PA Supreme Court: Defendants Sentenced to Fines or No Further Penalty May Claim Ineffective Assistance of Counsel in Post-Sentence Motions

Criminal Defense Lawyer Zak T. Goldstein, Esq.

The Pennsylvania Supreme Court has just decided the case of Commonwealth v. Delgros. In Delgros, the Court created a new equitable exception which permits a defendant who is convicted of a crime and sentenced only to a fine or to no further penalty to claim ineffective assistance of counsel in a post-sentence motion. Under prior case law interpreting Pennsylvania’s Post-Conviction Relief Act, a defendant who was not incarcerated or serving a sentence of probation or parole could not file a PCRA Petition and claim ineffective assistance of counsel in seeking a new trial or sentencing because the PCRA requires that a defendant be serving a sentence. 

Commonwealth v. Delgros

Delgros involved the theft of construction materials. The defendant hired the complainant to install a double-wide mobile home on his property. The complainant purchased materials for the project and left some of the materials on the defendant’s property for a period of time, intending to pick them up later. When the complainant returned to pick them up, the materials were gone. The defendant denied knowing what had happened to them. The complainant reported the theft to the police, and the police questioned the defendant. The defendant told the police that he did not know what happened to the materials. He permitted police to search the premises, but the police did not find anything. 

Several months later, the defendant and his father hid the materials in the woods. Five to seven years later, the defendant and his father used the materials to build a porch on the defendant’s house. Police subsequently received a report that the defendant had the materials on his porch, and the defendant’s father eventually confessed to the police that the defendant had told him from where the materials came. Police then went to the house armed with a search warrant and saw the stolen materials.

Receiving Stolen Property Charges

Police arrested the defendant and charged him with Receiving Stolen Property as a felony of the third degree. A jury convicted the defendant, and the trial court sentenced him to pay restitution of $2,800 and a fine of $15,000. The court did not sentence him to any jail time or probation. The defendant filed post-sentence motions, claiming that he had received ineffective assistance of counsel from his trial lawyer because his trial lawyer had not properly challenged the gradation of the Receiving Stolen Property charge. He alleged that his trial lawyer should have been able to prove that the value of the materials was less than $2,000. The $2,000 amount is significant because Receiving Stolen Property or Theft of less than $2,000 is a misdemeanor instead of a felony.  

Jurisdiction for a PCRA Petition

The trial court denied the post-sentence motions, finding that the defendant could not raise a claim of ineffective assistance of counsel in a post-sentence motion or in a direct appeal. That was the rule prior to this case. Instead, existing Pennsylvania Supreme Court decisions required that ineffective assistance of counsel claims be raised in a Post-Conviction Relief Act Petition after direct appeals have already been litigated. The defendant appealed, and the Superior Court affirmed the result.

Petition for Allowance of Appeal

After the Superior Court affirmed, the defendant filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court. The Pennsylvania Supreme Court accepted the appeal and reversed the trial court’s denial of the Post-Sentence Motions without a hearing. The Court recognized that on its face, the Post-Conviction Relief Act requires that a Petitioner be serving a sentence in order to file a Petition and claim ineffective assistance of counsel. Thus, someone who is not sentenced to incarceration or probation cannot file a PCRA based on the language in the statute.

However, the Court noted that previous decisions have created two exceptions to this general rule: First, a defendant may file ineffective assistance claims in post-sentence motions and on direct appeal where the claim of ineffectiveness is apparent from the record and meritorious to the extent that immediate consideration best serves the interests of justice. Second, a defendant may show good cause and knowingly and expressly waive his entitlement to seek subsequent PCRA review from his conviction and sentence. 

The Court Creates a New Exception

The defendant argued that the trial court should have entertained his arguments under both exceptions or found that the denial of the opportunity to litigate ineffective assistance issue would violate his Sixth Amendment right to competent representation at trial, thereby depriving him of due process. Ultimately, the Pennsylvania Supreme Court agreed.

The Court recognized that the deferral of ineffective assistance of counsel claims is preferable in most cases, but it recognized the fundamental unfairness of a system in which a defendant could be convicted of a felony due to the incompetent performance of his or her lawyer and then not have the opportunity to challenge the conviction based on that incompetent performance. Therefore, the Court recognized a new exception. Under this case, in order to ensure that criminal defendants are afforded an opportunity to challenge trial counsel’s stewardship, the Court adopted a new exception requiring trial courts to address claims challenging the defense attorney’s performance where the defendant is statutorily precluded from obtaining subsequent PCRA review due to not being sentenced to incarceration or probation. 

This exception will provide many defendants with the opportunity to challenge unfair convictions. Previously, defendants convicted of most summaries, many misdemeanors, and even some felonies, would not have been able to ever claim ineffective assistance of counsel because the sentence, if any, would be finished by the time the defendant would have the opportunity to file a PCRA Petition. Now, a defendant who will not be able to file a PCRA Petition may raise those claims in post-sentence motions and request an evidentiary hearing if there is a need to make a record. This decision ensures some degree of basic fairness and that a Court cannot sentence a defendant to no further penalty on a felony charge just to prevent a defendant from appealing based on ineffective assistance of counsel. 

Facing Criminal Charges or Considering an Appeal? We Can Help. 

Philadelphia Criminal Defense Lawyers

If you are facing criminal charges or deciding whether to appeal a conviction or sentencing, we can help. We have successfully defended thousands of clients in jurisdictions throughout Pennsylvania and New Jersey. We can also provide advice on the merits of pursuing an appeal or post-conviction relief act petition. We offer a free 15-minute criminal defense strategy session to each potential client. Call 267-225-2545 to speak with an experienced and understanding criminal defense attorney today. 

The Use of Fingerprints in Pennsylvania Criminal Cases

Fingerprinting in Pennsylvania Criminal Cases

Philadelphia Criminal Lawyer Zak Goldstein

Law enforcement officers frequently attempt to solve criminal cases through the use of fingerprints in Pennsylvania. This guide explains when the police may take your fingerprints, whether you may ever have those fingerprints destroyed, and some of the problems inherent in fingerprint examination. It also discusses the recent case of Commonwealth v. Presher, in which the Superior Court held that the a court may not order a defendant to submit to fingerprinting after the defendant has been found not guilty at trial. The effect of the court's holding will be limited due to the relatively rare circumstances present in this case, but the Superior Court issued strong language in rejecting the idea that the trial court could continue to exercise jurisdiction over a defendant who has been acquitted. 

Will the police take my fingerprints if I get arrested in Pennsylvania?

The answer to this question is yes, with some exceptions. In Pennsylvania, the law requires a defendant who has been charged with a felony, misdemeanor, or certain summaries to undergo fingerprinting after being arrested. In most cases, you will be fingerprinted when you are taken to the police district upon arrest. In some cases, if you are not arrested and the case was initiated by a summons, the summons will command you to go to the police station to be fingerprinted. The summons will typically instruct you to have this done prior to the preliminary hearing; if not, then the magisterial district justice will usually order that it be done. Additionally, if someone filed a private criminal complaint against you, then you will be fingerprinted if you are convicted. Accordingly, the only time you do not have to worry about being fingerprinted is if you are arrested for a summary offense that does not have a recidivist misdemeanor clause in its statute and the case is not proceeded by a summons.  

What happens if I refuse to be fingerprinted? 

The failure to comply with this order could eventually result in the revocation of bail if a case is pending or a finding of contempt of court. In some cases, however, the police and prosecutors do not realize that the defendant has not been fingerprinted, and the case may fall through the cracks without the defendant getting fingerprinted. 

Can the police make me give my fingerprints if I have not been charged with a crime? 

There are ways for the police to get your fingerprints if they are still investigating the case and have not charged you with a crime. For example, the police could ask you for your consent. If you give consent, then the police can take your fingerprints without a warrant or an arrest. If you refuse to consent to fingerprinting and the police have not arrested you, then they could ask a judge to sign a search warrant ordering you to provide your fingerprints. In that case, the police would be able to get your fingerprints prior to making an arrest. If you refuse to provide them, then you could be held in contempt of court and arrested. Additionally, the police could use trickery to obtain your fingerprints. For example, if they remove an item from the trash that has your fingerprints on them, they would most likely be allowed to use any viable prints lifted from the item.  

Can I have my fingerprints destroyed if I win my case?

Unless you were fingerprinted as a juvenile, the answer to this question is no. Once you are arrested as an adult, the government will have your fingerprints for the rest of your life. This is true even if you win your case and obtain an expungement of your criminal record because the District Attorney is permitted to retain their case file in order to determine eligibility for diversionary programs in the future. Typically, once you are arrested, your fingerprints will be entered into the Integrated Automated Fingerprint Identification System, which is commonly referred to as AFIS. This is a system that holds thousands of fingerprints. As discussed later, this can be a real problem because fingerprint "science" is not perfect, and you could be arrested if a lab technician later subjectively determines that your fingerprints "matched" prints that were found at a crime scene.

How do the police analyze fingerprints?

Police frequently attempt to lift fingerprints in order to solve robbery, burglary, and other theft cases where there are no eyewitnesses. For example, let’s say that someone commits a burglary at a residence and leaves fingerprints on a glass door. A crime scene investigator will arrive and and “lift” the print from the door. This requires a lot of care because a print can easily be smudged or altered. Assuming the technician does not botch the lifting of the print, the police will then run the print through the AFIS system. At this point, the system will generate 20 fingerprints for a lab technician. It is important to note that lab technicians are not required to have a degree in forensic science. In fact, in Philadelphia, a technician does not even need to be a college graduate and need only have a high school diploma. Further, in Philadelphia, the unit that is responsible for analyzing fingerprints is not accredited.

After AFIS generates the potential matches, the technician will review the prints and see if he or she can find a “match.” In determining whether there is a match, the technician will look for several features of the print. Typically, there are about 150 characteristics of a fingerprint. However, there only needs to be between 10-12 similarities for a technician to say that someone’s prints match those taken from a crime scene. Further, in Philadelphia, these technicians will not analyze all 20 prints. Instead, they will just analyze a print until they find one that they believe is a match. After the technician believes they found a “match,” they will then dispose of the remaining prints.

In determining whether there is a match or not, the technician does not use a computer system to review the matches. Rather, the technician will use a magnifying glass or some other object to enhance his or her vision and make a determination using their eyes to see if there is a match. This may go without saying, but this is clearly subjective and not actual science. The use of the term "match" implies that computers are processing this data, but in reality, fingerprint "matches" are based solely on the subjective personal opinion of the examiner. 

Is fingerprint science perfect? 

Of course not. As discussed above, fingerprint examination is not really science. It is no surprise that mistakes happen, and these mistakes are not limited to the Philadelphia Police. In 2004, terrorists attacked trains in Madrid, Spain. This was a horrific event where 192 people were killed and thousands were injured. The United States government assisted the Spanish government in trying to track down who was responsible for these attacks. Specifically, the FBI was sent to help solve this case.  

During the investigation, the authorities located a fingerprint on a bag that contained one of the detonating devices and were able to lift the print. Based on their review of the print, the FBI concluded that it belonged to a Brandon Mayfield, a U.S. citizen who had been an FBI person of interest for quite some time. Consequently, Mr. Mayfield’s home was wiretapped and he eventually was arrested. However, Brandon Mayfield was not responsible for these acts. Investigators later concluded that that particular fingerprint belonged to a Ouhnane Daoud, an Algerian national. Eventually, the charges were dropped, and the United States government settled a lawsuit with Mr. Mayfield. Mr. Mayfield’s case shows how unreliable fingerprint analysis can be.         

Commonwealth v. Presher

In Mr. Presher’s case, the Superior Court did not get into the factual history of the case in great detail. However, what we do know is that he was charged with theft and receipt of stolen property. Additionally, Mr. Presher’s case was proceeded by a summons which means that he was subjected to the pre-conviction fingerprinting requirements. However, for some unknown reason, Mr. Presher was never fingerprinted.

Mr. Presher then proceeded to have his case tried by a jury where he was acquitted of all charges. Despite this, the Commonwealth still asked that Mr. Presher be fingerprinted. The trial court granted the Commonwealth’s motion. Mr. Presher then filed a motion for reconsideration, however that was denied. He then filed a timely appeal.

Can a court make me give my fingerprints if I was acquitted?

If you have already been fingerprinted, then the answer is unfortunately that your fingerprints will remain in the system. If you managed to make it to trial, however, then you cannot be ordered to submit to fingerprinting after an acquittal. The Superior Court recently addressed this issue in the case of Commonwealth v. Presher. In Presher, the court held that a defendant who has been acquitted cannot be required to submit to fingerprinting.    

In making its decision, the Superior Court focused largely on the language used in 18 Pa.C.S. § 9112 (b)(2). The statute reads:  

Where defendants named in police complaints are proceeded against by summons, or for offenses under section 3929 (relating to retail theft), the court of proper jurisdiction shall order the defendant to submit within five days of such order for fingerprinting by the municipal police of the jurisdiction in which the offense allegedly was committed or, in the absence of a police department, the State Police. Fingerprints so obtained shall, within 48 hours, be forwarded to the central repository in a manner and in such form as may be provided by the central repository.

The Superior Court's rationale stemmed from the fact that § 9112(b)(2) uses the word “defendant.” It does not use the word person, which is different from § 9101(a) which uses the word “person.” This is significant because for Mr. Presher, his case was initiated by a summons and thus fell under § 9101(b)(2).

After Mr. Presher was acquitted of his charges, the Superior Court held that he was no longer a “defendant.” Therefore, he was not subject to the fingerprinting requirements of § 9101(b)(2), and thus the trial court was incorrect in ordering him to provide his fingerprints to the Commonwealth. The Superior Court reasoned that if they ordered Mr. Presher to provide his fingerprints this would amount to a post-acquittal punishment.   

Experienced and Understanding Philadelphia Criminal Defense Attorneys

If you are charged with a crime and the police are using fingerprint evidence against you, you need a skilled attorney with the knowledge and expertise to fight your case. Our award-winning Philadelphia criminal defense lawyers have successfully litigated countless cases where the Commonwealth used fingerprint evidence against our clients. We offer a 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today. 

PA Superior Court Reverses Robbery Conviction Because Prosecutors Struck Jurors Due to Race

Prosecutors May Not Discriminate Against Jurors Based On Race

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esq.

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Edwards. The Court reversed Edwards’ multiple convictions for gunpoint robbery after finding that the prosecution improperly struck jurors because they were African American. The Court concluded that the defendant successfully raised a challenge to the prosecution’s decisions during jury selection under the United States Supreme Court’s decision in Batson v. Kentucky.

Edwards was charged with multiple gunpoint robberies and related charges for allegedly robbing five men and shooting one of them. His co-defendant took a plea deal and testified against him in exchange for a reduced sentence, and the jury found Edwards guilty of all of the charges. After he was convicted, he was sentenced to 22 to 44 years of incarceration.

Edwards appealed, raising challenges to the sufficiency of the evidence as well as what is called a Batson challenge. The Superior Court rejected the challenges to the sufficiency of the evidence, but it found that the trial court should have granted the defendant’s motion to seat excluded African American jurors pursuant to Batson. A Batson challenge involves challenging the prosecution’s use of race as a factor in picking and striking jurors during jury selection. In Batson, the United States Supreme Court held that the prosecution violates the Equal Protection Clause of the United States Constitution by striking potential jurors solely on the basis of race.

Batson Challenges

In Pennsylvania, the analysis under Batson involves three stages. First, the defendant must make a prima facie showing that the circumstances give rise to an inference that the prosecutor struck one or more prospective jurors due to their race. Second, when the defense can make such a showing, the burden shifts to the prosecutor to provide race-neutral reasons for why the prosecutor struck the jurors at issue. Third, the trial court must then make the ultimate determination as to whether the defense has proven purposeful discrimination against jurors based on race.

Here, the defendant was able to show that the prosecution had discriminated against the jurors based on race for a number of reasons. First, the trial court used an incredibly suspect method of jury selection in which the list of jurors from which the parties made their peremptory challenges (strikes) included the race and gender of every juror. Second, in making its eight strikes, the prosecutor struck seven African Americans and an eigth non-caucasian potential juror, meaning that every single prosecution strike was of a minority. Third, the Superior Court found that the prosecution’s reasons for striking the jurors were not plausible. For example, the prosecutor stated that the Commonwealth struck jurors because they were joking with each other or because of they way they were sitting. Although those reasons would be facially race-neutral for purposes of the second part of the test, the Superior Court found that the reasons simply were not persuasive given the improper juror list and statistics involved.

Ultimately, during jury selection, the parties considered 30 potential jurors. Of those 30, 13 were African-American. The Commonwealth used seven of its eight strikes on African-Americans, and it used the eighth strike on a member of a different minority group. The Commonwealth did not strike a single white juror. Although statistics alone cannot prove a discriminatory intent on the part of the prosecutor, the Court was appalled by the fact that the prosecution used all eight strikes on minorities and then attempted to explain its decision to do so by stating that it did not like the way one of the potential African American jurors was leaning while sitting. This was particularly true in light of the fact that the trial court had actually instructed the jurors at the beginning of jury selection to sit back and relax because the process would take some time. Thus, the Court found that the Commonwealth’s reason was implausible. The Court reversed the defendant’s conviction and remanded the case for a new trial.

Pennsylvania and United States law prohibit the Government from excluding jurors based on race. In most cases, this rule is difficult to enforce because prosecutors will be able to protect themselves by striking some white jurors. It is also typically easy to come up with reasons for striking the jurors which are unrelated to race. However, where the Commonwealth seems to be engaging in a pattern of racial discrimination during jury selection, it is important to raise a Batson challenge in order to either have the jurors seated or preserve the issue for appeal. It is also important to remember that Pennsylvania law requires the party making a Batson challenge to include on the record the race of the stricken prospective jurors, the race of prospective jurors who were acceptable to the striking party but stricken by the party making the challenge, and the racial composition of the jury seated for trial.

Facing Criminal Charges? We Can Help 

Philadelphia Criminal Defense Lawyers

Our Philadelphia Criminal Defense Lawyers represent individuals and organizations who are charged with crimes or under investigation in all types of state and federal criminal matters at the trial level. If you are facing charges, call or text 267-225-2545 for a free criminal defense strategy session. Our attorneys are licensed in Pennsylvania and New Jersey and routinely appear in the Philadelphia courts as well as in the surrounding counties of Delaware, Bucks, Montgomery, and Chester. We handle preliminary hearings, grand jury investigations, pre-trial motions such as motions to suppress, motions to quash, motions to dismiss, and speedy trial motions, as well as bench and jury trials. We have had success both in obtaining dismissals before trial and acquittals at trial in front of judges and juries. If you are facing criminal charges, we can help. 

PA Superior Court: Guilty Plea Invalid Where Defendant Not Warned of Obligation to Pay Restitution

Commonwealth v. Rotola

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Rotola, holding that the trial court may not order restitution at sentencing in a plea bargained case unless the defendant agreed to restitution as part of the plea bargain.

Theft of Property Lost, Mislaid or Delivered by Mistake and Restitution

In Rotola, the defendant pleaded guilty to theft of property lost, mislaid or delivered by mistake as a misdemeanor of the first degree. The court ordered Rotola to serve 9-24 months, less one day, of incarceration and pay restitution in the amount of $25,000, jointly and severally with his co-defendant. Initially, the court found Rotola solely responsible for the theft of $25,000 in jewelry. However, after Rotola filed a post-sentence motion to reconsider, the trial court made Rotola jointly and severally liable with his co-defendant.

Given the extremely high restitution figure, Rotola appealed. On appeal, Rotola argued that the restitution amount was both not supported by the record and not the direct result of his conduct. Rotola pleaded guilty to theft as a misdemeanor of the first degree, and theft as an M1 indicates that the property stolen was worth less than $2,000. Thus, Rotola argued that it was excessive to impose a restitution amount so far exceeding $2,000 when he pleaded guilty to an offense which suggested the restitution should only be $2,000. He also argued that he was not as culpable as his co-defendant who had actually stolen the property as his role in the crime was to sell only a portion of the stolen goods to a pawn shop.

The Pennsylvania Restitution Statute

The statute governing restitution in criminal cases makes restitution mandatory regardless of ability to pay. It provides:

§ 1106. Restitution for injuries to person or property

(a) GENERAL RULE.-- Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender shall be sentenced to make restitution in addition to the punishment prescribed therefor.

(c) MANDATORY RESTITUTION.--

(1) The court shall order full restitution: (i) Regardless of the current financial resources of the defendant, so as to provide the victim with the fullest compensation for the loss.

(2) At the time of sentencing the court shall specify the amount and method of restitution. In determining the amount and method of restitution, the court:

(i) Shall consider the extent of injury suffered by the victim, the victim’s request for restitution . . . and such other matters as it deems appropriate.

(ii) May order restitution in a lump sum, by monthly installments or according to such other schedule as it deems just.

(4) (i) It shall be the responsibility of the district attorneys of the respective counties to make a recommendation to the court at or prior to the time of sentencing as to the amount of restitution to be ordered. This recommendation shall be based upon information solicited by the district attorney and received from the victim.

(ii) Where the district attorney has solicited information from the victims as provided in subparagraph (i) and has received no response, the district attorney shall, based on other available information, make a recommendation to the court for restitution.

Restitution in Theft Cases

After Rotola appealed, the Superior Court rejected his second argument, finding that because the defendants acted together criminally to cause a single harm to the victim, both defendants were responsible for the full restitution despite Rotola being somewhat less involved.

The Court, however, agreed with the first argument. It found that there was no agreement as to restitution and no suggestion in the record that Rotola would be responsible for restitution. The plea paperwork did not suggest that he would be responsible for restitution, and the oral colloquy conducted by the sentencing judge did not inform Rotola that he would be responsible for restitution. Given the complete absence of any mention of restitution on the record, the Superior Court agreed with Rotola that the guilty plea to theft could not have been knowing, intentional, and voluntary. Therefore, the Court reversed the conviction and ordered that the plea be withdrawn.

Although the restitution statute makes restitution mandatory, a defendant must be advised of the possibility of having to pay restitution in order for a plea to be valid. The Court specifically required that the defendant be warned on the record of the possibility of having to pay restitution, and the Court also required that the sentencing court follow the procedures specified by the statute, meaning a court is required to hold a hearing and determine the amount of restitution at the time of sentencing. Because Rotola was never informed that he would have to pay restitution, his plea was withdrawn and the court remanded the case for trial.

Philadelphia Criminal Defense Lawyers

Philadelphia Criminal Defense Attorneys

If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended thousands of clients at the trial level on appeal. We offer a complimentary 15-minute criminal defense strategy session to anyone who is under investigation or facing criminal charges. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.