CASE RESULTS – Successful Post-Conviction Relief Act Petition Vacates 30 Year Prison Sentence

Successful Results in PCRA, Aggravated Assault, Burglary, and Theft Cases

Philadelphia Criminal Defense Lawyers Zak T. Goldstein and Demetra Mehta continue to find success in the courtroom. In the last month, our criminal lawyers have obtained successful results in PCRA Petitions and cases involving assault, burglary, drug, and theft charges. If you are facing criminal charges, call 267-225-2545 for a free criminal defense strategy session with one of our defense lawyers.    

Commonwealth v. ZS – Attorney Goldstein recently obtained a new sentencing hearing for a defendant who had been sentenced to 15-30 years in jail for a direct violation of probation. The defendant was on probation for selling drugs when he was arrested and ultimately convicted of robbery. After receiving a sentence of up to 20 years for the robbery case, the probation judge sentenced the defendant to 15-30 years consecutive to the sentence for the robbery charges. This led to an overall sentence which could have kept the defendant in jail for up to 50 years despite his young age at the time of the conviction for the direct violation.

Philadelphia PCRA Lawyer Zak T. Goldstein, Esq.

After reviewing the transcripts from the violation of probation hearing, Attorney Goldstein quickly recognized that significant legal errors had occurred during the probation sentencing to which the original lawyer should have objected. Mr. Goldstein filed a Post-Conviction Relief Act Petition amending the defendant’s initial pro se filings and arguing that the defendant should receive a new probation violation sentencing because defense counsel had been ineffective at the original hearing. Criminal defendants have a constitutional right to the effective assistance of counsel under both the Pennsylvania and United States constitutions, and an ineffective performance by counsel at the trial, appeal, or probation levels can lead to a new trial, appeal, sentencing, or probation hearing. In this case, defense counsel at the original violation hearing failed to object when the probation judge found on the record that the defendant’s expressions of remorse were hollow solely because the defendant refused to waive his right to an in-person probation violation hearing and allow the hearing to be conducted by video from the state prison. Further, defense counsel failed to file a motion to reconsider the sentence or appeal the excessive sentence. Attorney Goldstein argued that defendants have a constitutional right to be present for important hearings in their cases, and courts may not legally punish defendants for exercising those rights. Further, when courts rely on illegal sentencing factors such as the decision to exercise a constitutional right, the defendant is entitled to a new sentencing hearing.

The Commonwealth filed a Motion to Dismiss the PCRA Petition, arguing both that the Petition was untimely because Petitioner did not formally title his pro se petition as a PCRA Petition and that original counsel was not required to object or litigate the issues on appeal in order to be effective. The Court agreed with Attorney Goldstein, denied the prosecution’s Motion to Dismiss, and granted the PCRA Petition. The court ordered that the defendant receive a new sentencing hearing which, due to the passage of time since the original sentence, will occur in front of a different judge from the one who placed the defendant on probation. Although the outcome of the new sentencing is far from guaranteed, the defense will have the opportunity to argue for something less than the original 15-30 year consecutive sentence.    

Commonwealth v. JB – JB was charged with a domestic violence Aggravated Assault for choking his girlfriend. Aggravated Assault is one of the most serious felonies that a defendant can face in Pennsylvania, and if JB had been convicted of Aggravated Assault, he would have almost certainly been facing jail time. Our attorneys were able to negotiate a plea to Simple Assault as a misdemeanor of the second degree for one year of probation. JB will not become a felon as a result of this case, and he is no longer facing a significant jail sentence.   

Commonwealth v. RD – Burglary and Assault Charges dismissed at preliminary hearing.

Commonwealth v. DM – Our attorneys obtained entry into a diversionary program for a client who was charged with underage drinking. If the client completes a class and pays a small fine, the arrest will be expunged and the client will not lose their driver’s license.

Commonwealth v. DB – The client was charged with Aggravated Assault and DUI for nearly running over an acquaintance. Aggravated Assault is a serious felony which often results in jail time. Despite the fact that much of the incident was captured on surveillance video, our attorneys were able to negotiate a deal for simple assault and DUI with no jail time. Instead of facing jail time and a felony conviction, the defendant will spend five days on house arrest and six months on probation and be able to apply for an ignition interlock driver’s license when the new interlock law goes into effect in August.

Commonwealth v. BR – Our attorneys negotiated a fully mitigated sentence of 1.5 – 3 years in jail for a defendant who had pleaded guilty to committing the F1 Robbery and F1 Aggravated Assault of an off duty police officer while on probation.

Commonwealth v. JR – Attorney Goldstein obtained a probationary sentence with drug treatment for a defendant who entered into an open guilty plea to selling drugs while police watched. Although the Pennsylvania sentencing guidelines called for a state prison sentence, Attorney Goldstein convinced the sentencing judge that the defendant should be given a chance at treatment and job training instead of jail time.

Commonwealth v. JB – Obtained a dismissal of Unauthorized Use of Automobile charges prior to trial.

Commonwealth v. WB – Obtained a dismissal of F2 Aggravated Assault charges prior to trial.

Commonwealth v. TR – Defendant was charged with burglary. Attorney Goldstein obtained a dismissal of the burglary charges at the preliminary hearing.

Commonwealth v. IR –The defendant was charged with Theft by Unlawful Taking and Receiving Stolen Property as felonies of the third degree after police arrested him and alleged that he had been the passenger in a stolen car. Attorney Goldstein obtained a full dismissal of the charges following the preliminary hearing. Attorney Goldstein argued that the defendant had not been identified as the driver of the vehicle or done anything else incriminating like running or making any inculpatory statements. Likewise, there was nothing about the car which would indicate to anyone inside of it that it had been stolen. Accordingly, the evidence was insufficient to show that the client knew or should have known that the car was stolen or that the client was the one who stole or ever possessed the car.

Attorney Goldstein Quoted in Creditcards.com Article on Avoiding Credit Card Fraud Accusations

CreditCards.com recently posted an article discussing ways to avoid allegations of credit card fraud when using a romantic partner's credit card with permission. The article includes good advice from Attorney Goldstein on ways you can protect yourself from these kinds of allegations.

An excerpt from the article: 

Fraud Defense Lawyer Zak T. Goldstein, Esq.

How to keep from being charged with credit card fraud
The easiest way to avoid being charged with credit card fraud is to keep your finances simple and separate from anyone else’s, with the exception of a trusted spouse.

If you need to use someone’s credit card, be careful. Goldstein says, “If it’s the occasional small purchase in an ongoing relationship, you probably do not have a lot to worry about.”

For more than occasional use, consider asking the person to add you as an authorized user.

“If you’re going to be making large purchases, it never hurts to document that you have permission upfront,” says Goldstein. “I don’t mean you need a formal, signed contract. You could shoot your girlfriend a text message that you’re about to use the card to purchase the treadmill for $1,000 and make sure it’s OK. Take a screenshot, and save it to a cloud-based email system.”

Written permission is your best protection against misunderstandings and accusations later on.

Click below to read the article:

Can you be charged for unwittingly committing credit card fraud?

PA Superior Court: Police May Not Use Pretext to Stop Defendant One Month After Drug Sales

Superior Court Enforces Limits on Police Stops

The Pennsylvania Superior Court has just held that in the absence of more recent criminal activity, police may not conduct a Terry stop of a defendant for selling drugs one month after the defendant sold the drugs. In Commonwealth v. Parker, police officers in Lancaster County investigated drug sales in June and July of 2014. During that investigation, the defendant, who police knew only by the street name “Heart,” allegedly sold drugs to an undercover police officer. The officers recorded a description of Heart’s appearance and that he walked with a limp, but they did not attempt to stop or arrest him at that time.

In August, one of the officers from the drug surveillance operation saw the defendant near a local McDonald’s. The officer testified that he was 100% sure that the defendant was “Heart,” meaning he was the same person who had sold drugs to the undercover officer. The officer then made the decision to stop the defendant in order to find out his real name. The officer, however, did not observe the defendant doing anything illegal that day.  

Despite the fact that the defendant had not done anything illegal that day, two officers stopped the defendant as he was walking away from the McDonald’s. One of the officers who stopped him told him that there had been a disturbance at the McDonald’s and that he believed the defendant was part of the disturbance. He asked the defendant for his name, date of birth, address, telephone number, and social security number because the defendant did not have identification on him. After the officers confirmed the defendant’s identity, they released him. The officers agreed at the motion to suppress that the only reason they stopped him was to identify him for purposes of their drug investigation, and one of the officers specifically testified that the stop was part of a “ruse.”

Even Identifying Information Can Be Incriminating

Although the information obtained by police during the stop may seem relatively harmless, it turned out to be very incriminating. Police had used the phone number given by the defendant during the stop to set up the narcotics transactions earlier in the summer. Accordingly, despite learning only relatively basic identifying information, the phone number turned out to be very incriminating because it connected the defendant to the drug sales and increased the likelihood that the police were correct in believing him to be "Heart." 

The Motion to Suppress

Eventually, police arrested defendant Parker and charged him with Possession with the Intent to Deliver and Criminal Use of a Communications Facility. Prior to trial, Parker moved to suppress the information obtained by police during the pretextual stop, including the incriminating phone number. Parker’s attorneys argued that the police did not have reasonable suspicion or probable cause to stop Parker on the day of the incident. The trial court denied the motion to suppress. The trial judge found that the police had reasonable suspicion to stop the defendant because they had seen him sell drugs in June and July. The defendant was eventually convicted of drug charges following a jury trial, and he appealed the denial of the motion to suppress.

Types of Police Encounters at Issue on Appeal

On appeal, the Superior Court reversed the trial court’s denial of the motion to suppress. The court noted that there are three types of police encounters. The most restrictive encounter is a “mere encounter.” A mere encounter does not require any level of reasonable suspicion or probable cause because the suspect is not compelled to stop or searched. Thus, if police had merely encountered defendant Parker, then the information they obtained could not be suppressed because police may conduct a mere encounter without any level of suspicion. 

The next level of encounter is an “investigative detention.” An investigative detention, often called a Terry stop, requires police to have reasonable suspicion. Reasonable suspicion means that the police have specific, articulable facts leading the officer to believe that criminal activity is afoot. Here, the Commonwealth certainly argued that police would have had reasonable suspicion from observing the defendant engaged in drug sales earlier in the summer. Parker's attorneys, however, argued that the police did not have reasonable suspicion because the drugs sales did not take place that day. 

Finally, the most restrictive type of seizure, which was not really at issue in this case, is a full-blown arrest. An arrest requires probable cause, which means the officer is aware of facts making it objectively more likely than not that the defendant committed a crime. Whether or not an arrest has occurred typically involves an analysis of whether a reasonable person in the defendant's position would believe themselves to be under arrest. Some of the many factors in whether a stop is an arrest could include whether police used handcuffs, displayed weapons, told the suspect he or she was under arrest, gave Miranda warnings, or transported the suspect to the police station. 

Investigative Detention

The Superior Court agreed with the trial court that the defendant was subject only to an investigate detention. He was stopped and asked for information, but he was not handcuffed, transported, interrogated for a lengthy period of time, or told he was under arrest. However, he was not free to leave because he was stopped by two uniformed officers who told him that he was suspected of criminal activity and demanded information from him. Although the request for identification alone does not convert a mere encounter into an investigatory detention, the request for identification coupled with the police officers telling the defendant that they suspected him of wrongdoing would lead a reasonable person in his position to feel that he was not free to leave. Therefore, police were required to at least have reasonable suspicion that criminal activity was afoot in order to stop him.

Police Did Not Have Reasonable Suspicion

The Superior Court found that police did not have reasonable suspicion to stop Mr. Parker because although he may have engaged in criminal activity in June, they had not seen him do anything at all on the day that they stopped him. He was simply walking down the street, and his lack of criminal activity prompted the police to invent a pretext that he had been part of a disturbance at the McDonald’s. Accordingly, the results of the illegal stop must be suppressed. Therefore, Parker will receive a new trial in the lower court at which the illegally obtained evidence cannot be introduced. 

Although the opinion is certainly of benefit to Parker and others in similar situations, the Superior Court's reasoning is unclear. The opinion focused almost entirely on whether the stop was a mere encounter or a Terry stop, and the Superior Court failed to fully explain why the police no longer had reasonable suspicion. Clearly, if Parker had sold drugs to the police earlier in the summer, then the police would have had reasonable suspicion and probable cause to stop and/or arrest Parker at that time. Probable cause, however, can become "stale." If police do not act on information quickly enough, then they may no longer be able to act on it. Police may have been able to obtain an arrest warrant for him, but they did not have the right to stop Parker without a warrant more than a month after the prior sales. Further, the court could have been concerned about the police use of lies to justify the stop and interrogation. 

We Can Help With Criminal Charges

If you are charged with selling or possessing illegal drugs, you need an experienced drug charges attorney who can investigate and evaluate your case, determine if your rights have been violated, and provide you with all of the options and a strong defense. You do not have to plead guilty just because the police found drugs on or near you or in a vehicle. The prosecution must prove that the search was legal and that the drugs were yours. We have the experience to challenge them every step of the way. Call 267-225-2545 for a confidential criminal defense strategy session.  

Is it illegal to possess marijuana in Philadelphia?

Information on Marijuana Decriminalization in Philadelphia

Philadelphia Marijuana Possession Lawyers

This article will explain the potential consequences for possession of marijuana in Philadelphia and the surrounding counties. If you have been arrested for a drug charge or possession of a marijuana, you likely have a number of questions which may not be addressed in this article. Call us at 267-225-2545 for a free criminal defense strategy session and the answers to your questions about marijuana charges in Pennsylvania and New Jersey. 

I heard that marijuana is legal in Philadelphia. Can the police arrest me for possessing marijuana?

Although both Pennsylvania and New Jersey have begun to enact medical marijuana laws, the possession of marijuana for personal use anywhere in Pennsylvania and New Jersey remains a crime. However, the City of Philadelphia has taken numerous steps to effectively decriminalize marijuana over the last few years. These steps have significantly reduced the penalties and consequences of being caught with personal use quantities of marijuana for most people. However, possession of marijuana is still on the books as a crime. Unless and until the state legislature decriminalizes marijuana, it is still possible to be arrested for marijuana possession, and it is still a felony under state and federal law to sell marijuana. Likewise, possession of even a small amount of marijuana remains a crime under federal law, and with the change in Presidential administrations, federal authorities have recently signaled that they intend to continue prosecuting people for marijuana-related crimes. 

Philadelphia's Small Amount of Marijuana Program

The first step that the city took to decriminalize marijuana was the creation of the Small Amount of Marijuana ("SAM") program. Under the terms of this program, the District Attorney would ask defendants caught with under 30 grams of marijuana to pay a fine and complete a number of hours of community service. If the defendant successfully completed the program, then the District Attorney would move to dismiss the charges, and the charges could be expunged. If the defendant failed to pay the fine or complete the community service, then the defendant could still proceed with a motion to suppress and/or trial in the Philadelphia Municipal Court. In many cases, our attorneys have been able to negotiate for our clients who are facing marijuana charges to participate in the program and avoid a criminal record. Although conviction for possession of a small amount of marijuana does not typically carry jail time, it is punishable by up to thirty day in jail as well as fines and court costs. Additionally, a conviction for possession of a small amount of marijuana will lead to an automatic six month driver's license suspension through PennDOT even where the marijuana possession did not occur in an automobile.   

Marijuana Decriminalization - Civil Citations for Marijuana Possession

More recently, city council passed a local ordinance allowing police to issue a civil citation to defendants instead of arresting them and charging them with Possession of a Small Amount of Marijuana. The ordinance calls for the defendant to pay a $25 fine for possession of less than 30 grams of marijuana and a $100 fine if the defendant was caught by police smoking marijuana in public. In most cases, the Philadelphia police will issue the civil citation (or simply throw the marijuana out) instead of arresting someone with a small amount of marijuana, and therefore the citation will not lead to the person having a criminal record or an arrest for drugs showing up on a criminal background check. The ordinance does not apply to the sale of marijuana or to possession of more than 30 grams. It is also still a felony under state law to grow even one marijuana plant. Further, possession of more than 30 grams of marijuana even for personal use may still be charged as Knowing and Intentional Possession of a Controlled Substance, which is an ungraded misdemeanor punishable by up to one year in jail for a first offense. 

The recent ordinance has led to a dramatic decrease in the number of criminal marijuana prosecutions in Philadelphia. However, it is important to remember that marijuana is still illegal. It is still a felony called Possession with the Intent to Deliver to sell marijuana, and the police have the discretion to arrest someone even for possessing a small amount of marijuana instead of issuing the ticket. In most cases, they do not do so, but they are most likely to make an actual arrest for possession when narcotics officers observe alleged drug sales. If the police believe they observed a person selling marijuana, then the police will often arrest the buyers and charge them criminally instead of issuing the ticket. This serves to document the fact that the buyers actually existed, which will often be used to bolster the prosecution's case in the Possession with the Intent to Deliver trial against the seller. 

Marijuana Is Still Illegal in Pennsylvania

One of the most important things to remember is that because marijuana possession is still a crime under state and federal law, police will often try to claim that they smelled the odor of marijuana or saw marijuana in plain view in order to justify the subsequent search of a defendant or defendant's vehicle. If the court believes that officers smelled marijuana, then the court may deny a motion to suppress if the odor of marijuana led the police to search for contraband. Finally, it is also a crime to drive while under the influence of marijuana or with virtually any detectable level of marijuana metabolite in your blood. Because marijuana metabolites may remain in the bloodstream for thirty days or more, a defendant who used marijuana may be convicted of DUI even if they were not even remotely high at the time of the arrest. 

Our Philadelphia Drug Charges Lawyers Can Help

Despite these positive steps towards marijuana decriminalization, Philadelphia police and law enforcement officers in the suburban counties continue to charge many people both with possessing and selling marijuana. The federal government also continues to aggressively pursue drug traffickers even in cases involving marijuana. If you are facing any type of drug or marijuana possession charge in Pennsylvania or New Jersey, call 267-225-2545 for a free criminal defense strategy session with one of our defense attorneys. There are often defenses to these charges either through the use of pre-trial motions to suppress or at trial. We understand the fear and uncertainty you are likely feeling following an arrest, and we will immediately get to work answering your questions and building a defense to get results for you.