Philadelphia Criminal Defense Blog

Zak Goldstein 2/17/23 Zak Goldstein 2/17/23

PA Superior Court: Police May Conduct Warrantless Inventory Search of Car if Necessary

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Thompson. The Court held that the recent decision in Commonwealth v. Alexander, in which the Pennsylvania Supreme Court reinstated the requirement that police get a search warrant before searching a car, did not eliminate the inventory search exception to the warrant requirement. Under Thompson, when the requirements of the inventory search exception are met, the police may search a car without a warrant. The Court left open the issue of whether the exception may apply when the owner of the vehicle could potentially make other arrangements for the safekeeping of their property.

The Facts of Commonwealth v. Thompson

On July 1, 2020, police and medical personnel were dispatched to an AAMCO station for a report of an unconscious person in a vehicle. When the Marple Township Police Department arrived, EMT personnel were speaking to the defendant, whose vehicle was blocking two or three other cars. Police spoke to the defendant and concluded that he appeared lethargic, stumbled as he walked, and was slurring his speech. Police determined that he was incapable of operating the vehicle, and they decided to tow the car. Per departmental policy, they performed an inventory search of the vehicle to record its contents, and of course, they found a firearm. They charged the defendant with persons not to possess a firearm (VUFA § 6105).

The defendant moved to suppress the firearm, arguing that the police were required to obtain a search warrant prior to searching the vehicle. The trial court denied the motion to suppress after concluding that the police properly conducted an inventory search of the car which did not require a search warrant. The defendant was then found guilty of the charges, and he appealed.

The Superior Court Appeal

On appeal, the defendant argued that the Court’s decision in Alexander requiring a search warrant for the search of a car eliminated the inventory search exception. In response, the Commonwealth argued that Commonwealth v. Alexander dealt only with searches for evidence of a crime, and therefore it did not have any relevance in whether the inventory search remains a proper exception to the warrant requirement when dealing with an automobile.

What is an inventory search?

When the police have to tow a vehicle, they are permitted to conduct an inventory search of the vehicle. An inventory search is permissible when 1) the police have acted lawfully in impounding the vehicle and 2) the police have acted in accordance with a reasonable, standard policy of routinely securing and inventorying the contents of the impounded vehicle. Often, the challenge to an inventory search will involve challenging whether police really needed to tow the vehicle or whether they could have safely parked it or released it to someone else. In this case, the question was whether the inventory search still applied post-Alexander.

The Superior Court’s Decision

The Superior Court affirmed the denial of the motion to suppress. The court recognized that the law contains many exceptions to the warrant requirement. In other words, many searches may be allowed even where the police do not get a search warrant. Some examples include a search due to exigent circumstances, a search for weapons for officer safety, a search where contraband is in plain view, and in this case, the inventory search exception.

Here, the court concluded that Alexander did not eliminate the other exceptions that applied prior to the decision. Instead, it only held that where police are going to search a car for evidence of a crime, they must get a search warrant or have exigent circumstances and probable cause. As an inventory search theoretically has nothing to do with searching for contraband or evidence of a crime, Alexander did not make that type of search illegal.

Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. An inventory search falls under “community caretaking” and thus does not require any showing of probable cause or reasonable suspicion at all. Therefore, the police were not required to have probable cause, and they were allowed to search the vehicle in order to ensure that it did not contain anything dangerous and in order to protect the defendant’s belongings.

The Superior Court, however, did leave the door open to the idea that an owner could object to the inventory search or make other arrangements for moving the vehicle. This is based on the theory that inventory searches are done on the behalf of the property owner, to protect it while in custody, and shield police from disputes or claims of lost or stolen property. There could also be privacy interests at stake, in which the individual’s privacy interest outweighs the government’s interests. These arguments were not raised in this appeal, so the Superior Court did not rule on them. Obviously, the inventory search exception is ripe for abuse - police who want to search a vehicle but who don’t have probable cause for a search warrant can simply claim that it was necessary to tow the vehicle for some reason, and then they are permitted to conduct a warrantless search. Therefore, as previously mentioned, motions to suppress in these cases often involve challenging whether it was really necessary to tow the vehicle.

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Criminal Defense Lawyer Zak T. Goldstein, Esquire

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 1/9/23 Zak Goldstein 1/9/23

PA Supreme Court: Multiple Third-Degree Murder Convictions at the Same Time Require Life Without Parole

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Coleman, holding that a criminal defendant who kills three people during the same incident and is then convicted of third degree murder for each killing is subject to the mandatory life without parole sentencing enhancement that applies for multiple convictions for third degree murder. Many statutes that impose enhanced sentences for subsequent offenses require that the offenses take place at different times, but the Supreme Court has held that killing more than one person and then getting convicted of life without parole requires a mandatory life sentence pursuant to 42 Pa. C.S. § 9715(a).

The facts of Commonwealth v. Coleman

Police observed the defendant make an illegal left turn in a white Hyundai. They approached the vehicle when it stopped at a gas station. The defendant did not have a driver’s license, and when additional officers arrived as backup, the defendant fled in the vehicle. This led to a high-speed chase. The defendant eventually crashed the Hyundai into two vehicles at an intersection. The force of the impact caused the vehicle to explode into flames, killing all three occupants of one of the vehicles instantly. Prosecutors charged the defendant with three counts of murder.

At trial, the defendant was convicted of three counts murder in the third degree, amongst other charges. Before sentencing the Commonwealth filed a notice of intent to proceed under Section 9715(a) of the Sentencing Code. The trial court declined to apply the sentencing enhancement and instead imposed consecutive terms of 20 to 40 years of incarceration for each of the defendant’s third-degree murder convictions. The defendant was ultimately sentenced to an aggregate term of 70 to 140 years of incarceration.

The Appeal

The Commonwealth appealed, arguing that the statute requires life imprisonment even where a defendant commits multiple counts of third degree murder at the same time but did not have any prior convictions for murder.

Section 9715 of the Sentencing Code, entitled “Life imprisonment for homicide,” provides:

(a) Mandatory life imprisonment.--Notwithstanding the provisions of section 9712 (relating to sentences for offenses committed with firearms), 9713 (relating to sentences for offenses committed on public transportation) or 9714 (relating to sentences for second and subsequent offenses), any person convicted of murder of the third degree in this Commonwealth who has previously been convicted at any time of murder or voluntary manslaughter in this Commonwealth or of the same or substantially equivalent crime in any other jurisdiction shall be sentenced to life imprisonment, notwithstanding any other provision of this title or other statute to the contrary.

The trial court wrote an opinion in which it argued thatSection 9715(a) was a recidivist sentencing statute and that the defendant was not a recidivist because, while he had been convicted of three counts of criminal homicide, he had never “previously” committed criminal homicide.

Both parties appealed to the Superior Court. The Superior Court ruled in favor of the Commonwealth. The Court found that the defendant should have been sentenced to life without parole. The Superior Court concluded that the defendant’s third-degree murder conviction at Count 1 of the Criminal Information constituted a prior conviction for purposes of applying Section 9715(a) when sentencing him for his convictions of third-degree murder at Counts 2 and 3 of the Criminal Information. The Superior Court therefore remanded the case for the trial court to sentence the defendant to life without parole.

The defendant filed a petition for allowance of appeal to the Supreme Court, and the Pennsylvania Supreme Court agreed to review the case. The Pennsylvania Supreme Court granted discretionary review to resolve the following issue:

Should the mandatory sentencing provision of 9715(a) apply to a case where the offenses and the deaths were simultaneous?

The Defendant argued that Section 9715 of the Sentencing Code should not be construed to apply to a case such as this one, where a single course of conduct caused multiple, instantaneous, simultaneous deaths and the convictions at issue were, at most, minutes apart. The term “previous” in the code is meant to refer to a prior conviction outside the current matter. The Commonwealth focused on principles of statutory construction and Section 9715(a)’s use of the phrase “previously been convicted at any time.” They further argued that the phrase should be interpreted literally, meaning that there is no previous conviction too remote, nor too recent, to be exempt from the rule.

Unfortunately, the Supreme Court decided with the Commonwealth. The Court ruled that § 9715 of the applies under these circumstances. § 9715(a) provides that any person convicted of third-degree murder in this Commonwealth who has previously been convicted at any time of murder must receive an enhanced sentence. The statute does not define any of the terms in this operative phrase. Giving the most pertinent terms their plain and ordinary meaning, the term “at any time,” the General Assembly made clear that there is no limitation relative to a person’s previous conviction that would preclude application of the sentencing enhancement insofar as it concerns § 9715(a). Thus, § to Section 9715(a), so long as a person convicted of third-degree murder has previously been convicted of murder at any point in time, the sentencing enhancement applies to that person.

The Supreme Court, therefore, affirmed the Superior Court’s ruling to vacate defendant’s judgment of sentence and remand for resentencing in accordance with § 9715.

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

Third Circuit: Loss in Fraud Cases Means Actual Loss, Not Intended Loss

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

The United States Court of Appeals for the Third Circuit, which is the federal appellate court for Pennsylvania and New Jersey, has found that the loss amount in a fraud case must be calculated based on the actual loss inflicted on the victim. Despite suggestions in the commentary to the sentencing guidelines, loss means actual loss - not the intended, hypothetical loss that a defendant may have attempted to cause. This will drastically reduce the guideline range for sentencing purposes for many federal criminal defendants.

In this case, a jury convicted Banks of wire fraud, and the District Court sentenced him to 104 months’ incarceration and three years’ supervised release. On appeal, Banks argued multiple issues, but the issue of significance was whether the District Court erred in applying the loss enhancement, USSG §2B1.1, to the fraud guideline in the United States Sentencing Guidelines because there was no “actual loss.”

The Third Circuit concluded that the loss enhancement in the Guideline’s application notes impermissibly expands the word “loss” to include both intended loss and actual loss. Thus, the District Court erred when it applied the loss enhancement because Banks’s crimes caused no actual loss.

The facts of United States v. Banks

In January 2016, a federal grand jury indicted Frederick Banks for wire fraud, aggravated identity theft, and false statements. The wire fraud charges related to interlocking schemes carried out by Banks to fraudulently gain the money and property of others in relation to the FOREX.COM international exchange system by submitting phony registration information for himself and then using those registrations to execute bogus trades that would drop money into bank accounts that he had set up.

How do you calculate loss in federal fraud cases?

Banks was eventually convicted. He proceeded to sentencing. Before issuing a sentence in a federal case, the district judge must always carefully calculate the applicable sentencing guidelines. In fraud and theft cases, the guidelines are based very heavily on the amount of loss in question. Thus, stealing a small amount can lead to a recommended sentence of federal supervised release or a short jail sentence, while stealing a large amount can lead to a recommendation of an incredibly long amount of prison time. The issue becomes complicated because the definition of loss is not so clear. In this case, the issue was whether loss means the amount that the victims actually lost or instead included the amount that Banks tried to steal.

In computing a sentencing range, Banks’s offense level under the United States Sentencing Guidelines, as calculated by the district judge, included a special offense characteristic for the attempted loss Banks intended to inflict on Gain Capital. The attempted loss, based on fraudulent deposits, was $324,000. Therefore, the base offense level was increased by 12 levels because the attempted loss was greater than $250,000 but less than $550,000. USSG §2B1.1(b)(1)(G) (As a general rule, loss is the greater of actual loss or intended loss, pursuant to Application Note 3 to the sentencing guidelines).

The 12-level increase raised Banks’s adjusted offense level from 7 to 19. During sentencing, the District Court explained that the Sentencing Guidelines defined loss to not only include the actual loss, but to also include the intended loss. And the application notes indicate that the intended loss counts for purposes of calculating the loss amount even if it’s determined to be improbable or impossible that such a loss could have occurred. In this case, the victim suffered $0 in actual losses. The district court, however, used the intended loss amount, which was much higher than $0.

Recently, however, the Courts of Appeals have begun to question whether the application notes, which are essentially comments to the sentencing guidelines, are binding, or whether the court should be limited to using the guideline itself.

The district court used the intended loss figure, and the defendant appealed. On appeal, the Third Circuit reversed and remanded for a new sentencing, finding that loss means actual less. The Court of Appeals relied on Kisor v. Wilkie and Auer v. Robbins in interpreting the Guidelines. Under Kisor, a court must exhaust all the “traditional tools” of construction and consider the “text, structure, history, and purpose of a regulation.” Only then does a court apply Auer, which requires courts to defer to the Sentencing Commission’s commentary for a Guideline unless that interpretation is plainly erroneous or inconsistent with the Guideline.

The Court used a “plain text” analysis to see if there was ambiguity in the way the section was written. The Guideline does not mention “actual” versus “intended” loss; that distinction appears only in the commentary. That absence alone indicates that the Guideline does not include intended loss because there is nothing ambiguous about the term loss. Thus, the ordinary meaning of “loss” in the context of § 2B1.1 is “actual loss.

The Court also reviewed other sources for their definition of loss citing Webster’s New International Dictionary and the 1988 edition of Webster’s Ninth New Collegiate Dictionary. Both of which had matching definitions of “loss.” Next the Court reviewed sister jurisdictions on their conclusions and cited the Sixth Circuit which concluded the definition to be actual loss.

Because the commentary expanded the definition of “loss” by explaining that generally “loss is the greater of actual loss or intended loss,” the Court determined the commentary should have no weight. In other words, the commentary conflicted with the plain language of the guideline itself and so could not be applied.

Ultimately, the Third Circuit Court of Appeals held that “loss” in the context of U.S.S.G. § 2B1.1 is not ambiguous. Therefore, the Court vacated the judgment of sentence and remanded the case. The district court must re-sentence Banks without the additional levels for intended loss.

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Goldstein Mehta LLC Criminal Defense Lawyer Zak Goldstein

Zak Goldstein 12/20/22 Zak Goldstein 12/20/22

PA Supreme Court: Judges Should Not Use Hypotheticals to Define Reasonable Doubt for Jury

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Drummond, holding that trial judges should not use hypothetical situations like making the decision to have surgery or purchase a house when describing reasonable doubt for a jury. This is an important decision because these hypotheticals often reduce the standard below what it should be; many people go through with purchasing a house or having a surgery even when they are not certain that it is the right thing to do. By avoiding the hypotheticals, judges can better ensure that juries probably understand how high of a standard beyond a reasonable doubt is.

The Facts of Drummond

Police arrested the defendant and a co-defendant for the murder of two people. At the conclusion of trial, the judge provided the jury with instructions as is normal in a criminal case. The controversy in this case centered on the judge’s definition of reasonable doubt. In this case, the judge used the hypothetical of making the decision to have surgery and equated making that decision as no longer having reasonable doubt. The trial attorney did not object to the judge’s hypothetical. The defendant was convicted, and his direct appeals were denied.

The defendant eventually filed a Post-Conviction Relief Act Petition. In the PCRA Petition, the defendant alleged that his trial attorney provided the ineffective assistance of counsel in failing to object to the court’s instruction on reasonable doubt. The trial court denied the PCRA, and the defendant appealed to the Pennsylvania Superior Court.

The Superior Court Ruling

The Superior Court affirmed the trial court’s denial of the PCRA Petition. That court concluded that an imperfect jury instruction does not trigger automatic reversal in collateral proceedings like PCRA litigation. The court also did not have a significant problem with the analogy, and it noted that other portions of the instruction aligned closely with the suggested reasonable doubt instruction in the Pennsylvania Suggested Standard Jury Instruction Manual. The Superior Court concluded because the instruction never relieved the Commonwealth of its burden of proof or removed the presumption of innocence, it was not reasonably likely that the jury applied a diminished reasonable doubt standard. The defendant then filed for allocatur to the Pennsylvania Supreme Court, and the Pennsylvania Supreme Court accepted the case.

The Supreme Court’s Ruling

The Pennsylvania Supreme Court limited its review to one issue: “[w]as trial counsel ineffective for not objecting to the trial court’s jury instruction on reasonable doubt?”

The standard for an ineffective assistance of counsel claim comes from the United States Supreme Court case Strickland v. Washington. Pennsylvania has adapted that standard and required a PCRA petition tis how that: (1) that the underlying claim has arguable merit; (2) that no reasonable basis existed for counsel’s actions or failure to act; and (3) that the petitioner suffered prejudice as a result of counsel’s error.

In assessing whether there is arguable merit, the Court first analyzed whether the jury instruction did not meet basic constitutional requirements as set in Boyde v. California, “whether there is a reasonable likelihood that the jury has applied the challenge in a way that violates the Constitution.”

Neither the United States Supreme Court nor the Pennsylvania Supreme Court have ever construed the United States Constitution or the Pennsylvania Constitution as flatly prohibiting hypotheticals or analogies. The Court, however, found that the jurors were told not to consider reasonable doubt objectively and dispassionately but instead in an emotional and personal way. This instruction therefore arguably violated due process because it allowed the jury to interpret the relevant burden in a way that was a “degree of proof below” proof beyond a reasonable doubt, thus meeting the arguable merit prong.

The Court therefore rejected the hypothetical and strongly suggest that it should not be used by trial courts. At the same time, however, the Court found that the trial court properly denied the PCRA petition because at the time of the decision, there was no opinion from a Pennsylvania appellate court in which a jury verdict had been invalidated due to the use of similar hypotheticals. Instead, the Superior Court had actually affirmed under these circumstances. Therefore, counsel could not have been under an obligation to predict that the law would change and to raise an objection. The Court therefore denied the appeal.

As the Court found that counsel acted reasonably, it did not reach the prejudice portion of the test. A PCRA petitioner must meet all three prongs of the test in order to show the ineffective assistance of counsel. If the petitioner cannot show even one element, then the petitioner will lose. This petitioner lost, but the case remains important because these hypotheticals may often contribute to a conviction by improperly lowering the Commonwealth’s burden.