Philadelphia Criminal Defense Blog

Zak Goldstein 3/2/21 Zak Goldstein 3/2/21

Philadelphia Criminal Defense Lawyer Zak Goldstein Wins Full Dismissal of First Degree Murder Charges

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire, recently won the full dismissal of first-degree murder charges in the case of Commonwealth v. DH. Prosecutors had charged DH with first degree murder, conspiracy, and firearms charges for a shooting incident which occurred in Philadelphia. The incident resulted in the death of one man and injuries to a surviving complainant.

DH retained Attorney Goldstein immediately upon learning that there were charges pending. Attorney Goldstein was able to help DH turn himself in safely and then moved for the charges to be dismissed at the preliminary hearing. At the preliminary hearing, the Commonwealth presented evidence that DH was present while one of his friends got into a physical altercation with the surviving complainant. DH watched the fight, and during the fight, one of the men even dropped a cell phone. DH picked it back up and handed it to him. The fight ended, and the two groups separated.

Video evidence then showed that DH and the two co-defendants both got into the same car and began to drive away. The decedent and the surviving complainant began to walk away on foot. The video then showed the car, which DH was allegedly driving, parking near where the two victims were walking. Video then showed the two co-defendants following closely behind the two victims while DH walked even further behind. At some point, the two victims turned around, began to argue with the two co-defendants, and one of the co-defendants allegedly pulled a gun and began firing. Those shots killed the decedent and injured the surviving complainant. The video showed that the three men then fled the scene.

Prosecutors identified DH from the video evidence and charged him with first degree murder and related charges, arguing that he had conspired with the shooter to commit the murder because they were friends, had driven away in the same car, and had come back to the area together. Attorney Goldstein argued for a full dismissal at the preliminary hearing on the basis of the mere presence doctrine. Mere presence is a defense to a criminal conspiracy charge. Mere presence is the idea that just because someone is present at the scene of the crime or friendly with someone else who commits a crime does not mean that they are responsible for the actions of the other person.

Here, there was no evidence that DH actually knew or in any way encouraged the shooter to commit the homicide. Instead, the evidence showed only that they were friends and that DH was nearby when the co-defendant began shooting. Accordingly, the Municipal Court judge dismissed all charges except the firearms charge. DH was then released on bail. Attorney Goldstein subsequently filed a motion to quash the firearms charge, and the Court of Common Pleas granted that motion. Accordingly, all charges were dismissed, and DH is a free man.

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Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

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 2/8/21 Zak Goldstein 2/8/21

PA Superior Court Overturns PFA Contempt Conviction for Failure to Give Adequate Notice of Allegations in Complaint

The Pennsylvania Superior Court has decided the case of Reitz v. Flower, holding that a defendant may not be convicted of indirect criminal contempt based on conduct that was not specifically charged in the criminal complaint. The holding here should have been obvious - a criminal defense has the right to know what they’re accused of doing so that they can prepare a defense. But courts often allow variances from the allegations in a complaint and uphold convictions anyway. Fortunately, the Superior Court here recognized that the defendant was improperly convicted entirely based on conduct for which he was not actually charged. Therefore, it reversed the conviction.

Reitz v. Flower

The defendant’s ex-wife obtained a protection from abuse (“PFA”) against the defendant. The PFA order prohibited the defendant from contacting his ex-wife directly or indirectly. Additionally, the PFA order prohibited the defendant from possessing any firearms. These restrictions were put in place due to the defendant’s past conduct towards his ex-wife, specifically because of allegations of prior physical abuse and harassment.

After this order was entered, the ex-wife filed a private criminal complaint against the defendant alleging that he violated the PFA order by possessing firearms. She did not make any other allegations against the defendant. Specifically, she alleged that he posted a photo of himself armed at a rally in Harrisburg on Facebook. Consequently, a contempt hearing was scheduled to address this charge.

After this hearing was scheduled, the defendant posted on Facebook that he would not wear a mask when he appeared at his next court date because he believed it was “a form of tyranny.” It should be noted this incident occurred during the global COVID-19 pandemic. Further, the defendant wrote that he was willing to turn the court proceeding into a circus and that the contempt proceeding was “[p]etty nonsense from a vindictive woman with no legal basis.”

During the hearing, the defendant’s Facebook post alleging that his ex-wife’s claim was “petty nonsense” was introduced. Defense counsel objected to it and argued that it was irrelevant and did not relate to her sole allegation of the contempt claim which was his illegal possession of a firearm. The trial court allowed it to be introduced into evidence. At the conclusion of the contempt hearing, the trial court found that the defendant violated the PFA on two occasions. First, he violated it by not turning in his firearms and the second by making contact with his ex-wife through his Facebook post. In regards to the latter, the trial court found that the reason it found him in contempt was because “he called her a vindictive woman and called her PFA contempt petty nonsense with no legal basis.”

At sentencing, the trial court modified its adjudication to reflect a single PFA violation of harassing his ex-wife in the Facebook post. It was determined that the defendant had only been photographed brandishing a replica rifle and not an operable weapon. The trial court then sentenced the defendant to six months’ probation that was to run consecutive to any other sentences that the defendant was currently serving. Further, the PFA was extended by an additional six months. The defendant then filed a timely appeal. On appeal, the defendant argued that the trial court violated his due process rights by finding him in violation of an uncharged offense.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the defendant’s conviction. The Superior Court first cited the United States Constitution which guarantees the accused to the right to be informed of the nature and the cause of the accusations against him. The Superior Court also noted that the Pennsylvania Constitution has similar protections. Specifically, the court held that defendants must have must adequate notice to allow them to prepare any available defenses should he exercise his right to a trial. Further, in a criminal complaint, each charged offense must have a sufficient summary of the facts so the defendant is advised of the nature of the offenses charged against him.

In this case, the Superior Court found that the private criminal complaint only alleged a violation based on the defendant’s illegal possession of a firearm. There was no mention of any allegation that the defendant illegally contacted her. As such, the trial court committed reversible error in convicting the defendant because he did not have proper notice of the charges against him. Therefore, the Superior Court vacated the defendant’s conviction for contempt. However, it stressed that this decision did not bar future prosecution against him for any alleged future violations of the PFA order. This is an important case because it reigns the Commonwealth in in terms of prosecuting criminal defendants for conduct in variance with what they’re charged in the criminal complaint.

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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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