Philadelphia Criminal Defense Blog

Zak Goldstein 8/24/19 Zak Goldstein 8/24/19

PA Superior Court: Pointing a Gun at Someone May Be Aggravated Assault

The Pennsylvania Superior Court has decided the case of Commonwealth v. Miller, holding that the trial court properly found the defendant guilty of Aggravated Assault for the act of merely pointing a gun at the complainant. This is a poorly reasoned case which fails to follow the statutory language of the Aggravated Assault statute by allowing a conviction for Aggravated Assault even where the defendant did not actually do anything to try to cause serious bodily injury to the complainant.

The Facts of Miller

In Miller, the defendant became involved in a road range incident with the complainant. The complainant was driving home when he turned onto a street which was blocked by the defendant’s car. The defendant started yelling at the complainant, so the complainant pulled over and got out of his car. The defendant got out of his car, and the two began to argue. The defendant then went back to his car, retrieved a handgun, and pointed it at the complainant’s head with his finger on the trigger. He repeatedly stated things like “What’s your problem now, fucker? I got a gun. I’m going to kill you. I’m going to shoot you.” The complainant put his hands up defensively and said that was not necessary, and the defendant continued to threaten him and say that he should kill him.

At some point, one of the defendant’s friends came out of his house and began yelling at the defendant to put the gun away. He did, but then the two men argued some more. The defendant then started to go back to his car to get the gun again, but the complainant’s wife grabbed the gun and threw it. Police arrested the defendant, and he later yelled “I shoulda just fucking killed them. I shoulda just shot them.” He made a number of other similar statements which did not help his case.

The Criminal Charges

Prosecutors charged the defendant with Aggravated Assault, Simple Assault, Terroristic Threats, Recklessly Endangering Another Person, Disorderly Conduct, and Harassment. He proceeded by way of jury trial and was found guilty of all charges. The trial judge sentenced him to four to ten years’ incarceration in state prison, and the defendant appealed.

The Superior Court Appeal

On appeal, the defendant argued that the evidence was insufficient to support the conviction for Aggravated Assault. Specifically, Aggravated Assault requires either that a defendant cause or attempt to cause serious bodily injury to the complainant. Here, the defendant did not cause serious bodily injury to the complainant because he did not do anything other than point the gun, but the Court found that the conviction could be upheld because he attempted to cause serious bodily injury.

Can you be convicted of a aggravated assault just for pointing a gun at someone?

Sometimes, depending on the facts. Here, the Court upheld the conviction. The Superior Court reasoned that for aggravated assault purposes, an attempt can be found where the accused who possesses the required, specific intent acts in a manner which constitutes a substantial step towards perpetrating a serious bodily injury upon another. Intent ordinarily must be proven through circumstantial evidence and inferred from acts, conduct or attendant circumstances.

Here, the Court found that the jury was free to believe that the defendant meant what he repeatedly said to the complainant: that he intended to shoot him. The threat, in conjunction with the act of pointing the gun at the complainant’s head, was sufficient to sustain the conviction for Aggravated Assault. Further, the encounter was only defused because the neighbor came out and began yelling at the defendant to stop, thus suggesting that the defendant may have carried through with the threat had someone else not intervened. Therefore, the Court upheld the conviction.

Potential Defenses to Aggravated Assault Charges for Pointing a Gun

This really is a bad opinion – Aggravated Assault requires an actual attempt to cause serious bodily injury, and here, it does not appear that anything actually happened which prevented the defendant from causing that serious bodily injury if he wanted to do so. Where a defendant shoots at someone and misses or points a gun at someone who flees and escapes, it may make sense for a court to find that there was sufficient evidence of Aggravated Assault. But where the defendant points the gun at someone and has every opportunity to shoot but does not do so, there should not be a conviction for Aggravated Assault.

In general, Pennsylvania case law now seems to hold that pointing a gun at someone may be Aggravated Assault where there are some intervening circumstances which arguably lead to the defendant deciding not to carry through with the threat. However, where the defendant does nothing more than point the gun at a complainant and then voluntarily stops on his or her own, there is still case law that supports the idea that this type of action should only be a Simple Assault. Unfortunately, Pennsylvania courts often do not take the fact that Aggravated Assault is a first-degree felony seriously enough. This makes it extremely important to hire an experienced criminal defense lawyer if you are facing charges or under investigation for assault.

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 at trial and on appeal. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, VUFA, PWID, 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.

Zak Goldstein 8/22/19 Zak Goldstein 8/22/19

Attorney Goldstein Wins Motion to Quash First-Degree Murder Case

Philadelphia Criminal Defense Lawyer Zak Goldstein

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire recently won the dismissal of all charges in a first-degree murder case by successfully litigating a Motion to Quash (also known as a Petition for Writ of Habeas Corpus). In the case of Commonwealth v. M.B., the Philadelphia Court of Common Pleas Judge dismissed all of the charges against M.B. after Attorney Goldstein moved for dismissal on the grounds that the Commonwealth had failed to present a prima facie case of the client’s participation in a homicide at the preliminary hearing.

In M.B., prosecutors alleged that the defendant, his brother, and their cousin had been at a block party in Southwest Philadelphia. At some point, the defendant became involved in a verbal argument with the decedent. The defendant’s brother and the man began fighting, and the defendant briefly jumped into the fight. Other partygoers broke up the fight, and the defendant, his brother, and their cousin left. The decedent also left the party shortly thereafter and went home.

A few hours later, the defendant, his brother, and their cousin went to the man’s house, which was not far from where the block party had been taking place. Surveillance video showed them entering the block prior to the shooting and leaving shortly thereafter. Witnesses testified at the preliminary hearing that as they approached the house, the brother told the defendant and the cousin to go sit down across the street, which they did. The brother then knocked on the decedent’s door. The decedent opened the door and began cursing at the brother. The brother pulled out a loaded handgun and shot him one time in the torso, killing him. The brother then crossed the street, and the three of them all left. Surveillance footage showed them walking off of the block together.

Investigators eventually recommended homicide charges against M.B. despite the fact that he had not been the shooter and had done nothing more than wait across the street while his brother went over to the house. They declined to charge the cousin. They also obviously charged the shooter, but they had not located him at the time of M.B.’s preliminary hearing.

The Philadelphia Municipal Court conducted a preliminary hearing in the case against M.B. while M.B. was represented by different counsel, and the Court held M.B. for court on charges of first-degree murder and conspiracy. Essentially, the Commonwealth argued, and the Court agreed, that M.B. must have conspired with his brother to kill the decedent and told his brother where the decedent lived. Therefore, because conspiracy can potentially result in liability for the underlying substantive criminal offense, the Court held M.B. over for trial on the murder and conspiracy charges. If convicted, M.B. would be facing a mandatory minimum sentence of life without parole.

M.B. retained Attorney Goldstein following the preliminary hearing. Attorney Goldstein promptly obtained the transcript from the preliminary hearing and filed a Motion to Quash. A Motion to Quash asks the Court of Common Pleas judge to review the findings of the Municipal Court judge or magistrate and dismiss the charges because the Commonwealth failed to establish a prima facie case that the defendant actually committed a crime. Here, the defense argued that M.B. had done nothing more than walk with his brother to the decedent’s house. There was no evidence that M.B. knew what his brother was going to do, encouraged his brother to do it, or had actually been the person who provided his brother with the decedent’s address. Further, the Commonwealth had declined to charge the cousin with the shooting. Thus, the evidence showed that it was just as likely as not that the men had gone over to the house to talk to the decedent and resolve the issues from the block party instead of going there to shoot him. Even if the brother planned to shoot the decedent, there was simply no evidence that M.B. had encouraged or facilitated it in any way. Instead, the evidence suggested that the brother may have gotten mad when the decedent opened the door and began cursing at him and acted on his own.

The Common Pleas judge reviewed the transcript, watched the video from the surveillance cameras, and held a hearing for both sides to make argument. The judge agreed with Attorney Goldstein that the evidence showed only that M.B. had been merely present at the scene of a crime. Under Pennsylvania law, it is well-established that mere presence alone is not enough to infer that a person was part of a criminal conspiracy or intended for the crime to occur. Therefore, the judge dismissed all charges against M.B. in this first-degree murder case.

Facing criminal charges? We can help.

Criminal Defense Lawyers Demetra Mehta and 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 at trial and on appeal. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, VUFA, PWID, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545to speak with an experienced and understanding defense attorney today.

Zak Goldstein 8/7/19 Zak Goldstein 8/7/19

Attorney Goldstein Wins Dismissal of First Degree Murder Charges

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire recently obtained the complete dismissal of first degree murder charges in the case of Commonwealth v. D.R..

In D.R., prosecutors alleged that the decedent, who was wheelchair bound, was returning home just before midnight. The decedent’s friend happened to be driving by, and he stopped to help the decedent get into the house. As the friend was helping the decedent up into the house, two men approached, pulled out guns, and began walking quickly towards the decedent. The decedent managed to get into the house and close the door, but one of the men kicked the door open and fatally shot the decedent. The decedent’s friend began to run, and the men began firing in his direction, striking him one time in the leg. The friend survived his injuries. The two men then fled the scene. Prosecutors eventually arrested and charged D.R. with first degree murder for the killing of the decedent and Attempted Murder for the shooting of the decedent’s friend.

Fortunately, D.R. quickly retained Attorney Goldstein, and Attorney Goldstein began investigating the case. It was clear that there was something strange about the case right away. First, D.R. had no motive to kill the decedent or even ties to that particular neighborhood in Philadelphia. Second, two witnesses had apparently identified D.R. as the killer in police-administered photo arrays, but those photo arrays were not conducted until months after the murder when police supposedly received an anonymous tip identifying D.R. as the shooter. Third, police had not uncovered any other evidence beyond these unusually-delayed witness identifications which would connect D.R. to the homicide.

The first step in most Pennsylvania state court cases, including homicides, is a preliminary hearing. Attorney Goldstein was successfully able to move for a lineup with respect to one of the eyewitnesses – the decedent’s friend who had been shot and survived. When considering whether to grant a lineup, the court should consider the witness’s opportunity to observe, whether the witness knew or had seen the defendant before, and the overall strength of the case and whether there is other corroborating evidence against the defendant. In this case, the surviving victim had never seen D.R. before, had not had a great opportunity to observe the shooters, and had not made an identification for months. There was also no other evidence against D.R. other than the two eyewitness identifications. Accordingly, the Municipal Court granted the motion for a lineup with respect to the surviving victim, but the court denied it with respect to the other alleged eyewitness because he claimed that he had previously seen D.R. in the neighborhood.

When Attorney Goldstein and D.R. attended the lineup, the surviving victim told detectives that he recognized D.R. as the person he had identified in the photo array, but after seeing him in person, he believed that he was not the person who killed his friend. He testified similarly at the preliminary hearing. On cross-examination by Attorney Goldstein, he admitted that detectives had suggested that he identify D.R. and that he had gone along with it because detectives assured him that they had lots of other evidence and D.R.’s eyes looked similar to the eyes of the shooter. However, the other eyewitness, one of the decedent’s neighbors from across the street, testified that he had seen D.R. in the neighborhood in the days before the shooting, that he had witnessed the shooting itself, and that he recognized D.R. as the shooter. Therefore, the case was held for court based on the one witness’s in-court identification, and the court subsequently scheduled the matter for trial.

Attorney Goldstein, believing in his client’s innocence, continued investigating the case. He was eventually able to obtain phone records, including cell site location data, which showed that it was unlikely that D.R. had ever been in the neighborhood of the shooting and that D.R. was probably too far away to have committed the murder on the night in question. Attorney Goldstein’s private investigator also spoke with the neighbor/purported eyewitness from across the street. That witness eventually recanted his statement and admitted that he had not really gotten a good look at the shooter. Like the surviving victim who attended the lineup, that witness also admitted that police detectives had also told him that he should identify D.R. when they conducted the photo array.

Attorney Goldstein immediately provided prosecutors with the witness’s statement admitting that he had not told the truth about D.R. being the shooter. Now that both witnesses gave statements indicating that detectives had told them who to identify and faced with cell phone data showing that D.R. was probably too far away to have committed the murder, the Commonwealth asked D.R. to submit to a lie detector test. D.R. agreed and took the test. Following the completion of the test, prosecutors agreed to withdraw all charges, and D.R. was immediately released. Instead of facing life without parole on First Degree Murder charges, D.R. is now home with his family and enjoying his freedom. This case illustrates the importance of making strategic pre-trial motions such as a motion for a lineup, thoroughly cross-examining Commonwealth witnesses, and fully investigating a case prior to trial. By doing these three things, Attorney Goldstein was able to win freedom for D.R.

Facing criminal charges? We can help.

Philadelphia Criminal Defense Lawyers Demetra Mehta and 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.

Zak Goldstein 7/23/19 Zak Goldstein 7/23/19

PA Superior Court: Commonwealth May Amend Bills of Information to Include New Victim on Day of Trial Unless Defendant Shows Prejudice

The Pennsylvania Superior Court has decided the case of Commonwealth v. Jackson, holding that the trial court properly permitted the prosecution to amend the Bills of Information to include new victims on the morning of trial because the defendant was on notice of those victims and failed to show any prejudice due to the amendment.

The Facts of Jackson

In Jackson, the defendant was charged with Terroristic Threats (M1) in Philadelphia for allegedly threatening various co-workers at his federal job. The defendant had a number of telephone conversations and left a number of voice mails in which he used racial slurs, threatened co-workers, and said other generally distasteful and unsettling things. The majority of these phone calls, however, involved making these threats towards other co-workers to a specific co-worker with whom he was more friendly. He did not really, however, threaten the one co-worker to whom he made the majority of his comments.

Can the Commonwealth Amend the Bills of Information on the Day of Trial?

Prior to trial, the Commonwealth filed Bills of Information. The Bills of Information generally identify the charges which a defendant will face as well as the name of the victim, the date on which the crime allegedly occurred, and the gradation of the charges. The Commonwealth may later move to amend the Bills of Information, but if the Commonwealth has failed to prove the charges as identified in the Bills by the end of the trial, then the court should find insufficient evidence to convict a defendant. In this case, the original Bills of Information listed only the co-worker who he did not really threaten as the victim. Instead, the defendant had made a number of threatening remarks about other co-workers to that co-worker. Realizing this error, the Commonwealth moved to amend the Bills of Information on the day of the bench trial.

The defense attorney objected to the Commonwealth’s motion to amend the Bills, but the trial court permitted the amendment. The defendant then proceeded by way of bench trial and was found guilty of one count of Terroristic Threats. He was subsequently sentenced to three years of reporting probation, and he appealed to the Pennsylvania Superior Court.

The Superior Court Appeal

On appeal, the Superior Court affirmed the conviction. The defendant raised the issue of whether the trial court improperly permitted the Commonwealth to amend the Bills of Information on the day of trial, but the Superior Court rejected this argument.

First, the Court reasoned that the majority of the defendant’s argument had been waived by the defendant’s failure to make specific objections on the day of trial and by the defense attorney’s sloppy drafting of the Statement of Errors. Further, the Court concluded that even if the arguments were not waived, they should be rejected.

The Court reasoned that under Pa.R.Crim.P. 564:

The court may allow an information to be amended, provided that the information as amended does not charge offenses arising from a different set of events and that the amended charges are not so materially different from the original charge that the defendant would be unfairly prejudiced. Upon amendment, the court may grant such postponement of trial or other relief as is necessary in the interests of justice.

The purpose of the rule is to make sure that the defendant knows what he is charged with and does not have to devise a new defense on the day of trial. In deciding whether to grant an amendment, a court should consider the following factors as to whether the defendant was prejudiced:

Whether the amendment changes the factual scenario,
Whether new facts, previously unknown to the defendant were added,
Whether the description of the charges changed,
Whether the amendment necessitated a change in defense strategy,
And whether the timing of the request for the amendment allowed for ample notice and preparation by the defendant.

Here, the Court court concluded that the defendant failed to show any prejudice which would have justified denying the motion to amend the Bills of Information. The alleged victims were clearly identified at the preliminary hearing and in the pre-trial discovery provided by the Commonwealth, and the complaint also put the defendant on notice of the threats with which he was charged. Therefore, amending the bills to add the additional co-workers did not prejudice the defendant as he already knew what he was charged with doing. The Court denied the appeal, and it found sufficient evidence to uphold the defendant’s conviction for Terroristic Threats.

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 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.