Philadelphia Criminal Defense Blog

Zak Goldstein 12/14/22 Zak Goldstein 12/14/22

PA Superior Court: Trial Court Must Hold Ability to Pay Hearing Before Finding Parolee in Violation

The Pennsylvania Superior Court has decided the case of Commonwealth v. Reed, finding that the trial court erred in sentencing the defendant to prison for violating parole by failing to pay costs and fines without first holding a hearing to make sure that the defendant was actually able to make those payments. Courts may sentence a defendant to prison for failing to pay restitution, court costs and fines, but they can only do that where the failure to pay is willful. Therefore, a court must first hold a hearing to determine whether or not a defendant can afford to pay before sentencing a defendant to jail.

The Facts of Reed

The defendant was given a sentence of six months to two years, minus a day, of incarceration. In addition, he was ordered to refrain from illicit drug use, pay fines and costs, complete a drug and alcohol evaluation and treatment, and report to probation. About six months later, the court granted parole. Then, 16 months later, the defendant received notice that he had allegedly violated his parole.

The defendant appeared for a violation of probation (VOP) hearing. The trial court found the defendant violated his parole by (1) using illicit drugs, (2) failing to pay court-ordered fines and costs, (3) failing to submit to a drug and alcohol evaluation, and (4) failing to report to his parole officer. The court revoked the defendant’s parole and sentenced him to his back time. Back time is the time during which the defendant would have been on parole had he not violated.

The Issues on Appeal

On appeal, the defendant raised three issues. First, he challenged the adequacy of the notice of the parole violation. The defendant argued that the notice sent to him through the mail did not adequately inform him of all the details of the alleged parole violation. The Superior Court found this issue waived because the defendant had not brought it up in the trial court.

Second, the defendant argued that the conditions of parole which he was accused of violating had not actually been made a part of his sentence, and he could not violate something which was not part of his sentence. The Superior Court rejected this challenge, finding that paying fines and costs, submitting to drug assessments, refraining from the use of illegal drugs, and reporting were all part of the defendant’s sentence.

Finally, the defendant argued that the trial court erred in violating him for failure to pay costs and fines without first holding an ability to pay hearing. The Superior Court cited Pennsylvania Rule of Criminal Procedure 706(A). The rule provides:

A court shall not commit the defendant to prison for failure to pay a fine or costs unless it appears after hearing that the defendant is financially able to pay the fine or costs.

The Superior Court further cited Commonwealth v. Cooper, recognizing that when a defendant is found in violation of their parole and recommitted, if failure to pay was part of the violation, then the defendant is entitled to an ability to pay hearing. Here, the Superior Court found there was an error by the trial court.

The Superior Court’s Ruling

The Superior Court ruled that even though the trial court properly found violations of parole and sentenced the defendant based on those violations, the trial court was required to hold an ability to pay hearing before ordering any sentence of incarceration. The trial court erred in failing to give the defendant the opportunity to establish his inability to pay his costs and fines prior to imposing an incarceration sentence. Therefore, the court vacated the sentence and remanded the case for an ability to pay hearing and re-sentencing.

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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 and PCRAs 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 12/11/22 Zak Goldstein 12/11/22

PA Superior Court: Prosecution May Cross Examine Defendant on Prior Arrests if Defendant Opens the Door

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Bullock, holding that where the defendant testifies in an unprompted manner that they’ve never been arrested before, the prosecution may then introduce evidence of prior arrests as impeachment evidence. Although there is a general rule that a defendant may not be cross examined on prior criminal convictions, that rule gives way to false testimony by the defendant which makes the prior convictions admissible impeachment evidence.

The Facts of Bullock

In 2018, the defendant’s children found the defendant passed out on the porch of their home. The children called the police. The police came to the scene, and they found the defendant stumbling, going in and out of consciousness, and smelling of PCP. The police arrested the defendant.

The children were placed with their grandparents. They then disclosed that the defendant, their mother, had allegedly been abusing them. The Commonwealth charged her with aggravated assault, strangulation, unlawful restraint, false imprisonment, and three counts of endangering the welfare of a child.

The Criminal Trial

The defendant proceeded by way of bench trial. The trial court found her guilty of the endangering the welfare of a child counts, but it acquitted her of everything else. The court sentenced her to time served to 23 months’ incarceration followed by a year of probation. She filed timely post-sentence motions. The court denied those motions, and she appealed to the Pennsylvania Superior Court.

The Issue on Appeal

At trial, the Commonwealth introduced evidence of the defendant’s prior conviction for public drunkenness. Her defense attorney objected to admission of that evidence, but the trial court overruled the objection and allowed the evidence to be admitted.

Pennsylvania has a statute which generally prohibits the Commonwealth from cross-examining the defendant themselves about prior convictions, even where the defendant testifies. The statute provides:

§ 5918. Examination of defendant as to other offenses
No person charged with any crime and called as a witness in his own behalf, shall be asked, or if asked, shall be required to answer, any question tending to show that he has committed, or been charged with, or been convicted of any offense other than the one wherewith he shall then be charged, or tending to show that he has been of bad character or reputation . . .

The statute, however, has exceptions that allow the Commonwealth to do so when:

(1) he shall have at such trial, personally or by counsel, asked questions of the witness for the prosecution with a view to establish his own good reputation or character, or has given evidence tending to prove his own good character or reputation; or
(2) he shall have testified at such trial against a co-defendant, charged with the same offense.

Here, the defense attorney asked the defendant if she used PCP or alcohol on the day in question, and she denied that she had consumed either. Later, on cross-examination, the prosecutor asked if she had ever used drugs or alcohol, and she denied that, as well. Obviously, that was untrue as the defendant had a conviction for public drunkenness. The prosecution then the evidence of that conviction.

Additionally, while testifying on direct examination, the defendant testified that she felt terrible that day, was not really sure what happened, and that she had never been arrested before. That was not true, however, as she had the prior conviction.

Following the denial of her post-sentence motions, she appealed the conviction to the Superior Court and challenged the trial court’s decision to allow the prior conviction into evidence.

The Superior Court’s Ruling on Appeal

On appeal, the Superior Court affirmed the conviction. The Court ruled that the trial court should not have allowed the prosecutor to ask if she ever used drugs or had ever used alcohol. She had not denied ever using them on direct examination; she had only denied using them that day. She had, however, suggested that she had never been arrested before. This was not true, and that statement did not come in response to the Commonwealth’s questioning but rather the questioning of her own attorney. Therefore, the Commonwealth properly impeached her with evidence of her prior conviction in response to her insistence that she had never been arrested before. The Superior Court therefore denied the appeal.

It is possible, however, that a subsequent lawyer could challenge trial counsel’s performance in a Post-Conviction Relief Act Petition as trial counsel should not have asked a question which opened the door to a prior conviction. Thus, the issue may be one of ineffective assistance of counsel rather than error by the trial court. Either way, the Court ruled that the conviction will stand.

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Zak Goldstein 11/27/22 Zak Goldstein 11/27/22

PA Superior Court Defines "Nudity" for Transmission of Sexually Explicit Images by Minor Statute

The Superior Court has decided the case of In re: T.Q.B., rejecting a sufficiency challenge by the juvenile defendant who argued that because the images in question did not contain photos of the complainant’s actual nipple but instead showed only the bottom of her breast, they did not qualify under the statute’s definition of nudity. This is a concerning decision because such a broad interpretation of the statute allows for juvenile adjudications even where the person in the image that was transmitted had clothing on.

THE FACTS OF IN RE: T.Q.B.

On October 18, 2020, T.Q.B. went live on Instagram but told the victim, A.D., that the video they were making was private. T.Q.B. convinced A.D. to lift up her shirt and expose her bra and the bottom of her breast, below the nipple. T.Q.B. was 13 at the time of the video, A.D. was 12 years old at the time of the video and suffered from intellectual disabilities . The video was made public and shared for several months despite attempts by A.D.’s mother to remove the video from the internet. The video was also shared amongst peers at their school. Eventually, the police became involved, and they charged T.Q.B. with transmission of sexually explicit images by a minor and cyber harassment of a minor.

The Crimes Charged

The statutes define the crimes as:

§ 6321. Transmission of sexually explicit images by minor.
(a) Summary offense.--Except as provided in section 6312 (relating to sexual abuse of children), a minor commits a summary offense when the minor:
(1) Knowingly transmits, distributes, publishes or disseminates an electronic communication containing a sexually explicit image of himself.
(2) Knowingly possesses or knowingly views a sexually explicit image of a minor who is 12 years of age or older.
(b) Misdemeanor of the third degree.--Except as provided in section 6312, a minor commits a misdemeanor of the third degree when the minor knowingly transmits, distributes, publishes or disseminates an electronic communication containing a sexually explicit image of another minor who is 12 years of age or older.
(c) Misdemeanor of the second degree.--Except as provided in section 6312, a minor commits a misdemeanor of the second degree when, with the intent to coerce, intimidate, torment, harass or otherwise cause emotional distress to another minor, the minor:
(1) makes a visual depiction of any minor in a state of nudity without the knowledge and consent of the depicted minor; or
(2) transmits, distributes, publishes or disseminates a visual depiction of any minor in a state of nudity without the knowledge and consent of the depicted minor.
(d) Application of section.--This section shall not apply to the following:
(1) Conduct that involves images that depict sexual intercourse, deviate sexual intercourse or penetration, however slight, of the genitals or anus of a minor, masturbation, sadism, masochism or bestiality.
(2) Conduct that involves a sexually explicit image of a minor if the image was taken, made, used or intended to be used for or in furtherance of a commercial purpose.
(e) Forfeiture.--Any electronic communication device used in violation of this section shall be subject to forfeiture to the Commonwealth, and no property right shall exist in it.
(f) Diversionary program.--The magisterial district judge or any judicial authority with jurisdiction over the violation shall give first consideration to referring a person charged with a violation of subsection (a) to a diversionary program under 42 Pa.C.S. § 1520 (relating to adjudication alternative program) and the Pennsylvania Rules of Criminal Procedure. As part of the diversionary program, the magisterial district judge or any judicial authority with jurisdiction over the violation may order the person to participate in an educational program which includes the legal and nonlegal consequences of sharing sexually explicit images. If the person successfully completes the diversionary program, the person's records of the charge of violating subsection (a) shall be expunged as provided for under Pa.R.C.P. No.320 (relating to expungement upon successful completion of ARD program).
(g) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection unless the context clearly indicates otherwise:
"Disseminate." To cause or make an electronic or actual communication from one person, place or electronic communication device to two or more other persons, places or electronic communication devices.
"Distribute." To deliver or pass out.
"Electronic communication." As defined in section 5702 (relating to definitions).
"Knowingly possesses." The deliberate, purposeful, voluntary possession of a sexually explicit image of another minor who is 12 years of age or older. The term shall not include the accidental or inadvertent possession of such an image.
"Knowingly views." The deliberate, purposeful, voluntary viewing of a sexually explicit image of another minor who is 12 years of age or older. The term shall not include the accidental or inadvertent viewing of such an image.
"Minor." An individual under 18 years of age.
"Nudity." The showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple or the depiction of covered male genitals in a discernibly turgid state.
"Publish." To issue for distribution.
"Sexually explicit image." A lewd or lascivious visual depiction of a minor's genitals, pubic area, breast or buttocks or nudity, if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such nudity.
"Transmit." To cause or make an electronic communication from one person, place or electronic communication device to only one other person, place or electronic communication device.
"Visual depiction." A representation by picture, including, but not limited to, a photograph, videotape, film or computer image.

(a.1) Cyber harassment of a child.--
(1) A person commits the crime of cyber harassment of a child if, with intent to harass, annoy or alarm, the person engages in a continuing course of conduct of making any of the following by electronic means directly to a child or by publication through an electronic social media service:
(i) seriously disparaging statement or opinion about the child's physical characteristics, sexuality, sexual activity or mental or physical health or condition; or
(ii) threat to inflict harm.
(2) (i) If a juvenile is charged with a violation of paragraph (1), the judicial authority with jurisdiction over the violation shall give first consideration to referring the juvenile charged with the violation to a diversionary program under Pa.R.J.C.P. No. 312 (relating to Informal Adjustment) or No. 370 (relating to Consent Decree). As part of the diversionary program, the judicial authority may order the juvenile to participate in an educational program which includes the legal and nonlegal consequences of cyber harassment.
(ii) If the person successfully completes the diversionary program, the juvenile's records of the charge of violating paragraph (1) shall be expunged as provided for under section 9123 (relating to juvenile records).

The trial court adjudicated the juvenile delinquent of both offenses, and the juvenile appealed.

THE SUPERIOR COURT’S DECISION

First, the appellant challenged the ruling of “nudity” finding for 18 Pa.C.S. § 6321(c), arguing that what the video portrayed was not nudity per the statute and precedent. The crux of the appellant’s argument was that since the nipple was not exposed, this did not constitute nudity. The Superior Court acknowledged the limited precedent on the matter and focused primarily on the statute’s wording and definition. 18 Pa.C.S. § 6321(g) defines nudity as “the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple[.]” The Superior Court determined that because the bottom of the breast was exposed, this is below the top of the nipple and thus met the definition of “nudity” for the purposes of the statute and the juvenile court did not err in its determination.

Second, the appellant challenged the ruling that the video state was “seriously disparaging” and that there was insufficient evidence due to no showing of a physical manifestation of harm to meet 18 Pa.C.S. § 2709(a)(1). The Superior Court utilized the totality of the circumstances to determine that the repeated pressure for A.D. to expose herself, the lying about the video’s privacy, and the refusal to take the video down meant it was to be harassing in nature. The Superior Court reiterated that “[s]eriously disparaging statement or opinion” is that which “is intended to and under the circumstances is reasonably likely to cause substantial emotional distress to a child of the victim’s age and which produces some physical manifestation of the distress.” 18 Pa.C.S. § 2709(a)(1)(f). The Superior Court determined that an actual physical manifestation does not need to be nightmares, depression, or another physical ailment, but that A.D.’s humiliation is enough for physical manifestation. They also stated that it was reasonably likely due to the victim’s age and mental capacity to harm A.D. in conjunction with the extended period of time in which the video was allowed to be publicly viewed and circulated. The Superior Court deemed that the juvenile court did not err in finding that the appellant’s conduct was sufficient to be convicted on 18 Pa.C.S. § 2709(a)(1).

These are very, very broad readings of both statutes, and it is very possible that further appeals could take place as the Superior Court may consider granting en banc argument. The Supreme Court may also consider granting an appeal to review these definitions.

FACING CRIMINAL CHARGES? WE CAN HELP.

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

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 11/18/22 Zak Goldstein 11/18/22

PA Superior Court: Juvenile May Not Be Prosecuted for Corruption of Minors

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

The Superior Court has decided the case of In re: J.C., holding that a juvenile court does not have the jurisdiction to adjudicate a juvenile defendant delinquent for the offense of corruption of minors. The corruption of minors statute plainly applies only to someone who is over 18 years of age, and so a juvenile defendant may not be charged in juvenile court with a violation of this statute.

The facts of In re: J.C.

A police officer in Monroe County obtained an arrest warrant for J.C., alleging that J.C. had sexually assaulted a female classmate while the two were riding on a school bus. The school district deleted surveillance video of the incident during a software update, but the complainant reported the incident to school officials. The officials then questioned J.C., and J.C. admitted that he had done it. The Commonwealth then charged him in juvenile court with aggravated indecent assault, indecent assault, and open lewdness.

J.C. filed a motion to suppress the statement, arguing that school officials were required to give him Miranda warnings before questioning him. J.C. also moved to dismiss the case due to the school district’s destruction of the video evidence. The trial court denied the motion, and J.C. eventually entered into an admission (juvenile guilty plea) to the charge of corruption of minors. The court accepted the admission, and the Commonwealth agreed to nolle prosse the remaining charges. The court adjudicated J.C. delinquent. J.C. filed timely post-dispositional motions. The court denied the motions, and J.C. appealed. On appeal, J.C. argued both that the court should have granted his motions and that certain portions of his sentence were unconstitutional or illegal.

The Superior Court’s Ruling

J.C. did not actually argue that the admission was illegal because corruption of minors could not apply to him, a minor. The Superior Court, however, has the authority to review cases for jurisdiction sua sponte, and in this case, the Court, on its own, recognized that the trial court did not have jurisdiction to accept the admission.

Corruption of minors is defined as follows:

(1) (i) Except as provided in subparagraph (ii), whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of any crime, or who knowingly assists or encourages such minor in violating his or her parole or any order of court, commits a misdemeanor of the first degree.

18 Pa.C.S. § 6301(a)(1)(i)

The Court recognized that the statute, by its plain language, seeks to prevent prohibited actions between minors and individuals 18 years or older, otherwise defined as an adult. Here, J.C. was clearly not an adult – he was a minor at the time of the incident. Therefore, he could not be prosecuted for corruption of minors because the statute applies only to someone who is older than 18. There were other offenses he could have been prosecuted for, as he originally was, but it was illegal for the court to accept an admission to a charge which does not apply to juveniles. The court lost jurisdiction when the Commonwealth withdrew the properly filed charges and charged J.C. only with a charge that applies to adults.

Therefore, the Superior Court reversed the disposition and remanded the case back to the juvenile court for further proceedings. It did not rule on whether the Commonwealth could reinstate the original charges. This ruling benefits J.C. in that it vacates his adjudication, but ultimately, it could make things worse for him as the Commonwealth may seek to proceed on the original, more serious sex offenses. Nonetheless, it is clear that a juvenile court may not hear a prosecution against a juvenile defendant for corruption of minors as that statute applies only to adults.

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.