Philadelphia Criminal Defense Blog

Zak Goldstein 4/2/21 Zak Goldstein 4/2/21

PA Supreme Court: Nanny Cams Do Not Violate the Pennsylvania Wiretap Act

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Mason, holding that “nanny cams” do not violate the Pennsylvania Wiretap Act (“Wiretap Act”). This decision is significant because so many parents utilize these cameras when they employ caretakers to watch their children. Therefore, these caretakers should be mindful of this and understand that they will not be able to rely on the stringent protections of the Wiretap Act to protect them if they are subsequently prosecuted for crimes arising out of secret recordings made while they are working.

Commonwealth v. Mason

The defendant was hired as a nanny for a parent who lived in Franklin County, PA. During the hiring process, the parent told the defendant that she could not use corporal punishment on her children. Approximately one month after the defendant was hired, the parent’s three-year-old son told him that the defendant was “thumbing” him in the face and hitting his twin two-year-old sisters. The parent had previously noticed that his son had marks on his face and that one of the twins had a “busted lip.” When asked about his daughter’s injured lip, the defendant initially offered no explanation. However, the defendant later suggested that she may have injured herself while attempting to climb out of her playpen. The parent also asked why his son accused the defendant of “thumbing” him and striking the twins, and the defendant stated she did not know why such allegations were being made.

In response to these allegations, the parent placed a secret camera in his children’s bedroom which was capable of capturing sound and video of its surroundings. Notably, the parent did not tell the defendant that he placed the camera in the bedrooms. At some point, the camera recorded the defendant yelling at one of the children before she forcefully placed the child in their crib. Audio portions of the recording suggested that the defendant may have struck the child several times. The parent then gave the recordings to the police.

The defendant was subsequently charged with aggravated assault, simple assault, and endangering the welfare of a child. The defendant filed a habeas corpus petition to dismiss the aggravated assault charge, which was granted. She then filed an omnibus pretrial motion to suppress the audio and video recordings captured by the hidden cameras. In support of her motion, the defendant invoked the Wiretap Act, arguing that the parent had illegally intercepted her electronic and oral communications. A hearing was held to determine whether to grant the defendant’s motion. At the hearing, the parent was the sole witness called who testified to the above facts. At the conclusion of the hearing, the trial court granted the defendant’s motion. The Commonwealth then filed a timely interlocutory appeal arguing that the trial court’s decision would substantially handicap its case.

The Superior Court’s Opinion

A divided Superior Court affirmed in part and reversed in part the trial court’s suppression order. The lead opinion held that the verbal utterances captured by the cameras were to be excluded because there had been no judicial authorization or applicable exception to the Wiretap Act to permit their use at trial. Further, the lead opinion held that the defendant had no reason to believe her statements would be recorded and thus had a “justified expectation that she would not be audio recorded.” The Superior Court did reverse the trial court and held that the video, sans audio, could be used by the Commonwealth in its trial. The Commonwealth then filed a petition for allowance of appeal to have the Pennsylvania Supreme Court hear the case. The Pennsylvania Supreme Court agreed to take the case, and on appeal it addressed two issues: whether a babysitter has a reasonable expectation of privacy in the bedroom of a child she is caring for and whether the sounds coming from a child constitute oral communications under the Wiretap Statute.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court reversed the lower courts’ decisions and held that the Commonwealth could use the recordings (both audio and visual) against the defendant at her trial. According to the Pennsylvania Supreme Court, in order to succeed in her claim that these recordings should be deemed inadmissible at her trial, the defendant would have had to establish that she possessed a justifiable expectation that her oral communications would not have been intercepted. Based on its review of the record, the Court determined that the defendant did not meet her burden. Specifically, the Court held that the use of these cameras is so widespread that they even have a name (nanny cams) and thus no reasonable nanny should assume that they are not being recorded while performing their duties. As such, the Commonwealth will be able to use these recordings in their trial against the defendant.

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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 2/8/21 Zak Goldstein 2/8/21

PA Superior Court Overturns PFA Contempt Conviction for Failure to Give Adequate Notice of Allegations in Complaint

The Pennsylvania Superior Court has decided the case of Reitz v. Flower, holding that a defendant may not be convicted of indirect criminal contempt based on conduct that was not specifically charged in the criminal complaint. The holding here should have been obvious - a criminal defense has the right to know what they’re accused of doing so that they can prepare a defense. But courts often allow variances from the allegations in a complaint and uphold convictions anyway. Fortunately, the Superior Court here recognized that the defendant was improperly convicted entirely based on conduct for which he was not actually charged. Therefore, it reversed the conviction.

Reitz v. Flower

The defendant’s ex-wife obtained a protection from abuse (“PFA”) against the defendant. The PFA order prohibited the defendant from contacting his ex-wife directly or indirectly. Additionally, the PFA order prohibited the defendant from possessing any firearms. These restrictions were put in place due to the defendant’s past conduct towards his ex-wife, specifically because of allegations of prior physical abuse and harassment.

After this order was entered, the ex-wife filed a private criminal complaint against the defendant alleging that he violated the PFA order by possessing firearms. She did not make any other allegations against the defendant. Specifically, she alleged that he posted a photo of himself armed at a rally in Harrisburg on Facebook. Consequently, a contempt hearing was scheduled to address this charge.

After this hearing was scheduled, the defendant posted on Facebook that he would not wear a mask when he appeared at his next court date because he believed it was “a form of tyranny.” It should be noted this incident occurred during the global COVID-19 pandemic. Further, the defendant wrote that he was willing to turn the court proceeding into a circus and that the contempt proceeding was “[p]etty nonsense from a vindictive woman with no legal basis.”

During the hearing, the defendant’s Facebook post alleging that his ex-wife’s claim was “petty nonsense” was introduced. Defense counsel objected to it and argued that it was irrelevant and did not relate to her sole allegation of the contempt claim which was his illegal possession of a firearm. The trial court allowed it to be introduced into evidence. At the conclusion of the contempt hearing, the trial court found that the defendant violated the PFA on two occasions. First, he violated it by not turning in his firearms and the second by making contact with his ex-wife through his Facebook post. In regards to the latter, the trial court found that the reason it found him in contempt was because “he called her a vindictive woman and called her PFA contempt petty nonsense with no legal basis.”

At sentencing, the trial court modified its adjudication to reflect a single PFA violation of harassing his ex-wife in the Facebook post. It was determined that the defendant had only been photographed brandishing a replica rifle and not an operable weapon. The trial court then sentenced the defendant to six months’ probation that was to run consecutive to any other sentences that the defendant was currently serving. Further, the PFA was extended by an additional six months. The defendant then filed a timely appeal. On appeal, the defendant argued that the trial court violated his due process rights by finding him in violation of an uncharged offense.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the defendant’s conviction. The Superior Court first cited the United States Constitution which guarantees the accused to the right to be informed of the nature and the cause of the accusations against him. The Superior Court also noted that the Pennsylvania Constitution has similar protections. Specifically, the court held that defendants must have must adequate notice to allow them to prepare any available defenses should he exercise his right to a trial. Further, in a criminal complaint, each charged offense must have a sufficient summary of the facts so the defendant is advised of the nature of the offenses charged against him.

In this case, the Superior Court found that the private criminal complaint only alleged a violation based on the defendant’s illegal possession of a firearm. There was no mention of any allegation that the defendant illegally contacted her. As such, the trial court committed reversible error in convicting the defendant because he did not have proper notice of the charges against him. Therefore, the Superior Court vacated the defendant’s conviction for contempt. However, it stressed that this decision did not bar future prosecution against him for any alleged future violations of the PFA order. This is an important case because it reigns the Commonwealth in in terms of prosecuting criminal defendants for conduct in variance with what they’re charged in the criminal complaint.

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Zak Goldstein 1/30/21 Zak Goldstein 1/30/21

PA Supreme Court Finds Trial Counsel Ineffective for Failing to Object to Improper Reasonable Doubt Instruction

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Montalvo, holding that defense counsel was ineffective for failing to object to improper jury instructions on the definition of reasonable doubt. This decision is significant because it shows how important jury instructions are in a trial. Judges are required to properly instruct jurors on the relevant legal principles, and therefore, if they misstate the law, it can have disastrous consequences for the defendant. Thankfully, the Pennsylvania Supreme Court recognized this in Montalvo. As a general rule, the giving of improper jury instructions is one of the issues which is most likely to successfully lead to a new trial on appeal or in post-conviction litigation.

Commonwealth v. Montalvo

The defendant’s brother and his wife moved to York County from Puerto Rico. The couple frequently fought, and eventually, the brother moved out of the couple’s apartment. A few weeks later, the wife was seen at a local bar with a friend. At some point during the evening, the wife and her friend left the bar and walked to the wife’s apartment. Later that evening, the wife’s neighbor was awakened by the sound of breaking glass. The neighbor heard the defendant’s brother yell “open the door” after which he heard additional noises coming from the apartment. The following day, the neighbor looked through the wife’s window and saw a man lying on the floor. After seeing this, he called the police.

When the police arrived at the scene, they observed the one pane of a four-pane window in the door to the apartment was broken. Upon entering the apartment, the officers discovered the friend’s body in the kitchen and the wife’s body in the bedroom. The friend had defensive wounds on his hands and he had lipstick inserted in his mouth. The wife had a broken nose, stab wounds to her eyes, and her head was nearly severed from her body. During their investigation, the police were able to identify traces of human blood that did not belong to either victim. After analysis, the police were able to determine that the blood belonged to the defendant’s brother. The defendant’s brother was subsequently arrested and charged with the murders of his wife and her friend. He was convicted of two counts of first-degree murder and was sentenced to death.

Two months before the defendant’s brother was arrested, the police sought and obtained an arrest warrant for the defendant as a possible accomplice or participant in the murders. The defendant remained a fugitive for several years until he was arrested in Hudson, New Jersey living under an assumed name. The defendant was then extradited to York County to face trial. At his trial, most of the evidence that was presented at his brother’s trial was also presented. The only evidence presented by the Commonwealth to connect the defendant to the murders was the testimony of a grocery store owner. She testified that the defendant’s brother had used their phone to call his wife. An argument ensued after which the brother hung up the phone. The grocery store owner would testify that after he hung up the phone, he told the defendant that he wanted to kill his wife. In response to this, the defendant said “leave it to him” and that he would kill his wife himself. She also testified that after the murders, the defendant and his brother came to their house. She said she heard the brothers tell her husband in great detail how they killed the wife and her friend.

After the prosecution and the defense rested, the judge charged the jury. During her reading of the jury instructions, the trial court made two significant misstatements. First, while explaining reasonable doubt, she stated “so if the Commonwealth has not sustained its burden to that level, the burden of proving the defendant guilty beyond a reasonable doubt, then your verdict must be guilty.” The defendant’s attorney did not object to this and would later testify during a PCRA hearing that “he did not recognize the mistake.” Then, a short time later, the judge stated “if you find that the defendant was not involved in this, you should find him guilty of all those charges.” This time, the defendant’s attorney corrected the trial court by saying “Not guilty, judge.” In response to this, the judge said “not guilty. Now that was a Freudian slip.”

After the trial, the defendant was convicted of first degree and second-degree murder. The jury came back with a recommendation of death and the trial court imposed the death sentence for him. The defendant then filed a timely appeal. His appeal was denied and then he filed a PCRA petition arguing that his attorney was ineffective in his representation of him. The defendant’s PCRA hearings lasted three days. At the conclusion of the hearing, the PCRA court granted the defendant a new trial based on trial counsel’s ineffectiveness for failing to object to the trial court’s error in instructing the jury on the issue of guilt. The Commonwealth then filed a timely appeal.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court affirmed the PCRA court’s decision. In its brief, the Commonwealth did not dispute that the jury instruction was incorrect. However, it argued that it was “one isolated misstatement that occurred during the course of otherwise error-free instructions to the jury.” The Commonwealth further argued that basically everyone is familiar with the requirement that a prosecutor prove their case beyond a reasonable doubt.

The Pennsylvania Supreme Court was not persuaded by the Commonwealth’s arguments. The Court stated that it is the trial court’s sole responsibility to instruct the jury on the law as it pertains to the case before them. Additionally, the Court took issue with the Commonwealth’s characterization of trial court’s performance delivering the jury instructions. The Court highlighted that shortly after this initial mistake, the trial court misstated the law again. To make matters worse, the trial court injected its opinion on the case by saying that it “was a Freudian slip” when she misstated the law. The Court found that the trial court had “conveyed to the jury her belief that [the defendant] was guilty.” This was unacceptable to the Court and held that the defendant had been prejudiced. Consequently, the defendant’s convictions are vacated and he will get a new trial.

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Zak Goldstein 1/25/21 Zak Goldstein 1/25/21

Third Circuit Court of Appeals Rejects Entrapment Defense in United States v. Davis

The Third Circuit Court of Appeals has decided the case of United States v. Davis, holding that a defendant failed to prove that he had been entrapped when he willingly engaged with an agent, posing as a child, to meet and engage in sexual activity. Further, the Third Circuit held that an agent can be tenacious in their conversations with a defendant without entrapping them. Although this defendant did not win on appeal, the case does explain the basics of the entrapment defense in federal court. It also highlights the fact that entrapment can be a very difficult defense to prove in cases involving sex crimes.

United States v. Davis

The defendant answered an ad in the “w4m” section of Craiglist.com. This section is for women who are supposedly looking for casual sex with men. The ad was titled “Wild child” which was run, unbeknownst to the defendant, by an agent with the Pennsylvania Attorney General’s Office. The ad stated that the poster was an eighteen-year-old woman and requested that interested men respond “if you are looking for fun.” The defendant responded to the post. The agent identified himself as “Marissa” and stated that she was actually fourteen years old, to which the defendant stated “that’s ok, I know how to be respectful, do you wanna meet today?”

The defendant and “Marissa” eventually began text messaging one another. During the eight days that they texted, the defendant told “Marissa” that he was gay and lied about his age. Additionally, he avoided engaging in lewd conversation and expressed a fear of getting caught. He must have sensed that “Marissa” might not have genuine intentions because he asked if she was “affiliated with any type of law enforcement.” However, despite this concern, the defendant still engaged in grooming behavior with “Marissa.” He specifically asked her about her virginity, asked when she as not being supervised, and repeatedly offered to buy her gifts, including an iPad.

Eventually, the defendant and “Marissa” agreed that she would skip school and meet him at a McDonalds near her house in Pennsylvania. Once they came up with a plan to meet, their conversation became sexual. “Marissa” explained that she was concerned about getting pregnant to which the defendant assured her that he would “bring protection.” On the day they were supposed to meet, the defendant traveled from New York to the McDonalds where they were supposed to meet. He was subsequently arrested by the agent posing as “Marissa.”

During questioning, the defendant admitted that he knew “Marissa” was fourteen and that he had brought condoms for his visit with her. The defendant further admitted that he became attracted to young girls after visiting a water park and that he specifically liked 14-year-old girls because he believed prostitutes were unclean. The defendant would later testify at trial that he never made those statements to the agent.

The defendant was subsequently arrested and charged in federal court with one count of use of an interstate facility to attempt to knowingly persuade, induce, entice, and coerce a minor to engage in sexual activity and one count of travel in interstate commerce with intent to engage in illicit sexual conduct with a minor. The defendant elected to proceed by jury trial. At trial, he argued that he was entrapped to commit the crime and that he did not knowingly entice a minor because he believed “Marissa” was an adult who was role-playing as a fourteen-year-old. The jury was not swayed and convicted the defendant of the aforementioned charges. The defendant was subsequently sentenced to 127 months imprisonment and five years of supervised released. He was also required to register as a sex offender. The defendant then filed a timely appeal. For purposes of this blog, only the issue of entrapment will be discussed.

What is Entrapment?

Entrapment is an affirmative defense to a crime. It occurs when a defendant, who was not predisposed to commit a crime, does so as a result of the government’s inducement. To be successful in raising an entrapment defense, a defendant must establish two things: that there was government inducement of the crime and a lack of predisposition on the part of the defendant to engage in the criminal conduct. If a defendant makes this prima facie showing of these two elements, the burden then shifts to the government to disprove the entire defense by disproving one of the elements beyond a reasonable doubt.

Usually, the government will try to show that the defendant had a predisposition to commit the crime. The government can prove predisposition by showing one of the following: an existing course of criminal conduct similar to the crime for which the defendant is charged, an already formed design on the part of the accused to commit the crime for which he is charged, or a willingness to commit the crime for which he is charged as evidenced by the accused’s ready response to the inducement.

The Third Circuit’s Opinion

The Third Circuit affirmed the defendant’s conviction and sentence The defendant argued that he had been entrapped to commit these crimes because he lacked a predisposition to commit them. Specifically, he argued that that because he attempted to avoid sexual conversation with “Marissa,” his lack of criminal history, and the agent’s tenacity in the sting operation, the government induced him to break the law. The Third Circuit saw things differently. In its opinion, the Third Circuit found that the defendant did in fact have a willingness to commit these crimes. Specifically, the Third Circuit found compelling the defendant’s statements that he was attracted to young girls despite his denial of them at trial. Further, the Third Circuit also found that the defendant immediately asked “Marissa” to meet after she told him she was fourteen was significant to show that that he intended to commit these crimes. The Third Circuit rejected all of his other arguments on appeal. His convictions will stand, and he will not get a new trial.

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Criminal Defense Lawyers Zak Goldstein and Demetra Mehta