PA Superior Court: Sexually Violent Predator Determination May Not Be Made Based on Hearsay

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

The Pennsylvania Superior Court has decided the case of Commonwealth v. Aumick, holding that the Commonwealth may not use hearsay alone to prove that a defendant should be designated as a sexually violent predator (“SVP”). The Sex Offender Registration and Notification Act (SORNA) often requires defendants convicted of a sexually violent offense to be assessed on specific criteria to determine if they should be designated as an SVP. The court will then hold a hearing in order to determine the defendant’s status. In this case, the Superior Court rejected the proposition that the Commonwealth could rely only on hearsay testimony at an SVP hearing.

COMMONWEALTH V. AUMICK

The defendant pleaded guilty to one count of corruption of minors, resulting in a sentence of 18 months to 5 years in prison. This conviction required an assessment to determine if the defendant should be designated as an SVP. The Sexual Offenders Assessment Board (SOAB) assesses an individual with a criminal conviction. The assessment must consider a number of factors to determine if the individual has a mental abnormality or personality disorder that raises the likelihood of the individual engaging in sexually violent behavior. Such factors include whether the offense involved more than one victim; whether the individual exceeded necessary means to perform the offense; the nature of the sexual contact with the victim(s); the relationship between the defendant and the victim(s); the age of the victim(s); the extent of cruelty displayed by defendant during the offense; the defendant’s prior criminal history; whether the defendant fully completed prior sentence(s); whether the defendant participated in programs for sexual offenders; the defendant’s age; the defendant’s use of illicit drugs; whether the defendant suffers from a mental disability, mental illness, or other mental abnormality; any behavioral characteristics that relate to the defendant’s conduct; and any other factor that could relate to the defendant’s possibility of reoffending.

After the assessment is completed, the individual and district attorney receive of a hearing. The sentencing court must determine whether the Commonwealth can produce clear and convincing evidence that the individual should receive the designation of SVP at this hearing.

After the defendant’s guilty plea, the court ordered an assessment to determine whether the defendant should be designated as an SVP. Dr. Mary Muscari performed the assessment and concluded that defendant met the criteria. The report was sent to the Commonwealth, who forwarded a copy to the defendant and moved for a hearing. 

The Commonwealth used Muscari’s testimony as the basis for their case. At the hearing, however, Muscari admitted that she considered only documents submitted by third parties. She testified that she formulated her opinion based on both the offense to which the defendant had pleaded guilty as well as the unproven allegations of the victim which were included in the charging documents. Muscari opined that the defendant had a pedophilic disorder, and he met the predatory criteria required due to the conduct he engaged in with his step-granddaughter. She claimed that the defendant was likely to reoffend even though the defendant had not committed prior sexual crimes. 

Defense counsel counsel objected to Muscari’s opinion due to her claim that her assessment was partially based on allegations that to which the defendant did not plead guilty. Muscari also did not interview the defendant or the complainant for her assessment. Despite these objections, the trial court designated the defendant a sexually violent predator. Defense counsel appealed this decision, arguing the designation was based on hearsay related to allegations which were never proven because the defendant’s plea was not to all of the charges.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the trial court’s SVP designation. The Court concluded that Commonwealth v. McClelland set the precedent that hearsay alone is not sufficient evidence for a prima facie case at a preliminary hearing. If hearsay is not sufficient to hold a defendant for court at the preliminary hearing, then it is also not sufficient for establishing that a defendant is a sexually violent predator. As Muscari served as the only witness and did not provide any non-hearsay proof that the defendant was a sexually violent predator to support her conclusion, the Court determined that the Commonwealth failed to meet its burden of presenting clear and convincing evidence. Most importantly, the Court found that the doctor simply could not rely on hearsay evidence relating to unproven allegations. Had the doctor interviewed either the defendant or the complainant and learned firsthand of those claims, the doctor would have been in a position to decide whether or not to consider them. But here, the expert relied entirely on the hearsay contained in charging documents. Accordingly, the doctor’s opinion was not based on competent evidence, and the Court reversed the trial court’s decision.

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. We have also helped numerous clients obtain new trials and sentencing hearings on appeal. 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.

PA Superior Court: Police Generally May Not Search Car Incident to Arrest Without Search Warrant

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Lutz, holding that the police generally may not search a car incident to the driver’s arrest without first obtaining a search warrant. This is an important holding because it provides substantial protections for Pennsylvania citizens that are not provided by federal law. Further, the court also suggested that police may not be able to go into a car to retrieve contraband under the plain view doctrine without first obtaining a warrant, as well.

The Facts of Lutz

In Lutz, the defendant was arrested for DUI as well as possession of marijuana and possession of drug paraphernalia. The defendant moved to suppress the evidence which the police had recovered from her vehicle, namely the marijuana as well as a marijuana pipe.

The trial court held a hearing on the motion to suppress. At the hearing, Sergeant Nunemacher of the Lansford Police Department testified that he responded to a report of a suspicious vehicle parked at the foot of a private community on a water authority road. Police regularly patrolled this area because it was known for drug activity and as an area where people dump garbage. When he arrived, he found the defendant’s vehicle parked in a rocky area. He heard loud music coming from the car.

The defendant exited the vehicle and approached the officer. The officer quickly concluded that the defendant was under the influence of alcohol and called for backup. He asked the defendant to participate in field sobriety tests as well as to take a breathalyzer, but she did not really comply. He ultimately arrested her for DUI.

The officer then checked on the defendant’s vehicle. The defendant had left her keys in the ignition, and the car was still running. When the officer looked into the car, he saw a marijuana pipe sitting on the driver’s seat. He went into the car to turn off the car and retrieve the pipe. The defendant told the officers that they might find some marijuana in the car, so the officers then searched the rest of the car and unsurprisingly found marijuana.

The trial court denied the motion to suppress. The court found that police were not required to obtain a search warrant because the pipe was contraband which was in plain view and because they were allowed to search the car incident to the defendant’s arrest. The defendant appealed.

The Pennsylvania Superior Court Appeal

The Superior Court reversed the trial court’s ruling on appeal. The Superior Court found that with respect to the pipe, the officers had not violated the requirement that they obtain a search warrant prior to searching a vehicle because the officers found the pipe pursuant to the plain view exception to the warrant requirement.

Under Commonwealth v. Alexander, police generally must obtain a search warrant prior to searching a vehicle. There are exceptions, however, for exigent circumstances. In this case, there were no exigent circumstances that would allow a frisk of the vehicle, but the plain view exception applied.

The plain view exception allows police to conduct a warrantless search and seizure if four elements are met. First, the police must not have violated the Fourth Amendment in arriving at the location from which the item could be viewed. Second, the item must be in plain view. Third, the incriminating character of the item must be immediately apparently. Fourth, the police must have a lawful right of access to the item itself.

Here, the Court found that all four requirements were met with respect to the pipe. The police were on public property and able to see the pipe without going into the car. The pipe was plainly visible without opening the door or moving anything, and based on the officers’ experience, the pipe was clearly for use with marijuana instead of tobacco.

The fourth requirement, however, was a little bit more complicated. Police did not have a search warrant, so they could not really enter the defendant’s car. The Superior Court, however, found exigent circumstances from the fact that the defendant had been arrested and police needed to go into the car to turn the car off and retrieve the keys because the defendant had left the car running. Once they were in the car for the purpose of turning it off and getting the keys, the police were then allowed to retrieve the pipe without getting a warrant. They had a lawful right of access to the item from the exigent circumstances of needing to turn off the car.

This would have been a more difficult question had the car not been running. The Court’s opinion implies that in that case, the police would likely need to get a warrant prior to retrieving the pipe even if they could tell that it was contraband before they entered the car. This is an important issue which has not totally been resolved by the Pennsylvania courts as officers often claim to have seen contraband in plain view during traffic stops. Here, the Court relied on the exigency of needing to turn the car off to support the warrantless entry into the car, suggesting that if the car had been off, police would have needed to get a warrant prior to retrieving the pipe.

With respect to the rest of the search of the car for the items that were not in plain view, the police action was very clearly unconstitutional. As previously mentioned, in Commonwealth v. Alexander, the Pennsylvania Supreme Court found that police generally need to get a search warrant prior to searching a vehicle. As a general rule, there is a search incident to arrest exception which allows police to search a person who has been arrested for drugs or contraband as well as to inventory their belongings. The Court here held that that exception does not extend to a person’s vehicle once the person has been arrested, removed from the vehicle, and placed in handcuffs. At that point, there is no basis for believing that the person could retrieve a weapon and destroy evidence, so the exception does not apply. Therefore, the trial court should have granted the motion to suppress with respect to the marijuana in the car. The Court reversed the conviction and remanded the matter for a new trial without the illegally seized drugs.

Read the Superior Court’s Opinion

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Philadelphia 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.

PA Superior Court: Trial Counsel Provided Ineffective Assistance in Advising Defendant Not to Testify

Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Washington, holding that a defense attorney was ineffective when he gave incorrect legal advice that persuaded his client not to testify at his own trial. This decision is significant because it requires attorneys to provide correct and competent advice when advising their clients whether to testify at trial. Defense attorneys must have a thorough understanding of the rules of evidence when advising their clients whether to testify or even go to trial. This decision provides additional protections to criminal defendants.  

Commonwealth v. Washington

Police observed a disturbance outside of a Lancaster City restaurant and lounge. The officers made contact with the involved parties, one of whom was the defendant. The defendant became combative with the officers, yelled profanities, and refused to be arrested. As a result of the defendant’s behavior, the officers used a taser on him to “control the situation.” The defendant was then subsequently arrested and was charged with terroristic threats, resisting arrest, and other related offenses. 

The defendant was then taken to Lancaster County Prison. While in prison, he allegedly told his cellmate that he wanted to kill the officers involved in his arrest. According to his cellmate, the defendant solicited him in plotting to kill the officers. The cellmate reported the defendant’s plot to the authorities and gave the names of the specific officers that the defendant allegedly intended to kill. As a result of this, the Commonwealth charged the defendant with four counts of criminal solicitation to commit homicide. The defendant then proceeded to a jury trial on the solicitation charges. At this trial, the cellmate was the main witness against the defendant. 

At the conclusion of the trial, the jury convicted the defendant of three counts of criminal solicitation to kill the officers involved in his original arrest. The trial court sentenced the defendant to a term of 25 ½ to 60 years’ incarceration. The defendant then filed an appeal which was denied. He also declined to file a petition for allowance of appeal with the Pennsylvania Supreme Court. The defendant then filed a Post-Conviction Relief Act (“PCRA”) petition alleging ineffective assistance of counsel. However, for reasons that will not be explored in this blog, it was denied. The defendant then filed another PCRA petition. The defendant raised several issues, including that his trial counsel was ineffective in advising him not to testify at trial.

The trial court held a PCRA hearing. At this hearing, defendant’s original trial counsel could not recall if he and Appellant had any pre-trial conversation regarding whether the defendant would testify, but if he did have such a conversation, it would have been “very brief.” However, the trial counsel did state that the defendant turned to him and said “this is not going well, I need to testify…because I need to be able to explain to the jury how [the cellmate] got this information.” At this point, the defendant and trial counsel discussed whether the defendant should testify. The trial attorney then told the defendant that “I don’t want you to get on the stand because the prosecutor could bring up the aggravated assault conviction and then the jury…will think you’re violent.” The trial attorney believed that if the defendant were to testify his conviction for aggravated assault and the details of that conviction would come in for impeachment purposes. Based on that belief, the trial attorney advised the defendant not to testify. 

 At the hearing, the trial attorney admitted that if the aggravated assault conviction was not admissible for impeachment purposes, “then there would have been no reason to advise [the defendant not to testify]” because he really wanted to explain to the jury how his cellmate got that information. Though the defendant also had a burglary conviction that could have been used for impeachment purposes, the trial attorney stated that he “wasn’t even thinking about the burglary conviction.” Additionally, the trial attorney testified that the defendant was “not a foolish man” and therefore did not have any concerns that the defendant would have “opened the door” to allowing the prosecutor to cross the defendant on his prior aggravated assault conviction. Based on this advice not to testify and the reasons for it, the defendant did not testify at this trial. 

The defendant also testified at the PCRA hearing. He testified that prior to trial there was no understanding that he was going to testify. However, as the trial progressed, he told trial counsel that he “wanted to testify so [the jury] could know the whole story as to how any information that was on [his] paperwork was being transmitted by [his cellmate].” Specifically, the defendant would have explained that he had his paperwork in his cell and this was how the cellmate knew the names of the officers involved in Appellant’s first case. The defendant confirmed that his trial counsel told him that if he testified the jury would hear about this prior aggravated assault conviction and he relied on his advice when deciding not to testify. 

Following the hearing and submission of post-hearing briefs, the trial court denied the defendant’s PCRA petition. The defendant then filed a timely notice of appeal. The Superior Court then denied his appeal. Undeterred, the defendant then filed a petition for re-argument before an en banc panel of the Superior Court. On appeal, the defendant raised three issues, however for purposes of this blog, only the issue of whether trial counsel’s advice concerning his aggravated assault conviction was so unreasonable that the defendant did not and could not have made a knowing and intelligent decision not to testify at trial.  

The Pennsylvania Superior Court’s Decision  

The Pennsylvania Superior Court reversed the lower court’s decision and granted the defendant a new trial. In making its decision, the Superior Court reviewed prior case law and the rules of evidence. Rule 609 of the Pennsylvania Rules of Evidence allows for a witness to be impeached with a prior conviction for a crime if it involves dishonesty or a false statement (also referred to as “crimen falsi”). The Commonwealth conceded that aggravated assault was not a crime that involved crimen falsi. Additionally, there was a prior Pennsylvania Supreme Court decision that held that a defense attorney provided ineffective assistance of counsel when he advised a defendant to waive his right to testify because he could be impeached with his prior drug and firearms convictions. 

The Superior Court also agreed that that the trial attorney’s advice to the defendant was improper. Additionally, the Superior Court did not find that the fact that the defendant had a prior burglary conviction, that is a crimen falsiconviction, relevant because the trial attorney specifically testified that his sole reason for advising the defendant not to testify was because of his prior aggravated assault conviction. Further, the Superior Court was not concerned that the defendant’s testimony was probably speculative. The relevant inquiry is whether his decision not to testify would have been different absent his trial attorney’s ineffectiveness. In this case, it is clear that the defendant would have testified had his attorney provided competent legal advice. Therefore, the defendant’s convictions are vacated and he will get a new trial. 

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.

PA Superior Court: Police Officer May Not Offer Plea to Summary in Felony Case Without District Attorney's Permission

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Martinez-Santiago, holding that a plea deal that was negotiated between a police officer and a defendant at the preliminary hearing was invalid due to the officer’s failure to obtain the consent of the district attorney prior to entering into the agreement. This decision is concerning because in counties outside of Philadelphia, defendants and police officers will often negotiate plea deals at the preliminary hearing. This decision holds that the respective district attorney’s offices do not have to honor those plea agreements and can proceed to re-arrest these defendants if the agreement is not to their liking. The defendant in this case thought his felony charges had been resolved with a plea to summaries, but the district attorney was able to reinstate the felony charges despite the fact that the arresting officer and the defendant had resolved the case at the preliminary hearing.

Commonwealth v. Martinez-Santiago

The defendant was arrested by a Pittston Township Police Officer after he allegedly stole a pack of cigarettes from a gas station and physically assaulted the responding officers when he was confronted by them. The defendant was originally charged with two counts of aggravated assault (graded as a felony of the first degree), one count of resisting arrest (graded as a misdemeanor of the second degree), two counts of simple assault (graded as a misdemeanor of the second degree), one count of disorderly conduct (graded as a misdemeanor of the third-degree), and one summary count of retail theft.  

About a month after he was arrested, the defendant was scheduled for his preliminary hearing. At his preliminary hearing, the defendant negotiated a plea agreement with one of the officers involved. Specifically, the defendant agreed to withdraw all the charges against the defendant, with the exception of the retail theft charge, and then add two counts disorderly conduct which were graded as summary offenses. Notably, this agreement was not in writing. The defendant immediately agreed to the deal and then was sentenced in front of the Magisterial District Judge. 

About a month after the defendant entered into this plea deal, the Commonwealth re-filed the original charges against the defendant. A preliminary hearing was held and the same Magisterial District Judge who accepted the plea held the charges. The case was transferred to the Court of Common Pleas of Luzerne County for trial. After his case was held for court, the defendant filed a motion to dismiss the re-filed charges. Specifically, the defendant argued that the proceedings were being held in violation of the compulsory joinder pursuant to Pa. C.S. § 110(a)(1) and that they violated the double jeopardy clauses of the United States and Pennsylvania Constitutions. The trial court denied the defendant’s motion to dismiss, but the court also concluded his motion was “not frivolous.” The defendant then filed a timely notice of appeal. 

On appeal, the defendant argued that the officer was authorized to withdraw the felony and misdemeanor charges without obtaining approval of the District Attorney’s office. The defendant argued that Rule 551 of the Pennsylvania Rules of Criminal Procedure gives the officer authority to withdraw charges. Therefore, in the instant case, the officer was the Commonwealth’s “designee” and therefore was acting under the color of his authority when he sua sponte negotiated and implemented the plea agreement. 

What is Rule 551 of the Pennsylvania Rules of Criminal Procedure?

Rule 551 of the Pennsylvania Rules of Criminal Procedure states: “In any court case pending before an issuing authority, the attorney for the Commonwealth, or his or her designee, may withdraw one or more of the charges. The withdrawal shall be in writing.” 

The Pennsylvania Superior Court’s Decision  

The Pennsylvania Superior Court affirmed the trial court’s order. The Superior Court rejected the defendant’s argument that the officer was an official “designee” of the Commonwealth. The Superior Court held that “a police officer does not become a designee simply by virtue of his mere presence at a proceeding.” According to the Superior Court, there must be “some documentation or corroboration…to establish the existence of such a delegation of authority by the Commonwealth to a [police] officer.” Additionally, the Superior Court held that this plea agreement was not valid under Rule 551 because it was not done in writing as required by the statute. Therefore, because of a lack of corroborating lack of documentation, the defendant’s plea agreement was “unsuccessful and legally insufficient.” Finally, the Superior Court held that the Magisterial District Judge did not have jurisdiction to transform the preliminary hearing into a guilty plea hearing because the felony and misdemeanor charges against the defendant “were never legitimately withdrawn” because the court did not have “proper authorization or documentation.” As such, the defendant will have to face trial on the previously withdrawn felony and misdemeanor charges.   

Facing Criminal Charges? We Can Help. 

Goldstein Mehta LLC Criminal Defense Attorneys in Philadelphia, PA

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.