Philadelphia Criminal Defense Blog

Zak Goldstein 5/25/24 Zak Goldstein 5/25/24

PA Superior Court: Statements Made to Constables May Be Suppressed for Lack of Miranda Warnings

The Pennsylvania Superior Court has decided the case of Commonwealth v. Seeney, holding that statements made to constables during a custodial interrogation may not be admissible in court unless the constable first gave Miranda warnings.

The Facts of Seeney

In Seeney, the defendant was charged with attempting to possess a firearm as a prohibited person in violation of § 6105 and two counts of making a false statement in connection with the purchase of a firearm in violation of 18 Pa.C.S. § 6111(g)(4). The police arrested the defendant, and he was held in custody at the Bucks County Correctional Center.

The defendant was scheduled for his preliminary hearing in 2022. In the suburban counties, preliminary hearings take place at the office of a Magisterial District Justice. Sheriffs transport prisoners to preliminary hearings in Philadelphia and for other hearings in the Court of Common Pleas in the counties, but magistrates use constables for prisoner transportation. In this case, a constable transported the defendant to the magistrate’s office for his preliminary hearing. The constable had no real involvement in the case and did not particularly care about it, but in making conversation with the defendant, he asked the defendant what he was charged with. The defendant then told the constable that he had tried to buy a gun despite being prohibited from doing so.

The constable did not give the defendant Miranda warnings during this conversation and likely would not have told anyone what the defendant said. Unfortunately for the defendant, a police detective happened to overhear it. The detective then called the constable the next day and asked the constable to give a formal statement about what the defendant said to him, and the constable would have then been a witness for the Commonwealth at trial.

The Motion to Suppress

Prior to trial, the defendant moved to suppress the incriminating statement made to the constable because the constable never gave him Miranda warnings. The trial court granted the motion to suppress, and the Commonwealth appealed.

The Superior Court Appeal

On appeal, the Commonwealth argued that the constable was not required to provide Miranda warnings because 1) he did not actually interrogate the defendant and 2) he was not a law enforcement officer like a police officer or detective. The Superior Court rejected both arguments. First, it found that the constable’s questioning was clearly an interrogation. By asking the defendant about his court appearance, the constable asked questions which were reasonably likely to elicit an incriminating response. The constable’s purpose in asking the questions - that he was just making conversation - did not matter. Instead, the test is whether the questions themselves were likely to elicit an incriminating response. Second, the court found that it was irrelevant that the constable was not actually a police officer or sworn law enforcement officer. Constables provide transportation to court for the magistrate. In order to do so, they physically restrict a prisoner’s movements both by locking them in their transport vehicle and in holding cells, and by guarding them while armed with a firearm. This creates a custodial setting no different than being transported by a sworn police officer, and the constables do this on behalf of the government. Accordingly, the fact that the constable was not actually a police officer was irrelevant - it was still a custodial interrogation conducted by a state actor.

When do the police have to give Miranda warnings?

The police only have to give a defendant Miranda warnings when they are going to conduct a custodial interrogation. If the police fail to give Miranda warnings, then any statement obtained may not be used against the defendant. The failure to give Miranda warnings does not automatically result in the dismissal of a case. Instead, it would only result in the suppression of a statement if the police took a statement. Accordingly, if the police do not want to take a statement or do not care if the resulting statement is going to be admissible, then they do not have to give Miranda warnings.

Here, the defendant was obviously in custody - he was being held at the Bucks jail and transported by an armed constable, and the constable asked him questions which were likely to result in incriminating admissions. The constable worked on behalf of the government, so this amounted to a custodial interrogation which required Miranda warnings. The Superior Court therefore upheld the trial court’s order granting the motion to suppress the confession.

The ruling here seems pretty obvious, so it is somewhat surprising the prosecution appealed. The case provides a good illustration of when Miranda warnings are required, however.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Philadelphia Criminal Defense Lawyer Zak Goldstein

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, 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.

Zak Goldstein 5/22/24 Zak Goldstein 5/22/24

Attorney Goldstein Argues Before PA Supreme Court in Harrisburg

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire recently argued before the Pennsylvania Supreme Court in Harrisburg, PA. In the case of Commonwealth v. Muhammad, the Court granted review on the following question:

Was the evidence insufficient to support Petitioner’s conviction for firearms not to be carried without a license, 18 Pa.C.S. § 6106, where the jury made a specific factual finding that Petitioner did not possess a firearm in response to a special interrogatory to which all parties and the trial court had agreed?

In Muhammad, the police arrested the defendant after finding a gun in the center console of a car to which multiple people had access. Prosecutors charged him with possession of a firearm by a prohibited person in violation of 18 Pa.C.S. § 6105 and carrying a concealed firearm in violation of 18 Pa.C.S. § 6106. The case law holds that a felon in possession charge under § 6105 must be bifurcated from other charges and heard after the other charges have been decided. § 6105 must be bifurcated because in order to prove a violation of § 6105, the Commonwealth must introduce evidence of the defendant’s criminal record. This evidence obviously makes it very difficult for the jury to remain impartial. Once the jurors have heard that the defendant has a felony conviction, they are much more likely to convict. Therefore, trial courts throughout the state will usually conduct the trial without telling the jury about the § 6105 charge first, and then once the jury has reached a verdict on the other charges, hold a mini-trial just on the § 6105 charge at which the Commonwealth will tell the jury about the defendant’s criminal record and then ask the jury to make a decision on that case. This procedure avoids the issue of the jury becoming prejudiced against the defendant after learning that they have a record.

In this case, however, the trial court decided to use a placeholder interrogatory on the possession of a firearm. The parties agreed that instead of completely bifurcating the offense, the jury would receive an instruction on the definition of actual and constructive possession and then be asked whether the defendant possessed a firearm. If the jury answered yes, then the judge would find the defendant guilty of § 6105. If the jury answered no, then the judge would find the defendant not guilty. All parties agreed to this unusual procedure. The judge accurately instructed the jury on the definition of possession, and the jury answered “no” to an interrogatory on whether the defendant possessed and controlled a firearm. The case took a bizarre turn, however, when the jury then convicted the defendant of carrying a concealed firearm without a license.

Carrying a firearm without a license in violation of § 6106 requires possessing the firearm – so the interrogatory answer and the verdict are impossible to reconcile. If the defendant did not possess a firearm, then he could not have carried one for § 6106, and the evidence was therefore insufficient. The trial court and Superior Court, however, both found that the inconsistency was acceptable because Pennsylvania law allows for inconsistent verdicts in most situations.

Attorney Goldstein sought review in the state Supreme Court because this situation is different. The jury’s response to the interrogatory was not a verdict. Instead, it was a specific factual finding – that the defendant did not possess a gun – which negated an element of the offense for which he was convicted. Therefore, the lower courts should have entered a judgment of acquittal because the evidence was insufficient.

The Supreme Court granted review on whether inconsistent interrogatories should be treated differently from inconsistent verdicts, and Attorney Goldstein argued the case in Harrisburg last week. The Court will now likely make a decision within the next few months, and this could be a particularly important decision as trial courts have increasingly relied on interrogatories in the last few years since the United States Supreme Court found in Alleyne and Apprendi that any elements which could increase a maximum penalty or impose a mandatory minimum must be submitted to the jury.

The audio from the argument is available through the Court on Youtube here: https://www.youtube.com/live/NLbu2tIk_S4?si=gpNc7d5o1MYhQnsL&t=15566

Video of the 5/14/24 argument is available here: https://pcntv.com/pennsylvania-politics-and-policy/pa-courts/pa-supreme-court/

Facing criminal charges or appealing a criminal case in Pennsylvania?

Attorney Goldstein in the Pennsylvania Supreme Court

Zak Goldstein 5/11/24 Zak Goldstein 5/11/24

Not Guilty: Attorney Goldstein Wins Another Felon in Possession of Firearm Trial

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire, recently obtained a full acquittal for a client who was charged with various firearms offenses in Philadelphia. In the case of Commonwealth v. E.J., Attorney Goldstein was able to obtain the acquittal following a bench trial in the Court of Common Pleas.

E.J. was charged with numerous violations of the uniform firearms act (VUFA) including carrying a concealed firearm without a license in violation of 18 Pa.C.S. § 6106, carrying a firearm on the streets of Philadelphia in violation of 18 Pa.C.S. § 6108, and prohibited person in possession of a firearm in violation of 18 Pa.C.S. § 6105.

The police claimed that they received a radio call for gun shots. While they were investigating the source of that call, they received a second call for a person screaming that they had been shot. A nearby officer quickly responded to the scene and found E.J. Unfortunately, E.J. was near a gun, and the police eventually recovered the gun and charged him with illegal possession of the gun because he did not have a license to carry and he also had a record which made it illegal for him to have a gun.

E.J. retained Attorney Goldstein and decided to proceed by way of bench trial in the Philadelphia Court of Common Pleas. At trial, the prosecution called the responding officer who arrested E.J. to testify. That officer testified that he arrived on the scene in response to the radio call, and he saw E.J. bending over and rummaging around in between two garbage bags. E.J. then popped up and began walking towards him yelling that he had been shot in the head. The officer could see that E.J. had in fact been shot in the head as E.J. had a bullet wound and was bleeding. The officer frisked E.J. and did not find anything, but he found a gun in between the garbage bags. Other officers transported E.J. to the hospital, where he fortunately made a full recovery, and the responding officer recovered the gun from in between the garbage bags.

The officer testified that in his opinion, it looked like the gun had been recently placed there because it had droplets of what appeared to be blood on it. It had been raining recently, but the gun was not very wet. Photos of the gun, however, showed that it did have water on it, but the prosecution tried to argued that the water could have rolled off of the garbage bags. The officer also testified that no one else was around, so the prosecution argued that E.J. must have put the gun there.

Attorney Goldstein cross-examined the officer extensively on the fact that the officer did not actually see or hear E.J. holding the gun or dropping it onto the ground, the photos of the gun showed that it in fact had water on it, the Commonwealth had not done any testing for DNA, the Commonwealth had not confirmed that the blood on the gun came from E.J. or that it was even definitely blood rather than dirt, and that obviously, E.J. did not shoot himself in the back of the head. Given that he did not shoot himself, someone else must have also been out there with a gun even if the officer did not see who that person was. Thus, although it was certainly suspicious for E.J. to be near the gun, that mere proximity was not enough to show constructive possession of the firearm given all of the circumstances. Attorney Goldstein argued that the police were missing the first half of the story. It was just as likely that someone had shot E.J. and thrown the gun there after the shooting or that someone else had had the gun and tossed it there while fleeing from the shooting knowing that the police would be on the way shortly. E.J. could have then stumbled over in a daze from being shot to see what it was or to pick it up and defend himself if the shooter returned.

The Common Pleas judge deliberated for about two hours and then acquitted E.J. E.J. was free to leave, and he will be eligible to have the charges expunged. Had he been convicted, he would have been facing a lengthy state prison sentence under the state guidelines given the prior convictions that made him ineligible to possess a firearm. Fortunately, he made the right decision in retaining an attorney who was not afraid to try and win the case.

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Zak Goldstein 3/30/24 Zak Goldstein 3/30/24

PA Superior Court Finds Felon in Possession Statute Constitutional

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. McIntyre, holding that VUFA § 6105’s prohibition on possessing a firearm after being convicted of certain prior offenses is constitutional and does not violate the Second Amendment. Despite the fact that numerous federal courts have reached the opposite conclusion, the Superior Court concluded that individuals with prior convictions for violent felonies are never among the people protected by the Second Amendment.

The Facts of McIntyre

The defendant was convicted of violating 18 Pa.C.S. § 6105, which makes it a felony to possess a firearm following a conviction for certain offenses. A violation of § 6105 is typically a first- or second-degree felony, and a person may also violate the statue if they possess a gun while having prior drug convictions, mental health commitments, or a protection from abuse order against them. In this case, the defendant had prior aggravated assault, robbery, and burglary convictions, among others.

The facts of the case are not particularly relevant for the constitutional analysis, but the defendant was charged with taking a gun from his uncle's house, carrying it to a nearby wooded area, and burying it. The Commonwealth charged him with violating the felon in possession statute after he led family members to the firearm's location. At trial, he claimed a justification defense in that he had found the gun and intended to get it out of the house and call the police, but the jury rejected that defense and found him guilty as he had not actually called the police despite having the opportunity to do so. Instead, he had buried the gun in the woods.

The Superior Court Appeal

The defendant appealed, arguing that § 6105 is unconstitutional following the United States Supreme Court's decision in New York State Rifle & Pistol Association Inc. v. Bruen and the Third Circuit Court of Appeals’s decision in Range v. Attorney General. The Superior Court rejected his argument. It concluded that Bruen focused on the rights of "law-abiding" citizens to carry firearms for self-defense and did not extend Second Amendment protections to individuals convicted of serious crimes like robbery, aggravated assault, and burglary. The Court emphasized Bruen's reliance on District of Columbia v. Heller, which acknowledged the government's ability to restrict firearm possession by felons as presumptively lawful.

In general, the Second Amendment protects the rights of “the people” to possess a firearm, thereby requiring an analysis of who is included within the term “the people.” The Third Circuit concluded in Range that even individuals with prior convictions may be included within “the people,” but the Superior Court found that only law-abiding individuals count as “the people.” As the defendant had numerous violent convictions, he is not among “the people” to which Second Amendment rights extend. Therefore, the Court did not even reach the second part of the Bruen test which is whether the gun restrictions had a historical analogue at time of the adoption of the Second Amendment. The Court simply rejected his argument, finding that the Second Amendment does not apply to anyone with prior violent convictions. The Court therefore denied the appeal.

The Takeaway

The Court’s opinion leaves quite a few important questions open. First, this case dealt with a defendant who had a particularly bad record; he had convictions for aggravated assault, robbery, burglary, and corrupt organizations. Although the convictions were relatively old, those crimes are about as serious as crimes can get, so the question of whether someone with less serious convictions can be stripped of their Second Amendment rights following Bruen remains open. Second, the opinion’s basic conclusion that the defendant is not part of “the people” to which Second Amendment rights extend seemingly conflicts with federal cases like Range v. Attorney General and Bruen itself. Those cases found that virtually everyone falls under the term “the people,” and the focus is instead more on whether the restriction in question would have been accepted by the founders.

This case makes it clear that defendants with serious, violent prior convictions can still be prosecuted under § 6105 in state court for now, but it is definitely not the final word on whether felon-in-possession restrictions are constitutional and what the limits on those restrictions may be. This case and others seem to be headed for the Pennsylvania and United States Supreme Courts. For now, criminal defendants with less serious criminal histories may still have success in filing motions to dismiss on Second Amendment grounds, but it is important to remember that you do not want to be the test case in the event that the courts uphold the restrictions in § 6105 and the corresponding federal statute, § 922(g). The sentences for carrying a gun illegally can be severe.

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.