Philadelphia Criminal Defense Blog
PA Superior Court: Defendant Entitled to New Trial Where Instructions Permitted Jury to Find Aggravated Assault on Officer Based on Mens Rea of Recklessness
The Difference Between Aggravated Assault and Simple Assault on Law Enforcement
There is a common misconception in Pennsylvania courts that a Simple Assault on a police officer, medical professional, or other protected class who is acting in the course of their official duties automatically becomes a felony two Aggravated Assault due to the Aggravated Assault on law enforcement statute. In normal circumstances, Aggravated Assault as a first-degree felony requires that the defendant cause or attempt to cause serious bodily injury to the complainant. Aggravated Assault may also be a second degree felony either when the defendant causes or attempts to cause bodily injury with a deadly weapon or when the defendant causes or attempts to cause bodily injury to a member of a protected class. Protected classes under the F2 Aggravated Assault statute include most forms of law enforcement officers, paramedics, nurses, SEPTA employees, prosecutors, public defenders, judges, and other government officials who are acting in the course of their official duties. Thus, punching a police officer is often going to be an F2 Aggravated Assault instead of a Simple Assault. This assumes that the officer was on duty at the time of the punch.
Demetra Mehta, Esq. - Philadelphia Criminal Lawyer
In the case of an obvious punch or a kick to an officer, a criminal defendant may be properly charged with Aggravated Assault as a felony of the second degree. However, where the intent to cause bodily injury is less clear – such as in the case of a defendant who is resisting, fleeing, flailing, and just otherwise being difficult and ends up elbowing or bumping into an officer, the defendant’s actions may not constitute an Aggravated Assault. This is because the F2 Aggravated Assault on law enforcement statute requires that the defendant act either knowingly or intentionally to cause or attempt to cause bodily injury. The Aggravated Assault statute is more limited than the Simple Assault statute because the Simple Assault statute can be violated when the defendant acts recklessly. This means that it could be Simple Assault to elbow a police officer while flailing about and resisting arrest instead of a felony Aggravated Assault. Of course, we still do not recommend that you resist arrest or do anything that could be construed as an assault on an officer.
Commonwealth v. Domek
Zak T. Goldstein, Esq. - Philadelphia Criminal Defense Lawyer
In the recent case of Commonwealth v. Domek, the Pennsylvania Superior Court granted a new trial to the defendant, finding that the trial court had improperly dismissed his Post-Conviction Relief Act (“PCRA”) Petition. Domek’s PCRA Petition alleged that his trial attorney had been ineffective in failing to object when the trial court instructed the jury that Domek could be convicted of F2 Aggravated Assault on law enforcement if the jury found that he recklessly caused bodily injury.
In Domek, police transported the defendant to the Allegheny County jail. When the defendant arrived, he refused to cooperate with a search of his mouth and began to yell profanity at the correctional officers. Officers repeatedly warned him that they would use force to open his mouth, and he continued resisting. When one of the officers reached towards his mouth, the defendant smacked her hand away. At that point, the officers began struggling with the defendant. One of them punched him, and they took him to the ground. Once on the ground, he refused to put his hands behind his back, and the officers eventually tazed him. Officers testified at trial that the defendant had tried to push and punch the officers. Additionally, one of the officers suffered a shoulder injury which required surgery and led to missing ten months of work.
F2 Aggravated Assault Requires Knowing or Intentional Conduct
A jury convicted the defendant of F2 Aggravated Assault, and the defendant appealed. The Pennsylvania Superior Court affirmed the conviction, and the defendant did not appeal to the Pennsylvania Supreme Court. Instead, within one year of the conviction becoming final, he filed a Post-Conviction Relief Act Petition alleging that trial counsel had been ineffective for failing to object to the erroneous jury instruction. Generally, a PCRA allows a defendant who has been convicted and is still serving a sentence to seek a new trial or new sentencing where the defendant can show that his or her lawyer was ineffective in the representation at trial or on appeal and that the defendant suffered prejudice as a result.
In this case, the trial court dismissed the PCRA as meritless. However, the defendant appealed the dismissal of the PCRA to the Superior Court. The Superior Court reversed, finding that the jury instructions were erroneous in that they specifically permitted the jury to find that if the defendant had caused the injury recklessly, the jury could convict him of Aggravated Assault instead of Simply Assault. Because Aggravated Assault requires a defendant to have acted knowingly or intentionally, this instruction was not correct.
The trial court had agreed that the instruction contained an error, but the court argued that the evidence was overwhelming that the defendant committed an Aggravated Assault. Therefore, the trial court adopted the prosecution’s position and dismissed the PCRA. The Superior Court disagreed. It found that “the inclusion of an erroneous mens rea reducing the level of culpability required to find Appellant guilty of aggravated assault was a critical mistake that ‘could have reasonably had an adverse impact on the outcome of the proceedings.’” Given that the jury acquitted the defendant of an offense that required the knowing or intentional causation of injury, the Court found that it was very possible the jury convicted based on the recklessness jury instruction. Further, the injured officer testified at trial that she suffered the injury when the defendant fell backwards onto her, which is potentially consistent with recklessness. Therefore, because the issue raised a question of law, the Court reversed the conviction for F2 Aggravated Assault and remanded the case for trial.
Domek illustrates the difference between Simple Assault and Aggravated Assault, and it also provides an example of the type of claim that can be raised in a Post-Conviction Relief Act Petition. A PCRA Petition alleging ineffectiveness of counsel allows the defendant to seek relief in the form of a new trial where the defendant's lawyer was ineffective. Had the defendant's trial lawyer recognized the differences between the statutes and made a timely objection, the trial court likely would have realized that the instruction was incorrect and instructed the jury properly. In that case, the jury may very well have acquitted the defendant of felony Aggravated Assault. Therefore, the PCRA Petition was the proper place to raise this type of claim.
Philadelphia Criminal Defense Lawyers for Assault Charges and PCRA Petition
Goldstein Mehta LLC Philadelphia Criminal Defense Attorneys
If you are facing criminal charges or are interested in appealing a conviction, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully resolved countless cases at trial and on appeal. We offer a 15-minute criminal defense strategy session to any potential client, so call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.
PA Supreme Court Finds Car Passenger Entitled to Suppression of Contraband in Illegally Stopped Car
Commonwealth v. Shabezz
In the case of Commonwealth v. Shabezz, the Pennsylvania Supreme Court has affirmed on appeal that a passenger in a vehicle may successfully move to suppress evidence which is recovered from the vehicle where the vehicle was illegally stopped. The passenger may move for suppression even if the passenger did not have a reasonable expectation of privacy in the contents of the vehicle.
This means that if you are the passenger in a car you do not own and the police stop and search the car and find something illegal, you may move to suppress the contraband due to the initial illegal stop. Previously, it was unclear whether a passenger had a reasonable expectation of privacy in the contents of someone else’s car, and trial judges would frequently use that line of argument in order to deny motions to suppress.
Motions to Suppress
The first line of defense to gun charges and in drug cases is often the motion to suppress. In cases where the prosecution cannot show that the police legally recovered the evidence in question, it may be possible to have the evidence excluded at trial and the case dismissed by litigating a motion to suppress. In Pennsylvania, it is typically not enough for the defendant to show only that some sort of illegal search occurred. The defendant must also show both that he or she has standing to challenge the search and that he or she had a reasonable expectation of privacy in the place that was searched.
What is a Reasonable Expectation of Privacy?
Standing is generally not an issue because Pennsylvania appellate courts have held that any defendant charged with a possessory offense has automatic standing to challenge the search and seizure that led to the recovery of the evidence. Reasonable expectation of privacy, however, is frequently an important issue. The defendant must show that he or she had a reasonable expectation of privacy in the place searched. If the defendant cannot show that he or she had a reasonable expectation of privacy which the police violated, then the court will deny the motion to suppress even if the police did something illegal. The prosecution bears the burden of showing that the police obtained the evidence in a lawful manner, but the defendant bears the burden of first showing that the defendant had a reasonable expectation of privacy.
In many cases, reasonable expectation of privacy is relatively easy to understand. If you have drugs in your pocket, reasonable expectation of privacy is not going to be an issue because everyone will agree that you had a reasonable expectation of privacy in the contents of your pocket. In other cases, it is clear that you do not have a reasonable expectation of privacy. If the police search your friend’s house when you are not in it and recover evidence which connects you to a crime, you will not be able to have that evidence suppressed even if police did not first obtain a search warrant. You simply do not have a reasonable expectation of privacy in someone else’s house where you are not present or staying. Therefore, although the police may have violated your friend's constitutional rights, they have not violated your rights, and you have no remedy.
Appellate courts have recognized that the basis test for reasonable expectation of privacy is as follows:
An expectation of privacy will be found to exist when the individual exhibits an actual or subjective expectation of privacy and that expectation is one that society is prepared to recognize as reasonable. In determining whether a person’s expectation of privacy is legitimate or reasonable, the totality of the circumstances must be considered and the determination will ultimately rest upon a balancing of the societal interests involved. The constitutional legitimacy of an expectation of privacy is not dependent on the subjective intent of the individual asserting the right but on whether the expectation is reasonable in light of all the surrounding circumstances.
Thus, a defendant generally does not have a reasonable expectation of privacy in houses or cars belonging to other people or in public places. At the same time, a defendant may have a reasonable expectation of privacy in certain places at work or in a restroom.
In Commonwealth v. Shabezz, the Supreme Court held that a defendant-passenger need not show a reasonable expectation of privacy in a car which has been stopped illegally in order to have drugs or guns suppressed. In Shabezz, officers testified at a motion to suppress hearing that they observed what they believed to be a drug transaction and therefore stopped the car in which Shabezz was a passenger. Shabezz ran, and the police quickly caught him. They found marijuana and cash on him. They then searched the car from which he fled and found more marijuana, scales, packaging, some pills, and a gun. Prosecutors charged Shabezz with Possession with the Intent to Deliver.
The trial court, however, did not believe the police as to the reasons why they stopped the car. Although police testified to observing a drug transaction prior to stopping the car, they had completely failed to mention the drug transaction in any of the police reports which they prepared at the time of the arrest. They also testified that they were able to see the exchange of money for small objects from 45 feet away at night without binoculars. Therefore, the court granted the motion to suppress, finding that the initial stop of the vehicle was illegal.
The prosecution appealed, and the appeal eventually reached the Pennsylvania Supreme Court. On appeal, the Commonwealth argued that the motion should have been denied because Shabezz was merely a passenger in a vehicle, and as a passenger, he did not have a reasonable expectation of privacy in the car.
What Happens if the Police Illegally Stop a Car?
The Pennsylvania Supreme Court rejected that argument. It noted that there is a difference between standing and reasonable expectation of privacy. In order to prevail in a motion to suppress, the defendant must typically be able to show both. As explained, standing is easy – if you are charged with a possessory offense, you have standing. But reasonable expectation of privacy is often more complicated. In this situation, however, the Pennsylvania Supreme Court found that no reasonable expectation of privacy was required. The defendant must simply show that he was a passenger in the car and that the car was stopped illegally prior to the police finding the evidence which the prosecution wants to use. Here, the Court found that the initial police illegality of unlawfully stopping the vehicle tainted all of the subsequently recovered evidence. That evidence became fruit of the poisonous tree, and therefore, the trial court properly granted the motion to suppress.
The Court's opinion simplifies the remedy for challenging an illegal car stop. If the police stop a car illegally and find contraband, it does not matter if the defendant is the driver or the passenger. Both the driver and the passenger have had their rights violated by being seized without reasonable suspicion or probable cause. Therefore, both the driver and the passenger now have the same remedy.
Charged with a crime? We Can Help
If you are facing criminal charges in Pennsylvania or New Jersey, our Philadelphia criminal defense lawyers can help. We have successfully litigated countless motions to suppress in gun and drug cases, and we have helped clients favorably resolve all types of criminal charges. We offer a 15-minute criminal defense strategy session to anyone who is facing criminal charges or who may be under investigation. Call 267-225-2545 to speak with an award-winning defense attorney today.
PA Supreme Court: Retroactive Application of SORNA (Megan's Law) Unconstitutional
BREAKING NEWS: In the case of Commonwealth v. Muniz, the Pennsylvania Supreme Court has ruled that Pennsylvania’s Sex Offender Registration and Notification Act (SORNA) may not be applied retroactively without violating the Pennsylvania and United States Constitutions. In this new ruling, the Court held:
SORNA’s registration provisions constitute criminal punishment;
Retroactive application of SORNA’s registration provisions violates the federal ex-post facto clause, and
Retroactive application of SORNA’s registration provisions also violates the ex-post facto clause of the Pennsylvania Constitution.
I will write more about the reasoning of this ruling in a later blog post, but for now, the ruling is so ground breaking that we wanted to post this news as quickly as possible.
As some readers have learned through terrible experience, Pennsylvania law required many people to register as sex offenders either a) long after they had completed their sentence and probation, or b) to start registering as a sex offenders even when the offense to which pleaded or were found guilty was not an offense that required registration at the time. Many others found that they had pleaded or been found guilty to offenses which required ten years of registration or even no registration only to learn after a few years that ten years of registration had become a lifetime of Megan's Law registration.
Prior to this new opinion, the Pennsylvania Superior Court repeatedly found that SORNA’s registration provisions should not be considered punishment. Therefore, retroactive application of registration requirements for those convicted of sex offenses prior to SORNA’s effective date did not violate either the federal or state ex-post facto clauses.
As anyone who has been required to register knows, sex offender registration is one of the most severe punishments the law can impose. It is second only to incarceration, and in many cases, may be worse. Sex offender registration requires regular meetings with the State Police, prohibits contact with children (even when the original conviction had nothing to do with children and may not have even involved a sexual act of any kind), and results in the offender's image, place of employment, address, and vehicles being placed on the State Police website for the world to see. Given the severity of the punishment, particularly in the case of lifetime registration, countless people would have taken their cases to trial had they known at the time of the plea that they would later be required to register for life instead of for ten years or not at all. The risk of trial may have been well worth the reward of avoiding lifetime registration. This new ruling should bring relief to those in the position.
This ruling should also help those who were originally required to register as Tier I & Tier II offenders but who have now been informed their offense is now a Tier III offense (required lifetime registration and check-ins with the state police every three months.)
If you pleaded guilty to a crime and were originally not required to register at all or were required to register only for a limited period of time and later found out that your tier changed, call us. We may very well be able to assist you. Your consultation is 100% free and confidential. Call 267-225-2545 to speak with a Philadelphia criminal defense lawyer today.
What is Possession with the Intent to Deliver?
There are defenses to Possession with the Intent to Deliver charges. Our Philadelphia criminal defense lawyers can help.
What is Possession with the Intent to Deliver (“PWID”)?
Philadelphia Criminal Defense Lawyers Zak T. Goldstein, Esq. and Demetra Mehta, Esq.
Possession With the Intent to Deliver is a felony drug possession charge. It typically involves the possession and sale of illegal drugs such as marijuana, crack cocaine, heroin, and PCP. It can also apply to the possession and sale of prescription medications such as oxycodone, xanax, and percocet.
Although there are a number of different types of drug charges under state and federal law, the main difference between drug charges and how serious they are is whether the prosecution alleges that the defendant sold or intended to sell the controlled substance in question.
Possession with the Intent to Deliver involves possessing illegal drugs or a controlled substance and either selling them or intending to sell them. This means that the defendant will typically be charged with PWID when police or other law enforcement allege that they either caught the defendant in the act of selling drugs or caught the defendant with a sufficient quantity of drugs such that it is fair to say that the defendant must have planned on selling them at a later date. In some cases involving lesser quantities of drugs, the police may still arrest a defendant for PWID where the defendant also posses items which suggest drug distribution and trafficking such as scales, new and unused packets which could be used to break up and package a larger amount of drugs into smaller, sellable sizes, significant amounts of money, and implements for cutting the drugs up.
Is Possession with the Intent to Deliver a Felony in Pennsylvania?
Possession with the Intent to Deliver is always an ungraded felony in Pennsylvania. The maximum sentence for a PWID conviction depends on the controlled substance in question. For a first offense, a marijuana conviction has a maximum sentence of five years, while crack cocaine has a maximum sentence of ten years, and the sale of heroin has a maximum sentence of 15 years in prison. Because PWID is always a felony, most defendants who are charged with PWID have a right to a preliminary hearing in the Philadelphia Municipal Court or before a Magisterial District Justice in the suburbs, and if the case proceeds beyond the preliminary hearing, then the trial would be heard in the Court of Common Pleas.
There is a limited exception for selling marijuana in that a first offense marijuana PWID charge in Philadelphia will be tried in the Philadelphia Municipal Court without the benefit of a preliminary hearing. Fortunately, a defendant who is convicted in the Municipal Court always has the right to appeal to the Court of Common Pleas for a brand new trial. In that case, the Municipal Court trial will serve the same effect as the preliminary hearing. However, pre-trial motions must still be litigated in the Municipal Court.
How is Possession with the Intent to Deliver different from regular possession of a controlled substance?
Demetra Mehta - Philadelphia Drug Possession Defense Attorney
Possession with the Intent to Deliver is a felony charge, while Knowing and Intentional Possession of a controlled substance is a misdemeanor. PWID may be punished by substantial fines and jail time of up to 15 years for a first offense depending on the controlled substance in question. Knowing and Intentional Possession, however, may be punished by only up to one year of jail time and substantially lower fines for a first offense. Knowing and Intentional Possession could apply anytime the defendant possesses some kind of controlled substance without a prescription or illegal drug. PWID, however, requires both the possession of a controlled substance or illegal drug and the intent to sell that drug. PWID can also apply when the defendant is charged with growing or manufacturing some kind of drug, and it also applies to the possession or cultivation of marijuana plants. Therefore, possessing an illegal drug or controlled substance without a prescription can always qualify as Knowing and Intentional Possession, but the prosecution may only obtain a conviction for PWID when the prosecution can also prove beyond a reasonable doubt that the defendant sold or intended to sell the controlled substance.
What are the defenses to Possession with the Intent to Deliver?
There are a number of potential defenses which could apply in a drug trafficking case. Potential defenses include:
Pre-trial Motions - In every case, the prosecution must be able to prove that the evidence it obtained and wishes to use at trial was obtained in a legal manner. If the defense believes that the police may have conducted an illegal search or seizure, then the defense may file a Motion to Suppress the drugs, money, or paraphernalia which the police recovered as a result of the illegal search or seizure. Once the Motion to Suppress has been filed, the trial court will hold an evidentiary hearing. The prosecution will then have to prove by a preponderance of the evidence that the police did not violate the requirements of the Constitution in obtaining the evidence. If the prosecution cannot meet its burden, then the evidence could be suppressed and the charges dismissed. In other cases involving confidential informants, it may make sense to file a Motion to Reveal the Identity of the Confidential Informant. These motions are difficult to win, but in some cases, the defense has the right to know who the Confidential Informant was and have the opportunity to call that person as a witness at trial. Pre-trial Motions like the Motion to Suppress are extremely important in drug cases as the prosecution will often not be able to proceed if the police did something illegal.
Constructive Possession - In order to convict a defendant of selling drugs, the government is required to prove that the defendant either physically or constructively possessed the drugs. In many cases, police may observe behavior that appears suspicious and then find drugs or some other contraband in a "stash". In other cases, police may recover drugs which were hidden in a house or car and not physically on the defendant. In these types of cases, the prosecution will be required to prove that the defendant possessed the drugs - this means showing that the defendant both knew the drugs were there and that the defendant had the intent and power to control the drugs. Mere proximity to a stash or finding the defendant in a car that also has drugs in it is often not enough for the prosecution to obtain a conviction. Therefore, whether or not the defendant actually possessed the drugs may be a potential defense to a Possession with the Intent to Deliver charge.
Narcotics Experts - In cases where the police find a large quantity of drugs (or a smaller amount with some indicia that they were going to be sold) but do not actually catch the defendant in the act of selling the drugs, the prosecution will call a narcotics expert to testify. The prosecution expert will typically testify that there is something about the quantity of the drugs or the way in which they were packaged that suggests that they were possessed with the intent to deliver. Further, the Superior Court has affirmed convictions for PWID based solely on the possession of 33 packets of crack cocaine without any observed sales where the government's witness testified that a defendant in possession of that many packets would have possessed them with the intent to sell. Just as the prosecution may use expert witnesses, the defense also has the right to have an expert witness evaluate the evidence and potentially testify at trial as to whether the circumstances could have been indicative of personal use instead of sale. In case where the police did not observe any drug transactions, the use of a defense expert witness could be the difference between a conviction for felony Possession with the Intent to Deliver and misdemeanor Knowing and Intentional Possession.
Trial by Jury - In every criminal case where the charges are punishable by a year or more, the defense has the right to a jury trial. When the defendant elects to have a jury trial, the attorneys and the Court will select twelve jurors and two alternates to hear the case. The prosecution must convince all twelve jurors that the defendant is guilty beyond a reasonable doubt. If the jurors are not unanimous, then there will not be a verdict. In that case, the prosecution may drop the charges, make a better offer, or elect to re-try the defendant.
What sentence will I get for a Possession with the Intent to Deliver Conviction?
Zak Goldstein - Philadelphia Criminal Defense Lawyer
Both the federal system and New Jersey state courts have serious mandatory minimums for drug convictions. Pennsylvania, however, does not currently have any mandatory minimums for drug offenses. Therefore, the sentence for a drug conviction can vary tremendously as judges retain a great deal of discretion in determining what sentence to impose on any given defendant.
This judicial discretion is not unlimited, however, as judges are required to review and consider Pennsylvania's sentencing guidelines prior to imposing a sentence, and a judge must be able to put reasons on the record for departing from the guidelines.
As a general rule, the severity of the sentence called for by the guidelines depends on the type of drug involved and the quantity of the drug. Convictions for trafficking in harder drugs like PCP and heroin will result in greater guideline sentences, while convictions related to marijuana will often result in much lower guideline sentences or even recommendations to the judge of probation. Given the wide variety in potential weights and drugs, it is impossible to make a blanket statement as to what type of sentence a defendant could receive for a drug conviction. However, once retained, our criminal defense lawyers can review the evidence against you and calculate what the recommended sentence could be in the event of a conviction.
Our Philadelphia Criminal Defense Lawyers Excel in Fighting Drug Possession and Possession with the Intent to Deliver Cases
The Philadelphia criminal defense attorneys of Goldstein Mehta LLC have successfully represented hundreds of clients in drug possession and drug trafficking cases. We are experienced and understanding defense attorneys who will use our high level of skill and expertise on your behalf. We have successfully litigated pre-trial motions and obtained pre-trial dismissals and acquittals at trial. If you are facing drug possession charges, call 267-225-2545 for a free criminal defense strategy session.