearm belonged to him, to which the defendant said it did not. The officer did not believe the defendant and arrested him. The defendant was subsequently charged with carrying a firearm on the public streets of Philadelphia (“VUFA 6108”) and VUFA 6106.

At the defendant’s preliminary hearing, the trial court dismissed the VUFA 6106 charge based on a lack of evidence. The Commonwealth then refiled the VUFA 6106 charge, but it was again dismissed. In its decision, the trial court held that the Commonwealth had failed to present sufficient evidence to establish a prima facie case of carrying a firearm without a license. Specifically, the trial court found that there was not sufficient evidence presented at the preliminary hearing to show that the defendant concealed the gun because the officer never testified that he saw the defendant with the gun in his hand and that he only believed that the handle he saw was that of a gun. The Commonwealth then filed an interlocutory appeal to the Pennsylvania Superior Court.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the trial court. The Superior Court held that “any concealment, even partial, is sufficient to satisfy the concealment element of [VUFA 6106].” The defendant then filed a petition for allowance of appeal to have the Pennsylvania Supreme Court hear the case. The Court agreed to hear the case.

What is VUFA 6106?

A person is guilty of VUFA 6106 if:

(1) Except as provided in paragraph (2), any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.
(2) A person who is otherwise eligible to possess a valid license under this chapter but carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license and has not committed any other criminal violation commits a misdemeanor of the first degree.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court reversed the trial court. The defendant argued that the evidence showed that his firearm was never placed out of sight or shielded from vision. Additionally, he argued that if the Pennsylvania Legislature had intended to criminalize partial concealment it would have said specifically said so in the statute. However, it did not do so and thus the VUFA 6106 statute must be strictly read to require full concealment.

The Pennsylvania Supreme Court agreed with the defendant that partial concealment may not be sufficient to convict a defendant of VUFA 6106. However, the Pennsylvania Supreme Court declined to hold that total concealment is necessary to convict a defendant of VUFA 6106. As such, the Pennsylvania Supreme Court adopted a rule stating that a defendant is “concealing” a firearm “when, viewed in the totality of the circumstances, he or she carries the firearm in such a manner as to hide the firearm from ordinary observation; absolute invisibility to others is not required.”

Applying this new rule to the facts of this case, the Pennsylvania Supreme Court found that there was sufficient evidence to establish a prima facie case of concealment. In making its decision, the Pennsylvania Supreme Court stated that because the officer saw what he believed to be the handle of a handgun in the defendant’s waistband; the defendant immediately re-entered the store after making eye contact with the officer; and because the gun was found within feet of where he was standing there was sufficient evidence to make a prima facie finding that the defendant had concealed the handgun. Obviously, this does not mean that the defendant will be found guilty at trial, but he will be forced to stand on trial on the charge of VUFA 6106. And although this defendant’s case will proceed, it is still a very helpful opinion for defendants who are charged with gun crimes despite the police claiming that they were able to see the gun.

Facing Criminal Charges? We Can Help.

Goldstein Mehta LLC Criinal Defense Lawyers — Goldstein Mehta LLC Criminal Defense Lawyers