Attorney Goldstein Published in PACDL’s For the Defense Magazine on Differences in Federal and State Constitutional Protections

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire was recently published in the Pennsylvania Association of Criminal Defense Lawyer’s For the Defense Magazine. Attorney Goldstein’s article focused on the differences between the protections provided by the Pennsylvania and United States Constitutions and the practical impact those differences may have on the litigation of motions to suppress and other challenges to improper seized evidence in state and federal court. Read more here.

Facing criminal charges or appealing a criminal case? 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 and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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.  

The New 2024 Pennsylvania Sentencing Guidelines

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

A major update to the Pennsylvania Sentencing Guidelines went into effect on January 1, 2024. The new guidelines significantly revamp Pennsylvania’s system for sentencing defendants following a conviction at trial or guilty plea. The guidelines had largely been handled the same way since their creation, but now, the Pennsylvania Commission on Sentencing has significantly changed the way prior record scores are calculated and created a very different sentencing matrix. The old guidelines still apply to offenses committed before 2024. The new 8th edition of the guidelines apply for offenses committed on or after January 1, 2024.

What are the sentencing guidelines?

As an introductory reminder, prior to sentencing a defendant in Pennsylvania state court, a judge must calculate the guidelines for the offense. Every offense has an offense gravity score, and every defendant has a prior record score. The judge must correctly determine the offense gravity score (OGS) and the defendant’s prior record score (PRS). Where those two numbers meet on the sentencing guidelines matrix then provides the judge with a recommended range for the minimum sentence. With the exception of very short sentences (like 30 days in jail for possession of marijuana), every sentence in Pennsylvania must have a minimum and a maximum. The maximum must be at least double the minimum in order for the sentence to be legal.

Under Pennsylvania’s guidelines system, the judge must correctly calculate the sentencing guidelines and then consider sentencing the defendant within the range provided by the guidelines for the defendant’s minimum sentence. Ultimately, the judge does not have to sentence the defendant within the guidelines. The judge could decide there is something less serious about the case and go below the guidelines or something more serious about the case and go above the guidelines. Guideline sentences, however, are very difficult to appeal. It is generally easier to appeal a sentence when the judge departs from the guidelines.

The basic idea of the new guidelines is the same; every offense will have guidelines based on an offense gravity score and a prior record score. Calculating those numbers, however, has become a little bit more complicated.

The Offense Gravity Score

The offense gravity score is relatively easy to determine. The Pennsylvania Commission on Sentencing provides a list of offenses, and each offense has a numerical offense gravity score that goes with it. First, the defense attorney must determine the offense gravity score for each offense charged by reviewing the list of offenses in the complaint or bills of information. It is important to look at the specific subsection charged as different subsections may have different offense gravity scores.

Second, the attorney must determine whether any enhancements apply. The two most common enhancements are the deadly weapon possessed and the deadly weapon used enhancements. They apply when a deadly weapon like a gun or a knife was either used or possessed during the commission of the crime.

If a deadly weapon was possessed but not used, then the offense gravity score will be two points higher.

If the deadly weapon was used, then the offense gravity score will be three points higher.

The deadly weapon enhancements do not apply if the statute itself always involves the use of a deadly weapon because the use of a deadly weapon is an element of the offense. Possessing an instrument of crime, prohibited offensive weapons, possession of a weapon on school property, assault with a deadly weapon, and violations of the uniform firearms act do not require the application of the deadly weapon enhancements because the possession or use of a deadly weapon is part of the offense.

There are three other enhancements which are less likely to apply.

First, there is a school zone enhancement. If a controlled substance was delivered or possessed with the intent to deliver in a school zone, then there is a one point addition to the offense gravity score.

Second, there is a criminal gang enhancement of two points.

Third, there is a domestic violence enhancement of two points. If the defendant committed the offense against a family or household member, then the enhancement may apply.

It is important to accurately calculate the offense gravity score. Further, the calculation of the correct offense gravity score may be subject to litigation. If the Commonwealth alleges that a particular object was a deadly weapon but the object was not a gun or a knife, it may be possible to argue that the object was not actually a deadly weapon.

The defense should carefully review the pre-sentence investigation and calculation of the guidelines and object if the guidelines seem too high or are based on allegations the Commonwealth may not be able to prove. It is important to remember that the Commonwealth bears the burden of establishing that an enhancement applies by a preponderance of the evidence. It is not necessarily the defense attorney’s job to prove that it does not apply. The Commonwealth, however, may use circumstantial evidence in order to meet this burden.

The Prior Record Score

Second, the defense attorney must properly calculate a defendant’s prior record score. The system for determining the offense gravity score did not change significantly with the enactment of the new guidelines, but dealing with the prior record score is very different. Instead of looking at each charge for which a defendant has been convicted and assigning points to that charge and then adding those points up, the prior record score will now be based on the most serious offense of conviction for each case where a defendant was convicted of a crime.

There are four categories of offenses.

First, there are misdemeanors which have not been designated as serious crimes (POG1 offenses).

Second, there are third degree felonies and unclassified felonies (like possession with the intent to deliver) which have not been designated as serious crimes (POG2 offenses).

Third, there are serious crimes, first-degree felonies, and second-degree felonies (POG3 offenses). VUFA offenses and SORNA offenses are generally considered serious crimes that fall within the third category.

Fourth, there are crimes of violence which would otherwise be considered strike offenses (POG4 offenses). These include offenses like first-degree felony aggravated assault, attempted murder, rape, IDSI, and certain robberies and burglaries. There are other offenses which fall within this list. They are defined in 42 Pa.C.S. § 9714(g).

In calculating the prior record score, the defense attorney must determine which prior offense on the defendant’s record is the most serious. The attorney should then determine how many offenses of the same seriousness fro which the defendant has been convicted. The number of offenses for which the defendant has been convicted of the same seriousness will then determine the defendant’s prior record score based on where that number falls on this chart.

The Prior Record Score Matrix

For example, using the above chart, a defendant with two misdemeanors (which go under the POG1 category) will fall under prior record score one.

A defendant with two F1 robberies (which are crimes of violence that fall under POG4) will have the highest prior record score of four.

A defendant with three prior possession with the intent to deliver cases, which fall under POG2, will fall under prior record score three.

A defendant with two VUFA convictions (POG3), would have a prior record score of three.

Lapsing of Convictions for the Prior Record Score

Under the old guidelines, convictions were permanent. Even if a defendant was convicted of an offense fifty years ago, the offense would still count towards the defendant’s prior record score unless the offense was a juvenile adjudication and a certain amount of time had passed in between the adjudication and new offense. Now, convictions will no longer count if a defendant goes a certain amount of time in between arrests.

Juvenile Adjudications

First, juvenile adjudications lapse relatively quickly.

Juvenile adjudications for POG1 offenses (mostly misdemeanors) do not count towards the prior record score.

Juvenile offenses in POG2 (mostly third-degree felonies and PWIDs) do not count once the defendant turns 25.

POG3 offenses (felony ones and felony twos that are not crimes of violence) do not count if the defendant is “crime-free” for ten years.

Finally, POG4 adjudications (crimes of violence) do not count after 10 years crime-free if they were committed when the defendant was between 14 and 16 or after 15 years crime-free if the defendant was 16 or older.

Adult Convictions

Under the old guidelines, adult convictions counted forever. Now they may lapse after a certain amount of time.

POG1 offenses lapse after ten years from the conviction date even if the defendant was not crime-free.

POG2 and POG3 offenses lapse after 15 years of being crime-free.

POG4 offenses lapse after 25 years of being crime-free.

The time period for being crime-free runs either from the date of release from incarceration or the date of the sentence if the defendant received probation.

Again, if there is a dispute, the Commonwealth bears the burden of proving that lapse should not occur.

The following is the definition of a crime-free period:

‘‘Crime-free period.’’ Following a conviction and sentence and subsequent release to the community, the completion of a prescribed period of time without commission of a new felony or misdemeanor, for which the person pleads guilty or nolo contendere or is found guilty. For non-confinement sentences, release to the community begins on the date of sentencing; for confinement sentences, release to the community begins on the date of initial release on parole, or release following completion of the confinement sentence, whichever is earlier.

The New 2024 Pennsylvania Sentencing Guidelines Matrix

Once the criminal defense attorney has calculated the offense gravity score and prior record score, the next step is to see where those numbers meet on the below matrix. That number then provides a recommended minimum sentence for the judge to consider. The judge may go higher or may go lower, but the judge must properly calculate the guidelines and consider them. The judge must put the guidelines on the record, and if the judge decides to go above or below the guidelines in sentencing the defendant, the judge must announce the reasons for the departure on the record at the time of sentencing. The failure to properly calculate the guidelines or put the reasons for a departure on the record could be the basis for a successful appeal.

The New 2024 Pennsylvania Sentencing Guidelines Matrix (8th Edition)

A Judge May Depart From the Guidelines

Finally, a judge may depart from the guidelines. Judges may consider the following factors when deciding whether to depart:

(i) Nature and circumstances of the offense:

(A) Neither caused nor threatened serious harm.

(B) Conduct substantially influenced by another person.

(C) Acted under strong provocation.

(D) Substantial grounds to justify conduct.

(E) Role in offense.

(F) Purity of controlled substance.

(G) Abuse of position of trust.

(H) Vulnerability of victim.

(I) Temporal pattern.

(J) Offense pattern.

(K) Multiple offenses in a criminal incident.

(ii) History and character of the person:

(A) No history of criminal conduct.

(B) Substantial period of law-abiding behavior.

(C) Circumstances unlikely to recur.

(D) Likely to respond affirmatively to probation.

(E) Imprisonment would entail excessive hardship.

(F) Accepts responsibility.

(G) Provides substantial assistance.

(H) Compensated victim or community.

(I) Character and attitude.

(J) Treatment for substance abuse, behavioral health issues, or developmental disorders or disability.

(2) Unless otherwise prohibited by statute, the consideration of validated assessments of risk, needs and responsivity, or clinical evaluations may be considered to guide decisions related to the intensity of intervention, use of restrictive conditions, and duration of community supervision.

(3) Adequacy of the prior record score. The court may consider at sentencing prior convictions, juvenile adjudications, or dispositions not counted in the calculation of the PRS, in addition to other factors deemed appropriate by the court.

Obviously, this is a big list of reasons for a potential departure. At the end of the day, it is important to remember that the new guidelines, like the old ones, are not mandatory minimums. They provide the judge with a starting point for the potential sentence. In some counties, the guidelines are treated almost as mandatory minimums and it is rare to see judges go below or above the guidelines. In others, the guidelines are routinely calculated but then ignored. Additionally, the guidelines do not tell the judge whether to impose consecutive or concurrent sentences for different offenses. It is also not clear yet whether separate cases which were consolidated and disposed of at the same time will count as one case or two cases for calculating the prior record score, so some of these things will still be subject to litigation. Either way, it is important to correctly calculate the guidelines as they will give the defendant an idea of what they are facing if they are convicted and the improper calculation of the guidelines at sentencing could be the basis for an appeal or PCRA claim.

Facing criminal charges or appealing a criminal case in Pennsylvania? We can help.

Philadelphia Criminal Lawyer Zak T. Goldstein, Esquire

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, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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.

PA Supreme Court: Commonwealth's Suppression of Key Witness's Mental Health Records Requires New Trial

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Conforti, affirming the PCRA court’s decision to vacate the defendant’s convictions for murder, rape, and related charges. The Court affirmed the reversal of the defendant’s death sentence because the defendant was able to show in PCRA proceedings that the Commonwealth hid psychological records for the witness which could have been used to impeach the witness at the time of trial.

The Facts of Conforti

In 1990, Kathleen Harbison and and her friend, Sue Fritz, were drinking at Cousins Restaurant and Bar in Wayne County, Pennsylvania. Harbison was seen in the company of the defendant, Michael Conforti, and James Bellman. Harbison left the bar to warm up her car in the early morning hours while Fritz said goodbye to friends. Fritz left the bar a few minutes later. She found Harbison’s car in the parking lot with the engine running, the driver door locked, the passenger door unlocked, the heater running, the radio on high volume, and Harbison’s purse on the back seat. Harbison was nowhere to be found. Before Fritz came outside, someone saw Bellman in his car, which was parked next to Harbison’s car.

A few days later, Harbison’s body was found in a secluded wooded area of Wayne County. Harbison had been stabbed twelve times, and four of the wounds were lethal. The cause of death was multiple stab wounds. There was evidence that Harbison had been bound by the wrists and ankles by handcuffs and that the acts were committed by more than one person.

The defendant and Bellman were arrested and charged with murder and other offenses related to Harbison’s death. Bellman gave a statement admitting to his involvement while the defendant offered no statement. The two were tried at the same time in the Wayne County Courthouse in two separate trials. Then-Wayne County District Attorney (and future judge) Wayne Hamill prosecuted Bellman, and then-Assistant District Attorney Mark Zimmer prosecuted the defendant. After testimony closed in Bellman’s trial but before closing arguments, Bellman, District Attorney Hamill, and Bellman’s lawyer had a meeting in a conference room in the back of the courtroom. After the meeting, Bellman informed District Attorney Hamill that he would testify for the Commonwealth in the defendant’s then ongoing trial.

Bellman testified that on the night of the murder, he and Harbison left the bar in Wayne County and went to the defendant’s house in Pike County. He claimed the defendant forced Harbison to engage in oral sex after telling Bellman to handcuff her. Harbison was then forced into Bellman’s car and driven to a secluded dirt road in Wayne County. Bellman claimed he and the defendant pulled her from the car and then the defendant repeatedly stabbed her with a knife the defendant brought from his trailer before they left.

Bellman continued, that after the killing, he and the defendant stopped at Ledgedale Bridge where the defendant threw the knife and handcuffs into the water. They then burned the blood-stained clothing and car mats from Bellman’s car in the defendant’s burn barrel and cleaned and vacuumed the defendant’s trailer and Bellman’s car. Bellman identified the recovered knife as the murder weapon.

Bellman claimed he decided to testify due to his sympathy for the victim’s family. He claimed that he did not have a plea agreement with the Commonwealth and would not receive anything for his testimony. The day after Bellman’s testimony, the prosecutor and defense attorney stipulated to the following:

The Commonwealth and Defense have stipulated that after Bellman had informed the District Attorney that he wished to testify at this trial -- that is to say the trial of [defendant] -- the District Attorney told him that if he did so and pled guilty to first degree murder in his own trial, the District Attorney would not seek the death penalty.

Mr. Hamill, the District Attorney, further told James Bellman that if he did not plead guilty, he would receive no consideration for his testimony against [defendant].

At the time Mr. Bellman testified in this trial here yesterday, he had not made up his mind which of these options he wished to take.

Since that time, he has pled guilty to first degree murder and he has been sentenced to life in prison.

The defendant took the stand in his own defense, contradicting Bellman’s testimony, and denying any involvement in the murder. The jury convicted the defendant of murder, and the court sentenced him to death. The trial court denied all post-sentence motions, and the Pennsylvania Supreme Court affirmed the defendant’s conviction and judgement of sentence on direct appeal.

 The Defendant’s Post-Conviction Relief Act Petition

The defendant filed a timely pro se petition pursuant to the Post Conviction Relief Act (“PCRA”). The Office of the Attorney General represented the Commonwealth. Multiple hearings were held between October 2018 and November 2021.

Immediately before the PCRA hearing on November 5, 2021, the Commonwealth, represented by the Office of the Attorney General, provided the defendant’s counsel with two of Bellman’s mental health reports from 1980. The reports were created when Bellman was represented by Hamill while Hamill was in private practice. Hamill requested Bellman be evaluated by mental health experts. The reports, based on these evaluations, showed that Bellman was diagnosed as a sociopath by both evaluating doctors.

At the hearing on the petition, the parties entered a stipulation providing that the Office of the Attorney General was provided the file for Commonwealth v. Conforti which was maintained by the Wayne County District Attorney’s Office. The file had been in the possession of the Office of the Attorney General since that time. Counsel further stipulated that the mental health reports were contained in the Wayne County District Attorney’s file in a folder labeled “Misc. Police Reports,” and counsel for the Commonwealth from the Office of the Attorney General was unaware of its presence prior to its discovery and disclosure.

The PCRA judge granted the defendant’s petition, vacating his conviction and sentence on multiple grounds due to Constitutional violations for failing to disclose material exculpatory evidence that may have affected the outcome of the trial. The PCRA court based its decision in Brady v. Maryland, finding that the Commonwealth committed a Brady violation by failing to disclose the exculpatory mental health reports.

The PCRA Court Opinion

The PCRA court made a number of factual determinations in support of the grant of a new trial. First, it concluded that Bellman was negotiating with the Commonwealth for weeks prior to his testimony and that the negotiations were for Bellman to testify against the defendant in order to strengthen a weak, circumstantial case against the defendant. Accordingly, under Brady v. Maryland, this information should have been disclosed prior to trial because Brady requires that any material showing that a Commonwealth witness was looking for favorable treatment or otherwise was motivated to curry favor with the prosecution be disclosed.

Second, the PCRA court addressed the defendant’s claim that the failure to disclose the mental health records also constituted a Brady violation. The court determined that the Commonwealth had possession of Bellman’s mental health reports since 1980 and that the reports remained in the possession of the Commonwealth since that time. The court found that none of the evidence of Bellman’s mental health issues was disclosed to defense counsel prior to trial.

The court emphasized this determination by explaining, had this information been provided to defendant’s counsel prior to trial, defendant’s attorney could have called the authors to tell the jury what they determined to be Bellman’s mental health issues. The court highlighted excerpts of the report stating Bellman had no empathy for others, was selfish, narcissistic, and felt no guilt.

The PCRA court determined the information contained in the reports would have been devastating to Bellman’s credibility at trial. It highlighted the fact that Bellman was the Commonwealth’s key witness, the defendant maintained his innocence, and the rest of the evidence against the defendant was circumstantial.

The court relied heavily on the Third Circuit’s decision in Dennis v. Secretary, Pennsylvania Department of Corrections, which held that Brady material does not have to be evidence that would have resulted in an acquittal, but rather must only be evidence that would undermine confidence in the jury verdict.

The PCRA court further rejected the Commonwealth’s position claiming that counsel for the defendant could have obtained Bellman’s mental health information from sources other than the Commonwealth. The court found that Dennis held that a defendant is entitled to presume that prosecutors will disclose information they are required to disclose. The court ultimately found that Hamill knew about the reports and was obligated to turn them over to the defendant prior to trial. The court therefore granted the defendant a new trial. The Commonwealth appealed.

The Supreme Court’s Opinion

The Supreme Court affirmed. First, the Court addressed the mental health reports. It recognized that in Brady, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. The Supreme Court subsequently held that the duty to disclose such evidence is applicable even if there has been no request by the accused, and that the duty may encompass impeachment evidence as well as directly exculpatory evidence. Furthermore, the prosecution’s Brady obligation extends to exculpatory evidence in the files of police agencies of the same government bringing the prosecution.

A Brady violation occurs when:

1.     The evidence is favorable to the accused, either because it is exculpatory or because it could be used for impeachment purposes;

2.     the evidence was suppressed by the prosecution either willfully or inadvertently; and

3.     prejudice ensued, meaning the disclosure of the evidence could have resulted in a different outcome.

First, the Court addressed the Commonwealth’s argument that the defendant waived any claim of a Brady violation by not raising the claim sooner. The Supreme Court agreed with the PCRA court, finding the defendant raised the Brady violation as soon as possible as the defendant did not have the psychiatric reports until they were disclosed in November of 2021. The defendant filed a PCRA petition within one year as required.

The Court continued its analysis by accepting the factual determination that the Commonwealth had the reports in its possession in 1980 and they were located in the case file, yet the Commonwealth failed to disclose them to defendant’s counsel.

The Commonwealth also argued that it did not have to disclose the reports because the reports were not material. The Commonwealth argued there was no reasonable probability that had the reports been disclosed, the result of the defendant’s trial would have been different. The Commonwealth claimed the reports would never have made it to the jury, and even if they had, they did not establish that the defendant did not participate in the murder.

The Commonwealth further argued the reports could not have been used to impeach Bellman’s credibility because only mental health disabilities that impair a witness’s ability to observe, recall, or report events are admissible to impeach credibility.

The defendant responded: “Bellman’s status as a sociopath, including his compulsion to blame others for his actions, his attempts to deceive evaluators, and his inability to feel guilt, made his testimony against defendant unreliable as it impacted his ‘ability to perceive events and to truthfully relate the facts to which he testified at trial.” The defendant further asserted the reports show Bellman to be a sophisticated actor capable of committing the crime on his own and that the reports would have been extremely damaging to Bellman’s testimony.

The Pennsylvania Supreme Court agreed with the defendant’s analysis, determining the reports could have been used to impeach Bellman due to his status as a sociopath. The Court explained his compulsion to blame others for his actions, attempts to deceive the evaluators, and his inability to feel guilt made his testimony unreliable. Ultimately the Court determined the reports qualified as impeachment evidence that was favorable to the defendant. They were therefore Brady material that the Commonwealth was required to turn over so defense counsel could present Bellman’s mental health issues to the jury and the jury could evaluate whether those issues impacted his credibility.

Finally, the Court addressed the prejudice component of the Brady violation. The Court agreed with the PCRA court’s determination that Bellman was the Commonwealth’s key witness. It noted that without Bellman’s testimony, the evidence against the defendant was purely circumstantial. Bellman’s testimony directly connected the defendant to the murder and even alleged that it was the defendant’s idea to murder the victim. The Court further pointed out that Bellman’s credibility was crucial to the case because the defendant testified in his own defense, directly contradicting Bellman. The reports regarding Bellman’s mental health status would have called his credibility into question. The Court determined that if those reports were properly disclosed, there is a reasonable probability the result of the trial would have been different.

The Takeaway

This case does not really change the law in Pennsylvania, but it shows that the courts often take Brady violations seriously. The prosecution has a duty to produce exculpatory evidence. If it does not, then the defendant may obtain a new trial, sometimes even decades later. The Philadelphia District Attorney’s Office currently has an open file policy for old homicide cases and will allow a defense attorney to review the prosecutor’s file as well as the detectives’ homicide file. In many cases, there may be exculpatory evidence which was never disclosed to the defense. If the evidence is compelling enough, it may be the basis for filing a new PCRA and getting back into court. This case is an example of that type of evidence.

Facing criminal charges or appealing a criminal case? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

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, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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.

PA Superior Court: Trial Court Cannot Make Probation Worse Without Violation or Threat to Public Safety

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Dell, vacating the new conditions of probation imposed on the defendant by the trial court and remanding for further proceedings. In Dell, the trial court made the defendant’s probation worse by adding more restrictive conditions despite the fact that the defendant had neither violated the probation nor done anything to show that he presented a threat to public safety.

The Facts of Dell

Dell was convicted of the sexual abuse of children (usually a child pornography related offense). He received a sentence of 5 - 10 years’ incarceration followed by state supervised probation. The trial court did not attach specific conditions to his probation. Once the probation began, the Parole Board therefore petitioned the trial court to add its standard conditions of probation, allow them to modify conditions going forward, and allow for the use of GPS monitoring when appropriate. The parole board did not allege any violation of the probation or that Dell posed a risk to public safety. The trial court granted the request anyway. The defendant appealed.

The Superior Court Appeal

On appeal, the defendant argued that court erred by entering an order modifying his probation to make it worse by including the three requested conditions without finding he violated a specific condition of his probation or presented a threat to public safety pursuant to 42 Pa.C.S. § 9771. The Superior Court agreed and vacated the order adding the new conditions.

After the thirty-day modification period provided by 42 Pa. C.S.A. § 5505 has passed, as there is no dispute it did here, a trial court may only modify a probationer’s terms of probation pursuant to Section 9771, which provides in relevant part:

(a) General Rule.-- The court has inherent power to at any time terminate continued supervision, lessen the conditions upon which an order of probation has been imposed or increase the conditions under which an order of probation has been imposed upon a finding that a person presents an identifiable threat to public safety.

(b) Revocation.-- The court may increase the conditions … of probation upon proof of the violation of specified conditions of the probation.

Thus, the judge may only make the probation worse within thirty days following sentencing as a Court may always reconsider during that period or if the defendant violates probation or poses a risk to public safety. The parole board did not allege that the defendant had done anything to violate his probation or that he posed some sort of new risk to public safety, so the Superior Court ruled that the trial court erred in making the probation more onerous. Accordingly, the court vacated the order adding new conditions.

The Takeaway

This is an important case - the statute clearly provides that trial judge’s cannot arbitrarily make the conditions of probation more difficult to meet, and here, the Superior Court enforced that rule. These types of issues come up a lot with probation because judges generally have so much discretion in how to handle probationers. But at the same time, probation is governed by a number of statutes, and errors made by probation or the trial court in adding conditions, selecting conditions, or proceeding on potential violations can provide a complete defense to an alleged violation of probation or the imposition of a probationary sentence at all. It is important to look carefully at the sentencing order when charged with a violation of probation and to object to any attempt by law enforcement to modify probation illegally to make it worse.

Facing criminal charges or appealing a criminal case? We can help.

Philadelphia Criminal Lawyer Zak T. Goldstein, Esquire

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, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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.