PA Superior Court: Google and Facebook Are Not Government Agents When They Scan User Accounts and Report Internet Contraband to NCMEC

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Thomas, 2026 PA Super 209, holding that Google and Facebook do not act as agents of the government when they scan their users’ accounts for child sexual abuse material and report what they find to the National Center for Missing and Exploited Children (NCMEC). The defendant argued that federal law, which requires the companies to report this material and fines them if they do not, makes them instruments of law enforcement, so their warrantless searches of his accounts violated the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution. The Court rejected the argument in a published opinion. But the holding rests on a thin record, and the Court left the harder questions open.

The Facts of Thomas

In May 2023, Facebook and Google sent three CyberTipline reports to NCMEC stating that files had been uploaded through Facebook Messenger and to Google Photos. NCMEC forwarded the reports to the Pennsylvania State Police. A State Police corporal viewed the images, subpoenaed Verizon and Google for the subscriber behind the IP address, and obtained a search warrant for the defendant’s home in Fayette County. Police found child sexual abuse material on two of his phones. The defendant moved to suppress, arguing that Google, Facebook, and NCMEC were all acting as agents of law enforcement when they searched his accounts. The trial court denied the motion, a jury convicted him of twenty counts of possession, one count of dissemination, and one count of criminal use of a communication facility, and the court sentenced him to six to twelve years in prison.

The Superior Court’s Decision

The Fourth Amendment and Article I, Section 8 restrain the government, not private parties. Under United States v. Jacobsen, 466 U.S. 109 (1984), and Commonwealth v. Shaffer, 209 A.3d 957 (Pa. 2019), the police may use what a private party finds and turns over so long as they do not exceed the scope of the private search. The doctrine does not apply if the private party was really acting as an agent or instrument of the government, and the answer to that question depends on the degree of the government’s participation in the private party’s activities.

The defendant’s argument rested on 18 U.S.C. § 2258A, which requires providers to report apparent child sexual abuse material to NCMEC and fines them up to $1,000,000 for knowingly failing to do so. The Court held that the statute does not make Google and Facebook government agents because subsection (f) of the same statute says that nothing in it requires a provider to monitor its users or affirmatively search, screen, or scan for the material. Congress required the companies to report what they know and left the decision whether to look entirely to them. The Court then made a critical point: nothing in the record showed that Google and Facebook searched the defendant’s accounts at the government’s urging or through any manipulation or coercion. The Court cited decisions from five federal circuits reaching the same result and followed them.

The Court treated NCMEC differently. It acknowledged that Congress funds NCMEC, requires providers to report to NCMEC rather than to the police, requires NCMEC to forward every report to law enforcement, authorizes NCMEC to receive and distribute material that would be a crime for anyone else to possess, and immunizes NCMEC for doing so. It noted that the Second Circuit in United States v. Guard, 152 F.4th 375 (2d Cir. 2025), and the Tenth Circuit in United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016), have held that NCMEC is a government agent. The Court did not decide the question because the defendant never argued that NCMEC or the police looked at anything Google and Facebook had not already looked at. Without a scope argument, NCMEC’s status did not matter.

The defendant did win a new trial on the dissemination count, because the Commonwealth proved that charge entirely through the CyberTipline report, which it introduced as a business record through the corporal, and the Court held that an investigating officer who merely receives and relies on NCMEC reports is not a qualified witness who can authenticate them.

The Takeaway

The state actor argument is still open. The Court did not hold that Google and Facebook can never be government agents. It held that this defendant did not prove they were on a record that failed to provide any evidence as to why the companies scan their users’ accounts, how those systems came to exist, or what role law enforcement and NCMEC play in them. The Court said in so many words that the record did not support a finding that the government urged, manipulated, or coerced the searches. That may be an opportunity to build a better record in a future case. A defendant could subpoena the providers and develop testimony about the government’s participation in the design and operation of these scanning programs, where the hash databases the providers match against come from, and what the providers get in return presents a different case. The agency test turns on the degree of government participation, and no one in Thomas presented any evidence of participation to the trial court, so there was nothing to support the appeal.

The second open question is what happens when the police look at files that no human at the company ever opened. In Thomas, the Facebook report itself said that NCMEC never viewed the files, and nothing in the opinion says anyone at Facebook viewed them either. A computer flagged them, and the first person to actually open them may have been the trooper. The private search doctrine lets the police look at what a private party already looked at. It does not necessarily let the police look at something a private party's software only flagged. The defendant never made that argument, so the Court did not address it. It has to be raised in the suppression motion and supported with evidence at the hearing because the Superior Court will not consider it for the first time on appeal.

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Goldstein Mehta LLC Criminal Defense

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients in jury trials, bench trials, preliminary hearings, and appeals in state and federal court. We have won cases involving the most serious charges, including first-degree murder, and we have obtained new trials and sentencing relief for our clients through direct appeals and PCRA petitions. We offer a free criminal defense strategy session to anyone who is facing charges or who may be under investigation. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

PA Superior Court: Trial Counsel Ineffective for Failing to Move to Suppress Parole Violation Admission Obtained Without Miranda Warnings

Criminal Defense Attorney Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided Commonwealth v. Ames, 2026 PA Super 179 (Pa. Super. Aug. 10, 2026), holding that a parole agent conducted a custodial interrogation when he took a parolee into custody in handcuffs and shackles, read him the complainant’s allegations of new crimes, and presented him with a form on which he could admit that he had violated his parole by committing that conduct. The agent never gave Miranda warnings, so the signed admission should have been suppressed, and trial counsel had no reasonable basis for letting the Commonwealth use it at a trial where the whole defense was that the complainant had made the allegations up. The Court reversed the denial of the defendant’s PCRA petition and remanded for a new trial.

What Happened in Commonwealth v. Ames?

In 2016, the defendant pleaded no contest to simple assault and terroristic threats for assaulting his wife, L.A. While he was on parole for that case, L.A. alleged that he strangled her, beat her, threatened to kill her, and sexually assaulted her on two occasions in late 2018. In March 2019, she reported the incidents to his parole agent. The agent passed the allegations to the local police, and when the police did not file charges right away, he ordered the defendant to report to the parole office. When the defendant arrived, the agent handcuffed and shackled him, took him to an interview room, read him the notice of charges describing L.A.’s allegations in detail, and gave him the choice of a hearing on the violation or a signed waiver admitting it. The defendant signed the form admitting that he had violated parole by engaging in assaultive behavior and violating a no-contact order. The agent never gave Miranda warnings.

The Commonwealth charged the defendant with strangulation, aggravated assault, sexual assault, and related offenses. At trial, it introduced the signed admission and the agent’s testimony about the meeting. The defense argued that L.A. had fabricated the allegations to get the defendant in trouble with parole, and it called two medical experts, including L.A.’s treating physician, who testified that L.A. told her that storage containers had fallen on her. The jury convicted the defendant of everything, and the court sentenced him to forty and a half to eighty years in prison. The Superior Court affirmed on direct appeal. The defendant then filed a PCRA petition arguing that trial counsel should have moved to suppress the admission. The PCRA court denied relief, and he appealed.

The Superior Court’s Ruling

The Commonwealth conceded that the defendant was in custody, so the only question was whether the agent interrogated him. In Commonwealth v. Cooley, 118 A.3d 370 (Pa. 2015), the Pennsylvania Supreme Court held that a parole agent who handcuffs a parolee and questions him about new crimes must give Miranda warnings, because at that point the agent’s conduct is the functional equivalent of a police officer’s. The Commonwealth argued that Cooley did not apply because the agent never asked the defendant any questions and the meeting was a routine part of the parole process.

The Superior Court rejected both arguments. The agent did not bring the defendant in for routine administrative questions. He brought him in to find out whether he had committed the crimes L.A. described, laid out those allegations, told him he believed the defendant had violated parole by engaging in assaultive behavior, and then handed him a form on which he could admit it. That was an interrogation. Miranda protection is not limited to answers to questions; the agent’s words and actions were reasonably likely to elicit an incriminating response, and the defendant did not volunteer anything. A motion to suppress would have had merit.

Trial counsel had no reasonable basis for failing to file it. Her strategy was to show that L.A. was lying, and the signed admission told the jury that L.A. was telling the truth. No competent counsel would allow a confession to the charged conduct into evidence while arguing that the complainant invented the allegations. On prejudice, the Court noted that the defendant’s admissions alone were enough to convict him of several charges, and that the medical evidence was contested. Two defense experts testified that L.A.’s injuries did not match her account, and the Commonwealth did not call any expert to rebut the treating physician. Given that conflict, the confession likely had a substantial impact on the verdict. The Court reversed and remanded for a new trial.

Does a parole agent have to give you Miranda warnings?

Sometimes. Cooley held that a parole agent who questions a handcuffed parolee about new crimes must give Miranda warnings. Ames extends that rule to the situation where the agent does not actually ask anything but simply presents the parolee with an admission form. Anyone on parole or probation who is called in over new allegations should not sign anything admitting to criminal conduct without talking to a lawyer first because the Commonwealth could use the signed form as a confession in the criminal case. And where an agent has already obtained an admission from a client in custody without warnings, defense counsel should move to suppress it. Under Ames, the failure to file that motion can support a successful ineffectiveness claim and lead to a new trial.

Facing Criminal Charges or Appealing a Criminal Case in Pennsylvania? We Can Help.

Goldstein Mehta LLC Criminal Defense

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.

PA Superior Court: A PCRA Petition Filed Before the Judgment of Sentence Becomes Final Is a Legal Nullity

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided Commonwealth v. Ramsey, 2026 PA Super 169 (en banc), holding that a PCRA petition filed before the judgment of sentence becomes final is a legal nullity. The PCRA court has no jurisdiction to decide a premature petition, and the Superior Court has no jurisdiction to hear an appeal from the order denying it. That is true even where the PCRA court accepts the petition, appoints counsel, holds an evidentiary hearing, and rules on the merits. The lack of a Commonwealth objection does not change the analysis, either. The defendant in Ramsey filed his petition six days before his judgment of sentence became final. Nearly three years of litigation later, the en banc Court quashed his appeal without reaching any of his claims, and his one-year window for filing a proper petition had already closed. Every defendant and every defense lawyer in Pennsylvania should understand this trap, because it can permanently destroy the right to collateral review.

What Happened in Commonwealth v. Ramsey?

A jury convicted the defendant of sexual offenses against a mentally impaired victim. On March 22, 2023, the trial court sentenced him to four to eight years of incarceration and found him subject to lifetime registration as a Tier 3 sex offender under Megan’s Law. The defendant filed timely post-sentence motions challenging the sufficiency and weight of the evidence, and the court denied the motions on July 27, 2023. That denial started his thirty-day clock for filing a direct appeal to the Superior Court.

The defendant never filed a direct appeal. Trial counsel told him that the trial had been clean, that the Superior Court would let the jury’s verdict stand, and that “the best bet is to file a PCRA.” The defendant took the advice, but he did not wait for the appeal period to end. On August 22, 2023, six days before the deadline for a direct appeal expired, he filed a pro se PCRA petition alleging ineffective assistance of trial counsel.

The PCRA court did not dismiss the petition as premature. Instead, it appointed PCRA counsel a week later. Counsel moved to withdraw under Turner/Finley; the court denied the motion, and counsel filed nothing further. The Commonwealth answered the petition and specifically argued that the defendant had filed it before the appeal period expired, but the court took no action on that defense. It held an evidentiary hearing in May 2024, denied the petition on June 18, 2024, and the defendant appealed to the Superior Court, raising three ineffectiveness claims.

When Can a Defendant File a PCRA Petition?

The PCRA provides that a petition “shall be filed within one year of the date the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A judgment becomes final “at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3). For a defendant who does not appeal, the judgment of sentence becomes final when the thirty-day period for filing a direct appeal runs out. Where the defendant files timely post-sentence motions, those thirty days run from the order deciding the motions.

The filing window therefore opens on a specific day, and it closes on a specific day. A defendant who files more than one year after the judgment becomes final has filed an untimely petition. A defendant who files before the judgment becomes final has filed a premature one. Pennsylvania courts treat both defects as jurisdictional, and the Pennsylvania Supreme Court has held that “there is no generalized equitable exception to the jurisdictional ... time bar pertaining to post-conviction petitions.” Commonwealth v. Brown, 943 A.2d 264, 267 (Pa. 2008).

The Superior Court’s Ruling

The en banc Court raised the jurisdictional problem on its own. The Commonwealth had flagged prematurity in the PCRA court but did not brief the issue on appeal. That did not matter, because “[i]n the PCRA context, statutory jurisdiction cannot be conferred by silence, agreement or neglect.” Commonwealth v. Smith, 244 A.3d 13, 17 (Pa. Super. 2020). Ramsey’s appeal period ran until Monday, August 28, 2023. He filed his petition on August 22, 2023. The petition was premature, the PCRA court never had jurisdiction to decide it, and the Superior Court had no jurisdiction over the appeal. The Court quashed the appeal.

The Court rejected Ramsey’s argument that equity should excuse the defect because the PCRA court chose to litigate the petition rather than dismiss it. The time limits are jurisdictional, and they apply even when the PCRA court proceeds to the merits of a defective petition. The Court also refused to consider the petition nunc pro tunc. That relief requires the defendant to show that fraud or a breakdown in court operations caused the premature filing. Here, the sentencing court correctly advised the defendant of his direct appeal deadlines and said nothing about the PCRA. The defendant decided by himself to file early, so he bore full responsibility for the filing. Finally, the Court held that the hearing testimony from the defendant and trial counsel about skipping the direct appeal did not authorize unitary review of ineffectiveness claims under Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), because the defendant never made a knowing and express waiver of his PCRA rights on the record after a full colloquy.

The en banc Court also used the case to reconcile its prior decisions. It reaffirmed the line of cases quashing appeals from premature petitions, and it cut back sharply on Commonwealth v. Mojica, 242 A.3d 949 (Pa. Super. 2020), the decision defendants had relied on to save premature filings. Mojica survives only because the clerk of courts in that case violated Rule 576(A)(4) by failing to send the pro se filing to counsel and the Commonwealth, and that breakdown in court operations justified nunc pro tunc consideration. A court’s failure to notice that a petition is premature does not, by itself, entitle anyone to relief. The Court noted one important limit on the rule: under the Pennsylvania Supreme Court’s decision in Commonwealth v. Smith, 310 A.3d 94 (Pa. 2024), a different case involving a different defendant named Smith, a petition filed during an untimely direct appeal is not premature, because an untimely appeal does not delay the date the judgment became final.

Why This Decision Is a Trap

No one stops a defendant from filing a PCRA petition too early. The clerk accepts the petition and dockets it. The judge may appoint counsel, schedule hearings, take evidence, and rule. The court never acquires jurisdiction, no matter how far the litigation goes, and every order entered on the void petition falls with it.

Meanwhile, the real one-year clock keeps running. The defendant’s judgment of sentence became final on August 28, 2023, so a valid first petition was due by August 28, 2024. That deadline passed while he was still litigating the void petition. By the time the Superior Court quashed his appeal in July 2026, the window had been closed for almost two years. The Court observed that when a premature petition is dismissed, the petitioner may still file a petition within the time permitted after the judgment of sentence becomes final. That observation protects the defendant whose premature petition gets dismissed quickly. It comes too late for a defendant like this one, who would now have to plead and prove one of the PCRA’s narrow timeliness exceptions before any court could hear his ineffectiveness claims.

The advice the defendant received makes the case even more troubling. Skipping a hopeless direct appeal and moving straight to collateral review can be a reasonable strategy, and Pennsylvania generally requires defendants to save ineffective assistance claims for the PCRA anyway. But the strategy only works if the defendant waits to file until the judgment of sentence becomes final. The defendant filed six days early, and those six days cost him any review of his claims. It may be possible to reinstate it, however.

The Takeaway

Never file a PCRA petition until the judgment of sentence is final. A defendant who forgoes a direct appeal must wait out the full thirty-day appeal period before filing, and a defendant whose direct appeal is pending must wait until the appellate courts finish with the case. Defense counsel should calendar two dates in every case: the date the judgment of sentence becomes final and the one-year PCRA deadline that follows.

If a premature petition is already on the docket, the fix is to file a new petition after the judgment becomes final and within the one-year period. The Ramsey Court confirmed that a PCRA court will have jurisdiction over that later filing, and it explained that the new filing should be treated as a first petition rather than an amendment, because the premature petition was a nullity. Do not assume the court will catch the problem. In Ramsey, the Commonwealth raised prematurity in writing, the PCRA court litigated the petition anyway, and the defendant paid the price. But ultimately, the real advice is to get a lawyer and not do these things yourself.

Facing Criminal Charges or Appealing a Criminal Case in Pennsylvania? We Can Help.

Goldstein Mehta LLC Criminal Defense

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.

PA Supreme Court: Multiple Sex Offense Convictions in a Single Case Do Not Make a Defendant a Tier III Offender

Goldstein Mehta LLC Criminal Defense

The Pennsylvania Supreme Court has decided Commonwealth v. Osman, 81 MAP 2024 (Pa. July 21, 2026), holding that a defendant convicted of Tier I and Tier II sexual offenses in a single case, with no prior sex offense convictions, is not a Tier III offender under the Sexual Offender Registration and Notification Act (SORNA). Tier III classification is reserved for recidivists, meaning defendants who commit a new offense after a prior conviction. This is an important decision. A Tier III offender must register with the Pennsylvania State Police for life, and a Tier III offense also triggers a mandatory three-year term of consecutive probation under 42 Pa.C.S. § 9718.5. Because the defendant was not a Tier III offender, the trial court had no authority to impose the mandatory probation term. The Supreme Court reversed the Superior Court, vacated the judgment of sentence, and remanded the case for resentencing.

What Happened in Commonwealth v. Osman?

In August 2022, a Dauphin County jury convicted the defendant of corruption of minors, unlawful contact with a minor, and indecent assault. The jury acquitted him of involuntary deviate sexual intercourse and indecent exposure. The defendant had no prior record of sexual offenses, and the Sexual Offender Assessment Board concluded that he did not meet the criteria for designation as a sexually violent predator.

The trial court sentenced the defendant to one to three years of incarceration for corruption of minors along with concurrent terms of one to three years for unlawful contact and three to twelve months for indecent assault. Immediately after the court announced that sentence, the prosecutor advised the court that a defendant who must register under Megan’s Law and who receives a sentence of incarceration must also serve a minimum of three years of consecutive probation. The prosecutor did not cite the statute he had in mind, and as the Supreme Court later observed, he did not describe its terms accurately. The trial court nonetheless agreed and amended the sentence on the spot, replacing the concurrent prison term for unlawful contact with a three-year period of probation to run consecutively to the corruption of minors sentence.

In its opinion, the trial court explained that it believed it had no choice. Osman stood convicted of multiple Tier I and Tier II offenses, the court reasoned, so SORNA classified him as a Tier III offender, and 42 Pa.C.S. § 9718.5 makes the three-year consecutive probation term mandatory for Tier III offenses. The Superior Court affirmed in a non-precedential decision based on the same reading of the statute, and the Supreme Court agreed to hear the case.

SORNA’s Tier System and Why Tier III Matters

SORNA classifies sexual offenses in a three-tier system, and the tier controls the severity of the registration and reporting requirements. Tier I and Tier II offenses carry registration periods of fifteen and twenty-five years, respectively. A Tier III offender must register for life. Most offenses are assigned to a tier by name. Corruption of minors, for example, is a Tier I offense, while unlawful contact with a minor and indecent assault are Tier II offenses. Section 9799.14(d)(16) then adds a catch-all to the Tier III list: “[t]wo or more convictions of offenses listed as Tier I or Tier II sexual offenses.”

Tier III classification also has direct sentencing consequences. Section 9718.5 requires the court to impose three years of probation “consecutive to and in addition to any other lawful sentence issued by the court,” and it expressly authorizes the court to run that probation beyond the statutory maximum for the underlying offense. The question in Osman was therefore whether a defendant convicted of multiple Tier I and Tier II offenses at one trial becomes a Tier III offender under Section 9799.14(d)(16). If he does, he faces lifetime registration and the mandatory probation term even though he has never been convicted of anything before.

The Supreme Court’s Ruling

In an opinion by Justice Donohue, the Supreme Court held that its own precedent had already answered the question. In A.S. v. Pennsylvania State Police, 143 A.3d 896 (Pa. 2016), the Court interpreted nearly identical “two or more convictions” language in Megan’s Law II, an earlier version of Pennsylvania’s registration statute, and held that the provision requires “an act, a conviction, and a subsequent act” before the enhanced classification applies. The same day, in Commonwealth v. Lutz-Morrison, 143 A.3d 891 (Pa. 2016), the Court applied that interpretation to Section 9799.14(d)(16) itself, holding that a defendant who pleaded guilty in one case to three counts of possessing child pornography, each a Tier I offense, was not subject to lifetime registration as a Tier III offender. Multiple convictions in a single prosecution do not create Tier III status. The provision reaches only defendants who commit a new offense after a prior conviction.

Those decisions rest on the recidivist philosophy underlying Pennsylvania’s registration statutes. As Chief Justice Castille explained in the Opinion in Support of Reversal in Commonwealth v. Gehris, 54 A.3d 862 (Pa. 2012), recidivist provisions give first-time offenders a chance to reform. The most severe consequences are reserved for those who commit a new crime after a conviction has put them on notice.

Pennsylvania courts have applied that interpretation of Section 9799.14(d)(16) consistently since 2016. The Superior Court nonetheless affirmed Osman’s sentence based on the statute’s supposedly plain text without addressing Lutz-Morrison, an approach the Supreme Court described as clear error. The Commonwealth, for its part, conceded that A.S. and Lutz-Morrison were adverse to its position and made no attempt to distinguish them. It instead argued that the dissenting Justices in those cases read the statute correctly. The Supreme Court rejected that approach. The Court had not granted review to reconsider its precedent, the Commonwealth never expressly asked the Court to overrule those cases, and stare decisis carries particular weight in matters of statutory interpretation because the General Assembly can amend a statute if it disagrees with a court’s reading. The legislature has amended Section 9799.14 at least six times since 2016, including in the 2018 legislation that enacted Section 9718.5 itself, and it has left the Court’s interpretation of the “two or more convictions” language undisturbed.

The Court also rejected the Commonwealth’s argument that Section 9718.5 is rehabilitative rather than punitive. Pennsylvania courts have long treated probation as a traditional form of punishment, and Section 9718.5 permits supervision beyond the statutory maximum. Given the contextual ambiguity in Section 9799.14(d)(16), the rule of lenity required the Court to construe the provision strictly in Osman’s favor. Finally, the Court rejected the suggestion that its ruling gives defendants a volume discount for committing more crimes. A defendant convicted on multiple counts faces a separate sentence on each count, and the trial court retains full discretion to run those sentences consecutively to reflect the gravity and frequency of the conduct. Tier III classification under Section 9799.14(d)(16) is an enhancement for recidivists, and Osman is not a recidivist.

Because Section 9799.14(d)(16) did not apply, the defendant was not a Tier III offender, and the trial court lacked the legal authority to impose the mandatory probation term. The sentence was illegal. The Supreme Court vacated the judgment of sentence and remanded for resentencing. Chief Justice Todd and Justices Dougherty, Brobson, and McCaffery joined the majority opinion. Justices Dougherty and Brobson filed concurring opinions, and Justice Wecht filed a dissenting opinion joined by Justice Mundy.

The Takeaway

Osman matters most for what it says about classification. A first-time offender convicted of multiple Tier I or Tier II offenses in a single case is not a Tier III offender. He is not subject to lifetime registration under the two-or-more-convictions provision, and he cannot receive the mandatory probation term that follows Tier III status. The tier assigned to a defendant controls how long he must register, how often he must report, and how the sentencing court must structure his sentence, so getting the tier right is often more consequential than the underlying prison term.

The decision also shows how often the system gets this wrong. The Supreme Court settled the meaning of Section 9799.14(d)(16) a decade ago, yet the prosecutor requested the mandatory probation term, and the trial court and the Superior Court both treated Osman as a Tier III offender anyway. Defendants and their lawyers should always verify the registration tier independently rather than accepting the classification announced in court or assigned by the State Police. Misclassification can be corrected. In A.S., the defendant successfully sued the State Police to be removed from the registry after they attempted to hold him to lifetime registration. And because a defendant cannot waive a challenge to the legality of a sentence, a mandatory probation term imposed under Section 9718.5 on a first-time offender remains challengeable on appeal even if no one objected at sentencing. Commonwealth v. Barnes, 151 A.3d 121 (Pa. 2016). Anyone who has been classified as a Tier III offender, or sentenced to a mandatory period of probation, based only on multiple convictions from a single case should speak with an experienced criminal defense and appeals lawyer.

Facing Criminal Charges or Appealing a Criminal Case in Pennsylvania? We Can Help.

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

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.