Philadelphia Criminal Defense Blog

Zak Goldstein 10/3/24 Zak Goldstein 10/3/24

PA Supreme Court: Sentencing Court May Not Consider Arrests That Did Not Result in Conviction

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Berry, overturning a long line of Superior Court precedent and holding that a sentencing court may not consider a defendant’s bare record of arrests at sentencing without any evidence of the underlying criminal conduct. Previously, a sentencing court could consider the defendant’s arrest record even where the arrests did not result in convictions so long as the sentencing court recognized the difference between an arrest and a conviction. The Supreme Court has now rejected that proposition and conclusively ruled that mere arrests are meaningless without a conviction or real proof of the underlying criminal conduct behind the arrest.

The Facts of Berry

In Berry, the defendant was convicted of the sexual abuse of two young family members. Specifically, he was found guilty of sexually assaulting his intellectually disabled younger brother, J.B., on two occasions, coercing him into non-consensual sexual acts, and coercing his seven-year-old great-nephew, J.J., into sexual contact. The trial court sentenced the defendant to an aggregate term of seven-and-a-half to fifteen years, which represented an upward departure from the range recommended by the Pennsylvania Sentencing Guidelines.

The Issue on Appeal

The key issue at sentencing was the trial court's consideration of the defendant’s prior arrest record. He had no prior convictions or juvenile adjudications, but he had been arrested several times. The trial judge explicitly considered these arrests, referring to them as “previous other contacts” and suggesting that they negated the defendant’s prior record score of zero. This led at least in part to a significant increase in the length of the defendant’s sentence above the guideline range.

The defendant challenged this above-guideline sentence, arguing that the sentencing court improperly relied on unproven arrests as an aggravating factor. He asserted the consideration of these arrests violated both Pennsylvania law and his due process rights under the Fourteenth Amendment to the United States Constitution.

The Supreme Court’s Ruling

The Pennsylvania Supreme Court ruled that considering a defendant’s arrest record violates Pennsylvania law because arrests, without proof of a conviction or that the defendant committed underlying criminal conduct, are completely irrelevant and do not give the sentencing judge any reliable information as to whether the defendant actually committed a crime.

The Supreme Court recognized a number of key points:

First, the Court reiterated that an arrest, without a resulting conviction, does not equate to a finding of guilt. Arrests occur under circumstances that do not necessarily reflect criminal conduct, and they can happen to both the innocent and the guilty. Consequently, they are not a reliable indicator of a defendant's character or propensity for future crimes.

Second, under Pennsylvania law, the Sentencing Guidelines do not permit the use of arrest records in calculating a defendant's prior record score or as an independent factor in determining an appropriate sentence. Prior record scores must be based on actual convictions or adjudications, not on mere arrests.

Third, the Court noted that prior decisions from both Pennsylvania and federal appellate courts such as the Third Circuit Court of Appeals have consistently held that arrest records are not admissible as evidence in various phases of criminal proceedings because they are not probative. The Court explicitly overruled a series of Pennsylvania Superior Court cases that had allowed the use of prior arrests in sentencing even where the judge did not equate them with convictions.

Finally, the Court highlighted concerns about the potential racial and socioeconomic biases inherent in arrest records. Studies show that arrests may often reflect disparities in police practices rather than actual criminal behavior, which further undercuts their reliability as a sentencing factor.

The Pennsylvania Supreme Court therefore held that the sentencing court committed an error of law in considering the defendant’s arrest record as an aggravating factor. This reliance on irrelevant and unreliable information improperly influenced the sentence; the sentencing judge specifically said so. Therefore, the Court reversed the Superior Court's decision and remanded the case for resentencing. It ordered that the sentencing judge not consider arrests at the re-sentencing without real proof of the underlying conduct.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Criminal Defense Attorney Zak Goldstein — Philadelphia Criminal Defense Attorney 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 and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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 9/28/24 Zak Goldstein 9/28/24

PA Supreme Court Finds No Right to Bail in First Degree Murder Cases

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Yard, finding that a defendant does not have the right to bail in a first-degree murder case no matter how weak the case.

The Facts of Yard

In Yard, the defendant was charged with first-degree murder after the August 2021 death of his infant son. The child suffered fatal blunt-force trauma while under the defendant’s care. Adding to the suspicion, the child also had broken ribs from weeks prior to his death. In April 2022, Yard was formally charged with multiple offenses, including first-degree murder, aggravated assault, and endangering the welfare of children. A Magisterial District Judge conducted a preliminary arraignment and held Yard in jail without bail pending trial.

Yard filed a motion for bail to be set. He argued that under the Supreme Court’s prior case of Commonwealth v. Talley, he was entitled to bail even though he was charged with first-degree murder. In Talley, the Supreme Court held that for bail to be denied based on dangerousness, the Commonwealth must essentially prove that it has a strong case. Yard argued that the Commonwealth’s case was not strong. He conceded that there was enough evidence for a lesser charge, such as involuntary manslaughter, but argued that the evidence did not support the specific intent necessary for a first-degree murder charge, which carries a potential life sentence.

During a bail hearing in May 2022, the Commonwealth presented evidence, including an autopsy report and the testimony of two forensic pathologists, supporting their case against Yard. The trial court agreed with Yard and set bail at $200,000 with non-monetary conditions. The Commonwealth moved for a stay and appealed. The Superior Court granted the stay and asked the trial court to explain why it granted bail.

In response, the trial court admitted that its decision relied on stipulated facts and not live testimony. Talley generally requires the Commonwealth to present some real evidence at the bail hearing in order to have a defendant held without bail, so the trial court held a new bail hearing. Yard also moved for nominal bail because he had been held for six months prior to trial in violation of Pa.R.Crim.P. 600(b). The trial court granted his motion and set bail at $1.

The Impact of Talley

In Commonwealth v. Talley, the Pennsylvania Supreme Court emphasized that defendants generally should not be held without bail based on potential dangerousness without real evidence. The Court recognized three specific exceptions to the right to bail:

Capital Offenses - When the accused is charged with an offense for which the death penalty is a potential sentence, the accused is not entitled to bail.
Life Imprisonment Offenses - When the accused is charged with an offense punishable by life imprisonment, the accused is not entitled to bail.
Dangerousness Exception - When no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person or the community, the defendant is not entitled ot bail.

The crux of Talley was the interpretation of the "proof is evident or presumption great" standard, which required an evidentiary threshold somewhere between probable cause and proof beyond a reasonable doubt. The Court concluded that this standard applied specifically to the dangerousness exception, placing a significant burden on the Commonwealth to justify bail denial by showing that it was substantially more likely than not that the accused posed an imminent threat and that no conditions of release could mitigate that threat.

The Talley decision emphasized that bail courts must engage in both a qualitative and quantitative assessment of the evidence to evaluate whether an individual’s release would endanger public safety. Importantly, the Court highlighted that the burden of both production and persuasion fall on the Commonwealth and that the Commonwealth may not simply rely on hearsay and assert that the case is serious and the defendant is dangerous. Instead, before holding someone without bail, a trial court must hold a real hearing and receive actual evidence of dangerousness and on how strong the Commonwealth’s case is.

The Issue in Yard

In Yard, the issue was whether Talley’s requirement that the Commonwealth prove dangerousness and introduce real evidence at a bail hearing also applies in a first-degree murder case given that a conviction for first-degree murder requires at least a sentence of life without parole. Yard argued that Talley applied, while the Commonwealth argued that it did not.

The Pennsylvania Supreme Court rejected the argument. It found that the "proof is evident or presumption great" standard only applies to the dangerousness exception and not to cases involving capital offenses or offenses carrying a maximum sentence of life imprisonment. This means that for offenses like first-degree murder, which are punishable by life imprisonment, bail can be categorically denied without the need for the extensive evidentiary showing that would be required when the Commonwealth argues for the dangerousness exception. Accordingly, although Talley seemed to suggest that bail may be available even in first-degree murder cases, the state Supreme Court has now held that defendants charged with first-degree murder may not be released on bail.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Criminal Defense Attorney Zak T. Goldstein, Esquire

Zak Goldstein 8/21/24 Zak Goldstein 8/21/24

Attorney Goldstein Wins Sentencing Appeal in Corrupt Organizations Case

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

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire, recently won a sentencing appeal for a client in the case of Commonwealth v. S.G. In S.G., the defendant was convicted at trial in the Dauphin County Court of Common Pleas of corrupt organizations, conspiracy to commit corrupt organizations, washing vehicle titles, and related charges for an alleged car title washing scheme. The trial court sentenced him to consecutive sentences on the corrupt organizations and conspiracy to commit corrupt organizations charges.

S.G. retained Attorney Goldstein for his appeal to the Pennsylvania Superior Court. Attorney Goldstein filed post-sentence motions and eventually an appeal. On appeal, Attorney Goldstein challenged whether the trial court could properly sentence S.G. to consecutive time on the conspiracy and corrupt organizations charges because S.G. had been convicted of the subsection of corrupt organizations that specifically requires participation in a conspiracy.

The corrupt organizations statute, 18 Pa.C.S. § 911, provides:

(b) Prohibited activities.--
(1) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity in which such person participated as a principal, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in the acquisition of any interest in, or the establishment or operation of, any enterprise: Provided, however, That a purchase of securities on the open market for purposes of investment, and without the intention of controlling or participating in the control of the issuer, or of assisting another to do so, shall not be unlawful under this subsection if the securities of the issue held by the purchaser, the members of his immediate family, and his or their accomplices in any pattern of racketeering activity after such purchase, do not amount in the aggregate to 1% of the outstanding securities of any one class, and do not confer, either in law or in fact, the power to elect one or more directors of the issuer: Provided, further, That if, in any proceeding involving an alleged investment in violation of this subsection, it is established that over half of the defendant's aggregate income for a period of two or more years immediately preceding such investment was derived from a pattern of racketeering activity, a rebuttable presumption shall arise that such investment included income derived from such pattern of racketeering activity.
(2) It shall be unlawful for any person through a pattern of racketeering activity to acquire or maintain, directly or indirectly, any interest in or control of any enterprise.
(3) It shall be unlawful for any person employed by or associated with any enterprise to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity.
(4) It shall be unlawful for any person to conspire to violate any of the provisions of paragraphs (1), (2) or (3) of this subsection.

S.G. was convicted of subsection 4, which specifically makes it illegal to conspire to violate any of the other provisions.

At the same time, the conspiracy statute, 18 Pa.C.S. § 903, makes the following conduct illegal:

(a) Definition of conspiracy.--A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

Here, the trial court sentenced S.G. to consecutive time on both conspiracy to commit corrupt organizations and corrupt organizations - conspiracy. Attorney Goldstein argued that such a sentence was illegal because the two offenses merged for sentencing purposes.

When do offenses merge for sentencing?

The Superior Court agreed with the defense’s merger argument on appeal. It recognized that under § 9765 of the sentencing code,

No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.

42 Pa.C.S. § 9765

The Superior Court’s Ruling

In order to impose consecutive sentences, a sentencing court must find either that each statute contains an element that the other does not or that there was more than one criminal act involved in the violations of the statutes. In this case, conspiracy and corrupt organizations - conspiracy involve the exact same elements. That is, they both require an agreement to violate sections 1 - 3 of the corrupt organizations statute. Further, the Commonwealth introduced no evidence that S.G. entered into more than one conspiracy. Accordingly, the Superior Court found that the convictions should have merged for sentencing purposes, making it illegal for the court to impose consecutive sentences.

The Superior Court remanded the case for a new sentencing hearing in the Court of Common Pleas. Attorney Goldstein represented S.G. at the new sentencing hearing and obtained a reduced sentence which made him immediately eligible for parole.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Zak Goldstein 5/27/24 Zak Goldstein 5/27/24

PA Superior Court: Tender Years Exception Does Not Necessarily Apply to Hearsay-Within-Hearsay

The Pennsylvania Superior Court has decided the case of Commonwealth v. Copenahver, holding that the trial court improperly admitted video statements given by the complainants in this case because the video statements contained hearsay-within-hearsay. The court nonetheless affirmed the defendant’s conviction because the evidence was overwhelming, and the court believed he would have been convicted even in the absence of the inadmissible portions of the statements.

The Facts of Copenhaver

In Copenhaver, the defendant was charged with sexually assaulting his daughters, K.G. and C.C. The Commonwealth charged him with rape, involuntary deviate sexual intercourse, production of child pornography, and related charges. Copenhaver went to trial, and the prosecution introduced both the in-court testimony of the complainants as well as videotaped statements they had given at the York County Child Advocacy Center (CAC). The court admitted the CAC statements under the “tender years” exception to the hearsay rule. The Commonwealth also introduced evidence that the defendant had threatened to commit suicide as well as admitted to taking and deleting nude photos of the complainants. The jury convicted the defendant, and he received a lengthy state prison sentence. He appealed.

The Superior Court Appeal

The defendant had court-appointed counsel, and in his initial appeal, his court-appointed attorney submitted an “Anders brief.” An Anders brief is a letter to the Superior Court informing the court that the attorney believes the defendant has no legitimate issues for appeal and the appeal should be dismissed. In order to comply with the rules, the attorney must identify any potential issues and explain why they would not result in a successful appeal. It is inconceivable that there could have been no legitimate issues for appeal following a jury trial involving two child sex assault complainants, and the Superior Court in fact reviewed the transcripts and found that the court-appointed attorney should have raised at least one claim relating to whether the videotaped statements were properly admitted at trial. Accordingly, the Superior Court rejected the Anders brief and directed the appellate attorney to file a real brief on the admissibility of the videotaped statements.

The lawyer filed a new brief challenging the sufficiency of the evidence and the admissibility of K.G.’s videotaped statement under the tender years exception to the hearsay rule. The sufficiency challenge failed - the complainants both testified that the defendant raped them, and the jury was free to believe that evidence and find him guilty.

The video tape issue, however, required more extensive analysis as it had some merit. In most sexual assault prosecutions involving minor complainants, the prosecution team will have the complainant interviewed at some sort of quasi-independent children’s advocacy center. In Philadelphia, this organization is called Philadelphia Children’s Alliance. In many counties, it is called the Children’s Advocacy Center. In Montgomery County, it is called Mission Kids. Instead of having a detective interview the complainant, a social worker with some training in conducting “forensic interviews” will conduct a videotaped interview to try to determine what happened and evaluate the allegations. The questions are supposed to be neutral and non-leading in the hopes of avoiding planting ideas in the complainant’s head, but in practice, the questions are often leading, and the interviewers work very closely with the assigned detective. That detective will typically be standing outside the interview watching through a one-way mirror.

What is the tender years exception to the hearsay rule?

Pennsylvania and most other jurisdictions have a “tender years” exception to the hearsay rule. Section 5985.1 of the Judicial Code, referred to as the “tender years” exception to the hearsay rule, provides as follows:

§ 5985.1. Admissibility of certain statements
1. General rule.
(1) An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing any of the offenses enumerated in paragraph (2) [including, inter alia, 18 Pa.C.S.A. § 6312(b)], not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if:
(i) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and
(ii) the child either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness.
42 Pa.C.S.A. § 5985.1(a).

In 2021, the legislature raised the age from 12 to 16. The old rule with the younger age was still in effect at the time of this case.

Thus, the rule allows for hearsay statements to be admissible into evidence in cases involving rape charges and other similar offenses so long as the complainant either testifies or is unavailable as a witness. In a civil case, unavailability may include a finding that the child will have trouble testifying due to feeling emotional distress. In a criminal case, however, the complainant generally must testify because these statements have been deemed to be testimonial for confrontation clause purposes. There are three main ways for the defense to challenge the admissibility of the statements: First, the defense could argue that the statement is not relevance or reliable. Second, the defense can generally exclude the statement if the complainant does not testify. Third, the defense could argue that there is some other evidence in the statement which is not admissible such as hearsay-within-hearsay or a prior bad act under Rule 404(b).

In this case, one of the complainants gave a statement in which she said that the other complainant disclosed some of the abuse to her. Thus, the initial complainant’s statement was admissible under the tender years exception, but the statement inside that statement from the other complainant was hearsay. That portion of the statement should not have been admitted, but the trial court admitted all of it. The statement was not admissible because the trial court made no finding that the statement was actually reliable. Otherwise, it may have been admissible under the tender years exception, as well. Thus, the trial court erred in simply admitting the entirety of the statements without conducting a reliability assessment.

Nonetheless, the Superior Court affirmed. It found that the evidence was overwhelming and the defendant would have been convicted anyway. The statements were basically cumulative of what the complainants said in court and in their own videotaped statements. Accordingly, although the Superior Court made the court-appointed lawyer do a lot of extra result by rejecting the Anders brief and requiring briefing of the issue, the Superior Court ultimately ruled against the defendant, anyway. The case, however, highlights some of the ways that the defense may challenge the admission of these videotaped PCA or CAC statements.