Philadelphia Criminal Defense Blog

Zak Goldstein 11/10/21 Zak Goldstein 11/10/21

PA Superior Court Allows Detention of Motorist Based on Nervousness, Travel to Philadelphia, and Criminal Record

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Galloway, holding that a state trooper did not unlawfully prolong a traffic stop because the defendant was acting nervous and also admitted that he had just left Philadelphia. This decision is extremely troubling because it suggests that people who travel to Philadelphia have fewer rights than those who do not, and the level of suspicion here was very low. It remains possible that the decision could be reversed in further proceedings.

Commonwealth v. Galloway

A Pennsylvania State Trooper was on highway patrol when he pulled over a black Honda Civic for traveling 64-mph in a 55-mph zone. The defendant was in the passenger seat. While the trooper was conducting the traffic stop, the dashcam video picked up a car in the left bound passing lane passing the trooper and the driver’s vehicles. Because of the location of the stop, the trooper approached the passenger side window of the vehicle so that he was not so close to the traffic.

As the trooper approached, he noticed that both the defendant and the driver were acting nervous. Specifically, the defendant was not making eye contact with him and was sweating profusely. The trooper thought it was suspicious that the defendant was sweating so much because it was very cold at the time. The trooper then told the driver why he pulled him over and asked for his information. He also asked the defendant for his identification, to which the defendant told him he did not have any on him. The defendant provided him with his information verbally, and when the trooper ran the defendant’s information, he learned that the defendant “had a lengthy criminal history involving drug dealing out of the state of Delaware.”

The trooper informed the driver that he would be letting him go with just a warning, but he did not return his driver’s license to him. The trooper then continued to question the defendant and the driver as to where they were driving from, what they were doing, and the reason why the defendant was sweating so much. Both the driver and the defendant told the trooper that they just left Philadelphia where they got cheesesteaks on South Street. The trooper would later testify that based on his experience, he knew that Philadelphia was a hub for narcotics distribution. As such, the trooper asked the defendant to step out of the car and when he did, the trooper noticed a marijuana bowl in the center console of the car. The trooper then conducted a vehicle search of the car and found 1,575 bags of heroin on the floor. Both the driver and the defendant were arrested and read their Miranda rights.

The defendant was subsequently charged with possession with intent to deliver a controlled substance (“PWID”), possession of a controlled substance, and possession of drug paraphernalia. The defendant then filed a pre-trial motion to suppress the contraband found in the vehicle because of “the prolonged nature of the detention was illegal in that it went well beyond the reason for the traffic stop itself...and was not supported by a reasonable suspicion.” In other words, the defendant argued that the trooper unlawfully extended the traffic stop. The trial court held a hearing, agreed with the defendant, and granted the defendant’s motion to suppress. The trial court held that the “[t]rooper…was not presented with sufficient particularized facts to constitute the reasonable suspicion required to continue detaining [the driver] and [the defendant] past the point of writing a speeding ticket or issuing a warning.” The Commonwealth then filed an interlocutory appeal.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the trial court’s suppression order. The Superior Court found that, when viewing the totality of the circumstances, that the trooper “possessed the requisite reasonable suspicion to extend the traffic stop to investigate his concerns that [the defendant] and the driver were engaged in criminal activity.” According to the Superior Court, the trooper had reasonable suspicion to prolong the stop because: the defendant traveled to Philadelphia, Philadelphia has a reputation for narcotics sales, the defendant was acting nervous, and his prior criminal history. Therefore, the trial court’s suppression order is reversed and the Commonwealth will be able to use the drugs and paraphernalia against the defendant at his trial.

Clearly, the evidence supporting the stop in this case was thin. It is not criminal to travel to Philadelphia, and it is not unusual to be nervous when dealing with the police even if you have not done anything wrong. The Court seems to have heavily emphasized the defendant’s excessive nervousness and criminal history, but as the defendant was not on probation or parole, the criminal history should not have resulted in any lesser rights against a search or seizure. This case also fails to follow other recent cases in which the Superior Court has unequivocally held that nervousness alone is not enough to justify a search of a vehicle. Under current law, however, the troopers would have needed to obtain a search warrant prior to conducting the search. That was not the state of the law at the time of the motion, however, so the defendant failed to raise that issue. Accordingly, the Court upheld the validity of the search and remanded the case for trial.

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Zak Goldstein 10/28/21 Zak Goldstein 10/28/21

PA Supreme Court: New Claims of Ineffective Assistance of PCRA Counsel May Be Raised on Appeal

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Bradley, holding that a petitioner who has had a Post-Conviction Relief Act Petition (“PCRA”) denied by the Court of Common Pleas and who has retained new counsel may raise new claims relating to PCRA counsel’s ineffectiveness while still on appeal from the denial of the PCRA Petition. This is a dramatic change in Pennsylvania PCRA practice because Pennsylvania previously provided almost no protections against the ineffective assistance of PCRA counsel. Instead, a criminal defendant who sought to challenge his or her sentence due to the ineffective assistance of PCRA counsel would have to wait until after the PCRA appeal was denied to file a habeas petition in federal courts. The federal procedural rules are extremely difficult to navigate, and federal courts are often hostile to these claims. This decision could provide some benefit to PCRA petitioners who may have received the ineffective assistance of counsel from their PCRA attorney. This is unfortunately a common occurrence.

What is a PCRA?

The most common use of the PCRA is for a criminal defendant who has lost his or her direct appeal to seek a new trial or sentencing based on the ineffective assistance of trial or appellate counsel. For example, if trial counsel failed to call critical defense witnesses, object to improper jury instructions, or litigate a meritorious motion to suppress, then the defendant can file a PCRA petition asking the trial judge to overturn the conviction because had the trial lawyer done their job properly, the defendant would have won the case or received a better outcome.

In order to win a PCRA Petition, a petitioner must show that a claim has arguable merit, prior counsel had no reasonably strategic basis for what they did or failed to do, and that the petitioner suffered prejudice from counsel’s failure. Prejudice essentially means that the mistake could have lead to a different outcome. Thus, a PCRA Petition in a rape case could allege that a defense attorney who represented a defendant who had no criminal record at the time of trial should have called character witnesses to testify about the defendant’s excellent reputation in the community for being a peaceful, law-abiding person. Character evidence is really important, and defense attorneys frequently do not understand their obligation to present this evidence on behalf of their clients. In such a case, the defendant could receive a new trial due to the attorney’s failure.

Prior to this decision, however, if the defendant filed a PCRA and did not mention character witnesses but should have, then the defendant would not be able to raise that issue on appeal from the denial of some other claim even if the defendant changed lawyers for the appeal and it was obvious that the defendant had those witnesses available. Instead, the defendant had to wait until the PCRA appeals were denied and potentially file a habeas petition in federal court.

The Change in PCRA Procedure

Under Bradley, however, the defendant may now raise the claims directly in the Pennsylvania Superior Court even if they were not raised in the trial court. If the claim can be resolved without any need to develop a record at an evidentiary hearing, the Superior Court can rule on the claim. If the claim suggests that the trial court needs to make an evidentiary record, then the Superior Court may remand the case to the Court of Common Pleas for that Court to receive evidence and make an initial ruling. The appeal would then begin again if either side is unhappy with the outcome. This means that some claims may now be addressed on appeal in the Superior Court, preventing the need for these claims to be raised for the first time years later in the federal courts which often do not particularly want to hear them. That provides some benefit to defendants.

Will this affect federal habeas corpus litigation?

There are some concerns about whether this will limit a petitioner’s ability to seek relief in federal court. Currently, defendants may file a habeas petition to challenge their state conviction in federal court and allege the ineffective assistance of PCRA counsel. Thus, if the PCRA lawyer from the prior example failed to raise the character issue and the federal lawyer realized that the PCRA lawyer should have done so, the federal lawyer could allege in federal court that PCRA counsel was ineffective in failing to bring a PCRA against trial counsel for failing to call character witnesses.

Under a relatively recent case called Martinez v. Ryan, the federal courts would then generally review a claim of this nature on the merits. The federal courts, however, would not review claims of ineffective assistance of appellate PCRA counsel. That means that all of this is very complicated - will the federal courts continue to allow merits review of ineffective assistance of PCRA counsel claims given that those claims may now be raised in the Superior Court? Could the Martinez rule be extended to appellate counsel? Or will the federal courts find that now that Pennsylvania has provided a mechanism for challenging PCRA counsel’s performance on appeal, it is no longer necessary for them to get involved? The answers to these questions are not clear.

What should I do if my direct appeal has been denied and I want to keep fighting?

Ultimately, criminal appeals, PCRAs, and federal habeas petitions are very complicated. They are all particularly specialized areas of law. In general, a criminal defendant has about a year (sometimes slightly more) from the denial of the appeals to begin the PCRA or federal habeas process. These deadlines are for real, and so it is extremely important that if you are serving a long sentence, have lost your appeal, and want to continue to fight your case, that you contact an attorney who regularly litigates PCRA and habeas petitions and appeals. Our Philadelphia criminal defense lawyers are well versed in this area of the law and are happy to discuss whether you may have a viable claim on appeal or that you received the ineffective assistance of counsel.

Read the case

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

PA Superior Court: Police Must Obtain “Meaningful Consent” Before Searching a Cell Phone Without a Warrant

The Pennsylvania Superior Court has decided the case of Commonwealth v. Gallagher, holding that the trial court properly suppressed evidence collected from a defendant’s phone because the Commonwealth had not established that the defendant provided “meaningful consent to the invasive search it performed.” In this case, the defendant had actually consented to a search, but the Superior Court ultimately found that the extraction of the full contents of the phone exceeded the scope of the defendant’s consent. Therefore, the evidence should be suppressed.

Commonwealth v. Gallagher

An officer with the Adams Township Police Department responded to a 911 dispatch from a 16-year-old female caller reporting that she had been the victim of an attempted kidnapping and had escaped and was in hiding. She testified that she also had suffered a head injury. The officer drove to the complainant’s stated location and found her. According to the officer, she was “hysterical, panicky, and scared.” The complainant told the officer that she had been picked up in McKeesport by the defendant and his friend. They stopped at a gas station and at a cemetery where they drank alcohol. Afterwards, they went to meet a friend. She did not remember anything else. She claimed that she woke up on the side of a road with someone on top of her and their hand down the front of her pants. She also claimed that her pants and underwear were pulled down. She then ran away and hid in the woods.

The complainant said the defendant was the one on top of her. She was eventually transported to a local hospital to conduct a sexual assault examination. An unknown amount of time later, the defendant was arrested under suspicion for driving under the influence. He was given his Miranda rights and interviewed for about an hour and a half. During the interrogation, a detective asked the defendant if he could look at his cell phone. The defendant did not object and showed the detective a picture of the two girls he was with the previous weekend. The defendant also signed a consent to the search of stored electronic media. The relevant part of this statement said “I [defendant] having been advised of my rights by [the police] consent to having my computer hardware and all equipment which can collect, analyze, create, display, convert, store, conceal, or transmit electronic, magnetic, optical, or similar computer impulses or data.” The police then seized evidence from the defendant’s phone.

Police eventually arrested the defendant and charged him with attempted rape and other offenses. The defendant filed a pretrial motion seeking suppression of evidence from the “phone dump” conducted by the police during the interview. At the hearing, the trial court granted the defendant’s pretrial suppression motion, suppressing all the evidence that was seized from the defendant’s cellphone. The Commonwealth filed an appeal and argued that this suppression order substantially handicapped its prosecution.

The Superior Court’s Panel Decision

On appeal, the Commonwealth argued that “[c]ommon sense and a view of the surrounding situation would indicate to any reasonable, semi-intelligent person that if a request is being made of him, the converse option is also a possible right available to him.” The defendant argued that the consent form that he signed “did not advise him what his rights where, and [the detective] never told him that he was free to leave and free to withhold consent.” A three-member panel of the Superior Court agreed with the defendant and affirmed the trial court’s decision. The Commonwealth then filed an application for re-argument with a full panel of the Superior Court.

The Pennsylvania Superior Court’s En Banc Decision

The Pennsylvania Superior Court affirmed the trial court’s decision. The Superior Court agreed with the trial court that “the Commonwealth did not establish that the defendant consented to the cell phone dump” and that the form used by detectives “fails to explain [the defendant’s] rights with regard to stored data.” Additionally, the form did not explain what the defendant was consenting to. Further, the detective asking the defendant “if he minded if we looked at his phone” did not make it clear that the police intended to do a complete data dump of his phone. Therefore, the defendant must still stand trial for the aforementioned charges, but the Commonwealth will not be allowed to use the evidence they obtained from his phone at trial.

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Zak Goldstein 10/15/21 Zak Goldstein 10/15/21

PA Superior Court Reins in Prior Bad Acts Evidence in Homicide Case

The Pennsylvania Superior Court has decided the case of Commonwealth v. Green, holding that the trial court improperly granted the Commonwealth’s Prior Bad Acts Motion in a homicide trial. The Superior Court found that the facts of the two cases were not sufficiently similar to justify introducing evidence that the defendant had previously committed another crime and therefore the defendant was unfairly prejudiced at trial. This case is very significant because prosecutors frequently attempt to introduce evidence of prior misconduct by the defendant in serious cases and courts routinely grant these motions. Once a jury learns that the defendant already has a criminal record, it becomes extremely difficult to obtain a fair trial. Therefore, it is very important the Superior Court has found a limit to what type of prior bad acts evidence prosecutors may introduce at trial.

Commonwealth v. Green

A woman was shot and killed in her convenience store in South Philadelphia. A man entered the decedent’s store, aimed a firearm at her, and shot her ten times. The man then fled the store. A short time later, the gunman, later identified as the defendant, was seen on video surveillance entering a black Chevrolet Impala located nearby.

A Philadelphia Police detective spoke to the defendant’s girlfriend. The girlfriend told the police about a night that happened six months prior to the murder. According to the girlfriend, the defendant left her alone in his house and after he left, the girlfriend spoke with the decedent’s grandson and they decided to steal the defendant’s favorite necklace. The girlfriend stole the defendant’s necklace and then gave it to the grandson to pawn. They then split the money and used it to buy drugs.

Four days after the shooting, the defendant was arrested and was charged with first-degree murder, carrying a firearm without a license, carrying a firearm on a public street in Philadelphia, possession of an instrument of crime, and recklessly endangering another person. The Commonwealth filed a motion to introduce prior bad acts. Specifically, the Commonwealth sought to present evidence regarding an incident that took place 14 months prior to the murder. During this incident, the defendant allegedly had a physical altercation over a drug dispute with an individual named “Jay” and in retaliation, shot at “Jay’s” grandmother’s house. However, the defendant was not arrested regarding this incident. According to the Commonwealth, this showed that the defendant had a common scheme or plan of committing retribution against the grandmothers of those with whom he had drug disputes. The trial court granted the Commonwealth’s motion to admit the evidence of the prior shooting.

The defendant elected to proceed by jury trial and represented himself. During his first trial, the trial court declared a mistrial because the jury was unable to return a unanimous verdict. During the defendant’s second trial, he was found guilty of all charges. On the same day, the trial court sentenced the defendant to life in prison. The defendant filed a post-sentence motion which was denied. The defendant filed a timely appeal. On appeal, the defendant raised several issues, but for purposes of this blog, only the issue of whether the trial court improperly granted the Commonwealth’s prior bad acts motion will be addressed.

What is a Prior Bad Acts Motion?

Pennsylvania Rule of Evidence 404(b) is the relevant rule that governs prior bad acts motions. Rule 404(b) states:

1) Prohibited Uses. Evidence of a crime, wrong, other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.

Evidence of prior crimes is not admissible for the sole purpose of demonstrating a criminal defendant’s propensity to commit crimes. However, this type of evidence may be admissible in certain circumstances where it is relevant for some other legitimate purpose and not utilized solely to blacken a defendant’s character. Specifically, other crimes evidence is admissible if offered for a non-propensity purpose, such as proof of an actor’s knowledge, plan, motive, identity, or absence of mistake or accident. As such, when this evidence is offered for a legitimate purpose, evidence of prior crimes will be admissible if its probative value outweighs its potential for unfair prejudice.

When ruling upon the admissibility of evidence under the common plan exception, the trial court must examine the details and surrounding circumstances of each criminal incident to assure that the evidence reveals criminal conduct which is distinctive. In making its decision, trial courts are supposed to consider the habits or patterns of actions undertaken by the defendant. Additionally, trial courts must also consider the time, place, and types of victims. Further, the common plan evidence must not be too remote in time to be probative to the instant matter.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the trial court and granted the defendant a new trial. The Superior Court found that the two incidents were just too different, and therefore the trial court committed reversible error by granting the Commonwealth’s motion. Specifically, the Superior Court found that two different guns were used in the shootings; the defendant was not arrested in the prior bad acts motion shooting; the two shootings were 14 months apart; and in the prior bad acts shooting, only the door was shot. Because these two shootings were too distinctive from one another, the evidence of the prior shooting should not have been admitted at the trial. Therefore, the Court vacated the defendant’s judgment of sentence, and the defendant will receive a new trial.

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Criminal Defense Lawyers Zak Goldstein and Demetra Mehta