Philadelphia Criminal Defense Blog

Zak Goldstein 12/20/21 Zak Goldstein 12/20/21

PA Superior Court: Defendant’s Consent to Search Invalid Due To Language Barrier Between Defendant and Officer

Criminal Defense Lawyer Zak Goldstein — Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Carmenates, holding that a defendant’s consent to search his vehicle and luggage was not knowing, voluntary, or intentional because of the considerable language barrier between the defendant and the officer. This decision is significant because there are so many individuals in the United States who do not speak English. As such, this decision protects them and requires that the police show that they made a truly knowing, voluntary, and intelligent waiver of rights when they interact with a police officer in Pennsylvania.

Commonwealth v. Carmenates

The defendant was pulled over by police on Interstate 80 because, according to the police, he was following a tractor-trailer at an unsafe distance and at a speed slower than the flow of traffic. As the police officer approached the defendant’s vehicle, he noticed in the back seat several large duffel bags and a suitcase that was covered by a tan sheet and large stuffed toy bear. It should be noted that this entire interaction was recorded on the officer’s dashboard camera. The officer also observed numerous fast food and snack items, a fast-food drink items, air freshener spray bottles, and “religious paraphernalia” hanging from his rearview mirror. The officer did not observe any drugs or paraphernalia, nor did he smell any marijuana. Further, while interacting with the officer, the defendant did not make any furtive movements nor did he attempt to conceal anything.

When the officer attempted to speak with the defendant, the defendant immediately indicated that he only spoke Spanish. The officer did not speak Spanish, but told the defendant that they “could make it work.” To “make it work,” the officer used Google Translate on his cell phone to translate his statements from English to Spanish and the defendant’s statements from Spanish to English. The officer indicated that he did not have any problems understanding the responses he received from the defendant and the defendant never told the officer that he did not understand a question that was asked to him via Google Translate. The officer would later concede that Google Translate is “not 100 percent accurate at times.”

The defendant provided the officer with his driver’s license, insurance card, and registration card. After which, the officer requested that the defendant exited the vehicle. The defendant complied and the officer searched him for weapons. The officer then instructed the defendant to stand outside in the cold while he performed a criminal history check. The officer would later testify that he intended to issue a warning to the defendant, but before doing so asked him about his travel plans. A large portion of the defendant’s responses were not translated by Google Translate and some that were nonsensical. Despite this poor translation, the officer decided to continue using Google Translate to ask for the defendant’s consent to “see his luggage.” The officer could have used the Spanish-language consent form in his car and that would have been more specific, but for whatever reason he chose not use that form.

The defendant then opened his vehicle and retrieved the suitcase. However, the officer using gestures rather than words, directed the defendant to one of his black duffel bags. The defendant then grabbed the black duffel bag and complied with the officer’s non-verbal direction to open it. The bag contained a large amount of marijuana that was vacuum sealed in plastic bags. The defendant was subsequently placed in handcuffs and then the officer searched the remaining duffel bags and located approximately 39 pounds of marijuana. The defendant was subsequently arrested and charged with Possession with the Intent to Deliver a Controlled Substance and Possession of Drug Paraphernalia.

The defendant then filed a motion to suppress. At the motion to suppress hearing, the above facts were placed into evidence. The testimony and video recording indicated that the officer never informed the defendant that he was free to leave or that he was allowed to refuse consent to search his vehicle or his personal effects. Additionally, the record also showed that the defendant was never read his Miranda rights. The defendant would also testify at this hearing, through a translator. In short, he stated that he just spoke a few words of English and that he understood the officer’s request to see his luggage in the literal sense. He also testified that he thought he had to follow the officer’s orders because “he didn’t think that he had the option to say no.” At the conclusion of the hearing, the suppression court granted the defendant’s motion to suppress, concluding that the Commonwealth had failed to establish that the defendant had voluntarily, knowingly, and intelligently consented to the search of his vehicle and luggage. The Commonwealth then filed a timely appeal.

The Pennsylvania Superior Court’s Panel Decision

The Pennsylvania Superior Court reversed the suppression court’s order granting the defendant’s motion to suppress. For a more detailed analysis, please refer to our September 8, 2020 blog “Pennsylvania Superior Court: Consent to Search Defeats Motion to Suppress Even if Suspect Doesn’t Speak English.” The defendant then filed for an Application for Re-argument En Banc. The Superior Court granted re-argument and withdrew the panel’s previous decision.

Pennsylvania Superior Court’s En Banc Decision

The Pennsylvania Superior Court affirmed the suppression court’s order granting the defendant’s motion to suppress. The full panel of the Superior Court held that the defendant’s consent was not knowing, intelligent, and voluntary. The Superior Court was persuaded by the fact that Google Translate is “not 100 percent accurate at times” and that there was evidence that it produced inaccurate and nonsensical translations. Further, the officer’s use of the word “see” rather than a more precise term such as “search,” “examine,” or “look inside” was persuasive to the Superior Court that the defendant did not make a legally valid waiver of his constitutional rights. As such, the Commonwealth will not be able to use the recovered drugs and paraphernalia against him at his trial.

Facing Criminal Charges? We Can Help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 12/14/21 Zak Goldstein 12/14/21

PA Superior Court Approves Search of Man Who Overdosed in His Home Due to Bulge in Hoodie

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Davenport, holding on appeal that an officer lawfully performed a pat-down search of a defendant who had overdosed in his home after the officer noticed a bulge in his hoodie. This decision is concerning given the fact that the defendant was present in his home when the officers performed this search of him. Further, this decision seems to run afoul of Commonwealth v. Hicks which held that an officer cannot infer criminal activity merely because a defendant is in possession of a concealed firearm. Nonetheless, the Superior Court affirmed the search based on the community caretaking exception to the warrant requirement.

Commonwealth v. Davenport

A police officer in McKeesport, Pennsylvania responded to a report of a drug overdose. The officer arrived on scene and spoke with the defendant’s mother. She was the individual who had called the police. His mother told the officer that the defendant had smoked K2 marijuana and that she had found him unconscious on the back porch. The officer saw the defendant face down, breathing, but he was not responding to anyone. Medics arrived and attended to the defendant, and he began to regain consciousness. As the defendant started to get up, the officer observed a heavy bulge in the front pocket of the defendant’s hooded sweatshirt. The officer would later testify that he knew immediately that this bulge was a firearm. The officer then alerted his lieutenant that the defendant had a firearm on him. The lieutenant did a pat-down for officer safety and recovered the firearm.

The defendant was subsequently arrested and charged with person prohibited from possessing a firearm. Prior to trial, the defendant filed a motion to suppress the gun found on his person. The trial court denied the defendant’s motion to suppress. The defendant then elected to proceed to a non-jury trial at which he was found guilty. He was then sentenced to six to twelve years in prison. The defendant filed a timely appeal. On appeal, the defendant argued that the officers illegally seized him because the police officers had completed their wellness check and his medical emergency had ended.

What is the Community Caretaking Doctrine?

The community caretaking doctrine is an exception to the Fourth Amendment’s warrant requirement. This doctrine has three specific exceptions to the warrant requirement: the emergency aid exception, the public servant exception, and the automobile impoundment/inventory exception. Each of these exceptions contemplates that police officers engage in a wide variety of activities relating to the health and safety of citizens unrelated to investigating or preventing criminal activity. However, these caretaking activities must be performed in strict accordance with the Fourth Amendment.

Regarding police actions pursuant to the emergency aid exception, the actions must be independent from the detection, investigation, or acquisition of criminal evidence. Further, the warrantless intrusion must be commensurate with, and limited to, the perceived need to provide immediate assistance. In other words, once the emergency that permitted the police officers to act without a warrant has ceased, their right to enter and search under the emergency aid exception has also ceased.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the trial court’s decision. In this appellate case, the defendant conceded that the police were lawfully at his residence pursuant to the emergency aid exception. However, he argues that once he regained consciousness and began to get up from the porch floor to go to the hospital, the reason for the officers’ presence in the home ended and the officers were required to leave.

However, according to the Superior Court, the officers still were allowed to conduct a pat-down for their safety when the one officer saw the bulge and “immediately knew it was a firearm.” According to the Superior Court, just because the officers were at the defendant’s house to render emergency assistance, this did not mean that they could not perform a safety frisk of the defendant. The Superior Court opined that because the defendant had just overdosed he could potentially pose a threat to himself or others. Therefore, the officers’ actions were justified. As such, the defendant will not get a new trial and he will be forced to serve his sentence.

Facing Criminal Charges? We Can Help.

Zak Goldstein 11/23/21 Zak Goldstein 11/23/21

PA Superior Court: Child Complainant Who Does Not Understand Obligation to Tell the Truth May Not Testify

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of In the Interest of K.B., affirming a trial court’s finding that a child complainant was incompetent to testify at the defendant’s trial. This decision is significant because the Commonwealth routinely calls children to testify and oftentimes these children are not legally competent to testify, but trial courts will nonetheless hold that they are competent. As such, this decision will give defense attorneys additional support in litigating these competency motions.

In the Interest of K.B.

The complainant, a six-year-old, disclosed to her father that the defendant (also a juvenile) had touched her genitalia on two occasions. A few days later, the complainant participated in a forensic interview where the complainant made an additional disclosure that the defendant had penetrated her. Based on these disclosures, the defendant was charged with one count of rape and three counts of aggravated indecent assault.

A hearing was subsequently held to determine whether the complainant was competent to testify. At the hearing, the complainant would routinely say that she was in the tenth grade because she thought she was supposed to answer that way. After the hearing, the trial court held that the complaint was incompetent to testify. A few days later, the Commonwealth filed a motion for reconsideration and a motion to reopen testimony requesting that the trial court allow an expert witness to testify regarding the complainant’s testimony. The trial court denied the Commonwealth’s reconsideration motion, but granted the motion to reopen testimony.

At this subsequent hearing, the Commonwealth called the complainant’s therapist as an expert to testify. At this hearing, the therapist admitted that the complainant “sometimes give something incorrect as an answer if she thinks that’s what she is supposed to say.” Additionally, the therapist testified that the complainant “does not understand the impact or the seriousness of the allegations” she made against the defendant. At the conclusion of the hearing, the trial court reaffirmed its finding that the complainant was incompetent to testify at trial. The Commonwealth then filed an interlocutory appeal. On appeal, the Commonwealth argued that the trial court abused its discretion by finding that the complainant was incompetent to testify.

What Rule Governs Competency?

Rule 601 of the Pennsylvania Rules of Evidence governs competency. The rule provides:

a) General Rule. Every person is competent to be a witness except as otherwise provided by statute or in these rules.
(b) Disqualification for Specific Defects. A person is incompetent to testify if the court finds that because of a mental condition or immaturity the person:
(1) is, or was, at any relevant time, incapable of perceiving accurately;
(2) is unable to express himself or herself so as to be understood either directly or through an interpreter;
(3) has an impaired memory; or
(4) does not sufficiently understand the duty to tell the truth.

In regards to children, Pennsylvania appellate courts have stated that “the capacity of young children to testify has always been a concern as their immaturity can impact their ability to meet the minimal legal requirements of competency.” Pennsylvania courts have also held that children can have a difficult time distinguishing fantasy from reality; can want to give an answer that “pleases” the questioner; and have a limited capacity for accurate memory. As such, for child witnesses under the age of 14, a trial court must make an independent determination of competency which requires a finding that the witness possess 1) a capacity to communicate, 2) the mental capacity to observe the actual occurrence and the capacity of remembering what it is that he or she is called to testify about; and 3) a consciousness of the duty to speak the truth.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the trial court’s decision. In its opinion, the Superior Court held that the record supported the trial court’s findings that the complainant did not sufficiently understand her duty to tell the truth and was unable to perceive accurately. Specifically, Superior Court gave great weight to the fact that the six-year-old complainant would routinely say yes when asked if she was in the 10th grade. Additionally, the Superior Court also found it concerning that the complainant was unable to perceive the nature of the events about which she was called to testify. As such, the Superior Court found that the trial court did not abuse its discretion and therefore the Commonwealth will not be able to call the complainant to testify at the defendant’s trial.

Facing Criminal Charges? We Can Help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also obtained new trials and sentencing hearings for clients on appeal and in post-conviction litigation. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

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

Attorney Goldstein Obtains New Sentencing in Federal Court for Murder Defendant Sentenced to Illegal 40-Year Sentence

Philadelphia Criminal Defense Attorney Zak Goldstein recently obtained a new sentencing hearing for a client who had been sentenced to an illegal 40-year sentence for third degree murder. In S.C. v. Krasner, et al., the defendant had been found guilty of third degree murder by the Philadelphia Court of Common Pleas. At the time that the murder was committed, the statute in effect for third-degree murder authorized a maximum sentence of 20 years’ incarceration. While the case was pending, however, the Pennsylvania Legislature amended the statute to increase the maximum to 40 years’ incarceration. Following his conviction, the Court of Common Pleas improperly sentenced S.C. to 40 years’ incarceration despite the fact that ex post facto rules prohibit the government from retroactively applying laws which make penalties worse where those laws were not in effect at the time that the crime was committed. S.C.’s attorneys did not appeal on this issue at the time.

S.C. had a number of legal issues and was serving sentences in multiple jurisdictions at the same time. Over the years, he wrote to his original attorneys asking that they appeal the 20-40 year sentence because the sentence violated his rights in that he received a worse punishment than he could have received at the time of the offense. The attorneys wrote back and erroneously advised him that there was no rush to file an appeal or PCRA petition because the illegal sentence could be corrected at any time. Ultimately, S.C. made parole, but because of the illegal sentence, he would have remained on parole for twenty years. S.C. therefore filed a PCRA petition with prior counsel asking that the Court of Common Pleas for Philadelphia correct the illegal sentence and re-sentence him to 10-20 years’ incarceration. The trial court denied that petition, finding that it was untimely filed and that S.C. should have appealed at the time of his original sentencing. The Superior Court affirmed.

S.C. then retained Attorney Goldstein to file a petition in federal court. In general, once state court appeals and PCRA petitions have been denied, it is sometimes possible to challenge the rulings of the state courts in federal courts by filing a federal habeas petition pursuant to 28 US Code § 2254. Attorney Goldstein therefore filed a petition asking the federal court to find that the illegal sentence should be vacated because S.C. could not have properly received a 40 year sentence at the time of his original sentencing.

Attorney Goldstein also argued that the doctrine of equitable tolling should apply. In most cases, a federal habeas petition is subject to a one year statute of limitations which begins to run form when the defendant’s sentence becomes final. This typically means that the petition must be filed within about a year of the conclusion of any appeals, although a defendant may have an additional thirty or ninety days if the defendant appealed to the Superior Court or Pennsylvania Supreme Court. Equitable tolling is a doctrine which allows a federal court to consider a claim even when the statute of limitations has expired.

In order to receive equitable tolling, a petitioner must establish two elements: (1) that he or she has been pursuing his or her rights diligently, and (2) that some extraordinary circumstance stood in his way. Some federal courts have applied equitable tolling where it is clear that the petitioner was abandoned by counsel or received incredibly incorrect legal advice.

In this case, Attorney Goldstein filed the habeas petition, and the Philadelphia District Attorney’s Office then actually agreed to the relief sought. The Commonwealth, through its Conviction Integrity Unit, conceded that S.C. should not have received a sentence of more than 20 years under the third-degree murder statute which was in effect at the time of the crime. Given the Commonwealth’s agreement, the Eastern District of Pennsylvania promptly granted the habeas petition and ordered that the state court re-sentence S.C. S.C. then received a 10-20 year sentence, which he had already served, at the re-sentencing. Accordingly, he will not have to spend 20 years subject to the restrictions and whims of state parole.

Facing criminal charges? We can help.

Philadelphia Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also obtained new trials and sentencing hearings for clients on appeal and in post-conviction litigation. 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.