Philadelphia Criminal Defense Blog

Zak Goldstein 5/4/24 Zak Goldstein 5/4/24

PA Superior Court Clarifies Procedures for Challenging Time Credit Calculations

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

The Superior Court has decided the case of Commonwealth v. Wheeler, holding that the trial court properly denied Wheeler’s motion for time credit. The case did not really change any of the rules around challenging a time credit calculation, but it provides a helpful explanation on the proper motions and forums in which time credit challenges should be brought.

The Facts of Wheeler

Wheeler was convicted of multiple drug-related offenses, including conspiracy to possess with intent to deliver (“PWID”) and criminal use of a communication facility (“CUCF”). He received concurrent state sentences on three different docket numbers. The trial court ordered that he receive credit of time served but did not specify how much credit he should receive on each case. The Department of Corrections put all of his time credit on one docket and found that he had no time credit for the other two, so he filed a motion in the trial court asking the trial judge to give him time credit on all of the cases. The trial court denied the motion.

The Superior Court Appeal

Wheeler appealed to the Pennsylvania Superior Court from the order denying his pro se motion to modify the credit for time served. He argued that there was an error in how the Department of Corrections (DOC) calculated his credited time. The Superior Court, however, disagreed. It denied the appeal, holding that the trial court properly awarded credit for time served at the time of sentencing, and that Wheeler’s challenge pertained to the DOC's application of this credit, not to the legality of the sentence itself. Accordingly, the issue did not fall under the PCRA or the trial court’s jurisdiction.

The Superior Court explained that there are three types of time credit issues:

1) The trial judge’s order is correct, but the Department of Corrections has miscalculated the time credit. In this situation, an inmate should first challenge the time credit calculation through internal procedures and if that is unsuccessful, file a lawsuit against the DOC in the Commonwealth Court.

2) If the sentence is ambiguous or unclear, then the petitioner should file a motion for habeas corpus in the trial court. This type of motion does not fall under the Post-Conviction Relief Act, and so a petitioner may be able to file this type of motion even if the deadlines have expired or the petitioner has already filed a prior PCRA petition which was denied.

3) The sentence or the time credit order in the judgment of sentence is illegal. In this situation, there would be a due process violation, and the petitioner should file a PCRA petition within one year of the judgment of sentence becoming final. If the petitioner fails to file within a year or has previously litigated a PCRA petition, the petitioner may not be eligible for relief.

In this case, the Superior Court recognized that the trial court had properly ordered that the defendant receive credit for time served. The defendant’s complaint was really with the DOC’s calculation of that time credit, so the defendant should have filed suit in Commonwealth Court rather than filing a motion in the trial court. Therefore, the Superior Court affirmed. Wheeler may still be able to file in Commonwealth Court, although filing in Commonwealth Court is generally more complicated than submitting a motion in the Court of Common Pleas.

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

PA Superior Court: Defendant Making Hand into Shape of Gun and Pretending to Shoot Witness Is (Obviously) Direct Criminal Contempt

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Williams, holding that the Philadelphia Court of Common Pleas properly found the defendant guilty of direct criminal contempt for making his hand into the shape of a gun and pretending to shoot the witness against him during his preliminary hearing.

The Facts of Williams

The defendant was charged with burglary and related charges. When he was brought into courtroom for his preliminary hearing, he made his hand into the shape of a gun and made a shooting motion at the witness against him. The witness did not actually see it, but unfortunately for Williams, the judge did. The judge finished the hearing, held the charges against Williams for court, and then moved directly into a trial on a summary charge of direct criminal contempt for obstructing the proceedings.

The defendant agreed that his hand had been in that position, but he claimed that he had some sort of twitching disorder which caused it to happen involuntarily. He admitted he had not warned anyone that this could happen when he was brought into the courtroom, but he claimed that he did not realize he was going into a courtroom. Unsurprisingly, the trial court promptly rejected this testimony, found him guilty, and sentenced him to 30 – 60 days’ incarceration. The defendant had an extensive criminal record, which did not help his case or his claim that he did not know he was headed into the courtroom. The defendant appealed.

Direct criminal contempt includes misconduct in the court's presence that is committed with the intent to obstruct proceedings. The conduct may qualify as contemptuous even if it does not directly disrupt the court’s operation but only threatens the dignity and authority of the court. Here, the conduct arguably did both.

The Superior Court’s Ruling

The Superior Court quickly affirmed. It found substantial evidence supported the trial judge’s ruling and that the trial judge was best suited to determine whether or not the defendant’s somewhat silly explanation was credible. The trial judge had the right to reject that explanation, and it was not the Superior Court’s job to reweigh the evidence.

The Superior Court opined that misconduct need not cause a visible interruption to the proceedings or a delay in the proceedings in order to constitute an obstruction of justice. Of course, the mere act of threatening a witness may impede the fairness and integrity of the proceedings, and the trial judge properly rejected the defendant’s explanation. The Superior Court therefore upheld the conviction.

The Takeaway

This case is not particularly surprising. Threatening witnesses in court does not go over well with the judge and the DA, and it usually does not make the case better. It can lead to increases in bail, relatively minor contempt charges, jury instructions that the jury may hold the actions against the defendant in deciding guilt, and even serious felony witness intimidation charges. The system does not always seem fair to criminal defendants and other witnesses, and it often may not be. But threatening witnesses is usually not going to improve the situation, and the appellate courts are not likely to be sympathetic in these cases.

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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

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