Philadelphia Criminal Defense Blog
PA Superior Court: Defendant’s Prior Illegal Anticipatory Probation Violation Does Not Provide Defense to Revocation of Illegally-Imposed Probation at New Violation Hearing
Criminal Defense Attorney Zak T. Goldstein, Esquire
The Pennsylvania Superior Court has decided the case of Commonwealth v. Diaz, holding that the fact that the defendant was on probation pursuant to an illegal anticipatory probation violation does not protect him from being found in violation again even though the existing probation is actually illegal.
The Facts of Diaz
In Diaz, the defendant was sentenced repeatedly for drug offenses committed between 2004 and 2022. At one point, his probation was revoked before it began. This is called an anticipatory probation revocation. It occurs when a defendant receives a prison sentence followed by a probation tail and is still serving the prison or parole portion of the sentence at the time of a violation hearing, meaning the actual probation sentence has not yet begun. Until recently, the probation could be violated before it began. In the cases of Commonwealth. v. Simmons and Commonwealth v. Rosario, the appellate courts did away with this procedure and found that a defendant could not be found in violation of probation of a probation sentence which had not yet started. The trial court would instead be limited to finding the defendant in violation of parole and sentencing the defendant to backtime. The probation would then start as scheduled when the parole expired.
Diaz had been found in anticipatory violation and sentenced to new terms of prison and probation. This procedure was illegal, but at the time, the courts had not yet found it to violate the probation statute. Accordingly, Diaz did not challenge the new sentence as illegal. He then proceeded to violate the new illegal probation, and the trial court sentenced him to jail. The deadline for challenging the illegal sentence had expired, but Diaz argued that he could not be found in violation of a probation sentence which was illegal. The trial court disagreed and found him in violation. Diaz appealed.
The Superior Court
The Superior Court rejected Diaz’s arguments on appeal. It found that if Diaz disagreed with the legality of his probation sentence, he should have appealed or filed a PCRA petition within the relevant deadlines. He did not do so, so the sentence became final even if it was initially illegal. Once the sentence became final, he was then on probation, and the trial court could find him in violation of that probation. He could not retroactively attack the legality of the sentence to defend against the probation violation even though the sentence was clearly illegal under the recent case law.
The Takeaway
There is a lot of tension in the law as to when and how a defendant may challenge an obviously illegal sentence once the deadlines for appealing or filing a PCRA petition have expired. Clearly, a defendant can file a post-sentence motion within ten days, an appeal within thirty days, or a PCRA petition within a year, but once those deadlines have expired, the case law is inconsistent as to whether the defendant may still attack the legality of the sentence. There are cases which hold that a trial court may fix an illegal sentence at any time, and other cases which hold that any claim which could be raised in a PCRA petition cannot be raised later simply by calling it something else like a motion to correct illegal sentence. The courts go back and forth on this issue, and unfortunately for Diaz, they found that his claim should have been addressed at the time the illegal sentence was imposed rather than when he subsequently violated the probation. Given the conflicting case law, this decision is likely headed for further review.
Facing criminal charges or appealing a criminal case in Pennsylvania?
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
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.
PA Superior Court: Hearsay from Confidential Informant Admissible at Preliminary Hearing if Commonwealth Asserts CI Will Testify at Trial
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
JUNE 6, 2024 UPDATE: The validity of this case is questionable following the Supreme Court’s decision in Commonwealth v. Harris. There, the Pennsylvania Supreme Court ruled that the Commonwealth must introduce at least some non-hearsay evidence identifying the defendant as the perpetrator of an offense in order to meet its burden at a preliminary hearing. It is hard to see how the police department’s decision to use a confidential informant or a desire to protect the identity of a CI would allow the Commonwealth to distinguish the clear holding of Harris and rely entirely on the hearsay of a CI in order to meet its burden at a preliminary hearing.
The Pennsylvania Superior Court has decided the case of Commonwealth v. Sutton, holding that the Commonwealth may introduce hearsay evidence as to what a confidential informant (“CI”) told the police at the preliminary hearing so long as the Commonwealth certifies that the CI will be available to testify at trial. This case presents two major issues: 1) the Commonwealth almost never actually calls a CI to testify at trial, and there is no mechanism in place to ensure that the Commonwealth does not simply say the CI will be available to testify and then that they have changed their minds about that when the case gets to the trial level, and 2) the Pennsylvania Supreme Court has clearly held that hearsay may not be used to establish a prima facie case of the defendant’s guilt at the preliminary hearing. Nonetheless, the Superior Court dismissed these concerns and reversed the trial court’s order dismissing the case against the defendant.
The Facts of Sutton
The Commonwealth charged the defendant with two counts of possession with the intent to deliver. At the preliminary hearing, the Commonwealth called one witness, Detective Michael Lamana of the Bradford County Drug Taskforce. Detective Lamana testified that on two dates in February and March of 2022, he worked with a confidential informant to purchase drugs from someone inside of the defendant’s house. Specifically, he went to the house with a CI, searched the CI for drugs and money, and after finding nothing on the CI, gave the CI pre-recorded buy money. He then sent the CI into the house to buy drugs. He could not see inside the house, so he obviously had no way of seeing what occurred inside, if the defendant was even present at the time, or if someone else could have sold drugs to the CI. The CI then returned with methamphetmaine and no money, suggesting the CI had purchased drugs inside.
The problem with this evidence, however, is that it establishes only that the CI probably bought drugs at the defendant’s house; it does not establish that the defendant in fact sold the drugs. Accordingly, this evidence would be insufficient to hold the defendant for court at a preliminary hearing. Recognizing this fact, the magisterial district justice allowed the detective to testify that the CI told him that they had bought the drugs from the defendant. With this hearsay testimony in evidence, the district justice was able to hold the case for court and send it to the Court of Common Pleas.
The Motion to Quash
The defendant filed a motion to quash (also known as a petition for writ of habeas corpus outside of Philadelphia) and asked the Court of Common Pleas to dismiss the charges because the Commonwealth improperly relied entirely on hearsay in getting the case held for court. Ultimately, the evidence that the CI bought drugs from inside of the defendant’s house was not enough to identify the defendant as actually selling the drugs. Someone else could have been living there or selling drugs from that location. And the hearsay obviously should not have been admitted given that the Supreme Court held in McClelland and the Superior Court held in Harris that prima facie case may not be established solely through hearsay. The Court of Common Pleas followed this binding precedent and dismissed the charges.
The Appeal
The Commonwealth appealed the trial court's decision. On appeal, the prosecution argued that it had presented some non-hearsay evidence in the form of the detective’s actual observations, it had certified that the CI would be available to testify at trial, and the rules limiting the use of hearsay at a preliminary hearing only prevent the Commonwealth from getting a case held for court based solely on hearsay. They do not prevent the Commonwealth from using some hearsay to get the case held for court or require the Commonwealth to disclose the identity of a CI by putting the CI on the witness stand at such an early stage in the proceedings. Therefore, the Commonwealth essentially argued for an exception to the rule that hearsay alone may not be used to establish the identity of the perpetrator of a crime at the preliminary hearing.
Superior Court's Decision
The Superior Court reinstated the charges on appeal. A divided panel of the Superior Court agreed. One judge concurred only in the result, opining that the evidence that drugs have been sold to the CI from the defendant’s home on two occasions was enough to establish a prima facie case for preliminary hearing purposes even without the hearsay from the CI. The other two judges, however, ruled that the Commonwealth may properly introduce the hearsay statements of a confidential informant at a preliminary hearing without violating the decisions in McClelland and Harris so long as the Commonwealth agrees to make the CI available for trial.
The court emphasized that the preliminary hearing’s purpose is to determine whether sufficient evidence exists to proceed to trial, not to establish guilt beyond a reasonable doubt. It highlighted that the Commonwealth's use of the CI’s statements through Detective Lamana’s testimony, alongside direct evidence of the controlled buys, sufficed to establish a prima facie case for the charges to proceed to trial.
Moreover, the court addressed the qualified privilege to protect the CI's identity, noting that disclosure at the preliminary hearing stage was not mandated. The ruling underscored that the CI's identity and the details of their statements could be protected, provided that the CI would be available to testify at trial. In the court’s view, this would balance the interests of law enforcement in prosecuting drug crimes and the defendant's right to a fair defense. Therefore, the court reinstated the charges.
Conclusion and Implications
This case is a disaster for maintaining due process protections at the preliminary hearing level. Those protections were only recently re-established by the Supreme Court’s decision in Commonwealth v. McClelland. For years, the Superior Court had ruled that the Commonwealth need not present any non-hearsay evidence at a preliminary hearing at all. The Supreme Court eventually reversed that line of cases in McClelland, holding that the rule against hearsay does apply at the preliminary hearing with limited exceptions, and the Superior Court went even further in Harris by holding that even where the Commonwealth establishes that a crime occurred through non-hearsay evidence, it must introduce real evidence to prove the identity of the perpetrator of the crime. These protections are absolutely critical. The preliminary hearing happens early in the proceedings - generally within a few weeks or months of a defendant’s arrest. And in a serious case such as a shooting, homicide, or drug or gun case where a defendant is on probation or parole, the defendant is likely in custody and may remain in custody until the case is resolved. The final resolution of a case may not occur for years in some instances. Therefore, the right to a meaningful preliminary hearing is critical as it prevents people from being held for years based on cases that the Commonwealth will never be able to actually prove in court with real evidence.
This decision, however, completely eliminates those protections for any defendant who is charged with a drug or gun offense based on an investigation involving a confidential informant. The Supreme Court’s case law and the Superior Court’s other case law does not support such a broad holding, so hopefully the defendant will appeal further and ask the Superior Court for re-argument or the Supreme Court to grant allocatur. Finally, at least in Philadelphia, the Commonwealth never actually makes the CI available for trial. Indeed, the Commonwealth will typically withdraw charges if they lose a motion to reveal the identity of the confidential informant rather than actually allow the defense to call that person to testify. Therefore, the case may be of limited impact in many places. It nonetheless poses a huge risk of the exception swallowing the general rule and reverse significant progress that has occurred over the last few years in terms of making sure that the preliminary hearing is a meaningful hearing and opportunity to test the evidence so that an innocent or over-charged defendant does not remain in custody for years waiting for trial without any chance to challenge the evidence.
Facing criminal charges or appealing a criminal case? We can help.
Goldstein Mehta LLC Criminal Defense Attorneys in Philadelphia
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 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.
PA Superior Court: Police May Drive Defendant’s Car to Secure Location While They Get Warrant
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Superior Court has decided the case of Commonwealth v. Floyd, granting the Commonwealth’s appeal and holding that the trial court erred in granting a motion to suppress drugs and guns where a Philadelphia police officer testified that he saw the defendant engage in two hand-to-hand transactions. The Court also held that the officers did not violate the defendant’s rights by driving the defendant’s car to a secure location to await the signing of a search warrant.
The trial court had granted the motion to suppress, finding that the police should not have driven the car themselves before they got the warrant and that the two alleged hand-to-hands did not provide probable cause to arrest the defendant and search the car. The Superior Court disagreed. The crux of the appeal was the admissibility of evidence seized from Floyd's vehicle following his arrest for alleged involvement in illegal narcotics transactions.
A member of the Philadelphia Police Department’s Narcotics Strike Force observed the defendant engage in suspicious transactions on September 9, 2021. The defendant was seen accepting money from two individuals and then handing them small objects. He went in and out of the car in question before each alleged transaction. One of the alleged buyers was not stopped, so the police could not confirm whether that person had purchased drugs. The second person, however, was stopped and searched by police, and she had containers of crack cocaine on her.
Based on these observations, the police arrested and searched the defendant. They also obtained a search warrant for his vehicle. Instead of having a tow truck move the car, one of the officers drove the vehicle to a secure location while they obtained the search warrant. They claimed that they did not actually search the vehicle en route to that location or before they got the warrant. The eventual search of the car resulted in the discovery of drugs and a gun with an obliterated serial number.
The defense challenged the seizure and subsequent search of Floyd's vehicle, filing a motion to suppress and arguing that the police's initial warrantless entry into the vehicle, to move it to a secure location pending the approval of a search warrant, violated the defendant’s constitutional rights. The trial court agreed and suppressed the evidence obtained from the car.
On appeal, the Superior Court held that the police action was justified under statutory authority, which allows for the seizure and relocation of a vehicle under certain conditions, such as when the vehicle's owner or user is in police custody, the vehicle is on public property, and there is probable cause to believe the vehicle contains evidence of a crime. The court found that the evidence had an independent source—the observations made by Officer Outterbridge prior to the vehicle's relocation—which validated the search warrant and the subsequent discovery of the narcotics and firearm.
The statute that allows the police to move a car under certain conditions is 75 Pa.C.S. § 3352(c), specifically subsection (c)(3). This provision is part of the Pennsylvania Vehicle Code and grants police officers the authority to remove or cause to be removed a vehicle to a place of safety or to the place of business of the operator of a wrecker or a nearby garage under the following circumstances:
The vehicle has been reported stolen or taken without the consent of its owner.
The person or persons in charge of the vehicle are physically unable to provide for its custody or removal.
The person driving or in control of the vehicle is arrested for an alleged offense for which the officer is required by law to take the person arrested before an issuing authority without unnecessary delay.
The vehicle is in violation of section 3353 (relating to prohibitions in specified places), except for overtime parking.
The vehicle has been abandoned, as defined in the title.
In this case, subsection (c)(3) was particularly relevant. This subsection applies when the person in control of the vehicle is arrested for an offense requiring that they be brought before an issuing authority without unnecessary delay. The statute gives police the authority to remove the vehicle to ensure its safety and the integrity of potential evidence, especially when the vehicle is on public property and there exists probable cause to believe it contains evidence of a crime.
Here, the Superior Court reasoned that the courts have held for about 15 years that one observation of a hand-to-hand transaction in a designated enforcement area or high crime area provides experienced narcotics officers with probable cause to stop a suspect and search them. In this case, the officer testified to seeing two hand-to-hand transactions. The first person had not been stopped, and the second person testified at the suppression hearing that she in fact had drugs on her but did not buy them from the defendant. Unfortunately, she did not testify that she did not in fact give anything to receive anything to or from the defendant. She just said she did not get the drugs from him. And the police testified that the defendant went in and out of the car before both alleged transactions. Thus, the Superior Court found probable cause to arrest the defendant and search him as well as to support the search warrant for the car. Based on the above statute, the police then had the right to move the car. Although it is better for them to use a tow truck to move the car, the statute does not explicitly direct that the police may not move it themselves.
This case presents two problems for the defense.
The Takeaway
First, this was really a credibility motion to suppress. The defense strategy was clearly to argue that the officer had not actually seen two drug transactions given that the defense called a witness, one of the alleged buyers, to say that she did not actually buy drugs from the officer. The trial judge, however, did not explicitly say that they were ruling based on credibility. If the trial judge had put a credibility ruling on the record and indicated that they did not believe the officer’s testimony, then it would have been virtually impossible for the Commonwealth to appeal. The judge, however, did not do that.
Second, the defense witness was not asked whether or not she gave anything to the defendant or took anything from him. This allowed the Superior Court to reason on appeal that she may have had an interactions with the defendant that looked like a drug transaction even if her testimony that she did not buy drugs from him was true. Probable cause looks at what a reasonable officer would believe in terms of whether they would find evidence or believe they had observed a crime – it does not require proof beyond a reasonable doubt that a crime actually occurred. Therefore, the Superior Court was able to grant the Commonwealth’s appeal. This ruling therefore highlights the importance of really arguing credibility and asking for a clear ruling on that issue if the basis of the motion is credibility and also making sure that the witnesses are asked the right questions during the hearing.
Finally, the case allows police behavior which is ripe for abuse. It is difficult to believe that narcotics officers, who typically do not wear body cameras in Philadelphia, would not at least look around the car a little bit while driving it to the station, and the next case will probably involve some claim by police that they had to do an inspection to make sure there was nothing that could harm the officer during the drive. The law is clear that police must get a warrant before searching a car absent a limited number of exceptions which did not apply here, but here, the officer drove the defendant’s car before the police got the warrant. To really comply with the rules, they should have had a tow truck tow the car. Hopefully, the defendant will pursue further appeals on this issue.
Facing criminal charges or appealing a criminal case? 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 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 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.
Attorney Goldstein Published in PACDL’s For the Defense Magazine on Differences in Federal and State Constitutional Protections
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
Philadelphia criminal defense attorney Zak T. Goldstein, Esquire was recently published in the Pennsylvania Association of Criminal Defense Lawyer’s For the Defense Magazine. Attorney Goldstein’s article focused on the differences between the protections provided by the Pennsylvania and United States Constitutions and the practical impact those differences may have on the litigation of motions to suppress and other challenges to improper seized evidence in state and federal court. Read more here.
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, 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 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.