Philadelphia Criminal Defense Blog

Zak Goldstein 4/25/26 Zak Goldstein 4/25/26

PA Superior Court: Police Do Not Need a Warrant to Get Your Internet Subscriber Info

Criminal Defense Lawyer Zak T. Goldstein, Esquire

On April 22, 2026, the Pennsylvania Superior Court decided Commonwealth v. Zealor, 2026 PA Super 81, holding that police and prosecutors do not need a search warrant to obtain subscriber information, payment information, and internet connection records from an internet service provider. Instead, prosecutors can get this information through an “administrative subpoena” — a request signed by a Deputy Attorney General rather than a judge — under 18 Pa.C.S.A. § 5743.1.

The Facts of Zealor

Pennsylvania State Police were watching a peer-to-peer file-sharing network called BitTorrent for people sharing child pornography. They received a tip about a particular IP address (essentially the “phone number” of an internet connection) and downloaded files from it that turned out to include child sexual abuse material.

A Deputy Attorney General then sent an administrative subpoena to Comcast under 18 Pa.C.S.A. § 5743.1, a Pennsylvania statute that lets prosecutors obtain certain subscriber information from internet providers. Comcast told them the IP address belonged to a company called Digital Media, LLC, the company that provided the internet service for an apartment complex in Norristown. A second administrative subpoena to Digital Media identified the specific tenant whose connection was being used to share the files. Police then obtained a search warrant for that tenant’s apartment, found tens of thousands of images and videos, and the defendant was ultimately convicted on fifty counts of possessing child sexual abuse material.

Before trial, the defendant moved to suppress all of the evidence, arguing that police needed an actual search warrant and not just a prosecutor-signed subpoena to get the information from his internet provider. The Superior Court disagreed and affirmed his conviction.

Why the Court Said No Warrant Was Needed

The court relied mainly on its earlier decision in Commonwealth v. Kurtz, 294 A.3d 509 (Pa. Super. 2023), aff’d, 348 A.3d 133 (Pa. 2025), and on federal cases like United States v. Christie, 624 F.3d 558 (3d Cir. 2010). The court reasoned that under the “third-party doctrine,” when you voluntarily hand information over to a third party like your bank or your internet provider you generally lose your right to keep it private from the government, and so the defendant had no right of privacy here.

Applying that doctrine, the court held there is no reasonable expectation of privacy in:

• Your name, address, and basic payment information with your internet provider;

• Your IP address; or

• The connection logs showing which other IP addresses you connected to.

The court also distinguished Carpenter v. United States, 585 U.S. 296 (2018), the U.S. Supreme Court case that required warrants for cell phone location data, by reasoning that location data is generated automatically just by your phone being on, while peer-to-peer file sharing involves actively choosing to connect to other users.

Finally, the court rejected the argument that prosecutors could not subpoena out-of-state companies like Comcast, holding that the statute itself allows service on foreign corporations.

The Issue May Be Subject to Further Review

Even though Zealor is a loss, this is still a live issue, and we expect it to keep being litigated.

First, the Pennsylvania Supreme Court’s decision in Kurtz, which the Zealor court relied on so heavily, was a fractured plurality. Three justices agreed there was no expectation of privacy, three concurred on different grounds, and Justice Donohue dissented. A plurality decision does not bind future courts the way a majority opinion does, so the foundation for Zealor is shakier than it looks. Additionally, Kurtz dealt with the IP address itself, whereas this case deals with the information behind an IP address, making Kurtz distinguishable.

Second, and more importantly, the defendant in Zealor did not really argue that the Pennsylvania Constitution provides more privacy protections than the federal Fourth Amendment. The Pennsylvania Supreme Court has repeatedly held that our state constitution provides broader privacy rights than federal law in important areas including bank records and the rejection of the federal “good faith exception” to the exclusionary rule. See Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991). The defendant in Zealor did not develop that kind of argument, and the court therefore analyzed the state and federal questions together as if they were the same. They are not.

That leaves the door open for additional challenges to these “subpoenas,” which are really just demand letters. A future defendant who actually makes a strong Pennsylvania Constitution argument and asks the Pennsylvania Supreme Court to require a warrant for this kind of internet subscriber information as a matter of state law would be in a much better position. The Pennsylvania Supreme Court could also grant review in this case or in another case which preserves the stronger state constitutional issue.

The Bottom Line

Zealor is a setback for these challenges, but it may not be the final word. If you have been charged in a case where police started by sending an administrative subpoena to your internet provider, your attorney should likely still be challenging these subpoenas, and most importantly, the attorney should make both Fourth Amendment and Pennsylvania Constitutional arguments. The law in this area is unsettled and changing, and the strongest version of the privacy argument has not yet been decided by the Pennsylvania Supreme Court.

Facing criminal charges? We can help.

If you or a loved one are facing criminal charges, serving a state sentence in Pennsylvania, or exploring a direct appeal or PCRA petition, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey, and we have 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 4/11/26 Zak Goldstein 4/11/26

Attorney Goldstein Wins IDSI Appeal: PA Superior Court Dismisses Conviction on Due Process Grounds

Case Result: Conviction Reversed by the Superior Court of Pennsylvania

Attorney Zak Goldstein recently won an important appeal before the Superior Court of Pennsylvania, obtaining a full reversal of his client D.M.’s convictions for involuntary deviate sexual intercourse (IDSI) and corruption of minors. In Commonwealth v. D.M., the Superior Court held that the Commonwealth violated D.M.’s due process rights by failing to establish the date of the alleged offense with sufficient particularity under Commonwealth v. Devlin, 333 A.2d 888 (Pa. 1975). The court also found that the trial court abused its discretion by consolidating D.M.’s case with his co-defendants’ cases for trial, though it did not need to reach that issue given the Devlin reversal.

The Facts of the Case

D.M. was one of three brothers tried together in Lackawanna County on charges stemming from allegations made by a single complainant, B.P. The complainant alleged that D.M. had assaulted her on a single occasion when she was sixteen years old. She did not report the allegations until October 2019, which was nearly two decades after the events supposedly occurred.

The Commonwealth originally charged D.M. with offenses occurring over a five-year window between January 1, 2003 and December 31, 2007. After D.M. filed pretrial motions challenging the vague timeframe, the Commonwealth filed amended informations narrowing the period first to one year (August 25, 2005 to August 24, 2006), and ultimately proceeding to trial on two charges, IDSI and corruption of minors, within that same one-year window.

Trial counsel argued from the pretrial stage that even a one-year window was far too broad to satisfy due process. D.M.’s pretrial motions objected that the vague timeframe made it impossible to present an alibi defense or call witnesses in support of one. The trial court denied those motions, finding D.M.’s reliance on Devlin to be “misplaced.” D.M. also moved to sever his trial from his co-defendants’ cases. The trial court denied that motion as well.

Following a three-day trial, a jury convicted D.M. of IDSI and corruption of minors. The court sentenced him to 5-10 years’ imprisonment.

The Due Process Claim: Failure to Fix the Date of the Offense

On appeal, the Superior Court found D.M.’s Devlin argument meritorious and dispositive. In Commonwealth v. Devlin, 333 A.2d 888 (Pa. 1975), the Pennsylvania Supreme Court reversed a conviction where the only proof at trial was that the crime occurred sometime within a fourteen-month period, holding that this failed to meet the “sufficient particularity” standard and violated fundamental fairness.

The Superior Court then carefully distinguished D.M.’s case from a series of post-Devlin decisions in which courts had afforded the Commonwealth greater latitude, including Commonwealth v. Groff, 548 A.2d 1237 (Pa. Super. 1988), Commonwealth v. G.D.M., Sr., 926 A.2d 984 (Pa. Super. 2007), Commonwealth v. Niemetz, 422 A.2d 1369 (Pa. Super. 1980), Commonwealth v. Renninger, 269 A.3d 548 (Pa. Super. 2022), and Commonwealth v. Benner, 147 A.3d 915 (Pa. Super. 2016). In each of those cases, courts had found the broader timeframe acceptable because the victims were very young children who could not be expected to recall specific dates, the allegations involved a continuing course of conduct with multiple assaults, or the Commonwealth presented additional evidence from other witnesses that helped narrow the timeframe.

D.M.’s case was critically different. B.P. was sixteen at the time of the alleged offense — well past childhood — and therefore had the capacity to recall temporal details. The allegation involved only a single, isolated incident, not an ongoing course of abuse. And the Commonwealth made no conscientious effort to help B.P. narrow the timeline at trial. B.P. provided detailed testimony about the location, what was said, the features of D.M.’s car, and what she did afterward, yet she could not tie the incident to any identifiable temporal marker — a season, a holiday, a school year, or her birthday — that would have narrowed the one-year window. She testified only that it happened on a “normal” day. Even the Commonwealth’s own affidavit of probable cause had originally placed the incident during “the fall months” after B.P.’s sixteenth birthday, but B.P. did not testify to that at trial.

The court also rejected the Commonwealth’s argument that testimony from another witness narrowed the timeframe. The witness had testified that D.M. made a statement to him about B.P. in late 2005 or early 2006, but the court found this still left a period spanning too many months to fix the date with the constitutionally required level of certainty. The court further noted that the witness’s statement actually related to vaginal intercourse, which was a different act entirely from the IDSI charged in the criminal information.

The over-thirteen-year delay in reporting further compounded the due process problem. The court noted that this delay prejudiced D.M.’s ability to find witnesses or other evidence that could corroborate a defense, making the case arguably harder to defend than in Devlin itself, where there was essentially no delay between the alleged offense and the report to police. The Court therefore reversed the trial court’s decision not to dismiss the case and dismissed the conviction.

The Improper Joinder Issue

Although the Devlin ruling was dispositive of D.M.’s appeal, the opinion also addressed the joinder issue in the context of a co-defendant’s appeal — and the court’s analysis makes clear that consolidating D.M.’s trial with his brothers’ cases was an abuse of discretion. D.M. had raised this same issue on appeal, and the court noted in a footnote that it did not need to reach D.M.’s severance argument given its decision to reverse on Devlin grounds.

Under Pa.R.Crim.P. 582, defendants charged in separate informations may be tried together only if they are alleged to have participated in the same act, transaction, or series of acts or transactions constituting an offense. Under Pa.R.Crim.P. 583, severance is required if a party may be prejudiced by the joinder.

The court found that while it was permissible to try D.M.’s two brothers together because the allegations against them arose from a single chain of events on the same day, D.M.’s case was entirely different. The allegations against D.M. involved a separate incident that took place in a different location, involved different conduct, and occurred approximately two years after the allegations against his brothers. There was no conspiracy or corrupt organization charge tying them together, and D.M. had nothing to do with the conduct alleged against his brothers.

The court found that joining D.M.’s trial with his brothers’ trial allowed the Commonwealth to introduce evidence against D.M. that tainted his brothers’ cases and vice versa. The above witness’s testimony, for example, was relevant only to D.M. but was heard by the jury deciding the brothers’ cases as well. The court noted that the trial court itself appeared to concede that the witness testimony was only relevant against D.M. and not his co-defendants.

Perhaps most critically, the court found that the prosecutor’s closing argument compounded the prejudice by repeatedly lumping all three brothers together. The prosecutor referred to the brothers as “three aggressors,” likened them to institutions known for protecting sexual abusers, and argued that B.P. had to come forward because “they” still had power over people who came to the store. These remarks encouraged the jury to find the defendants guilty by association rather than based on the evidence specific to each individual case. The court cited Commonwealth v. Hamilton, 303 A.3d 823 (Pa. Super. 2023), for the principle that even where there is some overlapping evidence between co-defendants, severance is required when the evidence of one defendant’s crimes is irrelevant and prejudicial to another defendant’s case.

Why This Case Matters

This published decision is a significant victory for due process rights in Pennsylvania. It reaffirms that even in cases involving serious allegations and delayed reporting, the Commonwealth cannot charge a defendant with committing a crime at some unknown point during a year-long span ~15 years ago and expect a conviction to stand. The government bears the burden of narrowing the timeframe with reasonable certainty so that the defendant has a fair opportunity to prepare a defense. When the complainant was old enough to recall temporal details, the alleged conduct was a single isolated incident, and the Commonwealth made no effort to narrow the timeframe through its own investigation, due process requires reversal.

The opinion’s joinder analysis is equally important for criminal defense practitioners. It establishes that simply sharing a last name and a complainant is not enough to justify consolidation. When the alleged offenses are separated in time by years, involve different conduct, and occur in different locations, the trial court abuses its discretion by forcing defendants to trial together. This is particularly true where the prosecutor exploits the joinder to encourage guilt by association.

The opinion also provides a comprehensive survey and analysis of the entire Devlin line of cases, making it a valuable roadmap for defense attorneys evaluating due process challenges in cases involving vague or broad charging timeframes.

Facing Criminal Charges or a Wrongful Conviction?

If you or a loved one has been wrongfully convicted or believes that the prosecution withheld evidence in your case, we can help. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. 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 experienced criminal defense lawyers are typically available for same-day phone consultations and in-person meetings so that we can begin investigating your case, obtaining exculpatory evidence, and planning your defense. Call 267-225-2545 for a free criminal defense strategy session.

Zak Goldstein 3/27/26 Zak Goldstein 3/27/26

PA Supreme Court: Prosecutorial Misconduct to Call a Witness the Prosecution Knows Will Refuse to Testify

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Belgrave, No. 31 WAP 2024 (Pa. March 26, 2026), holding that it is prosecutorial misconduct to call a witness to testify before a jury when the prosecution knows in advance that the witness intends to refuse to answer questions. The Court reversed the Superior Court’s decision, vacated the defendant’s judgment of sentence, and remanded for a new trial. The opinion was authored by Justice Wecht and joined by every member of the Court.

The Facts of Commonwealth v. Belgrave

The Court summarized the facts as follows: the charges in this case arose from a drug sale at a Marriott Hotel in Erie, Pennsylvania, on February 7, 2019, that ended in a gunfight. Four men, including the defendant, drove from Chicago to Erie and rented a hotel room. Hotel surveillance video showed that Belgrave and his associate, Charles Baizar, were parked in a Chevrolet Impala when a dark-colored SUV arrived in the parking lot. Baizar and another man walked toward the SUV, and when Baizar attempted to enter it, the SUV’s driver exited the vehicle and began shooting. Baizar ran, dropping a package. Belgrave exited the Impala and fired two shots in the direction of the SUV. Belgrave was shot and seriously injured.

Police stopped the Impala as it was leaving a nearby parking garage. The package that Baizar dropped during the gunfight contained 239 grams of heroin. Baizar was separately charged with conspiracy to commit PWID and pleaded guilty to conspiracy in December 2019. Belgrave was charged with conspiracy to commit PWID (amended on the eve of trial to PWID), aggravated assault, and other offenses. A jury convicted Belgrave of PWID, reckless endangerment, and carrying a firearm without a license.

The Prosecutorial Misconduct Issue

The central issue in this appeal was the prosecution’s decision to call Baizar to the witness stand at Belgrave’s trial despite knowing in advance that Baizar would refuse to answer any questions. Belgrave’s defense counsel identified this problem early, filing a motion in limine on the eve of trial. The concern was well-founded: Baizar had filed his own Motion to Quash Subpoena the day before Belgrave’s trial began, stating clearly that he had no intention of testifying and intended to invoke his Fifth Amendment right against self-incrimination.

The Commonwealth sought to compel Baizar’s testimony by offering him immunity. But even with immunity, which eliminated any valid Fifth Amendment basis for refusing to testify, Baizar still refused to testify and was subject to contempt sanctions. Despite all of this, the prosecutor went ahead and called Baizar to the stand in front of the jury.

What followed was remarkable. In his opening statement, the prosecutor told the jury to look forward to Baizar’s testimony while simultaneously revealing that Baizar did not want to cooperate. When Baizar took the stand, he refused to answer every substantive question. But the prosecutor pressed on, asking eighteen predominantly leading questions that were loaded with accusations. The prosecutor asserted that Baizar was Belgrave’s cousin, that they came to Erie to sell heroin together, that Baizar had made prior statements to police about the incident, and that Baizar was refusing to testify because he wanted to protect Belgrave. Baizar answered none of the questions. The prosecutor essentially became the de facto testifying witness, putting allegations before the jury in the form of unanswered questions.

The trial court gave a limiting instruction telling the jury that questions are not evidence and that only answers may be considered. But the Supreme Court found this wholly insufficient to cure the prejudice. In closing arguments, the prosecutor doubled down, telling the jury that Baizar knew what happened, knew who was involved, and refused to say anything. He implored the jury to infer facts from an interaction that consisted entirely of unanswered questions.

The Supreme Court’s Analysis

The Supreme Court engaged in a thorough review of its prior case law governing this issue, beginning with the 1973 cases of Commonwealth v. Terenda, 301 A.2d 625 (Pa. 1973), and Commonwealth v. DuVal, 307 A.2d 229 (Pa. 1973). In Terenda, the Court found it was prejudicial error for the prosecution to call co-indictees to the stand knowing they would invoke the Fifth Amendment. In DuVal, the Court held that summoning a witness with foreknowledge that the witness would invoke the privilege against self-incrimination constitutes prejudicial error in itself, regardless of whether the prosecutor believed the privilege claim would be legally invalid. The DuVal Court explained that the proper procedure is for the prosecution to test the witness’s willingness to testify in advance, outside the jury’s presence, and obtain a ruling before bringing the witness before the jury.

The Superior Court had distinguished Terenda and DuVal on a narrow basis: in those cases, the witnesses expressly invoked the Fifth Amendment in front of the jury, while Baizar simply refused to answer without specifically mentioning the Fifth Amendment. The Superior Court relied on the separate case of Commonwealth v. Todaro, 569 A.2d 333 (Pa. 1990), where this Court found no error when a witness quietly informed the court of his intent to invoke the Fifth Amendment, was excused before the jury, and never appeared again.

The Supreme Court found the analogy to Todaro deeply flawed. In Todaro, the prosecutor did not have advance notice that the witness would refuse to testify, the witness was quickly excused, and no accusatory questions were asked before the jury. In Belgrave, by contrast, everyone knew Baizar would not answer, the prosecutor called him anyway, and then peppered him with leading, accusatory questions designed to plant inculpatory information in the jurors’ minds through the questions themselves.

The Court also rejected the Superior Court’s reasoning that the absence of an express Fifth Amendment invocation before the jury somehow made Baizar’s defiant silence less prejudicial. The Court found that this distinction defied common sense, observing that the prejudicial harm lies in the refusal to deny accusations, which a reasonable juror can treat as an implied admission, and that this harm exists regardless of whether the witness cites a specific legal basis for the refusal.

The Court further held that the error was not harmless beyond a reasonable doubt. The prosecution’s extensive efforts to obtain Baizar’s testimony, including securing immunity directly from the District Attorney, demonstrated how critical the prosecution considered Baizar’s testimony to be. The prosecutor’s repeated emphasis on Baizar’s knowledge and silence, in both opening and closing statements, confirmed this.

The Takeaway

Commonwealth v. Belgrave is a significant decision for criminal defendants in Pennsylvania. It reaffirms and strengthens the rule from DuVal that prosecutors may not call witnesses they know will refuse to answer questions before a jury. The Court made clear that it is the act of summoning the witness, not what happens after the witness takes the stand, that constitutes the misconduct. And it rejected the artificial distinction between an express invocation of the Fifth Amendment and a simple refusal to answer, holding that the prejudice to the defendant is the same either way.

The decision also underscores the obligation of trial courts to resolve these issues before a witness ever appears in front of the jury. As the Court emphasized, citing DuVal and Commonwealth v. Davenport, 308 A.2d 85 (Pa. 1973), the proper procedure is a pre-appearance hearing to assess the witness’s willingness to testify and determine whether the witness’s appearance before the jury would serve any legitimate purpose.

This is a unanimous decision, with all seven justices joining Justice Wecht’s opinion, which gives it particular force as precedent. If you or someone you know is facing criminal charges and believes that the prosecution engaged in misconduct at trial, it is critical to consult with an experienced criminal defense attorney who can evaluate whether the issue warrants appellate relief or a new trial.

Facing Criminal Charges or a Wrongful Conviction?

Criminal Defense Lawyer Zak T. Goldstein, Esquire

If you are facing criminal charges or believe that the prosecution engaged in misconduct in your case, we can help. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. 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 experienced criminal defense lawyers are typically available for same-day phone consultations and in-person meetings so that we can begin investigating your case, obtaining exculpatory evidence, and planning your defense. Call 267-225-2545 for a free criminal defense strategy session.

Zak Goldstein 3/27/26 Zak Goldstein 3/27/26

PA Supreme Court Finds Mandatory Life Without Parole for Second Degree Murder Unconstitutional

The Pennsylvania Supreme Court has just issued what may be the most significant criminal sentencing decision in decades. In Commonwealth v. Lee, No. 3 WAP 2024 (Pa. March 26, 2026), the Court held that Pennsylvania’s mandatory sentence of life imprisonment without the possibility of parole for all second-degree murder (felony murder) convictions violates Article I, Section 13 of the Pennsylvania Constitution. The decision means that every person currently serving a mandatory life-without-parole sentence for felony murder may be entitled to resentencing, and going forward, sentencing courts must conduct an individualized assessment of culpability before imposing a life sentence for felony murder. This is a landmark ruling that will affect potentially thousands of inmates across the Commonwealth. The Court, however, did not clearly rule whether the decision is retroactive. It also stayed the decision for 120 days to give the legislature time to respond and decide whether some other lesser mandatory minimum should apply.

The Facts of Commonwealth v. Lee

The case arose from a 2014 home invasion robbery in the Elliott neighborhood of Pittsburgh. Leonard Butler and Tina Chapple shared a residence with their nine-year-old son. On October 14, 2014, two men, later identified as Derek Lee and Paul Durham, entered the home armed with guns and with partially covered faces. They forced Butler and Chapple into the basement, demanded money, and used a taser on Butler. Lee, described by Chapple as “the meaner one,” pistol-whipped Butler in the face and took his watch before running upstairs. Durham remained with the couple. Butler then began to struggle with Durham over the gun, and during that struggle, a shot was fired that killed Butler.

Lee was charged with homicide, burglary, robbery, and criminal conspiracy. At trial, the jury found Lee guilty of second-degree murder (felony murder), robbery, and conspiracy. Critically, the jury found Lee not guilty of first-degree murder. In other words, the jury specifically rejected the idea that Lee had the intent to kill. Lee was not the shooter; according to the Court’s summary, the fatal shot was fired by Durham during a struggle with the victim while Lee was on a different floor of the house.

Despite the jury’s finding that Lee did not intend to kill anyone, the trial court was required by statute to sentence him to life imprisonment without the possibility of parole. Under 18 Pa.C.S. § 1102(b), a conviction for second-degree murder carries a mandatory sentence of life in prison, and under 61 Pa.C.S. § 6137(a)(1), a person serving a life sentence is ineligible for parole. The sentencing judge had no discretion, meaning they had no ability to consider Lee’s individual role in the crime, his lack of intent to kill, or any other mitigating factors.

What Is Felony Murder?

Under Pennsylvania law, second-degree murder, commonly known as felony murder, is defined as a criminal homicide committed while the defendant was engaged as a principal or an accomplice in the perpetration of a felony. 18 Pa.C.S. § 2502(b). The qualifying felonies include robbery, rape, arson, burglary, and kidnapping. 18 Pa.C.S. § 2502(d). Unlike first-degree murder, the Commonwealth does not have to prove that the defendant intended to kill anyone. The only intent required is the intent to commit the underlying felony. The malice necessary to support a murder conviction is constructively inferred from the act of committing the dangerous felony.

This means a person can be convicted of murder and sentenced to die in prison even if they did not pull the trigger, did not intend for anyone to be hurt, and were not even in the same room when the killing occurred. At the time of this decision, only four other states, Iowa, Louisiana, Mississippi, and North Carolina, imposed a similar mandatory life-without-parole sentence for felony murder without exceptions, making Pennsylvania an outlier even among the minority of states that still use the felony murder rule aggressively. This case addressed whether such a sentence would be constitutional under the Pennsylvania Constitution.

The Eighth Amendment Claim

The Court first addressed whether mandatory life without parole for felony murder violates the Eighth Amendment’s prohibition on cruel and unusual punishment. The Court concluded that it does not, at least under current United States Supreme Court precedent. The majority explained that the high Court’s categorical approach, which has been used to bar the death penalty for non-homicide offenses in Kennedy v. Louisiana, 554 U.S. 407 (2008), and to bar mandatory life without parole for juvenile offenders in Miller v. Alabama, 567 U.S. 460 (2012), has not been extended to adult defendants convicted of felony murder. While the appellant relied on cases like Enmund v. Florida, 458 U.S. 782 (1982) (barring the death penalty for felony murder defendants who did not kill, attempt to kill, or intend to kill), the Court found that this line of cases involved capital punishment specifically and has not been applied to life-without-parole sentences for adults.

The Court also considered whether a national consensus has emerged against mandatory life without parole for felony murder under the categorical approach. Noting that the number of states with similar mandatory sentencing schemes is disputed but at least a handful of states still impose such sentences, the Court concluded that a sufficient national consensus has not yet developed to support an Eighth Amendment categorical bar.

The Article I, Section 13 Claim: A Broader State Constitutional Protection

This is where the decision breaks new and critical ground. The Court conducted an independent analysis under Article I, Section 13 of the Pennsylvania Constitution, applying the four-factor test from Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), which governs when state constitutional provisions provide broader protections than their federal counterparts. And the Court concluded that Section 13 does provide broader protection in this context.

The key textual distinction is significant: the Eighth Amendment prohibits “cruel and unusual punishments,” while Article I, Section 13 prohibits “cruel punishments,” without the word “unusual.” This is not merely a semantic difference. The Court reasoned that under the Eighth Amendment’s framework, a punishment must be both cruel and unusual to be unconstitutional. A punishment that is common or widespread among the states, and therefore not “unusual,” may survive Eighth Amendment scrutiny even if it is harsh. But under the Pennsylvania Constitution, the sole question is whether the punishment is “cruel,” regardless of how many other states impose it.

The Court held that imposing a mandatory sentence of life without parole on all felony murder defendants, without any assessment of individual culpability, constitutes a cruel punishment under Article I, Section 13. The statutory scheme treats the person who planned and carried out a killing identically to the person who served as a lookout during a robbery in which an unplanned death occurred. This one-size-fits-all approach is inconsistent with the Pennsylvania Constitution’s protection against cruel punishments.

In reaching this conclusion, the Court traced the history of both the felony murder doctrine and Pennsylvania’s tradition of proportionate sentencing, going back to Pennsylvania’s landmark 1794 statute, the first in the country to divide murder into degrees, which was rooted in Enlightenment-era principles of proportionality promoted by figures like Cesare Beccaria and Benjamin Rush. The Court found that mandatory life without parole for all felony murder offenders, without any opportunity for an individualized assessment of culpability, is fundamentally at odds with this tradition.

The Remedy

The Court vacated Lee’s judgment of sentence and remanded the case for resentencing. However, the Court also stayed its order for 120 days to give the General Assembly an opportunity to enact remedial legislation establishing a new sentencing framework for second-degree murder. This is the same approach the Court has used in other cases where it has struck down a sentencing scheme, such as the juvenile lifer cases following Miller v. Alabama.

The Concurring and Dissenting Opinions

All seven justices participated in the decision, and while the result was unanimous as to the Pennsylvania constitutional holding, several justices wrote separately to elaborate on various points.

Justice Wecht wrote a concurrence providing extensive scholarly analysis of the differences in culpability between first-degree and second-degree murder, emphasizing that the felony murder rule punishes defendants who lack any intent to kill with the same severity as those who deliberately take a life. Justice Wecht also argued that foreign law should be irrelevant to the Pennsylvania constitutional analysis. This was a point of departure from the majority’s broader survey approach.

Justice Dougherty, joined by Justice McCaffery, wrote a concurrence further developing the textual analysis of why Section 13 provides broader protection than the Eighth Amendment. Justice Dougherty emphasized that because mandatory life without parole for felony murder is not “unusual” in that several states still impose it, it cannot violate the Eighth Amendment under current doctrine. But the absence of the word “unusual” from Section 13 means the Pennsylvania Constitution asks a different and more protective question.

Justice Mundy wrote separately to emphasize the limited scope of the holding: it applies only to defendants who did not kill, did not attempt to kill, and did not intend to kill. The decision does not disturb life-without-parole sentences for second-degree murder defendants who were the actual killer or who intended that someone die.

Justice Brobson concurred in the majority’s Edmunds analysis and the holding that mandatory life without parole for all felony murder offenders is unconstitutional under Section 13. However, he dissented in part from the remedy, expressing reservations about the 120-day stay and arguing that the Court should provide more specific guidance to sentencing courts on remand.

The Takeaway

This decision has enormous practical implications for criminal defendants in Pennsylvania. For those currently serving mandatory life-without-parole sentences for second-degree murder, particularly those who were not the actual killer and did not intend to kill, this decision may open the door to resentencing proceedings. Certainly, defendants will most likely want to file PCRA petitions in 120 days when the decision takes effect. It is not yet clear exactly how many inmates will be affected, but it is likely in the thousands, as Pennsylvania has one of the largest populations of people serving life without parole in the country, and a significant number of those individuals were convicted under the felony murder rule. It is not yet clear, however, whether the decision is retroactive to those whose convictions are already final, and this may be the subject of litigation. The Governor, however, has already commented that he supports the decision.

Going forward, the General Assembly will need to establish a new sentencing framework for second-degree murder that allows for individualized consideration of a defendant’s culpability. If the legislature does not act within 120 days, the courts may begin resentencing felony murder defendants without a new statutory framework in place.

For defendants facing felony murder charges now, this decision is critical. Defense attorneys should be raising the issue of individualized sentencing at every stage and arguing that a mandatory life-without-parole sentence cannot be imposed without consideration of the defendant’s specific role in the offense, intent, and other mitigating factors.

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, Fraud, and Murder. We have also successfully challenged convictions for murder, firearms charges, rape, and other serious convictions on direct appeal in state and federal court as well as through post-conviction relief act litigation. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. We can also help you navigate your response to the Court’s decision if you have a loved one serving life without parole as a result of a second degree murder conviction. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.