Philadelphia Criminal Defense Blog

Zak Goldstein 12/29/20 Zak Goldstein 12/29/20

PA Superior Court: Commonwealth Must Create Record of Preliminary Hearing to Survive Motion to Quash

The Pennsylvania Superior Court has decided the case of Commonwealth v. Lambert, holding that the Commonwealth bears the burden of ensuring that a recording or transcript is created at the preliminary hearing. If the Commonwealth fails to do so, then an entire case could be dismissed pursuant to a defendant’s motion to quash (also called a petition for writ of habeas corpus in most suburban counties).

This case should affect the manner in which magisterial district courts conduct preliminary hearings. Currently, many of them, including courts in Montgomery County and Delaware County, do not provide court reporters or make recordings of the proceedings. Instead, they require the defense to bring a court reporter to the hearing at the defendant’s expense. With the Superior Court’s decision in this case, however, it is now clear that the Commonwealth has an obligation to make a recording of the proceedings so that a defendant may challenge whether the prosecution successfully established a prima facie case in the Court of Common Pleas.

The Facts of Lambert

In Lambert, the defendant was charged in Butler County with Aggravated Assault, Harassment, and Recklessly Endangering Another Person. Middlesex Township Police had responded to a report of a domestic disturbance at the defendant’s residence. When they arrived, her son was waiting outside of the house. He told the responding officers that he and the defendant had engaged in a verbal argument. She then picked up a gun, pointed it at him, and threatened to shoot him. The son told the officer this versions of events both verbally and in a written statement, leading to the criminal charges.

The son, however, did not appear for the preliminary hearing. Instead, relying on the now-overruled cases of Commonwealth v. McCllelland and Commonwealth v. Ricker, the magistrate permitted the police officer to testify about what the complainant told him. This is classic hearsay, and it is now clear that a preliminary hearing may not be based entirely on hearsay. Neither party brought a court reporter to the preliminary hearing, so the court did not make any record of the proceedings. Nonetheless, the magistrate held the entire case for court, and the case went to the Court of Common Pleas.

The Motion to Quash

The defendant then filed a motion to quash (petition for writ of habeas corpus) in the Court of Common Pleas, arguing that the Commonwealth had failed to prove its case because it had only presented hearsay at the preliminary hearing. The Commonwealth summarized the proceedings from the preliminary hearing for the trial judge, but the Commonwealth had no transcript to give to the court because it had not recorded the proceedings in the district court and the district court did not provide a court reporter. Accordingly, the trial judge granted the writ of habeas corpus and dismissed the charges. The Commonwealth appealed.

The Superior Court’s Decision

On appeal, the Commonwealth argued that it had no obligation to make a record of the proceedings at a preliminary hearing. It argued that it had presented sufficient evidence, the defendant had the obligation to record the proceedings because the motion was made by the defendant, and the magisterial district justice’s decision was evidence that a prima facie case had been established.

The Superior Court rejected this argument and affirmed the decision of the trial judge. The Superior Court reasoned that the Commonwealth bears the burden at a hearing on a motion to quash of proving that it in fact established a prima facie case at the preliminary hearing that the defendant committed the crimes charged. Because the Commonwealth could not provide any record of the preliminary hearing and did not present any new evidence at the evidentiary hearing in the Court of Common Pleas, the Commonwealth failed to meet its burden. Therefore, the Superior Court agreed that the trial court properly dismissed the charges.

This is an important case, and it continues the recent trend by Pennsylvania appellate courts of re-establishing that preliminary hearings are important and that many of the rules of procedure and evidence apply during a preliminary hearing. The preliminary hearing is a key safeguard in making sure that innocent people do not remain in jail for months or years waiting for trial and in establishing that a defendant should have to go to trial in the first place. Recent decisions had undermined the protections offered by the preliminary hearing. But following this decision, it is now clear both that the Commonwealth may not rely on hearsay alone at a preliminary hearing and that the Commonwealth must create a record of the proceedings. If it does not, then either the case will be dismissed in the trial court or the Commonwealth will have to put on a second preliminary hearing.

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Zak Goldstein 10/22/20 Zak Goldstein 10/22/20

PA Superior Court: NJ Aggravated Assault Conviction Not a Prior "Strike"

The Pennsylvania Superior Court has decided the case of Commonwealth v. Johnson, holding that a defendant’s conviction for third-degree aggravated assault in New Jersey does not qualify as a prior “strike” offense under 42 Pa. C.S.A. § 9714. This decision is significant for people who have convictions in other states because it requires a trial judge to analyze said conviction to determine whether it qualifies as a strike offense in Pennsylvania. As this decision shows, “strike” offenses are very serious and can result in lengthy mandatory minimum sentences at sentencing for subsequent offenses.

Commonwealth v. Johnson

In 2018, the complainant was working as a cashier at a convenience store in Chester County, Pennsylvania. At about 7:45 p.m., a customer approached the counter with a bag of chips. The complainant asked for twenty-five cents to which the man then proceeded to drop the chips and pull a gun on him. The complainant told him not to “play” unless he wanted to go to jail and advised him that there were cameras in the store. The man then left the store with the chips and the complainant followed him demanding payment. The man then re-entered the store, put the chips back on the counter, and told the complainant that he made a mistake and did not want the chips. The man then left the store.

The complainant did not immediately report the robbery. The following day when his manager came into the store, the complainant told him what happened. The two men then viewed the security camera video and saved the video footage of the robbery. Later that day, the man who committed the robbery entered the store. The cashier recognized this man as the robber from the night before. Upon seeing the complainant, the man abruptly left the store. The complainant reviewed the footage and confirmed it was the person who robbed him the night before and called the police.

About five minutes later, an officer with the Chester Police Department arrived at the convenience store. The officer reviewed the footage and sent out a “flash” including a description of the individual and what he was wearing. The officer then left the store and began to search for the suspect himself. About fifteen minutes after he left the store, he came across the defendant. The officer detained the defendant and the complainant made an identification of him. The defendant was subsequently arrested and charged with robbery and possessing an instrument of crime (“PIC”).

The defendant proceeded by way of a jury trial where he was convicted of both charges. He was then sentenced to a term of ten to twenty years of imprisonment. The reason he received that sentence was because the trial court determined that this was a “second strike offense” based on his prior New Jersey conviction for aggravated assault graded as an indictable offense (felony) of the third-degree. Afterwards, the defendant filed a timely appeal raising multiple issues. For purposes of this blog, only his sentencing issue will be addressed.

What is Pennsylvania’s Strike Statute?

42 Pa. C.S.A. § 9714 is the statute that governs second and third strike offenses. It states:

(a) Mandatory sentence.--
(1) Any person who is convicted in any court of this Commonwealth of a crime of violence shall, if at the time of the commission of the current offense the person had previously been convicted of a crime of violence, be sentenced to a minimum sentence of at least ten years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. Upon a second conviction for a crime of violence, the court shall give the person oral and written notice of the penalties under this section for a third conviction for a crime of violence. Failure to provide such notice shall not render the offender ineligible to be sentenced under paragraph (2).
(2) Where the person had at the time of the commission of the current offense previously been convicted of two or more such crimes of violence arising from separate criminal transactions, the person shall be sentenced to a minimum sentence of at least 25 years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. Proof that the offender received notice of or otherwise knew or should have known of the penalties under this paragraph shall not be required. Upon conviction for a third or subsequent crime of violence the court may, if it determines that 25 years of total confinement is insufficient to protect the public safety, sentence the offender to life imprisonment without parole.

42 Pa. C.S.A. § 9714(g) also lists the offenses that qualify as a “strike” offense. It should be noted that not every crime of violence qualifies as a strike offense. For example, only two of the nine subsections of Pennsylvania’s aggravated assault statute qualify as a “strike” offense. Thus, it can be inferred that these mandatory minimum sentences are only reserved for the most serious crimes.

The Superior Court’s Decision

The Pennsylvania Superior Court remanded the defendant’s case for a new sentencing hearing. In making its decision, the Court analyzed New Jersey’s aggravated assault statute. New Jersey defines third-degree aggravated assault as when a person “[a]ttempts to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury. The New Jersey Code of Criminal Justice defines “significant bodily injury” as: “bodily injury which creates a temporary loss of function of any bodily member or organ or temporary loss of any of the five senses.” This is different from Pennsylvania’s aggravated assault statute which requires “serious bodily injury” which is defined as “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

This distinction proved to be important for the Pennsylvania Superior Court. It found that the defendant’s New Jersey conviction was not serious enough to warrant a classification as a prior “strike” offense. Therefore, the statutes were not equivalent, and a conviction under the statute did not constitute an equivalent offense. Therefore, the defendant did not qualify for an enhanced sentence under 42 Pa. C.S.A. § 9714. As such, the Superior Court vacated his sentence, and his case will be remanded for re-sentencing.

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Zak Goldstein 9/12/20 Zak Goldstein 9/12/20

PA Superior Court: You Can't Suppress an Assault Even If Police Entered Your House Illegally

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Superior Court has decided the case of Commonwealth v. Schneider, holding that a defendant cannot suppress testimony regarding his assault on officers even if he can prove that the police illegally entered his home prior to the assault taking place inside the home. Although the physical contraband that police found as a result of the illegal search should have been suppressed, the court ruled that the police could still testify regarding the defendant’s physical actions despite the illegal entry.

Commonwealth v. Schneider

A Crisis Unit worker spoke with a local police officer and expressed an interest in having the officer accompany him to conduct a mental welfare check on the defendant. The worker wanted the officer to accompany him for the check out of safety concerns. According to the Crisis Unit worker, the defendant said that he believed that he was Jesus Christ, Thor, and Jim Carrey. It is worth noting, that at the time of the request, there were no allegations that the defendant was armed; was in danger of harming himself or others; was malnourished or lacked utilities. The police officer and the Crisis Unit Officer arrived at the defendant’s home, and the police officer knocked on the defendant’s door. The defendant answered and at first, the interaction was fine. However, the defendant then told the officer to take off his “peashooter” because guns kill people. The defendant then tried to close his door, but the officer placed his foot in the doorway to prevent the defendant from closing it, and the officer then went into the defendant’s home.

The officer then had the defendant sit in a chair. The defendant began to chant incoherent things, and his eyes blinked rapidly. Then, unprovoked, the defendant struck the officer. Eventually, the officer and the defendant began to struggle. The officer called for backup, and the police tasered and pepper sprayed the defendant. After several minutes, the police put the defendant in handcuffs and then escorted him into a police vehicle. After the police arrested the defendant and removed him from his home, an officer re-entered the house and saw marijuana and a pipe in plain view. Prosecutors charged the defendant with aggravated assault, simple assault, resisting arrest, possession of a controlled substance, and possession of drug paraphernalia.

Prior to his trial, the defendant filed a motion to suppress the drugs, paraphernalia, and the officers’ testimony about his alleged actions when the police entered his home. The defendant argued that the police had illegally entered his house without a warrant, and therefore all of the evidence against him was the fruit of unconstitutional action by the police and should be suppressed. At the suppression hearing, the officers testified to the above assertions. Additionally, the officer testified that he believed the defendant was a threat to himself and others.

At the conclusion of the hearing, the trial court denied the defendant’s motion to suppress. The trial court stated that because the officer reasonably believed that the defendant needed mental health assistance, the warrantless entry of his home was justified under the Community Caretaking Doctrine. The defendant then proceeded to a jury trial where he was convicted of the above charges and sentenced to five years’ probation. The defendant then filed a timely appeal. The defendant raised several issues on appeal, but for purposes of this blog only the issue of whether his motion to suppress was wrongly decided will be addressed.

What is the Community Caretaking Doctrine?

The Community Caretaking Doctrine is an exception to the Fourth Amendment’s warrant requirement. This doctrine permits a warrantless entry into someone’s home if the purpose of the officer’s entry was to render aid or assistance, rather than the investigation of criminal activity. In order for a seizure to be justified under this exception, the officer must be able to point to specific, objective, and articulable facts which would reasonably suggest to an experience officer that assistance was needed. Additionally, the police action must be independent from the detection, investigation, and acquisition of criminal evidence. Finally, the action taken by police must be tailored to rendering assistance or mitigating the peril. Once assistance has been provided or the peril mitigated, then further police action will be evaluated under traditional Fourth Amendment jurisprudence.

The Superior Court’s Decision

The Superior Court reversed the trial court’s decision denying the defendant’s motion to suppress and ordered that he receive a new trial. The Superior Court found that prior to entering the defendant’s home, there was not sufficient evidence for the officer to reasonably believe that the defendant required immediate assistance. The defendant’s odd behavior was not enough to justify a warrantless entry into his home. Further, the Superior Court emphasized that none of the defendant’s actions were threatening, combative, or violent prior to the officer entering his home. Additionally, there was no evidence that the defendant had a weapon, was malnourished, and did not look like he was hurt or intended to hurt anyone. In other words, there was no evidence to suggest that the defendant needed any form of assistance.

The Superior Court opined that the officer entered the defendant’s home to conduct additional investigation of the defendant’s mental health. This is not constitutionally permissible. According to the Superior Court, an officer cannot enter an individual’s home without a warrant to investigate if that person needs assistance. At the same time, however, the Superior Court ruled that the assault could not be suppressed. In other words, the physical evidence and contraband was suppressed because the officers should not have been in the home. But the assault on the officers itself could not be suppressed regardless of the fact that the police entered the home illegally. Nonetheless, the testimony regarding the contraband could have contributed to the jury convicting the defendant of the assault-related charges, and so the defendant will receive a new trial on all of the charges without the suppressed evidence.

This opinion is good and bad for privacy rights; it is good in that the court continued to enforce limits on the ability of police to enter a private home without a warrant, but it is bad in that the court still allowed prosecutors to proceed on resisting arrest and assault charges that stemmed from the officers’ decision to illegally invade the defendant’s home without a search warrant or arrest warrant.

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Zak Goldstein 8/13/20 Zak Goldstein 8/13/20

PA Supreme Court: Commonwealth Bears Burden of Disproving Claim of Self-Defense in Gun Case

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Lineman, reaffirming its decision in Commonwealth v. Torres. The Supreme Court again held that if a criminal defendant properly raises the issue of self-defense, the Commonwealth has the burden of disproving that claim beyond a reasonable doubt. Further, it is not adequate for the fact-finder to merely disbelieve the defendant’s evidence of self-defense. The Commonwealth must produce actual evidence to counter a defendant’s self-defense claim. The Lineman decision is significant because it applies the logic of Torres to a possessory offense rather than just a crime of violence.

Commonwealth v. Lineman

A Philadelphia Police officer was on routine patrol when he received a radio call indicating that a male was screaming for assistance. The officer arrived on scene and observed the defendant and another male struggling on the ground. The defendant was lying on the ground with the other male on top of him. The officer ordered the male to get off the defendant. As the defendant began to stand he heard the sound of metal scraping the ground. The officer then looked at the defendant’s hand and saw that he was holding an Uzi. According to the officer, the defendant appeared to be under the influence of a controlled substance and was bleeding. The defendant was subsequently arrested for Violation of the Uniform Firearm Act § 6105 (“VUFA 6105”), Persons Prohibited from Possessing a Firearm.

The defendant elected to proceed by way of bench trial. At his trial, he testified in his own defense. Specifically, he testified that he and the other male had been drinking. Eventually, the other male became violent towards him and hit him in the face with the gun, which broke the defendant’s nose. The two then began to wrestle for the gun. The officer arrived while they were wrestling and this is what caused the fight to end. During closing arguments, defense counsel argued that the defendant was entitled to an acquittal because he raised the issue of self-defense and the Commonwealth did not present any evidence to rebut this claim as required by the case of Commonwealth v. Torres.

The trial court disagreed. The trial court stated that because this was a possessory offense, he could not raise a self-defense argument. The trial court did state that the defendant could raise a duress defense, but because he did not believe the defendant’s story it was not applicable to him. As such, he found the defendant guilty and sentenced him to three to seven years’ incarceration. The defendant then filed a timely appeal.

The Superior Court affirmed the trial court’s decision. In its decision, the Superior Court found that because the defendant was still in possession of the firearm after the police officer broke up the fight, this was sufficient to convict him of the charge of VUFA 6105. Undeterred, the defendant then filed a petition for allowance of appeal with the Pennsylvania Supreme Court. The Pennsylvania Supreme Court agreed to hear the case.

Which side has to prove self-defense in Pennsylvania?

Commonwealth v. Torres is a Pennsylvania Supreme Court decision that was decided in 2001. The basic facts of the case were that the police arrived at a house in Philadelphia, PA after they received a radio call. When the police arrived on scene, they met with the complainant who said that the defendant had hit him in the head with a wrench. The defendant was about a half block away from the scene when the police arrived. While investigating the scene, the police were unable to locate a wrench. The defendant was then subsequently arrested and charged with simple assault.

The complainant never appeared to court. Nonetheless, the Commonwealth still elected to prosecute the case against the defendant by calling the police officers who arrived on scene. The officers testified that the complainant said the defendant hit him with a wrench. In response, the defendant testified on his own behalf and stated that he was acting in self-defense. At the conclusion of the trial, the trial court stated he disbelieved the defendant and found him guilty. The defendant then filed an appeal to the Pennsylvania Superior Court which affirmed his conviction. He then filed a petition for allowance of appeal to the Pennsylvania Supreme Court which agreed to hear the case.

The Pennsylvania Supreme Court reversed the lower courts’ decisions and vacated the defendant’s conviction. The Court stated that when a defendant raises the issue of self-defense, the Commonwealth bears the burden to disprove that claim beyond a reasonable doubt. According to the Court, the Commonwealth must produce some evidence to dispute this claim. Further, the Court specifically stated that it is not sufficient for the trial court to not believe the defendant. Therefore, because there was no evidence on the record to contradict the defendant’s claim that he was acting in self-defense, the defendant’s conviction could not stand and thus was vacated. It is important to note that the defendant in Torres was not charged with a possessory offense (i.e. possessing a gun).

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court issued a slip opinion decision vacating the defendant’s conviction. In its opinion, the Pennsylvania Supreme Court specifically cited Commonwealth v. Torres as the reason why it was reversing the lower courts’ decisions. The Court did not provide any additional justification for its decision. Nonetheless, it is undisputed that the Court has now expanded Torres to include possessory offenses as well. As a matter of common sense, this decision makes sense. If someone is in danger and uses a weapon to protect themselves in self-defense, they should also be able to avoid a conviction for the possession of said weapon. Regardless of the logic of the decision, this decision is obviously favorable to the defendant because his conviction is now vacated, and he will be released from prison.

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Philadelphia Criminal Defense Lawyers Zak Goldstein and Demetra Mehta