Philadelphia Criminal Defense Blog

Zak Goldstein 1/25/21 Zak Goldstein 1/25/21

Third Circuit Court of Appeals Rejects Entrapment Defense in United States v. Davis

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Third Circuit Court of Appeals has decided the case of United States v. Davis, holding that a defendant failed to prove that he had been entrapped when he willingly engaged with an agent, posing as a child, to meet and engage in sexual activity. Further, the Third Circuit held that an agent can be tenacious in their conversations with a defendant without entrapping them. Although this defendant did not win on appeal, the case does explain the basics of the entrapment defense in federal court. It also highlights the fact that entrapment can be a very difficult defense to prove in cases involving sex crimes.

United States v. Davis

The defendant answered an ad in the “w4m” section of Craiglist.com. This section is for women who are supposedly looking for casual sex with men. The ad was titled “Wild child” which was run, unbeknownst to the defendant, by an agent with the Pennsylvania Attorney General’s Office. The ad stated that the poster was an eighteen-year-old woman and requested that interested men respond “if you are looking for fun.” The defendant responded to the post. The agent identified himself as “Marissa” and stated that she was actually fourteen years old, to which the defendant stated “that’s ok, I know how to be respectful, do you wanna meet today?”

The defendant and “Marissa” eventually began text messaging one another. During the eight days that they texted, the defendant told “Marissa” that he was gay and lied about his age. Additionally, he avoided engaging in lewd conversation and expressed a fear of getting caught. He must have sensed that “Marissa” might not have genuine intentions because he asked if she was “affiliated with any type of law enforcement.” However, despite this concern, the defendant still engaged in grooming behavior with “Marissa.” He specifically asked her about her virginity, asked when she as not being supervised, and repeatedly offered to buy her gifts, including an iPad.

Eventually, the defendant and “Marissa” agreed that she would skip school and meet him at a McDonalds near her house in Pennsylvania. Once they came up with a plan to meet, their conversation became sexual. “Marissa” explained that she was concerned about getting pregnant to which the defendant assured her that he would “bring protection.” On the day they were supposed to meet, the defendant traveled from New York to the McDonalds where they were supposed to meet. He was subsequently arrested by the agent posing as “Marissa.”

During questioning, the defendant admitted that he knew “Marissa” was fourteen and that he had brought condoms for his visit with her. The defendant further admitted that he became attracted to young girls after visiting a water park and that he specifically liked 14-year-old girls because he believed prostitutes were unclean. The defendant would later testify at trial that he never made those statements to the agent.

The defendant was subsequently arrested and charged in federal court with one count of use of an interstate facility to attempt to knowingly persuade, induce, entice, and coerce a minor to engage in sexual activity and one count of travel in interstate commerce with intent to engage in illicit sexual conduct with a minor. The defendant elected to proceed by jury trial. At trial, he argued that he was entrapped to commit the crime and that he did not knowingly entice a minor because he believed “Marissa” was an adult who was role-playing as a fourteen-year-old. The jury was not swayed and convicted the defendant of the aforementioned charges. The defendant was subsequently sentenced to 127 months imprisonment and five years of supervised released. He was also required to register as a sex offender. The defendant then filed a timely appeal. For purposes of this blog, only the issue of entrapment will be discussed.

What is Entrapment?

Entrapment is an affirmative defense to a crime. It occurs when a defendant, who was not predisposed to commit a crime, does so as a result of the government’s inducement. To be successful in raising an entrapment defense, a defendant must establish two things: that there was government inducement of the crime and a lack of predisposition on the part of the defendant to engage in the criminal conduct. If a defendant makes this prima facie showing of these two elements, the burden then shifts to the government to disprove the entire defense by disproving one of the elements beyond a reasonable doubt.

Usually, the government will try to show that the defendant had a predisposition to commit the crime. The government can prove predisposition by showing one of the following: an existing course of criminal conduct similar to the crime for which the defendant is charged, an already formed design on the part of the accused to commit the crime for which he is charged, or a willingness to commit the crime for which he is charged as evidenced by the accused’s ready response to the inducement.

The Third Circuit’s Opinion

The Third Circuit affirmed the defendant’s conviction and sentence The defendant argued that he had been entrapped to commit these crimes because he lacked a predisposition to commit them. Specifically, he argued that that because he attempted to avoid sexual conversation with “Marissa,” his lack of criminal history, and the agent’s tenacity in the sting operation, the government induced him to break the law. The Third Circuit saw things differently. In its opinion, the Third Circuit found that the defendant did in fact have a willingness to commit these crimes. Specifically, the Third Circuit found compelling the defendant’s statements that he was attracted to young girls despite his denial of them at trial. Further, the Third Circuit also found that the defendant immediately asked “Marissa” to meet after she told him she was fourteen was significant to show that that he intended to commit these crimes. The Third Circuit rejected all of his other arguments on appeal. His convictions will stand, and he will not get a new trial.

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.

Zak Goldstein 12/12/20 Zak Goldstein 12/12/20

PA Supreme Court: Police Officer Cannot Testify About "Normal" Response to Sexual Assault Unless Qualified as Expert

Philadelphia Criminal Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Jones, holding that a police officer cannot testify about child sexual abuse victims’ responses and behaviors unless they are properly qualified as an expert. This decision is significant because prosecutors frequently like to use police officers to bolster their complainants’ testimony by having police officers testify as to why they are offering inconsistent testimony, especially in sexual assault cases. Commonwealth v. Jones now holds that although a police officer may testify about typical victim behavior under some circumstances, which the Court did not define, the officer must first at least be properly qualified as an expert before they can offer such testimony.

Commonwealth v. Jones

The defendant was charged with rape, involuntary deviate sexual intercourse with a person under sixteen years of age, unlawful contact with a minor, aggravated indecent assault, sexual assault, statutory sexual assault, and other offenses following allegations by his stepdaughter that he repeatedly sexually abused her over a period of several years. According to the complainant, the first instance of abuse occurred when she was thirteen years old. The defendant told her that no one would believe her if she came forward. However, when the complainant turned 17, she told her mother about the alleged abuse.

The defendant was subsequently arrested and tried by a jury. Throughout the trial, defense counsel focused on discrepancies in the complainant’s version of events in an attempt to undermine her credibility. These discrepancies and inconsistencies related to the timing and the location of these assaults. In an attempt to bolster the complainant’s credibility, the Commonwealth called a detective who had interviewed the complainant during the course of his investigation.

During his direct examination, the detective testified that children can have difficulty remembering all the times they were sexually abused. Defense counsel objected to this and argued that this amounted to expert testimony and the detective had not been qualified as an expert. The trial court overruled the objection and allowed the testimony to come in. At the conclusion of the trial, the defendant was subsequently convicted of the aforementioned charges and was sentenced to twenty-seven to sixty years’ imprisonment. The defendant then filed a post-sentence motion which was denied. He then filed a timely appeal to the Superior Court.

The Superior Court’s Decision

On appeal, the defendant argued that the trial court abused its discretion by allowing the detective to testify that child sexual assault victims are often unable to recall specific details and dates of sexual assaults. He further argued that this evidence was actually expert testimony because it was not within the scope of knowledge possessed by the average layperson. Finally, because the detective had not been qualified as an expert witness, the trial court should have not allowed this testimony to be presented at his trial.

In a 2-1 decision, the Superior Court affirmed the defendant’s conviction. The majority explained that challenges to the admissibility of evidence typically rest within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. The Superior Court found that the detective’s testimony “constituted permissible lay opinion testimony because it was based on information within the detective’s personal knowledge and experience.” Consequently, the Commonwealth did not need to qualify the detective as an expert in order for him to testify. However, the dissenting opinion argued that 42 Pa. C.S. § 5920 was the dispositive statute for this question. According to the dissent, this statute overrules the previous decision in Commonwealth v. Dunkle which held that opinions regarding responses by child sexual assault victims fall within the knowledge of laypersons and thus a witness did not have to qualify as an expert to testify about the behaviors of these victims. Undeterred, the defendant then filed a petition for allowance of appeal which the Pennsylvania Supreme Court granted.

What is 42 Pa. C.S. § 5920?

42 Pa. C.S. § 5920 is titled “Expert testimony in certain criminal proceedings.” It provides:

(a) Scope.--This section applies to all of the following:
(1) A criminal proceeding for an offense for which registration is required under Subchapter H of Chapter 97 (relating to registration of sexual offenders).1
(2) A criminal proceeding for an offense under 18 Pa.C.S. Ch. 31 (relating to sexual offenses).
(b) Qualifications and use of experts.--
(1) In a criminal proceeding subject to this section, a witness may be qualified by the court as an expert if the witness has specialized knowledge beyond that possessed by the average layperson based on the witness's experience with, or specialized training or education in, criminal justice, behavioral sciences or victim services issues, related to sexual violence, that will assist the trier of fact in understanding the dynamics of sexual violence, victim responses to sexual violence and the impact of sexual violence on victims during and after being assaulted.
(2) If qualified as an expert, the witness may testify to facts and opinions regarding specific types of victim responses and victim behaviors.
(3) The witness's opinion regarding the credibility of any other witness, including the victim, shall not be admissible.
(4) A witness qualified by the court as an expert under this section may be called by the attorney for the Commonwealth or the defendant to provide the expert testimony.

It should be noted that 42 Pa. C.S. § 5920 was passed after Commonwealth v. Dunkle was decided. Dunkle was a Supreme Court decision which barred expert testimony on typical victim behaviors. As one can see by reading the statute, subsection (2) states “[i]f qualified as an expert, the witness may testify to facts and opinions regarding specific types of victim responses and victim behaviors” which strongly suggests that one must be an expert in order to testify about such things. Therefore, the dissent argued that this statute superseded it and was the controlling authority. The Pennsylvania Supreme Court was then tasked with deciding whether this position was correct and whether the trial court improperly admitted the detective’s testimony.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court reversed the lower courts’ decisions and granted the defendant a new trial. First, the Court held that 42 Pa. C.S. § 5920 at least partially overruled Commonwealth v. Dunkle. Next, the Court reviewed the facts of the instant case and the applicable law. It held that “testimony from a law enforcement officer concerning child victims’ typical behaviors and responses to sexual abuse, when based on that officer’s training and experience, falls within the realm of expert testimony.” Further, the Court continued that the average juror is not privy to the complex psychological dynamics surrounding sexual abuse and thus testimony about such issues cannot be qualified as lay testimony.

The Court found that, in the instant case, the detective provided insights gained through specialized occupational training and experience which was not within the average layperson’s knowledge. As such, the trial court committed an error when it permitted this testimony to be introduced at the defendant’s trial. The next step in the Court’s analysis was to determine whether the inclusion of this testimony amounted to harmless error.

In this case, the Court found that permitting the detective to testify about the stepdaughter’s ability to recall specific details did not qualify as harmless error. Specifically, the Court held that because the Commonwealth emphasized the detective’s training and experience, the jury may have given the detective’s testimony undue weight. Further, because the stepdaughter’s credibility was central to the case, allowing the detective to bolster her credibility by offering his testimony on the behaviors of sexual assault victims wrongfully prejudiced the defendant. Therefore, because the defendant was unfairly prejudiced by this testimony, the Court vacated his conviction, and he will receive a new 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. We can also help you with an appeal. 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 11/12/20 Zak Goldstein 11/12/20

PA Superior Court Allows Individual Challenges to PA's Sex Offender Registration Statute

The Pennsylvania Superior Court has decided the case of Commonwealth v. Commonwealth v. Muhammad, holding that, in some cases, SORNA creates an unconstitutional presumption that a defendant will commit future sex offenses. This is a huge decision because it may provide individual defendants with an opportunity to challenge their registration requirements even if they are convicted of a sex crime. This is particularly important because some crimes require that, if convicted, a defendant register under Pennsylvania’s Megan’s Law even when the crime was not sexual in nature. In Muhammad, the Court found that the individual defendant should not have been required to register a a sex offender despite her SORNA conviction because she had no prior record, was unlikely to re-offend, and was convicted of interfering with the custody of a minor, which is not actually a sex crime.

Commonwealth v. Muhammad

The defendant’s sister and her former partner shared custody of their three-year-old child. In 2014, pursuant to a valid custody order, the former partner was to have primary physical custody of the child and the defendant’s sister was to have custody of her on the weekends. Both parties had written notice that if any party felt that another party had violated the order, they were to file a motion in court.

The former partner was incarcerated between April 2015 and June 2016. During this time, the child was in the care of the defendant’s sister. After she was released from prison, the former partner contacted the defendant’s sister so that she could see the child and spend time with him. Upon agreement, the former partner picked up the child in Philadelphia. There was also an agreement that she would return him that following Sunday. While the child was in her care, the former partner noticed that the child had bruises. As such, she decided that she would not return the child to the defendant’s sister.

On that Monday, the defendant’s sister arrived at the former partner’s house in Reading, Pennsylvania. She was accompanied by the defendant and her friend. The defendant’s sister grabbed the child and tried to put him in the vehicle. A struggle ensued with other members of the former partner’s family. Eventually the defendant drove away with her sister, the child, and the former partner’s 17-year-old daughter. While driving, the 17-year-old daughter began yelling for help. The defendant told the 17-year-old daughter that she was not going home.

The Reading Police were called and they attempted to call the defendant as she was driving away. Eventually, an officer was able to speak with the defendant and he told her to bring the children back home. The defendant told the officer that she was not going to do that. She would also not let the 17-year-old daughter speak to the police either. Eventually, the defendant drove to the Chestnut Hill train station where they gave the three-year-old child to the defendant’s mother and sister. The defendant then drove to the bus station in Philadelphia. The defendant bought the 17-year-old a bus ticket back to Reading. The 17-year-old then borrowed a stranger’s phone and called the former partner and told her what happened. The Reading police arrived in Philadelphia and drove the 17-year-old home. The next day, the three-year-old child was returned to the former partner.

The defendant was subsequently arrested and charged with interference with custody of children, false imprisonment, unlawful restraint, and conspiracy to commit these offenses. The defendant elected to proceed by bench trial where she was subsequently found guilty of all charges. Unfortunately, because of her conviction for interference with the custody of children, she was required to register under SORNA despite the fact that she had not even committed a sex crime.

Prior to sentencing, the defendant filed a motion raising a series of constitutional challenges to SORNA. The trial court denied the defendant’s motion. She was subsequently sentenced to three to twenty-three months’ imprisonment and was forced to register under SORNA. Notably, at her sentencing, the trial court found that this was the defendant’s first contact with the criminal justice system and this incident was “totally out of character for her.”

The defendant then filed a timely post-sentence motions which were denied. She then filed a timely appeal. On appeal, she argued that SORNA was unconstitutional as it created an irrebuttable presumption that those who are convicted of the enumerated offenses “pose a high risk of committing additional sexual offenses.” The defendant further argued that this deprives individuals like her of the fundamental right to reputation.

The Superior Court’s Decision

The Superior Court reversed the lower court and held that the defendant did not have to register under SORNA. The Court found that the defendant’s appeal amounted to an “irrebuttable presumption” challenge. An irrebuttable presumption is unconstitutional when it 1) encroaches on an interested protected by the due process clause, 2) the presumption is not universally true, and 3) reasonable alternative means exist for ascertaining the presumed fact. The Superior Court then applied this test to the specific facts of the defendant’s case.

In doing so, the Superior Court found that “SORNA encroaches on a due process right of [the defendant].” According to the Superior Court, registering as a sex offender creates a presumption that the defendant is a dangerous adult who is likely to commit further sexual offenses. This designation would affect her future employment prospects and limit her ability to obtain education and housing. Consequently, she would have a difficult time functioning as a productive member of society. Further, the Superior Court also stated that the current SORNA statute fails to provide the defendant with a meaningful opportunity to rebut the claim that she is a danger to reoffend.

The Superior Court then reviewed the record to see if whether SORNA’s presumption that sexual offenders present a high risk of recidivating was applicable for the defendant. In this case, there was no evidence that the defendant intended to commit any sexual acts towards anyone. Further, this was her first conviction for any crime. As the trial court stated during her sentencing hearing, this was “out of character” for the defendant. Therefore, there was no evidence to suggest that she was at a high risk to commit any sexual offenses.

Finally, the Superior Court found that there are other reasonable alternatives exist to determine whether someone is at risk of being a sex offender. According to the Superior Court, the Commonwealth could have utilized the Sexual Offenders Assessment Board to determine whether the defendant was at risk for engaging in sexual misconduct. They did not do that in this case. Therefore, the Superior Court found that the facts of the defendant’s case satisfy all the requirements that she was unconstitutionally presumed to be a sex offender. Therefore, the order that she must comply with SORNA is vacated and she will no longer have to register as a sex offender.

It is not totally clear yet what the long term effects of this ruling will be or if it will be appealed to the Pennsylvania Supreme Court. However, based on this ruling, it may be possible to challenge the registration requirements at sentencing for a defendant who has been convicted of a SORNA offense.

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Zak Goldstein 8/25/20 Zak Goldstein 8/25/20

PA Superior Court: Megan's Law Registrant May Challenge Retroactive Changes to Registration Laws Outside of PCRA Process

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

The Pennsylvania Superior Court has decided the case of Commonwealth v. Duncan. This decision did not make any substantive changes in the law. Rather, it dealt with some of the procedural difficulties that defendants have had in challenging their sex offender registration status following recent changes in the law stemming from Pennsylvania Supreme Court and Superior Court decisions. In this case, the court held that the defendant should have been appointed counsel to represent him when he was challenging the requirement that he register as a sex offender despite being a juvenile when he committed the crimes which triggered registration. This decision makes it clear that registrants may bring challenges to their registration status in the trial court in many cases even when the time for filing a post-conviction relief act petition has expired.

Commonwealth v. Duncan

The defendant entered into a negotiated guilty plea to the charges of robbery, kidnapping of a minor, unlawful restraint, recklessly endangering another person, and carrying firearms without a license. The defendant received a sentenced of 4-10 years’ imprisonment. Notably, the defendant was a juvenile when he committed his offenses, even though he was charged as an adult. The defendant did not file a direct appeal from his judgment of sentence.

More than a decade after his plea, the defendant filed a pro se petition for writ of error coram nobis. The defendant alleged that right before he was to be released from prison, the Pennsylvania Department of Corrections told him that he must register as a sex offender upon his release pursuant to the then-effective version of Megan’s Law. This would be due to the kidnapping of a minor conviction. The defendant argued that requiring him to register as a sex offender violated the Ex Post Facto principles of the Pennsylvania Supreme Court’s decision in Commonwealth v. Muniz. Further, the defendant argued that the Commonwealth was in breach of their agreement because he had never agreed to register as a sex offender. At the time that he pleaded guilty, that charge did not require sex offender registration.

The court initially treated his petition as a Post-Conviction Relief Act (“PCRA”) petition. At first, the PCRA court agreed with the defendant and ordered that he be removed from the sex offender registry. However, the PCRA court later vacated its decision to allow the Commonwealth an opportunity to respond to his petition. The Commonwealth responded that his request should be denied because it was an untimely filed PCRA petition. The PCRA imposes very strict deadlines and if a defendant misses a deadline they will often not be afforded any relief. Consequently, because the PCRA court thought the PCRA governed the defendant’s petition, it denied his request due to his petition being untimely. The defendant was subsequently appointed counsel, and he then filed a timely appeal. On appeal, the defendant only argued that he should have been appointed counsel to help him litigate his claim.

The Ex Post Facto Clause of The United States and Pennsylvania Constitutions

Both the United States and the Pennsylvania Constitutions prohibit Ex Post Facto laws. Those are laws that criminalize past behavior. The reason behind is that individuals have the right to adequate notice and should not be punished for actions that were legal when they did took them. In order to qualify as an Ex Post Facto law, the law must 1) apply retroactively and 2) negatively impact the offender.

In the late ‘90s and early 2000’s, states across the country began passing laws that required individuals convicted of sexual offenses to register as sex offenders. These early Megan’s Law statutes imposed onerous requirements on defendants that were often seemingly punitive in nature. These laws were frequently challenged as violations of the Ex Post Facto clause because they applied to defendants retroactively (i.e. defendants were required to register as sex offenders even though they committed their crimes before the passage of these statutes).

Pennsylvania and many other states would argue that these Megan’s Law requirements were not punitive and therefore the Ex Post Facto clause of their respective constitutions did not apply. And, unfortunately, some of these governments had some success. For example, the state of Alaska was successfully able to defend its Megan’s Law statute all the way to the United States Supreme Court. However, in Pennsylvania, the Pennsylvania Supreme Court ruled in Commonwealth v. Muniz that Pennsylvania’s Megan’s Law statute violated the Ex Post Facto clauses of both the Pennsylvania and United States Constitutions. Nonetheless, the Pennsylvania Legislature passed a new Megan’s Law (SORNA) statute in the aftermath of the Muniz decision which certainly guarantees that this fight is far from over.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court agreed with the defendant that he should have been appointed an attorney to represent him when he litigated his PCRA petition. The Court further stated that the PCRA court was not required to treat the defendant’s petition as a PCRA petition. Specifically, the Superior Court cited the Pennsylvania Supreme Court’s decision in Commonwealth v. Lacombe which held that because he was raising Ex Post Facto claims, the PCRA court was not required to treat his filing as a PCRA petition and therefore he was not subjected to the stringent filing deadlines of the PCRA. Further, the Superior Court stated that the defendant “might have a valid Ex Post Facto and due process claim” and therefore remanded his case for consideration. This is an important decision due to the deadline issues. The PCRA requires a defendant to file his or her post-conviction relief act petition within one year of his or her sentence becoming final. Obviously, when the legislature passes a new law ten years later imposing new sex offender requirements on someone who did not have to register at that time that they were convicted, that person should have some procedural mechanism for challenging the law. By imposing the one-year deadline for filing a PCRA petition on these petitioners, the courts were able to block them from ever challenging these unconstitutional laws. By recognizing that these filings are not really PCRAs, the appellate courts have removed some of the deadlines for filing them and allowed these important issues to be resolved on the merits.

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