Philadelphia Criminal Defense Blog

Zak Goldstein 1/14/26 Zak Goldstein 1/14/26

En Banc Pennsylvania Superior Court Clarifies That Probation May Run Concurrently with Incarceration

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has issued a significant en banc decision in the case of Commonwealth v. Jennings, resolving a recent conflict in Pennsylvania sentencing law. Overruling several recent panel decisions, the Court held that trial judges are in fact permitted to sentence defendants to terms of probation that run concurrently with terms of incarceration, including state prison sentences.

This decision restores the sentencing flexibility that defense attorneys and judges have long utilized and clarifies the plain language of the Sentencing Code.

The Facts of the Case

In Commonwealth v. Jennings, the defendant was convicted of attempted statutory sexual assault, unlawful contact with a minor, and related offenses after engaging in sexually explicit conversations with an undercover detective posing as a 14-year-old girl.

Due to prior convictions for rape and involuntary deviate sexual intercourse (IDSI) from 1989, the defendant faced mandatory minimum sentencing provisions which required the judge to impose a sentence of at least 25 to 50 years in prison. The trial court went well above that and ultimately sentenced him to an aggregate term of 50 to 100 years of incarceration. Relevant to this appeal, for the charge of criminal use of a communication facility (CUCF), the judge imposed a seven-year term of probation to run concurrently with the state prison sentence.

The defendant appealed, arguing that the sentence was illegal. He relied on recent Superior Court decisions which had suggested that probation cannot be served while a defendant is incarcerated because probation is, by definition, a "less restrictive" alternative to jail meant for rehabilitation in the community and that it is not even possible to comply with the conditions of probation while in custody. For example, an inmate in a state prison cannot remain in the county of conviction or report to the county probation officer.

The Legal Issue: Can Probation and Prison Run Together?

The primary issue before the en banc panel was whether a sentencing court has the authority to order a term of probation to be served at the same time as a term of total confinement.

This question arose because of a string of recent unpublished panel opinions (such as Commonwealth v. Qawiee, Commonwealth v. Patel, and Commonwealth v. Bowers) which had vacated such sentences as illegal. Those panels reasoned that under cases like Commonwealth v. Allshouse and Commonwealth v. Basinger, probation was incompatible with incarceration.

The Superior Court’s Decision

The Superior Court rejected the reasoning of those recent panels and affirmed the legality of concurrent probation. The Court based its decision on the plain text of 42 Pa.C.S.A. § 9721(a), which outlines the sentencing alternatives available to a judge (such as probation, guilt without penalty, partial confinement, total confinement, and fines). The statute explicitly states that the court “may impose them consecutively or concurrently.”

The Court held:

Therefore, by its plain language, Section 9721(a) permits trial courts to impose concurrent terms of probation and total confinement. . . . To the extent that [prior cases] suggest that the Sentencing Code provides no authority for imposing probation concurrently with a term of total confinement, we disapprove of their rationales.

The Court explained that concurrent probation still serves a purpose. Even while incarcerated, a concurrent probationary tail can serve as a deterrent. If the defendant commits a new crime or misconduct in prison, that probation could theoretically be revoked. More importantly, the Court emphasized that statutory text supersedes policy arguments about whether concurrent supervision is “practical.” In other words, the policy justifications only come into play for an ambiguous statute, and here, the Court concluded that the statute was not ambiguous. A trial court may impose consecutive or concurrent probationary and prison sentence.

Secondary Issue: Notice for Mandatory Minimums

The defendant also challenged his mandatory minimum sentence on the grounds that the Commonwealth failed to include the triggering facts (his prior convictions) in the criminal information, which is the formal charging document in Pennsylvania.

The Superior Court rejected this argument, as well. Relying on Pennsylvania Supreme Court precedent in Commonwealth v. Aponte, the Court held that prior convictions are a “sentencing factor,” not an element of the crime. Therefore, the Commonwealth is not required to list them in the criminal information. Providing reasonable notice of the intention to seek the mandatory minimum after conviction but before sentencing is sufficient to satisfy due process, although once a defendant has been convicted, it is too late for them to do anything about a mandatory minimum. A rule that requires notice prior to trial would be far better, but the appellate courts have not required that kind of notice.

Key Takeaways for Criminal Defendants

This decision is legally significant for several reasons:

Sentencing Flexibility: Judges often use concurrent probation as a way to close out a less serious count without adding a “tail” that keeps a defendant under state supervision for decades after their release. Jennings confirms this practice is legal.
Structuring Pleas: Defense attorneys can once again confidently negotiate plea deals that involve concurrent probation without fear that an appellate court will sua sponte vacate the sentence as illegal. Agreeing to a lengthy probationary sentence may in some cases result in less jail time for the defendant.
Mandatory Minimums: Unfortunately, the case serves as a reminder that the Commonwealth does not need to show its hand regarding mandatory minimums in the initial charging documents, provided they give notice before sentencing.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

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 1/11/26 Zak Goldstein 1/11/26

Pennsylvania Superior Court Upholds ATV Conviction Despite Out-of-State Registration

In a recent decision addressing the limits of out-of-state vehicle registration (Commonwealth v. Devilbiss), the Pennsylvania Superior Court affirmed a summary conviction against a defendant who argued that his Montana registration permitted him to operate an ATV on Pennsylvania roadways.

The case serves as an important reminder that registration reciprocity does not override Pennsylvania’s substantive vehicle restrictions, even when a vehicle is lawfully registered elsewhere. And while we do not typically handle summary traffic offenses, these types of offenses often lead to police encounters that may result in arrests for other charges such as drug or gun offenses.

The Facts of the Case

In October 2024, the defendant was stopped by police in Northumberland County while operating a quadricycle (an off-road vehicle) on a public highway. He was cited under Section 7721(a) of the Pennsylvania Motor Vehicle Code, which prohibits the operation of ATVs on public streets and highways unless specifically designated for such use.

The defendant contested the citation and was found guilty of the summary offense by a magisterial district judge. He then exercised his right to a de novo appeal to the Court of Common Pleas.

At the summary appeal hearing, the parties stipulated that the defendant was operating an ATV on a Pennsylvania highway. They also stipulated that the vehicle was owned by a Montana-based LLC and properly registered in Montana.

The Legal Argument

Devilbiss argued that Section 1303 of the Motor Vehicle Code, the statute governing nonresident vehicle registration, allowed him to operate the quadricycle on Pennsylvania roads because it was lawfully registered in another state.

According to the defense, Section 1303 provides broad authorization for the operation of any foreign vehicle on Pennsylvania roadways so long as it is validly registered in its home jurisdiction. The trial court rejected that argument and affirmed the conviction.

Devilbiss appealed to the Superior Court.

The Superior Court’s Decision

The Superior Court affirmed, holding that Section 1303 addresses registration requirements only, not whether a particular class of vehicle may lawfully be operated on Pennsylvania highways.

Applying basic principles of statutory interpretation, the Court explained that the plain language of Section 1303 simply exempts nonresident owners from Pennsylvania registration and fees when their vehicles are properly registered elsewhere. It does not authorize vehicles that are otherwise prohibited—such as ATVs—to be driven on public roads.

The Court declined to expand Section 1303 beyond its clear terms and rejected the argument that out-of-state registration could override Section 7721’s explicit prohibition on ATV operation on public highways.

Because the defendant conceded that he was operating an ATV on a roadway where such vehicles are not permitted, the Court found no error of law or abuse of discretion and affirmed the judgment of sentence.

The Takeaway

This decision underscores an important distinction in Pennsylvania traffic law: registration reciprocity does not equal roadway permission. Even if a vehicle is properly registered in another state, it still must comply with Pennsylvania’s rules governing what types of vehicles may be operated on public streets and highways.

For drivers, and especially those relying on out-of-state registrations or unconventional vehicles, this case highlights the limits of statutory defenses based on reciprocity provisions. And it also means that driving this type of vehicle on a Pennsylvania street could lead to a lawful stop or police encounter.

Facing criminal charges? We can help.

Criminal Defense Attorney Zak Goldstein — Goldstein Mehta LLC Criminal Defense Attorneys

Zak Goldstein 1/10/26 Zak Goldstein 1/10/26

Superior Court Orders New Sentencing Where Judge’s Prior Role Created Appearance of Bias

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Freeman, vacating the judgment of sentence for a juvenile lifer and ordering a new sentencing hearing after concluding that the sentencing judge’s prior role as a prosecutor created an impermissible appearance of bias.

The ruling reinforces an important principle in Pennsylvania criminal law: defendants are entitled not only to a fair judge, but to a judge whose impartiality cannot reasonably be questioned, particularly at sentencing. In other words, a judge must recuse not only when they actually cannot be fair, but also when it appears they might not be able to be fair.

Background

Bryan and David Freeman were 17 and 16 years old, respectively, when they pleaded guilty in 1995 to first-degree murder in connection with the killing of their parents. Under Pennsylvania law at the time, the trial court immediately imposed mandatory life-without-parole sentences. Neither brother filed a direct appeal.

Years later, following the United States Supreme Court’s decisions in Miller v. Alabama and Montgomery v. Louisiana, which held that mandatory life-without-parole sentences for juveniles are unconstitutional and retroactively invalid, both brothers successfully reopened their cases through PCRA proceedings and were granted new sentencing hearings.

After extensive delays, the cases were reassigned to a new judge, who conducted a multi-day resentencing hearing in February 2024. At the conclusion of that hearing, the court imposed new sentences of 60 years to life for each defendant.

The Motion to Recuse

Before resentencing began, the defense filed a joint motion asking the sentencing judge to recuse himself. The motion was based on the judge’s prior involvement as a prosecutor in two closely related matters:

He had previously represented the Commonwealth on appeal against the Freeman brothers’ co-defendant in the same homicide case.
He had also prosecuted a separate “copycat” murder case in which the Commonwealth’s theory was that the Freeman brothers’ crimes inspired another individual to murder his own parents. During that prosecution, the judge, then an assistant district attorney, made public statements emphasizing the Freeman murders as central to that case.

The defense argued that these prior roles created, at a minimum, an appearance of partiality that required recusal. The trial court denied the motion and proceeded with resentencing. Following sentencing, the defendant appealed.

Superior Court’s Decision

On appeal, the Superior Court reversed.

Relying heavily on Williams v. Pennsylvania, the Court emphasized that the recusal inquiry is objective, not subjective. The issue is not whether the judge believed he could be fair, but whether a reasonable observer could question the judge’s impartiality.

The Court held that the judge’s prior prosecution of the Freeman brothers’ co-defendant based on the same facts and involving the same crimes was sufficiently intertwined with the resentencing proceedings to create an impermissible appearance of bias. The Court further noted that the judge’s role in the related “copycat” murder prosecution strengthened the need for recusal.

Because sentencing is one of the most consequential stages of a criminal case, the Superior Court concluded that the failure to recuse required relief. The Court vacated the judgments of sentence, vacated the order denying recusal, and remanded the cases for new resentencing proceedings before a different judge.

Importantly, the Court did not find actual bias. Instead, it made clear that the appearance of bias alone is sufficient to undermine confidence in the fairness of the proceeding.

The Takeaway

This decision is a powerful reminder that judicial neutrality is not optional, especially in sentencing, PCRA litigation, and juvenile lifer cases. Even decades after a conviction, prior prosecutorial involvement in a related case can disqualify a judge if it creates a reasonable appearance of partiality.

For defendants seeking resentencing, post-conviction relief, or appellate review, Freeman underscores the importance of scrutinizing a judge’s prior role and preserving recusal issues for appeal.

Facing criminal charges or under investigation by the police?

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 12/11/25 Zak Goldstein 12/11/25

Pennsylvania Superior Court Upholds Admission of Google Maps Timeline Data Without Requiring Expert Testimony

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

The Pennsylvania Superior Court has decided the case of Commonwealth v. Jones, holding that the Commonwealth need not call an expert witness to introduce Google Maps timeline data recovered from a defendant’s cell phone. The Court held that no expert is required so long as the testifying witness does not offer their own technical opinion and instead simply replays what the app automatically displays. This decision makes it easier for either side to introduce cell phone location data obtained from various Google apps and records.

The Facts of Jones

At around 2:00 a.m. on June 18, 2024, a masked man robbed a Turkey Hill convenience store in Lancaster County. The store clerk later identified the defendant based on his eyes, dreadlocks, and voice after seeing his Facebook profile. The police obtained a search warrant. After obtaining the warrant, the police seized the defendant’s cell phone and tablet. Both devices were synchronized with and linked to his Google account.

A detective accessed the defendant’s Google Maps “Your Timeline” feature, which automatically logs a user’s past movements when enabled. The Timeline showed:

The defendant leaving home at 1:35 a.m.,
The defendant arriving at a hotel directly next to the Turkey Hill at 1:47 a.m.,
The defendant remaining there until 2:01 a.m., which was the time of the robbery, and
The defendant then traveling to a nearby Sheetz convenience store, where surveillance video confirmed the defendant’s presence.

At trial, the Commonwealth introduced screenshots of the defendant’s Google Maps data through the detective’s testimony. The defendant objected, arguing that an expert witness from Google or a digital forensics specialist was required to explain how the timeline information was generated. The trial court denied the motion, and the jury convicted the defendant of robbery, theft, and simple assault. He received a lengthy state prison sentence.

The Issue on Appeal in the Pennsylvania Superior Court

The defendant argued on appeal that the Google Maps Timeline contained inaccuracies, including suspicious travel distances and impossible driving times, and that only an expert could explain those discrepancies. Therefore, he claimed, allowing the detective to testify as a layperson about the data violated Pennsylvania Rules of Evidence 701 and 702.

The Superior Court’s Holding

The Superior Court affirmed the judgment of sentence, concluding:

Google Maps Timeline data may be introduced through a lay witness when the witness is simply describing the information displayed on the app and is not explaining any underlying technical processes.

The Court emphasized several key points:

1. The detective did not provide technical or scientific testimony. He accessed Google Maps the same way an ordinary user would. He opened the app and clicked “Your Timeline.” He did not testify about how Google calculates GPS coordinates or how the software functions internally.

2. The data was automatically generated by Google, not manually interpreted by police. Because the app itself creates and stores the Timeline, the officer was merely relaying what he saw on the screen, much like reading business records or phone-company logs.

3. Any inaccuracies went to the weight of the evidence, not admissibility. The defendant pointed to anomalies such as a twelve-minute trip to travel 0.2 miles, but the Court held these issues were for the jury to consider, not grounds for exclusion. The detective freely acknowledged the inconsistencies on cross-examination.

4. Lay testimony is proper when interpreting data within common understanding. The Court compared the case to Commonwealth v. Grubbs, where a detective testified to cell-site location data without expert qualification because he merely relayed coordinates already calculated by service providers. In contrast, cases where expert testimony was required, such as interpreting technical IP address data, were distinguishable because they involved complex digital processes. In reality, it is not so clear what the difference is.

This opinion signals that Pennsylvania courts will generally treat Google Maps data as non-technical user data, similar to ordinary phone records, so long as:

The witness does not attempt to explain how the data is generated,
The witness only describes the app’s output, and
The prosecution can authenticate the device and account.

It also underscores that defendants may need their own expert if they wish to challenge the reliability of such location data.

The Takeaway

The Superior Court held that Google Maps GPS Timeline screenshots are admissible through lay testimony, and any questions about their accuracy go to the weight of the evidence, not whether the jury may consider them.

This ruling will likely make it easier for prosecutors to introduce Google-based location evidence in robbery, homicide, and gun cases without needing specialized experts, while placing the burden on the defense to identify and challenge inaccuracies through independent expert analysis when appropriate. It does, however, also make it easier for the defense to introduce this evidence should the evidence be helpful to the defendant. In general, this case follows a trend of courts making it easier for the Commonwealth to introduce electronic evidence without requiring much in the way of safeguards.

Facing criminal charges or appealing a criminal case? We can help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals 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.