NOT GUILTY: Attorney Goldstein Obtains Full Acquittal in Jury Trial for Client Charged with “Second Strike” Gunpoint Robbery

Commonwealth v. R.R.

Criminal Defense Attorney Zak Goldstein

The Philadelphia criminal defense lawyers of Goldstein Mehta LLC continue to obtain outstanding results in the courtroom. Recently, a Philadelphia jury acquitted Attorney Goldstein’s client of all charges in a gunpoint Robbery case following a two-day trial. 

The Evidence

Prosecutors charged R.R. with Conspiracy, Robbery, Theft, Receiving Stolen Property, and various Violations of the Uniform Firearms Act. Prosecutors alleged that R.R. and another gentleman followed the complainants home from a Burger King at around 2 in the morning and blocked the complainants from parking. The complainants claimed that the robbers eventually let them park, and they then got out of the car. The robbers got out also, and one of the robbers pulled a gun and pointed it at the complainants. The driver of the SUV, who was alleged to be R.R., then went through the male complainant’s pocket and the car. The person stole $700, a cell phone, and some of his paperwork. The robbers then got back into their SUV and drove off.

Police took statements from the complainants, and the complainants claimed that they remembered the numbers on the license plate of the SUV in which the robbers fled the scene. The complainants gave those numbers to the police along with the make and model of the SUV, and police then ran the plate numbers through the computer. They determined that R.R. had been stopped in a similar SUV with the same four numbers on the plate approximately two hours before the Robbery. Police detectives put R.R. in a photo array and showed that photo array to the complainants a few days later. The female complainant identified R.R. in the photo array as the driver of the SUV, but the male complainant could not identify anyone. Based on the identification of the one complainant, detectives arrested R.R. and charged him with gunpoint Robbery as a felony of the first degree. 

The Defense

R.R. quickly retained Attorney Goldstein to defend him. Mr. Goldstein moved for a pre-trial lineup at the preliminary hearing, and the Philadelphia Municipal Court judge granted the motion for the lineup. Both complainants were required to appear for the lineup. Again, the female complainant identified R.R. at the lineup as the driver, and the male complainant was not able to make an identification. However, when the preliminary hearing occurred, the female complainant admitted that she had been drinking heavily prior to the robbery. The male complainant was also again unable to identify R.R. as having anything to do with the Robbery. Nonetheless, the Municipal Court judge found that the female complainant’s shaky identification was sufficient to force R.R. to stand trial. 

R.R. decided to have a jury trial, and Attorney Goldstein was successfully able to use cross examination to show that the complainants had simply picked out the wrong guy. First, Attorney Goldstein highlighted the fact that the female complainant was initially only 90% sure that the defendant was the right person, she had been drinking heavily all night, and she had not provided the license plate number to the police officer who first responded to the scene. Attorney Goldstein also highlighted the significant discrepancies in the description she gave of the driver of the vehicle and what R.R. looked like at the time. 

Second, Attorney Goldstein cross examined the male complainant on the fact that he had never previously been able to identify R.R. as being involved in the Robbery. For the first time ever, however, the male complainant claimed that R.R. was the driver of the SUV despite never identifying him at the preliminary hearing, photo array, or pre-trial lineup. Attorney Goldstein was able to impeach him with his prior statements to show that he did not really know what the person who robbed him looked like.

Finally, Attorney Goldstein highlighted the poor job that the detective had done in preparing the photo array in that every other photo in the photo array was of a person who weighed significantly more or less than the defendant. Attorney Goldstein closed on a misidentification theory; the complainants believed they had picked the right guy, but they had made a mistake, and R.R. looked totally different from the person that they described to the police on the night of the Robbery. The fact that R.R. was stopped in a similar vehicle a few hours before simply did not prove that he was the robber. 

After hearing all of the evidence, the jury deliberated for approximately two hours before acquitting R.R. of all charges. Although the complainants claimed that they were 100% sure that R.R. was the driver of the vehicle and that they would never forget his face, R.R. was found Not Guilty of all charges and quickly released from custody. Due to a prior record, R.R. would have been facing 10-20 years in jail or more if he had been convicted in this case. 

Facing Criminal Charges? We Can Help. 

Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

If you are under investigation or facing criminal charges, we can help. We are experienced and understanding Philadelphia criminal defense attorneys with proven track records of successfully defending clients in and out of the courtroom. Our defense lawyers are not afraid to take a case to trial in front of a judge or jury, and we have successfully helped thousands of people navigate the pitfalls of the criminal justice system. We offer a free 15-minute criminal defense strategy session. Call 267-225-2545 to speak with an award-winning criminal defense lawyer today. 

 

PA Superior Court Continues to Undermine US Supreme Court's Birchfield Ruling

Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Moser. In Moser, the Superior Court concluded that police lawfully obtained the defendant’s blood sample without a search warrant because the defendant consented to the blood draw before police read him defective and coercive O’Connell warnings. Accordingly, the court reversed the trial court’s order suppressing the results of the blood test. 

The Facts of Commonwealth v. Moser

Moser was charged with Homicide by vehicle while under the influence of alcohol or controlled substance (Homicide by DUI), three counts of DUI, homicide by vehicle, and related traffic offenses. Moser filed a motion to suppress, arguing that police coerced him into submitting to warrantless blood testing by reading him defective O’Connell warnings which informed him that if he refused the blood testing, he would be subjected to stricter criminal penalties. The United States Supreme Court has previously held in Birchfield v. North Dakota that a state cannot impose criminal penalties on a defendant who refuses to submit to a warrantless blood draw, and Pennsylvania courts have suppressed blood testing in which defendants were told they would face criminal penalties if they refused prior to the testing. 

The trial court granted the motion to suppress. It found that the behavior of the police was unlawfully coercive and violated Moser’s rights because the police told him that he would face criminal penalties if he refused the testing. By granting the motion to suppress, the court ordered that the prosecution could not use the results of the blood testing at the homicide trial. 

The Commonwealth appealed to the Superior Court. On appeal, the Commonwealth argued that Moser had actually agreed to the blood testing while in the back of the police car on the way to the hospital. The police who were investigating the case did not read him the defective warnings until he arrived at the hospital. Therefore, the prosecution argued that he had already agreed to the blood draw prior to hearing anything coercive. Because the warnings were not provided until later, they could not have coerced him into giving up his right to insist on a search warrant prior to a blood test. 

The Superior Court agreed. It found that although the warnings were improper and could have been coercive, the warnings did not coerce the defendant in this case because they were not given until after he had already consented to the blood draw in the back of the police car. Therefore, the court reversed the decision of the trial court and ordered that the blood test results may be introduced at trial going forward.

This case continues a recent trend in the Sueprior Court of rejecting these Birchfield challenges and allowing the Commonwealth to use evidence even where the police gave improper warnings. A number of Birchfield cases are still on appeal, and the Pennsylvania Supreme Court has granted review in at least one of them. Therefore, although this is a significant set back for the defendant in this case, it is possible that the rules surrounding blood testing in DUI cases will continue to change and that the Superior Court could be overturned. For the time being, the Superior Court continues to regularly undermine the basic holding of Birchfield that states may not impose criminal penalties on a defendant for refusing blood testing when police have not obtained a search warrant. Obviously, the constitution requires search warrants, but the appellate courts continue to allow police to ignore this requirement and forgives their basic refusal to set up electronic or telephonic warrant application systems for DUI cases. 

Facing criminal charges? We can help.

Philadelphia Criminal Lawyers

If you are facing criminal charges or may be under investigation, we can help. We are experienced and understanding Philadelphia criminal defense lawyers who will fight for you. We have successfully defended thousands of clients in trial courts throughout Pennsylvania and New Jersey as well as on appeal and in Post-Conviction Relief Act Petitions. We offer a complimentary 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an award-winning defense attorney today. 

PA Legislature Revises SORNA in Attempt to Fix Unconstitutional Megan's Law Provisions

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esq.

The Pennsylvania Legislature recently enacted HB 631, amending Pennsylvania’s SORNA statute which governs who must register as a sex offender under Megan’s Law, the type of information that must be provided, how often that information must be provided, and for how long an offender must register. HB 631 is the legislature’s response to recent appellate decisions finding various provisions of SORNA unconstitutional. However, HB 631 fails to address many of the issues that led to SORNA being found unconstitutional in the first place, and many of its provisions remain subject to litigation when applied to offenders who were convicted of crimes for acts which were committed prior to December 20, 2012.

Recent Changes in SORNA

Pennsylvania’s Megan’s Law registration scheme has gone through a number of significant changes in the last few years. For example, in 2012, the original SORNA law took effect. SORNA made Pennsylvania’s sex offender registration scheme more punitive by imposing registration requirements on juveniles, increasing the number of offenses which require registration upon conviction, and retroactively increasing the length of the registration period for many people who had already been convicted.

For example, SORNA made M2 Indecent Assault a Tier I Sex Offense requiring 15 years of registration upon conviction. M2 Indecent Assault did not previously require Megan’s Law registration for a first offense. Various provisions in SORNA also attempted to retroactively require registration for people who had already been convicted of Indecent Assault even if they had been convicted prior to SORNA’s enactment.

Since the enactment of the law, Pennsylvania appellate courts have found many of these provisions unconstitutional. For example, courts quickly concluded that requiring people to register as adults for life following juvenile delinquency adjudications was irrational and unconstitutional. More recently, in Commonwealth v. Muniz, the Pennsylvania Supreme Court found that retroactively requiring people to register under SORNA for longer periods of time, for offenses that did not require registration at the time that they were committed, and under more onerous conditions, violates the ex post facto clause of the United States and Pennsylvania Constitutions. The ex post facto clause prohibits the Government from imposing criminal penalties for actions which were not illegal at the time that they were taken. It also prevents the Government from retroactively increasing the punishment for a given crime.   

The Pennsylvania Superior Court quickly followed suit in Commonwealth v. Butler, holding that because Megan’s Law registration can be considered criminal punishment, Pennsylvania’s Sexually Violent Predator classification process violates a defendant’s constitutional right to a trial by jury. The SVP procedure violates a defendant's jury trial rights because it allows a judge, instead of a jury, to find that a defendant should be required to register as a Sexually Violent Predator for life. It also allows the judge to make this finding under a clear and convincing evidence standard instead of the beyond a reasonable doubt standard required for a criminal conviction.

The Effect of Muniz and Butler on Pre-2012 Offenders

An important side effect of the Supreme Court’s Muniz decision is that it arguably eliminated the registration requirement completely for anyone who had been convicted of a sex crime for conduct which occurred prior to December 20, 2012. This is because the SORNA statute explicitly repealed the prior Megan’s Law scheme that was in effect at the time. Thus, when the Pennsylvania Supreme Court found that SORNA could not be applied retroactively to people who had been convicted of crimes for conduct which took place prior to the December 20, 2012 enactment, the Court left no alternative registration scheme in place for these offenders. With SORNA unconstitutional for those people and Megan’s Law repealed, even lifetime offenders (such as those convicted of rape or involuntary deviate sexual intercourse) who properly had to register prior to December 20, 2012, would arguably be eligible for removal from the State Police registry. The legislature responded quickly in an attempt to aovid this outcome. 

The Legislature’s Response to Muniz and Butler

Concerned that many people would no longer have to register at all, the Pennsylvania Legislature responded by amending the SORNA statute in the hopes of “re-capturing” pre-December 20, 2012 offenders. The act amends SORNA “to address the Pennsylvania Supreme Court's decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) and the Pennsylvania Superior Court's decision in Commonwealth v. Butler (2017 WL3882445).” It is debatable, however, whether the amendments are constitutional. It is also questionable whether they address the problems identified in Muniz and Butler.

Changes for Post-2012 Registrants

For the most part, the amendments made very few changes to SORNA as applied to offenders who committed the acts for which they must register after December 20, 2012. For example, SORNA no longer requires registration for one offense. A conviction for the interference with custody of children where the defendant is the child’s parent, guardian, or lawful custodian no longer requires registration.

The amendments also created a mechanism by which even Tier III lifetime registrants and Sexually Violent Predators may petition the court for removal from Megan’s Law. Now, a registrant who avoids conviction for any offenses punishable by more than a year for twenty-five years following his or her release from custody may petition to have the registration requirement lifted. A petitioner must prove by clear and convincing evidence that the petitioner is not a threat to others. It is unclear how many petitioners will receive relief under this provision, and it is important to note that even if the Petitioner meets this heavy burden, the court is not required to actually grant the removal petition.

Finally, the new amendments relax the in-person registration requirement for some registrants. An offender who must register more than once a year may register in-person once and by phone for the other registration requirements that year if the offender is compliant with all of the requirements for the first three years of registration and does not get convicted of an offense punishable by more than a year.

Although these changes are relatively minor, they do provide some relief to Tier III and SVP offenders who would otherwise have to register for life with no hope of ever obtaining removal from Megan’s List. It is likely that the legislature included this provision so that the Commonwealth's lawyers could argue that the statute is now less punitive and therefore does not violate the ex post facto clause.

Changes for Pre-2012 Registrants

With respect to registrants who committed the crimes for which they were convicted prior to SORNA’s enactment, the changes primarily seek to decrease the requirements to what they would have been under the old Megan’s Law Scheme. For example, the period of time for which the offender must register has been reduced to what it would have been under the pre-SORNA Megan’s Law. Thus, offenders must either register for ten years or for life, whereas new offenders could have to register for 15 years, 25 years, or for life. 

The information that offenders must provide to the State Police continues to be roughly the same. A registrant still must inform the State Police of where they live, work, and go to school. They must all inform the State Police if any of those things change, and the State Police will continue to post that information on the internet and to provide that information to local police departments. The amendments also make it a crime to fail to comply with these requirements, and they make it even more difficult on “transient” offenders who do not have a fixed address.   

The most surprising part of the new bill is that the amendments do not change the procedure by which an offender may be classified as a Sexually Violent Predator. An offender may still be found to be a Sexually Violent Predator by the sentencing judge under the clear and convincing evidence standard, and the requirements for Sexually Violent Predators are still essentially the same with the exception that they may petition for removal from the list after 25 years. It is entirely unclear how this re-enactment of the same unconstitutional sentencing scheme will survive appellate review.  

SORNA Litigation

The appellate courts have not yet addressed whether the new amendments to SORNA are constitutional. It is likely that there will be numerous challenges both to the legislature’s attempt to retroactively apply the statute to pre-SORNA offenders given that SORNA repealed their original registration requirement and to the continuation of the same procedures for making the Sexually Violent Predator determination. Although appellate decisions may eventually bring relief to thousands of people, the ongoing litigation leaves many people uncertain as to their registration requirements. If you are currently subject to registration requirements, it is important that you continue to register with the State Police as required until the State Police or a court inform you that you no longer have to register. If you believe that you should no longer have to register, you should consult with an experienced criminal defense attorney about the possibility of petitioning the state police or the trial court for removal from Megan’s Law. It is also likely that other issues will arise as attorneys have more time to review the changes in the new bill. 

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

Philadelphia Criminal Defense Attorneys

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, post-conviction relief act petition, or Megan's Law removal 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. 

Third Circuit Rejects De Facto Life Sentences for Most Juvenile Offenders

The United States Third Circuit Court of Appeals has just announced its decision in United States v. Grant, rejecting effective life imprisonment sentences for most juveniles as unconstitutional. Although other federal circuits had already addressed this issue, this was a case of first impression for the Third Circuit which will have dramatic consequences for juvenile offenders who are tried as adults in Pennsylvania and those who are already serving what would effectively be life sentences without parole. 

United States v. Grant

Goldstein Mehta LLC Criminal Defense Attorneys

In March 1987, local law enforcement in Elizabeth, New Jersey became aware of an organized group of teenagers that referred to themselves as The E-Port Posse (“The Posse”). The Defendant was a member of The Posse. The Posse operated a narcotics network that sold cocaine in Elizabeth and would routinely use threats and physical violence to further its enterprise.  

An example of this is occurred in August 1989. The defendant, who was 16 years old at the time, encountered a group of rival drug dealers while delivering drugs for The Posse. The defendant spoke to one of these dealers and told him not to be in the Posse’s territory. The rival drug dealer refused to leave. In response, The defendant struck him in the head with a gun while another Posse member assaulted him. The rival drug dealer fled and the defendant and his associate shot him in the leg. The rival drug dealer survived the incident.

Later that month, the defendant encountered the rival drug dealer’s brother, who was also a drug dealer. The defendant warned the brother not to sell in Posse territory. The defendant confronted the brother in an apartment courtyard where he tried to get the brother to go into an apartment. The brother escaped, but the defendant ordered his associate to shoot the brother to prevent said escape. The associate killed the brother. 

In 1991, a superseding indictment charged the defendant with RICO offenses; Racketeering; Conspiracy to Possess with the Intent to Distribute cocaine; two counts of Possession with the Intent to Distribute cocaine; and two counts of Possession of a Weapon in Relation to a Crime of Violence or Drug Trafficking. Although the defendant was not specifically charged with murder, the attempted murder of the rival drug dealer and the actual murder of his brother were the predicate offenses for the racketeering charge.   

The defendant was tried as an adult even though he was under the age of 18 when these crimes were committed. A jury came back with a split verdict, but found the defendant guilty of RICO, racketeering, and drug and gun possession counts. The jury found that the defendant attempted to murder the rival drug dealer, and murdered his brother. At sentencing, the defendant was sentenced to the mandatory sentencing guidelines of life without parole (hereinafter “LWOP”) on the RICO counts, as well as a concurrent forty-year term of imprisonment on the drug-trafficking counts, and a five-year consecutive term of imprisonment on the gun possession count. The convictions and sentence were affirmed on direct appeal.

The defendant caught a break with the United States Supreme Court’s decision in Miller v. Alabama, which held that mandatory Life Without Parole (LWOP) sentences for juvenile homicide offenders violates the Eighth Amendment of the United States Constitution prohibition on cruel and unusual punishment. Consequently, the defendant received a new sentencing hearing.

At the resentencing hearing, the District Court determined that because of the defendant’s upbringing, debilitating characteristics of youth, and post-conviction record, he was not incorrigible, and thus an LWOP sentence was not appropriate. However, the District Court imposed a term of sixty years imprisonment to run concurrently with the drug charges which resulted in a new effective sentence of sixty-five years without parole. Based on this sentencing, the defendant would have been eligible for release when he reached the age of 72 years old. He appealed again. 

Adolescent Development and the Supreme Court

Over the past two decades, adolescent brain development has been an important issue in United States Supreme Court jurisprudence. This began with its decision in Roper v. Simmons which banned the death penalty for juvenile offenders. In its decision, the Roper Court utilized science and social science to reason that juveniles lack maturity, have an underdeveloped sense of responsibility, and are more vulnerable or susceptible to negative influences and outside pressures. In other words, the United States Supreme Court has found that children’s brains are not as developed as those of an adult and thus they should not be held to the same moral standard when addressing criminal conduct and sentencing. 

The United States Supreme Court further expanded on its jurisprudence in the subsequent years. In Graham v. Florida, the Court held that life without parole is unconstitutional for juvenile offenders who commit crimes other than homicide. In Miller v. Alabama, the Court held that that mandatory LWOP even in homicide cases is unconstitutional. Most recently, in Montgomery v. Louisiana, the Court held that Graham and Miller apply retroactively (in other words, if someone was sentenced to LWOP prior to the Court’s rulings in Graham and Miller, then they would be entitled to a new sentencing hearing).

It is important to note that the United States Supreme Court never held that a juvenile cannot be sentenced to LWOP for a homicide offense. However, the bar was set very high to impose such a sentence. As the Grant court stated in its opinion “[o]nly those who are permanently incorrigible may receive such a sentence.” This logic is part of the reason why the defendant in this case challenged his sentence. The trial court essentially sentenced him to life without the possibility of parole.

Third Circuit Rejects Effective Life Without Parole Sentences for Juvenile Offenders as Unconstitutional  

The defendant appealed, arguing that because he would not be eligible for parole until he was 72 years old and that his life expectancy was also 72 years, he had been sentenced to a de facto life without parole sentence. Remember, the sentencing court previously found that he was not incorrigible, and thus, under the logic of Miller, he should receive a parole hearing before he is expected to die. The Third Circuit agreed with the Defendant.

In its decision, the Third Circuit focused on the Miller ruling which held that juvenile life without parole is only for incorrigible juveniles. Further, the Court extrapolated from the previously mentioned Supreme Court decisions that de-facto life without parole cannot be reconciled with Graham and Miller’s holdings that sentencing judges most provide non-incorrigible juvenile offenders “with a meaningful opportunity to obtain release based on their demonstrated maturity and rehabilitation” and that LWOP has “diminished penological justification.” The Third Circuit also looked to other circuit court decisions (i.e. the 7th, 9th and 10th) which held that term-of-years sentences, in those respective cases, violated the holdings of Graham and Miller.

Ultimately, the Third Circuit established new requirements for a sentencing court before it imposes a term-of-years sentence on a non-incorrigible juvenile offender. First, the sentencing judge must conduct an individualized evidentiary hearing to determine the non-incorrigible juvenile homicide offender’s life expectancy before sentencing him to a term-of-years sentence. Next, the sentencing court must “shape a sentence that properly accounts for a meaningful opportunity to be released.” The Third Circuit concluded that this is before the age of retirement. The Court chose retirement because “society accepts the age of retirement as a transitional life stage where an individual permanently leaves the work force after having contributed to society over the course of his or her working life.” The Court said that juvenile offenders should have an opportunity to “reconcile with society and achieve fulfillment outside prison walls.” Nonetheless, the sentencing court must also consider the § 3553(a) factors (i.e. the seriousness of the offense, public safety, deterrence, etc.) too, and though a non-incorrigible juvenile offender should be presumptively sentenced below the age of retirement, there may be legitimate reasons why a juvenile offender should not be released before the age of retirement.

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

Criminal Defense Attorneys Zak Goldstein and Demetra Mehta

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.