Philadelphia Criminal Defense Blog

Zak Goldstein 10/6/22 Zak Goldstein 10/6/22

PA Superior Court Reverses Itself and Finds ARD Counts as Prior Conviction in DUI Cases

An en banc Pennsylvania Superior Court has decided the case of Commonwealth v. Moroz, holding that proof of a prior acceptance of ARD counts as a prior offense for sentencing purposes in DUI cases. Notably, this decision overrules the recent panel decision in Commonwealth v. Chichkin which held that prior acceptance of ARD did not count for recidivist purposes.

Commonwealth v. Moroz - Does ARD Count As a Prior Offense in a DUI Case?

Police arrested the defendant for two DUIs on two separate dates. The defendant then entered the Accelerated Rehabilitative Disposition (ARD) program for his first DUI. The court deferred the defendant’s sentencing on other charges from his second arrest. Before sentencing could occur, the Pennsylvania Superior Court issued its opinion on Chichkin, holding that a DUI offense where ARD was accepted could not be used to impose an increased sentence for subsequent DUI offenses.

During trial, the defendant objected to being sentenced as a recidivist based on his prior ARD offense, citing Chichkin. The Commonwealth argued that if it could prove the first DUI offense beyond a reasonable doubt in an evidentiary hearing at sentencing, then it could establish the second DUI was a second offense even though the defendant had received ARD. The Commonwealth then requested an evidentiary hearing to address whether it could prove the first DUI beyond a reasonable doubt. This request was denied. The trial court held the defendant’s sentencing hearing , and the trial court relied on Chichkin in sentencing the defendant as a first-time offender.

The Commonwealth filed a timely appeal, raising the issues of whether the defendant’s prior acceptance of ARD for his first DUI qualified as a prior offense and whether Chichkin should be overruled.

The Pennsylvania Superior Court’s Decision

The Superior Court reviewed relevant case law to make its decision, as well as the DUI gradation statute, Section 3806. Section 3806 specifically mentions that acceptance of ARD constitutes a prior offense. Additionally, other cases such as Commonwealth v. Whalen and Commonwealth v. Scheinert demonstrate that a defendant must voluntarily agree to ARD, indicate he understands the proceedings, and agree to comply with any conditions imposed by the court. The defendant is also presumed to be aware of Section 3806 when accepting ARD. The Superior Court acknowledged that acceptance of ARD does not contain the same procedural safeguards of a conviction following a trial, but it deemed the safeguards of ARD sufficient due to the “intensive process” of the ARD program. Additionally, Whalen states that ARD can be equated with a conviction only under certain circumstances, such as sentencing on subsequent convictions.

Therefore, the Superior Court overruled Chichkin, vacating the defendant’s judgement of sentence, and remanding for further proceedings. The defendant will now face a significantly increased mandatory minimum when he is sentenced as a second-time offender barring further appeals. The Pennsylvania Supreme Court has accepted review of this issue, so this will not be the final word on whether ARD counts as a prior offense in DUI cases.

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Criminal Defense Lawyers in Philadelphia — 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 10/3/22 Zak Goldstein 10/3/22

PA Superior Court: Defendant May Raise Ineffective Assistance of Counsel Claims on Direct Appeal Where Claims Are Obvious From Record

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

The Pennsylvania Supreme Court has decided the case of Commonwealth v. McMahon, holding that inadmissible opinion testimony from police about crimes the defendant may have committed but for which he was not charged require a new trial and that the defendant should have been able to raise the claim that his lawyer should have objected to this testimony on direct appeal because the ineffective assistance of counsel was obvious from the record.

Commonwealth v. Bieber

A Pennsylvania jury initially found the defendant guilty of one count of carrying firearms without a license and four counts of harassment. The jury found the defendant not guilty of 16 other counts. The defendant had originally been charged with aggravated assault and other more serious offenses. The court sentenced the defendant to a short county jail sentence, and the defendant appealed. The defendant won his first appeal after successfully arguing that the trial court had conducted a defective waiver-of-counsel colloquy. The appellate courts remanded the case for a new trial.

At the second trial, the Commonwealth proceeded only on the VUFA § 6106 charge because the defendant had been acquitted of the other offenses. Thus, even though he won his first appeal, double jeopardy had attached to the offenses of which he was acquitted. It did not attach, however, to the offense of which he was originally convicted.

VUFA § 6106 makes it illegal to carry a concealed firearm or a firearm in a car without a license to carry. There are, however, numerous exceptions. The exception at issue in this case was the Sportsman’s Permit Exception, which allows for individuals who possess a hunting license to carry a firearm in a vehicle when they are genuinely on their way to or from hunting.

The Facts at Trial

The Commonwealth established that the defendant was driving a car with his then-girlfriend when police conducted a vehicle stop. Police observed a handgun in plain view on the driver’s side of the car, in addition to a holster, a magazine containing eight rounds of ammunition, and one loose round. The handgun was unloaded. The defendant’s girlfriend told police that the gun was not loaded, but at trial, she testified that she had lied. She then testified that during the traffic stop, she heard clicks and the sound of something hitting the floor, and she further explained that the defendant had told her not to tell police that the gun was loaded.

Sergeant Craig Wharton testified that the defendant had previously possessed a license to carry a concealed firearm, but the license had been revoked in 2014. He also testified that at the time of the stop, the defendant possessed a Pennsylvania’s Sportsman’s Firearm Permit, but he did not believe Section 6106(b)(9) applied because the defendant had not been engaged in any hunting or other relevant activities at the time of the traffic stop.

Sheriff Frank Levindoski also testified, explaining that individuals without a carry-concealed permit cannot legally transport a loaded firearm in their car. He then testified to his interpretation of the proper way to transport a loaded firearm. His opinion that an individual may not carry a loaded firearm in a car without a license to carry was based on his interpretation of a different statute, § 6106.1, which the defendant had not been charged with violating. Based on the Commonwealth’s allegations, the defendant could have been charged with violating this statute, but he had not been. The defendant objected to this testimony.

The defendant then testified in response. He provided evidence of his fishing license, hunting license, and sportsman’s firearm license. He admitted he owned the firearm recovered by the police and testified that he had planned to go fishing after dropping his girlfriend off at her home. He also testified that he had had fishing poles and a tackle box in his vehicle, but the police had not searched the trunk, so they did not see those items.

During closing arguments, the Commonwealth asked the jury to rely on Sheriff Levindoski’s testimony that the defendant could not have a loaded firearm in his vehicle without a carry-concealed license unless he was an officer of the law. The jury found the defendant guilty of violating Section 6106. The defendant filed a post-sentence motion seeking unitary review on direct appeal of both his appellate claims and his ineffective assistance of counsel claims (IAC). The trial court held a hearing on the post-sentence motion, but it refused to address the IAC claim that his lawyer should have objected to the officer’s opinion testimony. It denied the motions.

The defendant again filed a timely notice of appeal.

The Pennsylvania Superior Court’s Decision

On appeal, the defendant argued that the Commonwealth elicited inadmissible opinion testimony from Sergeant Wharton and Sheriff Levindoski. He also argued that that his trial counsel was ineffective in failing to object to such testimony. The defendant also argued the trial court erred in declining to grant a new trial due to the error in admitting the improper opinion testimony. The defendant asserted the trial court erred by not permitting the defendant to raise his ineffective assistance of counsel claims in the post-sentence motion so that they would be preserved for the direct appeal.

The Superior Court began its review by addressing Section 6106 and exception Section 6106(b)(9), also known as the Sportsman’s Permit Exception. Notably, the Sportsman’s Permit Exception applies to loaded and unloaded firearms. However, a separate statute, Section 6106.1, does prohibit an individual from carrying a loaded firearm in a vehicle.

The Superior Court further addressed the defendant’s claim that the trial court erred in denying his request to litigate his IAC claims on direct appeal. The Superior Court reviewed relevant case law, including the Holmes exceptions. Typically, IAC claims may only be raised in PCRA proceedings, and PCRA proceedings take place after the direct appeal. The direct appeal generally addresses errors of law made by the trial judge where the trial judge was asked to make a ruling by the lawyers, whereas PCRA proceedings most often involve claims of ineffective assistance of counsel. Thus, a direct appeal claim would be that the judge should have granted a motion, while the PCRA claim would be that the lawyer was ineffective in failing to bring a legitimate motion.

There are exceptions to this rule, however, pursuant to Commonwealth v. Holmes. For example, a defendant may potentially raise a PCRA claim on direct appeal where the ineffectiveness is so apparent that immediate consideration would best serve the interests of justice. In such a case, the defendant generally must raise the claim in a post-sentence motion and agree to waive their right to file a PCRA following the direct appeal. Courts are most likely to address the PCRA claims early when the defendant is serving a short sentence which could expire before a PCRA may be filed. A defendant must be serving a sentence in order to file a PCRA, so if the sentence has expired, the defendant cannot litigate a PCRA. Here, the defendant had received a short sentenced, and he argued that the exception applied.

Because the defendant was unlikely to have sufficient time to file a PCRA following the appellate process, the Superior Court agreed to review the claim. The Superior Court concluded that the trial court should have permitted the defendant to raise his IAC claims in the post-sentence motions and on direct appeal because his short sentence would not afford him a realistic ability to obtain consideration of his IAC claims during a PCRA review. The Superior Court therefore addressed the issues on the merits.

The Court agreed with the defendant’s claims. It reasoned that when evidence is improperly admitted, the error is subject to harmless error analysis. The defendant argued that Sergeant Wharton’s testimony constituted improper legal opinion testimony by providing a legal conclusion. The trial court did not address the admissibility of this testimony but determined that it was harmless error, while the Commonwealth argued that his testimony simply explained with what he was charged and why. The Superior Court agreed with the Commonwealth that Sergeant Wharton did not interpret the law. Instead, he testified based on his own observations whether he saw evidence that the defendant would soon engage in hunting activities.

Regarding Sheriff Levindoski’s testimony, neither the trial court nor the Commonwealth addressed the admissibility of his testimony, though both explained that any error was harmless. The Superior Court agreed with the defendant, stating that Sheriff Levindoski should not have testified to the contents or his interpretation of Section 6106.1 since he had served as a lay witness, not an expert witness. Further, any testimony regarding § 6106.1 was irrelevant because the defendant was not charged with violating that statute.

The Superior Court also disagreed with the trial court’s assertion that the error was harmless and that the evidence was overwhelming. Although the defendant’s girlfriend testified that the defendant never said he was going fishing, the defendant did not testify that he planned to take his girlfriend fishing with him. Additionally, none of the officers testified to searching the trunk of the vehicle, where the defendant claimed that he had kept the fishing equipment. Finally, none of the officers testified to asking the defendant about his intent to go fishing. Thus, the Superior Court asserted that the issue for the jury to resolve was the defendant’s credibility and that the evidence against the applicability of the Sportsman’s Permit Exception was not overwhelming. The Superior Court also found that the Commonwealth relied on Sheriff Levindoski’s inadmissible testimony in its closing argument, proving the error was not harmless. Specifically, the Commonwealth emphasized the prohibition against carrying a loaded firearm in a vehicle under Section 6106.1, which had been introduced under Sheriff Levindoski’s testimony, though this had nothing to do with the Sportsman’s Permit Exception, and the defendant had not been charged with a Section 6106.1 violation. The Superior Court explained it could not conclude that Sheriff Levindoski’s testimony did not contribute to the verdict. Therefore, the Superior Court vacated the judgment of sentence and remanded for a new trial.

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Zak Goldstein 9/18/22 Zak Goldstein 9/18/22

Attorney Goldstein Argues in Front of Supreme Court of Pennsylvania

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire, recently argued in front of the Pennsylvania Supreme Court in the case of Commonwealth v. J.W. In that case, the defendant had been convicted in the Montgomery County Court of Common Pleas of aggravated assault and related charges. The Commonwealth alleged that J.W. shot another man in the head and injured him. J.W.’s co-defendant was wearing a probation GPS monitor at the time, and video evidence showed J.W. and the co-defendant together earlier in the day. The GPS evidence placed the co-defendant at the scene of the shooting. Video surveillance also showed that more than one person was involved, so the Montgomery County jury convicted J.W. based on his link to the co-defendant from being seen with him earlier in the day, the GPS evidence, and a number of recanted statements from witnesses.

J.W. was represented by different counsel at trial. He retained Attorney Goldstein for the appeal to the Pennsylvania Superior Court. On appeal, Attorney Goldstein argued that the GPS evidence was hearsay which should not have been introduced into evidence at trial. The Commonwealth had agreed that the GPS evidence was hearsay but argued that it was admissible pursuant to the business records exception, which allows otherwise inadmissible hearsay to be introduced when the hearsay is kept in the normal course of business and appears to be reliable.

The Superior Court rejected the argument, holding in a matter of first impression that computer generated evidence like GPS records is never hearsay because they are the statements of computers rather than humans. Attorney Goldstein filed a petition for allowance of appeal to the Pennsylvania Supreme Court, and the Supreme Court granted the petition to determine whether the rule against hearsay prohibits evidence like GPS records. Attorney Goldstein therefore participated in oral argument before the Court in Philadelphia, and the Court will now decide this important issue of law.

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 won criminal appeals in state and federal court. 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 8/31/22 Zak Goldstein 8/31/22

Pennsylvania Superior Court: Police May Stop You if Any Part of License Plate Covered

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Ruffin, holding that it is illegal to obstruct any portion of a car’s license plate and therefore police may conduct a motor vehicle stop even if they can see the tag number.

Commonwealth v. Ruffin

A Philadelphia police officer conducted a traffic stop due to a motor vehicle’s partially obstructed registration plate. The officer could see the tag number, but the border that had been put on by the auto dealership covered the portion of the plate which provides the state’s tourism website. After pulling the car over solely for that reason, the officer noticed that the vehicle had five occupants in it. he saw the defendant moving in a manner as if he was concealing something in a seat, so the officer decided to conduct a protective sweep or “frisk” of the car. He found a loaded revolver underneath a sweatshirt on the defendant’s seat. He also found ammo in the defendant’s pocket, so he arrested the defendant for various firearms charges after learning the defendant did not have a license to carry.

The Motion to Suppress

The defendant was charged with possession of a firearm by a prohibited person, carrying a firearm without a license, carrying a firearm on public property, and possession of marijuana. The defendant filed a motion to suppress the evidence recovered from the vehicle, arguing that the stop, search, and seizure violated his rights under the Fourth Amendment.

At the suppression hearing, the defendant argued that the officer should not have initiated the stop because he could read the numbers and letters on the license plate. The trial court granted the defendant’s motion, ruling that the officer did not possess reasonable suspicion or probable cause to pull the vehicle over for an obscured website on the frame given that the officer could read all of the information that was actually relevant to police. The Commonwealth then filed an appeal of the court’s decision.

The Pennsylvania Superior Court’s Decision

On appeal, the Commonwealth argued that the lower court erred in suppressing the gun because the gun was recovered during a lawful traffic stop for a vehicle code violation. The statute, section § 1332, makes it illegal to have the plate “obscured in any manner.” The Superior Court therefore had to determine what that section means. The Superior Court reversed, finding that the trial court had failed to use the plain meaning of “any manner.” Because the tourism website was part of the plate, and the tourism website was blocked by the dealer’s modification, the plate was obscured in “any manner.” Therefore, the police had probable cause to stop the vehicle to issue a warning or citation for the motor vehicle code violation. The Court dismissed the defendant’s arguments that the tourism argument did not have any relevance to the police. As the Court concluded that the stop was legal, the case will be remanded for trial unless the defendant files additional appeals.

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 won criminal appeals in state and federal court. 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.