Philadelphia Criminal Defense Blog

Zak Goldstein 10/3/22 Zak Goldstein 10/3/22

PA Superior Court: Defendant May Raise Ineffective Assistance of Counsel Claims on Direct Appeal Where Claims Are Obvious From Record

Zak Goldstein - Criminal Defense Lawyer — Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. McMahon, holding that inadmissible opinion testimony from police about crimes the defendant may have committed but for which he was not charged require a new trial and that the defendant should have been able to raise the claim that his lawyer should have objected to this testimony on direct appeal because the ineffective assistance of counsel was obvious from the record.

Commonwealth v. Bieber

A Pennsylvania jury initially found the defendant guilty of one count of carrying firearms without a license and four counts of harassment. The jury found the defendant not guilty of 16 other counts. The defendant had originally been charged with aggravated assault and other more serious offenses. The court sentenced the defendant to a short county jail sentence, and the defendant appealed. The defendant won his first appeal after successfully arguing that the trial court had conducted a defective waiver-of-counsel colloquy. The appellate courts remanded the case for a new trial.

At the second trial, the Commonwealth proceeded only on the VUFA § 6106 charge because the defendant had been acquitted of the other offenses. Thus, even though he won his first appeal, double jeopardy had attached to the offenses of which he was acquitted. It did not attach, however, to the offense of which he was originally convicted.

VUFA § 6106 makes it illegal to carry a concealed firearm or a firearm in a car without a license to carry. There are, however, numerous exceptions. The exception at issue in this case was the Sportsman’s Permit Exception, which allows for individuals who possess a hunting license to carry a firearm in a vehicle when they are genuinely on their way to or from hunting.

The Facts at Trial

The Commonwealth established that the defendant was driving a car with his then-girlfriend when police conducted a vehicle stop. Police observed a handgun in plain view on the driver’s side of the car, in addition to a holster, a magazine containing eight rounds of ammunition, and one loose round. The handgun was unloaded. The defendant’s girlfriend told police that the gun was not loaded, but at trial, she testified that she had lied. She then testified that during the traffic stop, she heard clicks and the sound of something hitting the floor, and she further explained that the defendant had told her not to tell police that the gun was loaded.

Sergeant Craig Wharton testified that the defendant had previously possessed a license to carry a concealed firearm, but the license had been revoked in 2014. He also testified that at the time of the stop, the defendant possessed a Pennsylvania’s Sportsman’s Firearm Permit, but he did not believe Section 6106(b)(9) applied because the defendant had not been engaged in any hunting or other relevant activities at the time of the traffic stop.

Sheriff Frank Levindoski also testified, explaining that individuals without a carry-concealed permit cannot legally transport a loaded firearm in their car. He then testified to his interpretation of the proper way to transport a loaded firearm. His opinion that an individual may not carry a loaded firearm in a car without a license to carry was based on his interpretation of a different statute, § 6106.1, which the defendant had not been charged with violating. Based on the Commonwealth’s allegations, the defendant could have been charged with violating this statute, but he had not been. The defendant objected to this testimony.

The defendant then testified in response. He provided evidence of his fishing license, hunting license, and sportsman’s firearm license. He admitted he owned the firearm recovered by the police and testified that he had planned to go fishing after dropping his girlfriend off at her home. He also testified that he had had fishing poles and a tackle box in his vehicle, but the police had not searched the trunk, so they did not see those items.

During closing arguments, the Commonwealth asked the jury to rely on Sheriff Levindoski’s testimony that the defendant could not have a loaded firearm in his vehicle without a carry-concealed license unless he was an officer of the law. The jury found the defendant guilty of violating Section 6106. The defendant filed a post-sentence motion seeking unitary review on direct appeal of both his appellate claims and his ineffective assistance of counsel claims (IAC). The trial court held a hearing on the post-sentence motion, but it refused to address the IAC claim that his lawyer should have objected to the officer’s opinion testimony. It denied the motions.

The defendant again filed a timely notice of appeal.

The Pennsylvania Superior Court’s Decision

On appeal, the defendant argued that the Commonwealth elicited inadmissible opinion testimony from Sergeant Wharton and Sheriff Levindoski. He also argued that that his trial counsel was ineffective in failing to object to such testimony. The defendant also argued the trial court erred in declining to grant a new trial due to the error in admitting the improper opinion testimony. The defendant asserted the trial court erred by not permitting the defendant to raise his ineffective assistance of counsel claims in the post-sentence motion so that they would be preserved for the direct appeal.

The Superior Court began its review by addressing Section 6106 and exception Section 6106(b)(9), also known as the Sportsman’s Permit Exception. Notably, the Sportsman’s Permit Exception applies to loaded and unloaded firearms. However, a separate statute, Section 6106.1, does prohibit an individual from carrying a loaded firearm in a vehicle.

The Superior Court further addressed the defendant’s claim that the trial court erred in denying his request to litigate his IAC claims on direct appeal. The Superior Court reviewed relevant case law, including the Holmes exceptions. Typically, IAC claims may only be raised in PCRA proceedings, and PCRA proceedings take place after the direct appeal. The direct appeal generally addresses errors of law made by the trial judge where the trial judge was asked to make a ruling by the lawyers, whereas PCRA proceedings most often involve claims of ineffective assistance of counsel. Thus, a direct appeal claim would be that the judge should have granted a motion, while the PCRA claim would be that the lawyer was ineffective in failing to bring a legitimate motion.

There are exceptions to this rule, however, pursuant to Commonwealth v. Holmes. For example, a defendant may potentially raise a PCRA claim on direct appeal where the ineffectiveness is so apparent that immediate consideration would best serve the interests of justice. In such a case, the defendant generally must raise the claim in a post-sentence motion and agree to waive their right to file a PCRA following the direct appeal. Courts are most likely to address the PCRA claims early when the defendant is serving a short sentence which could expire before a PCRA may be filed. A defendant must be serving a sentence in order to file a PCRA, so if the sentence has expired, the defendant cannot litigate a PCRA. Here, the defendant had received a short sentenced, and he argued that the exception applied.

Because the defendant was unlikely to have sufficient time to file a PCRA following the appellate process, the Superior Court agreed to review the claim. The Superior Court concluded that the trial court should have permitted the defendant to raise his IAC claims in the post-sentence motions and on direct appeal because his short sentence would not afford him a realistic ability to obtain consideration of his IAC claims during a PCRA review. The Superior Court therefore addressed the issues on the merits.

The Court agreed with the defendant’s claims. It reasoned that when evidence is improperly admitted, the error is subject to harmless error analysis. The defendant argued that Sergeant Wharton’s testimony constituted improper legal opinion testimony by providing a legal conclusion. The trial court did not address the admissibility of this testimony but determined that it was harmless error, while the Commonwealth argued that his testimony simply explained with what he was charged and why. The Superior Court agreed with the Commonwealth that Sergeant Wharton did not interpret the law. Instead, he testified based on his own observations whether he saw evidence that the defendant would soon engage in hunting activities.

Regarding Sheriff Levindoski’s testimony, neither the trial court nor the Commonwealth addressed the admissibility of his testimony, though both explained that any error was harmless. The Superior Court agreed with the defendant, stating that Sheriff Levindoski should not have testified to the contents or his interpretation of Section 6106.1 since he had served as a lay witness, not an expert witness. Further, any testimony regarding § 6106.1 was irrelevant because the defendant was not charged with violating that statute.

The Superior Court also disagreed with the trial court’s assertion that the error was harmless and that the evidence was overwhelming. Although the defendant’s girlfriend testified that the defendant never said he was going fishing, the defendant did not testify that he planned to take his girlfriend fishing with him. Additionally, none of the officers testified to searching the trunk of the vehicle, where the defendant claimed that he had kept the fishing equipment. Finally, none of the officers testified to asking the defendant about his intent to go fishing. Thus, the Superior Court asserted that the issue for the jury to resolve was the defendant’s credibility and that the evidence against the applicability of the Sportsman’s Permit Exception was not overwhelming. The Superior Court also found that the Commonwealth relied on Sheriff Levindoski’s inadmissible testimony in its closing argument, proving the error was not harmless. Specifically, the Commonwealth emphasized the prohibition against carrying a loaded firearm in a vehicle under Section 6106.1, which had been introduced under Sheriff Levindoski’s testimony, though this had nothing to do with the Sportsman’s Permit Exception, and the defendant had not been charged with a Section 6106.1 violation. The Superior Court explained it could not conclude that Sheriff Levindoski’s testimony did not contribute to the verdict. Therefore, the Superior Court vacated the judgment of sentence and remanded for a new trial.

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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 8/11/22 Zak Goldstein 8/11/22

PA Superior Court: Police May Enter Car Without Search Warrant if Contraband in Plain View

The Pennsylvania Supreme Court has decided the case of Commonwealth v. McMahon, holding that the police legally searched the defendant’s car despite not obtaining a search warrant because they entered the car only to obtain contraband which was in plain view. The plain view exception allows the police to conduct a warrantless search where an object of an incriminating nature is viewed by a police officer from a lawful vantage point. The Superior Court therefore affirmed the trial court’s decision to deny the defendant’s motion to suppress incriminating evidence that had been obtained from his car.

Commonwealth v. McMahon

The defendant was stopped by two officers on patrol. The two officers conducted a traffic stop because they knew the defendant did not have a valid driver’s license from prior encounters. One of the officers, Sergeant Harrison Maddox, testified that he smelled marijuana and observed two burnt cigarettes containing marijuana in the cupholder of the car. The officers then detained and searched the defendant, finding one and a half pills that were later determined to be Oxycodone. Sergeant Maddox then searched the defendant’s vehicle and found three bags of marijuana.

The defendant filed a motion to suppress evidence. In this case, he sought to suppress the marijuana cigarettes, bags of marijuana, and Oxycodone pills. During the suppression hearing, the trial court granted the motion to suppress the bags of marijuana recovered but denied suppression of the marijuana cigarettes and Oxycodone pills. The defendant was found guilty of possessing a controlled substance and possessing marijuana after a stipulated non-jury trial.

The defendant then filed a motion for reconsideration, arguing that the trial court erred in denying his motion to suppress evidence under the plain view doctrine because the officers did not have the right of access to items inside the vehicle, and there was also no exigency to justify the seizure. The court denied that motion, and the defendant appealed.

The Pennsylvania Superior Court’s Decision

The Superior Court reviewed the relevant law and precedent regarding the plain view exception and denied the appeal. First, the Court noted that the Fourth Amendment provides that individuals cannot be subjected to unreasonable searches and seizures. A warrant for probable cause is required before an officer may search for or seize evidence. Article I, Section 8 of the Pennsylvania Constitution provides additional protections for individuals, providing that probable cause and exigent circumstances must exist in order to justify a warrantless search of a vehicle. There are, however, exceptions that may justify a warrantless search. Some examples include the consent exception, the plain view exception, the inventory search exception, the automobile exception, the stop and frisk exception, and the search incident to arrest exception.

Here, the Superior Court found that the plain view exception applies to a search of a vehicle where the police enter the car to obtain contraband which they can see from outside of the car. In order for the plain view exception to apply: 1) the officer must see the evidence from a lawful vantage point, 2) the object must be of an obviously incriminating nature, and 3) the officer must have a lawful right of access to the object.

The trial court had concluded that Sergeant Maddox testified that the object clearly had an incriminating nature, as the cigarettes both looked and smelled like marijuana, so the officer had a lawful right of access to the cigarettes. Sergeant Maddox saw the cigarettes in plain view upon approaching the vehicle, so he seized the cigarettes to prevent the destruction of evidence, and he subsequently arrested the defendant.

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On appeal, the defendant attacked the third prong of the test. Specifically, he argued that the police did not seize the item from a place for which they had obtained lawful access because they did not have the right to physically enter the car without a warrant. The defendant relied on Commonwealth v. Alexander to support his argument, but the Superior Court determined that Alexander did not address the plain view exception to a warrantless search; instead, it addressed the automobile exception. It also did not address exigent circumstances at all. In this case, the Superior Court determined that because the cigarettes were in plain view, the officer had the right to go in the car and retrieve it without getting a warrant regardless of whether exigent circumstances existed. Therefore, the Superior Court affirmed the defendant’s judgment of sentence and the trial court’s denial of the motion to suppress.

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Zak Goldstein 7/15/22 Zak Goldstein 7/15/22

Pennsylvania Increases Penalties for Multiple Driving Under the Influence Offenses

The Pennsylvania Legislature recently enacted a new law which significantly increases the penalty for third and subsequent driving under the influence (“DUI”) offenses. The law, which is nicknamed Deana’s Law, provides that a third DUI within ten years will now be a third degree felony instead of a first degree misdemeanor. Further, a defendant who has three or more DUIs within the prior ten years will face a second degree felony should they again get arrested for DUI rather than what would previously have been a felony of the third degree. Previously, a third degree was a misdemeanor rather than a felony.

This change increases the potential maximum sentence for a DUI conviction because a misdemeanor of the first degree is punishable by up to five years in prison, while a third degree felony conviction may result in seven years in prison and a second degree felon may result in up to ten years’ incarceration.

The law also increases the potential mandatory minimums for a defendant who has to serve sentences for multiple DUI offenses at the same time. The law provides that anyone who has two or more prior offenses must serve a DUI sentence consecutively to any other DUI sentence. This means that if a defendant gets arrested for a third and fourth DUI and is sentenced for both cases, the judge cannot run the two sentences concurrently. Instead, the judge must run them consecutively. As a third degree DUI is normally punishable by a mandatory minimum of one to two years’ incarceration in a state prison, this means that a third and fourth DUI would result in a mandatory two to four years’ incarceration rather than the possibility of a concurrent one to two years’ incarceration on each count.

The law also directs the sentencing commission to provide a sentencing enhancement for a refusal of chemical testing under certain situations. Accordingly, the new law substantially increases the potential penalties for picking up multiple DUI cases in a ten year period.

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Zak Goldstein 7/12/22 Zak Goldstein 7/12/22

Criminal Defense Attorney Zak Goldstein Wins Motion to Suppress Drugs in Possession with the Intent to Deliver Case

Criminal defense lawyer Zak T. Goldstein, Esquire, recently won a motion to suppress a significant quantity of fentanyl, heroin, and pills in a case in the Philadelphia Court of Common Pleas. In Commonwealth v. B.R., police alleged that they responded to a 911 call for a report of a person screaming. When they arrived on the scene, they did not see a disturbance or hear anyone screaming, but they did observe the defendant’s car double parked in the middle of the road with the engine running. The defendant approached the police, and the police asked him if he knew to whom the car belonged. The defendant responded that it was his car.

The police walked over to the vehicle, and they claimed that they were able to smell marijuana coming from the car. They ran the defendant’s identification and determined that the defendant had a bench warrant from missing court in another case. They therefore placed him under arrest and put him in the back of the patrol car. They also claimed that while they were arresting him, he began cursing at them and saying things about guns and knives being in the car. The police asked if they could search the car, and the defendant purportedly told them that they could search it. The officers then performed a “consent search” and recovered a significant quantity of heroin, fentanyl, and oxycodone pills. The police charged B.R. with Possession with the Intent to Deliver (“PWID”) and related charges.

B.R. retained Attorney Goldstein for his case, and after reviewing the matter, Attorney Goldstein immediately filed a motion to suppress the drugs that were recovered from the car. Attorney Goldstein alleged that the drugs were illegally recovered by the police because the police failed to obtain a search warrant for the car, the consent obtained from B.R. was invalid, and the police had failed to give B.R. his Miranda warnings prior to interrogating him.

The Philadelphia Court of Common Pleas held a hearing on the motion to suppress at which the officers testified to many of the above allegations. The Commonwealth based its arguments as to the legality of the search on the officers’ claims that B.R. had in fact consented to a search of the vehicle, leading to the recovery of the drugs. Under the Pennsylvania and United States Constitution, however, the Commonwealth bears the burden of establishing that a suspect has voluntarily, knowingly, and intelligent consented to a search before the police may conduct such a search. As the police did not obtain a search warrant and there was no real claim that this search was performed out of a concern for officer safety, the Commonwealth attempted to show that B.R. had consented.

The trial court rejected the Commonwealth’s argument. First, following Attorney Goldstein’s cross-examination of the officer, the court found that the officer’s testimony was not credible because it did not make any sense that the defendant would consent to a search of his car when the car contained a large amount of drugs. The officer also struggled to recall details regarding the search or exactly what the defendant had supposedly said when giving consent. Second, the court found that the defendant did not voluntarily give consent to the search. Under Pennsylvania law, the consent to a search must be the product of an essentially free and unconstrained choice. It may not be the result of duress or coercion, express or implied, or a will overborne. A court must look at the totality of the circumstances in determining whether consent was freely given. Here, the police had arrested the defendant, failed to give him Miranda warnings, failed to tell him that he had the right to refuse the search, and failed to comply with their own directives which required them to consult with a supervisor and have the defendant sign a consent to search form prior to conducting the search of the vehicle.

Goldstein Mehta LLC Criminal Defense Lawyers

Accordingly, the court found the officers’ testimony not credible and that the defendant had not actually consented. The court granted Attorney Goldstein’s motion to suppress, and the Commonwealth was forced to withdraw the charges. On paper, this case looked difficult – the car smelled like marijuana, the defendant had an arrest warrant, the police recovered a lot of drugs, and the defendant had supposedly consented to the search, thereby eliminating the need for a search warrant. Through cross-examination and the use of the case law on consent searches, which is often helpful to the defense, Attorney Goldstein was able to convince the trial court that the police had violated B.R.’s constitutional rights and win the case.