Philadelphia Criminal Defense Blog
PA Superior Court: Hospital Interrogation May Require Miranda Warnings
Criminal Defense Lawyer Zak Goldstein
The Pennsylvania Superior Court has decided the case of Commonwealth v. Harper, holding that trial counsel provided the ineffective assistance of counsel in failing to 1) move to suppress the defendant’s confession for lack of Miranda warnings, 2) object to the introduction of the defendant’s confession at trial based on the corpus delicti doctrine, and 3) object to impermissible lay opinion testimony from the arresting officer that the defendant’s gun shot wound must have been self-inflicted.
The Facts of Harper
In Harper, police officers charged the defendant with persons not to possess firearms (VUFA 6105) and firearms not to be carried without a license (VUFA 6106) after he made incriminating statements to a police officer while in the hospital. At trial, the Commonwealth presented the testimony of a local police officer who testified that he and his partner responded to a report of a shooting. They were told to go to the hospital to speak with the defendant. When they arrived, the defendant was in a hospital bed and had received medical treatment for a gunshot wound. The officer saw that the defendant had a gunshot in his knee area.
The officer testified that based on his experience and his observation of the angle and location of the wound, the defendant had a self-inflicted gunshot wound. This would be a problem for the defendant with respect to the gun charges because it would establish that he must have possessed a firearm illegally in order for the wound to have been self-inflicted. The criminal defense attorney failed to object to this opinion testimony from the officer.
Suspicious that the wound had been self-inflicted, the officer began questioning the defendant. The officer told the defendant that he was going to perform a gunshot test on his hands to see if he had recently fired a gun. He was bluffing, but the defendant believed him. He also told the defendant that he was going to check his clothes for residue, as well. The officer then actually administered a fake test by swabbing his hands with a Q-tip and saline. The defendant promptly confessed to shooting himself, thereby establishing the illegal gun possession.
After successfully obtaining this full confession, the police decided that it was then time to administer Miranda warnings. The defendant received his Miranda warnings and then confessed again. The United States Supreme Court has held that this kind of two-step Miranda warning procedure is unconstitutional.
The police never found the gun. There was no evidence at trial that anyone saw the defendant shooting anyone, getting shot at, or possessing a gun. The parties stipulated that he had a felony conviction which made him ineligible to possess a firearm. He did not testify. The court found the defendant guilty and sentenced him to three to six years’ incarceration followed by three years’ probation.
The PCRA Petition
Instead of filing a direct appeal to the Superior Court, the defendant pursued a Post-Conviction Relief Act Petition in the Court of Common Pleas. In the Petition, the defendant alleged that he received the ineffective assistance of counsel from his trial attorney. Specifically, he alleged that his attorney was ineffective in 1) failing to move to suppress the statement on Miranda grounds, 2) failing to object on corpus delicti grounds, and 3) failing to object to the officers opinion testimony regarding the wound being self-inflicted. The trial court denied the PCRA Petition, and the defendant appealed to the Pennsylvania Superior Court.
Are Miranda warnings required for hospital interrogations?
First, the defendant alleged that his criminal defense attorney should have moved to suppress his hospital confession on the grounds that police failed to provide him with Miranda warnings prior to questioning him. In general, the police must provide Miranda warnings prior to questioning a suspect when the suspect is in custody AND the police are going to ask questions or make statements reasonably likely to elicit an incriminating statement. Here, it was clear that the police asked questions which were designed to obtain incriminating information. Therefore, the real issue was whether the defendant was in custody for Miranda purposes when they questioned him at the hospital given that they had not transported him to the police station, put him in handcuffs, or told him that he was under arrest.
The Superior Court found that he was in custody. A person is in custody when the officer’s show of authority leads the person to believe that he is not free to decline the officer’s request or otherwise terminate the encounter. A court must consider the totality of the circumstances, including factors such as “the basis for the detention; the duration; the location; whether the suspect was transported against his will, how far, and why; whether restraints were used; the show, threat, or use of force; and the methods of investigation used to confirm or dispel suspicions.”
The Superior Court found that the defendant was in custody for Miranda purposes. First, the officers believed that he was likely guilty and so it is likely that their behavior would have reflected that belief. Second, the officers did not simply ask questions. Instead, they issued commands that the defendant submit to the fake gunshot powder residue test. Third, based on the defendant’s condition and the commands issued by the officers, a reasonable person in the defendant’s position would not have felt free to leave. Therefore, the defendant was in custody for Miranda purposes, and a motion to suppress his statement would have been successful. The Court found that trial counsel was ineffective in failing to move to suppress the statement because such a motion would have been granted. The Court reversed the defendant’s conviction as there was no other evidence linking him to possession of a firearm.
What is corpus delicti?
Second, the PCRA Petition also alleged that the trial lawyer was ineffective in failing to object to the admission of the statement on corpus delicti grounds. Corpus delicti is a doctrine of criminal law which stands for the proposition that the Commonwealth must show that a crime actually occurred before using a defendant’s statement to convict him at trial. In order to prove corpus delicti, the Commonwealth must show that the evidence is more consistent with a crime than with an accident. This protects a defendant from being convicted based solely on a statement where it is possible that no crime actually occurred. In order for a statement to be admissible, the prosecution must prove the corpus delicti by a preponderance of the evidence. In order for the statement to actually be considered by the fact finder, the Commonwealth must prove a crime occurred beyond a reasonable doubt.
Here, the Commonwealth failed to establish the unlawful possession of a firearm with any evidence other than the defendant’s statement. It showed only that the defendant had been shot. It did not show, without his statement, that he had actually possessed the gun or that anyone ineligible to do so had possessed the gun. Accordingly, it was just as possible that someone else who could possess a gun lawfully had shot the defendant. Therefore, the Commonwealth failed to establish corpus delicti. Had the defense attorney objected on this basis, the court would have sustained the objection, and the confession would have been inadmissible. Accordingly, the Superior Court found the defense attorney ineffective on this basis and would have reversed the conviction for this reason, as well.
May a police officer testify that a gunshot wound is self-inflicted?
Finally, the defendant alleged that his trial attorney provided the ineffective assistance of counsel in failing to object to the officer’s opinion testimony that the wound was self-inflicted. Under Pennsylvania Rule of Evidence 701, some opinion testimony from witnesses is admissible where the testimony is a) rationally based on the witness’s perception, b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
The defendant alleged that the officer’s testimony violated part c of the rule in that it was really based on scientific, technical, or other specialized knowledge that would require the officer to be qualified as an expert in gunshot wounds. The Commonwealth never sought to tender the officer as such an expert or establish that he really had the qualifications to provide this type of opinion. Therefore, the Superior Court found that the defense attorney was ineffective in failing to object to this improper opinion testimony that the wound was in fact self-inflicted. Given that the Court agreed with the defendant with respect to all three allegations in the PCRA Petition, it reversed his conviction and remanded the case to the trial court for a new trial.
If you need a criminal defense attorney in Philadelphia, PA, we can help.
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, Rape, DUI, 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.
Philadelphia Criminal Defense Lawyer Zak Goldstein Wins Motion to Suppress in Gun and Drug Case
Gun Charges Defense Lawyer Zak Goldstein
Criminal defense attorney Zak T. Goldstein, Esquire recently won an important motion to suppress the physical evidence in the case of Commonwealth v. A.W. In A.W., the Philadelphia Police Department narcotics unit had recently received a complaint from a local city councilwoman’s office with information that drugs were being sold outside on a certain block. Officers from the Narcotics Field Unit quickly went to that block and set up a surveillance operation. They claimed that as they were watching the block, the defendant drove up and parked across the street from them. They were then able to see into his car and see that he had taken money out of his pocket and begun counting it. He put the money away, got out of the car, and started walking up the block. The defendant then made a phone call, turned and jogged in the opposite direction, and met up with another black male in the middle of the block. They shook hands and then walked into an unknown house out of view on that street.
After about ten minutes, the officers saw A.W. return to his car, but he was now carrying a plastic shopping bag into which they could not see. He got back in the car and drove away. Believing that a drug transaction had occurred, the surveillance officers radioed for backup officers to stop A.W. and search him and his vehicle. When backup officers pulled A.W. over, they found a gun in his waistband and a significant amount of marijuana and other drugs in the car. The Philadelphia police arrested A.W. and charged him with Possession with the Intent to Deliver, Knowing and Intentional Possession of a Controlled Substance, and numerous Violations of the Uniform Firearms Act including Section 6105 (felon in possession), Section 6106 (carrying a concealed firearm without a permit), and Section 6108 (carrying a firearm on the streets of Philadelphia). Given all of these charges, A.W. was potentially facing decades in prison.
Fortunately, A.W.’s family quickly retained Philadelphia Criminal Defense Attorney Zak Goldstein. Attorney Goldstein reviewed the police reports, defended A.W. at the preliminary hearing, and filed a motion to suppress the evidence, arguing that police had not actually seen any evidence of criminal activity which would justify the stop of A.W.’s vehicle and the search of his person and the car.
The Philadelphia Court of Common Pleas – Criminal Division held an evidentiary hearing on the motion to suppress. During the hearing, the officer testified to the above observations as well as his conclusion that he had witnessed a drug transaction due to the fact that A.W. was in a high crime area, was counting money, did not seem to know exactly where he was going prior to making the phone call, and went into a house and then came back with an opaque shopping bag that could contain drugs.
Attorney Goldstein successfully convinced the Court that all of these observations were equally consistent with totally legal behavior. There was simply nothing illegal about being in that area, counting some money, and then going into a house. The trial court agreed and granted the motion to suppress. Without the ability to introduce the drugs or gun into evidence, the Commonwealth was forced to move to dismiss the charges, and A.W. was quickly freed from custody with no conviction.
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 in cases involving charges such as Conspiracy, 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.
Video Explanation of Federal Felon in Possession of a Firearm Charges
PA Superior Court: Search of Cell Phone After Expiration of Search Warrant Violates Fourth Amendment
Zak Goldstein - Philadelphia Criminal Defense Attorney
The Pennsylvania Superior Court has decided the case of Commonwealth v. Bowens, holding that the police may not search a cell phone after the warrant authorizing the search has expired even if the police initially had technical difficulties with the phone and did not view any data that would have been generated after the warrant expired. This is an important decision because it shows that PA appellate courts continue to reject prosecutors’ attempts to create a good faith exception to the exclusionary rule in Pennsylvania.
Commonwealth v. Bowens
On October 12, 2016, a Pennsylvania State Trooper observed a vehicle abruptly change lanes from the passing lane to the right lane, nearly hitting another vehicle. After activating the emergency lights on his vehicle, the trooper observed the driver of the vehicle reaching over towards the glove box as he pulled the car onto the shoulder of the road. The defendant was sitting in the front passenger seat. While speaking with the defendant and the driver, the trooper noticed that the men seemed nervous. The driver informed the trooper that the car belonged to his girlfriend in New Jersey. He also stated that he and the defendant were travelling from York to Lancaster and then to Chester and Philadelphia.
While the trooper was speaking with them, another trooper learned that there were arrest warrants outstanding for both men. The trooper then took the men into custody and took possession of their cell phones. The trooper then set the defendant’s phone to airplane mode and placed it inside an aluminum foil-lined pouch for safekeeping. The trooper impounded the vehicle and conducted an inventory search. The glove box was locked, and both the defendant and the driver denied having the key. They also denied knowing anything about the contents of the glove box. The trooper then contacted the driver’s girlfriend who gave him permission to search the glove box. She also stated that the driver had the key.
The trooper obtained a search warrant to search the glove box. Inside the glove box, he found heroin, drug paraphernalia, and two firearms. The trooper then obtained a search warrant for the cell phones and provided them to a detective with the Northern York County Regional Police Department who was a forensic expert in the field of cell phone data extraction. The search warrant expired on October 16, 2016 at 10:45 AM. On October 20, 2016, the detective notified the Trooper that he had completed the cell phone extraction, which revealed text messages between the defendant and his companion using language common to the illicit drug trade. The defendant’s phone also contained photographs of cash and of a handgun similar to the one found in the glove box.
The defendant was subsequently charged with Possession with the Intent to Deliver (“PWID”), conspiracy to PWID, Receiving Stolen Property, Firearms Not to be Carried without a License, and Possession of Drug Paraphernalia. The defendant then filed a motion to suppress. At the motion to suppress hearing, the trial court denied his motion in part and granted it in part. The defendant argued that the contents of the defendant’s phone search should be suppressed because his phone had been searched after the search warrant had expired. However, the trial court held that because the phone had been in airplane mode, there were no “staleness concerns that would be present in other factual scenarios where the probable cause determination would have expired.” Further, the trial court found that delay in searching the phone “was a product of coordination delays between the police possessing the software and the expertise to do the job.” The court did hold that any information that was sent to the phone after the search warrant had expired would be inadmissible at trial.
The defendant then proceeded to a jury trial where he was found guilty of all the charges, and he was sentenced to 15 years 9 months’ to 31 years 6 months’ incarceration. The defendant then filed a timely post-sentence motion. After the trial court denied the motion, he filed his appeal. On appeal, the defendant raised several issues. However, for purposes of this blog, only the issue of whether the evidence was sufficient to convict the defendant of the drug and firearms offenses and whether the trial court improperly denied his motion to suppress the data that was found on his phone.
Do Search Warrants Expire in Pennsylvania?
Yes. Rule 205(A)(4) of the Pennsylvania Rules of Criminal Procedure states that a search warrant must be executed within a specific period of time, not to exceed two days from the time of the issuance or if the warrant is issued for a prospective event, then only after the event has occurred. There are not exceptions to Rule 205(A)(4) and the failure to adhere to this rule amounts to a “federal constitution violation.”
The Superior Court’s Decision
The Superior Court reversed the trial court’s decision to deny the motion to suppress. The Court found that the trial court committed reversible error when it denied the defendant’s motion to suppress. The trial court found that because the detective searched the phone past the expiration date of the search warrant, this amounted to warrantless search. Additionally, the Superior Court found that this error was not harmless, because the evidence from the cell phone extraction was the only evidence that the Commonwealth presented to support its conspiracy charge.
Additionally, the Superior Court found that there was not enough evidence to convict the defendant of possessing the firearms or the drugs. The Superior Court reasoned that the Commonwealth did not prove that the defendant had constructive possession of the contraband at the time of the traffic stop. The Superior Court stated that the defendant did not have access to the key to the glove compartment because it was in possession of his co-defendant and there was no evidence presented that he had control over the contraband. Rather, the only thing the Commonwealth proved was that the defendant was merely present in the vehicle at the time of the traffic stop.
Consequently, the defendant’s sentence was vacated. His convictions for PWID, Possession of Drug Paraphernalia, Receiving Stolen Property, and Firearms Not to be Carried Without a License are also vacated and the Commonwealth cannot retry him on those charges because the evidence was not sufficient to convict him of them. Therefore, the only charge remaining against him is the conspiracy charge and he will get a new trial on that charge.
Facing Criminal Charges? We Can Help.
Criminal Defense Lawyers 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 in cases involving charges such as Conspiracy, 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.