Philadelphia Criminal Defense Blog

Zak Goldstein 1/6/22 Zak Goldstein 1/6/22

PA Supreme Court: Prosecutors Must Introduce Real Evidence of Dangerousness to Revoke Bail

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Talley, holding that prosecutors must introduce real evidence that a defendant is a danger to the community and no conditions of release can prevent that danger in order to revoke bail. This situation frequently comes up where a defendant has been held in custody on cash bail for 180 days. Once that happens, the defense may file a motion for nominal bail pursuant to Pennsylvania Rule of Criminal Procedure 600(B). Pursuant to 600(B), a defendant may not be held in custody for more than 180 days (with exceptions for periods of time where the defense caused the continuance) without a trial. If 180 days pass from the date of arrest, then the defendant should be released on nominal bail. In response, prosecutors frequently move to revoke bail, arguing either that the defendant is too big of a flight risk to release or that the defendant is so dangerous that he or she should not be released. Courts often grant these motions based solely on the prosecutor’s hearsay representations regarding the strength of their case and a defendant’s criminal history, and the Supreme Court has now ruled that such a procedure is not constitutional.

The Facts of Talley

The defendant was arrested and charged with aggravated assault, stalking, harassment, and related charges. Police alleged that he had sent threatening messages to his ex-girlfriend via social media and also shot a bullet into the wall of her house. This behavior went on for a while, and police eventually arrested Talley for these charges. The specifics of the charges are not particularly relevant to the issue in the appeal other than the fact that the charges involved violent crimes.

The defendant was initially released on bail. While he was in custody, the threatening messages had stopped. Once he was released, the complainant began to receive them again. The police arrested the defendant again, and his bail was increased. He was not able to afford the new bail, and he was held in custody.

After the Commonwealth held the defendant in custody for more than 180 days, he filed a motion for release on nominal bail pursuant to Pennsylvania Rule of Criminal Procedure 600(B). 600(B) permits a defendant to petition for nominal bail after they have been held for more than 180 days through no fault of their own. The individual should generally be released at that point, often on house arrest. In response, however, the Commonwealth usually files to revoke the defendant’s bail, arguing that “no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great.”

The trial court waited four months to hear the motion but eventually held a hearing on it. At the hearing, the Commonwealth simply argued that based on the facts of the case as described in the affidavit of probable cause, the defendant was a risk to the complainant and the community and that he should be held in custody. The Commonwealth also insisted that the defendant could not be released on house arrest without explaining any particular justification for that assertion. The court then denied the defendant’s motion.

The Supreme Court Appeal

The Supreme Court ultimately accepted the defendant’s appeal in order to clarify what type of evidence and how much evidence the Commonwealth must present at a hearing on a motion to revoke a defendant’s bail completely. While hearsay is generally allowed at bail hearings, the motion to revoke bail is different because all defendant’s other than those facing a life sentence for a first degree murder charge are entitled to bail. Therefore, the Commonwealth has to prove that the defendant is actually a risk to the community.

In the past, most judges have allowed the Commonwealth to simply make argument. In other words, the prosecutor will generally describe the allegations, claim that the evidence is very strong, and tell the court about any prior convictions that the defendant has. If the defendant has no record, most judges will grant the motion for nominal bail and release a defendant on house arrest. But where a defendant has a criminal record, many judges will revoke bail at the Commonwealth’s request without conducting any significant review of either the evidence of dangerousness or the strength of the evidence in the case.

The Supreme Court clearly rejected this procedure and held that the Commonwealth must show more than a mere prima facie showing that the defendant has committed the crimes charged. Thus, the fact that the defendant has been held for court following a preliminary hearing or that an arrest warrant was issued is not enough. At the same time, the Pennsylvania Constitution does not require the Commonwealth to introduce proof beyond a reasonable doubt. Instead, the Commonwealth must present a substantial quality of legally competent evidence, meaning evidence that is admissible under the Rules of Evidence, to show the trial court that the defendant should not be released. The Commonwealth may not simply describe the evidence, provide the trial court with hearsay, or rely upon a cold record or untested assertions alone. The Commonwealth must call actual witnesses and present real evidence to show that it is substantially more likely than not that the accused should not be released because the accused is too dangerous to be released.

The Court emphasized that this is a high evidentiary standard that applies only to a motion to revoke bail. It does not apply to a general motion to raise bail. Further, the Court should strongly consider release conditions that can ensure the safety of the community such as regular check ins with pre-trial services, house arrest, electronic monitoring, and things of that nature. The practice of simply asserting that the defendant committed a serious crime and so should be held without bail is no longer acceptable.

Ultimately, this opinion should result in far fewer defendants being held without bail simply because they asserted their speedy trial rights under Rule 600(B). The Court has added some real teeth to the rule by significantly increasing the burden that the Commonwealth must meet in order to hold someone without bail when they are not charged with murder. Most defendants should now not be held without bail even where they are charged with serious crimes if they do not have a history of committing crimes while released on bail or have never been placed on house arrest before. Thus, courts throughout the Commonwealth will now be required to mores strictly enforce the speedy trial guarantee of Rule 600(B). This is a great decision as many defendants are held without bail for years while awaiting trial while ostensibly presumed innocent. Now the presumption of innocence should have more meaning in Pennsylvania.

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Goldstein Mehta LLC Criminal Defense Lawyers

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 10/28/21 Zak Goldstein 10/28/21

PA Supreme Court: New Claims of Ineffective Assistance of PCRA Counsel May Be Raised on Appeal

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Bradley, holding that a petitioner who has had a Post-Conviction Relief Act Petition (“PCRA”) denied by the Court of Common Pleas and who has retained new counsel may raise new claims relating to PCRA counsel’s ineffectiveness while still on appeal from the denial of the PCRA Petition. This is a dramatic change in Pennsylvania PCRA practice because Pennsylvania previously provided almost no protections against the ineffective assistance of PCRA counsel. Instead, a criminal defendant who sought to challenge his or her sentence due to the ineffective assistance of PCRA counsel would have to wait until after the PCRA appeal was denied to file a habeas petition in federal courts. The federal procedural rules are extremely difficult to navigate, and federal courts are often hostile to these claims. This decision could provide some benefit to PCRA petitioners who may have received the ineffective assistance of counsel from their PCRA attorney. This is unfortunately a common occurrence.

What is a PCRA?

The most common use of the PCRA is for a criminal defendant who has lost his or her direct appeal to seek a new trial or sentencing based on the ineffective assistance of trial or appellate counsel. For example, if trial counsel failed to call critical defense witnesses, object to improper jury instructions, or litigate a meritorious motion to suppress, then the defendant can file a PCRA petition asking the trial judge to overturn the conviction because had the trial lawyer done their job properly, the defendant would have won the case or received a better outcome.

In order to win a PCRA Petition, a petitioner must show that a claim has arguable merit, prior counsel had no reasonably strategic basis for what they did or failed to do, and that the petitioner suffered prejudice from counsel’s failure. Prejudice essentially means that the mistake could have lead to a different outcome. Thus, a PCRA Petition in a rape case could allege that a defense attorney who represented a defendant who had no criminal record at the time of trial should have called character witnesses to testify about the defendant’s excellent reputation in the community for being a peaceful, law-abiding person. Character evidence is really important, and defense attorneys frequently do not understand their obligation to present this evidence on behalf of their clients. In such a case, the defendant could receive a new trial due to the attorney’s failure.

Prior to this decision, however, if the defendant filed a PCRA and did not mention character witnesses but should have, then the defendant would not be able to raise that issue on appeal from the denial of some other claim even if the defendant changed lawyers for the appeal and it was obvious that the defendant had those witnesses available. Instead, the defendant had to wait until the PCRA appeals were denied and potentially file a habeas petition in federal court.

The Change in PCRA Procedure

Under Bradley, however, the defendant may now raise the claims directly in the Pennsylvania Superior Court even if they were not raised in the trial court. If the claim can be resolved without any need to develop a record at an evidentiary hearing, the Superior Court can rule on the claim. If the claim suggests that the trial court needs to make an evidentiary record, then the Superior Court may remand the case to the Court of Common Pleas for that Court to receive evidence and make an initial ruling. The appeal would then begin again if either side is unhappy with the outcome. This means that some claims may now be addressed on appeal in the Superior Court, preventing the need for these claims to be raised for the first time years later in the federal courts which often do not particularly want to hear them. That provides some benefit to defendants.

Will this affect federal habeas corpus litigation?

There are some concerns about whether this will limit a petitioner’s ability to seek relief in federal court. Currently, defendants may file a habeas petition to challenge their state conviction in federal court and allege the ineffective assistance of PCRA counsel. Thus, if the PCRA lawyer from the prior example failed to raise the character issue and the federal lawyer realized that the PCRA lawyer should have done so, the federal lawyer could allege in federal court that PCRA counsel was ineffective in failing to bring a PCRA against trial counsel for failing to call character witnesses.

Under a relatively recent case called Martinez v. Ryan, the federal courts would then generally review a claim of this nature on the merits. The federal courts, however, would not review claims of ineffective assistance of appellate PCRA counsel. That means that all of this is very complicated - will the federal courts continue to allow merits review of ineffective assistance of PCRA counsel claims given that those claims may now be raised in the Superior Court? Could the Martinez rule be extended to appellate counsel? Or will the federal courts find that now that Pennsylvania has provided a mechanism for challenging PCRA counsel’s performance on appeal, it is no longer necessary for them to get involved? The answers to these questions are not clear.

What should I do if my direct appeal has been denied and I want to keep fighting?

Ultimately, criminal appeals, PCRAs, and federal habeas petitions are very complicated. They are all particularly specialized areas of law. In general, a criminal defendant has about a year (sometimes slightly more) from the denial of the appeals to begin the PCRA or federal habeas process. These deadlines are for real, and so it is extremely important that if you are serving a long sentence, have lost your appeal, and want to continue to fight your case, that you contact an attorney who regularly litigates PCRA and habeas petitions and appeals. Our Philadelphia criminal defense lawyers are well versed in this area of the law and are happy to discuss whether you may have a viable claim on appeal or that you received the ineffective assistance of counsel.

Read the case

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Zak Goldstein 10/21/21 Zak Goldstein 10/21/21

PA Superior Court: Police Must Obtain “Meaningful Consent” Before Searching a Cell Phone Without a Warrant

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Gallagher, holding that the trial court properly suppressed evidence collected from a defendant’s phone because the Commonwealth had not established that the defendant provided “meaningful consent to the invasive search it performed.” In this case, the defendant had actually consented to a search, but the Superior Court ultimately found that the extraction of the full contents of the phone exceeded the scope of the defendant’s consent. Therefore, the evidence should be suppressed.

Commonwealth v. Gallagher

An officer with the Adams Township Police Department responded to a 911 dispatch from a 16-year-old female caller reporting that she had been the victim of an attempted kidnapping and had escaped and was in hiding. She testified that she also had suffered a head injury. The officer drove to the complainant’s stated location and found her. According to the officer, she was “hysterical, panicky, and scared.” The complainant told the officer that she had been picked up in McKeesport by the defendant and his friend. They stopped at a gas station and at a cemetery where they drank alcohol. Afterwards, they went to meet a friend. She did not remember anything else. She claimed that she woke up on the side of a road with someone on top of her and their hand down the front of her pants. She also claimed that her pants and underwear were pulled down. She then ran away and hid in the woods.

The complainant said the defendant was the one on top of her. She was eventually transported to a local hospital to conduct a sexual assault examination. An unknown amount of time later, the defendant was arrested under suspicion for driving under the influence. He was given his Miranda rights and interviewed for about an hour and a half. During the interrogation, a detective asked the defendant if he could look at his cell phone. The defendant did not object and showed the detective a picture of the two girls he was with the previous weekend. The defendant also signed a consent to the search of stored electronic media. The relevant part of this statement said “I [defendant] having been advised of my rights by [the police] consent to having my computer hardware and all equipment which can collect, analyze, create, display, convert, store, conceal, or transmit electronic, magnetic, optical, or similar computer impulses or data.” The police then seized evidence from the defendant’s phone.

Police eventually arrested the defendant and charged him with attempted rape and other offenses. The defendant filed a pretrial motion seeking suppression of evidence from the “phone dump” conducted by the police during the interview. At the hearing, the trial court granted the defendant’s pretrial suppression motion, suppressing all the evidence that was seized from the defendant’s cellphone. The Commonwealth filed an appeal and argued that this suppression order substantially handicapped its prosecution.

The Superior Court’s Panel Decision

On appeal, the Commonwealth argued that “[c]ommon sense and a view of the surrounding situation would indicate to any reasonable, semi-intelligent person that if a request is being made of him, the converse option is also a possible right available to him.” The defendant argued that the consent form that he signed “did not advise him what his rights where, and [the detective] never told him that he was free to leave and free to withhold consent.” A three-member panel of the Superior Court agreed with the defendant and affirmed the trial court’s decision. The Commonwealth then filed an application for re-argument with a full panel of the Superior Court.

The Pennsylvania Superior Court’s En Banc Decision

The Pennsylvania Superior Court affirmed the trial court’s decision. The Superior Court agreed with the trial court that “the Commonwealth did not establish that the defendant consented to the cell phone dump” and that the form used by detectives “fails to explain [the defendant’s] rights with regard to stored data.” Additionally, the form did not explain what the defendant was consenting to. Further, the detective asking the defendant “if he minded if we looked at his phone” did not make it clear that the police intended to do a complete data dump of his phone. Therefore, the defendant must still stand trial for the aforementioned charges, but the Commonwealth will not be allowed to use the evidence they obtained from his phone at trial.

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

PA Superior Court: Consecutive Probation May Not Be Revoked While Defendant Still on Parole

The Pennsylvania Superior Court has decided the case of Commonwealth v. Simmons, holding that a trial court may not anticipatorily revoke a defendant’s probation sentence. This decision is a huge win for defendants. As a practical matter, if a defendant receives a jail sentence, they often receive a probation sentence that runs consecutive to their jail sentence. When they are released from prison, they are technically on parole, but have not yet begun serving their probation sentence. Simmons holds that if a defendant violates his or her parole, they cannot also be punished for violating their probation at the same time because they have not yet begun serving the probation sentence. Consequently, the worst-case scenario for a defendant is to receive the balance of their back time for their violation. This is significant because as a practical matter this means a defendant can usually only receive a county sentence for their violation, instead of a state sentence.

Commonwealth v. Simmons

In 2017, the defendant pleaded guilty to firearms not to be carried without a license and carrying firearms on the public streets of Philadelphia. The defendant was subsequently sentenced to a term of six to 23 months in jail, followed by three years’ probation. At some point, the trial court amended his sentence to have the probation sentence run concurrently to this jail sentence. It is unclear when this occurred, but it occurred more than 30 days after his sentencing hearing.

A few months after his sentencing, the defendant was arrested again and charged with firearms not to be carried without a license and possession of a controlled substance. The arrest occurred while the defendant was on parole, but before the term of the probation of his case had begun. On his new case, the defendant pleaded guilty to firearms not to be accrued without a license and possession of a controlled substance. The defendant was sentenced to six to 23 months’ incarceration, followed by three years’ probation. As a result of these new convictions, the judge on his original case anticipatorily revoked his probation and sentenced him to a term of two and one-half to five years in prison.

The Defendant’s Appeal

The defendant filed a timely appeal. The defendant argued that the trial court erred when it found that he had violated a condition of his probation because it had not yet begun. In other words, the defendant argued that he could not have violated his probation when his probation had not officially started. Additionally, the defendant argued that the trial court illegally modified his sentence, as the trial court did not have jurisdiction to modify his sentence more than 30 days after its imposition.

Initially, the defendant was unsuccessful and the Pennsylvania Superior Court denied his appeal. Undeterred, the defendant filed for an application for re-argument en banc and the Pennsylvania Superior Court agreed to rehear his appeal.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the trial court’s decision. In making its decision, the Superior Court reviewed the relevant sentencing statutes governing the imposition and revocation of an order of probation. It also reviewed prior appellate decisions concerning these issues. In its analysis, the Superior Court determined that a trial court is permitted to enter an order of probation and that it can impose this order consecutively or concurrently. Additionally, a trial court is permitted to terminate a defendant’s supervision at any time, but it can only revoke an order of probation when there is proof that the defendant violated the specified conditions of his probation. Finally, the Superior Court also found that prior precedent permitted trial courts to anticipatorily revoke a defendant’s probationary sentence.

As a preliminary matter, the Superior Court found that the trial court improperly changed the probation tail on the defendant’s sentence to run concurrently to his incarceration sentence from consecutively. Next, after reviewing the statutes and the relevant case, the Superior Court held that the case law that allowed anticipatory revocations of probation was “incorrect” and that they “contravene[d] the plain language of the relevant statutes.” The Superior Court stated that “under the Sentencing Code, a sentence of total confinement and a consecutive order of probation may not be aggregated and viewed as one.” Therefore, a defendant cannot be found to violate the terms of his probation before his probation begins.

So what does this all mean? The easiest way to explain it is to use the defendant’s case. Remember, on his first case, the defendant received a sentence of six to 23 months’ incarceration, followed by three years’ reporting probation. When the defendant picked up his new case, he was on parole and had not begun his probation sentence. Consequently, because of the Superior Court’s decision, the worst punishment he can now receive is the balance of his back time (i.e. the 23 months minus how much time he has served in jail). In the instant case, because the defendant was illegally sentenced (and because he received a sentence that exceeded his original sentence), he will get a new sentencing hearing. Had he been found in violation once the probation started, he would have been facing the maximum on the charge for which he was on probation. For an F3, that would be up to seven years in state prison.

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Criminal Defense Lawyer Demetra Mehta and Zak Goldstein — Criminal Defense Lawyers Demetra Mehta and Zak Goldstein