Philadelphia Criminal Defense Blog

Zak Goldstein 6/14/23 Zak Goldstein 6/14/23

PA Supreme Court: Trial Court May Not Revoke Probation Before It Begins

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Rosario, holding that a trial court may not revoke a probationary sentence before it begins. This decision is extremely important as it provides a great deal of protection to individuals who are still serving the incarceration or parole portions of sentences that have a probationary tail. Previously, a judge could revoke a consecutive probationary tail and sentence a defendant up to the maximum possible sentence for the offense. With parole, however, the maximum possible sentence is the portion of the jail sentence that has not yet been served. This case upholds the Superior Court’s ruling in Commonwealth v. Simmons which prohibited a longstanding practice of judge’s finding a defendant in violation of probation which has not yet started.

The Facts of Rosario

In Rosario, the defendant pleaded guilty to carrying a firearm without a license and drug charges. He received a sentence of 2.5 - 5 years’ incarceration followed by five years’ probation. He made parole before the maximum prison sentence expired, and while on parole, he was arrested and charged with kidnapping and then shooting a man. The Commonwealth prosecuted him for attempted murder and related charges in the new case. The trial court also revoked Rosario’s parole and probation in the original gun and drug case. The trial court sentenced him to the remaining unserved sentence of his five year prison term (improperly in this case as the parole board had jurisdiction) as well as an additional 5 - 10 years’ incarceration and five years’ probation for the violation of the probation on the drug charges. Rosario’s probation, however, had not yet started at the time of the new offense. The court had run the probation consecutively to the prison sentence, so he was still on the parole portion of the sentence.

Rosario appealed to the Pennsylvania Superior Court. While his appeal was pending, the Superior Court decided the case of Commonwealth v. Simmons. In Simmons, the Superior Court held that a trial court may not find someone in violation of probation which has not yet started. In other words, the law does not allow anticipatory probation violations. Accordingly, the Superior Court applied the new rule of Simmons to Rosario’s case, vacated the prison sentences on the drug charges because the probation had not started when he committed the new crime, and remanded the case to the trial court for re-sentencing. The Commonwealth appealed to the Pennsylvania Supreme Court, and the Supreme Court accepted the case.

The Supreme Court’s Ruling

The Supreme Court affirmed and held that anticipatory probation violations are illegal. Examining the language of the statute, the Court found that a trial court may only revoke a probationary sentence which has already begun. For example, one portion of the statute specifically provides that the court may “revoke an order of probation upon proof of the violation of specified conditions of the probation.” 42 Pa.C.S. §9771(b). In other words, only a violation of the probation itself may trigger revocation, not a violation of a probation order before the probation term has started. A different section requires the court resentencing a defendant following a revocation to give “due consideration . . . to the time spent serving the order of probation.” 42 Pa.C.S. §9771(b). Obviously, if the probation had not yet started at the time of the violation or revocation, then the court could not consider how the defendant had done on probation or for how long the defendant had been on probation. Likewise, another section provides: “[t]here shall be no revocation” of probation “except after a hearing at which the court shall consider . . . evidence of the conduct of the defendant while on probation.” 42 Pa.C.S. §9771(d).

Ultimately, numerous sections of the statute direct the resentencing court to consider how the defendant did while on probation, how long the defendant was on probation, and whether the probation itself was violated. None of these things can be evaluated for someone who has not yet started their probation, suggesting that the legislature intended that only probation which has begun can be violated. The court therefore found that the statute is unambiguous and the plain language prohibits an anticipatory violation. Even if the statute were ambiguous, however, the rule of lenity would apply. The rule of lenity requires that any ambiguity in a criminal statute be construed in favor of the defendant. Therefore, the Supreme Court affirmed. A trial court may not find a defendant in violation of a consecutive period of probation when the defendant is still in custody or on parole.

There are ways around this ruling for pending and future cases, however. Previously, trial judges would often sentence a defendant to a prison sentenced followed by a period of probation on the lead charge and no further penalty on the remaining counts. For example, a defendant charged with carrying a firearm without a license and carrying a firearm on the streets of Philadelphia might receive a sentence of 11.5 - 23 months in jail followed by two years’ probation on the carrying without a license offense and no further penalty on the carrying on the streets of Philadelphia count. Now, a judge can impose 11.5 - 23 months’ incarceration on one offense and concurrent probation on the other so that the probation will start immediately. This limits the overall potential maximum penalty for a violation in that the probation is only on one offense, but it does still limit the effects of this ruling. For many defendants who are currently serving sentences of incarceration or parole, however, it provides a tremendous amount of protection against a probation violation for a probation sentence that has not started yet.

Facing criminal charges? We can help.

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. We have also won criminal appeals and PCRAs in state and federal court. 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 5/25/23 Zak Goldstein 5/25/23

Attorney Goldstein Wins Re-Sentencing on Appeal for Client Who Received 35 Years for Drugs

Criminal Appeals Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire recently won a new sentencing hearing for a client who received 17.5 - 35 years’ incarceration followed a conviction for possession with the intent to deliver in Blair County, PA. The client was originally charged with drug delivery resulting in death, possession with the intent to deliver, criminal use of a communications facility, and recklessly endangering another person. The jury convicted him only of the PWID, CUCF, and REAP. It did not convict him of the homicide. Nonetheless, the trial judge imposed a sentence of 17.5 - 35 years’ incarceration for PWID even though the Commonwealth’s pre-trial offer had been for a jail term of less than half of that on the homicide charge. The client retained Attorney Goldstein for appeal, and the Superior Court vacated the sentence. It is rare for an appellate court to determine that a sentence should be vacated purely because it was excessive, but in this case, Attorney Goldstein was able to convince the Superior Court that the sentence was far too much. The Court found that the sentence was clearly excessive and remanded for a new sentencing hearing. Learn more here.

Facing criminal charges? We can help.

Criminal Defense Lawyer Zak T. Goldstein, Esquire

Zak Goldstein 5/23/23 Zak Goldstein 5/23/23

PA Superior Court: No Reasonable Expectation of Privacy in IP Address or Google Search History

The Superior Court has decided the case of Commonwealth v. Kurtz, allowing police to use a very general warrant to obtain a defendant’s IP address and Google search history in order to solve an alleged rape. The Court also approved of the use of cell tower data dumps in order to connect suspects to potential locations. In this case, the Court found both that the defendant did not have a reasonable expectation of privacy in this information which he shared with Google as well as his cell carrier, and it also found that the search warrants obtained by the police were acceptable even though they had very little reason to believe the defendant would have used Google as part of committing the crime.

The Facts of Commonwealth v. Kurtz

In July 2016, a woman went to sleep and awoke to her dogs barking. When she went to investigate, a man jumped out, tied her up, and dragged her to his van. The man raped her and then released her into a field by her house. She eventually found help and called 911, and emergency personnel took her to the hospital. The medical staff at the hospital collected DNA samples. The police conducted a very thorough investigation; they executed a search warrant on Google demanding all of the IP addresses of anyone who had searched the victim’s name or address during the week leading up to the attack. Google disclosed that someone with a particular IP address had conducted two searches for the victims’ address hours before the incident.

Police identified the IP address as belonging to the defendant, who was actually the woman’s husband’s co-worker at the prison, and conducted surveillance. During the surveillance, police recovered the defendant’s used cigarette butts and obtained DNA from them. The officers compared the DNA collected from the victim and the defendant and found a match. The police arrested him, and he admitted to the rape as well as numerous other incidents involving other victims. All four of the other incidents had similar characteristics. In two cases, the defendant had also raped the victims, and the DNA collected in those cases matched the defendant.

The Defendant’s Pre-Trial Motions

The defendant filed a motion to suppress the evidence of the Google searches of the victim’s residence. He also filed a motion in limine to preclude the Google searches, alleging that the Commonwealth’s mishandling of the evidence prevented him from verifying its authenticity. He filed a second motion in limine to suppress the “tower dump” evidence obtained from AT&T. The motion alleged that the Commonwealth illegally obtained the records because the court order used the “Wiretap Act” instead of a warrant supported by probable cause and individualized suspicion that the defendant was engaged in criminal activity. The trial court denied all three motions. At trial, the jury found the defendant guilty on all charges. The trial court sentenced the defendant to an aggregate sentence of 59 to 280 years’ imprisonment.

The defendant raised various issues for appeal including the issues regarding the Google searches and cell phone tower dumps. First, he challenged whether the trial court erred in allowing the admission of unauthenticated, illegally obtained evidence because the investigatory search warrant lacked probable cause, and second, he challenged whether the trial court erred by allowing the admission of cell tower evidence that was the product of an invalid search warrant.

The Google Searches

The Superior Court rejected a number of challenges to the Google Search evidence. First, the court approved of the search warrant even though there was no direct evidence showing that the attacker had conducted a Google search prior to the execution of the warrant. The Court reasoned that the details of the attack made it likely that someone had searched for the victim’s address online in order to plan the attack and that most people use Google for internet searches. Police do not need an absolute certainty that they will find evidence for a search warrant to be valid; they just need probable cause, and here, the Court found probable cause to believe the attacher could have conducted a Google search.

Second, the Court also found that the defendant did not have a reasonable expectation of privacy in his Google search history or IP address because both of those things are shared with third parties. An IP address is an address assigned by the internet provider that identifies which internet account accessed another network. Therefore, it is always shared with a thirty party. Similarly, a Google search by definition has been shared with Google. Things that are shared with third parties often have less protection under the 4th Amendment than things that someone has kept private. In this case, the defendant chose to share his searches and IP address with Google, so they were not kept private. Therefore, police did not need a warrant to get that information. Courts have held that police need a search warrant to track someone’s real-time location through GPS data, but that is because such a search is so intrusive that even though data has been shared with a third party, society would generally recognize that it should be private.

Finally, the defendant argued that the data should be suppressed because the police had accidentally destroyed some of the metadata that accompanied the Google search results. Metadata might have shown that the data was tampered with or fabricated, but in this case, the defendant had no reason to believe that it was. Google certified that the data was correct, and so without some evidence of bad faith, the defendant was not entitled to the suppression of the evidence.

The Cell Tower DATA

In this case, police had also conducted cell tower dumps. A cell tower dump is where the police determine every device that connected to a cell tower during a particular period and then see if there are any devices of interest. In this case, they had done that for the towers closest to some of the crime scenes and found that the defendant’s phone had been nearby. The defendant challenged this procedure because the police had not obtained search warrants for the cell site data. Instead, they had issued court orders which did not contain explicit findings of probable cause. The Superior Court rejected the argument, however, finding that the orders asked for information only from a single tower and for a limited period of time. They did not ask for ongoing, real-time monitoring of a defendant’s individual cell phone, so the privacy concerns involved were not as strong. Therefore, the Court affirmed the constitutionality of the searches. The defendant’s conviction will stand.

Some of these issues deserve further review and consideration. For example, allowing the police to obtain a defendant’s Google search history without a warrant raises major privacy concerns. Pennsylvania courts have often rejected warrantless searches even of things shared with third parties like bank records and cell phone records. But bad cases often make bad law - in this case, the defendant was charged with horrific rapes, and the evidence against him was overwhelming, so it becomes very difficult for a court to seriously entertain suppressing the evidence or granting him a new trial. Nonetheless, it has become almost impossible to function in society without conducting a Google search, using Google Maps, storing data on Google drive, or communicating with a Google email account, so a rule that allows the police to obtain Google data without a warrant seems unreasonable. Hopefully, the defendant will seek further review, or a case with less horrible facts will warrant the courts to reconsider.

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Zak Goldstein 5/21/23 Zak Goldstein 5/21/23

PA Supreme Court: Adult May Be Prosecuted for Decades Old Crime Committed While Juvenile

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Armolt, holding that an adult defendant may be prosecuted in adult court for a crime he committed twenty years earlier as a juvenile. This case illustrates a serious problem with the criminal justice system. Had the defendant been prosecuted in juvenile court twenty years earlier, he likely would have received probation and some kind of treatment program. But because prosecutors did not file charges until twenty years later, he received a permanent, adult record, and the judge sentenced him to state prison. Nonetheless, the Supreme Court upheld this procedure and concluded that only the legislature could address the issue.

The Facts of Armolt

In Armolt, the defendant was convicted of sexually assaulting his step-sister while he was a minor. He, his brothers, and his mother moved in with the complainant and her father when he was a minor in the 1980s. According to the complainant, he and his brothers began sexually assaulting her while she was between the ages of seven and sixteen. She reported the abuse to the State Police at some point in 1996, but the police did not file charges, and she remained in the home. She did not alert any other authorities for another three decades.

In 2016, the complainant called the State Police to discuss a dispute with the defendant and his brothers over the inheritance of property from her father, who had recently died. This conversation led to her disclosing the abuse to a state trooper. The state trooper conducted an investigation, interviewed a number of witnesses, and recommended that prosecutors file charges. The Commonwealth eventually filed charges in 2018. Accordingly, the police arrested the defendant in 2018 and charged him as an adult with rape, involuntary deviate sexual intercourse, aggravated indecent assault, and indecent assault for crimes he committed thirty years earlier when he was a minor.

The trial court denied various pre-trial motions. The defendant proceeded by way of jury trial, and the jury found him guilty. The trial court sentenced him to 4 - 8 years’ incarceration in state prison.

The Appeal

The defendant appealed, arguing that he should not have been prosecuted as an adult because he committed the crimes when he was a juvenile. Specifically, in the trial court and on direct appeal to the Superior Court, he argued only that the juvenile court had jurisdiction because he committed the crimes as a minor. The Superior Court affirmed, and the defendant sought review in the Pennsylvania Supreme Court. The Supreme Court agreed to review the issue and granted his petition for allowance of appeal.

The Supreme Court, however, also affirmed. It found that the defendant was properly tried in adult court under the applicable statutes and that although his constitutional claims were interesting, he had waived those claims on appeal by failing to raise them in the trial court and Superior Court.

With respect to the statutory claim, the Supreme Court found that Pennsylvania law clearly directs that an adult who is prosecuted for crimes committed while a juvenile should be prosecuted as an adult in the Court of Common Pleas. The Court noted that the Juvenile Act conveyed limited jurisdiction to juvenile courts, the scope of which applies “exclusively to . . . [p]roceedings in which a child is alleged to be delinquent or dependent.” 42 Pa.C.S. §6303(a)(1) (emphasis added). The Act explicitly defines a “child” as an individual who “is under the age of 18 years” or “is under the age of 21 years who committed an act of delinquency before reaching the age of 18 years.” Id. § 6302.10

Thus, the Act plainly extends juvenile jurisdiction to offenders who committed an offense while under the age of eighteen only if they are prosecuted before turning twenty-one. Because the Court found no ambiguity in this definition, it found itself bound to abide by the letter of the statute. See 1 Pa.C.S. §1921(b). Further, the statutes provide that the juvenile court loses jurisdiction when a defendant turns 21. Accordingly, if the defendant’s argument were correct, then he could not be prosecuted at all because the juvenile court would not have jurisdiction, either.

The Court rejected the defendant’s other arguments. It found that he failed to present any evidence that the Commonwealth acted in bad faith by waiting to charge him, and that although he had raised a number of interesting constitutional challenges in the Supreme Court, he had failed to raise these challenges in the lower courts. Therefore, the Court found that he waived those claims by failing to raise them earlier.

The Court therefore denied the appeal. It did recommend that the legislature consider whether the system is really fair to adults who are prosecuted for crimes committed decades earlier when they were minors, but it found no real dispute that the statutory language directs such a result. The Court did suggest that it may be willing to consider a properly preserved challenge as to whether an adult defendant may be sentenced to prison for crimes committed as a juvenile, but it found that this case was not the right case for deciding that issue.

Facing criminal charges? We can help.

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, VUFA, and Murder. We have also won criminal appeals and PCRAs in state and federal court. 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.