PA Superior Court: A Shed Counts as a Building under the Burglary Statute

Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Reed, holding that a detached shed counts as a “building for purposes” of Pennsylvania’s Burglary statute even where the complainant does not provide a detailed description of the structure at trial. 

In Reed, the complainant rented the upstairs apartment at a given address to the defendant and his girlfriend. The property consisted of a house divided into an upstairs apartment and a downstairs apartment, a basement, and two outdoor sheds situated on off-street parking next to the house. The former tenant of the upstairs apartment which the defendant eventually rented stored his property in the smaller of the two sheds even after moving out. The owner of the property and his brother stored some of their belongings in the larger shed. When new tenants would move in, the owner of the property would inform them not to use the sheds and that they should instead store their belongings in the basement as necessary. The downstairs tenant also testified that tenants were not supposed to use or go into either shed.

On February 8, the downstairs tenant saw the defendant and his female roommate messing around inside the larger shed at 2am. Likewise, a neighbor from across the street witnessed the defendant and a female in the shed at around the same time. The neighbor approached the defendant and told him that he was not supposed to be in the shed. The defendant and the female responded that they had permission to be in the shed from the former tenant. The neighbor responded that they did not have permission and that it was not the former tenant’s shed. The defendant and the female left, but a couple of hours later, the neighbor saw them in the shed again. 

Both the downstairs tenant and the neighbor told the owner of the property that people had been in the shed. Based on this information, the owner called the police and spoke with an officer. The owner told the officer that she believed that the property had been burglarized. The owner then texted a friend and asked a friend to go check on the shed. The friend did so and found that the handle and lock on the shed were broken and that there was a new, unfamiliar padlock on the right-hand side of the shed. They also reported that a truck tire and window previously inside the shed were now outside of the shed. 

On some later date, the police officer, owner of the property, and owner’s friend went and visited the shed together. They discovered that about 26 items which had previously been stored in the shed were missing. These items included clothing and power tools. The owner of the property located some of these items for sale on a Facebook page. The police contacted the owner of that page and learned that the operator of the page had purchased those items from the defendant’s girlfriend.

Armed with this information, police arrested the defendant and charged him with Burglary, Criminal Trespass, and conspiracy. The defendant proceeded by way of jury trial and was found guilty. The trial court sentenced him to ten days’ to twelve months’ incarceration followed by a year of probation. The defendant appealed. 

Is breaking into a shed a burglary in Pennsylvania? 

On appeal, the defendant challenged the burglary and criminal trespass convictions by arguing that the shed did not qualify as a “building” or “occupied structure” under the Burglary statute. The second-degree felony burglary statute provides:  a person commits burglary "if, with the intent to commit a crime therein, the person enters a building or occupied structure, or separately secured or occupied portion thereof that is not adapted for overnight accommodations in which at the time of the offense no person is present.

Likewise, a criminal trespass occurs “if, knowing that he is not licensed or privileged to do so, [the defendant] breaks into any building or occupied structure or separately secured or occupied portion thereof.” 

Neither statute defines burglary, and here, the Commonwealth conceded that the shed was not an occupied structure because it had not been adapted for overnight accommodations – meaning it was not set up so that someone could live in it. Therefore, the Superior Court turned to Black’s Law Dictionary for the definition of a building. The dictionary defines a building as “a structure with walls and a roof.” Here, the testimony provided that the shed was likely a structure with walls and a roof. Although no witness specifically testified that the shed had four walls and a roof, the fact that the complainant stored power tools and other belongings there and kept it padlocked suggested that it was likely fully enclosed. Therefore, the evidence supported the jury’s conclusion that the defendant had committed a burglary and a criminal trespass. Thus, in most cases, a shed will qualify as a building for purposes of the burglary statute even where the complainant does not thoroughly describe the dimensions of the shed. 

Can you be convicted of burglary if you are not actually seen breaking into a building?

The defendant appealed on other sufficiency grounds, as well, but the Superior Court affirmed the conviction. For example, the defendant also argued for the criminal trespass conviction that no one had seen him “break in” as required by the statute. Instead, he had only been observed inside of the shed, suggesting that he could have arrived after someone else had already broken into it. The Court rejected this argument, however, finding that it was reasonable to infer from the evidence that he was the person who had broken the lock and stolen the items from the shed. Therefore, he will not receive a new trial. 

Philadelphia Criminal Defense Lawyers Zak Goldstein

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.

PA Supreme Court: Defendant Has Right To Introduce Evidence That Someone Else Did It

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Gill, holding that the Superior Court erred when it reversed the trial court’s ruling that permitted the defendant to introduce evidence of other burglaries in an attempt to show that someone else had committed the burglary in this case. This is an important decision both because it re-affirms that a defendant has the right to try to prove that someone else could have committed the crime charged and because it limits the Superior Court’s ability to reverse an evidentiary decision of the trial court permitting a defendant to introduce that evidence.

The Facts of Gill

In 2013, a Pennsylvania State Police Trooper was assigned to investigate an alleged burglary that had recently occurred at a residence owned by the complainant in French Creek Township, Pennsylvania. The complainant reported to the trooper that someone had stolen $40,000 in $100 bills from a bag inside of a lockbox in his basement. He also stated that the money was still in the lockbox on July 26, 2013, when he placed his monthly deposit into the bag.

The complainant stated that he did not observe any signs of a forced entry into the home and that he suspected that the person who had stolen the money entered his home by way of the keypad on his garage door. According to the complainant, there were only two people who knew the code and where he kept his money: the defendant and his neighbor. He did not suspect the neighbor because he had known her for over 25 years and trusted her. He stated that he suspected the defendant because he had only known him for a few years and that the defendant was having financial problems, including a recent bankruptcy.

The trooper subsequently interviewed the defendant. The defendant confirmed that he knew about the complainant’s money, where the money was kept, and where the complainant stored the key to his lockbox. The trooper also learned that the defendant recently bought a truck and paid for the truck in $100 bills. The trooper then filed a criminal complainant charging the defendant with burglary, theft by unlawful taking, receiving stolen property and criminal trespass.

The defendant subsequently filed a document entitled “Motion for Release of Investigatory Files/Omnibus Pretrial Motion.” In the motion, the defendant averred that he became aware that the complainant accused another unknown person of burglarizing his home, on two separate occasions, and stealing money from a safe located in his home between May 1, 2016 and June 23, 2016. The trial court granted the defendant’s motion to allow him access the State Police’s investigatory file concerning the 2016 incident. Based on this review, the defendant subsequently filed a Motion in Limine asking the trial court to allow the admission of this evidence at trial to show that someone else could have committed the burglary.

According to the defendant’s motion, the allegations against him and the subsequent allegations made by the complainant were almost identical. Specifically, both allegations alleged that approximately $40,000 was stolen, the money was stolen from a lockbox, one of the incidents did not show signs of forced entry, and the perpetrator had knowledge about the safe/lockbox. The defendant argued that he should be allowed to introduce this evidence at his trial. Additionally, he filed another Motion in Limine to introduce the testimony of the complainant’s daughter. Per the defendant, she would testify that the complainant previously accused her of breaking into his home and stealing $30,000. Additionally, she would testify that the complainant previously accused two other individuals of breaking into his home and stealing tools. The defendant wanted to introduce this testimony to show that the complainant has a penchant for accusing people of burglary and that someone else may have committed this crime.

The trial court held a hearing on the motions. At the conclusion of the hearing, the court granted his motion in part and denied it in part. The court permitted the defendant from presenting evidence of the subsequent 2016 burglaries but denied his motion to allow the complainant’s daughter to testify. In the same order, the court directed the Commonwealth to provide all reports, statements, and investigatory files regarding the 2016 incident. The Commonwealth then filed an interlocutory appeal to the Superior Court.

In a published opinion, the Superior Court granted the Commonwealth’s appeal and issued an order barring the defendant from introducing the evidence of the other burglaries at trial. In its appeal, the Pennsylvania Superior Court held that the 2013 and 2016 burglaries were not “so similar, distinctive, or unusual as to suggest that they are the handiwork of one individual.” The Superior Court stated that “the fact the burglaries involved the same residence, and the victim reported to have similar amounts stolen in the 2013 and…2016[] burglaries” were insufficient factors to conclude that both burglaries were done by the same individual. The defendant then appealed to the Pennsylvania Supreme Court.   

Can I present evidence that someone else did the crime?

Maybe. Attorneys are always permitted to try to present evidence at trial, but the evidence must be admissible under the rules of evidence. The rules of evidence can be very restrictive, but usually these rules are to the defendant’s advantage. Why? Because it is the Commonwealth’s burden to provide enough evidence to convict a defendant beyond a reasonable doubt, so it is usually the Commonwealth that is presenting the majority of the evidence and struggling to get that evidence admitted. The defense often does not present any evidence at all.

One well-known example of a rule of evidence that often benefits the defense is the rule against hearsay. The rules of evidence prohibit the use of hearsay in a criminal trial, and this is usually to the defendant’s advantage because it forces the Commonwealth to bring the actual witnesses of an alleged crime to court rather than relying on a police officer who would merely testify to what these witnesses told him. However, as shown in Gill, the defense can also be hamstrung by the rules of evidence. In Gill, the defense attorney was prohibited by the Superior Court from calling the complainant’s daughter to testify because of an evidentiary ruling made by the trial court.  

Nonetheless, the defendant’s attorney was successful in convincing the trial court to permit him to introduce evidence from the other burglary. This allowed him to show not only that someone other than the defendant may have committed these crimes, but also that there are issues with the complainant’s credibility and memory (the complainant appeared to have quite the bad luck by getting burglarized and having $40,000 repeatedly stolen from him). More importantly, however, the defendant was now able to show that other people have burglarized his home using the keypad. Thus, because the complainant’s home continued to be burglarized in this highly specific way (when presumably the defendant could show that he did not commit these subsequent burglaries) then this would be evidence that the defendant did not commit the 2013 burglary.

It may go without saying, but the facts in Gill are unique. Nonetheless, there are other ways to introduce evidence that someone else committed a crime. For example, let’s assume that you are stopped in a car and the police then search the car and find drugs. Let’s also assume that you are not the only occupant of the vehicle and one of the people in the car has a prior conviction for possessing a controlled substance. If you are charged with possessing those drugs, you can file what is called a Thompson motion. This motion would allow you to bring the passenger’s prior convictions for possession and would give you additional support that those drugs did not belong to you. If you are arrested and charged with any type of crime, you need an experienced attorney who knows the rules of evidence so that you can be properly defend your case.

Ultimately, all evidence must be relevant in order to be admissible. If evidence is not relevant, then a trial court may properly exclude the admission of the evidence. In this case, the issue was simply whether the defendant’s proffered evidence of the subsequent burglaries would be relevant to show whether or not he had committed the crime. In making that determination, the court had to look at how similar the burglaries were in order to determine whether they would be exculpatory for the defendant. The trial court concluded that they were sufficiently similar to suggest that the defendant may not have committed the first burglary. The Superior Court, however, disagreed.

The PA Supreme Court’s Decision

The Pennsylvania Supreme Court found that the Superior Court erred when it overturned the trial court’s decision to allow the defendant to introduce evidence from the subsequent burglary. The Supreme Court found that the Superior Court improperly conducted its own review of whether it thought that the evidence would be relevant instead of applying the correct “abuse of discretion” standard and evaluating whether the trial judge’s reasoning was properly based in law. What this standard means is that the Superior Court should not make its own ruling. Instead, if the trial court’s decision is arguably correct, then the Court should affirm the decision even if different judges could reasonably degree. The Supreme Court noted that it is “improper for an appellate court to step into the shoes of the trial judge and review the evidence de novo.” The Supreme Court also criticized the Superior Court for its evaluation of the evidence. The Supreme Court found that the Superior Court substituted its judgment for that of the trial court which is not permissible. Finally, the Supreme Court found that the trial court did not abuse its discretion when it granted the defendant’s motion and thus the trial court’s ruling will stand.

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 and successful outcomes in cases involving charges such as Possession with the Intent to Deliver, Violations of the Uniform Firearms Act, Aggravated Assault, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Not Guilty – Attorney Goldstein Obtains Full Acquittal in Car Theft Case

Philadelphia Criminal Defense Lawyer Zak Goldstein

Recently, in the case of Commonwealth v. F.S., Criminal Defense Attorney Zak T. Goldstein, Esquire, obtained a full acquittal for a client charged with stealing a car. Specifically, F.S. was charged with Theft by Unlawful Taking (F3), Receiving Stolen Property (F3), Conspiracy (F3), and Unauthorized Use of an Automobile (M2). The Commonwealth alleged that shortly before New Year’s Eve, the complainant had met a woman at a restaurant in Philadelphia. They left the restaurant together, and on the way to their next destination, they stopped for gas. When the complainant went inside to pay for the gas, the woman drove off in his car. The complainant promptly reported the vehicle stolen. 

Approximately two or three days later, Philadelphia Police Officers found the car in a South Philadelphia neighborhood. The car was pulled over on the side of the road. F.S. and the woman who had taken the car were both in the vehicle. F.S. was in the driver’s seat, and the woman who had stolen the car from the complainant was in the backseat. Police approached the vehicle and asked for an explanation from F.S. and the woman. The woman did not make any statements, but F.S. told the police that he was friends with the woman and that she had asked him to drive. He denied having any knowledge that the car was stolen, and there was also nothing about the car that should have given off any warning signs. It was not a luxury vehicle, the ignition and locks were intact, and there was no other damage which would suggest to a reasonable person that it was stolen. Nonetheless, police arrested F.S. and charged him with participating in the auto theft.  

The Philadelphia Municipal Court held a preliminary hearing on the charges a few weeks later. At the preliminary hearing, Attorney Goldstein cross-examined the officer on whether there was anything about the vehicle that should have warned F.S. that he was driving a stolen car. By showing that there was nothing obviously wrong with the car and that F.S. did not run away, act nervous, or say anything incriminating, Attorney Goldstein was able to have the charges related to actually stealing the vehicle (Theft by Unlawful Taking and Receiving Stolen Property) dismissed at the preliminary hearing. The court then scheduled the case for a trial in the Municipal Court.

 At the Municipal Court, Attorney Goldstein made similar arguments in defending against the Unauthorized Use of an Automobile (M2) and Conspiracy charges. F.S. was not involved in the actual theft of the vehicle, there was nothing which should have suggested to him that there was a problem with it, and the police did not know anything about the relationship between F.S. and the woman who had stolen the car or whether she had told him that it was stolen. Attorney Goldstein also introduced character evidence on behalf of F.S. – meaning that F.S. has a reputation in the community for being a peaceful, law-abiding citizen, and that reputation alone should be enough to find F.S. not guilty of the charges. 

Ultimately, the Municipal Court judge agreed and found F.S. Not Guilty of both the Conspiracy and Unauthorized Use of an Automobile charges. In general, it is often difficult to defend against Unauthorized Use charges because the Unauthorized Use of an Automobile statute appears to contain no mens rea element. Receiving Stolen Property requires the prosecution to prove that the defendant knew or suspected that the car was stolen, but the Unauthorized Use of an Automobile statute suggests that it is illegally simply to operate someone else’s car without permission even if you do not know that you do not have permission. However, the Pennsylvania Supreme Court has concluded in an appellate opinion that even though the statute appears to impose strict liability, the Commonwealth must actually show that the defendant was reckless in choosing to operate the car – meaning the defendant actually knew of a substantial risk that he or she did not have permission to operate the car. Armed with this key case law and the character evidence, Attorney Goldstein was able to obtain a full acquittal on all charges.

This case also illustrates the importance of the Matthews factors in defending against theft charges and receiving stolen property charges. Although the police often arrest a suspect whenever he or she is found in possession of stolen property, the mere possession of stolen property is not a crime. Instead, the prosecution must be able to show that the defendant knew or suspected that the property was stolen. In a case called Commonwealth v. Matthews, the appellate courts provided some of the factors that a judge or jury should look at in deciding whether a defendant likely had knowledge that the property was stolen. These factors include: 1) the condition of the property – is there something about it that suggests that it was stolen, 2) the amount of time which has passed since the property was stolen, 3) the defendant’s behavior when confronted – did the defendant act nervous or attempt to flee, or did the defendant provide a reasonable explanation for the possession of the stolen property. This case illustrates that if the prosecution cannot prove that the defendant knew the property was stolen, then the prosecution cannot obtain a conviction.

Other Courtroom Wins

In addition to the full acquittal in Commonwealth v. F.S., our criminal defense attorneys were also able to obtain a number of important victories in the courtroom. First, we have recently successfully litigated motions for the early termination of probation in the Philadelphia Court of Common Pleas. In both cases, the clients were on probation for serious charges such as Robbery and illegal gun possession, and they had been sentenced years ago to significant periods of incarceration followed by lengthy probationary sentences. However, they had not been in trouble in a number of years. Our attorneys were able to file motions to terminate the probation early and convince their back judges that they were no longer in need of supervision by the Philadelphia Probation Department.

Second, we were also able to negotiate the decertification of adult criminal charges for a juvenile client. In this case, the juvenile client was charged in two separate cases with gunpoint robbery and strong-arm robbery as an adult even though he was under the age of 18 at the time of the offenses. He was also on probation with the juvenile court system. By obtaining information about the juvenile client’s background and presenting it to the District Attorney’s office, we were able to convince prosecutors to decertify the adult criminal charges to juvenile court, where the client was sentenced to a residential juvenile treatment facility instead of state prison.

Finally, our attorneys have also obtained entry into the ARD program for multiple clients charged with DUI, including clients who had prior records of misdemeanor convictions.

FACING CRIMINAL CHARGES? WE CAN HELP.

Goldstein Mehta LLC Criminal Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, and Attempted 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. 

PA Superior Court Affirms Denial of Motion to Suppress Identification

Criminal Defense Attorney Zak Goldstein

The Superior Court has decided the case of Commonwealth v. Milburn, finding that the trial court properly denied the defendant’s Motion to Suppress identification. In Milburn, the court ultimately concluded that the police had reasonable suspicion to stop the defendant, thereby defeating his Fourth Amendment suppression claim. They also found that police did not conduct an improperly suggestive “show up” procedure, and so the trial court properly rejected his due process claim.  

The Facts of Commonwealth v. Milburn

On May 4, 2015, the complainant was robbed at gunpoint on North Broad Street in Philadelphia. The robber took the complainant’s iPhone and a backpack containing clothing and medication. This incident took place under a streetlight that was approximately five feet away from the complainant, and he alleged that he was able to see the assailant clearly. After the incident, the assailant instructed the complainant to walk away, which he did. However, he did see the assailant leave the scene in a vehicle with another individual.

The complainant immediately called 9-1-1 and gave the dispatcher a description of his assailant as African American, with a muscular build, medium complexion, and facial hair, and the complainant noted that the robber was wearing black jeans or sweat pants and a gray hoodie sweatshirt. Police arrived on scene and spoke with the complainant. The officers then began to survey the neighborhood while accompanied by the complainant. They utilized the complainant’s “Find My iPhone” application and attempted to locate his phone. However, they were not immediately successful.

A short time later, the officers tried using the “Find My iPhone” application again. This time, they received a notification that the complainant’s phone was in the area of 5th and Erie Avenue in Philadelphia. The officers proceeded to that area and found an A-Plus Mini market. The officers saw a van driving northbound through the gas station parking lot, but there were not any individuals on foot in that area. The van proceeded to exit the lot, but the officers felt that it was driving erratically. The officers then activated their lights. When the van stopped, the officers exited their vehicles and approached with their guns drawn.

As the officers approached the vehicle, they ordered the driver and front seat passenger, the defendant, to place their hands on the steering wheel and dashboard. The driver complied, but the defendant did not. One of the officers claimed that he saw the defendant place a small semiautomatic handgun under his seat. The officers retrieved the gun and placed the defendant in handcuffs. Inside the vehicle, the officer saw a backpack, medication, clothing, and three additional occupants.

As the officers walked the defendant towards the back of the van, the complainant began jumping in his seat in the police car, pointing at the defendant, and nodding his head to indicate that he recognized the defendant as the perpetrator. Police arrested the defendant, conducted a search incident to arrest, and found the complainant’s phone in the defendant’s pocket. The defendant claimed that he had just purchased the phone for ten dollars. The complainant also identified one of the backseat passengers as the second robber. The police obtained a search warrant for the van, and in the van, they found the complainant’s work uniform and name tag. Prosecutors charged the defendant with Robbery, various gun charges, Possession of an Instrument of Crime (“PIC”), Conspiracy, and related charges.

The Motion to Suppress  

The defendant filed a motion to suppress the physical evidence as well as the complainant’s post-incident identification. The trial court denied both the motion to suppress the physical evidence and the complainant’s identification. The defendant elected to proceed by way of jury trial,  and the jury found him guilty of Robbery, Firearms Not to be Carried Without a License, Carrying a Firearm in Public in Philadelphia, and PIC. The court sentenced him to 7 ½ to 20 years’ incarceration. He appealed to the Superior Court.  

What is a Motion to Suppress an Identification?

Although not as common as motions to suppress physical evidence or statements, a motion to suppress a post-incident identification may be an important tactic in the defense of a criminal case, particularly cases involving Robbery and Burglary charges. However, over the years, Pennsylvania appellate courts have made these motions difficult to win. In general, there are two types of motion to suppress identification. First, the defense may move to exclude a post-incident identification if the circumstances of the identification are such that the identification is so unreliable that the witness should not be allowed to testify to it. These types of motions typically involve unduly suggestive police procedures and complainants who did not have a great opportunity to observe the perpetrator of the crime. Second, the defense may also move to exclude an identification where the police illegally stopped or arrested the defendant and the identification procedure only took place because the defendant was unlawfully in custody. In this situation, the identification would violate the defendant’s Fourth Amendment rights as it would be the fruit of the poisonous tree of the unlawful stop. The court would then exclude the out-of-court identification and conduct a separate analysis of whether there is an independent basis for the witness to make an in-court identification of the defendant.  

Generally, an unlawfully obtained pretrial identification will only be excluded from trial if it was obtained by a procedure so unnecessarily suggestive and conducive to irreparable mistaken identification or if it was tainted by illegal police conduct as to deny the accused due process of law. If a defendant challenges the identification by filing a motion to suppress, the Commonwealth must prove that the identification procedure did not violate the accused’s right to due process or the right to counsel.

In determining whether to admit contested identification evidence when the issue is not whether the Fourth Amendment was violated, the trial court must consider: 1) the opportunity of the witness to view the perpetrator at the time of the crime; 2) the witness’ degree of attention; 3) the accuracy of his prior description of the perpetrator at the confrontation; 4) the level of certainty demonstrated at the confrontation; and 5) the time between the crime and confrontation. Suggestiveness in the identification process is a factor to be considered, but it is not dispositive. In other words, courts often will not prohibit a post-incident identification merely because it was suggestive. As noted in Milburn, the most important factor in addressing the reliability of an identification is the witness’s opportunity to observe the perpetrator at the time of the crime.

To give an extreme example of an impermissible post-incident identification, let’s assume that a defendant is accused of punching a complainant in the back of the head and stealing her purse. This is a robbery. The incident happens in a matter of seconds and the complainant was only able to see the back of her assailant and determine that he was Caucasian, wearing a white shirt and blue jeans. The police then, two hours later, bring two people, but only one is in handcuffs. One is a Caucasian wearing a white shirt and blue jeans, while the other is also a Caucasian man, and is wearing a white shirt, but instead of blue jeans is wearing gym shorts. The one wearing blue jeans is in handcuffs. Neither of these individuals have the complainant’s purse on them. The officer then proceeds to tell the complainant that one of these two is the perpetrator. Consequently, the complainant proceeds to pick the one wearing blue jeans and in handcuffs.  

In this hypothetical, the defendant would have a very good chance of suppressing the post-incident identification. Why? First, the defendant has a strong argument that there was no probable cause or reasonable suspicion to stop him. A Caucasian man wearing a white t-shirt and blue jeans is not very descriptive and arguably lots of people who would match that description. As such, the defendant in this hypothetical would have a good chance of suppressing the identification on these grounds alone.

However, this is not his only ground to exclude the identification. The defendant could also argue that it should be suppressed because it was suggestive and the complainant had a limited opportunity to observe the assailant. The whole incident only lasted a matter of seconds. Additionally, the hypothetical complainant was not able to see her assailant’s face and was able to give, at best, a very vague description. Finally, the tactics used by the police were highly suggestive. The officer only brought two people to the identification, and only one fit the general description of the assailant. Further, only one of them was in handcuffs. Additionally, the officer told the complainant that one of these people was the one who robbed her and thus suggested that it was the one wearing handcuffs. Thus, this defendant would have strong grounds for suppressing the identification both on Fourth Amendment and Due Process grounds.

Most cases, however, are not this egregious. And over the years the Pennsylvania Superior Court has rarely ruled in favor of the defense. The Superior Court has given great deference to the witness’s supposed opportunity to observe, while ignoring very relevant facts that can skew and taint that person’s memory. For example, if a suspect is in handcuffs during the identification, that does not make it per se impermissibly suggestive even though a reasonable person may believe that because the suspect is in handcuffs, that must be the person who committed the crime.

The Court’s Analysis in Milburn

In Milburn, the Superior Court held that the post-incident identification was not unduly suggestive. The court focused on the complainant’s ability to observe the defendant during the incident. Specifically, the court found that the complainant had ample opportunity to view the defendant’s face during the commission of the crime. The court also focused on the close proximity between the defendant and the complainant, the time between the incident and when Appellant was arrested (three minutes), and how the complainant reacted when he first saw Appellant. The court gave little significance to the fact that Appellant was the only person handcuffed during the identification. Thus, the court found that the identification was not unduly suggestive. Likewise, the Court found that the police had reasonable suspicion to stop the van. The police received information from Find my iPhone, which they had successfully used before on numerous occasions, traveled to the area, which was a high crime area, and saw the van driving erratically as if the driver was not focused on the road. Given the close proximity to the scene of the crime, this gave the police reasonable suspicion to stop the van, and once they stopped the van, they had probable cause to arrest the defendant because they saw the gun in plain view. Therefore, the court also denied the motion to suppress on Fourth Amendment grounds, as well.    

Milburn is an illustration of the type of case in which the defendant is unlikely to win a motion to suppress identification. However, it is likely that the law in this area may shift back at least somewhat in the favor of the defense given the rise in police body cameras. Prior to the advent of body worn cameras, the trial court could simply take a witness’s word for it that the witness had a great view of the perpetrator and was certain that he or she had picked out the right person. As the witness tells the story and testifies numerous times ranging from the statements to police to the preliminary hearing to the motions hearing, the witness becomes more and more certain that he or she has in fact picked out the right person. The body cameras, however, often show that at the time of the incident, the witness was not so sure. For example, the witness may not have been able to give a detailed or accurate description to police. Or the camera could show that the police were not particularly neutral in asking the witness to make an identification. In these cases, appellate courts may begin to show less deference to a witness’s claim of certainty when the witness is on video stating something different. Therefore, this is an area of law that is extremely likely to be affected as police increasingly wear body cameras.

Facing criminal charges? We can help.

Goldstein Mehta LLC Philadelphia Criminal Defense Lawyers

If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense attorneys have successfully defended thousands of clients. We have litigated all types of pre-trial motions to suppress and litigated cases involving charges such as Robbery, Burglary, Aggravated Assault and Attempted murder to verdict before judges and juries throughout Pennsylvania and New Jersey. We offer a free 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to speak with a defense attorney today.