Philadelphia Criminal Defense Blog

Zak Goldstein 9/26/23 Zak Goldstein 9/26/23

Not Guilty: Attorney Goldstein Obtains Full Acquittal in Rape Case

Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire, recently obtained a full acquittal in a rape case. In Commonwealth v. P.S., the defendant was charged in Philadelphia with rape of a child and related charges for allegedly assaulting his biological daughter. According to the complainant, the assaults began when she was between the ages of 3 - 5 and continued until she was about 13 or 14. She did not report them until she was around 16, but prosecutors arrested P.S. and charged him with a number of sex crimes.

P.S. retained Attorney Goldstein to defend against the allegations. Attorney Goldstein investigated the case, obtained discovery from the District Attorney’s Office, and learned that the complainant’s mother, from whom the client had separated shortly before the allegations were first made in Family Court, had been claiming that P.S. assaulted the complainant for years. Attorney Goldstein investigated further and obtained family court transcripts which showed that the complainant had told judges that the assaults did not actually happen and that there was a lengthy history of litigation over child custody and child support. The family court records showed that the complainant’s mother had made these unfounded allegations supposedly on behalf of her daughter anytime she wanted to deny P.S. from having custody, but she had continued to let him see her and had never gone to the police. This behavior obviously did not make sense if the mother believed that child abuse was actually occurring.

P.S. proceeded to trial before a judge in the Philadelphia Court of Common Pleas. The complainant testified that P.S. assaulted her, but her testimony differed wildly from what she had told social workers in a videotaped interview which took place at the Philadelphia Children’s Alliance. Through cross-examination, Attorney Goldstein was able to show that P.S.’s story had changed repeatedly, she had previously told a judge that the assaults did not actually happen, all of her medical exams had been totally normal, and her mom had been telling her that her father had molested her since she was about three years old. Finally, when the complainant’s mother testified, it quickly became clear that she had fabricated the allegations by insisting that these horrible things happened only after she began suing P.S. for child custody and child support.

The trial judge promptly acquitted P.S. at the end of the one day waiver trial. The judge found that the allegations were fabricated and that the complainant’s mother had essentially traumatized her daughter and put her up to making the allegations. Instead of facing decades in prison and a lifetime of Megan’s Law registration, P.S. has now been found not guilty and will be eligible to have the charges expunged.

Allegations of child abuse and child sexual assault are among the most serious possible charges and the most difficult to defend. Judges and juries often have a difficult time believing that children could lie about something so horrible. Fortunately, our attorneys are experienced in investigating these cases and cross-examining the complainants and witnesses in order to effectively fight back against false charges. We have won many of these cases at preliminary hearings, at trial, on appeal, and in PCRA litigation.

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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. We have also won criminal appeals and PCRAs 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 8/10/23 Zak Goldstein 8/10/23

PA Superior Court: Suppression Required if Police Don’t Knock and Announce

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Goodis, holding that the trial court should have granted the defendant’s motion to suppress because the evidence overwhelmingly showed that the police failed to “knock and announce” prior to entering the defendant’s house to execute a search warrant. The consequences to the government of a failure to knock and announce are very different in Pennsylvania and federal courts. In federal court, a knock and announce violation does not lead to suppression. But in Pennsylvania state court, a violation of the knock and announce rule requires that the trial court suppress the evidence.

The Facts of Goodis

In Goodis, the defendant had been convicted of various counts relating to the possession and distribution of child pornography in state court. Prior to trial, he moved to suppress the evidence, arguing that police failed to knock and announce before entering his house to execute a search warrant. The trial court denied the motion, finding that the police acted too quickly but were justified in relying on concerns of officer safety. The defendant appealed.

What is the knock and announce rule?

The knock and announce rule requires police to knock on the door, wait a little bit, and announce their identity, purpose, and authority before entering. Generally, this is accomplished by the police knocking, yelling something along the lines of “police, open up, search warrant,” and then giving the occupant of the building a little bit of time to respond. If the police obtain a no-knock warrant or hear something that suggests the person inside is attempting to flee, grab a weapon, or destroy evidence, then police may dispense with the knock and announce requirement. They also generally do not have to wait very long. But they do have to knock, announce, and give the occupant of the building some time to open the door before they break in.

It is notable that the appellate court may have had some doubts about the defendant’s actual guilt. Even after the trial court denied the motion to suppress, the defense was able to show at trial that police had damaged the hard drive which allegedly contained the child pornography, and he called expert witnesses who testified that the contraband could have been placed there by someone accessing his wireless network which was unsecured at the time. The police also did not find a large quantity of contraband images and videos. In many cases, they find thousands of images and videos. In this case, they only found a few.

The Superior Court’s Ruling

On appeal, the defendant challenged the trial judge’s ruling on the motion to suppress. Pennsylvania Rule of Criminal Procedure 207 and Article I, Section 8 of the Pennsylvania Constitution require that police, before entering a dwelling to execute a search warrant, announce their identity, purpose and authority and give the occupant a reasonable period of time after such announcement to let them in, unless exigent circumstances require immediate forcible entry. The purposes of this requirement, known as the “knock and announce rule,” are to prevent resistance by an occupant protecting his dwelling, to prevent violence and physical injury to the police and occupants, to protect an occupant’s privacy expectation against the unauthorized entry, and to prevent property damage resulting from forced entry. The knock and announce rule is not limited to entry that involves breaking down a door or damage to the dwelling; it applies to any entry into a dwelling without the occupant’s permission, including entry through an unlocked door. Moreover, even where police knock and clearly announce their identity as police, failure to announce their purpose before entering the premises violates Rule 207 and Article I, Section 8 of the Pennsylvania Constitution and suppression is required unless exigent circumstances for the failure to announce are shown.

The Commonwealth must prove compliance with the rule or that one of four exceptions applied. The exceptions are: 1) that the occupants fail to respond after repeated knocking and announcing; 2) that the police are virtually certain that the occupants already know their purpose; 3) that the police have reason to believe that an announcement prior to entry would imperil their safety; or 4) that the police have reason to believe that evidence is about to be destroyed.

Here, the trial court had found that the police announced their presence but did not announce their purpose or wait for a long enough time for the defendant to let them in the house. The court ruled, however, that the police acted with exigent circumstances because they believed that the defendant could have posed a threat to officer safety. On appeal, the defendant argued that this officer safety exception should not have applied.

The Superior Court reviewed the transcripts from the hearing as well as the body camera videos which were introduced by the parties. The videos showed that the police knocked, the defendant walked to the window and put up a finger, signaling that they should wait a second, and then he went out of view to get dressed. Before he got dressed, the police knocked the door down and then held him at gunpoint. The Commonwealth had argued that he could have been trying to destroy evidence or grab a weapon when he went out of view, but the Superior Court rejected this argument. The Court concluded that there was no reason to believe the defendant posed a threat to officer safety where the police were investigating a serious but non-violent crime, the defendant came to the door, signaled to the police for them to give him a second, and then the defendant appeared to be getting dressed. This is particularly true given that the police had not told him to come back or open the door immediately. Indeed, they did not announce their purpose at all. The defendant even appeared to say “hold on a second,” and one of the officers responded, “OK, all right.” As the officer agreed, the defendant had no reason not to believe it was okay for him to get dressed before opening the door. Thus, the officers did not have any objective reason to believe that there was an issue of officer safety that would eliminate the requirement of announcing their purpose.

The Superior Court therefore ordered that the evidence should be suppressed. The defendant will receive a new trial, and the Commonwealth will likely be unable to proceed.

The case shows the importance of carefully reviewing body cam footage before trial and understanding the differences between state and federal court. Without the body cam footage, the defendant would have had a very hard time convincing a panel of appellate judges that the police did not have legitimate officer safety concerns. He would have been left only with their testimony and limited ways in which to contradict it. Further, in federal court, the remedy for a knock and announce violation is not suppression. Instead, a defendant can sue the police, which does not do them much good while they are in prison serving a sentence for distribution of child pornography.

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Goldstein Mehta LLC - Criminal Defense Attorneys in Philadelphia

Zak Goldstein 7/25/23 Zak Goldstein 7/25/23

PA Superior Court: Adult Conviction May Require SORNA Registration for Some Offenses Committed as Juvenile

Criminal Defense Attorney Zak Goldstein — Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Asbury, holding that a sentence including lifetime registration under the Sex Offender Registration and Notification Act (SORNA) as a Sexually Violent Predator(SVP) may be imposed on a defendant convicted as an adult for acts committed as a juvenile. This holding also applies to individuals charged as adults for crimes they committed as juveniles. This means that an individual could commit a crime qualified as a non-delinquent act while under the age of eighteen and not be tried or convicted of that act until they are 35 and still be required, under SORNA, to register as a sex offender for the remainder of their life. In most cases, SORNA registration does not apply to offenses committed as a juvenile, but as Asbury shows, there are some exceptions to that general rule.

The Facts of Asbury

The defendant was sixteen years old when he committed two counts of rape by forcible compulsion. The first count involved the use of a firearm to aid in the commission of the offense, and the second count involved physically overpowering the victim with no weapon used. The first count is not considered a delinquent act under the Juvenile Act codified under 42 Pa.C.S.A. § 6302 because the defendant was over the age of fifteen at the time of the rape and it involved the use of a deadly weapon. Instead, Pennsylvania law provides that this conduct is only a crime rather than a delinquent act. Part of the guilty plea that was agreed upon by both parties was that the defendant was to have the court determine whether he was required to register as a sex offender pursuant to the Sex Offender Registration and Notification Act (SORNA). The determination whether the defendant should register as a sex offender was only for the first count as that count involved a handgun. The second count, which did not involve a deadly weapon, would not trigger sex offender registration because the defendant committed the crime as a juvenile.

The court also ordered the Sexual Offenders Assessment Board (SOAB) to conduct an assessment of the defendant to determine if he met the criteria for classification as a sexually violent predator (SVP) under Pennsylvania law. The SOAB ultimately concluded that the defendant should be classified as an SVP, and the trial court agreed. Pursuant to the plea agreement, the court sentenced the defendant to 60 to 120 months’ incarceration as well as lifetime sex offender registration. The defendant appealed.

The Superior Court’s Decision

On appeal, the defendant argued that he should not have to register as a sex offender pursuant to SORNA because he had committed the crimes as a juvenile. The Pennsylvania Supreme Court previously ruled in the case of In re J.B. that juvenile offenders have a protected right to reputation which is encroached on by SORNA’s presumption of recidivism, the presumption is not universally true, and there are alternative means for ascertaining the likelihood of reoffending. Therefore, requiring juveniles to register based solely on the offense of adjudication violates the Pennsylvania Constitution. The Court also held that the application of SORNA’s current lifetime registration requirement upon adjudication of specified offenses violates juvenile offenders’ due process rights by utilizing an irrebuttable presumption. Following J.B., the Superior Court ruled in Commonwealth v. Haines that the PA Supreme Court’s holding should apply with equal weight to a defendant convicted as an adult for crimes committed as a juvenile.

In this case, however, the Superior Court affirmed the sentenced registration requirements. The court rejected the defendant’s argument based on J.B. and Haines that the lifetime reporting requirements, for acts committed as a juvenile, under SORNA violated his due process rights by “utilizing an irrebuttable presumption” of a high likelihood of recidivism, even though that presumption is not “universally true.” The court accepted the Commonwealth’s argument that while it is unconstitutional to require lifetime SORNA reporting for “delinquent acts” committed by a juvenile even if later convicted and sentenced as an adult, the specific crime the defendant committed which led to his SVP classification did not qualify as a “delinquent act” under the Juvenile Act. The Court based its decision on the rationale that the Pennsylvania State Legislature specifically excluded certain crimes committed by juveniles from classification as “delinquent acts” because there are crimes that are so heinous that they require individuals to be tried as adults. The Court further reasoned that SVP classification is not a punitive measure designed to punish defendants; instead, it is a safety measure designed and applied to protect the community at large.

The Impact of Asbury

The Court’s ruling highlights the importance of the specific statutory language in Pennsylvania’s laws. In many cases, criminal charges are not brought until long after the acts have been committed, and sometimes convictions occur for adults who committed these crimes as juveniles. Just because an act is committed by a juvenile does not mean the act qualifies as a “delinquent act,” affording the individual certain protections that they would have had had they been charged sooner. Certain crimes committed by juveniles are always essentially adult crimes and may result in adult consequences.

At the same time, most sex offenses committed as a juvenile for which someone can be prosecuted as an adult do not trigger SORNA registration under Haines. In order for a court to impose a registration requirement on an adult who has been prosecuted for an offense they committed as a juvenile, either 1) the offense must have been committed with a deadly weapon, 2) the defendant must have had a prior serious sex offense, or 3) the court must find the defendant to be a sexually violent predator. Otherwise, the defendant should not have to register.

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Goldstein Mehta LLC - Philadelphia Criminal Defense Attorneys

Zak Goldstein 6/22/23 Zak Goldstein 6/22/23

PA Supreme Court: Prosecutor’s Reference to Defendant’s Post-Arrest Silence Requires New Trial

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Rivera, holding that even a brief mention of a defendant’s post-arrest silence by the prosecution will almost always require a new trial. Both the state and federal constitutions give an individual the right to remain silent and not speak with the police. This case recognizes that such a right would be meaningless if the government could then argue at trial that the defendant is guilty because they refused to make a statement. It is important to note, however, that courts are much more likely to reverse a conviction where the government tries to take advantage of post-arrest silence than silence that occurred prior to an arrest or the giving of Miranda warnings.

The Facts of Rivera

In Rivera, the defendant was accused of sexually abusing a number of minors. The Pennsylvania State Police investigated the case, and they eventually filed rape charges against him. The police went to his house to arrest him, advised him of the charges, and read him his Miranda warnings. They then formally placed him under arrest. The defendant did not say anything at that time; he did not incriminate himself, and he also did not deny the allegations. Instead, he remained silent. He had an absolute right to do so under the Pennsylvania and United States Constitutions.

The defendant proceeded by way of jury trial. At trial, his defense attorney challenged the credibility of the witnesses. The defense centered around arguing that the complainants were not telling the truth and that they had made up the allegations. During the cross-examination, the defense attorney asked the investigating state trooper a number of questions about the investigation in order to show that the trooper had not done much of an actual investigation. One of those questions was whether the trooper had spoken with the defendant, and the trooper said that he had tried to but was unsuccessful. On re-direct, the prosecutor asked the trooper about the Miranda warnings. Specifically, the following exchange occurred:

Q. [Commonwealth Attorney]: I’d like to direct your attention to June 26, 2018, at about 1400 hours, did you . . . go to the home of [Rivera]?
A. [Trooper Higdon]: Yes.
Q. And was he arrested based on the arrest warrant?
A. I had an arrest warrant in hand, correct.
Q. At approximately 1430 hours, did you read [Rivera] his Miranda [w]arnings?
A. Yes.
Q. So what, what are the Miranda [w]arnings?
A. Miranda [w]arnings are, I’ll say in easy terms of their right to remain silent.
Q. Okay. After you read him his Miranda warnings, he never told you that he didn’t do anything to any of these kids?
A. No.
Q. He never denied doing anything to –
Defense Counsel: Objection to that. A person doesn’t have to deny.
The Court: You’re correct, I think he’s just asking if he did. You may answer.
A. He did not deny.
Q. He never said[,] I didn’t do this?
A. No.
Q. What did he say?
A. Nothing, he said he wished not to talk.
Q. No more questions.

As is reflected in the exchange, the defense attorney objected to this line of questioning, but the trial court overruled the objection. The trial court did not provide a cautionary instruction to the jury. The jury convicted on many of the charges, and the defendant appealed.

The Superior Court affirmed. It held that the prosecutor should not have asked the questions about the defendant’s response to receiving his Miranda warnings, but it found that the error amounted to harmless error. It also found that the prosecutor’s questioning was a fair response to the defense’s opening the door on the issue by asking if the trooper had spoken with the defendant. The defendant petitioned the Pennsylvania Supreme Court for review, and the Supreme Court granted allocatur.

The Supreme Court’s Ruling

The Pennsylvania Supreme Court reversed the conviction. The Court emphasized that the prosecution simply may not ask questions about a defendant’s decision to remain silent after being arrested and receiving Miranda warnings. The issue is more complicated when a defendant has not yet been arrested - in that case, the courts may be more forgiving should a police witness testify that a defendant did not give a statement while describing the steps that the officer took to investigate the allegations.

Post-arrest, however, there is an absolute right to remain silent, and the prosecution may not try to take advantage of silence in order to suggest that a defendant is guilty. Indeed, the Court noted that “referencing a defendant’s post-arrest silence may imperil an entire case.” Even though the evidence in this case appeared to be strong, the Court found that the error was not harmless. First, it found that the reference to silence was not de minimis - the prosecutor had asked four questions about it. Second, the evidence was not merely cumulative of other evidence in the case. Third, the evidence was not so overwhelming that the defendant could not have been prejudiced. Accordingly, the Court granted Rivera a new trial.

In general, the prosecution may not use a defendant’s silence against them at trial. Even references to pre-arrest silence may be inadmissible and lead to reversal on appeal. But this case makes it very clear that references to post-arrest silence are particularly problematic and that even just a few questions about it may lead to a new trial. Prejudice is essentially presumed when the prosecutor attempts to use a defendant’s post-arrest decision to remain silence against them.

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Criminal Defense Attorney Zak T. Goldstein, Esquire

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