Philadelphia Criminal Defense Blog

Zak Goldstein 5/24/22 Zak Goldstein 5/24/22

PA Superior Court: Sentencing Court Must Determine at Time of Sentencing if Defendant Re-Entry Eligible

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Risoldi, holding that a sentencing court must determine at the time of sentencing whether a given defendant is “re-entry eligible.” The failure of the sentencing court to state on the record whether or not the defendant is re-entry eligible results in an illegal sentence which can be challenged on appeal.

This decision will benefit many defendants. Previously, a court’s failure to state that a defendant is re-entry eligible could be used by the Commonwealth to argue that the defendant was not in fact re-entry eligible and therefore that the defendant should not be eligible for early parole. Now, the sentencing judge is required to determine at the time of sentencing if the defendant is re-entry eligible, and a failure to do so will not automatically bar early parole.

The Facts of Risoldi

In Risoldi, the defendant was convicted of various offenses related to an insurance fraud scheme. The court sentenced her to 11.5 – 23 month’s incarceration along with $10 million in restitution. Risoldi appealed and challenged the restitution order. The Superior Court vacated the initial judgment of sentence and remanded the case for a new sentencing hearing. The trial court resentenced the defendant on the restitution portion of her sentence only and left the incarceration portion of the sentence intact. The court never stated whether the defendant was re-entry eligible. Risoldi appealed, arguing that her sentence was illegal.

What does re-entry eligible mean?

Under 42 Pa.C.S. § 9756(b)(3), “the court shall, at the time of sentencing, state whether or not the defendant is eligible to participate in a reentry plan at any time prior to the expiration of the minimum sentence or at the expiration of a specified portion of the minimum sentence.”

In practice, this is extremely important because a defendant who is re-entry eligible may be paroled early by the trial court even if the prosecution objects. If the defendant is not re-entry eligible, then the trial court may not be able to parole the defendant prior to the expiration of the minimum sentence. Thus, if a defendant receives a sentence of 11.5 – 23 month’s incarceration and is made re-entry eligible, the trial court may parole the defendant before 11.5 months. If the defendant is not re-entry eligible, then the Commonwealth could object to early parole before 11.5 months on that basis, and the trial court may not be able to grant parole. In Philadelphia, this rule is often not observed in practice, but an improper grant of early parole could be reversed on appeal.

The Superior Court’s Decision

In this case, the only issue was whether the sentence was illegal because the trial court failed to state whether the defendant was re-entry eligible at the time of sentencing as required by the statute. The defendant also argued that silence should be construed in her favor – meaning that where a court does not state anything on the record, the defendant should be presumed to be re-entry eligible. The Superior Court partially agreed with the defendant. It found that the statute contains a mandatory command for the trial court to determine eligibility at the time of sentencing. Therefore, the Superior Court remanded for the trial court to make that decision. If the trial court finds that the defendant is re-entry eligible, then she would be potentially eligible for early parole. The Court did not decide whether silence should make a defendant presumptively re-entry eligible, but fortunately, it does not make a defendant presumptively ineligible.

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Criminal Defense Lawyers Zak T. Goldstein, Esquire and Demetra Mehta, Esquire

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Read the Court’s Opinion

Zak Goldstein 5/19/22 Zak Goldstein 5/19/22

PA Superior Court: Internet Search for Criminal Defense Lawyer May Not Be Used Against You at Trial

The Pennsylvania Superior Court has decided the case of Commonwealth v. Lang, holding that the trial court properly granted the defendant a new trial where the previous judge, who had been removed from the bench, allowed the Commonwealth to admit evidence that the defendant searched for a criminal defense attorney online before he was charged with any crimes. The result here seems obvious based on the constitutional right to a lawyer in both the Pennsylvania and United States Constitutions, but somehow the original judge had allowed this internet search into evidence.

Commonwealth v. Lang

The defendant, a priest, allegedly sexually abused the complainant when he was a minor at a church in Munhall, Pennsylvania. Specifically, the complainant alleged that the defendant took a naked picture of him and threatened to show the complainant’s friends this picture. The defendant also forced the complainant to masturbate him. The complainant did not report the abuse until 17 years after the alleged abuse occurred. The defendant was subsequently arrested and charged with attempted aggravated indecent assault, three counts of indecent assault, indecent exposure, corruption of minors, sexual abuse of children, and unlawful contact with a minor.

The defendant elected to proceed by way of a bench trial. At the trial, the Commonwealth called the complainant to the stand, and he testified to the above allegations. Additionally, the Commonwealth also admitted into evidence a Pennsylvania Attorney General report that disclosed the results of an investigation into clergy abuse in the Commonwealth of Pennsylvania. This report named several priests who were accused of misconduct, but the defendant was not one of them. However, the Commonwealth also introduced evidence of the defendant’s internet searches where he was searching for “top Pittsburgh criminal attorneys” one day after the release of this report. The defendant also testified at his trial. He specifically denied ever sexually abusing the complainant and claimed he did not even know him. The trial court was not persuaded by the defendant’s testimony and found him guilty of one count of unlawful contact with a minor, indecent exposure, corruption of minors, and three counts of indecent assault.

After his trial, but before his sentencing, the defendant’s case was assigned to a new judge. The defendant was sentenced to a term of 9 months’ to 2 years’ incarceration, followed by 5 years’ probation. The defendant filed a timely post-sentence motion arguing that he was entitled to a new trial based on the erroneous admission of his internet searches under the theory of consciousness of guilt. The post-trial court found that the defendant’s constitutional right to due process was violated by the introduction of the internet search evidence “being presented and being material to the outcome of the case” and that the prejudicial impact of that evidence “outweighed any probative value.” The post-trial then granted the defendant a new trial. The Commonwealth then filed a timely appeal.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the post-trial court’s order granting the defendant a new trial. The issue before the Superior Court was whether a prosecutor could use a defendant’s search of an attorney in its criminal case against said defendant. Prior to this decision, Pennsylvania Appellate courts had never addressed this issue, and this was an issue of first impression. In making its decision, the Superior Court reviewed prior decisions that were tangentially related to this issue in Pennsylvania and in other jurisdictions. Specifically, the Superior Court analyzed cases where the prosecutor made comments about a defendant’s acquisition of counsel prior to being charged with a crime. In its analysis, the Superior Court found that that appellate courts would overturn convictions when prosecutors would make comments about a defendant’s acquisition of counsel prior to being arrested.

The Superior Court found these decisions persuasive and held that when a prosecutor comments on a defendant’s search for an attorney before charges are filed, the commentary implicates the Sixth Amendment right to counsel. As such, the Superior Court held that the post-trial court properly determined the admission of the defendant’s internet searches for criminal defense attorneys, before he was charged or implicated in any offenses, violated his constitutional right to due process and a fair trial. Further, the introduction of this evidence was not harmless and was prejudicial to the defendant. As such, the defendant will get a new trial and the Commonwealth will not be able to use his internet searches for an attorney in its case against him.

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Zak Goldstein 4/30/22 Zak Goldstein 4/30/22

PA Superior Court: Defendants Should Generally Be Allowed to Withdraw Guilty Pleas Before Sentencing

The Pennsylvania Superior Court has decided the case of Commonwealth v. Garcia, holding that sufficient evidence was presented to allow the defendant to withdraw his guilty plea. This decision is significant in multiple ways. First, the Court re-committed to the general rule that a defendant should usually be allowed to withdraw a pre-sentence guilty plea. Second, it also illustrates the importance of creating a thorough record at these types of hearings. In its opinion, the Superior Court highlighted the lack of details in the trial record, but the Court found that the defendant had presented enough evidence to have his guilty plea withdrawn. At the same time, it found the Commonwealth had done a poor job of showing why it would be substantially prejudiced if the defendant’s guilty plea was withdrawn. Because the prosecution did not make an adequate record, there was not enough evidentiary support to deny the defendant’s appeal.

Commonwealth v. Garcia

Easton police were called for a report of a sexual assault in progress. Upon arrival, they met with the complainant, who stated that her ex-boyfriend, the defendant, had climbed the exterior of her apartment building onto her deck and entered the residence through a sliding glass patio door without her consent. Once inside, he proceeded to force her to engage in sexual intercourse without her consent. She also had an active protection from abuse order against the defendant.

The police located the defendant, who was hiding in the bushes outside of her apartment building. The complainant was then taken to the hospital where she underwent a sexual assault examination kit that was sent to the Pennsylvania State Police Crime Lab to be analyzed. The defendant’s DNA came back as being seminal material found on the complainant’s vaginal swab. They also found the defendant’s DNA under the complainant’s fingernails because she had told the police she tried to defend herself while the assault was going on.

Before a trial date was even set, the Commonwealth and the defendant negotiated a guilty plea where the defendant would serve four to eight years’ incarceration followed by two years of reporting probation for the crime of sexual assault. The defendant then entered into the plea, but his sentencing was deferred to determine whether he qualified as a Sexually Violent Predator (“SVP”). Prior to his sentencing hearing, the defendant filed a motion to withdraw his plea in which he asserted his innocence. The Commonwealth opposed the motion, arguing that the defendant offered only a bare and implausible assertion of innocence given his incriminating statements shortly after the assault. The Commonwealth also argued prejudice, citing the difficulty the victim experienced in testifying at the preliminary hearing, her relief at learning of the defendant’s guilty plea, her anxiety at learning that the defendant wanted to withdraw his guilty plea, and the difficulty of finding another sexual assault expert because their expert had conducted the defendant’s SVP evaluation and therefore could no longer testify at trial. The Commonwealth claimed that were no other “local” experts.

The court held a hearing to determine whether or not the defendant should be allowed to withdraw his guilty plea. At the hearing, the defense moved the preliminary hearing transcript into evidence. The defendant argued that the transcript suggested that he had a viable consent defense. Specifically, he argued that transcript made clear that the he had a previous relationship with the complainant and that she had allowed him inside her residence a week before the alleged assault. The defendant did not testify at this hearing. At the conclusion of arguments, the trial court denied his motion to withdraw his guilty plea. The defendant then filed a second pre-sentence motion to withdraw his plea. This second pre-sentence motion was denied without a hearing. The defendant was subsequently sentenced, and he then filed a timely appeal.

Can a Defendant Withdraw a Guilty Plea Before He is Sentenced?

Yes, a defendant is permitted to withdraw a guilty plea before he is sentenced. However, there is no absolute right to withdraw a guilty plea. Trial courts have discretion in determining whether a defendant can withdraw his guilty plea, but such discretion is to be administered liberally in favor of the accused. Additionally, any demonstration by a defendant of a fair-and-just reason will suffice to support a grant, unless withdrawal would work substantial prejudice to the Commonwealth. A fair and just reason exists where the defendant makes a claim of innocence that is at least plausible. However, trial courts are also supposed to consider the timing and the nature of the innocence claim, along with the relationship of that claim to the strength of the government’s evidence. Finally, trial courts should also consider any ulterior or illicit motive by the defendant for withdrawing his guilty plea.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court vacated the defendant’s sentence and remanded his case back to the trial court so that he could have a trial. The Superior Court reviewed the record in this case, which it described as “poorly developed.” Nonetheless, the Superior Court found that the defendant made a prompt motion to withdraw his guilty plea and that the preliminary hearing notes did in fact establish that the complainant allowed the defendant inside her home a week before the alleged assault and that he had a prior relationship with her. According to the Superior Court, these facts established “more than the bare ‘makeweight’ assertion of innocence.”

Additionally, there was no strong evidence presented at the sentencing hearing to undermine the plausibility of the defendant’s consent defense. Further, this guilty plea was not entered on the eve of trial as no trial date had been set. Additionally, the Superior Court was unpersuaded by the Commonwealth’s argument that it would be substantially prejudiced by the withdrawal of the defendant’s guilty plea. In part, because the Commonwealth did not develop the record sufficiently enough to show how it would be prejudiced. As such, the Superior Court found that the defendant proffered a timely and plausible basis for withdrawing his guilty plea and therefore he will be able to go to trial on these charges.

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Zak Goldstein 4/15/22 Zak Goldstein 4/15/22

PA Superior Court: Police May Not Enter House Based on Consent From Person Who Clearly Does Not Live in House

The Pennsylvania Superior Court has decided the case of Commonwealth v. Lehnerd, holding that actual or apparent authority must be established before an officer may enter a residence. Evidence obtained from a warrantless search and without permission to enter from a person with actual or apparent authority is illegally obtained and must be suppressed. Where police know that the person giving the consent to enter the house does not actually have authority to grant permission, they may not enter the house without a warrant.

Commonwealth v. Lehnerd

Two Pennsylvania State Police troopers found the defendant’s pickup truck overturned on a highway after responding to a dispatch call about a one-vehicle accident. The driver was not present. One of the troopers searched for registration documents in the truck and found empty beer cans. A neighbor informed the troopers that the driver had asked to borrow their phone to call for a ride and the driver smelled of alcohol. The troopers ran the license plates on the vehicle and determined that the defendant was the owner and found their address. The defendant’s parents then arrived at the scene and informed the troopers that the defendant owned the car, and they had driven the defendant home.

After leaving the scene, the troopers drove to the defendant’s home and knocked on the door. No one came to the door. While the troopers were waiting, the defendant’s parents arrived, and the defendant’s mother told the troopers that she believed the defendant was home. The troopers asked if the defendant’s mother could let them in, and she did so. The troopers entered the defendant’s house and escorted him out to perform field sobriety tests. The defendant was arrested for intoxication based on the tests, and he submitted to a blood alcohol breath test at the local State Police barracks, where it was shown that his blood alcohol level was .163%.

The defendant was charged with DUI General Impairment Incapable of Driving Safely, DUI Highest Rate of Alcohol, Abandoning Vehicle on a Highway, and Failure to Activate Hazard Lamps, in addition to three other Vehicle Code offenses. The defendant filed a motion to suppress the evidence obtained from his house due to the troopers’ warrantless entry into his house and the subsequent illegal seizure.

The trial court held an evidentiary hearing and denied the motion to suppress on the grounds that the defendant’s mother had apparent authority to give consent for the troopers to enter the defendant’s house. The defendant was convicted of DUI General Impairment Incapable of Driving Safely, DUI Highest Rate of Alcohol, Abandoning Vehicle on a Highway, and Failure to Activate Hazard Lamps. The defendant filed a post sentence motion seeking a new trial, which was denied. The defendant filed an appeal, continuing to argue that the evidence from his house was illegally obtained.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court vacated the defendant’s DUI convictions and remanded for a new trial, granting the motion to suppress evidence. The defendant argued that his mother had neither actual nor apparent authority to permit the troopers to enter his home, and the officers violated the Fourth Amendment, which protects against unreasonable searches and seizures.

Although a warrant is typically needed for an officer to enter a home, voluntary consent is an exception to this requirement. An occupant with authority over the premises may consent to an officer’s entry and search. The officer must demonstrate reason to believe that an individual has apparent authority to grant permission for entry.

The Superior Court reviewed relevant cases to make its decision. If an individual is not inside the house to let an officer in and they do not tell the officer that they are a current occupant, the officer cannot legally search the house despite the individual informing the officer they can enter. The fact that the person who gave consent in this case was the defendant’s mother did not constitute apparent authority because the defendant was an adult who clearly lived in a separate residence from his mother. The defendant’s mother was not already inside the house and showed no evidence of occupying the house, such as having a key, when she informed the troopers that they could enter the defendant’s house. In fact, one of the troopers testified that they were aware the defendant’s mother did not live there and was not staying there. Due to the defendant’s mother’s lack of apparent or actual authority to grant permission of entry, the Superior Court remanded for a new trial.