Philadelphia Criminal Defense Blog

Zak Goldstein 11/24/17 Zak Goldstein 11/24/17

Feds Limit Definition of Fugitive of Justice and Allow More People with Arrest Warrants to Purchase Firearms

The FBI will now allow more people to purchase firearms even if they are the subjects of active arrest warrants.

Criminal Defense Lawyer Zak T. Goldstein, Esq.

Both Pennsylvania and United States law make it illegal for a fugitive from justice to purchase or possess a firearm. In order to enforce this prohibition, the FBI maintains a database of people who are ineligible to purchase a firearm that includes people who the FBI believes to have active arrest warrants. Until recently, the ATF and the FBI used different criteria in determining who met the definition of a fugitive from justice. The FBI has traditionally used a broader definition which included anyone with an active arrest warrant. The ATF, however, adopted a more limited reading of the phrase and defined a “fugitive from justice” as a person who both had a warrant for their arrest and traveled to a different state from the state in which the warrant was issued. Thus, the use of the ATF’s definition would result in fewer people being included in the Government’s database of prohibited persons.

Recently, the Department of Justice adopted the ATF’s more limited reading of the term and ordered that the FBI remove anyone who has not crossed state lines from the database. Accordingly, the FBI removed tens of thousands of people with active warrants for their arrest from the database, and those people may now be able to pass a federal background check when attempting to purchase a gun. This also means that those people will no longer be prohibited by federal law from purchasing or possessing a gun unless they meet some other criteria which would lead to a prohibition on firearms ownership.

Although this change in definition will allow many people to successfully purchase a firearm, some will remain ineligible to actually possess a firearm. For example, federal law makes it illegal to sell a gun to someone who is ineligible to possess the gun under the state law in effect at the location of the sale. Pennsylvania law also makes it illegal for a fugitive from justice to possess a gun, and Pennsylvania courts may not decide to follow the same definition as the Justice Department. Pennsylvania appellate courts do not appear to have defined the term fugitive from justice for purposes of the state version of the Uniform Firearms Act, but the courts have suggested that the definition includes the requirement that someone leave another state for purposes of extradition procedures. Further, a governmental agency’s interpretation of a statute is not always binding on the courts, and courts could conclude that fugitive from justice has the broader meaning initially taken by the FBI. Finally, federal law also makes it illegal for a person with pending criminal charges which are punishable by more than a year in prison to possess a firearm.

The change in definitions has resulted in the removal of tens of thousands of people from the FBI’s database, but it does not necessarily mean that all of the people removed are eligible to possess a firearm. This means that if you may have an active arrest warrant, you should speak with an attorney before attempting to purchase a gun even if you have not crossed state lines. You should also speak with an attorney about clearing up the warrant. Likewise, if you are facing federal or state charges alleging that you possessed a gun illegally because you were a fugitive from justice, you should contact a criminal defense lawyer immediately as the government may now have additional difficulty in proving those charges.

Award-Winning Philadelphia Criminal Defense Lawyers for Gun Charges and Weapons Offenses

Goldstein Mehta LLC Criminal Defense Lawyers

If you are under investigation for a crime or facing criminal charges, we can help. Our award-winning Philadelphia criminal defense attorneys have successfully defended thousands of clients. We offer a free, 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to speak with one of our experienced and understanding defense lawyers today.

Source: Washington Post

Zak Goldstein 11/17/17 Zak Goldstein 11/17/17

Can My Probation Officer Search My Cell Phone?

A probation officer must have reasonable suspicion in order to search a probationer or parolee's cell phone.

Probation and Parole Searches of Cell Phones

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Murray, rejecting the defendant’s challenge to his conviction on corpus delicti grounds and holding that a probation officer or parole agent may search a probationer’s cell phone without a search warrant.

Commonwealth v. Murray

In Murray, the defendant was charged with possession of a firearm by a prohibited person in violation of 18 Pa.C.S. § 6105. Murray’s Pennsylvania State Parole Agent became suspicious that Murray may have been involved in criminal activity after the Agent visited Murray’s group home for a home visit and Murray was not present. When Murray next reported to the parole office, the agent asked him about his living situation and why he had moved without permission. Murray explained that he had been threatened by a housemate with a gun. Murray told the agent that he wrestled the gun away from the housemate and gave it to another acquittance.

Because Murray admitted to possessing a firearm, the agent took him into custody and proceeded to read the text messages on his cell phone. The agent found two incriminating text messages which had been sent right before Murray reported. One told a friend: “Yo, Kel if you didn’t hear from me by tonight I am locked up. So, my stuff is over 1247 West Huntingdon Street.” The other stated: “And the thing I was telling you about that I took from the bully is in the bathroom right under the tub.”

Of course, parole agents went to search the group home at 1246 West Huntingdon Street and found a gun under the tub in the bathroom. The agents then called the police and gave the gun to the police. The police then charged Murray with possessing a firearm as a felon.

Murray moved to exclude the statements made to the parole agent regarding the gun and also moved to suppress the results of the warrantless search of his cell phone. The trial court denied both motions. Murray was convicted of the gun charge and sentenced to 4.5 – 9 years in prison.

On appeal, Murray raised two main issues. First, he argued that the Commonwealth failed to satisfy the corpus delicti rule because it failed to show that a crime had been committed prior to introducing the statements made by Murray. Second, he argued that the parole agent should have been required to get a warrant before searching his cell phone.

The Corpus Delicti Rule

The Superior Court rejected both arguments. First, the Superior Court rejected the corpus delicti challenge. The corpus delicti rule is a rule of evidence which prohibits the prosecution from introducing an incriminating statement against the defendant unless the prosecution can first show that a crime has occurred. The prosecution does not have to prove the crime beyond a reasonable doubt, but it must show that the evidence is more consistent with a crime than with an accident. The corpus delicti, latin for “body of the crime,” may be proven by circumstantial evidence.

Here, the parole agents found a gun in a group home where Murray and numerous other parolees lived. The gun was hidden inside a plastic bag under a bathtub in the only bathroom in the boarding house. Therefore, the Court concluded that because the gun was hidden in such a way, it was more likely than not that the person to whom the gun belonged possessed it illegally. Accordingly, Murray’s statement about possessing the gun did not violate the corpus delicti rule.

Probation Officers May Search a Cell Phone Without a Warrant

Second, the Superior Court rejected Murray’s challenge to the warrantless search of his cell phone. In many situations, the police may search a person’s belongings when they take that person into custody as part of an arrest. This is known as the search incident to arrest exception to the warrant requirement. For many years, this exception permitted the police to search an arrestee’s cell phone. Recently, in Riley v. California, the United States Supreme Court held that in general, police must obtain a warrant before searching a cell phone. The Superior Court, however, distinguished Riley by finding that parolee’s and probationer’s have a reduced expectation of privacy. Riley did not involve the cell phone of a suspect who was on probation or parole. Because probation officers and parole agents may conduct a search of a probationer’s house with reasonable suspicion and without having to obtain a warrant, the Superior Court held that the same rule should apply to a cell phone. Thus, a probation officer or parole agent must only have reasonable suspicion in order to search a cell phone.

The Court concluded that the agent has reasonable suspicion to search the phone because Murray admitted to possessing the firearm and giving it to someone else. The agent had reasonable suspicion that the phone could contain text messages discussing the gun or photos of Murray with the gun. Therefore, the Court affirmed the trial court’s decision to deny the Motion to Suppress.

Philadelphia Criminal Defense Lawyers for Gun Charges

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esq.

If you are charged with a VUFA offense, you need an attorney who has the knowledge and expertise to fight your case. Our award-winning Philadelphia criminal defense lawyers have successfully fought countless cases at trial and on appeal. We offer a 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.

Zak Goldstein 11/16/17 Zak Goldstein 11/16/17

Conviction for Possession of Firearm with Obliterated Serial Number Requires Intentional Modification of Serial Number

The prosecution must show more than the absence of a serial number. Instead, they must show that the defendant intentionally removed or modified the serial number on the gun.

The Pennsylvania Superior Court has just announced its decision in Commonwealth v. Ford, holding that a defendant may not be found guilty of 18 Pa.C.S. § 6110.2 (Possession of Firearm with Altered Manufacturer’s Number) when the numbers were altered through natural corrosion instead of intentional action. This decision protects individuals who own older firearms which have faded serial numbers. In Philadelphia, firearms offenses are taken very seriously, and prosecutors will often pursue severe sentences for defendants convicted of gun charges. If you are charged with possessing a firearm with an obliterated serial number or any offense involving a gun, it is crucial that you contact an attorney who is familiar with the law and is willing to fight for you.

Commonwealth v. Ford

In Ford, Philadelphia Police Officers received radio calls for a person bleeding and a person with a gun at 2010 Wilmot Street. The officers went to the backyard of that address, but no one was there. As they proceeded through an alleyway onto Ditman Street, the officers were then directed by bystanders to 4663 Ditman Street. While standing on the porch of that address, one of the officers heard screaming coming from inside the house. Based on the screaming, the high crime level in the neighborhood, and the radio call, the officers decided to knock on the door. When no one answered, the police entered the property without a warrant.

Once inside, the officers saw the defendant put an object which turned out to be a gun on the kitchen chair next to him. Officers promptly arrested the defendant after recovering the .38 caliber silver handgun. When officers looked at the gun, they could not see the manufacturer’s serial number. Because all modern firearms are required by law to have a serial’s number, the officers arrested the defendant and charged him with various Violations of the Uniform Firearms Act, including 18 PA C.S.A. § 6110.2 (possession of a firearm with an obliterated or altered serial number) and 18 PA C.S.A. § 6105 (possession of a firearm by a felon).

The defendant filed a Motion to Suppress, alleging that the gun should be suppressed because the police did not have a warrant when they entered the property. The Commonwealth responded that the officers were acting under the exigent circumstances exception. The exigent circumstances exception permits police to enter a house without a warrant under very limited circumstances – essentially, there must be a bonafide emergency or they must be in hot pursuit of a fleeing felon. After the officers testified to the reasons for entering without a warrant and argument from counsel, the trial court denied the Motion to Suppress. On appeal, the Superior Court affirmed, finding that though the police officers did not obtain a search warrant to enter the defendant’s home, the officers had probable cause and that there were exigent circumstances that warranted police entering his home given the radio call, the screaming, and the high crime nature of the area.

After the Motion to Suppress was denied, the defendant proceeded to trial by way of bench trial. Both the Commonwealth and the defense agreed that the serial number of the firearm had been obscured by corrosion as opposed to having been intentionally obliterated by the defendant. Nonetheless, the trial court found the defendant guilty of both possession of a gun by a felon and possession of a gun with an obliterated serial number, and the court sentenced him to a lengthy state sentence. The defendant appealed, arguing both that the trial court should have granted the Motion to Suppress and that the obliterated firearm statute does not make it illegal to possess a firearm where the serial number naturally wore away over the years and was not intentionally removed.

What is § 6110.2 (possession of a gun with an obliterated serial number)?

§ 6110.2 is one of several statutes that collectively form the Pennsylvania Uniform Firearms Act. In Philadelphia, charges brought under the Act are commonly referred to as VUFA charges, or Violations of the Uniform Firearms Act. § 6110.2 makes it illegal to possess a firearm which has the manufacturer’s number integral to the frame or receiver altered, changed, removed or obliterated.” Further, unlike some of the other VUFA statutes, § 6110.2 does not require that the firearm be operable. Also, it is not a defense to § 6110.2 that the defendant possessed the gun at his or her residence or place of business, making the statute very different from § 6106 (possessing a concealed firearm or a firearm in a car without a license to carry) and § 6108 (possessing a firearm on the streets of Philadelphia). Further, § 6110.2 has recklessness as its mens rea, making it easier for prosecutors to prove as this is a lesser mens rea than other offenses (i.e. specific intent, where a defendant specifically intended to commit a particular crime) and thus easier for the Commonwealth to prove. So, typically, § 6110.2 can be difficult to defend if a defendant is not successful at the suppression hearing.

The Superior Court Restricts § 6110.2

The issue in Ford was whether possessing a firearm with the serial number that had merely corroded would be sufficient for a conviction under § 6110.2. The Superior Court concluded that it would not. In making its decision, the Superior Court employed statutory interpretation to determine what the General Assembly intended when it passed § 6110.2. As previously stated, it is illegal to possess a firearm when the manufacturer’s number is either altered, changed, removed or obliterated. Throughout Ford, the Superior Court emphasized that it would not “add” to § 6110.2, by quoting Commonwealth v. Johnson, 26 A.3d 1078, 1090 (Pa. 2011) holding that “although one is admonished to listen attentively to what a statute says; one must also listen attentively to what it does not say.”

The Superior Court began its analysis by consulting the Crimes Code. § 6102 is the definitions section of the VUFA statutes, however “altered,” “changed,” “removed” or “obliterated” are not defined in this section. The Superior Court then turned to Webster’s Dictionary for guidance. They summarized their findings as follows:

[W]e consult[ed] the dictionary, which defines (1) “alter” as “to cause to become different in some particular characteristic (as measure, dimension, course, arrangement, or inclination) without changing it into something else,” (2) “change” as “to make different . . . in some particular but short of conversion into something else . . . [or] to make over to a radically different form, composition, state, or disposition,”; (3) “remove” means “to get rid of as by moving” as in eradicate or eliminate, and is synonymous with erase; and (4) “obliterate” as “1 : to remove from significance and bring to nothingness : as a: to make undecipherable or imperceptible by obscuring, covering, or wearing or chipping away . . . b: to remove utterly from recognition . . . or c (1): to remove from existence : make nonexistent : destroy utterly all traces, indications, significance of . . . (2) to cause to disappear[.]”

Based on this analysis, the Superior Court held that natural corrosion did not fall within the definitions of altered, changed, removed, or obliterated. Therefore, the defendant should not have been found guilty of § 6110.2. Because the defendant’s conviction for § 6110.2 ran concurrent to his § 6105 conviction and was identical to it, the Superior Court then vacated the defendant’s sentence for § 6110.2, but did not remand it for resentencing.

VUFA Cases and Weapons Offenses

Goldstein Mehta LLC Philadelphia Criminal Defense Lawyers

Zak Goldstein 10/21/17 Zak Goldstein 10/21/17

Recent Case Results - Motion to Suppress and Speedy Trial Motions Granted

Award-Winning Philadelphia Criminal Defense Lawyers

The Philadelphia criminal defense attorneys of Goldstein Mehta LLC continue to obtain outstanding results both in and out of the court room. Our defense lawyers have fought for successful outcomes in cases involving a wide variety of charges including robbery, burglary, assault, probation violations and probation detainers, and gun charges. Some of our recent success stories include:

Commonwealth v. G. – Motion to Suppress Confession for Lack of Miranda Warnings Granted in Shooting Case

In Commonwealth v. G., Attorney Goldstein successfully moved for the suppression of an incriminating statement in a case in which the defendant was charged with gun charges including Violations of the Uniform Firearms Act (“VUFA”) Sections 6108, 6106, and 6105 as well as conspiracy, tampering with evidence, and recklessly endangering another person. The Commonwealth alleged that G. accompanied his co-defendants to a location where a shooting broke out. After the complainants returned fire and shot one of the co-defendants, G. allegedly took the gun and hid it. When G. went to visit his friend at the hospital, police arrested him and began interrogating him, resulting in a confession which implicated G. in hiding the gun.

Attorney Goldstein moved to suppress the statement and the firearm due to violations of the Miranda rule. Pennsylvania and federal law both require the police to read suspects their Miranda warnings prior to interrogating them. Prior to asking any questions which could lead to incriminating answers, police must advise a suspect who has been arrested and taken into custody that the suspect has:

The right to remain silent,
The right to an attorney and that the attorney will be paid for by the government if the suspect cannot afford an attorney, and
That anything the suspect says can be used against them in court.

Shortly before trial, prosecutors admitted that detectives had actually interrogated G. twice. First, they interrogated him immediately upon his arrival at the police station when they had not yet provided him with Miranda warnings at that time. After obtaining a confession, police quickly provided G. with Miranda warnings, questioned him again, and obtained a signed statement.

Attorney Goldstein successfully moved to have both statements suppressed due to detective’s failure to provide Miranda warnings prior to the first interrogation. Under federal law, police may not intentionally fail to provide Miranda warnings in order to obtain a confession, then provide warnings, and quickly re-interrogate the defendant after providing the warnings. Instead, federal courts have applied a sort of “good faith exception” when evaluating whether prosecutors may use a second, Mirandized statement which is substantially similar to a prior un-Mirandized statement. Where police make a mistake in failing to provide Miranda warnings or where the circumstances change enough so that the second statement is not directly related to the first, the statement may become admissible. The Commonwealth attempted to justify the failure to warn by arguing that it had been inadvertent and that there was a break in the chain between the first and second interrogations due to the passage of time.

Here, Attorney Goldstein successfully argued that the police intentionally failed to provide Miranda warnings during the first statement. Additionally, there was no break in the chain between the two interrogations. The second interrogation happened almost immediately, took place in the same location, and involved the same police detective. The trial court agreed and granted the Motion to Suppress, ruling that both statements could not be used at trial. Once the statements were excluded, the Commonwealth agreed that it would not appeal the court’s ruling if G. accepted a plea deal for a misdemeanor charge and probation. The successful Motion to Suppress helped G. avoid a felony gun conviction and years in state prison.

Commonwealth v. A. – Robbery, Burglary, and Assault Charges Dismissed for Speedy Trial Violation.

In Commonwealth v. A., Attorney Goldstein successfully moved to have all charges against the client dismissed due to the prosecution’s violation of Pennsylvania Speedy Trial Rules, specifiically Pennsylvania Rule of Criminal Procedure 600(A). A. and a co-defendant were charged with dressing up as police officers and forcing their way into a massage parlor. Once inside, the defendants allegedly demanded money from the employees. The employees called the police, and the defendants were arrested inside the massage parlor. The Commonwealth immediately brought charges for robbery, burglary, assault, and other related charges.

Unfortunately for the prosecution, the Commonwealth brought the charges without completing its investigation. At the first trial listing, the Commonwealth was not prepared to proceed because it had improperly failed to turn over critical witness statements and evidence in advance of trial. The trial court marked the continuance as a Commonwealth continuance request, and by the time the second jury trial listing arrived, the defendant had been awaiting trial for two years.

Philadelphia Criminal Lawyer Zak T. Goldstein, Esq.

Pennsylvania Rule of Criminal Procedure 600(A) requires that all criminal defendants be brought to trial within 365 days of the filing of the criminal Complaint. There are exceptions for things like court continuances and circumstances outside of the prosecution’s control, but in order to qualify for an exception, the Commonwealth must show that its prosecutors acted with due diligence in prosecuting the case. In this case, Attorney Goldstein successfully argued that the judge at the first trial listing had already found that the prosecution acted without due diligence in failing to provide witness statements and other discovery materials in advance of the first trial date. Because the Commonwealth never asked the first judge to reconsider the ruling in writing, Rule 600 barred the Commonwealth from asking the new trial judge to reconsider the first judge’s ruling without some showing of obvious error on the part of the first judge. The court agreed and dismissed all of the charges in this extremely serious case.

Commonwealth v. M. – Car Theft Charges Dismissed at Preliminary Hearing

In Commonwealth v. M., the client was charged with multiple counts of Receiving Stolen Property, Theft by Unlawful Taking, Unauthorized Use of an Automobile, and Theft from a Motor Vehicle. Prosecutors alleged that in one case, M. stole the complainant’s car and drove it around for a night before leaving it abandoned on a nearby street. Further, numerous valuable items were missing from the car, leading to additional allegations that M. had stolen the items.

In a second case which had been joined for the preliminary hearing, prosecutors alleged that M. broke into a parked car, stole valuable items, and transported those items to his house. When prosecutors executed a search warrant on M.'s house, they found M. and another gentleman in the living room along with the stolen items. Neither man was closer to the items, said anything incriminating, or attempted to flee, and the other man's hospital ID had actually been found by police in the stolen car in the first case.

In both cases, the prosecution attempted to rely entirely on hearsay at the preliminary hearing under the Superior Court's opinion in Commonwealth v. Ricker. The prosecution sought to have a police detective, who had no personal knowledge of who took the car or took items from the other car, testify that a witness who failed to appear for court saw M. driving the car on the night in question.

Attorney Goldstein’s repeated objections to this hearsay testimony led to it being excluded from evidence at the preliminary hearing, and without the hearsay, the evidence was completely insufficient for the preliminary hearing judge to hold M. for court. This was particularly true in light of the fact that the other gentleman's hospital wristband was found by police in the stolen car. Accordingly, the court dismissed all charges against M. This case shows that even with the trend of judges permitting more and more hearsay at preliminary hearings, there are still limits. This is especially true in Philadelphia where judges tend to require that witnesses have some level of personal knowledge before they will hold a case for court.

Probation Detainers Lifted – In the last six weeks, our Philadelphia criminal defense attorneys have successfully moved to have probation detainers lifted for three separate clients who were on probation and subsequently arrested on new charges. This includes the lifting of a probation detainer for a client who was on probation for a gun charge and who was arrested on a new case of Possession with the Intent to Deliver.

State v. D. – Prosecution Agrees to Dismiss All Charges in New Jersey Prison Contraband Case

In State v. D., the client was charged with third degree indictable offenses in New Jersey for allegedly smuggling drugs into the prison during a visit with a friend. The prosecution obtained both video of the incident and phone calls which it claimed implicated D. in the offense. After convincing the Assistant Prosecutor that even if real, the phone calls would not be admissible against D. due to violations of New Jersey wiretap and recording laws, the prosecution agreed to dismiss all charges. D. will avoid a felony conviction and jail time.

Commonwealth v. K. – All Charges Dismissed in Third Strike Carjacking (Robbery of a Motor Vehicle) Case.

K. was charged with stealing his ex-girlfriend’s car by snatching the keys out of her hand and driving off in the car. Although this allegation would only have been Robbery as a felony of the second degree, the case became a third strike and a carjacking because of the fact that K. allegedly took a car. Carjacking (Robbery of a Motor Vehicle) is considered a crime of violence under Pennsylvania law for purposes of the three strikes rule. Due to prior convictions, K. would have faced a mandatory 25-50 years in prison if convicted of Robbery of a Motor Vehicle because carjacking is a “strike” case. Fortunately, our criminal defense attorneys were able to have all charges dismissed at the preliminary hearing level.

Commonwealth v. J. – Our criminal defense lawyers were able to successfully negotiate a misdemeanor offer of probation for a client who was initially charged with F1 Strangulation, Robbery, and Aggravated Assault. First, we were able to have the strangulation charge dismissed at the preliminary hearing and the other felonies graded as felonies of the second degree. Once the felonies were no longer F1 strike offenses, the Commonwealth’s offer substantially improved, and we were eventually able to negotiate a misdemeanor probationary offer for the client, thereby avoiding jail time and a felony conviction.

Criminal Defense Attorney Demetra P. Mehta, Esq.

Commonwealth v. A. – All charges against A. were dismissed after our defense lawyers negotiated for A. to participate in the domestic violence diversionary program. After A. completed community service, counseling, and paid a small fine, the Commonwealth withdrew Simple Assault, Terroristic Threats, and Recklessly Endangering Another Person charges against A.

Commonwealth v. R. - The client was arrested and charged with Robbery, Assault, and related charges while on probation for a serious offense. Because there was clear video of the incident occurring, the client was hoping to obtain a plea deal for the shortest possible sentence. The client's previous attorney had been unable to negotiate for anything less than a 1-2 year state prison sentence. After retaining Goldstein Mehta LLC, our defense lawyers were able to negotiate a sentence of 11.5 - 23 months with work release eligibility and no additional jail time on the direct probation violation.

Charged with a crime? Speak with a Philadelphia Criminal Defense Lawyer Today

If you are facing criminal charges or are interested in appealing a conviction, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully resolved countless cases at trial and on appeal. We offer a 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.