Philadelphia Criminal Defense Blog

Zak Goldstein 10/22/20 Zak Goldstein 10/22/20

PA Superior Court: NJ Aggravated Assault Conviction Not a Prior "Strike"

The Pennsylvania Superior Court has decided the case of Commonwealth v. Johnson, holding that a defendant’s conviction for third-degree aggravated assault in New Jersey does not qualify as a prior “strike” offense under 42 Pa. C.S.A. § 9714. This decision is significant for people who have convictions in other states because it requires a trial judge to analyze said conviction to determine whether it qualifies as a strike offense in Pennsylvania. As this decision shows, “strike” offenses are very serious and can result in lengthy mandatory minimum sentences at sentencing for subsequent offenses.

Commonwealth v. Johnson

In 2018, the complainant was working as a cashier at a convenience store in Chester County, Pennsylvania. At about 7:45 p.m., a customer approached the counter with a bag of chips. The complainant asked for twenty-five cents to which the man then proceeded to drop the chips and pull a gun on him. The complainant told him not to “play” unless he wanted to go to jail and advised him that there were cameras in the store. The man then left the store with the chips and the complainant followed him demanding payment. The man then re-entered the store, put the chips back on the counter, and told the complainant that he made a mistake and did not want the chips. The man then left the store.

The complainant did not immediately report the robbery. The following day when his manager came into the store, the complainant told him what happened. The two men then viewed the security camera video and saved the video footage of the robbery. Later that day, the man who committed the robbery entered the store. The cashier recognized this man as the robber from the night before. Upon seeing the complainant, the man abruptly left the store. The complainant reviewed the footage and confirmed it was the person who robbed him the night before and called the police.

About five minutes later, an officer with the Chester Police Department arrived at the convenience store. The officer reviewed the footage and sent out a “flash” including a description of the individual and what he was wearing. The officer then left the store and began to search for the suspect himself. About fifteen minutes after he left the store, he came across the defendant. The officer detained the defendant and the complainant made an identification of him. The defendant was subsequently arrested and charged with robbery and possessing an instrument of crime (“PIC”).

The defendant proceeded by way of a jury trial where he was convicted of both charges. He was then sentenced to a term of ten to twenty years of imprisonment. The reason he received that sentence was because the trial court determined that this was a “second strike offense” based on his prior New Jersey conviction for aggravated assault graded as an indictable offense (felony) of the third-degree. Afterwards, the defendant filed a timely appeal raising multiple issues. For purposes of this blog, only his sentencing issue will be addressed.

What is Pennsylvania’s Strike Statute?

42 Pa. C.S.A. § 9714 is the statute that governs second and third strike offenses. It states:

(a) Mandatory sentence.--
(1) Any person who is convicted in any court of this Commonwealth of a crime of violence shall, if at the time of the commission of the current offense the person had previously been convicted of a crime of violence, be sentenced to a minimum sentence of at least ten years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. Upon a second conviction for a crime of violence, the court shall give the person oral and written notice of the penalties under this section for a third conviction for a crime of violence. Failure to provide such notice shall not render the offender ineligible to be sentenced under paragraph (2).
(2) Where the person had at the time of the commission of the current offense previously been convicted of two or more such crimes of violence arising from separate criminal transactions, the person shall be sentenced to a minimum sentence of at least 25 years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. Proof that the offender received notice of or otherwise knew or should have known of the penalties under this paragraph shall not be required. Upon conviction for a third or subsequent crime of violence the court may, if it determines that 25 years of total confinement is insufficient to protect the public safety, sentence the offender to life imprisonment without parole.

42 Pa. C.S.A. § 9714(g) also lists the offenses that qualify as a “strike” offense. It should be noted that not every crime of violence qualifies as a strike offense. For example, only two of the nine subsections of Pennsylvania’s aggravated assault statute qualify as a “strike” offense. Thus, it can be inferred that these mandatory minimum sentences are only reserved for the most serious crimes.

The Superior Court’s Decision

The Pennsylvania Superior Court remanded the defendant’s case for a new sentencing hearing. In making its decision, the Court analyzed New Jersey’s aggravated assault statute. New Jersey defines third-degree aggravated assault as when a person “[a]ttempts to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury. The New Jersey Code of Criminal Justice defines “significant bodily injury” as: “bodily injury which creates a temporary loss of function of any bodily member or organ or temporary loss of any of the five senses.” This is different from Pennsylvania’s aggravated assault statute which requires “serious bodily injury” which is defined as “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

This distinction proved to be important for the Pennsylvania Superior Court. It found that the defendant’s New Jersey conviction was not serious enough to warrant a classification as a prior “strike” offense. Therefore, the statutes were not equivalent, and a conviction under the statute did not constitute an equivalent offense. Therefore, the defendant did not qualify for an enhanced sentence under 42 Pa. C.S.A. § 9714. As such, the Superior Court vacated his sentence, and his case will be remanded for re-sentencing.

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Zak Goldstein 10/11/20 Zak Goldstein 10/11/20

PA Supreme Court Eliminates Public Record Presumption for Newly-Discovered Evidence PCRAs

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Small, eliminating the “public records presumption” with respect to Post-Conviction Relief Act (“PCRA”) litigation. The public-records presumption often allowed courts to dismiss PCRA Petitions based on newly-discovered evidence on the theory that a petitioner should have found out about potential evidence contained in records which were theoretically publicly available at an earlier date, thereby rendering petitions untimely. PCRA Petitions based on newly-discovered evidence generally must be filed within one year of the date on which the Petitioner learned of the new evidence. Of course, inmates don’t really have access to public records, and even when they have lawyers, their lawyers may not be aware of certain new evidence or facts. Therefore, the presumption unfairly resulted in the dismissal of countless petitions.

Commonwealth v. Small

The defendant and his co-defendant committed an armed robbery of a drug dealer in the co-defendant’s home in 1981. During the incident, the defendant stabbed the drug dealer and the decedent. The decedent died from his wounds. The defendant and his co-defendant were tried together in 1983. At their trial, the drug dealer testified and identified the defendant and his co-defendant as the assailants. The drug dealer also testified that the defendant stabbed him during the robbery, while the co-defendant was armed with a shotgun. During the struggle, the drug dealer was able to escape through a kitchen window.

The co-defendant testified in his own defense and provided a different account of the events. He admitted that he and the defendant intended to rob the drug dealer and the decedent. However, he denied wielding a shotgun. He testified that he and the defendant entered the apartment and ordered the decedent and the drug dealer on the floor. While tying up the drug dealer, he jumped up and struck the co-defendant. The defendant then came to the co-defendant’s aid and hit the drug dealer three times “with what sounded like punches.” The defendant then “punched” the decedent who cried out that he had been stabbed. The co-defendant stated that he left the apartment in a panic, but then they realized he had left his hat behind. The two men then went back to the apartment. They entered the apartment by breaking a kitchen window whereupon the co-defendant retrieved his hat and the defendant carried off a television set.

The defendant also testified in his own defense. He denied any participation in the crimes. He even denied making an incriminating statement that he had given to detectives which stated that he served as a lookout outside of the apartment. The defendant stated that the detectives approached him in the interrogation room with a statement already prepared and instructed him to sign it, but he refused to do so. At the conclusion of the trial, the jury found both the defendant and the co-defendant guilty of second-degree murder, robbery, aggravated assault, and criminal conspiracy. The defendant was sentenced to life imprisonment. His sentence was later affirmed by the Superior Court.

The PCRA Petition

Over the course of several decades, the defendant made several attempts to obtain relief under the PCRA. His first three PCRA petitions were denied and their dismissals were affirmed on appeal. The instant case has to do with his fourth PCRA petition which was filed in 2014. In this petition, the defendant alleged that the co-defendant testified during his own post-conviction proceedings in a manner that was substantially different than from his trial testimony. The defendant testified that he learned this in 2013 while conducting legal research in the prison library. Due to what the PCRA court characterized as “some administrative and inexplicable error,” the defendant’s petition was neither assigned to nor received by the PCRA court until April 2017.

The PCRA court issued a notice of its intent to dismiss this PCRA petition without conducting an evidentiary hearing. The defendant responded to the notice, contending that his averments satisfied the newly discovered fact exception to the PCRA’s time bar. The PCRA court reconsidered its intent to dismiss the defendant’s petition. The PCRA court stated that the defendant obtained this “newly discovered” evidence based on his reading of a 1998 Superior Court decision that affirmed the denial of the co-defendant’s PCRA petition. In that opinion, the court cites the co-defendant’s testimony from his evidentiary hearing. It stated that the co-defendant testified that the defendant killed the decedent for personal reasons, specifically because his wife had an affair with him.

This was obviously different than what the co-defendant testified to at their trial. Based on this representation, the PCRA court appointed the defendant an attorney to represent him. His attorney was then able to obtain transcripts from evidentiary hearings conducted from the co-defendant’s PCRA proceedings. Consequently, the defendant then filed an amended petition citing these transcripts and alleging that he was entitled to a new trial in light of the after-discovered evidence prong of the PCRA statute. It should be noted that both the Commonwealth and the defendant stipulated that these transcripts constituted “public records.”

In making its decision, the PCRA court gave significant weight to the evidence revealed in the 1993 transcripts. The court found the transcripts relevant because the co-defendant gave another version of events that was different than what he said at their trial. Based on these discrepancies, the PCRA court concluded that this amounted to newly discovered evidence and he was entitled to a new trial. The Commonwealth then filed a timely appeal.

On appeal, the Pennsylvania Superior reversed the PCRA court. Specifically, the Superior Court found that because these transcripts from the 1993 hearing were a matter of public record and therefore could not be considered “unknown” to the defendant. Further, the Superior Court found that the co-defendant’s testimony from the 1993 hearing was not significantly different than his trial testimony. Consequently, the defendant was not entitled to PCRA relief. The defendant then filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court, and the Court agreed to hear the case.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court eliminated the public record presumption of the PCRA. The Court analyzed the plain language of the newly discovered evidence prong of the PCRA and found that it only has two elements: “that the facts upon which the claim is predicated were unknown to the petitioner,” and that those facts “could not have been ascertained by the exercise of due diligence.” Further, the Court stated that “[t]his language plainly calls for a circumstance-dependent analysis of the petitioner’s knowledge, not that of the public at large.” In other words, the language of the newly discovered evidence prong of the PCRA has no requirement that the evidence be of public record and that this presumption was a judicially crafted presumption that was inconsistent with the plain language of the statute.

Unfortunately for the defendant, the elimination of the public records presumption did not mean that he would get a new trial. The Pennsylvania Supreme Court adopted the Superior Court’s finding that the co-defendant’s testimony from his 1993 hearing was not significantly different than what he testified to at their trial. The Court acknowledged that there were inconsistencies and omissions between what he testified to in 1993 and what he testified to at trial. Nonetheless, the co-defendant’s testimonies were consistent enough and therefore held that the defendant is not entitled to a new trial. As such, he will be forced to serve the remainder of his sentence. However, this opinion will help many petitioners going forward as they will be able to get into court by filing a PCRA even if the new evidence appeared in public records to which they do not have access outside of the one year window for filing a newly-discovered evidence petition.

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Zak Goldstein 9/19/20 Zak Goldstein 9/19/20

PA Superior Court: Speedy Trial Rule Requires Commonwealth to Make Reasonable Efforts to Extradite Defendant

The Superior Court has decided the case of Commonwealth v. Morgan, holding that PA’s speedy trial rule, Rule 600, applies to defendants who are incarcerated in other states and the Commonwealth must be diligent in extraditing them back to Pennsylvania to stand trial. The Commonwealth may not simply wait until a defendant finishes serving a lengthy sentence in a another state before proceeding on criminal charges in Pennsylvania. Morgan holds that the Commonwealth must take active steps to bring the defendant to trial even when he is incarcerated in a different state.

Commonwealth v. Morgan

In October 2008, while serving a sentence in Bucks County, the defendant absconded from a work release program. Shortly thereafter, the Bucks County Sherriff’s Office (“BCSO”) filed a written complaint charging the defendant with escape, and a magisterial district judge issued a warrant for his arrest. About a week later, the BCSO received notice that the defendant was being held on homicide and firearm charges in the state of Georgia.

A preliminary hearing was held in Bucks County, in absentia, and the defendant was declared a fugitive. The BCSO sent a fax to Georgia authorities requesting that a detainer be placed on the defendant and that extradition proceedings be commenced. An official in Richmond County, Georgia responded stating that the defendant waived extradition. However, the official advised the BCSO that if the defendant was convicted and sent to jail for his Georgia charges, they would need to secure a separate detainer with the Georgia Department of Corrections and then restart the extradition process.

In February 2010, the defendant was found guilty of involuntary manslaughter and possession of a firearm during the commission of a crime in Georgia. He was sentenced to a term of ten to twenty years’ incarceration in a Georgia prison. After his conviction, the Georgia authorities did not reach out to the BCSO or any Commonwealth employee. However, no BCSO or Commonwealth agent contacted the Georgia authorities for almost two years after his conviction.

In September 2012, the BCSO sent an email to the Richmond County’s Sherriff’s office requesting an update on the defendant’s case. The BCSO received a response that same day stating that he was now housed in a prison in Valdosta, Georgia and that in order to have a detainer lodged against him they would need to reach out to the Georgia Department of Corrections. The BCSO subsequently responded to this email and said that they would like a detainer lodged against him. However, the BCSO did not actually contact the Georgia Department of Corrections. Based on the record, the BCSO did not take any further action on the defendant’s case for six years.

In June 2018, the BCSO faxed a detainer request to the Georgia Department of Corrections. The Georgia Department of Corrections was able to confirm receipt of their email and then lodged a detainer against the defendant. By this point, the defendant had been incarcerated in Georgia for nearly a decade and had been scheduled to be released on October 15, 2018. The BCSO took him into custody on October 25, 2018.

Back in Pennsylvania, the defendant filed an omnibus motion arguing that his case should be dismissed pursuant to Rule 600(a)(2)(A). Specifically, he argued that the Commonwealth had failed to exercise due diligence in trying to bring him to trial. Following a hearing, the trial court denied his motion. In April 2019, the defendant then elected to have a bench trial where he was found guilty of escape. He was then sentenced three and a half years to seven years’ incarceration. The defendant then filed a timely appeal.

What is Rule 600?

Rule 600(A) states that a defendant must be brought to trial within 365 days of the filing of the criminal complaint and if he is not then the case should be dismissed. The purpose of Rule 600 is to protect a defendant’s speedy trial rights, while also protecting society’s right to effective prosecution of criminal cases. If a defendant is not tried within 365 days of the filing of the complaint, Rule 600 requires that the court determine whether the Commonwealth exercised due diligence and whether the circumstances that caused the delay of a defendant’s trial were beyond the Commonwealth’s control.

For the purposes of computing time under Rule 600, the court will determine whether or not the Commonwealth was duly diligent in litigating its case against the defendant. In other words, when the Commonwealth causes the delay (i.e. discovery is outstanding or they have not been able to contact a necessary witness) that time ordinarily goes against the Commonwealth. However, if the defense causes the delay, then that time is not factored in for purposes of 600. If the Commonwealth violates Rule 600, then the Court should dismiss the case with prejudice. Rule 600 is generally enforced more strictly in Philadelphia than in the surrounding counties, but it does apply throughout the state.

The Superior Court’s Decision

The Superior Court reversed the defendant’s conviction because they found that the Commonwealth was not duly diligent in bringing the defendant to trial. The Commonwealth filed its criminal complaint against the defendant in October 2018. As such, the Commonwealth was required to bring the defendant to trial within 365 days of that filing. However, the defendant was not brought to trial until April 2019, which was more than ten years after the expiration of the defendant’s mechanical run date under Rule 600.

The Superior Court found that it did not matter that the defendant was incarcerated in another state. It does not appear that Georgia would have extradited the defendant while his homicide charges were pending, and thus this time would not have counted against the Commonwealth. However, the Court found that there was no evidence that Georgia would not have cooperated and sent the defendant to Pennsylvania after he was convicted. Consequently, the Superior Court found that the Commonwealth did not act with due diligence because they waited more than eight years after he was convicted to reinitiate extradition proceedings against the defendant. Thus, the Commonwealth does not necessarily have to take steps to move for extradition while charge s are pending in another state, but once a defendant has been sentenced, the Commonwealth must try to extradite the defendant. Therefore, the defendant’s conviction is vacated and he will be released from prison.

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Zak Goldstein 8/25/20 Zak Goldstein 8/25/20

PA Superior Court: Megan's Law Registrant May Challenge Retroactive Changes to Registration Laws Outside of PCRA Process

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

The Pennsylvania Superior Court has decided the case of Commonwealth v. Duncan. This decision did not make any substantive changes in the law. Rather, it dealt with some of the procedural difficulties that defendants have had in challenging their sex offender registration status following recent changes in the law stemming from Pennsylvania Supreme Court and Superior Court decisions. In this case, the court held that the defendant should have been appointed counsel to represent him when he was challenging the requirement that he register as a sex offender despite being a juvenile when he committed the crimes which triggered registration. This decision makes it clear that registrants may bring challenges to their registration status in the trial court in many cases even when the time for filing a post-conviction relief act petition has expired.

Commonwealth v. Duncan

The defendant entered into a negotiated guilty plea to the charges of robbery, kidnapping of a minor, unlawful restraint, recklessly endangering another person, and carrying firearms without a license. The defendant received a sentenced of 4-10 years’ imprisonment. Notably, the defendant was a juvenile when he committed his offenses, even though he was charged as an adult. The defendant did not file a direct appeal from his judgment of sentence.

More than a decade after his plea, the defendant filed a pro se petition for writ of error coram nobis. The defendant alleged that right before he was to be released from prison, the Pennsylvania Department of Corrections told him that he must register as a sex offender upon his release pursuant to the then-effective version of Megan’s Law. This would be due to the kidnapping of a minor conviction. The defendant argued that requiring him to register as a sex offender violated the Ex Post Facto principles of the Pennsylvania Supreme Court’s decision in Commonwealth v. Muniz. Further, the defendant argued that the Commonwealth was in breach of their agreement because he had never agreed to register as a sex offender. At the time that he pleaded guilty, that charge did not require sex offender registration.

The court initially treated his petition as a Post-Conviction Relief Act (“PCRA”) petition. At first, the PCRA court agreed with the defendant and ordered that he be removed from the sex offender registry. However, the PCRA court later vacated its decision to allow the Commonwealth an opportunity to respond to his petition. The Commonwealth responded that his request should be denied because it was an untimely filed PCRA petition. The PCRA imposes very strict deadlines and if a defendant misses a deadline they will often not be afforded any relief. Consequently, because the PCRA court thought the PCRA governed the defendant’s petition, it denied his request due to his petition being untimely. The defendant was subsequently appointed counsel, and he then filed a timely appeal. On appeal, the defendant only argued that he should have been appointed counsel to help him litigate his claim.

The Ex Post Facto Clause of The United States and Pennsylvania Constitutions

Both the United States and the Pennsylvania Constitutions prohibit Ex Post Facto laws. Those are laws that criminalize past behavior. The reason behind is that individuals have the right to adequate notice and should not be punished for actions that were legal when they did took them. In order to qualify as an Ex Post Facto law, the law must 1) apply retroactively and 2) negatively impact the offender.

In the late ‘90s and early 2000’s, states across the country began passing laws that required individuals convicted of sexual offenses to register as sex offenders. These early Megan’s Law statutes imposed onerous requirements on defendants that were often seemingly punitive in nature. These laws were frequently challenged as violations of the Ex Post Facto clause because they applied to defendants retroactively (i.e. defendants were required to register as sex offenders even though they committed their crimes before the passage of these statutes).

Pennsylvania and many other states would argue that these Megan’s Law requirements were not punitive and therefore the Ex Post Facto clause of their respective constitutions did not apply. And, unfortunately, some of these governments had some success. For example, the state of Alaska was successfully able to defend its Megan’s Law statute all the way to the United States Supreme Court. However, in Pennsylvania, the Pennsylvania Supreme Court ruled in Commonwealth v. Muniz that Pennsylvania’s Megan’s Law statute violated the Ex Post Facto clauses of both the Pennsylvania and United States Constitutions. Nonetheless, the Pennsylvania Legislature passed a new Megan’s Law (SORNA) statute in the aftermath of the Muniz decision which certainly guarantees that this fight is far from over.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court agreed with the defendant that he should have been appointed an attorney to represent him when he litigated his PCRA petition. The Court further stated that the PCRA court was not required to treat the defendant’s petition as a PCRA petition. Specifically, the Superior Court cited the Pennsylvania Supreme Court’s decision in Commonwealth v. Lacombe which held that because he was raising Ex Post Facto claims, the PCRA court was not required to treat his filing as a PCRA petition and therefore he was not subjected to the stringent filing deadlines of the PCRA. Further, the Superior Court stated that the defendant “might have a valid Ex Post Facto and due process claim” and therefore remanded his case for consideration. This is an important decision due to the deadline issues. The PCRA requires a defendant to file his or her post-conviction relief act petition within one year of his or her sentence becoming final. Obviously, when the legislature passes a new law ten years later imposing new sex offender requirements on someone who did not have to register at that time that they were convicted, that person should have some procedural mechanism for challenging the law. By imposing the one-year deadline for filing a PCRA petition on these petitioners, the courts were able to block them from ever challenging these unconstitutional laws. By recognizing that these filings are not really PCRAs, the appellate courts have removed some of the deadlines for filing them and allowed these important issues to be resolved on the merits.

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