Not Guilty – Attorney Goldstein Wins Acquittal in Possession with the Intent to Deliver Case

Philadelphia Criminal Defense Attorney Zak Goldstein

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire recently won a full acquittal in the case of Commonwealth v. D.V. following a bench trial in the Philadelphia Court of Common Pleas. The case involved charges of Possession with the Intent to Deliver and Knowing and Intentional Possession of a controlled substance.

In D.V., police officers alleged that they set up a narcotics surveillance in the Kensington area. Two veteran narcotics officers parked their car at an area known for a high level of drug sales and began watching the corner. Shortly thereafter, they claimed to have seen the defendant standing at the intersection right near their car. The defendant then allegedly engaged in three hand to hand transactions with alleged buyers in which the officers claimed that they saw the defendant accept money from the individuals, cross the street to what appeared to be a stash location, retrieve small objects consistent with drug packaging, and then provide those objects to the alleged buyers.

All three alleged buyers left the area shortly after the hand-to-hands and were promptly stopped by backup officers and found to be in possession of various controlled substances like heroin, crack, and marijuana. After arresting the buyers, the officers attempted to arrest D.V.. They claimed, however, that as they pulled up, D.V. took off running. They chased him and caught him after he fell. When they arrested him, he apparently had matching drugs and a large amount of money on him. They also recovered additional drugs from the stash location.

D.V. retained Attorney Goldstein for trial and elected to have the judge decide the case instead of a jury. Although the officer’s testimony, if believed, certainly would have been enough evidence to convict D.V. due to the number of alleged transactions and the presence of matching drugs on the buyers and seller, Attorney Goldstein was able to destroy the officer’s credibility on cross-examination.

First, Attorney Goldstein highlighted that the claimed locations of the arrests of the buyers made absolutely no sense because they were all allegedly arrested within eyesight of the corner where the defendant was supposedly selling drugs. Thus, if the defendant had really been out there selling drugs, he would have seen the buyers get arrested and been able to leave before engaging in more sales.

Second, Attorney Goldstein highlighted discrepancies between the officer’s testimony at the preliminary hearing and at trial. At the preliminary hearing, the officer testified that he had not been able to see the defendant actually reach into the stash location because it was behind a building, but he knew that it was used as a stash from prior arrests. At trial, he claimed that he could actually see into the location and see the defendant pick up objects.

Third, Attorney Goldstein highlighted the fact that D.V. sustained severe injuries to his face and teeth when arrested. Although the police claimed that these injuries occurred as the result of a fall, it was clear from photos taken shortly taken after the incident that it was unlikely that D.V. was injured from falling. Further, the officers’ explanations for the injuries were inconsistent and contradictory on cross examination.

Finally, Attorney Goldstein introduced evidence that one of the backup officers involved in the case had recently been arrested by the Pennsylvania State Police and that other officers had previously been suspended for police brutality allegations.

After the judge viewed the injury photos, heard the cross-examination, and saw that the police story just did not add up, the judge concluded that she had reasonable doubt and found D.V. not guilty of all charges.

Facing criminal charges? We can help.

Demetra Mehta and Zak Goldstein - Philadelphia Criminal Defense Attorneys

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 state and federal courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and First-Degree Murder. 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.

Police Need More Than Vague Concerns About Officer Safety to Search a Home Without a Warrant

Philadelphia Drug Charges Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Duke, holding that Pennsylvania State Troopers illegally searched the defendant’s house by walking into his open garage after he told them to leave his property. The Superior Court specifically rejected the idea that police could create exigent circumstances, claim that a person could have been retrieving a weapon without any basis for believing that, and then use those two factors to search someone’s property without a warrant.

The Facts of Duke

In Duke, Pennsylvania State Police Troopers went to the defendant’s house in York County, PA looking for his son. When the troopers arrived, the defendant was standing at the end of his driveway holding a small dog. The defendant told the troopers that his son was in jail in Lancaster County Prison and therefore not home. The troopers asked the defendant for permission to look around the house to confirm that the son was not there. The defendant told the troopers that they could not. The defendant, holding his dog, then walked up the driveway toward his garage.

The Illegal Search of the Garage

Although the defendant told the troopers they could not conduct a search and did not give them consent to be on the property, they followed him up to the garage. The troopers then saw inside the garage and observed a bow and arrow, a crossbow, and a long gun or rifle. They also smelled marijuana. Then they entered the garage, without consent, and found marijuana plants in the garage. They arrested the defendant, obtained a search warrant, and found additional marijuana plants in the home. They charged the defendant with Possession with the Intent to Deliver.

Motion to Suppress the Drugs

The defendant filed a motion to suppress the marijuana in the trial court, arguing that police only obtained the search warrant for the marijuana as a result of their illegal entry into his property and ultimately garage. Therefore, the marijuana that they found should be considered the fruit of the poisonous tree despite the fact that they subsequently obtained a search warrant. The defendant also moved to suppress any statements that he made due to the police failing to provide Miranda warnings.  

The trial court held a hearing on the motion to suppress. The troopers testified, without basis, that they believed that the defendant was lying about the location of his son. They followed him up the driveway because they were unsure what he was planning to do and believed that he could be going for a weapon. They also testified that the defendant had said that there was no way that the troopers were getting into the house, and one of the troopers admitted that the defendant may have asked them to leave the property, although he was not sure.

The defendant then testified and also called one of the troopers to testify, but unsurprisingly, the court found that the troopers that most helped the Commonwealth’s case were more credible than the defendant or the other trooper who testified and accepted their version of events. The court, therefore, found that the troopers were acting solely in the basis of ensuring officer safety and therefore were justified in going into the defendant’s home without a warrant. The court denied the motion to suppress and found the defendant guilty of felony Possession with Intent to Deliver following a waiver trial. The court sentenced him to three years’ probation.

The Superior Court Appeal

The defendant appealed to the Pennsylvania Superior Court. The Superior Court initially denied the appeal, but following a helpful ruling from the Pennsylvania Supreme Court, the Pennsylvania Superior Court was required to reconsider the case. This time, the Superior Court ruled in favor of the defendant. The court noted that warrantless searches of a suspect’s house are per se unconstitutional unless a specifically established and well-delineated exception to the warrant requirements applies. One exception to the warrant requirement is when probable cause and exigent circumstances are present. In determining whether exigent circumstances exist, a court should look at:

1)    The gravity of the offense,

2)    Whether the suspect is reasonably believed to be armed,

3)    Whether there is above and beyond a clear showing of probable cause,

4)    Whether there is a strong reason to believe that the suspect is within the premises being entered,

5)    Whether there is a likelihood that the suspect will escape if not swiftly apprehended,

6)    Whether the entry was peaceable, and

7)    The time of the entry.

Because an exigent circumstances analysis requires the Commonwealth to justify a warrantless search of a home, the Commonwealth must prove an urgent need to act and that police action without a warrant was imperative. Therefore, the Commonwealth must prove by clear and convincing evidence that the circumstances surrounding the opportunity to search were truly exigent. Further, police may not rely upon exigent circumstances to justify a warrantless entry when the exigency derives from their own actions.

Here, the trial court erred in determining that police properly conducted a warrantless search of the defendant’s property. The court noted that the analysis should have begun with an acknowledgement that once the defendant denied the troopers his consent to search the property, the troopers were violating his Fourth Amendment rights. Because the troopers did not have a search warrant, they could remain on the property only if there were exigent circumstances. The court recognized that it was simply unreasonable to conclude that the defendant had some plan to grab a weapon and injure the troopers. Instead, the defendant was holding a small dog and simply began to walk back towards his house. There was no basis from the defendant’s demeanor or actions that he was planning on grabbing a weapon. Therefore, at the time that the troopers refused to leave the property and began following the defendant, they had already begun violating his rights, and any observations of the marijuana plants in the garage were therefore fruit of the poisonous tree.

Although courts have carved out innumerable exceptions to allow the police to search people who are walking down the street or are in motor vehicles, courts remain extremely reluctant to allow the police to enter a suspect’s home without a warrant. This case reaffirms that police must truly be acting in response to an emergency in order to do so. Therefore, while courts are often eager to credit an officer’s testimony that he or she was acting out of concerns of officer safety, the courts typically apply more scrutiny when the search involves a home.

Can the Police Search a Garage Without a Warrant?

Finally, it is important to note that there is no difference between the search of a suspect’s garage and his or her home. The police need a search warrant for either one. In Pennsylvania and under federal law, the police do not need a warrant to search an automobile when the automobile is parked somewhere other than a suspect’s driveway. Instead, they need only probable cause because an automobile can be easily moved. Unlike a car, however, police cannot search a home or a garage based solely on probable cause. In the absence of exigent circumstances or the presence of some other exception, they must also obtain a search warrant prior to searching a garage or a house even if they have probable cause.

Facing criminal charges? We can help.

Criminal Defense Attorneys Zak Goldstein and Demetra Mehta

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 successful outcomes in cases involving charges such as Possession with the Intent to Deliver, Violations of the Uniform Firearms Act, Aggravated Assault, Rape, and Murder. 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.

Motion to Suppress Granted: Attorney Goldstein Wins Dismissal of Possession with the Intent to Deliver Charges

Philadelphia Criminal Defense Attorney Zak Goldstein

Philadelphia criminal defense attorney Zak Goldstein recently won a motion to suppress for a client charged with Possession with the Intent to Deliver a large amount of marijuana and related charges. Because the suppression of the evidence resulted in all of the marijuana and paraphernalia being excluded from introduction at trial, the Commonwealth was then forced to dismiss all of the charges against the client without obtaining any convictions.

In Commonwealth v. E.C., Philadelphia Police Officers pulled E.C. over in Southwest Philadelphia after allegedly observing him making an abrupt left turn without using his turn signal. Although E.C. stopped right away, police searched his car shortly after pulling him over. They claimed that they could smell marijuana coming from the car. This claim, if believed by a judge, would result in police having probable cause to search the car for marijuana despite the fact that Philadelphia no longer prosecutes most marijuana-related offenses.

Officers claimed that after they obtained E.C.’s paperwork for the car, they told him that they were going to search the car due to the odor of marijuana. In response, E.C. told the police that he had weed in his pants. Police then searched him and found a small amount of weed. When they searched the rest of the car, they found more marijuana, drug paraphernalia indicative of an intent to sell the marijuana such as scales and new and unused packaging, and a significant amount of cash. Police arrested E.C., and prosecutors charged him with Possession with the Intent to Deliver, Knowing and Intentional Possession of a Controlled Substance, Possession of Marijuana, and Possession of Drug Paraphernalia.

Fortunately, E.C. retained criminal defense attorney Zak Goldstein shortly after the preliminary hearing. Attorney Goldstein reviewed the discovery and the notes of testimony from the preliminary hearing and quickly realized that because of the amount of marijuana and paraphernalia found in the car, the defense to these charges would have to be a motion to suppress. Further, because the officers claimed in their paperwork to have smelled marijuana, Attorney Goldstein realized that he would have to convince the trial judge that the officers had not actually smelled marijuana and instead had conducted a warrantless search without probable cause. Attorney Goldstein filed a motion to suppress, and the trial court held a hearing on the motion.

At the motions hearing, the Commonwealth called one of the police officers to testify to the circumstances of the vehicle stop and the search. That officer testified mostly consistently with the paperwork. However, Attorney Goldstein was able to show through cross-examination that it was unlikely that the officers would have smelled marijuana because of the way in which the weed was packaged. Additionally, when the Commonwealth rested, Mr. Goldstein then called the officer’s partner to testify to see whether her version of events matched her partner’s version. On cross-examination, the partner testified that although she had also participated in the vehicle stop and search of the car, she had not smelled the marijuana that her partner had claimed to smell. Faced with this conflicting testimony about whether there was an actual odor of marijuana which would justify the officers’ subsequent commands and search, the trial judge found the officers not credible and granted the motion to suppress. The prosecution moved to withdraw the charges, and E.C. will be eligible to have his record expunged.

Facing criminal charges? We can help.

Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

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, Possession with the Intent to Deliver, Aggravated Assault, Rape, and Attempted Murder. 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. 

PA Superior Court: A decade in jail is too much time for selling a pill and a half to another inmate

Philadelphia Criminal Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Sarvey, holding that it is unreasonable to sentence a defendant to over ten years’ incarceration for attempting to distribute one and one-half pills of a controlled substance to another inmate while in prison. The Superior Court is often reluctant to overrule even the harshest of excessive sentences, so this is a great opinion for the defense which shows that there are some limits to a judge’s discretion in sentencing a defendant.

Commonwealth v. Sarvey

On July 26, 2011, the defendant was incarcerated at Jefferson County Correctional Facility when she attempted to give one-half of a tablet of Oxycodone and a tablet of Ambien to another inmate. The prison recorded the attempted sale on video. The defendant hid the pills under a commissary form and slid them under cell door toward another inmate’s cell.

A corrections officer noticed the papers being pushed underneath the defendant’s cell door and attempted to pick them up. The defendant refused to release the papers. After a struggle, the officer was able to take the papers away from her. The officer handed the form back to the defendant, and as the officer walked away she noticed a baggie containing two pills in the place where the paper had been. The officer confiscated the baggie.

The defendant was subsequently charged with two counts of possession with intent to deliver a controlled substance (hereinafter “PWID”), two counts of possession of a controlled substance by an inmate (hereinafter “possession by an inmate”), two counts of controlled substance contraband to confined persons prohibited (hereinafter “controlled substance to prison”) and two counts of criminal attempt. Some of these charges were added prior to trial when the Commonwealth filed a motion to amend the information on the eve of trial. On April 16, 2012, a jury found the defendant guilty of all charges.

At sentencing, the trial court sentenced the defendant to consecutive terms of incarceration on the PWID convictions (one to three years for one PWID count and one and one-half years to three years to three years for the second PWID count). The trial court further imposed consecutive terms of incarceration for each count of possession by an inmate (one and one-half years to three years on each count), and a term of incarceration of two to five years for each count of controlled substance to prison.

Unfortunately for the defendant, she was also on the trial judge’s probation for four other cases. The trial judge then revoked her probation on those cases and sentenced her to a term of confinement of one to two years plus five years of probation. In total, the defendant received a sentence of ten and one-half to twenty-four years of incarceration followed by five years of probation. The defendant then filed an appeal.

The Superior Court Appeal

The defendant filed a direct appeal to the Superior Court. In the direct appeal, the defendant only raised the issue that the trial court erred in granting the Commonwealth’s motion to amend the information to add charges on the eve of trial. However, the Superior Court found that the appeal was without merit. The defendant also petitioned the Pennsylvania Supreme Court to review her appeal, but the Court declined to do so.

With her appeals denied, the defendant then filed a Post-Conviction Relief Act (“PCRA”) petition alleging that her trial and appellate attorneys were ineffective in failing to challenge her sentence as excessive on appeal. At the PCRA hearing, her trial attorney testified that he did not object to her sentence nor did he file a post-sentence motion to reconsider the sentence. The trial court denied the PCRA Petition, and the defendant appealed the denial of the PCRA Petition to the Superior Court. She raised a number of issues in her appeal of the PCRA Petition, but she won relief only on the failure to appeal the excessive sentence.

Can you file a PCRA against an appellate attorney?

Yes. A defendant is entitled to competent representation at all stages of their criminal case and not just the trial. If the court finds that an appellate attorney provided the ineffective assistance of counsel when handling a defendant’s appeal, that defendant could be entitled to another appeal. For a more detailed summary of Pennsylvania’s Post-Conviction Relief Act, please see our other articles where we discuss PCRAs in more detail (https://goldsteinmehta.com/blog/important-changes-to-pas-post-conviction-relief-act-pcra).  

Can I appeal my sentence in Pennsylvania?

Yes. In Pennsylvania, if a defendant is found guilty of a crime, they must be sentenced to a minimum and maximum sentence. Obviously, some crimes are more serious than others and carry the possibility for a longer sentence. For example, a felony of the first degree has a maximum of twenty years’ incarceration whereas a misdemeanor of the first degree has a maximum of five years’ incarceration. However, just because someone is found guilty of a crime does not mean that a judge has free rein to give them the longest sentence allowed by statute. Additionally, just because a defendant was found guilty of multiple convictions does not mean that a judge can give maximum consecutive sentences on each of the charges.

When fashioning a sentence, a judge is supposed to take several factors into consideration into consideration. First, the sentencing court must consider the sentencing guidelines for a particular defendant. The sentencing guidelines analyze the severity of the offense (also known as the offense gravity score) and the criminal history of the defendant (also known as the prior record score). Again, for a more detailed analysis of Pennsylvania sentencing guidelines, please refer to our Pennsylvania Sentencing Guidelines blog(https://goldsteinmehta.com/blog/i-got-arrested-what-am-i-looking-at-an-explanation-of-the-pa-sentencing-guidelines).

However, courts should consider additional factors when sentencing a defendant. For example, the sentencing court should consider factors such as the age of the defendant; the facts of the case; whether the crime involved violence; whether the defendant is a threat to the community; the rehabilitative needs of the defendant, etc. It should be noted that appellate courts are unlikely to overturn a defendant’s sentence. Judges are given an incredible amount of discretion when fashioning a sentence. In order to successfully appeal a sentence, the sentencing court must have been unduly harsh, as in Sarvey, in order for a defendant to successfully win an appeal on grounds that the sentencing court abused their discretion.

Sarvey’s sentence was excessive

In Sarvey, the Superior Court found that the defendant’s sentence was clearly unreasonable and that her attorney was ineffective for not objecting to it and filing a post-sentence motion. The Superior Court found that her attorney did not have a reasonable basis for his failure to file a post-sentence motion and appeal the discretionary aspect of her sentence. The Superior Court further opined that although the court had a history with the defendant and that distributing narcotics in prison is particularly dangerous, her sentence was “unquestionably harsh” as she had merely attempted to provide 1.5 pills to another inmate. Thus, a sentence with a minimum of more than ten years for such conduct was simply too harsh and an abuse of the trial court’s discretion. The Superior Court noted that although the charges do not technically merge for sentencing purposes, they are undeniably very similar and intended to punish the same type of conduct. Therefore, defense counsel was ineffective in failing to appeal the original sentence. Accordingly, Sarvey will receive a new sentencing hearing.

Facing Criminal Charges? We Can Help.

Goldstein Mehta LLC Criminal Defense Attorneys

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 in cases involving charges such as Conspiracy, Aggravated Assault, and Attempted Murder. 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.