Philadelphia Criminal Defense Blog

Zak Goldstein 1/29/25 Zak Goldstein 1/29/25

PA Superior Court: Conditions Violated Must Actually Be Part of County Probation or Parole Sentence for Defendant to Be Found in Violation of Probation

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Baldassano, 2025 PA Super 26, holding that the trial court improperly found the defendant in violation of county parole conditions which were never part of the defendant’s sentence. The Superior Court therefore vacated the defendant’s incarceration sentence and released him.

The Facts of Baldassano

The defendant was convicted of terroristic threats, stalking, and harassment after years of allegedly harassing a former college acquaintance. The charges stemmed from a pattern of anonymous phone calls, social media impersonation, and threats against the complainant and her family. Following a jury trial, he was found guilty and sentenced to a term of thirty days to four years’ incarceration with immediate parole at his minimum sentence along with certain conditions.

The parole conditions required:

A drug and alcohol evaluation and compliance with any treatment recommendations.
Continued mental health treatment.
Two years of active supervision followed by two years of inactive supervision, during which the court specifically ordered that he was only required to avoid contact with the victim and was not required to comply with any other probation department rules and regulations.

Parole Violation Allegation and Revocation

While the defendant was serving the “inactive supervision” portion of the county parole, the Lebanon County Department of Probation sought to revoke his parole, alleging:

Positive drug tests and possession of controlled substances.
A new criminal arrest.

At the defendant’s Gagnon II hearing, the defense attorney moved to dismiss the probation violation, arguing that neither condition applied to the defendant given the terms of the inactive supervision. The trial court dismissed the drug-related violation but revoked the defendant’s parole based solely on the new criminal charge. The trial court recommitted the defendant to serve the balance of his original sentence with parole eligibility after eighteen months. The defendant appealed.

The Superior Court Appeal

On appeal, the Pennsylvania Superior Court reversed the trial court’s order and found that the trial court erred in revoking parole. The Superior Court concluded that per the specific terms of the trial court’s sentencing order, the defendant was simply not subject to any conditions other than the requirement that he not have contact with the complainant. The Court found:

By the explicit terms of the sentencing order, after two years, the defendant was not subject to the normal county probation department rules and regulations, which included the requirement not to commit new offenses.
While committing a new crime typically warrants parole revocation in almost every case, it must be based on an actual parole condition to which the defendant was subject. Here, his only enforceable condition in the last two years of the sentence was to avoid contact with the complainant.
Because the Commonwealth and probation department had only pursued revocation based on new charges (and not a violation of any of the three enumerated parole conditions that applied during his sentence), the trial court lacked legal grounds to revoke his parole even though new arrests are usually the basis for probation or parole revocation.

The Superior Court therefore vacated the order sentencing the defendant to prison and remanded for further proceedings.

The Takeaway

In many cases, it is common for defense counsel to concede a probation or parole violation and focus on obtaining a light sentence such as more probation or parole or a short period of incarceration. It is important, however, to actually read the judgment of sentence and sentencing transcript in order to make sure that any alleged conditions of supervision are actually part of the sentence. If the probation or parole department has moved to hold a defendant in violation of a condition that does not exist, then the defendant should not be found in violation.

In order for there to be a probation violation, the conditions which were allegedly violated must have been explicitly stated on the record at the time of sentencing. They cannot be expanded unilaterally by probation officers beyond what the sentencing judge ordered without notice and a hearing. Notably, this rule does not always apply - defendants on state parole and state supervised probation may have fewer protections than defendants on county probation or parole because certain state statutes and regulations allow the parole board to impose some conditions of supervision.

Even serious new charges cannot justify revocation if the probation or parole sentence specifically limits the conditions of probation or parole such that it does not require the probationer to avoid getting arrested. This is an unusual case because this type of probation or parole is rare, but it is still important for the defense attorney to carefully review the record when representing someone who has been charged with a violation of probation or parole.

Criminal Defense Attorney Zak T. Goldstein, Esquire

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Zak Goldstein 1/9/25 Zak Goldstein 1/9/25

PA Superior Court: Police Need a Good Reason for a K9 Sniff, and the Commonwealth Must Actually Prove Inevitable Discovery with Evidence

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the cases of Commonwealth v. Brinson and Commonwealth v. Flamer, holding that nervousness alone does not justify prolonging a traffic stop to bring a drug dog to the scene to have the dog smell the car for drugs. The Court also held that the mere fact that the police could have towed the car did not establish that the police would have inevitably discovered the contraband as the Commonwealth introduced no evidence or testimony that the police in fact would have towed the car and conducted an inventory search.

The Facts of the Case

A Philadelphia police officer conducted a traffic stop of a car after seeing the car fail to stop at a stop sign. Flamer was driving, and Brinson was in the passenger seat. During the stop, the officer felt that both men seemed nervous. Therefore, he called for a K9 unit. The dog alerted to the presence of narcotics, leading to a search of the car. Officers searched the car and discovered a firearm with an altered serial number and oxycodone pills.

The Commonwealth charged Brinson and Flamer with various offenses, including illegal possession of a firearm (VUFA) and controlled substances. Both defendants filed motions to suppress the evidence, arguing the stop was unlawfully prolonged without sufficient reasonable suspicion. The trial court granted the motion to suppress, finding that the police did not have reasonable suspicion to detain the defendants and extend the stop until a drug dog arrived. The court also found that the Commonwealth failed to show that the police would have inevitably discovered the contraband by towing the vehicle and conducting an inventory search. The prosecution appealed.

The Superior Court Appeal

The Superior Court affirmed. It agreed with the trial court on both issues, finding that the police did not have reasonable suspicion and that the Commonwealth failed to prove inevitable discovery with actual testimony or evidence. The Court addressed both issues:

Prolonged Traffic Stop:
- The Court held that the stop, which extended 10–15 minutes before the K-9 unit was summoned, exceeded its permissible scope. The officer lacked specific and articulable facts (reasonable suspicion) to justify extending the stop beyond its original purpose of addressing a traffic violation.
- Nervous behavior alone was insufficient to establish the necessary reasonable suspicion for detaining the defendants, extending the stop, and bringing a dog to the scene to conduct the search. The officer claimed he smelled marijuana, as well, but he did not smell the marijuana until later in the stop. Therefore, the officer’s detection of the marijuana odor occurred after the stop should have reasonably concluded, further undermining the justification for the K-9 search.
Inevitable Discovery Doctrine:
- The Commonwealth argued that the evidence would have been discovered during an inventory search following impoundment due to lack of insurance. However, the court found this exception inapplicable. The Commonwealth failed to establish that the police unequivocally would have towed the car and found the contraband. Instead, the Commonwealth showed only that the police could have towed the car, which was not enough. The inevitable discovery doctrine is very limited under Pennsylvania law and rarely operates other excuse the failure to comply with the warrant requirement. The police testimony established that towing decisions were discretionary, and the officer failed to establish or present a clear policy regarding inventory searches. The absence of a concrete policy establishing that the car would have in fact been towed defeated the inevitable discovery claim.

The court reiterated that police must demonstrate reasonable suspicion based on a totality of circumstances and that any extension of a traffic stop must align with the mission of the stop. This is a great decision for privacy rights in terms of limiting the inevitable discovery doctrine. It is not enough to show that the police could have eventually conducted a legal search - the Commonwealth has to show that an eventual legal search was a true inevitability, not merely that it could have happened even had the police not violated the defendant’s rights by conducting an illegal search.

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

Zak-Goldstein-Defense-Attorney — Goldstein Mehta LLC Criminal Defense Attorneys

Zak Goldstein 12/26/24 Zak Goldstein 12/26/24

Third Circuit: Obstruction Enhancement Must Be Supported by Actual Evidence at Sentencing

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

The United States Court of Appeals for the Third Circuit recently issued a decision in United States v. Soto, vacating the sentence of a federal robbery defendant and remanding the case for resentencing due to an improperly applied obstruction of justice enhancement. The Court found that the government failed to introduce actual evidence at sentencing to support the enhancement and that the defendant’s alleged conduct, even if supported by the evidence, did not show an intent to obstruct the proceedings.

The Facts of Soto

The defendant was convicted of multiple charges stemming from two armed bank robberies in New Jersey. The charges included conspiracy to commit bank robbery (18 U.S.C. § 371), bank robbery (18 U.S.C. § 2113(a)), and using and carrying a firearm during and in relation to a crime of violence (18 U.S.C. § 924(c)). At sentencing, the district court applied a two-level enhancement for obstruction of justice under USSG §3C1.1, citing three alleged incidents:

The defendant entered an elevator with jurors and asked one to press a button for him.
The defendant greeted victims on the steps of the courthouse before they testified.
The defendant allegedly interacted with a co-defendant's brother while attending a family event which the government had given him permission to attend.

At sentencing, the district court determined that the offense level was 29 and sentenced the defendant to 289 months in federal prison. The sentence included two mandatory and consecutive seven-year terms for the firearms charges. The defendant appealed, arguing that the district court should not have applied the obstruction enhancement.

The Third Circuit's Decision

The Third Circuit agreed with the defendant, reversed the decision of the district court, and vacated his sentence. The Third Circuit concluded that the district court erred in applying the enhancement for several reasons:

1. Lack of Evidence Supporting the Alleged Obstruction

The Court emphasized that an obstruction of justice enhancement requires proof that the defendant acted “willfully” with the specific intent to obstruct or impede the administration of justice. In the defendant’s case:

Elevator Interaction: The court found no evidence of the defendant’s intent to influence or intimidate the jurors from the fact that he got on the elevator with jurors. While two jurors reported feeling uncomfortable, the majority were unfazed or did not even notice the interaction. The Court characterized the defendant’s actions—asking a juror to press a button—as an ordinary interaction which failed to show any obstructive intent.
Greeting Victims: The Court noted that the government’s claim that Soto greeted victims as they entered the courthouse was unsupported by testimony or reliable evidence. Defense counsel maintained that the defendant merely said “good morning” to people passing by on the courthouse steps one morning. He did not threaten anyone or say anything about the case.
Interaction with a Co-Defendant’s Brother: The government alleged that the defendant approached the brother on the street, but it did not introduce any actual evidence to support this claim. The defendant denied that this interaction occurred and objected, and the district court failed to hear any evidence on the allegation or make factual findings on this incident.

2. Due Process Violations

The Third Circuit also emphasized that the lower court violated the defendant’s due process rights because the court relied on unsubstantiated allegations without hearing any supporting evidence. Although the government referenced surveillance footage and FBI interviews, these materials were not part of the record from sentencing. Therefore, because the defense objected to the pre-sentence report, the district court could not rely on the allegations. Where the defense does not object to the PSR, then the district court may assume the statements in the PSR are true. But where the defense contests their validity, due process requires that the government prove factual allegations in the pre-sentence report.

3. Misapplication of the Guidelines

The obstruction of justice enhancement penalizes deliberate attempts to interfere with the judicial process. The Third Circuit criticized the district court for focusing on the consequences of the defendant’s actions (e.g., discomfort among jurors and the need for voir dire) rather than on whether the defendant acted with the intent to obstruct justice. Without evidence of willful obstruction, the enhancement was unwarranted and led the defendant to receive a worse sentence than he would have had it not been applied. Accordingly, the Court remanded for a new sentencing hearing.

This decision highlights several critical points for federal sentencing hearings.

Strict Evidentiary Standards at Sentencing: Prosecutors bear the burden of proving enhancements by a preponderance of the evidence, and sentencing courts may only apply enhancements where the evidence in the record supports the enhancement.
Intent Matters: The obstruction of justice enhancement under §3C1.1 applies only when the defendant acts with deliberate intent to obstruct justice. Mere inappropriate or inadvertent behavior does not suffice. Lawyers may know to stay far away from jurors, but a criminal defendant may not know that saying hi or getting on an elevator could be a problem.
Protecting Due Process: Defense counsel should object to unsupported allegations at sentencing in order to fight for a lower sentence and to preserve the record for appeal.

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

Zak T. Goldstein, Esquire - Criminal Lawyer — Goldstein Mehta LLC Criminal Defense Attorneys

Zak Goldstein 12/24/24 Zak Goldstein 12/24/24

PA Superior Court Upholds Criminalizing Firearm Possession for Felons on Parole for Robbery

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

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Farmer. In Farmer, the Court upheld Pennsylvania’s felon in possession of a firearm statute (VUFA § 6105) against an unconstitutional as-applied challenge where the defendant was prosecuted for being a felon in possession of a firearm while on parole for robbery. It ultimately remains to be seen whether all felons may be permanently prohibited from possessing firearms for life following recent United States Supreme Court decisions like New York State Rifle & Pistol Ass’n v. Bruen expanding Second Amendment protections, but this was not a particularly close case as the defendant in this case was on parole for robbery at the time of his arrest for possessing a firearm.

The Facts of Farmer

The defendant was on parole for a robbery conviction when police obtained information that he possessed a firearm. Acting on a search warrant, officers found a .40 caliber Beretta in his house. Prosecutors charged him with a violation of 18 Pa.C.S.A. § 6105, which prohibits firearm possession by individuals with certain criminal convictions, including robbery. A jury convicted him of illegal gun possession, and he was sentenced to five to ten years’ incarceration.

The defendant appealed his conviction, arguing on appeal that § 6105 violated his Second Amendment rights. Specifically, he claimed the law was unconstitutional as applied to him. He cited the United States Supreme Court’s decision in Bruen. Bruen established a new framework for evaluating gun regulations but did not make it totally clear whether felon-in-possession statutes remain constitutional.

The Issues on Appeal

In Farmer, the Court addressed two issues as required by Bruen.

Does the Second Amendment apply to convicted felons like the defendant?
The Court found that the answer to this question is yes. The Court ruled that the defendant, as an American citizen, is included within "the people" protected by the Second Amendment. Drawing on District of Columbia v. Heller and Bruen, the Court rejected the Commonwealth’s argument that felons are categorically excluded from Second Amendment protections because they are not among “the people” to which the Second Amendment extends.
Could the government restrict the defendant’s gun rights based on his prior conviction?
Again, the Court found in the affirmative. While the Second Amendment protects the defendant in general, the Court held that the restriction on his firearm rights is consistent with the nation’s historical tradition of firearm regulation. The Court compared § 6105 to historical laws, such as “going armed” statutes, which disarmed individuals who were considered dangerous. The defendant’s conviction for robbery—in his case, a violent felony involving a gun—fit squarely within this historical framework. The Court relied heavily on United States v. Rahimi in its analysis as there, the United States Supreme Court upheld the constitutionality of disarming protection from abuse order defendants based on a lower standard than a conviction obtained with proof beyond a reasonable doubt.

This decision highlights the limits of Second Amendment protections for individuals with criminal convictions. While courts recognize that the Second Amendment applies broadly, they continue to uphold restrictions when those laws have strong historical support, and the historical statutes need only be similar - they do not have to be identical. For individuals with felony convictions—particularly those involving violence or firearms—this case reaffirms that Pennsylvania’s prohibition on gun possession remains enforceable. The problem, however, is that no Pennsylvania state appellate court has yet addressed a challenge to a less serious, non-violent offense. The federal Third Circuit Court of Appeals held that an individual who had a thirty year old non-violent misdemeanor theft offense could possess a firearm even though Pennsylvania law prohibited it, but Pennsylvania courts have not yet determined what the limits are. It may be that some portions of the § 6105 statute are unconstitutional in that it may not be permissible under the Second Amendment to prohibit individuals from possessing firearms for life based on less serious or older convictions. But in this case, the defendant was actively on parole for a violent felony. Therefore, whether there are limits on disarming felons who have less serious or older criminal records will remain an open question. If you are charged with a violation of § 6105 based on a less serious criminal record, it may still be worth filing a motion to dismiss the charges on Second Amendment grounds.

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

Gun Charges Lawyer Zak T. Goldstein, Esquire — Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire Arguing before the Pennsylvania Supreme Court