Philadelphia Criminal Defense Blog

Zak Goldstein 10/4/20 Zak Goldstein 10/4/20

PA Superior Court: Police Can Stop You If You Don't Use Turn Signal To Switch Lanes

The Superior Court has decided the case of Commonwealth v. Gurung, holding that the police may legally stop you if you fail to use your turn signal when you switch lanes. This case is another example of how police can stop you while driving for an assortment of reasons. Therefore, individuals should take great caution while driving because even the slightest slip up can result in you being arrested and facing criminal charges.

Commonwealth v. Gurung

The Pennsylvania State Police (“PSP”) barracks located in Erie, Pennsylvania received a phone call from a local casino stating that the defendant and two others were heavily intoxicated and had just recently left their premises. The caller gave a description of the defendant’s vehicle to the police. A short time later, a PSP trooper spotted the defendant’s vehicle and followed it on Interstate 90. The trooper stated that he saw the defendant fail to activate his turn signal when changing lanes and moving onto an off-ramp. He also said that the defendant moved from the left lane to the right lane without a turn signal and then moved from the center lane to the right lane without using his turn signal. Notably, the defendant never drove in an unsafe manner.

The trooper then stopped the defendant’s car. It was unclear if he performed any field sobriety tests on the defendant. Nonetheless, the defendant ended up charged with DUI along with the summary offenses of Turning Movements and Required Signals, Careless Driving, and Unlawful Activities. The defendant then filed a motion to suppress. At the suppression hearing, the above facts were established by the Commonwealth. Additionally, the trooper testified that he believed he had probable cause to stop the defendant because he did not use his turn signal when he changed lanes. He further testified that he believed the defendant’s failure to use his turn signal while changing lanes violated 75 Pa. C.S.A. § 3334. The trooper further testified that his failure to use his turn signal while switching lanes was the only reason why he stopped the defendant.

At the conclusion of the hearing, the defendant argued that the language of § 3334 does not require drivers to activate a turn signal when changing lanes of traffic. Specifically, the defendant argued that § 3334(b) was the controlling subsection which omits any requirement to use a turn signal when switching lanes. The suppression court agreed and found that the Commonwealth failed to establish that the trooper had probable cause to stop the defendant and thus granted his motion to suppress. The Commonwealth then filed a timely appeal.

Can the Police Stop You Just For Failing to Signal in PA?

§ 3334 provides:

(a) General rule.--Upon a roadway no person shall turn a vehicle or move from one traffic lane to another or enter the traffic stream from a parked position unless and until the movement can be made with reasonable safety nor without giving an appropriate signal in the manner provided in this section.

(b) Signals on turning and starting.--At speeds of less than 35 miles per hour, an appropriate signal of intention to turn right or left shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning. The signal shall be given during not less than the last 300 feet at speeds in excess of 35 miles per hour. The signal shall also be given prior to entry of the vehicle into the traffic stream from a parked position.

(c) Limitations on use of certain signals.--The signals required on vehicles by section 3335(b) (relating to signals by hand and arm or signal lamps) shall not be flashed on one side only on a disabled vehicle, flashed as a courtesy or “do pass” signal to operators of other vehicles approaching from the rear, nor be flashed on one side only of a parked vehicle except as may be necessary for compliance with this section.

(d) Discontinuing turn signals.--Turn signals shall be discontinued immediately after completing the turn or movement from one traffic lane to another traffic lane.

The Superior Court’s Decision

The Superior Court reversed the lower court’s order granting the motion to suppress. In making its decision, the Superior Court reviewed the language of § 3334. The Superior Court found that the plain language of § 3334(a) provides that “no person shall…move from one traffic lane to another…unless and until the movement can be made with reasonable safety nor without giving an appropriate signal in the manner provided in this section.” As stated above, the defendant argued that § 3334(b) was the controlling subsection. However, the Superior Court rejected this argument because if they adopted his position it would “read[] the phrase ‘move from one traffic lane to another’ out of subsection 3334(a). That we cannot do.” Specifically, the Superior Court stated that you must read the entire statute together and not just focus on one specific subsection. Consequently, the order granting the defendant’s motion to suppress is reversed and the Commonwealth will be able to use whatever evidence that was suppressed by the lower court against him at trial.

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Zak Goldstein 9/1/20 Zak Goldstein 9/1/20

PA Superior Court: Police Emergency Lights Mean Stop Under 4th Amendment

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The Pennsylvania Superior Court has decided the case of Commonwealth v. Wilson, holding that a defendant is stopped for purposes of the Fourth Amendment if the police activate their overhead lights. This decision is significant because it recognizes the common-sense principle that most people would not feel free to leave/continue driving once an officer activates his or her lights. Therefore, the police must have probable cause or at least reasonable suspicion before they activate lights and sirens in an attempt to stop a person.

Commonwealth v. Wilson

A Pennsylvania State Trooper was driving on I-83 when he noticed a white Ford pickup truck with a Maryland registration in front of him. The truck, which was being operated by the defendant, was going less than 60 miles per hour, but above the posted speed limit of 55 miles per hour. The defendant was in the left lane. The trooper then positioned himself behind the defendant. The defendant was “barely” passing traffic, but he was still traveling faster than the vehicles in the right lane.

The Trooper then “chirped” his siren to indicate his desire for the defendant to go to the right lane because he felt that the defendant was not driving fast enough. The defendant did not pick up on this cue, and he continued to drive in the left lane. The trooper then activated his lights and turned on his siren. The trooper did this because he was trying to get past the defendant so he could get back to his station. In response to this, the defendant pulled over to the left side of the highway. According to the trooper, the defendant could have pulled over to the right lane and his failure to do so violated the law.

The trooper then candidly admitted that he experienced an episode of road rage against the defendant. He began to yell and swear at him. As he was yelling at the defendant, the trooper supposedly detected the odor of marijuana. He then instructed the defendant to perform field sobriety tests, but the defendant was not able to perform some of them due to his bad hip. He failed those that he was able to try to perform. The defendant was then placed under arrest for DUI. He was then given a blood test which indicated that he had marijuana and oxycodone in his system.

The defendant then filed a motion to suppress. At the hearing, the trooper testified to the above facts, and the trial court denied the suppression motion. The trial court stated that because the defendant did not comply with the trooper’s initial “chirp,” the trooper had probable cause to stop the defendant. After his motion was denied, the defendant proceeded by a stipulated bench trial where he was found guilty and sentenced to the mandatory minimum sentence. The defendant then filed a timely appeal arguing that the trooper lacked reasonable suspicion or probable cause to stop him. Therefore, he was illegally seized and his motion to suppress should have been granted.

Is Every Interaction with a Police Officer a Seizure?

No, for purposes of Fourth Amendment law, not every interaction with a police officer is considered a seizure. There are three types of police interactions: mere encounters, investigative detentions, and arrests. Prosecutors frequently argue that every interaction is a mere encounter so that a defendant cannot claim that his constitutional rights were violated. The crucial factor in determining whether a mere encounter has evolved into an investigatory detention (or an arrest) is whether the individual would have reasonably felt free to terminate the interaction between himself and the police. In other words, if a reasonable person would not have felt free to end the encounter, then it is not a mere encounter. The reason this is significant is because the police need reasonable articulable suspicion that a defendant is engaged in criminal activity before they can stop him for an investigatory detention or probable cause if they wish to arrest him.

As such, when a defense attorney litigates a motion to suppress, they are often trying to elicit facts to suggest that a reasonable person would not have felt free to leave. This may involve soliciting facts such as: the placement of the officers, what they were wearing, whether their weapons were visible, how many officers were involved, the tone of questioning, whether they touched the defendant, whether he was in handcuffs, etc. At the conclusion of the hearing, the defense attorney will then argue that based on the facts of the particular case this was not a mere encounter, but rather an investigatory detention and/or arrest and therefore the police needed reasonable suspicion/probable cause to stop him in the first place.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the lower court and held that the trial court should have granted the defendant’s motion to suppress. The Superior Court held that when the trooper activated his lights, this constituted a seizure for purposes of the Fourth Amendment. The Court went on to say that a reasonable person would not feel free to leave or in this case keep driving once an officer activated their overhead lights. Further, the Superior Court held that the Trooper had no reasonable suspicion to stop the defendant. The trooper testified that he pulled the defendant over so he could get by the defendant to return to his station. The trooper had not pulled the defendant over to investigate a crime or motor vehicle code violation. Consequently, the court vacated the defendant’s conviction for DUI and ruled that the trial court could not admit the majority of the evidence against him as almost all of it occurred after the trooper illegally stopped him.

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Zak Goldstein 8/2/20 Zak Goldstein 8/2/20

PA Superior Court: Commonwealth Cannot Introduce DUI Blood Test Results Without Witness Who Actually Drew Blood

Philadelphia Criminal Defense Lawyer Zak goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Hajdarevic, holding that the Commonwealth may not introduce blood test results in a DUI case without calling as a witness the person who actually drew the defendant’s blood. In this case, the Commonwealth had tried to rely solely on an expert witness who had analyzed the results of the blood draw without ever presenting testimony to establish the chain of custody for the testing. The Superior Court rejected the Commonwealth’s position, finding that the evidence had been improperly admitted in violation of the defendant’s confrontation clause rights. This is an important case because it properly prevents the Commonwealth from taking short cuts to try to railroad defendants in DUI cases.

Commonwealth v. Hajdarevic

A Pennsylvania State Police (“PSP”) trooper was on duty in 2017. While driving his marked police car in Shippensburg, PA, the trooper noticed a passing vehicle fail to deactivate its high beams. The trooper subsequently initiated a traffic stop at approximately 12:23 AM. The defendant was the sole occupant of the vehicle. The defendant told the trooper that he was coming from a friend’s house where he had consumed several beers. While speaking to the defendant, the trooper noticed a “moderate odor of alcoholic beverage” and stated that the defendant had bloodshot and glossy eyes.

Shortly after this conversation, the trooper asked the defendant to exit the vehicle. The defendant was then asked to perform some field sobriety tests, but because the defendant had back problems, he only performed the Horizontal Gaze Nystagmus test. Presumably, the defendant failed this test, and he was subsequently placed under arrest. The defendant was then taken to Chambersburg Hospital for a blood draw. A technician drew the defendant’s blood at the hospital. They generated a report that showed that they took the defendant’s blood at 12:58 AM. The report showed that the defendant’s BAC was above the legal limit.

Prosecutors charged the defendant with DUI, and he elected to proceed by way of bench trial. The Commonwealth presented the above facts at trial. However, it should be noted that the actual technician who drew his blood did not testify at the defendant’s DUI trial. Further, the technician who testified at this trial did not actually witness the blood draw of the defendant. At the conclusion of the trial, the defendant was found guilty of DUI. The defendant was sentenced to 6 months’ intermediate punishment, which included incarceration for 48 hours and 30 days of electronic and alcoholic monitoring. The defendant then filed timely post-sentence motions, which the trial court also denied. The defendant then filed a timely appeal. On appeal, the defendant raised several issues. For purposes of this blog, only the issue of whether his confrontation rights were violated when the Commonwealth did not call a witness who observed his blood being drawn will be addressed.

What is the Confrontation Clause?

The Sixth Amendment to the United States provides a criminal defendant with the right “to be confronted with the witnesses against him.” Specifically, the Supreme Court of the United States has held that the Confrontation Clause protects a criminal defendant’s right to confront witnesses bearing testimony against him or her. Article 1, Section 9 of the Pennsylvania Constitution also provides this right to criminal defendants.

The issue that has been heavily litigated throughout the years is what constitutes “testimony.” The United States Supreme Court has also ruled on this issue. And although there is not a clear definition of what testimonial means for purposes of the clause, courts have found that words can be “testimonial” if they are going to be used in a prosecution against a defendant. For example, if a complainant gives a statement to a detective about an alleged assault, that would be considered testimonial. However, if statements are introduced that were made during the course of an emergency, then they may not be testimonial. For example, 911 calls that deal with an ongoing emergency are often not considered testimonial and therefore may be admissible even without the live testimony of the person who made the call. For example, if someone were to call 9-1-1 to state that an individual was running down a street shooting at people, that statement could potentially be introduced at trial without the witness who uttered it because it had to do with an active emergency and therefore was not testimonial.

It should also be noted that the United States Supreme Court has specifically held that forensic analyses are usually testimonial, and thus a defendant has a right to cross-examine those who performed these analyses. In other words, it is not sufficient for a prosecutor to merely introduce a technician’s report or an expert report into evidence. Further, the United States Supreme Court has also held that prosecutors cannot call surrogate witnesses to testify at trial. In order to comply with a defendant’s right to confrontation, the prosecutor must call the actual technician who performed the test.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court held that the defendant’s confrontation rights were violated when the Commonwealth failed to call any witnesses who actually observed the defendant’s blood draw. The Superior Court first had to determine whether the time of the defendant’s blood draw was a “testimonial factual statement.” The Superior Court held that it was because “[t]he plain language of the [DUI statute] here reveals that the time of the blood draw is an element that must be proven by the Commonwealth beyond a reasonable doubt. In the instant case, the time of the defendant’s blood draw was only introduced into evidence by the technician who testified at his trial. As such, because the Commonwealth failed to call the technician who actually drew the defendant’s blood (or anyone else who witnessed it), his right to confrontation was violated. Therefore, because of this violation, the defendant’s conviction was vacated, and he will receive a new trial.

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Zak Goldstein 5/25/20 Zak Goldstein 5/25/20

PA Superior Court: ARD Does Not Count as Prior Offense for DUI Sentencing

Philadelphia Criminal Lawyer Zak Goldstein

The Superior Court has decided the case of Commonwealth v. Chichkin, holding that a defendant’s prior acceptance of an accelerated rehabilitative disposition (“ARD”) does not qualify as a prior conviction for purposes of the DUI sentencing statute. This decision is a huge win for DUI defendants because many people will no longer be exposed to longer mandatory minimum sentences for a second DUI arrest if the prior arrest was resolved with the ARD program. It also fully recognizes that ARD does not count as a conviction or admission of guilt for any purposes.

Commonwealth v. Chichkin

The defendant was arrested and charged with Driving Under the Influence for an incident that occurred on December 8, 2017. His case proceeded to trial in the Philadelphia Municipal Court on May 18, 2018, at which time the court found him guilty of two counts of DUI-general impairment under 75 Pa.C.S. § 3802(a)(1). The Municipal Court sentenced him to a term of 30 days to six months’ imprisonment, with two months’ concurrent probation. The 30-day mandatory minimum was imposed under 75 Pa.C.S. § 3804(b)(2)(i) because the defendant had accepted ARD for a prior DUI offense in 2013. If he had not had a prior ARD acceptance, then the mandatory minimum for his DUI sentence would have instead been 48 hours’ incarceration.

The defendant filed a timely motion for reconsideration seeking to “bar consideration of [his] prior ARD acceptance for sentencing purposes because the statutory framework violates several provisions of the United States and Pennsylvania Constitutions.” The court granted reconsideration and vacated the defendant’s sentence. However, following a hearing on the post-sentence motion, the Municipal Court denied reconsideration and reinstated the original sentence. The defendant filed a timely petition for writ of certiorari in the Court of Common Pleas. The trial court denied the writ but stayed the defendant’s sentence pending appeal. The defendant then filed a timely appeal to the Pennsylvania Superior Court.

Why Does it Matter if I Have a Prior Conviction for DUI?

The reason it matters is because if you have a prior DUI, then you will be subjected to an enhanced mandatory minimum if you are convicted of a subsequent DUI. 75 Pa.C.S. § 3804 lists the criminal penalties for a defendant after a conviction for DUI. These penalties can be quite harsh, especially considering that these are mandatory sentences and therefore the judge has no discretion in the imposition of the sentence.

For example, let’s assume a defendant is convicted of DUI while under the influence of controlled substances and this is his first DWI conviction. Because it is the defendant’s first conviction, the mandatory minimum for a first offense involving a controlled substance is three days’ incarceration. However, let’s assume that this defendant actually had a prior conviction for drunk driving and then is found guilty of DWI while under the influence of controlled substances. The mandatory minimum for this offense is now 90 days’ incarceration. This means that the defendant’s prior record can have a dramatic effect on his or her sentence.

Why Would ARD Count as a Prior Conviction?

Under the language of the statute, entry into the ARD program should count as a prior conviction. 75 Pa.C.S. § 3806 defines what constitutes a prior conviction for the DUI statute. According to 75 Pa.C.S. § 3804, if you previously accepted an ARD offer, the ARD counts as a prior conviction and thus you would be subjected to the enhanced penalties for second time offenders. In the instant case, the defendant was appealing this issue based on his argument that the statute was unconstitutional.

The Superior Court’s Decision

The Superior Court found that it was unconstitutional to count the defendant’s prior ARD as a prior conviction. In reaching its decision, the Pennsylvania Superior Court looked at previous appellate decisions. In its research, the Superior Court found that it was not unconstitutional to give a defendant an enhanced or mandatory sentence based on a prior conviction. However, the Superior Court found that it is unconstitutional to give a defendant an enhanced or mandatory sentence based on a fact that a defendant was not found guilty of beyond a reasonable doubt by a trier of fact (i.e. a jury or a judge).

This scenario used to be common in drug possession cases (for example, selling drugs within a certain distance of a school or based on the weight of a drug). Not too long ago, a defendant could receive an enhanced mandatory minimum sentence because the Commonwealth presented evidence that the defendant had a certain amount of drugs or was within a certain amount of feet near a school. However, Pennsylvania courts found that this was unconstitutional. They held that in order for a defendant to receive this enhanced or mandatory sentence, the trier of fact must specifically find that the defendant committed the conduct which increased the penalty in question beyond a reasonable doubt. It was not sufficient for the Commonwealth to merely present this fact during its case-in-chief or to the judge at sentencing. Instead, the trier of fact had specifically find that the defendant committed this fact beyond a reasonable doubt before a defendant could receive the enhanced sentence.

This resulted in many Pennsylvania mandatory minimum statutes being struck down because they allowed the judge to make findings on mandatory minimum issues at sentencing by a preponderance of the evidence standard instead of requiring that these things be found by a jury beyond a reasonable doubt.

Accordingly, the Superior Court analogized these prior decisions which struck down mandatory minimum sentences in Pennsylvania to the ARD statute, which allowed for a defendant to receive an increased sentence despite no finding of guilt by a jury beyond a reasonable doubt. Therefore, the question was whether a prior ARD qualified as a “fact” or a prior conviction.

After reviewing these prior decisions, the court found that admission into an ARD program could not be considered a prior conviction for any offense other than DUI’s. Further, when the Superior Court analyzed the procedure of accepting an ARD offer, it found that because a defendant does not have to admit his guilt and the Commonwealth is not required to prove the defendant’s culpability beyond a reasonable doubt, a defendant’s prior acceptance of ARD does not qualify as a “prior conviction.” As such, the Superior Court found that 75 Pa.C.S. § 3806 and § 3804 are unconstitutional. The defendant will be re-sentenced as a first-time offender.

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