Philadelphia Criminal Defense Blog

Zak Goldstein 3/30/24 Zak Goldstein 3/30/24

PA Superior Court Finds Felon in Possession Statute Constitutional

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. McIntyre, holding that VUFA § 6105’s prohibition on possessing a firearm after being convicted of certain prior offenses is constitutional and does not violate the Second Amendment. Despite the fact that numerous federal courts have reached the opposite conclusion, the Superior Court concluded that individuals with prior convictions for violent felonies are never among the people protected by the Second Amendment.

The Facts of McIntyre

The defendant was convicted of violating 18 Pa.C.S. § 6105, which makes it a felony to possess a firearm following a conviction for certain offenses. A violation of § 6105 is typically a first- or second-degree felony, and a person may also violate the statue if they possess a gun while having prior drug convictions, mental health commitments, or a protection from abuse order against them. In this case, the defendant had prior aggravated assault, robbery, and burglary convictions, among others.

The facts of the case are not particularly relevant for the constitutional analysis, but the defendant was charged with taking a gun from his uncle's house, carrying it to a nearby wooded area, and burying it. The Commonwealth charged him with violating the felon in possession statute after he led family members to the firearm's location. At trial, he claimed a justification defense in that he had found the gun and intended to get it out of the house and call the police, but the jury rejected that defense and found him guilty as he had not actually called the police despite having the opportunity to do so. Instead, he had buried the gun in the woods.

The Superior Court Appeal

The defendant appealed, arguing that § 6105 is unconstitutional following the United States Supreme Court's decision in New York State Rifle & Pistol Association Inc. v. Bruen and the Third Circuit Court of Appeals’s decision in Range v. Attorney General. The Superior Court rejected his argument. It concluded that Bruen focused on the rights of "law-abiding" citizens to carry firearms for self-defense and did not extend Second Amendment protections to individuals convicted of serious crimes like robbery, aggravated assault, and burglary. The Court emphasized Bruen's reliance on District of Columbia v. Heller, which acknowledged the government's ability to restrict firearm possession by felons as presumptively lawful.

In general, the Second Amendment protects the rights of “the people” to possess a firearm, thereby requiring an analysis of who is included within the term “the people.” The Third Circuit concluded in Range that even individuals with prior convictions may be included within “the people,” but the Superior Court found that only law-abiding individuals count as “the people.” As the defendant had numerous violent convictions, he is not among “the people” to which Second Amendment rights extend. Therefore, the Court did not even reach the second part of the Bruen test which is whether the gun restrictions had a historical analogue at time of the adoption of the Second Amendment. The Court simply rejected his argument, finding that the Second Amendment does not apply to anyone with prior violent convictions. The Court therefore denied the appeal.

The Takeaway

The Court’s opinion leaves quite a few important questions open. First, this case dealt with a defendant who had a particularly bad record; he had convictions for aggravated assault, robbery, burglary, and corrupt organizations. Although the convictions were relatively old, those crimes are about as serious as crimes can get, so the question of whether someone with less serious convictions can be stripped of their Second Amendment rights following Bruen remains open. Second, the opinion’s basic conclusion that the defendant is not part of “the people” to which Second Amendment rights extend seemingly conflicts with federal cases like Range v. Attorney General and Bruen itself. Those cases found that virtually everyone falls under the term “the people,” and the focus is instead more on whether the restriction in question would have been accepted by the founders.

This case makes it clear that defendants with serious, violent prior convictions can still be prosecuted under § 6105 in state court for now, but it is definitely not the final word on whether felon-in-possession restrictions are constitutional and what the limits on those restrictions may be. This case and others seem to be headed for the Pennsylvania and United States Supreme Courts. For now, criminal defendants with less serious criminal histories may still have success in filing motions to dismiss on Second Amendment grounds, but it is important to remember that you do not want to be the test case in the event that the courts uphold the restrictions in § 6105 and the corresponding federal statute, § 922(g). The sentences for carrying a gun illegally can be severe.

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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 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.

Zak Goldstein 3/22/24 Zak Goldstein 3/22/24

Third Circuit Court of Appeals: Breach of Plea Bargain by Prosecution Requires New Sentencing and Assignment to New Judge

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Third Circuit Court of Appeals has decided the case of United States v. Danny Cruz, holding that the breach of a specific agreement in a plea bargain by the government requires a new sentencing hearing in front of a different judge. In Cruz, the government promised to advocate that Cruz receive a specific offense level at sentencing. It then breached that promise by agreeing with the probation department that a four level enhancement for bribing a public official in a sensitive position should apply as that enhancement raised the total offense level above the agreed upon number. The district court applied the sentencing enhancement, and the defendant appealed.

The Facts of Cruz

In Cruz, the defendant pleaded guilty to a conspiracy to smuggle cell phones into a prison by bribing a guard in violation of the Travel Act. The plea deal entered into by both the defense and the government stipulate that both sides would recommend a total offense level of 14 for sentencing purposes. This offense level was calculated based on the base offense level for the charge and a two-level increase for the fact that Cruz made multiple bribes. The probation officer prepared a pre-sentence report, however, and recommended that the district court also apply a four-level increase for bribing a public official in a sensitive position. That enhancement would increase the total offense level to 18 instead of 14. Cruz objected, arguing that the enhancement violated the plea deal.

Instead of agreeing with Cruz or remaining neutral, the government initially supported the enhancement. Cruz argued that this was a breach of the plea agreement. The prosecution later withdrew its specific endorsement of the enhancement and stated that it took no position on the application of the enhancement. The district court, however, applied it, leading to a total offense level of 15 (after the defendant received three points off for early acceptance of responsibility) and sentenced Cruz to 51 months’ incarceration. Cruz appealed and argued that the government breached the plea agreement by endorsing the enhancement and then taking no position on it instead of advocating for the original agreed upon 14 point offense level.

The Third Circuit’s Ruling

The United States Court of Appeals for the Third Circuit found that the prosecution did in fact breach the plea agreement by supporting the four-level enhancement. The court recognized that plea bargains are contracts like any other that must be strictly adhered to and that the prosecution's actions, even in later attempting to remain neutral, did not cure the breach because the prosecution initially agreed with the proposed application of the enhancement and then did not advocate against it. The appeals court emphasized that prosecutors must keep their promises and make amends if they fail to do so. The court therefore concluded that Cruz did not receive the benefit of the bargain and that the breach was not cured by the prosecution's subsequent neutrality. Had the prosecution tried harder to cure the breach by arguing more forcefully that Cruz should be sentenced with the agreed upon offense level, the appellate court may have found that that the prosecution did not breach the agreement. But simply remaining neutral after initially advocating for the application of the enhancement after specifically agreeing not to do so did not cure the breach.

Accordingly, the Third Circuit vacated Cruz’s sentence and remanded the case to a different judge. On remand, the new judge will have to decide whether to enforce the plea agreement as originally designed or allow Cruz to withdraw the plea should he still wish to do so. Although the judge did not do anything improper, the Third Circuit reasoned that the judge may have a hard time ignoring the government’s initial recommendation that the trial court in fact apply the enhancement. Therefore, Cruz should be sentenced by a different judge.

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

Criminal Defense Lawyer Zak T. Goldstein, Esquire

Zak Goldstein 3/21/24 Zak Goldstein 3/21/24

PA Superior Court: Police Do Not Need a Search Warrant to Get Parolee’s GPS Monitoring Data

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Rosendary, holding that the police do not need a search warrant to get a parolee’s GPS monitoring data from parole agents so long as the parolee was already on GPS monitoring for reasons unrelated to the investigation of the new crime. In this case, the defendant’s GPS monitor put him at the scene of the crime, but the police had obtained that data without getting a search warrant for it. The Superior Court, however, rejected Rosendary’s arguments that the evidence should be suppressed, finding that police do not need a search warrant to get this type of data from parole agents and that the police did not use the parole agents as “stalking horses” for the police investigation.

The Facts of Rosendary

The defendant was on parole for a robbery conviction. As part of his parole, he was eventually placed on GPS monitoring. He signed a consent form agreeing to the monitoring. He did not have much of a choice, though, as the alternative to GPS monitoring would have been incarceration. The police subsequently arrested him and charged him with another robbery. At his trial, the Commonwealth introduced evidence from his parole GPS ankle monitor which incriminated him by putting him at the crime scene.

Prior to trial, the defendant moved to suppress the GPS data. He argued that the police should have obtained a search warrant in order to get the GPS information from his parole agent and that alternatively, the parole agent had worked as a “stalking horse” for the police in order to evade the warrant requirement. The trial court denied the motion to suppress, and the defendant appealed.

The Superior Court’s Ruling

The Pennsylvania Superior Court denied the appeal. First, it rejected the defendant’s argument that the police violated the Fourth Amendment’s warrant requirement by getting the GPS data without a search warrant. Although the police ordinarily need a search warrant in order to get GPS location data for a suspect, the Court held that they did not need to get a search warrant in this case. Specifically, the defendant had a diminished expectation of privacy in his GPS data because he was on parole, he had agreed to wear the monitor in lieu of incarceration, and he knew that the data would be shared with his parole agent. Thus, he had no reasonable expectation that the data would be kept private, and he had agreed to wear the ankle monitor. Therefore, law enforcement did not need a search warrant to get the data. Further, the parole agent had not shared unlimited data with the police. Instead, the parole agent had shared only the location data for where the defendant was at the time of his suspected involvement in the robbery. The Court found that this was not a significant intrusion into his privacy because the data shared was limited in time and scope.

The Court also rejected the defendant’s stalking horse challenge. Under the stalking horse doctrine, the police may not take advantage of a suspect’s status as a probationer or parolee to avoid the warrant requirement. In other words, the police may not ask probation or parole to conduct a warrantless search for the purpose of finding evidence related to a police investigation. Instead, the police should get a warrant. For example, if a defendant could show that the police had asked a probation officer to conduct a search of the defendant’s house to look for evidence because the police suspected the defendant of a crime, then that search could potentially violate the stalking horse doctrine and require suppression of the evidence. Here, however, the defendant introduced no evidence that the police had directed the search or directed parole to put the defendant on GPS monitoring. He was already on GPS monitoring, and the police simply requested the data from his parole agent. As he did not have a reasonable expectation of privacy in the data, the parole agent was free to share this information with the police.

The Takeaway

This result is not particularly surprising. It is usually not possible to suppress evidence that was shared with the public as suppression requires a reasonable expectation of privacy. A probationer or parolee who is subject to GPS monitoring has no real reason to believe that the evidence would be kept private, so courts are generally not going to suppress it.

As a general rule, it’s best not to commit new crimes while wearing a probation or parole GPS tracking device. The evidence will likely be admissible in court, and the police will not be required to get a search warrant for the evidence. There is still the possibility of challenging the collection of this type of evidence should the defendant be able to show that probation or parole improperly conducted a search at the request of the police and that the police may not have otherwise had the authority to conduct such a search, but that type of violation is often difficult to prove.

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

Criminal Defense Lawyer Zak T. Goldstein, Esquire

Zak Goldstein 3/20/24 Zak Goldstein 3/20/24

PA Superior Court: Hearsay from Confidential Informant Admissible at Preliminary Hearing if Commonwealth Asserts CI Will Testify at Trial

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

JUNE 6, 2024 UPDATE: The validity of this case is questionable following the Supreme Court’s decision in Commonwealth v. Harris. There, the Pennsylvania Supreme Court ruled that the Commonwealth must introduce at least some non-hearsay evidence identifying the defendant as the perpetrator of an offense in order to meet its burden at a preliminary hearing. It is hard to see how the police department’s decision to use a confidential informant or a desire to protect the identity of a CI would allow the Commonwealth to distinguish the clear holding of Harris and rely entirely on the hearsay of a CI in order to meet its burden at a preliminary hearing.

The Pennsylvania Superior Court has decided the case of Commonwealth v. Sutton, holding that the Commonwealth may introduce hearsay evidence as to what a confidential informant (“CI”) told the police at the preliminary hearing so long as the Commonwealth certifies that the CI will be available to testify at trial. This case presents two major issues: 1) the Commonwealth almost never actually calls a CI to testify at trial, and there is no mechanism in place to ensure that the Commonwealth does not simply say the CI will be available to testify and then that they have changed their minds about that when the case gets to the trial level, and 2) the Pennsylvania Supreme Court has clearly held that hearsay may not be used to establish a prima facie case of the defendant’s guilt at the preliminary hearing. Nonetheless, the Superior Court dismissed these concerns and reversed the trial court’s order dismissing the case against the defendant.

The Facts of Sutton

The Commonwealth charged the defendant with two counts of possession with the intent to deliver. At the preliminary hearing, the Commonwealth called one witness, Detective Michael Lamana of the Bradford County Drug Taskforce. Detective Lamana testified that on two dates in February and March of 2022, he worked with a confidential informant to purchase drugs from someone inside of the defendant’s house. Specifically, he went to the house with a CI, searched the CI for drugs and money, and after finding nothing on the CI, gave the CI pre-recorded buy money. He then sent the CI into the house to buy drugs. He could not see inside the house, so he obviously had no way of seeing what occurred inside, if the defendant was even present at the time, or if someone else could have sold drugs to the CI. The CI then returned with methamphetmaine and no money, suggesting the CI had purchased drugs inside.

The problem with this evidence, however, is that it establishes only that the CI probably bought drugs at the defendant’s house; it does not establish that the defendant in fact sold the drugs. Accordingly, this evidence would be insufficient to hold the defendant for court at a preliminary hearing. Recognizing this fact, the magisterial district justice allowed the detective to testify that the CI told him that they had bought the drugs from the defendant. With this hearsay testimony in evidence, the district justice was able to hold the case for court and send it to the Court of Common Pleas.

The Motion to Quash

The defendant filed a motion to quash (also known as a petition for writ of habeas corpus outside of Philadelphia) and asked the Court of Common Pleas to dismiss the charges because the Commonwealth improperly relied entirely on hearsay in getting the case held for court. Ultimately, the evidence that the CI bought drugs from inside of the defendant’s house was not enough to identify the defendant as actually selling the drugs. Someone else could have been living there or selling drugs from that location. And the hearsay obviously should not have been admitted given that the Supreme Court held in McClelland and the Superior Court held in Harris that prima facie case may not be established solely through hearsay. The Court of Common Pleas followed this binding precedent and dismissed the charges.

The Appeal

The Commonwealth appealed the trial court's decision. On appeal, the prosecution argued that it had presented some non-hearsay evidence in the form of the detective’s actual observations, it had certified that the CI would be available to testify at trial, and the rules limiting the use of hearsay at a preliminary hearing only prevent the Commonwealth from getting a case held for court based solely on hearsay. They do not prevent the Commonwealth from using some hearsay to get the case held for court or require the Commonwealth to disclose the identity of a CI by putting the CI on the witness stand at such an early stage in the proceedings. Therefore, the Commonwealth essentially argued for an exception to the rule that hearsay alone may not be used to establish the identity of the perpetrator of a crime at the preliminary hearing.

Superior Court's Decision

The Superior Court reinstated the charges on appeal. A divided panel of the Superior Court agreed. One judge concurred only in the result, opining that the evidence that drugs have been sold to the CI from the defendant’s home on two occasions was enough to establish a prima facie case for preliminary hearing purposes even without the hearsay from the CI. The other two judges, however, ruled that the Commonwealth may properly introduce the hearsay statements of a confidential informant at a preliminary hearing without violating the decisions in McClelland and Harris so long as the Commonwealth agrees to make the CI available for trial.

The court emphasized that the preliminary hearing’s purpose is to determine whether sufficient evidence exists to proceed to trial, not to establish guilt beyond a reasonable doubt. It highlighted that the Commonwealth's use of the CI’s statements through Detective Lamana’s testimony, alongside direct evidence of the controlled buys, sufficed to establish a prima facie case for the charges to proceed to trial.

Moreover, the court addressed the qualified privilege to protect the CI's identity, noting that disclosure at the preliminary hearing stage was not mandated. The ruling underscored that the CI's identity and the details of their statements could be protected, provided that the CI would be available to testify at trial. In the court’s view, this would balance the interests of law enforcement in prosecuting drug crimes and the defendant's right to a fair defense. Therefore, the court reinstated the charges.

Conclusion and Implications

This case is a disaster for maintaining due process protections at the preliminary hearing level. Those protections were only recently re-established by the Supreme Court’s decision in Commonwealth v. McClelland. For years, the Superior Court had ruled that the Commonwealth need not present any non-hearsay evidence at a preliminary hearing at all. The Supreme Court eventually reversed that line of cases in McClelland, holding that the rule against hearsay does apply at the preliminary hearing with limited exceptions, and the Superior Court went even further in Harris by holding that even where the Commonwealth establishes that a crime occurred through non-hearsay evidence, it must introduce real evidence to prove the identity of the perpetrator of the crime. These protections are absolutely critical. The preliminary hearing happens early in the proceedings - generally within a few weeks or months of a defendant’s arrest. And in a serious case such as a shooting, homicide, or drug or gun case where a defendant is on probation or parole, the defendant is likely in custody and may remain in custody until the case is resolved. The final resolution of a case may not occur for years in some instances. Therefore, the right to a meaningful preliminary hearing is critical as it prevents people from being held for years based on cases that the Commonwealth will never be able to actually prove in court with real evidence.

This decision, however, completely eliminates those protections for any defendant who is charged with a drug or gun offense based on an investigation involving a confidential informant. The Supreme Court’s case law and the Superior Court’s other case law does not support such a broad holding, so hopefully the defendant will appeal further and ask the Superior Court for re-argument or the Supreme Court to grant allocatur. Finally, at least in Philadelphia, the Commonwealth never actually makes the CI available for trial. Indeed, the Commonwealth will typically withdraw charges if they lose a motion to reveal the identity of the confidential informant rather than actually allow the defense to call that person to testify. Therefore, the case may be of limited impact in many places. It nonetheless poses a huge risk of the exception swallowing the general rule and reverse significant progress that has occurred over the last few years in terms of making sure that the preliminary hearing is a meaningful hearing and opportunity to test the evidence so that an innocent or over-charged defendant does not remain in custody for years waiting for trial without any chance to challenge the evidence.