Philadelphia Criminal Defense Blog

Zak Goldstein 2/27/20 Zak Goldstein 2/27/20

Can a judge give a worse sentence if you file a motion to reconsider the sentence?

The Pennsylvania Superior Court has decided the case of Commonwealth v. Coleman, holding that a trial court may not sua sponte increase a defendant’s sentence after he or she files a post-sentence motion. This decision is significant because there is an all-too-common misconception among defense attorneys that if they file a post-sentence motion for a new trial or a reduced sentence, there is the possibility that the judge could retaliate by increasing the defendant’s sentence. As such, some attorneys are hesitant to file these motions for that incorrect reason. Hopefully, as a result of Coleman, this misconception will be put to rest.

Commonwealth v. Coleman

On August 7, 2017, the complainant was granted a temporary protection from abuse (“PFA”) order against her boyfriend, the defendant. When the PFA was issued, the defendant and the complainant were living together. Notably, the defendant was not on the lease of their shared residence nor did he ever possess a key.

Despite the PFA being issued, the defendant evaded attempts at being officially served with the PFA. Additionally, the defendant continued to go to their shared residence which resulted in the complainant staying at her grandmother’s home until the defendant could be officially served. On August 21, 2017, the defendant was finally served with the PFA order and an eviction notice. When he was served, he was hiding in the complainant’s daughter’s bedroom closet. The complainant was present when an officer offered to have him remove all of his property from the residence which the defendant declined. Because of the defendant’s actions, the complainant made a point to keep all of her windows and doors locked.

On August 25, 2017 at around 9:30 AM, the complainant was returning home when she noticed the defendant coming out of her house holding a bag. She would later testify that she did not observe any exterior sign of forced entry. However, she did testify that a few months prior to this she observed the defendant attempting to climb through her window. The complainant assumed that this is how the defendant entered her residence. She also would testify that she observed the internet box, which was in the defendant’s name, was missing from the house. At the time of this incident, the PFA was still active and thus the defendant did not have permission to be inside the home. The defendant would later testify that he and the complainant had a conversation where she gave him permission to enter the residence.

On August 30, 2017, the complainant went to the defendant’s new residence at his request. When she arrived, she noticed that the defendant’s new girlfriend was living at this residence. The complainant was not let in, but for unknown reasons the police were subsequently called. As a result, the defendant was subsequently arrested and charged with burglary, criminal trespass, criminal mischief, and contempt for violating the PFA order for his actions on August 25, 2017. The defendant elected to have a bench trial where the above testimony was presented and he was found guilty of burglary, criminal trespass, and contempt.

The trial court then conducted a subsequent sentencing hearing on August 23, 2018. At that hearing, it was determined that the defendant had a prior record score of zero and an offense gravity score of seven, which set the sentencing guidelines to 6 to 14 months’ incarceration, plus or minus 6 months. The trial court stated that it had reviewed the pre-sentence investigation report and the text messages that were provided to the court. The defendant’s attorney informed the trial court that the defendant was employed and no longer involved with the complainant. The defendant’s new girlfriend also testified on the defendant’s behalf.

The Commonwealth requested that the defendant receive a sentence of 6 ½ to 23 months’ incarceration for his actions. After arguments, the trial court elected to sentence the defendant to 12 to 24 months of incarceration which was to be followed by two years of probation. In its rationale, the trial court stated that the defendant “tortured” the complainant based on its review of the text messages.

The defendant then filed a post-sentence motion arguing that the court should not have sentenced him to a sentence greater than what was requested by the Commonwealth. In his motion, the defendant specifically referenced the trial court’s comment that the defendant “tortured” the complainant. A hearing was held on August 30, 2018. At that hearing, the defendant rested on his motion and requested that the trial court impose a county sentence.

The trial court then stated that it had reviewed the defendant’s motion and that even though it mentioned the word “torture” during the defendant’s sentencing, it was not a factor in the defendant’s sentence. Also during this hearing, it became known that the defendant had re-violated the PFA. In response to questioning by the trial court, the defendant stated that “[he] didn’t mean to violate the PFA.” It is worth noting that at this hearing, the Commonwealth did not request a modification of the defendant’s sentence nor did it file its own post-sentence motion. Nonetheless, the trial court re-sentenced the defendant to an increased sentence of 14 to 18 months of incarceration, followed by four years of probation. The defendant then filed another post-sentence motion which was denied and then he subsequently filed a timely appeal.

What is a Post-Sentence Motion?

Post-Sentence motions are an incredibly important, and often forgotten, part of criminal defense practice. A post-sentence motion is a request to do any of the following: modify one’s sentence, request a new trial (for a variety of reasons including: the acquisition of newly discovered evidence, prosecutor’s comments during closing argument, challenging the weight of the evidence, etc.), request a motion for judgment of acquittal, and challenge one’s guilty plea. As one can see, post-sentence motions gives the trial court an opportunity to correct a past wrong by either the jury or the trial court itself.

It is worth noting that these motions are frequently denied. However, that does not take away from their importance. They are incredibly important because if you do not file them on time, you can inadvertently waive certain issues for appeal. For example, if you do not file a post-sentence motion, you are not able to challenge the weight of the evidence or the discretionary aspects of an appeal. Therefore, it is imperative that your attorney files a post-sentence motion after your sentencing if you believe that you received an unduly harsh sentence or if you believe that there were serious issues with the evidence that was presented at your trial.

The Superior Court’s Decision

The Superior Court granted the defendant’s appeal. In its decision, the Superior Court relied on prior case law that stated that in order for a defendant’s sentence to be increased after a post-sentence motion is filed, the Commonwealth must also have filed a post-sentence motion. In other words, a trial court is not permitted to increase a defendant’s sentence unless the Commonwealth has filed a post-sentence motion specifically requesting a harsher sentence. Therefore, a defendant cannot be punished simply because he files a post-sentence motion requesting a more lenient sentence. Because the Commonwealth did not file a post-sentence motion in this case, the defendant’s current sentence will be vacated and he will receive his original sentence.

Facing Criminal Charges? We Can Help.

Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 12/3/19 Zak Goldstein 12/3/19

How can I find out if I have an arrest warrant in Pennsylvania?

Philadelphia Criminal Defense Lawyer Zak Goldstein

We frequently hear from people who are trying to figure out if they currently have an active warrant for their arrest. This is because the police do not always tell you if you have an arrest warrant pending or even attempt to execute a warrant once they have obtained one. It is also possible that prosecutors could have filed charges in a jurisdiction in which you do not live or that mail notifying you of pending charges could have been sent to an old address and that you may not have received it. Fortunately, there are a number of ways to find out if you have a warrant for your arrest.

1) A Criminal Defense Lawyer Can Help You Find Out If You Have An Arrest Warrant

The best way to find out if you have a warrant for your arrest is to contact a local criminal defense lawyer in the jurisdiction where you may have a warrant. A defense attorney will typically be able to contact the local police or prosecutors and/or check the court dockets to find out if you may have charges pending. Additionally, if it turns out that you do have charges pending, you can then retain an attorney to help you turn yourself in and resolve the warrant. There are significant benefits to retaining an attorney before you turn yourself in. For example, if you retain a criminal defense lawyer prior to turning yourself in, the police will not be a able to attempt to question you and obtain a confession, you may be processed more quickly, and your bail will likely be lower as your attorney will be able to represent you for a preliminary arraignment. In addition, the defense attorney can start investigating your case right away, work with you on building a defense, and give you advice on what to expect from the criminal justice process before you turn yourself in. It also helps you avoid the police showing up to your house or work without notice.

2) You Can Find Out If You Have A Warrant At The Police Station

You can also find out if you have an arrest warrant by going to the police station, providing the officers with identification, and asking them to run you for warrants. This is probably the worst way to to find out if you have a warrant because if it turns out that you have one, the police will almost definitely take you into custody. They may try to question you, they will definitely search you, and you will likely not have the benefit of an attorney for preliminary arraignment. Therefore, it is a much better idea to speak with a defense attorney prior to turning yourself in if you are concerned that you could have a warrant pending.

3) Some Arrest Warrants Show Up Online in Pennsylvania

In Philadelphia, new arrest warrants for state court charges do not show up online. Federal warrants also typically do not show up on the federal PACER court docket system until the defendant has actually been arrested. Outside of Philadelphia, however, many warrants will show up on the court dockets as a docket will be created and listed as an “inactive” case when the charges are filed by the assigned detective. You can search for your name on the Pennsylvania Court Website here under Magisterial District Courts and see if you have a warrant. Although the dockets may be able to give you some information, not all warrants show up on the dockets, they never show up for new Philadelphia cases, and the information is not always easy to understand. They will also not tell you about federal cases or sealed arrest warrants. Finally, active bench warrants will usually show up on court dockets even for Philadelphia cases as the docket will have an entry for the hearing at which the bench warrant was issued and the case will typically be listed as inactive. Therefore, the court dockets are not a bad place to start, but just because your name does not show up does not necessarily mean there is no warrant. If your name shows up on the dockets or you are still concerned that there could be a warrant, you should speak with a defense attorney.

4) Warrants May Show Up On a Private Background Check

In some cases, a pending arrest warrant may also show up on a private background check. However, background checks are often expensive and not always reliable, so this is typically not the best way to find out if you need to retain a defense attorney and turn yourself in. In general, if you are concerned that the police are looking for you, your best bet is to call a criminal defense attorney today.

Facing criminal charges? We can help.

If you are under investigation or facing criminal charges, we can help. We may also be able to help you determine if you have a pending arrest warrant. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients who were facing charges including DUI, Murder, Aggravated Assault, Possession with the Intent to Deliver, and Violations of the Uniform Firearms Code. We offer a free 15-minute criminal defense strategy session. Call 267-225-2545 to speak with an award-winning defense attorney today.

Zak Goldstein 11/28/19 Zak Goldstein 11/28/19

What happens at arraignment in Philadelphia?

There are two types of arraignment hearings in Philadelphia state court. The first occurs shortly after the defendant is arrested and is called a preliminary arraignment. The second, called formal arraignment, occurs shortly after the preliminary hearing if the defendant has been held for court on a felony charge or directly before trial where the defendant is going to trial in the Municipal Court on misdemeanor charges.

What is an arraignment?

The two types of procedures are very different because the preliminary arraignment is an important step in the process during which the defendant will have bail set by a magistrate or trial commissioner. The amount of bail that the defendant has to pay to be released is extremely important because if the defendant cannot afford to pay bail, then the defendant will be held in custody until either the case is resolved or a judge reduces the bail at a subsequent hearing. Unlike preliminary arraignment, very little happens at formal arraignment. Instead, the defendant is simply advised of the charges against him or her and given the opportunity to plead not guilty. Where the defendant is not in custody, we will typically waive the hearing so that the defendant does not have to make an extra trip to court. Thus, at both types of hearings, the defendant will be advised of the charges and given the opportunity to plead not guilty, but at preliminary arraignment, the defendant will have bail set by a magistrate. This makes the preliminary proceeding much more important.

What happens at the Preliminary Arraignment?

The first type of arraignment that occurs after a defendant has been charged with a crime in Philadelphia is the preliminary arraignment. This hearing takes place in the basement of the Criminal Justice Center. Once the defendant has been arrested, the defendant will typically be held at the police station for 10-20 hours while they are processed by the police. During that 10-20 hour period, the police will prepare reports, court officers will investigate the defendant’s background, call a family member to verify the defendant’s address, and make a bail recommendation, and the District Attorney’s Office will decide on the final charges that the defendant will face.

Once police and court officials complete that process, a trial commissioner will hold a hearing to advise the defendant of the charges and set bail. Unfortunately, there is no way to avoid being held for 10-20 hours during this processing period. However, in general, if you have an outstanding arrest warrant, we find that the best day to turn yourself in for a quick processing is on Tuesday mornings. In some cases, we have been able to have clients processed and seen by a magistrate in around six hours where they turn themselves in first thing on Tuesday morning.

Do I need a lawyer for Preliminary Arraignment?

Yes. The hearing takes place in the basement of the Criminal Justice Center roughly 10-20 hours after a defendant has been arrested. The trial commissioner, defense counsel if counsel has been retained, a public defender intern, and a District Attorney’s Office intern are all physically present in the building. The defendant participates in the hearing by video from the police station where the defendant is still being held. The commissioner will then read the charges to the defendant, provide the defendant with date of the first court hearing, and then accept argument from the prosecution and the defense as to what bail should be required before the defendant can be released.

Under the current system, the prosecution is generally asking for little or no bail for many non-violent crimes and misdemeanors, but bail can be very high for violent crimes, defendants with lengthy prior records, and certain felony offenses. Therefore, it is important, when possible, that you retain an attorney prior to turning yourself in so that you can have an attorney present for the bail hearing and get the lowest possible bail.

What happens after the Preliminary Arraignment?

If the defendant quickly makes bail (which can be paid online with a credit or debit card, in the courthouse, or at the prison), then the defendant will be released with a subpoena to return for a court date. If the defendant cannot make bail, then the defendant will be transported to the Curran-Fromhold Correctional Facility and detained until the defendant either makes bail, bail gets reduced, or the case gets resolved. This process is the preliminary arraignment, and it is an important part of the criminal justice process. Either way, in a felony case, the accused will receive a subpoena for a preliminary hearing court date.

What is Formal Arraignment?

Arraignment is a much less important part of the criminal justice process than the preliminary version. In Philadelphia, it generally takes place only in a felony case. When a defendant is charged with a felony in Philadelphia, the first court hearing after the preliminary arraignment is a preliminary hearing which takes place in front of a Municipal Court judge. At that hearing, the Municipal Court judge must determine whether there is enough evidence that the case should go forward to the Court of Common Pleas on felony charges, be remanded to the Municipal Court on misdemeanor charges, or be dismissed altogether. Assuming the prosecution introduces enough evidence that a felony occurred and the defendant committed the felony to send the case to the Court of Common Pleas, the court date after the preliminary hearing will be the formal arraignment.

Very little, if anything, actually happens at this hearing. If the defendant has retained a private criminal defense attorney, that attorney can waive the hearing so that the defendant will not have to appear. The public defender will not usually waive the hearing for a defendant. The defendant will then simply receive a new court date for a Pre-Trial Conference (SMART Room listing) at which the prosecution will make a plea offer and provide the defense with discovery such as the police reports, witness statements, videos, and other things of that nature. If the defendant is in custody due to a probation detainer or because the defendant does not make bail, then the defendant will not even be brought to the arraignment and will simply receive a new court date. If the defendant does not retain counsel and has a public defender, then the defendant will typically have to appear for the arraignment.

The trial commissioner will advise the defendant of the charges that have survived the preliminary hearing, the defense attorney will enter a not guilty plea on behalf of the defendant, and the parties will discuss whether there is any discovery that has been passed or whether discovery remains outstanding. The defendant will then receive a subpoena for the next court date, which will be the previously-discusssed Pre-Trial Conference (“SMART room” in Philadelphia).

In a misdemeanor case, the accused technically has the right to be arraigned by a Municipal Court judge directly before the trial takes place. This typically does not provide any benefit to the accused, so the defense will usually waive the reading of the charges in a misdemeanor case in order to expedite things as the charges have been provided in the complaint in advance.

The differences between the two hearings

The bottom line is that the preliminary arraignment takes place right at the beginning of the case and is an extremely important hearing. It is a crucial hearing in which the defense attorney can fight for low bail so that the client is not held in custody pending the resolution of the charges. The formal arraignment, however, is relatively insignificant and can typically be waived so that the defendant does not have to miss work or incur the cost in terms of time and lost wages of attending court for a date on which very little will happen.

What happens in the rest of the state?

in the rest of the state, less serious criminal cases are often initiated by police sending the defendant a summons in the mail directing the defendant to appear in court for a preliminary arraignment, to get fingerprinted, and to schedule a preliminary hearing. Philadelphia police do not do this; instead, they almost always simply arrest someone. In the rest of the state, once a defendant has received a summons, he or she can retain an attorney and make arrangements with the assigned detective to schedule the first hearing in the case where bail will be set and a preliminary hearing will be scheduled. This makes it much easier for a defendant to have a lawyer present for the hearing as the arrest is less likely to happen by surprise.

What happens at arraignment in New Jersey or Federal Court?

New Jersey and the Federal court system also have arraignment proceedings which are somewhat different. In both of those systems, arraignment occurs after a defendant has been indicted by a grand jury because those systems do not have preliminary hearings in the way that Pennsylvania does. Once a grand jury returns an indictment, the defendant goes before the assigned judge for the arraignment and is advised of the charges and typically enters a plea of not guilty. The judge will then set a schedule for the filing of pre-trial motions and exchange of discovery.

Are you facing criminal charges? We can help.

If you are facing criminal charges or may be under investigation by law enforcement, we can help. Our Philadelphia criminal defense attorneys have successfully defended thousands of clients in Pennsylvania and New Jersey. We offer a free 15 minute criminal defense strategy session to each potential client. Call 267-225-2545 to speak with an experienced and understanding criminal defense lawyer today.

Zak Goldstein 10/14/19 Zak Goldstein 10/14/19

PA Superior Court: Double Jeopardy Protections Do Not Prevent Multiple Prosecutions for Unrelated but Similar Burglaries and Thefts

The Pennsylvania Superior Court decided the case of Commonwealth v. Jefferson, holding that a defendant is not entitled to Double Jeopardy relief when he pleads guilty to cases that were not part of the same criminal episode as his remaining open cases. This is not a surprising decision given the facts of these particular cases. Nonetheless, these cases highlight another tool that defense attorneys can use to fight the charges against their clients.

Commonwealth v. Jefferson

The defendant had multiple cases involving theft and burglary-related charges. The facts of each one will be discussed in the subsequent paragraphs. The first case occurred on October 19, 2015. On that date, a witness observed the defendant and another individual in the backyard of a home located on Rittenhouse Street in Philadelphia. The witness, who lived in the neighborhood and knew the homeowner, did not recognize the two men. After a brief conversation, the defendant and the other individual entered a vehicle and left. The witness called 911 to report the incident and provided the number on the license plate to the authorities. Additionally, upon inspection of the home, the homeowner noticed that there were pry marks along the metal frame of the door. The defendant did not have permission to be inside the homeowner’s residence. The defendant was subsequently charged with attempted burglary, criminal mischief, and conspiracy.

The second case involved an incident that took placed on Mansfield Avenue in Philadelphia. The resident of the property in question observed the defendant and another individual break into this home. This resident saw his basement door open which caused him to run outside to flag down a police officer. After finding an officer, he jogged back home and observed the defendant running across the awnings of his home as well as nearby buildings. He also noticed that a black SUV (the same car that was used in the Rittenhouse burglary), which was later to be determined stolen, was parked in the driveway of his residence. The defendant was charged with two separate dockets: the first was burglary, criminal mischief, and other charges, the second docket was for receipt of stolen property, and unauthorized use of a motor vehicle.

While the defendant was awaiting trial on the above cases, he was subsequently charged with six separate dockets with one count of criminal mischief at each case. These charges stemmed from the previously mentioned flight from the Mansfield Avenue residence which resulted in the defendant damaging six awnings during his escape. This resulted in thousands of dollars in damage to these residences. The defendant pleaded guilty to all six of these criminal mischief cases.

After the defendant pleaded guilty to these six other cases, he filed motions seeking to bar prosecution of the more serious burglary cases. The defendant argued that prosecution was barred by 18 Pa.C.S. § 110(1)(ii) which prohibits subsequent prosecutions for cases that arise from the same criminal episode. The trial court denied his motion, with the exception of the criminal mischief charge in the Mansfield burglary case. The defendant then filed an interlocutory appeal arguing that the trial court improperly denied his motion to dismiss the remaining cases against him. On appeal, the Commonwealth conceded that the Mansfield burglary should be dismissed pursuant to Rule 110 because the flight from the burglary, which damaged the awnings, was part of the same criminal incident. However, the Commonwealth argued that the stolen car and the Rittenhouse burglary cases should not be dismissed because they were not related to the Mansfield burglary..

What is Rule 110?

Rule 110 is Pennsylvania’s statute that prohibits multiple prosecutions that arise from the same criminal episode. In other words, it is the codified version of both the Pennsylvania and United States Constitutions’ prohibition against Double Jeopardy. There is a four-part test to determine whether subsequent prosecution should be barred:

The former prosecution must have resulted in an acquittal or conviction;
The current prosecution is based upon the same criminal conduct or arose from the same criminal episode as the former prosecution;
The prosecutor was aware of the instant charges before the commencement of the trial on the former charges; and
The current offense occurred within the same judicial district as the former prosecution.

If all of these elements are met, then the case should be dismissed. As a practical matter, attorneys usually only litigate the second element because the other elements are easy to determine whether they have been satisfied. In the instant case, the Commonwealth only argued that the second element had not been satisfied, meaning the Commonwealth argued that the incidents were unrelated.

The Superior Court’s Decision

The Superior Court denied the defendant’s appeal. The Superior Court held that there was no logical relationship between the Rittenhouse burglary case, the stolen car, and the awnings cases. The awnings cases were the result of the defendant fleeing the scene from the Mansfield burglary. As such, it had no connection to the Rittenhouse burglary. Further, the Superior Court rejected the defendant’s argument that the use of the same stolen car in both burglaries connected the incidents for purposes of triggering double jeopardy protections. Therefore, the defendant will have to face trial for both the Rittenhouse burglary and the stolen car cases.