Philadelphia Criminal Defense Blog

Zak Goldstein 11/9/22 Zak Goldstein 11/9/22

PA Superior Court: Police May Enter Car To Retrieve Ghost Gun Without Warrant If Gun In Plain View

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Superior Court of Pennsylvania has decided the case of Commonwealth v. Malik Smith, overturning a previously granted motion to suppress relating to the search of a vehicle from which the police found a “ghost gun.” The Superior Court concluded that the trial court should not have suppressed a gun found in a car pursuant to a warrantless search of that car because the police properly entered the car under the “plain view” exception to the warrant requirement.

The Facts of Com v. Malik Smith

The defendant was pulled over in his vehicle for operating the vehicle with excessive tint on the windows in violation of the Motor Vehicle Code. The defendant was the lone occupant of the vehicle and was directed to roll down all the windows. As Officers approached the vehicle, one of the Officers observed a firearm on the rear floorboard. The officers ordered the defendant to exit the car, put him in handcuffs, and put him in the back of the police car. The defendant did not have a license to carry and was eventually charged with various violations of the uniform firearms act (VUFA). Prior to trial, the defendant moved to suppress the gun, arguing that police should have obtained a search warrant prior to the search and that the search was not legal under the plain view exception to the warrant requirement because the police did not know if the defendant had a license to carry. The trial court granted the motion to suppress, and the Commonwealth appealed.

The Superior Court’s Ruling on Appeal

The Superior Court reviewed the legal conclusions de novo, limited by the factual findings of the trial court. In its review, the court determined that the plain view doctrine allowed for the seizure of the firearm without a warrant. The Superior Court prefaced this determination based on a previous case Commonwealth v. Collins, 950 A.2d 1041 (Pa. Super. 2008). In Collins the court set out a three-pronged standard: “(1) an officer views the object from a lawful vantage point; (2) it is immediately apparent to him that the object is incriminating; and (3) the officer has a lawful right of access to the object.”

First, the Superior Court determined that the traffic stop was lawful and thus when the officer observed the firearm, it was from a lawful vantage point. The traffic stop for the window tint was justified because window tint violates the Motor Vehicle Code. Therefore, police had the authority to conduct the initial stop and pull the vehicle over.

Second, the court reviewed the second factor of whether it was immediately apparent that the firearm was incriminating - in other words, was it obviously illegal or some kind of contraband. In Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), the Pennsylvania Supreme Court ruled that possession of a firearm is not enough to infer criminal activity. When the officer observed the firearm, however, based on his years of experience, he was able to see that it had been modified, and was a “ghost gun.” Using a totality of the circumstances approach, the Superior Court determined that the incriminating nature of the firearm must have been immediately apparent, meeting the second prong. This factor is the most dubious under Hicks, but ghost guns are generally not legal in Pennsylvania, so had the officer not been able to tell that it was a ghost gun, the court might have reached a different conclusion. Finally, the court found probable cause to believe a crime had been committed based on the incriminating appearance of the firearm. Because the officer lacked advance notice and an opportunity to obtain a warrant, the officer had a lawful right to access the firearm and conduct a search.

Having met the three prongs needed to meet the plain view exception, the Superior Court determined that the seizure was lawful and did not violate the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. It therefore reversed the order of the trial court and remanded the case for trial. This case unfortunately represents a step away from the broad privacy rights granted by the Supreme Court in Commonwealth v. Alexander and Commonwealth v. Hicks. In Commonwealth v. Alexander, the Supreme Court held that police should get a search warrant prior to searching a car. In Hicks, the Court held that police may not assume that someone is possessing a gun illegally because many people possess firearms perfectly legally under the Second Amendment. Now, however, the Superior Court has begun to carve out significant exceptions to these two basic principles to the detriment of the defendant in this case and to the rights of citizens everywhere to be free of warrantless searches.

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. We have also won criminal appeals in state and federal court. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 10/3/22 Zak Goldstein 10/3/22

PA Superior Court: Defendant May Raise Ineffective Assistance of Counsel Claims on Direct Appeal Where Claims Are Obvious From Record

Zak Goldstein - Criminal Defense Lawyer — Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. McMahon, holding that inadmissible opinion testimony from police about crimes the defendant may have committed but for which he was not charged require a new trial and that the defendant should have been able to raise the claim that his lawyer should have objected to this testimony on direct appeal because the ineffective assistance of counsel was obvious from the record.

Commonwealth v. Bieber

A Pennsylvania jury initially found the defendant guilty of one count of carrying firearms without a license and four counts of harassment. The jury found the defendant not guilty of 16 other counts. The defendant had originally been charged with aggravated assault and other more serious offenses. The court sentenced the defendant to a short county jail sentence, and the defendant appealed. The defendant won his first appeal after successfully arguing that the trial court had conducted a defective waiver-of-counsel colloquy. The appellate courts remanded the case for a new trial.

At the second trial, the Commonwealth proceeded only on the VUFA § 6106 charge because the defendant had been acquitted of the other offenses. Thus, even though he won his first appeal, double jeopardy had attached to the offenses of which he was acquitted. It did not attach, however, to the offense of which he was originally convicted.

VUFA § 6106 makes it illegal to carry a concealed firearm or a firearm in a car without a license to carry. There are, however, numerous exceptions. The exception at issue in this case was the Sportsman’s Permit Exception, which allows for individuals who possess a hunting license to carry a firearm in a vehicle when they are genuinely on their way to or from hunting.

The Facts at Trial

The Commonwealth established that the defendant was driving a car with his then-girlfriend when police conducted a vehicle stop. Police observed a handgun in plain view on the driver’s side of the car, in addition to a holster, a magazine containing eight rounds of ammunition, and one loose round. The handgun was unloaded. The defendant’s girlfriend told police that the gun was not loaded, but at trial, she testified that she had lied. She then testified that during the traffic stop, she heard clicks and the sound of something hitting the floor, and she further explained that the defendant had told her not to tell police that the gun was loaded.

Sergeant Craig Wharton testified that the defendant had previously possessed a license to carry a concealed firearm, but the license had been revoked in 2014. He also testified that at the time of the stop, the defendant possessed a Pennsylvania’s Sportsman’s Firearm Permit, but he did not believe Section 6106(b)(9) applied because the defendant had not been engaged in any hunting or other relevant activities at the time of the traffic stop.

Sheriff Frank Levindoski also testified, explaining that individuals without a carry-concealed permit cannot legally transport a loaded firearm in their car. He then testified to his interpretation of the proper way to transport a loaded firearm. His opinion that an individual may not carry a loaded firearm in a car without a license to carry was based on his interpretation of a different statute, § 6106.1, which the defendant had not been charged with violating. Based on the Commonwealth’s allegations, the defendant could have been charged with violating this statute, but he had not been. The defendant objected to this testimony.

The defendant then testified in response. He provided evidence of his fishing license, hunting license, and sportsman’s firearm license. He admitted he owned the firearm recovered by the police and testified that he had planned to go fishing after dropping his girlfriend off at her home. He also testified that he had had fishing poles and a tackle box in his vehicle, but the police had not searched the trunk, so they did not see those items.

During closing arguments, the Commonwealth asked the jury to rely on Sheriff Levindoski’s testimony that the defendant could not have a loaded firearm in his vehicle without a carry-concealed license unless he was an officer of the law. The jury found the defendant guilty of violating Section 6106. The defendant filed a post-sentence motion seeking unitary review on direct appeal of both his appellate claims and his ineffective assistance of counsel claims (IAC). The trial court held a hearing on the post-sentence motion, but it refused to address the IAC claim that his lawyer should have objected to the officer’s opinion testimony. It denied the motions.

The defendant again filed a timely notice of appeal.

The Pennsylvania Superior Court’s Decision

On appeal, the defendant argued that the Commonwealth elicited inadmissible opinion testimony from Sergeant Wharton and Sheriff Levindoski. He also argued that that his trial counsel was ineffective in failing to object to such testimony. The defendant also argued the trial court erred in declining to grant a new trial due to the error in admitting the improper opinion testimony. The defendant asserted the trial court erred by not permitting the defendant to raise his ineffective assistance of counsel claims in the post-sentence motion so that they would be preserved for the direct appeal.

The Superior Court began its review by addressing Section 6106 and exception Section 6106(b)(9), also known as the Sportsman’s Permit Exception. Notably, the Sportsman’s Permit Exception applies to loaded and unloaded firearms. However, a separate statute, Section 6106.1, does prohibit an individual from carrying a loaded firearm in a vehicle.

The Superior Court further addressed the defendant’s claim that the trial court erred in denying his request to litigate his IAC claims on direct appeal. The Superior Court reviewed relevant case law, including the Holmes exceptions. Typically, IAC claims may only be raised in PCRA proceedings, and PCRA proceedings take place after the direct appeal. The direct appeal generally addresses errors of law made by the trial judge where the trial judge was asked to make a ruling by the lawyers, whereas PCRA proceedings most often involve claims of ineffective assistance of counsel. Thus, a direct appeal claim would be that the judge should have granted a motion, while the PCRA claim would be that the lawyer was ineffective in failing to bring a legitimate motion.

There are exceptions to this rule, however, pursuant to Commonwealth v. Holmes. For example, a defendant may potentially raise a PCRA claim on direct appeal where the ineffectiveness is so apparent that immediate consideration would best serve the interests of justice. In such a case, the defendant generally must raise the claim in a post-sentence motion and agree to waive their right to file a PCRA following the direct appeal. Courts are most likely to address the PCRA claims early when the defendant is serving a short sentence which could expire before a PCRA may be filed. A defendant must be serving a sentence in order to file a PCRA, so if the sentence has expired, the defendant cannot litigate a PCRA. Here, the defendant had received a short sentenced, and he argued that the exception applied.

Because the defendant was unlikely to have sufficient time to file a PCRA following the appellate process, the Superior Court agreed to review the claim. The Superior Court concluded that the trial court should have permitted the defendant to raise his IAC claims in the post-sentence motions and on direct appeal because his short sentence would not afford him a realistic ability to obtain consideration of his IAC claims during a PCRA review. The Superior Court therefore addressed the issues on the merits.

The Court agreed with the defendant’s claims. It reasoned that when evidence is improperly admitted, the error is subject to harmless error analysis. The defendant argued that Sergeant Wharton’s testimony constituted improper legal opinion testimony by providing a legal conclusion. The trial court did not address the admissibility of this testimony but determined that it was harmless error, while the Commonwealth argued that his testimony simply explained with what he was charged and why. The Superior Court agreed with the Commonwealth that Sergeant Wharton did not interpret the law. Instead, he testified based on his own observations whether he saw evidence that the defendant would soon engage in hunting activities.

Regarding Sheriff Levindoski’s testimony, neither the trial court nor the Commonwealth addressed the admissibility of his testimony, though both explained that any error was harmless. The Superior Court agreed with the defendant, stating that Sheriff Levindoski should not have testified to the contents or his interpretation of Section 6106.1 since he had served as a lay witness, not an expert witness. Further, any testimony regarding § 6106.1 was irrelevant because the defendant was not charged with violating that statute.

The Superior Court also disagreed with the trial court’s assertion that the error was harmless and that the evidence was overwhelming. Although the defendant’s girlfriend testified that the defendant never said he was going fishing, the defendant did not testify that he planned to take his girlfriend fishing with him. Additionally, none of the officers testified to searching the trunk of the vehicle, where the defendant claimed that he had kept the fishing equipment. Finally, none of the officers testified to asking the defendant about his intent to go fishing. Thus, the Superior Court asserted that the issue for the jury to resolve was the defendant’s credibility and that the evidence against the applicability of the Sportsman’s Permit Exception was not overwhelming. The Superior Court also found that the Commonwealth relied on Sheriff Levindoski’s inadmissible testimony in its closing argument, proving the error was not harmless. Specifically, the Commonwealth emphasized the prohibition against carrying a loaded firearm in a vehicle under Section 6106.1, which had been introduced under Sheriff Levindoski’s testimony, though this had nothing to do with the Sportsman’s Permit Exception, and the defendant had not been charged with a Section 6106.1 violation. The Superior Court explained it could not conclude that Sheriff Levindoski’s testimony did not contribute to the verdict. Therefore, the Superior Court vacated the judgment of sentence and remanded for a new trial.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Lawyers

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.

Zak Goldstein 8/31/22 Zak Goldstein 8/31/22

Pennsylvania Superior Court: Police May Stop You if Any Part of License Plate Covered

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Ruffin, holding that it is illegal to obstruct any portion of a car’s license plate and therefore police may conduct a motor vehicle stop even if they can see the tag number.

Commonwealth v. Ruffin

A Philadelphia police officer conducted a traffic stop due to a motor vehicle’s partially obstructed registration plate. The officer could see the tag number, but the border that had been put on by the auto dealership covered the portion of the plate which provides the state’s tourism website. After pulling the car over solely for that reason, the officer noticed that the vehicle had five occupants in it. he saw the defendant moving in a manner as if he was concealing something in a seat, so the officer decided to conduct a protective sweep or “frisk” of the car. He found a loaded revolver underneath a sweatshirt on the defendant’s seat. He also found ammo in the defendant’s pocket, so he arrested the defendant for various firearms charges after learning the defendant did not have a license to carry.

The Motion to Suppress

The defendant was charged with possession of a firearm by a prohibited person, carrying a firearm without a license, carrying a firearm on public property, and possession of marijuana. The defendant filed a motion to suppress the evidence recovered from the vehicle, arguing that the stop, search, and seizure violated his rights under the Fourth Amendment.

At the suppression hearing, the defendant argued that the officer should not have initiated the stop because he could read the numbers and letters on the license plate. The trial court granted the defendant’s motion, ruling that the officer did not possess reasonable suspicion or probable cause to pull the vehicle over for an obscured website on the frame given that the officer could read all of the information that was actually relevant to police. The Commonwealth then filed an appeal of the court’s decision.

The Pennsylvania Superior Court’s Decision

On appeal, the Commonwealth argued that the lower court erred in suppressing the gun because the gun was recovered during a lawful traffic stop for a vehicle code violation. The statute, section § 1332, makes it illegal to have the plate “obscured in any manner.” The Superior Court therefore had to determine what that section means. The Superior Court reversed, finding that the trial court had failed to use the plain meaning of “any manner.” Because the tourism website was part of the plate, and the tourism website was blocked by the dealer’s modification, the plate was obscured in “any manner.” Therefore, the police had probable cause to stop the vehicle to issue a warning or citation for the motor vehicle code violation. The Court dismissed the defendant’s arguments that the tourism argument did not have any relevance to the police. As the Court concluded that the stop was legal, the case will be remanded for trial unless the defendant files additional appeals.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Lawyers

Zak Goldstein 1/1/22 Zak Goldstein 1/1/22

PA Superior Court: Presence in “High Crime Area” Not Legally Sufficient to Stop Individual

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Singletary, holding that the police unlawfully seized the defendant given that they seized him solely because he was in a high-crime area. This decision is significant because it reaffirms a long-standing rule that the police cannot stop and seize an individual solely because he is in a “high crime area” without evidence that the person is actually engaged in criminal activity. Police will frequently use a person’s presence in a “high crime area” to try to justify a stop and seizure of a defendant. Although being in a “high crime area” still remains one factor that police can consider in deciding to stop someone, it cannot be the sole reason for a stop, and Singletary reaffirms this principle.

Commonwealth v. Singletary

A Chester City police officer was responding to a nuisance call. This area was known for its on-going illicit drug activity. When the officer arrived on scene, he observed a large group of individuals who began to disperse upon his arrival. The officer then parked his vehicle and exited it. He told the remaining individuals that loitering was not permitted in the area.

The officer then observed a Mercedes SUV, which was not running, parked in a legal parking spot on the opposite side of the street from where the officer had parked his car. The SUV had two individuals inside it, one of them being the defendant who was sitting in the front passenger seat and the other individual who was in the driver’s seat. The officer then approached the driver’s side of the vehicle and requested identification from the two men. The driver gave the officer his passport, while the defendant gave him his photo ID. The officer then radioed the information in and determined that the driver had a suspended license and that the vehicle did not have insurance. Neither the defendant nor the driver owned the vehicle. The officer also determined that neither of the men had outstanding arrest warrants.

The officer observed an empty pill bottle on the driver’s lap. Another officer arrived shortly thereafter and then went to the passenger side of the vehicle. Soon after, the officers had the defendant and the driver exit the vehicle. As the defendant was exiting the vehicle, the officers heard a hard metal object hit the ground, at which point the defendant began to run from the officers. One of the officers gave chase but did not apprehend him at that time. The officers found a firearm with an obliterated serial number from the location where they heard the sound of a metal object striking the ground. Later that day, the defendant was located. He was arrested and charged with firearms not to be carried without a license, altered or obliterated mark of identification, flight to avoid apprehension or trial or punishment, recklessly endangering another person, and disorderly conduct.

The defendant filed a motion to suppress. At the suppression hearing, the police testified to the above facts, and there was also a stipulation that one of the officers would also have testified that she saw the handgun fall from the defendant’s lap as he got out of the car before he took off running. At the conclusion of the hearing, the suppression court granted the defendant’s motion to suppress. The suppression court held that the officers had illegally seized the defendant for purposes of the Fourth Amendment. Specifically, the suppression court held that the initial encounter between the officer and the defendant was a mere encounter. However, when the officers asked the defendant to exit the vehicle it evolved into an investigative detention and a reasonable person would not have felt that were free to leave. However, this detention was not legally justified because it did not derive from a traffic stop or any unlawful or suspicious activity. The suppression court concluded that the defendant had been seized solely because he was in a “high crime area,” and this was not legally sufficient to justify the officers’ seizure of him.

The Commonwealth then filed a timely appeal. On appeal, the Commonwealth raised two issues: 1) that the suppression court erred when it concluded that the officers lacked legal authority to order the defendant to exit the vehicle and 2) that the initial interaction between the officers was a mere encounter that evolved into a lawful legal stop that was supported by reasonable suspicion and probable cause.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the trial court’s order granting the defendant’s motion to suppress. The Superior Court agreed that the initial encounter between the defendant and the police was a mere encounter. However, this stop then evolved into an unlawful detention. The Superior Court highlighted the fact that the officers stood on each side of the vehicle and that they requested that the defendant and the driver leave the vehicle (while their identifications remained in police possession). According to the Superior Court, this “restrained [the defendant’s] liberty of movement.” Further, the act of ordering them out of the vehicle (despite not having any outstanding warrants), would signal to a reasonable person that they were not free to leave.

Further, the Superior Court found that the officers lacked reasonable suspicion to conclude that the defendant was involved any criminal activity. The mere fact that the defendant was in an area with an on-going open-air drug dealing problem was not enough to conclude that the defendant was involved in said activity. As such, the Superior Court agreed with the suppression court that the defendant had been unlawfully seized, and therefore, the Commonwealth will not be able to use the gun against him at his trial.

Facing Criminal Charges? 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 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.