Philadelphia Criminal Defense Blog

Zak Goldstein 7/17/18 Zak Goldstein 7/17/18

When is Simple Assault a misdemeanor of the third degree in Pennsylvania?

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Hodges, holding that the defendant bears the burden of proving at sentencing that a “mutual combat” Simple Assault should be graded as a misdemeanor of the third degree instead of a misdemeanor of the second degree. This is an important decision because it makes it easier for the Commonwealth to obtain the conviction for the higher-graded Simple Assault, and that charge cannot be expunged or sealed.

What is the gradation of Simple Assault in PA?

Under Pennsylvania law, there are two types of Simple Assault. The most common variety of Simple Assault is a misdemeanor of the second degree. It simply involves knowingly, intentionally, or recklessly causing or attempting to cause bodily injury to another person. For example, punching someone in the face one time is usually going to be a Simple Assault unless very severe injuries occur. A misdemeanor of the second degree is punishable by up to two years in prison and a $5,000 fine. Simple Assault (M2) also cannot be expunged or sealed pursuant to a limited access order. Therefore, a conviction for Simple Assault as an M2 will stay on your record for life unless you obtain a pardon from the Governor.

Alternatively, Simply Assault can also be a misdemeanor of the third degree. The statute provides that when the Simple Assault was part of a mutual combat, then the court should instead grade Simple Assault as an M3. An M3 is punishable by up to one year in prison and a $2,000 fine. More importantly, Simple Assault (M3) is subject to Pennsylvania’s new limited access order law. This means that if you are convicted of Simple Assault (M3), you may petition the court to seal the conviction after ten years if you remain arrest-free during that period. Although this is not quite the same as an expungement, it drastically reduces the likelihood that potential employers are going to find out about the prior conviction. Law enforcement agencies and state licensing authorities will still have access to it, but the general public will not. Additionally, it is not possible to receive a state prison system for an M3, whereas an M2 could result in a state prison sentence because of the potential two year maximum.

Who has to prove whether the Simple Assault is an M3 or an M2?

The issue in Hodges is whether the Commonwealth or the defendant bears the burden of proving the degree of the Simple Assault. In Hodges, the defendant was convicted of Simple Assault by a jury. He appealed, arguing in the Superior Court that the trial court gave him an illegal sentence when it sentenced him on Simple Assault as a misdemeanor of the second degree because the Commonwealth never proved beyond a reasonable doubt that he had not engaged in a fight by mutual consent.

The Superior Court rejected this argument. It found that the issue of whether the charge should be graded as an M2 or an M3 is a sentencing issue which must be determined by the trial judge. Where the factfinder concludes beyond a reasonable doubt that the defendant has committed a Simple Assault, the default gradation is the misdemeanor of the second degree. However, the defendant may then introduce additional evidence or make argument at sentencing that the judge should reduce the gradation of the charge to the third-degree misdemeanor based on the mutual consent section. In Hodges, the defendant never made that argument at sentencing, and therefore, the claim was waived. Had the defendant made this argument at sentencing, it is possible that the court would have reduced the gradation of the charge. Unfortunately, his defense attorney did not.

Notably, the VUFA 6106 gun charge statute which prohibits carrying a concealed firearm without a license has a similar gradation scheme. By default, a violation of VUFA 6106 is a felony of the third degree. However, the appellate courts have held in prior cases that the defendant may ask the court to find that a VUFA 6106 conviction should be graded as a misdemeanor of the first degree if the defendant can show that he or she was otherwise eligible to obtain a concealed carry permit and was not facing any other charges at the same time. Thus, the Superior Court has held that it is the defendant's burden in these types of cases to show that the defendant is eligible for a reduction in gradation. It is extremely important that defense counsel be aware of this burden as it may be too late to make the argument on appeal as it was for Hodges.

Facing criminal charges? We can help.

If you are facing criminal charges in PA or NJ, we can help. We have successfully defended thousands of clients in assault cases and against all types of criminal charges. 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.

Zak Goldstein 6/24/18 Zak Goldstein 6/24/18

SCOTUS: Defendant May Waive Double Jeopardy by Moving to Sever Felon in Possession of Firearm Charge

The United States Supreme Court has decided the case of Currier v. Virginia, holding that a defendant may waive double jeopardy protections by consenting to the severance of criminal charges and moving for separate trials on different charges. Specifically, the defendant may waive his or her double jeopardy rights by moving to sever a felon in possession of a firearm charge from the other charges in a criminal case.

The Facts of Currier v. Virginia

In Currier, prosecutors charged the defendant with burglary, grand larceny, and unlawful possession of a firearm by a convicted felon in Virginia. Coincidentally, the defendant was not eligible to possess a gun because he had prior convictions for burglary and grand larceny. Because the defendant was charged with unlawful possession of a firearm by a convicted felon, prosecutors would have been allowed to introduce his prior convictions for burglary and grand larceny in his trial as the existence of those prior convictions is an element of the statute. This would have been detrimental to his case because the jury would have heard both that he had prior convictions in general and that he had prior convictions for the exact same thing with which he was charged.

Accordingly, the defendant and the Government agreed to sever the charges and hold two separate trials. As discussed in the Court’s opinion, there is no universal way to handle this issue and each jurisdiction is different. In Virginia, a defendant can have two trials: one for the unlawful possession of a firearm by a convicted felon and a second trial for the other charges. In this case, Petitioner elected to have two trials. This is not the normal procedure in Philadelphia. In Philadelphia, the prosecutors will ordinarily proceed against the defendant on the non-felon in possession charges first. If the prosecution obtains a conviction on all of the charges other than the felon in possession charge, then the defense will typically allow the trial judge to make the decision on the remaining gun charge. If the jury acquits on all of the other charges, then the prosecution will usually move to nolle prosse the remaining gun charge. In some cases, the prosecution does still insist that the jury hear the felon in possession case after it has ruled on the other charges. However, Philadelphia does not typically conduct two separate trials in these types of cases.

The first trial, for the charges of grand larceny and burglary, went very well for the defendant. He was acquitted of both charges. When he appeared for his second trial, his defense attorneys moved to dismiss the gun charge. They argued that it would violate his constitutional right against Double Jeopardy. In the alternative, he asked that the prosecution not be allowed to introduce any evidence pertaining to the grand larceny and burglary charges because he was acquitted of those charges. The trial court denied the defense's request, and the jury found him guilty of the gun charge. The court sentenced him to a lengthy period of incarceration. He appealed through the Virginia state appellate system, and both the Virginia Court of Appeals and the Virginia Supreme Court affirmed the denial of his double jeopardy motion. He appealed to the United States Supreme Court, and the Supreme Court granted certiorari and agreed to hear the case.

What is Double Jeopardy?

The Fifth Amendment of the United States Constitution prohibits a defendant from being tried twice for the same crime after he or she has been acquitted or convicted of the crime. These situations can become more complicated than one would expect, but a simple example of double jeopardy is this: Imagine a defendant is charged with robbing a bank. The defendant goes to trial, and the jury acquits him of robbing the bank. The same jurisdiction cannot then re-try him again for robbing the bank, even if prosecutors later uncover more evidence that would have likely led to a different verdict.

It is important to note that under the federal constitution and subsequent case law, this protection only applies to the particular jurisdiction that tried the defendant. In other words, just because a defendant is acquitted of a crime at the federal level does not mean that the state government cannot prosecute for the crime too. However, the rules governing this depend on the jurisdiction. Pennsylvania offers much broader Double Jeopardy protections in comparison to other states. Thus, if a defendant is acquitted in federal court, Pennsylvania prosecutors cannot then bring charges. The reverse, however, is not true - if a defendant is acquitted in Pennsylvania court, the federal government can still bring charges. Click here to learn more about double jeopardy in general.

The Double Jeopardy Clause also has a collateral estoppel component to it. What this means is that the government cannot re-litigate a fact that was decided in a defendant’s favor. To give a basic example of this, let’s assume that a defendant punched a person in the face and took their phone. This is technically a robbery, but it is also a simple assault. Let’s also assume that at trial, the government chooses only to proceed on the robbery charge and the defendant is found not guilty. The doctrine of collateral estoppel prevents the government from re-arresting the defendant for simple assault because he was already found not guilty of an essential fact of the case (i.e. punching the complainant) in the robbery trial.

This idea of collateral estoppel, as discussed in Currier, is not a universally accepted idea by legal jurists and remains controversial. However, as the justices noted in their opinion, collateral estoppel was not the issue in this case, though it is a little confusing (as discussed below). The issue in Currier, according to the justices, was whether a defendant can waive his Double Jeopardy protections by seeking a severance of the charges filed against him.

The Court Holds that a Defendant Can Waive His Double Jeopardy Protections When He Agrees to Severance of the Charges

In Currier, the Supreme Court held that a defendant may waive his Double Jeopardy protections when he elects to have two trials. In making its decision, the Court looked at its prior decisions that addressed the issue. In its research, the Court concluded that when a defendant elects to have two trials, he is no longer entitled to Double Jeopardy protections. The Court stated that the Double Jeopardy Clause was designed to protect against government oppression, not from the consequences of a defendant’s voluntary choice.

The defendant, of course, argued that he had no real choice. If he had not elected to sever his cases, than the jury would have heard that he had prior convictions for the same offenses, and he would not have received a fair trial. However, the Supreme Court noted that though he was entitled to have separate trials under Virginia law, it was not a constitutional right to have separate trials. Thus, he was not forced to give up one constitutional right to secure another. Additionally, the Court held that because the defendant consented to the severance of the cases, the prosecution could still introduce evidence relating to the charges for which he had already been acquitted.

This decision will likely prove confusing and frustrating for criminal defendants because even though the defendant was found not guilty of the burglary and the grand larceny charges, the prosecution was allowed to introduce evidence for those crimes in his second trial. The Court made clear that its decision was based on the text of the Fifth Amendment and therefore held that the Double Jeopardy Clause only prohibits re-litigating offenses, not issues or evidence. Consequently, the Court held that the normal rules of evidence apply and thus a trial court must decide whether to allow the introduction of evidence and facts from the prior trial.

Facing criminal charges? We can help.

Criminal Defense Attorneys Zak Goldstein and Demetra Mehta

If you are facing criminal charges in state or federal court, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of criminal cases in trial and appellate courts throughout Pennsylvania and New Jersey. If you are under investigation or have been arrested, we offer a 15-minute criminal defense strategy session free of charge. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.

Zak Goldstein 6/23/18 Zak Goldstein 6/23/18

US Supreme Court: Police Must Obtain Search Warrant for Cell Phone Location Data

The United States Supreme Court has decided the case of Carpenter v. United States, holding that police must obtain a search warrant based on probable cause prior to getting cell phone location data from a cell phone provider. In Carpenter, law enforcement officers had obtained cell phone location data for the defendant which linked the defendant to various gunpoint robberies without a search warrant. Therefore, the court reversed the defendant’s conviction and remanded the case for a new trial.

The Facts of Carpenter v. United States

In 2011, police arrested four men for robbing a number of Radio Shack and T-Mobile stores in Detroit. One of the men confessed that over the previous four months, the group (along with other individuals) had robbed nine different stories in Michigan and Ohio. The suspect identified 15 other people who had participated in the robberies. He gave the FBI some of their cell phone numbers. The FBI then reviewed his call records to identify additional numbers that he had called around the time of the robberies.

Based on this information, the FBI began to suspect Timothy Carpenter, the defendant, of participating in some of the robberies. The FBI obtained court orders under the Stored Communications Act to obtain cell phone records for Carpenter and other suspects. That statute permitted the FBI to compel the disclosure of cell phone records from the cell phone provider based on a showing of specific and articulable facts that there are reasonable grounds to believe that the records sought are relevant and material to an ongoing criminal investigation. These court orders are not the same as a search warrant, and the showing necessary to obtain one is much lower than the probable cause standard which law enforcement officers must meet when seeking a search warrant.

The FBI agents obtained two orders from federal magistrate judges directing MetroPCS and Sprint to disclose cell site location data for Carpenter’s phones. The first order sought 152 days of cell-site records from MetroPCS, and MetroPCS produced 127 days worth of records. The second order directed Sprint to produce two days of records for when Carpenter’s phone was roaming in Ohio, and Sprint produced the two days worth of records. In total, the FBI obtained 12,898 location points cataloging Carpenter’s movements – an average of 101 data points per day.

The Criminal Charges Against Carpenter

The Government eventually charged Carpenter in federal court with six counts of robbery and six counts of carrying a firearm during a federal crime of violence in violation of 18 U.S.C. Sec. 924(c) and 1951(a). Prior to trial, Carpenter’s defense attorneys filed a motion to suppress the cell phone location data, arguing that the FBI violated the Fourth Amendment when it obtained the location data without a search warrant supported by probable cause. The trial court denied the motion to suppress, and the Court of Appeals affirmed.

Carpenter proceeded to trial, and seven of his co-conspirators testified against him. They indicated that he was the leader of the robbery operation. In addition, an FBI agent offered expert testimony regarding the cell phone data. The agent explained that each time a cell phone taps into a wireless network, the carrier logs a time-stamped record of the cell site and the particular sector that were used. With this information, the FBI agent was able to produce maps that placed Carpenter’s phone near the scene of four of the charged robberies. According to the Government, this data showed that Carpenter was right where the robbery occurred at the exact time of the robbery. The jury found Carpenter guilty of all of the charges except one of the gun charges, and the trial court sentenced him to more than 100 years in prison.

The Court of Appeals affirmed the trial court’s ruling on the motion to suppress. It held that Carpenter lacked a reasonable expectation of privacy in the cell phone location data because the information had been shared with his wireless carriers. Given that cell phone users voluntarily convey cell-site data to their carriers in order to use the phone, the court concluded that the business records produced by the carriers are not subject to Fourth Amendment protection on the basis that there is no reasonable expectation of privacy in something that a person has shared with someone else.

The Supreme Court Appeal

Carpenter’s defense lawyers appealed to the United States Supreme Court, and the Supreme Court accepted the case. In what it described as a narrow opinion, the Supreme Court reversed the conviction and ruled that the trial court should have granted the motion to suppress the cell phone location data. The court noted a number of recent opinions in which the Fourth Amendment has been applied to protect not just places, but also other types of information that people would expect to be private. For example, in Kyllo v. United States, the court held that police could not use a thermal imager to detect heat radiating from the side a defendant’s home (as part of searching for a marijuana grow operation) without a search warrant. Likewise, in Riley v. United States, the court found that law enforcement generally must obtain a search warrant prior to searching a suspect’s cell phone and that the search incident to arrest exception to the warrant requirement does not apply to a cell phone. Finally, in United States v. Jones, the Supreme Court held that police must obtain a search warrant prior to secretly planting a GPS tracker underneath a suspect’s car and monitoring the tracker for 28 days.

At the same time, the court noted that the third-party doctrine would normally defeat Carpenter’s claim. The third-party doctrine provides that police are not required to obtain a search warrant in order to obtain information which a person has voluntarily shared with third parties. Thus, police may obtain bank records via subpoena without obtaining a search warrant because a person has voluntarily shared their financial information with the bank. Likewise, police need not obtain a search warrant in order to obtain a list of outgoing phone numbers dialed on a landline telephone because the information provided by such a pen register is limited and the numbers are used by the telephone company for a variety of legitimate business purposes.

After analyzing these various cases, the Supreme Court ultimately concluded that the FBI should have obtained a search warrant for the cell phone data. Although the third-party doctrine has typically applied in cases such as this, where the defendant shared all of the information voluntarily with the cell phone companies, there is something different about a system that creates such a detailed and comprehensive record of the person’s movements. Accordingly, given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. The court therefore held that an individual maintains a legitimate expectation of privacy in the record of his or her physical movements as captured by the cell phone companies.

Although the court reversed the conviction in this case, it did note that the decision is meant to be a narrow one. It does not necessarily apply to real-time cell phone location data or “tower dumps” (a download of information on all of the devices that connected to a particular cell site during a particular interval). It should also not call into question the prior opinions on bank records and pen registers or prevent the use of evidence obtained from security cameras. Finally, it does not consider other collection techniques involving foreign affairs or national security, and there may also be situations in which exigent circumstances eliminate the need for a search warrant.

Facing criminal charges? We can help.

Criminal Defense Attorneys Demetra Mehta and Zak Goldstein

If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients. We are experienced and understanding defense attorneys with the skill and expertise to fight even the most serious cases at trial, on appeal, and in Post-Conviction Relief Act litigation. We offer a complimentary 15-minute criminal defense strategy session to each potential client. Call 267-225-2545 to speak with a defense lawyer today.

Zak Goldstein 6/18/18 Zak Goldstein 6/18/18

Defenses to Aggravated Assault Charges in Pennsylvania

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire, explains the most common types of Aggravated Assault charges and some of the potential defenses to those charges available under Pennsylvania law. If you are under investigation or facing criminal charges in PA or NJ, call 267-225-2545 to speak with an award-winning criminal defense lawyer today.

The following is an automated transcript of the video. Please excuse typos and otherwise errors as it was produced electronically and only lightly edited.

Hi, my name's Zak Goldstein, I'm a criminal defense attorney in Philadelphia with the law firm Goldstein Mehta LLC. We handle a lot of aggravated assault cases. And so that's the topic that I'm going to talk about today, which is aggravated assault. Now in general, Aggravated Assault is always a felony in Pennsylvania in state court, and there are three main types of aggravated assault that a criminal defendant could find themselves dealing with in Philadelphia and in counties throughout Pennsylvania. The first type is the most serious. It's a felony of the first degree, and when aggravated assault is charged as a felony of the first degree, then it typically involves serious bodily injury, meaning the defendant caused knowingly, intentionally, or recklessly caused or attempted to cause serious bodily injury to another person. Typically, that's going to involve either someone, someone really being injured, or it's going to involve a weapon.

So if you shoot somebody, if you stab somebody, multiple times, you know, you punch someone 100 times and bones are broken, that's usually going to be aggravated assault as a felony of the first degree. Now, the second type is aggravated assault involving law enforcement or other protected classes. It could be a correctional officer, police officer, a judge, public defender, district attorney, a Septa employee or a healthcare worker or doctor, all members of protected classes for the felony of the second degree, aggravated assault statute. In that case, it no longer has to be serious bodily injury. If you try to cause bodily injury or knowingly or intentionally, and it can't be reckless, meaning it can't be an accident, you can't just be flailing around. It's got to really be an attempt to, or something you meant to do. If you caused bodily injury or attempted to cause bodily injury to someone who's set out in the statute, like a police officer, then that is always a felony of the second degree. This is true even if that person just has some minor bruises or redness or swelling, it doesn't have to be a serious bodily injury.

And then the third type of aggravated assault is also a felony of the second degree. That's bodily injury with a deadly weapon. Meaning say you stab somebody in the arm and they're totally fine. They make a full recovery, they get a stitch or two, you know, it's not a major permanent injury, then that might just be bodily injury with a deadly weapon because the knife used for the stabbing a is a deadly weapon, but it's not serious bodily injury or business, not something that's going to permanently effect their lives. There was no risk that they were going to die. It's aggravated assault as a felony of the same with the grade. Now, for each of these charges, there are defenses.

You're charged in state court in Pennsylvania. You have the absolute right to a trial with a judge or the jury. In most cases you're also gonna have a preliminary hearing. And so with some of these aggravated assault charges, there are defenses even at the preliminary hearing level with the sufficiency of the evidence, particularly with aggravated assault as a felony of the first degree. Many times the winner of a flight gets charged with aggravated assault. The complainant will say, oh, I got punched, you know, five times, 10 times. I got punched a bunch of times in the head and the prosecution will try to argue that that's aggravated assault as a felony of the first degree. So in terms of the sufficiency defense, there's probably going to be a defense. Well, serious bodily injury was not caused. This person was not really injured and just punching or throwing some kicks is part of a fight, well, that's not an attempt to cause serious bodily injury, so the charge should be thrown out and should just be a simple assault even at a preliminary hearing where there's a relatively lower standard than at a trial.

In terms of sufficiency for the other statutes, there can be challenges to what the defendant actually intended to do. With the law enforcement, aggravated assault - It can't just be resisting arrest, it can't be flailing around trying not to be taken into custody. Even if a police officer ends up with some bruising, that has to be the defendant's goal and had to either be intentional or knowing. It can't just be something that happened because of reckless conduct. So that could be a defense to the aggravated assault as a felony of the second degree charge, and then there's also sufficiently defenses for the bodily injury with a deadly weapon type of aggravated assault, which can be challenging whether or not it was really a deadly weapon. You see a lot of felony two aggravated assaults where the prosecution and the police, they're never really quite sure what kind of weapon was involved.

Maybe it was a screwdriver, maybe the defendant was wearing a ring that led to a large cut. A deadly weapon has a very specific definition, which means it's either a firearm, whether loaded or unloaded. It's something that is a weapon like a knife. Otherwise, when it's some sort of random object, if it's a pen, a screwdriver, a plate, something that the defendant just grabbed, then it has to be used in a manner which was calculated to or likely to produce serious, uh, to produce death or serious bodily injury. So if an object is grabbed in the course of the fight, it is not automatically a deadly weapon. There has to be something about the object that makes it particularly deadly like a knife or a gun, or it has to be the way in which it was used. Sufficiency is often a potential defense in these types of cases, but there are also the other types of defenses that come in with, with any criminal case.

Aggravated Assault can be a charge for a shooting, in which case the defenses could be misidentification. That comes down to the credibility of the witnesses. Did the witnesses really point out the right person? There can be credibility defenses - are the witnesses telling the truth about what they saw or the truth about their injuries. Are they telling the truth that the defendant really tried to do this? And then there are other defenses that are, that are really case specific. That would be speedy trial defenses. The defendant is brought to trial fast enough. They're going to be motions to suppress evidence if the defendant is stopped by the police or questioned illegally without Miranda rights or questioned as part of an illegal stop. These are all potential defenses to aggravated assault charges and potential defenses in any case, because there's always the right to a jury, there's the right to a trial with a judge if you choose to go that route.

And then there are also the constitutional defenses such as the right to a speedy trial, the right to be free from unreasonable search and seizure, and the right to Miranda warnings. Now, we have handled countless aggravated assault cases, countless attempted murder cases, both as trials with judges and with juries. We have won full acquittals in aggravated assault and attempted murder cases. And if you were dealing with any type of assault charge or any type of criminal charge, we can help. Our criminal defense attorneys offer a free 15 minute criminal defense strategy session to each potential client. So, call us at 267-225-2545 discuss your case today.