Philadelphia Criminal Defense Blog
Not Guilty: Attorney Goldstein Wins Another Felon in Possession of Firearm Trial
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
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.
Facing criminal charges or appealing a criminal case in Pennsylvania?
Goldstein Mehta LLC Criminal Defense Attorneys
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the 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.
Attorney Goldstein Wins Motion to Suppress Firearm in Philadelphia
Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire recently won a motion to suppress a firearm in the case of Commonwealth v. R.M.
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
In R.M., three police officers were patrolling Northwest Philadelphia in plainclothes and an unmarked car. They claimed that they saw the defendant driving a car with illegal window tint on all of the windows, so they pulled the car over. When the police approached the car, the defendant was cooperative with them and provided them with all of the paperwork for the vehicle. Nonetheless, one of the officers testified that he could immediately observe the magazine of a gun sticking out from underneath the mat underneath the driver’s feet. The officer asked the defendant if there were any guns or drugs in the car, and when the defendant denied having a gun in the car, the officers pulled him out of the car and searched it. The officers claimed that they only frisked the area around the driver’s seat for officer safety because they could see the magazine and the defendant had denied having a gun in the car. Of course, they did recover a gun and an extended magazine. They claimed to have recovered it from underneath the floor mat. The police arrested R.M., and prosecutors charged him with violations of the uniform firearms act (VUFA) under sections § 6105, § 6106, and § 6108. VUFA § 6105 is a particularly serious charge as it is typically graded as a first-degree felony.
R.M. retained Attorney Goldstein. Following the preliminary hearing, Attorney Goldstein filed a motion to suppress the firearm. Attorney Goldstein argued that police had illegally pulled R.M. over for no real reason and searched the car based on a hunch rather than any actual observation of a magazine or gun.
The Philadelphia Court of Common Pleas held a hearing on the motion to suppress. Attorney Goldstein cross-examined the arresting officer extensively on the fact that the officer had not been wearing a body camera even though most Philadelphia Police officers now wear body cameras, the officers failed to comply with virtually all of the police directives governing the behavior of plainclothes officers, the fact that the officers would not have even able to write a ticket for the window tint because they did not have a computer in their car and would have needed uniformed officers to come to the scene, and the absurdity of the story that the gun just happened to be sticking out in plain view.
Attorney Goldstein also called the vehicle’s passenger as a witness. She testified that the police had pulled the car over shortly after she and the driver left a gas station, immediately removed them from the vehicle, and searched the car extensively before finding the gun. She denied that it could have been in plain view.
As the police had not actually seen R.M. do anything illegal and the gun was likely not actually in plain view prior to the search, the trial court found the officers not credible and granted the motion to suppress the gun. Credibility rulings generally cannot be appealed, so the Commonwealth then withdrew the charges. R.M. will be eligible to have them expunged.
The Plain View Exception
Notably, whether the police can search a car without a search warrant if they see contraband in plain view is still debatable. In this case, the officers claimed that they could see the magazine of the gun in plain view. A magazine on its own is not illegal, and having one in a car does not give the police probable cause or reasonable suspicion to search or frisk the car with or without a warrant, but the presence of the magazine along with the defendant’s alleged denial that he had a gun in the car likely would have given the police the ability to search the car. A false denial would tend to suggest that the defendant actually had a gun but was not allowed to have it. The Superior Court has found that the police may conduct a warrantless search of a vehicle when they see contraband in plain view, but the Pennsylvania Supreme Court has granted review in that case and may reach a different conclusion. Either way, the trial judge found that the plain view exception did not apply in this case because the officers were not credible.
This case highlights the importance of retaining an attorney who will conduct a thorough investigation, who will locate and prepare witnesses to testify credibly for the defense, who will be familiar with the case law and police directives in order to show that the police either did not follow required procedures or the law during a search, and who can effectively cross-examine officers and other witnesses to challenge their credibility at motions and trial.
Facing criminal charges or appealing a criminal case? We can help.
Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
Attorney Goldstein Wins PA Superior Court Appeal of Motion to Suppress Gun
Criminal Defense Lawyer Zak Goldstein
Philadelphia Criminal Defense attorney Zak T. Goldstein, Esquire, recently won a Superior Court appeal in the case of Commonwealth. v. T.G. In T.G., prosecutors had charged the defendant with possession of a firearm by a prohibited person (VUFA 6105), possession of a concealed firearm without a permit (VUFA 6106), and possession of a firearm on the streets of Philadelphia (VUFA 6108). T.G. had retained a different firm for his motion to suppress and trial. The trial court denied T.G.’s motion to suppress the gun, and a jury eventually convicted him. He was sentenced to 8-16 years’ incarceration.
T.G. retained Attorney Goldstein for his appeal to the Superior Court. On appeal, Attorney Goldstein challenged the trial court’s denial of the motion to suppress, the trial court’s decision to remove family members from the courtroom during jury selection, and the trial court’s refusal to properly instruct that it could consider questions regarding the credibility of the officers with respect the reasons for searching T.G.’s car when considering whether they believed the officers that T.G. in fact possessed a gun.
At the motion to suppress, the officer had testified as follows:
On November 23, 2017, a little after 1:00 a.m., Officer Alvarez was in a marked police car on routine patrol in the Germantown area of Philadelphia. Officer Alvarez was driving with his partner Officer William Benson in the passenger seat. At the time, Officer Alvarez had been a police officer for five years with four of those years assigned to the 14th District, which included Germantown. Since he began working in the district, Officer Alvarez estimated he has made about 15 to 20 arrests involving narcotics and firearms being found together.
Near the intersection of Germantown Avenue and Berkley Street, Officer Alvarez saw a 2011 Chevy Camaro traveling southbound on Germantown Avenue. T.G. was driving the Chevy Camaro and had a passenger with him in the front. Noticing that the Chevy Camaro had dark window tinting, Officer Alvarez began to follow the car for several blocks. Although the car did not swerve, speed or make any sudden stops, Officer Alvarez pulled the car over because of the possible violation under 75 Pa.C.S. § 4524.1. When he saw the officer’s lights, T.G. immediately pulled the Chevy Camaro, which was registered in his name, to the side of the road.
Officer Alvarez walked up to the driver’s side window and asked Griffin to lower his window; Officer Alvarez later testified that he could not see into the car because of the tint. After T.G. lowered his window, Officer Alvarez asked for his license, registration and insurance. As T.G. looked for the information, Officer Alvarez smelled an odor of burnt marijuana coming from inside the car, describing it as a “mediocre” smell but not overwhelming. Though he had no specialized training in identifying marijuana, Officer Alvarez was familiar with its odor through his experience as a police officer. Despite smelling marijuana, however, Officer Alvarez did not see any narcotics or paraphernalia inside T.G.’s car.
Besides the odor of marijuana, Officer Alvarez also noticed that T.G. appeared “very nervous” as he was looking for his information. According to Officer Alvarez, T.G. was breathing heavily and his hands were shaking. At the suppression hearing, though, Officer Alvarez admitted that T.G. did not have bloodshot eyes or dilated pupils.
After T.G. found his information in the glove compartment, Officer Alvarez asked him to exit the car. T.G. complied and got out. Officer Alvarez asked him if there was anything illegal in the car or if either he or his passenger had a permit to carry a firearm. T.G. responded that there was nothing illegal in the car and that his passenger had a permit to carry. Because T.G. was wearing a large puffy jacket, Officer Alvarez patted him down for weapons. Feeling none, Officer Alvarez put T.G. in the back of his patrol car without handcuffs.
Officer Alvarez then returned to the Chevy Camaro to conduct a warrantless search for narcotics based on the odor of marijuana. Although he did not find any narcotics, Officer Alvarez found a Ruger 9mm handgun under the driver’s seat. After finding the handgun, Officer Alvarez went back to his patrol car to check if T.G. had a license to carry. As he did this, Officer Alvarez heard T.G. moving around in the back. This prompted Officer Alvarez to put handcuffs on T.G. When Officer Alvarez tried to do so, T.G. pushed him away and took off running but was soon captured. T.G. was charged with persons not to possess, receiving stolen property, firearms not to be carried without a license, carrying firearms in Philadelphia and resisting arrest.
While the appeal was pending, Pennsylvania appellate courts decided the cases of Commonwealth v. Barr and Commonwealth v. Alexander. In Barr, the Pennsylvania Superior Court concluded that the odor of marijuana alone does not automatically justify the warrantless search of a car. Similarly, in Commonwealth v. Alexander, the Pennsylvania Supreme Court determined that absent exigent circumstances, police must obtain a search warrant prior to searching a motor vehicle. Given this change in the law, Attorney Goldstein filed a reply brief arguing that Barr was now controlling in this case and that the motion should have been granted because the odor of marijuana did not give the police the right to search the car.
The Superior Court agreed and remanded the case to the trial court. The Superior Court instructed the trial court to reconsider its ruling on the motion to suppress in light of Barr and Alexander. The trial court was instructed to determine if the police had any legitimate basis other than the odor of marijuana for searching the car and also to decide whether Alexander, which requires a search warrant, applies retroactively. If Alexander applied retroactively, then the trial court was also directed to evaluate whether police had the exigent circumstances necessary for searching the vehicle without a warrant.
Following the remand, Attorney Goldstein successfully convinced the trial court to reconsider its original ruling and grant the motion to suppress the gun. The Commonwealth argued that although the odor of marijuana alone does not provide the probable cause for a search, the marijuana along with T.G.’s nervousness, the late hour, the fact that T.G. said the passenger had a license to carry, and the puffy coat provided the Commonwealth with the necessary reasonable suspicion to conduct a frisk of T.G. and of the passenger compartment of the car. Attorney Goldstein argued that Alexander applied retroactively, that police should have obtained a search warrant prior to the search, and there was simply no legitimate basis for concluding that T.G. was involved in some criminal activity or armed and dangerous which would justify a frisk.
The trial court agreed with the defense and granted the motion to suppress. T.G., who would have had to serve up to 16 years in prison, was promptly released from state custody.
Facing criminal charges? We can help.
Goldstein Mehta LLC Criminal Defense Attorneys
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals 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.
NOT GUILTY: Attorney Goldstein Wins Rape Trial
Philadelphia Criminal Defense Lawyer Zak Goldstein
Philadelphia criminal defense lawyer Zak T. Goldstein recently won a full acquittal for his client in the case of Commonwealth v. LJ. In this difficult case, prosecutors alleged that LJ had sexually assaulted his girlfriend’s 9-year-old daughter while the girlfriend was sleeping. Based on the statements of the complainant and the complainant’s mother, who claimed to have seen some suspicious behavior but had not gone to police, prosecutors arrested LJ and charged him with rape, involuntary deviate sexual intercourse, indecent assault, and related charges.
LJ rejected an offer to plead to time served and misdemeanor charges despite knowing that a conviction could result in a life sentence. Attorney Goldstein represented LJ during one of Philadelphia’s first jury trials since resuming trials during the COVID pandemic and successfully challenged the complainant’s credibility on the stand. By highlighting major inconsistencies in her testimony and presenting forensic evidence which made it unlikely that LJ had assaulted her on the day in question, Attorney Goldstein was able to obtain a full acquittal for LJ. LJ will now be released and will not have to register as a sex offender or spend time in prison.
These cases are very serious and often difficult to win, but the Philadelphia criminal defense lawyers of Goldstein Mehta LLC are not afraid to take challenging cases to trial.
Need a criminal defense lawyer in Philadelphia? We can help.
Goldstein Mehta LLC Criminal 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.