Philadelphia Criminal Defense Blog

Zak Goldstein 4/16/24 Zak Goldstein 4/16/24

PA Superior Court: Defendant’s Prior Illegal Anticipatory Probation Violation Does Not Provide Defense to Revocation of Illegally-Imposed Probation at New Violation Hearing

Criminal Defense Attorney Zak Goldstein — Criminal Defense Attorney Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Diaz, holding that the fact that the defendant was on probation pursuant to an illegal anticipatory probation violation does not protect him from being found in violation again even though the existing probation is actually illegal.

The Facts of Diaz

In Diaz, the defendant was sentenced repeatedly for drug offenses committed between 2004 and 2022. At one point, his probation was revoked before it began. This is called an anticipatory probation revocation. It occurs when a defendant receives a prison sentence followed by a probation tail and is still serving the prison or parole portion of the sentence at the time of a violation hearing, meaning the actual probation sentence has not yet begun. Until recently, the probation could be violated before it began. In the cases of Commonwealth. v. Simmons and Commonwealth v. Rosario, the appellate courts did away with this procedure and found that a defendant could not be found in violation of probation of a probation sentence which had not yet started. The trial court would instead be limited to finding the defendant in violation of parole and sentencing the defendant to backtime. The probation would then start as scheduled when the parole expired.

Diaz had been found in anticipatory violation and sentenced to new terms of prison and probation. This procedure was illegal, but at the time, the courts had not yet found it to violate the probation statute. Accordingly, Diaz did not challenge the new sentence as illegal. He then proceeded to violate the new illegal probation, and the trial court sentenced him to jail. The deadline for challenging the illegal sentence had expired, but Diaz argued that he could not be found in violation of a probation sentence which was illegal. The trial court disagreed and found him in violation. Diaz appealed.

The Superior Court

The Superior Court rejected Diaz’s arguments on appeal. It found that if Diaz disagreed with the legality of his probation sentence, he should have appealed or filed a PCRA petition within the relevant deadlines. He did not do so, so the sentence became final even if it was initially illegal. Once the sentence became final, he was then on probation, and the trial court could find him in violation of that probation. He could not retroactively attack the legality of the sentence to defend against the probation violation even though the sentence was clearly illegal under the recent case law.

The Takeaway

There is a lot of tension in the law as to when and how a defendant may challenge an obviously illegal sentence once the deadlines for appealing or filing a PCRA petition have expired. Clearly, a defendant can file a post-sentence motion within ten days, an appeal within thirty days, or a PCRA petition within a year, but once those deadlines have expired, the case law is inconsistent as to whether the defendant may still attack the legality of the sentence. There are cases which hold that a trial court may fix an illegal sentence at any time, and other cases which hold that any claim which could be raised in a PCRA petition cannot be raised later simply by calling it something else like a motion to correct illegal sentence. The courts go back and forth on this issue, and unfortunately for Diaz, they found that his claim should have been addressed at the time the illegal sentence was imposed rather than when he subsequently violated the probation. Given the conflicting case law, this decision is likely headed for further review.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Philadelphia Criminal Defense 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 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 successful direct appeal of a first-degree murder conviction and 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 4/13/24 Zak Goldstein 4/13/24

PA Superior Court: Defendant May Be Ordered to Remove Non-Prescription Glasses During Trial

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth. v. Ellis, holding that the trial court did not violate the defendant’s Fifth Amendment rights by ordering him to remove his non-prescription glasses during trial. The Court found that the trial court’s order did not require the defendant to testify or give evidence against himself. The Superior Court also found sufficient evidence to affirm the conviction for murder.

The Facts of Ellis

In Ellis, the defendant was charged with attempting to rob a gas station in York, Pennsylvania. Prosecutors alleged that he shot and killed the gas station attendant during the attempted robbery. The shooting was captured by the gas station’s surveillance cameras, but the footage was too blurry to clearly identify the defendant from his face. Two ex-girlfriends, however, testified that they recognized the person on the camera footage as the defendant based on his distinctive coat, sneakers, and build. He also got rid of the clothes and the murder weapon by throwing those items in the river, he shaved his facial hair, and he attempted to wear non-prescription glasses at trial. The jury could not reach a verdict at the first trial, so the trial resulted in a mistrial. Prosecutors retried the defendant, and he was convicted.

During the second trial, the defendant attempted to wear non-prescription glasses. The trial court ordered him to remove the glasses so the jurors could better see his face, and the defense objected. The defense argued that requiring him to remove the glasses was the same as requiring him to testify against himself or give evidence against himself in violation of the Fifth Amendment. The trial court overruled the objection and required him to remove his glasses. The jury ultimately convicted, and the defendant appealed.

The Superior Court’s Ruling

The Superior Court affirmed the conviction. First, with respect to the sufficiency of the evidence claim, the Court concluded that the combination of surveillance footage, witness testimony, and Ellis’s own actions in getting rid of his clothes and gun after the murder established guilt beyond a reasonable doubt. Second, with respect to the Fifth Amendment issue, the court found that the removal of the glasses did not constitute testimonial evidence and thus did not violate his rights. The Court reasoned that that physical or demonstrative evidence, such as appearance alterations, did not fall under the Fifth Amendment’s protection against self-incrimination. The defendant was not required to testify or say anything to incriminate himself; he was only required to show the jury his face without fake glasses on it. The Court found that this action was not protected by the Fifth Amendment.

The Takeaway

This case is not particularly controversial, but it does show the impact that getting rid of evidence or a defendant attempting to change their appearance can have at trial. Getting rid of clothing and a weapon made the defendant look particularly guilty, and insisting on wearing fake glasses likely did not help his case, either. In these types of cases, the Commonwealth can actually seek a jury instruction under which the trial judge will instruct the jury that the destruction of evidence or decision to change one’s appearance can be considered as evidence of guilt against the defendant. Further, the Fifth Amendment generally only protects a defendant from having to speak with the police or testify; it does not allow a defendant to shield their appearance from the view of the jurors.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire

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.

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.

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

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.