Philadelphia Criminal Defense Blog

Zak Goldstein 11/9/22 Zak Goldstein 11/9/22

PA Superior Court: Police May Enter Car To Retrieve Ghost Gun Without Warrant If Gun In Plain View

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Superior Court of Pennsylvania has decided the case of Commonwealth v. Malik Smith, overturning a previously granted motion to suppress relating to the search of a vehicle from which the police found a “ghost gun.” The Superior Court concluded that the trial court should not have suppressed a gun found in a car pursuant to a warrantless search of that car because the police properly entered the car under the “plain view” exception to the warrant requirement.

The Facts of Com v. Malik Smith

The defendant was pulled over in his vehicle for operating the vehicle with excessive tint on the windows in violation of the Motor Vehicle Code. The defendant was the lone occupant of the vehicle and was directed to roll down all the windows. As Officers approached the vehicle, one of the Officers observed a firearm on the rear floorboard. The officers ordered the defendant to exit the car, put him in handcuffs, and put him in the back of the police car. The defendant did not have a license to carry and was eventually charged with various violations of the uniform firearms act (VUFA). Prior to trial, the defendant moved to suppress the gun, arguing that police should have obtained a search warrant prior to the search and that the search was not legal under the plain view exception to the warrant requirement because the police did not know if the defendant had a license to carry. The trial court granted the motion to suppress, and the Commonwealth appealed.

The Superior Court’s Ruling on Appeal

The Superior Court reviewed the legal conclusions de novo, limited by the factual findings of the trial court. In its review, the court determined that the plain view doctrine allowed for the seizure of the firearm without a warrant. The Superior Court prefaced this determination based on a previous case Commonwealth v. Collins, 950 A.2d 1041 (Pa. Super. 2008). In Collins the court set out a three-pronged standard: “(1) an officer views the object from a lawful vantage point; (2) it is immediately apparent to him that the object is incriminating; and (3) the officer has a lawful right of access to the object.”

First, the Superior Court determined that the traffic stop was lawful and thus when the officer observed the firearm, it was from a lawful vantage point. The traffic stop for the window tint was justified because window tint violates the Motor Vehicle Code. Therefore, police had the authority to conduct the initial stop and pull the vehicle over.

Second, the court reviewed the second factor of whether it was immediately apparent that the firearm was incriminating - in other words, was it obviously illegal or some kind of contraband. In Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), the Pennsylvania Supreme Court ruled that possession of a firearm is not enough to infer criminal activity. When the officer observed the firearm, however, based on his years of experience, he was able to see that it had been modified, and was a “ghost gun.” Using a totality of the circumstances approach, the Superior Court determined that the incriminating nature of the firearm must have been immediately apparent, meeting the second prong. This factor is the most dubious under Hicks, but ghost guns are generally not legal in Pennsylvania, so had the officer not been able to tell that it was a ghost gun, the court might have reached a different conclusion. Finally, the court found probable cause to believe a crime had been committed based on the incriminating appearance of the firearm. Because the officer lacked advance notice and an opportunity to obtain a warrant, the officer had a lawful right to access the firearm and conduct a search.

Having met the three prongs needed to meet the plain view exception, the Superior Court determined that the seizure was lawful and did not violate the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. It therefore reversed the order of the trial court and remanded the case for trial. This case unfortunately represents a step away from the broad privacy rights granted by the Supreme Court in Commonwealth v. Alexander and Commonwealth v. Hicks. In Commonwealth v. Alexander, the Supreme Court held that police should get a search warrant prior to searching a car. In Hicks, the Court held that police may not assume that someone is possessing a gun illegally because many people possess firearms perfectly legally under the Second Amendment. Now, however, the Superior Court has begun to carve out significant exceptions to these two basic principles to the detriment of the defendant in this case and to the rights of citizens everywhere to be free of warrantless searches.

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 11/7/22 Zak Goldstein 11/7/22

PA Superior Court: Trial Court Erred in Dismissing Case Where Commonwealth Sought to Proceed Without Victim

The Pennsylvania Superior Court has decided the case of Commonwealth v. Fitzgerald, finding both that statements made to emergency personnel are non-testimonial and therefore generally admissible under the confrontation clause. The court also held that the trial court erred in dismissing the case where the Commonwealth indicated that it wanted to proceed and planned to seek to introduce the complainant’s statements to those EMTs and responding officers in the complainant’s absence. The court recognized that in general, the remedy for failing to present a necessary witness at trial is that the trial court should find the defendant not guilty. Further, it is fairly well-established that statements made as part of calling for help in response to an emergency do not implicate the confrontation clauses of the state and federal constitutions. Therefore, the Superior Court reversed the trial court’s order dismissing the case and remanded the matter for a trial.

Commonwealth v. Fitzgerald

In this case, the defendant appeared for a non-jury trial after the Commonwealth had requested two continuances due to its failure to locate the complainant. For this third listing, the Commonwealth indicated that it would move forward without the complainant. The defendant moved to dismiss the charges, arguing that there had been no opportunity to cross-examine the complainant and that introducing the complainant’s out-of-court statements in her absence would violate the confrontation clause. The confrontation clause gives a defendant the right to confront their accusers; this is generally accomplished through cross-examination.

The Commonwealth disagreed, contending that it would not introduce any evidence that would violate the confrontation clause. The trial court allowed the Commonwealth to make an offer of proof, and the Commonwealth announced its intention to enter a 911 call made in an emergency situation, to present photographs from police officer’s body cameras and observations of the scene, and to play a portion of body camera footage that showed the victim interacting with EMS. The Commonwealth suggested that it did not intend to introduce any hearsay statements through police officers.

After hearing this offer of proof, the trial court ruled that the proffered statements would be testimonial. The court therefore dismissed the charges.

The Proffered Evidence

The evidence in question was the following:

The complainant made a 911 call and informed the operator that her boyfriend, the defendant, had assaulted her and threatened her over a period of hours throughout the day. Pittsburgh Police Officer Tyler Newman responded to the 911 call and encountered the complainant, who indicated that the defendant had been physically assaulting and threatening to kill her over multiple hours. Officer Newman observed injuries on the complainant consistent with this story, and photographs of the injuries on her face, neck and collarbone were preserved from the officer’s body camera to be later introduced at the trial. EMS arrived on scene, and Officer Newman’s body camera captured a conversation between the complainant and a paramedic. The video showed that the paramedic questioned her to determine the extent of her injuries. Officer Newman also asked what she had been assaulted with, to which she replied she had been attacked by hand.

The police located the defendant based on the complainant’s description and found that the defendant was heavily intoxicated. They charged him with two counts of simple assault and one count each of terroristic threats and strangulation. The case was scheduled for a preliminary hearing. The complainant appeared for the preliminary hearing, and the defendant waived that hearing. Thus, his attorney never cross-examined the complainant.

The trial court dismissed the case, and the Commonwealth filed a motion to reconsider, attaching the transcript of the 911 call, transcript of the video, and still photographs. The trial court denied the motion to reconsider. The Commonwealth appealed.

The Superior Court’s Decision

First, the Superior Court rejected the defendant’s argument that the appeal should be quashed as interlocutory. As the trial court’s order resulted in the dismissal of the case, the order was a final order, and the Commonwealth therefore had the right to appeal.

Second, the Superior Court rejected the argument that the out-of-court statements were inadmissible due to the confrontation clause. The confrontation clause, as explained in the United States Supreme Court case of Crawford v Washington, prohibits out-of-court testimonial statements. Not all out-of-court statements are testimonial, however. Generally, statements are testimonial when they are intended to establish events for a subsequent criminal prosecution. Statements made in response to an ongoing emergency are often not testimonial.

Here, the complainant escaped from the defendant and went to a neighbor’s apartment. She called 911 in an attempt to obtain assistance from the police, not in order to provide a statement that would be used at a trial. The emergency was still ongoing, and follow-up questions asked by the operator were focused on assessing the threat to police and the victim to help with police response to the emergency. Citing the precedent of Davis v Washington, where a 911 call about an ongoing domestic disturbance was admitted as evidence and the US Supreme Court confirmed that the Confrontation Clause only applied to testimonial statements, the Superior Court concluded that the trial court in this case was mistaken in ruling in favor of the defense. Therefore, the trial court should not have even reached the issue of whether to dismiss the case because the statements themselves were admissible.

Finally, the Superior Court ruled that the trial court’s remedy was improper. The remedy for the Commonwealth seeking to proceed without a particular witness is to find a defendant not guilty following the close of the Commonwealth’s case; it is not to dismiss the case. Therefore, the Superior Court reversed the trial court’s ruling and remanded the case for trial.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Lawyers in Philadelphia

Zak Goldstein 10/25/22 Zak Goldstein 10/25/22

PA Superior Court: Contraband is Not a Strict Liability Offense

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Superior Court has decided the case of Commonwealth v. Arnold, holding that the crime of contraband is not a strict liability offense. Strict liability offenses are those which do not require a defendant to act with any mens rea or guilty conscience. They are disfavored in criminal law, and although the contraband statute does not actually identify a specific mens rea, the Superior Court found that the default mens rea of recklessness applies to this charge.

The Facts of Arnold

The defendant was arrested and detained in Butler County for a probation violation. He was transported to the Butler County Prison and placed in a holding cell. A corrections officer searched him during processing and found a pill for which the defendant did not have a prescription. The guard confiscated the pill, and the Commonwealth charged the defendant with contraband. The defendant proceeded to a trial, and he testified that he did not realize the pill was in his sock or shoe because his leg had been amputated, he wore a prosthetic leg between the knee and shoe, and he could not feel anything in the shoe as he did not have an actual foot. In addition to the pill in his sock, he had been found with another controlled substance in his cell. Later, the guards searched his cell and found three pieces of film that contained suboxone in the defendant’s wheelchair. He denied knowing about it.

The jury found him guilty of contraband and possession, and he received a 2-4 year incarceration sentence. Contraband provides for a two year mandatory minimum, so the court was required to impose the mandatory minimum sentence.

The Pennsylvania Superior Court Appeal

The defendant appealed, arguing that the trial court erred in failing to instruct the jury that it must find he acted with a specific mens rea in order to find him guilty of contraband and that making contraband a strict liability offense would violate due process. The Superior Court agreed.

The contraband offense is defined as:

A person commits a felony of the second degree if he sells, gives, transmits or furnishes to any convict in a prison, or inmate in a mental hospital, or gives away in or brings into any prison, mental hospital, or any building appurtenant thereto, or on the land granted to or owned or leased by the Commonwealth or county for the use and benefit of the prisoners or inmates, or puts in any place where it may be secured by a convict of a prison, inmate of a mental hospital, or employee thereof, any controlled substance included in Schedules I through V of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, (except the ordinary hospital supply of the prison or mental hospital) without a written permit signed by the physician of such institution, specifying the quantity and quality of the substance which may be furnished to any convict, inmate, or employee in the prison or mental hospital, the name of the prisoner, inmate, or employee for whom, and the time when the same may be furnished, which permit shall be delivered to and kept by the warden or superintendent of the prison or mental hospital.

This statute does not include a mens rea – in other words, it does not explicitly state that a defendant must act knowingly, intentionally, recklessly, or negligently. Instead, the statute appears to provide strict liability for bringing drugs into a prison. The Superior Court, however, recognized that where the legislature does not specifically state that a serious offense should be a strict liability offense, the crimes code requires a court to read in a minimum mens rea of recklessness. Here, the trial court had not done so. It did not require the jury to find that the defendant at least acted recklessly with respect to bringing the drugs into the prison. Therefore, the Court reversed the conviction and ordered a new trial.

Facing criminal charges? We can help.

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

PA Supreme Court: Trial Court May Dismiss Prosecution for Incompetent Defendant Where Defendant Unlikely to Regain Competency

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Humphrey, holding that Section 7403(e) of the MHPA authorizes a trial court to dismiss the charges of an individual deemed incompetent in any instance that the court finds it would be unjust to resume the prosecution due to the passage of time and its effect on criminal proceedings. Notably, the Supreme Court overruled prior precedent that an individual must regain competency before a trial court may dismiss charges due to the unreasonable nature of this condition and the plain language of the statutory text.

Commonwealth v. Humphrey

While serving a state sentence, the defendant allegedly threw a bag of urine on a corrections officer. A few months later, the defendant allegedly spat on a corrections officer. The Commonwealth charged the defendant with two counts of aggravated harassment by prisoner. Preliminary hearings occurred, and the charges were bound over for trial.

Defense counsel requested a psychiatric evaluation and competency examination of the defendant, and the trial court entered an order for these evaluations. Dr. Scott Scotilla evaluated the defendant and prepared a report. In the report, the defendant displayed paranoid and delusional behavior and frequently spoke about irrelevant topics, such as conspiracy theories, and did not answer Dr. Scotilla’s questions. Dr. Scotilla reviewed Department of Corrections Mental Health Contact Notes, which showed that the defendant had engaged in similar behavior previously. The defendant’s most recent diagnosis indicated he had antisocial personality disorder and mild intellectual disability. Dr. Scotilla concluded that the defendant should be evaluated at another psychiatric center which could more effectively evaluate the defendant and provide restoration of competency services if necessary, though Dr. Scotilla did not mention in his report if the defendant’s competency could be restored or if treatment options within the Department of Corrections could address his competency issues.

The defendant’s attorney filed a petition in the trial court claiming that the defendant could not understand the nature of the proceedings against him and that his mental illness prevented him from being criminally responsible for his offenses. During the hearing on this matter, the Commonwealth agreed that the defendant was not competent to proceed to trial at the time, and the trial court entered an order for the defendant to be admitted into involuntary treatment before the case would be reevaluated. The Department of Human Services ordered the defendant to be transferred to a hospital, but the hospital informed the Commonwealth that the defendant could not be admitted because he was a state inmate serving a sentence.

The defendant eventually filed a motion to dismiss his charges because the Commonwealth was unable to find him necessary competency restoration services, emphasizing the fact that two years had already passed since his offenses occurred and that he would likely not regain competency. The Commonwealth responded, arguing that the defendant did not present sufficient evidence that he would not regain competency to stand trial and requested that the defendant be reexamined for competency. The Commonwealth provided an assessment by Dr. Cynthia Wright of the DOC, where Dr. Wright opined that the defendant’s aggressive behavior was not due to mental illness, but instead due to a desire to receive special privileges. She opined that his diagnoses were antisocial personality disorder, borderline intellectual functioning, and adjustment disorder with depressed mood. Notably, the defendant did not cooperate with Dr. Wright’s evaluation, so she based her report on the defendant’s progress notes, treatment plans, medication summaries, diagnosis summaries, and physicians’ notes.

The court held a hearing on the defendant’s motion to dismiss. All three witnesses agreed that the DOC does not provide competency restoration services to inmates serving state sentences, but the DOC can provide some mental health treatment. The trial court granted the defendant’s motion to dismiss the criminal charges, referencing the Superior Court’s decision in Commonwealth v. McGargle and Section 7403(e), specifically the sentence that explains that a dismissal may occur if it would be unjust for the prosecution to resume based on the passage of time. The trial court noted that the defendant would only become eligible for competency restoration services in the next 2.5 to 13.5 years due to his current sentence and that even if he were paroled after 2.5 years, it is unlikely he would be able to recall the events of his offenses due to the passage of time and the severity of his incompetence.

The Commonwealth filed an appeal, raising the issues of whether the trial court’s dismissal of the defendant’s charges violated Section 7403, whether the evidence was insufficient that the defendant would be prejudiced by resuming criminal proceedings, and whether the trial court erred in dismissing the charges instead of ordering another competency evaluation. The Superior Court agreed that the trial court erroneously interpreted Section 7403(e), stating that relevant case law demonstrated that Section 7403(e) does not authorize dismissal of charges when a defendant would likely not regain competency. The Superior Court did not address the other two issues raised.

The Pennsylvania Supreme Court granted the defendant’s petition for allowance of appeal to address whether the Superior Court erred in reversing the dismissal of charges, where the defendant claimed that Section 7403(e) does authorize dismissal of charges when the resumption of prosecution would be unjust, evidence did establish that the defendant’s incompetence and the passage of time rendered the resumption of prosecution unjust, and competency evaluation was unnecessary since the trial court had concluded that sufficient time had passed for the prosecution to be rendered unjust.

The Pennsylvania Supreme Court’s Decision

The Supreme Court reviewed the MHPA, beginning with Section 7402(a), which states that when an individual who is charged with a crime is unable to understand the nature of the proceedings against him, he will be deemed incompetent to be tried, convicted, or sentenced for as long as the incapacity exists. Additionally, according to Section 7403(f), the stay of the prosecution may not last longer than 10 years in this case. The Supreme Court concluded that both the defendant’s and the Commonwealth’s interpretations of Section 7403(e) were reasonable. However, the Supreme Court determined that the consequences of the Commonwealth’s interpretation were not reasonable.

Under the Commonwealth’s interpretation, the trial court would not possess authority to dismiss criminal charges against an incompetent defendant under any circumstances. Section 7403(e) also does not state at any point that dismissal of charges is based on the defendant’s resumption of competency, which was part of the Commonwealth’s interpretation.

The Supreme Court also acknowledged that if ambiguity exists in a statute, the language should be interpreted in a way that is favorable to the defendant. The Supreme Court disagreed with the initial decision of the Superior Court, which presumed that the Legislature intended for the consequences of the statute to be unreasonable.

The Supreme Court reviewed relevant cases Hazur and McGargle, neither of which properly addressed whether a trial court may dismiss charges of an individual deemed incompetent for the foreseeable future. The Supreme Court determined that Section 7403(e) does grant trial courts the authority to dismiss criminal charges in any instance where it would be unjust to resume prosecution, whether or not the defendant has regained competency. The Supreme Court remanded the remaining issues to an intermediate appellate court. Therefore, the Superior Court vacated judgment and remanded for further proceedings.

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.