Philadelphia Criminal Defense Blog

Zak Goldstein 10/19/24 Zak Goldstein 10/19/24

PA Superior Court: New Claim of Ineffective Assistance of PCRA Counsel Must Be Raised Before Superior Court Rules on PCRA Appeal

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Superior Court has decided the case of Commonwealth v. Walter. In Walter, the Pennsylvania Superior Court addressed the issue of whether a PCRA petitioner could raise claims of ineffective assistance of PCRA appellate counsel after the denial of post-conviction relief had been affirmed. The court held that claims of PCRA appellate counsel’s ineffectiveness must be raised before the Superior Court panel rules on the merits of a PCRA appeal, not afterward. Specifically, the petitioner/appellant must raise any concerns after PCRA counsel files a brief but before the appellate court renders its decision.

Once the court has reached its decision, the petitioner may not raise new claims in an application for reargument or reconsideration. The court reasoned that once the appellant’s lawyer files the brief, the appellant will have the opportunity to see if any claims were omitted or not argued adequately. If the appellant believes they were, then the appellant could file something at that point. But once the Superior Court reaches its decision, the appellant may not then try to add claims. It may, however, still be possible to raise claims in federal court if the PCRA appeal is denied.

This case reinforces the principle that a petitioner cannot raise such claims for the first time in a petition for reconsideration or reargument after the appellate decision is made. Moreover, the court declined a request for a remand to hold a Grazier hearing, as the request came too late in the appellate process and would serve no legitimate purpose. The petitioner is not entitled to new counsel after both the PCRA court and the Superior Court have found no merit in the claims of ineffectiveness.

The issue in this case arises from the Supreme Court’s decision in Commonwealth v. Bradley. There, the Pennsylvania Supreme Court held that a PCRA petitioner could raise new claims of ineffective assistance of PCRA counsel for the first time on appeal to the Superior Court. Prior to that, the PCRA petitioner would not be able to raise claims that PCRA counsel provided the ineffective assistance of counsel once the case reached the appellate stage. Instead, the PCRA petitioner would have to try to raise the claims during the 21 day window provided after a court issues a Rule 907 notice of intent to dismiss.

For PCRA practitioners and defendants, this case highlights the importance of raising any claims of PCRA counsel’s or PCRA appellate counsel’s ineffectiveness as soon as possible. Failing to do so before the appellate decision will preclude the petitioner from revisiting those claims in subsequent petitions, meaning that if you want to do long, you will not be able to able to raise those claims. However, if you believe that your PCRA attorney or PCRA appellate attorney provided the ineffective assistance of counsel, it may be possible to retain new counsel and raise new claims or seek remand to the Court of Common Pleas to raise the claims if you do it quickly enough.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Philadelphia Criminal Defense Attorney 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 10/3/24 Zak Goldstein 10/3/24

PA Supreme Court: Sentencing Court May Not Consider Arrests That Did Not Result in Conviction

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Berry, overturning a long line of Superior Court precedent and holding that a sentencing court may not consider a defendant’s bare record of arrests at sentencing without any evidence of the underlying criminal conduct. Previously, a sentencing court could consider the defendant’s arrest record even where the arrests did not result in convictions so long as the sentencing court recognized the difference between an arrest and a conviction. The Supreme Court has now rejected that proposition and conclusively ruled that mere arrests are meaningless without a conviction or real proof of the underlying criminal conduct behind the arrest.

The Facts of Berry

In Berry, the defendant was convicted of the sexual abuse of two young family members. Specifically, he was found guilty of sexually assaulting his intellectually disabled younger brother, J.B., on two occasions, coercing him into non-consensual sexual acts, and coercing his seven-year-old great-nephew, J.J., into sexual contact. The trial court sentenced the defendant to an aggregate term of seven-and-a-half to fifteen years, which represented an upward departure from the range recommended by the Pennsylvania Sentencing Guidelines.

The Issue on Appeal

The key issue at sentencing was the trial court's consideration of the defendant’s prior arrest record. He had no prior convictions or juvenile adjudications, but he had been arrested several times. The trial judge explicitly considered these arrests, referring to them as “previous other contacts” and suggesting that they negated the defendant’s prior record score of zero. This led at least in part to a significant increase in the length of the defendant’s sentence above the guideline range.

The defendant challenged this above-guideline sentence, arguing that the sentencing court improperly relied on unproven arrests as an aggravating factor. He asserted the consideration of these arrests violated both Pennsylvania law and his due process rights under the Fourteenth Amendment to the United States Constitution.

The Supreme Court’s Ruling

The Pennsylvania Supreme Court ruled that considering a defendant’s arrest record violates Pennsylvania law because arrests, without proof of a conviction or that the defendant committed underlying criminal conduct, are completely irrelevant and do not give the sentencing judge any reliable information as to whether the defendant actually committed a crime.

The Supreme Court recognized a number of key points:

First, the Court reiterated that an arrest, without a resulting conviction, does not equate to a finding of guilt. Arrests occur under circumstances that do not necessarily reflect criminal conduct, and they can happen to both the innocent and the guilty. Consequently, they are not a reliable indicator of a defendant's character or propensity for future crimes.

Second, under Pennsylvania law, the Sentencing Guidelines do not permit the use of arrest records in calculating a defendant's prior record score or as an independent factor in determining an appropriate sentence. Prior record scores must be based on actual convictions or adjudications, not on mere arrests.

Third, the Court noted that prior decisions from both Pennsylvania and federal appellate courts such as the Third Circuit Court of Appeals have consistently held that arrest records are not admissible as evidence in various phases of criminal proceedings because they are not probative. The Court explicitly overruled a series of Pennsylvania Superior Court cases that had allowed the use of prior arrests in sentencing even where the judge did not equate them with convictions.

Finally, the Court highlighted concerns about the potential racial and socioeconomic biases inherent in arrest records. Studies show that arrests may often reflect disparities in police practices rather than actual criminal behavior, which further undercuts their reliability as a sentencing factor.

The Pennsylvania Supreme Court therefore held that the sentencing court committed an error of law in considering the defendant’s arrest record as an aggravating factor. This reliance on irrelevant and unreliable information improperly influenced the sentence; the sentencing judge specifically said so. Therefore, the Court reversed the Superior Court's decision and remanded the case for resentencing. It ordered that the sentencing judge not consider arrests at the re-sentencing without real proof of the underlying conduct.

Facing criminal charges or appealing a criminal case in Pennsylvania?

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

Zak Goldstein 9/28/24 Zak Goldstein 9/28/24

PA Supreme Court Finds No Right to Bail in First Degree Murder Cases

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Yard, finding that a defendant does not have the right to bail in a first-degree murder case no matter how weak the case.

The Facts of Yard

In Yard, the defendant was charged with first-degree murder after the August 2021 death of his infant son. The child suffered fatal blunt-force trauma while under the defendant’s care. Adding to the suspicion, the child also had broken ribs from weeks prior to his death. In April 2022, Yard was formally charged with multiple offenses, including first-degree murder, aggravated assault, and endangering the welfare of children. A Magisterial District Judge conducted a preliminary arraignment and held Yard in jail without bail pending trial.

Yard filed a motion for bail to be set. He argued that under the Supreme Court’s prior case of Commonwealth v. Talley, he was entitled to bail even though he was charged with first-degree murder. In Talley, the Supreme Court held that for bail to be denied based on dangerousness, the Commonwealth must essentially prove that it has a strong case. Yard argued that the Commonwealth’s case was not strong. He conceded that there was enough evidence for a lesser charge, such as involuntary manslaughter, but argued that the evidence did not support the specific intent necessary for a first-degree murder charge, which carries a potential life sentence.

During a bail hearing in May 2022, the Commonwealth presented evidence, including an autopsy report and the testimony of two forensic pathologists, supporting their case against Yard. The trial court agreed with Yard and set bail at $200,000 with non-monetary conditions. The Commonwealth moved for a stay and appealed. The Superior Court granted the stay and asked the trial court to explain why it granted bail.

In response, the trial court admitted that its decision relied on stipulated facts and not live testimony. Talley generally requires the Commonwealth to present some real evidence at the bail hearing in order to have a defendant held without bail, so the trial court held a new bail hearing. Yard also moved for nominal bail because he had been held for six months prior to trial in violation of Pa.R.Crim.P. 600(b). The trial court granted his motion and set bail at $1.

The Impact of Talley

In Commonwealth v. Talley, the Pennsylvania Supreme Court emphasized that defendants generally should not be held without bail based on potential dangerousness without real evidence. The Court recognized three specific exceptions to the right to bail:

Capital Offenses - When the accused is charged with an offense for which the death penalty is a potential sentence, the accused is not entitled to bail.
Life Imprisonment Offenses - When the accused is charged with an offense punishable by life imprisonment, the accused is not entitled to bail.
Dangerousness Exception - When no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person or the community, the defendant is not entitled ot bail.

The crux of Talley was the interpretation of the "proof is evident or presumption great" standard, which required an evidentiary threshold somewhere between probable cause and proof beyond a reasonable doubt. The Court concluded that this standard applied specifically to the dangerousness exception, placing a significant burden on the Commonwealth to justify bail denial by showing that it was substantially more likely than not that the accused posed an imminent threat and that no conditions of release could mitigate that threat.

The Talley decision emphasized that bail courts must engage in both a qualitative and quantitative assessment of the evidence to evaluate whether an individual’s release would endanger public safety. Importantly, the Court highlighted that the burden of both production and persuasion fall on the Commonwealth and that the Commonwealth may not simply rely on hearsay and assert that the case is serious and the defendant is dangerous. Instead, before holding someone without bail, a trial court must hold a real hearing and receive actual evidence of dangerousness and on how strong the Commonwealth’s case is.

The Issue in Yard

In Yard, the issue was whether Talley’s requirement that the Commonwealth prove dangerousness and introduce real evidence at a bail hearing also applies in a first-degree murder case given that a conviction for first-degree murder requires at least a sentence of life without parole. Yard argued that Talley applied, while the Commonwealth argued that it did not.

The Pennsylvania Supreme Court rejected the argument. It found that the "proof is evident or presumption great" standard only applies to the dangerousness exception and not to cases involving capital offenses or offenses carrying a maximum sentence of life imprisonment. This means that for offenses like first-degree murder, which are punishable by life imprisonment, bail can be categorically denied without the need for the extensive evidentiary showing that would be required when the Commonwealth argues for the dangerousness exception. Accordingly, although Talley seemed to suggest that bail may be available even in first-degree murder cases, the state Supreme Court has now held that defendants charged with first-degree murder may not be released on bail.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Criminal Defense Attorney Zak T. Goldstein, Esquire

Zak Goldstein 9/11/24 Zak Goldstein 9/11/24

PA Superior Court: Warrantless Search of Car Requires Suppression of Gun in Illegal Firearm Possession Case

Commonwealth v. Camacho

The Pennsylvania Superior Court recently decided the case of Commonwealth v. Camacho, reversing the trial court’s order denying the defendant's motion to suppress an illegal gun which was found in his car during a warrantless search of the car. The case illustrates the strict requirements police must follow in order to conduct a warrantless search of a car in Pennsylvania following the Supreme Court’s decision in Commonwealth v. Alexander.

The Facts of Camacho

On October 9, 2020, Pennsylvania State Police Troopers pulled over the defendant, Camacho, after observing him driving erratically in nearby Bucks County. Camacho pulled over on command. After the police stopped the car and approached it, the troopers noticed the smell of alcohol and marijuana. The defendant admitted he did not have a driver’s license. The troopers conducted a frisk of the defendant and found marijuana. The troopers also noticed an empty gun holster strapped to the defendant’s ankle. Naturally, they asked Camacho if he had a gun on him. He denied it. Despite Camacho's denial of having a firearm, the officers forcibly detained him after he briefly resisted. They forced him to the ground and handcuffed him.

With Camacho handcuffed and secured, the officers searched his vehicle without a warrant and found a loaded firearm under the driver's seat. The police formally arrested the defendant, and prosecutors charged him with:

Persons Not to Possess Firearms (VUFA § 6105)
Firearms Not to Be Carried Without a License (VUFA § 6106)
Resisting Arrest or Other Law Enforcement
Simple Assault
Recklessly Endangering Another Person
Possession of a Small Amount of Marijuana for Personal Use
Use or Possession of Drug Paraphernalia
Various Traffic Offenses

The Suppression Hearing and Trial

Prior to trial, the defendant moved to suppress the firearm, arguing that the warrantless search of his car violated his rights under the Pennsylvania Constitution. Federal law does not require the police to get a search warrant prior to searching a car, but the Pennsylvania Supreme Court has held that law enforcement officers must obtain a search warrant prior to searching a car unless an exception applies. In this case, the defendant argued that there were no “exigent circumstances” to justify the search because he and his passenger were restrained and in handcuffs at the time of the search.

The trial court denied the motion, agreeing with the Commonwealth that the presence of the empty holster and Camacho's earlier resistance justified the search. Camacho was convicted and sentenced to 4½ to 10 years in prison followed by a period of probation.

Superior Court Appeal

The defendant appealed to the Pennsylvania Superior Court. On appeal, Camacho argued that the police did not have any exigent circumstances to justify the warrantless search of his car. The Pennsylvania Superior Court agreed and reversed the denial of the motion to suppress.

The Superior Court emphasized that under Pennsylvania law, a warrantless search of a vehicle is only permissible when both probable cause and exigent circumstances exist. In this case, while the officers had probable cause to suspect criminal activity, the Court found that the Commonwealth failed to show exigent circumstances to justify the failure to get a warrant.

The Superior Court's Reasoning:

At the time of the search, Camacho was handcuffed, lying on the ground, and surrounded by multiple officers.
His passenger, Ms. Clark, was also handcuffed and secured in the police vehicle.
The car was parked on the side of a wide shoulder, away from traffic, and posed no immediate threat to the public or officers.
The Court determined that, with both Camacho and his passenger fully restrained, there was no risk that either one of them could access the vehicle or destroy evidence.
Additionally, the Court noted that there were at least six officers present at the scene, and they had discussed towing the vehicle. This indicated that they had sufficient time and personnel to secure the car and obtain a warrant.

Based on these factors, the Superior Court found that the situation no longer posed an immediate danger to officer safety or a threat of evidence destruction, meaning there were no exigent circumstances justifying a warrantless search. As a result, the Court reversed the trial court’s ruling, vacated Camacho’s conviction, and remanded the case for further proceedings. The Commonwealth will likely be unable to proceed with the case on remand.

The Takeaway

The Camacho case highlights the importance of challenging unlawful searches and seizures when the police search a car without a warrant. Even when the police believe they have probable cause, they must still obtain a search warrant or demonstrate that exigent circumstances justify an exception. This decision reinforces that without a valid justification, evidence obtained through warrantless searches should be suppressed.

Facing criminal charges or appealing a criminal case in Pennsylvania?

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