Philadelphia Criminal Defense Blog

Zak Goldstein 12/4/18 Zak Goldstein 12/4/18

PA Superior Court: A decade in jail is too much time for selling a pill and a half to another inmate

Philadelphia Criminal Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Sarvey, holding that it is unreasonable to sentence a defendant to over ten years’ incarceration for attempting to distribute one and one-half pills of a controlled substance to another inmate while in prison. The Superior Court is often reluctant to overrule even the harshest of excessive sentences, so this is a great opinion for the defense which shows that there are some limits to a judge’s discretion in sentencing a defendant.

Commonwealth v. Sarvey

On July 26, 2011, the defendant was incarcerated at Jefferson County Correctional Facility when she attempted to give one-half of a tablet of Oxycodone and a tablet of Ambien to another inmate. The prison recorded the attempted sale on video. The defendant hid the pills under a commissary form and slid them under cell door toward another inmate’s cell.

A corrections officer noticed the papers being pushed underneath the defendant’s cell door and attempted to pick them up. The defendant refused to release the papers. After a struggle, the officer was able to take the papers away from her. The officer handed the form back to the defendant, and as the officer walked away she noticed a baggie containing two pills in the place where the paper had been. The officer confiscated the baggie.

The defendant was subsequently charged with two counts of possession with intent to deliver a controlled substance (hereinafter “PWID”), two counts of possession of a controlled substance by an inmate (hereinafter “possession by an inmate”), two counts of controlled substance contraband to confined persons prohibited (hereinafter “controlled substance to prison”) and two counts of criminal attempt. Some of these charges were added prior to trial when the Commonwealth filed a motion to amend the information on the eve of trial. On April 16, 2012, a jury found the defendant guilty of all charges.

At sentencing, the trial court sentenced the defendant to consecutive terms of incarceration on the PWID convictions (one to three years for one PWID count and one and one-half years to three years to three years for the second PWID count). The trial court further imposed consecutive terms of incarceration for each count of possession by an inmate (one and one-half years to three years on each count), and a term of incarceration of two to five years for each count of controlled substance to prison.

Unfortunately for the defendant, she was also on the trial judge’s probation for four other cases. The trial judge then revoked her probation on those cases and sentenced her to a term of confinement of one to two years plus five years of probation. In total, the defendant received a sentence of ten and one-half to twenty-four years of incarceration followed by five years of probation. The defendant then filed an appeal.

The Superior Court Appeal

The defendant filed a direct appeal to the Superior Court. In the direct appeal, the defendant only raised the issue that the trial court erred in granting the Commonwealth’s motion to amend the information to add charges on the eve of trial. However, the Superior Court found that the appeal was without merit. The defendant also petitioned the Pennsylvania Supreme Court to review her appeal, but the Court declined to do so.

With her appeals denied, the defendant then filed a Post-Conviction Relief Act (“PCRA”) petition alleging that her trial and appellate attorneys were ineffective in failing to challenge her sentence as excessive on appeal. At the PCRA hearing, her trial attorney testified that he did not object to her sentence nor did he file a post-sentence motion to reconsider the sentence. The trial court denied the PCRA Petition, and the defendant appealed the denial of the PCRA Petition to the Superior Court. She raised a number of issues in her appeal of the PCRA Petition, but she won relief only on the failure to appeal the excessive sentence.

Can you file a PCRA against an appellate attorney?

Yes. A defendant is entitled to competent representation at all stages of their criminal case and not just the trial. If the court finds that an appellate attorney provided the ineffective assistance of counsel when handling a defendant’s appeal, that defendant could be entitled to another appeal. For a more detailed summary of Pennsylvania’s Post-Conviction Relief Act, please see our other articles where we discuss PCRAs in more detail (https://goldsteinmehta.com/blog/important-changes-to-pas-post-conviction-relief-act-pcra).

Can I appeal my sentence in Pennsylvania?

Yes. In Pennsylvania, if a defendant is found guilty of a crime, they must be sentenced to a minimum and maximum sentence. Obviously, some crimes are more serious than others and carry the possibility for a longer sentence. For example, a felony of the first degree has a maximum of twenty years’ incarceration whereas a misdemeanor of the first degree has a maximum of five years’ incarceration. However, just because someone is found guilty of a crime does not mean that a judge has free rein to give them the longest sentence allowed by statute. Additionally, just because a defendant was found guilty of multiple convictions does not mean that a judge can give maximum consecutive sentences on each of the charges.

When fashioning a sentence, a judge is supposed to take several factors into consideration into consideration. First, the sentencing court must consider the sentencing guidelines for a particular defendant. The sentencing guidelines analyze the severity of the offense (also known as the offense gravity score) and the criminal history of the defendant (also known as the prior record score). Again, for a more detailed analysis of Pennsylvania sentencing guidelines, please refer to our Pennsylvania Sentencing Guidelines blog(https://goldsteinmehta.com/blog/i-got-arrested-what-am-i-looking-at-an-explanation-of-the-pa-sentencing-guidelines).

However, courts should consider additional factors when sentencing a defendant. For example, the sentencing court should consider factors such as the age of the defendant; the facts of the case; whether the crime involved violence; whether the defendant is a threat to the community; the rehabilitative needs of the defendant, etc. It should be noted that appellate courts are unlikely to overturn a defendant’s sentence. Judges are given an incredible amount of discretion when fashioning a sentence. In order to successfully appeal a sentence, the sentencing court must have been unduly harsh, as in Sarvey, in order for a defendant to successfully win an appeal on grounds that the sentencing court abused their discretion.

Sarvey’s sentence was excessive

In Sarvey, the Superior Court found that the defendant’s sentence was clearly unreasonable and that her attorney was ineffective for not objecting to it and filing a post-sentence motion. The Superior Court found that her attorney did not have a reasonable basis for his failure to file a post-sentence motion and appeal the discretionary aspect of her sentence. The Superior Court further opined that although the court had a history with the defendant and that distributing narcotics in prison is particularly dangerous, her sentence was “unquestionably harsh” as she had merely attempted to provide 1.5 pills to another inmate. Thus, a sentence with a minimum of more than ten years for such conduct was simply too harsh and an abuse of the trial court’s discretion. The Superior Court noted that although the charges do not technically merge for sentencing purposes, they are undeniably very similar and intended to punish the same type of conduct. Therefore, defense counsel was ineffective in failing to appeal the original sentence. Accordingly, Sarvey will receive a new sentencing hearing.

Facing Criminal Charges? We Can Help.

Goldstein Mehta LLC Criminal Defense Attorneys

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, and Attempted 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 11/27/18 Zak Goldstein 11/27/18

PA Superior Court: Shooting Someone in the Calf Is Not Automatically Attempted Murder

The Pennsylvania Superior Court has decided the case of Commonwealth v. Predmore, finding that the trial court properly granted the defendant’s motion to dismiss the charge of attempted murder where the evidence showed only that the defendant shot the victim in the calf twice and missed with a third shot. Predmore is an excellent case which re-affirms the proposition that the serious charge of Attempted Murder requires the specific intent to kill. The Commonwealth may not prove Attempted Murder simply by showing that the defendant shot someone.

The Facts of Predmore

In Predmore, the complainant drove past his ex-girlfriend’s house and noticed the defendant’s vehicle. He stopped near the rear of the vehicle. The defendant left the house and walked into the parking lot. The defendant and the complainant then began to argue. The complainant’s ex-girlfriend broke up the argument, but the defendant then retrieved a gun from his car. He subsequently shot at the complainant three times, missing with one shot but striking him in the back of the calves twice. The defendant then left in his car, and the complainant went to the hospital. The defendant told the police that he had acted in self-defense. The Commonwealth charged the defendant with Attempted Murder, Aggravated Assault, Simple Assault, and Recklessly Endangering Another Person.

The defendant was held for court at a preliminary hearing. His defense attorney filed a petition for writ of habeas corpus (called a motion to quash in Philadelphia), asking the Common Pleas Judge to dismiss the Attempted Murder charge. After conducting a hearing on the motion, the trial court granted the motion and dismissed the Attempted Murder charge. The Commonwealth appealed to the Pennsylvania Superior Court.

The Superior Court Appeal

The Commonwealth filed an interlocutory appeal to the Superior Court, arguing that the trial court erred in dismissing the Attempted Murder charge and that the dismissal of the charge substantially handicapped the prosecution. An en banc panel of the Superior Court ultimately upheld the trial court’s ruling. The court began by noting that Attempted Murder requires the specific intent to commit a homicide. Thus, criminal attempt to murder is defined by reading Pennsylvania’s attempt statute with the first-degree murder statute. A conviction for Attempted Murder requires the prosecution to prove beyond a reasonable doubt that the defendant had the specific intent to kill and took a substantial step towards that goal. The mens rea element of Attempted Murder is the specific intent to kill, which is the same mens rea as first degree murder. The defendant must also have more than just the requisite mens rea. The defendant must also take a substantial step towards committing the intended killing. There is no such thing as attempted third degree murder under Pennsylvania law.

Here, the Commonwealth argued that the defendant attempted to kill the complainant by shooting at him repeatedly. However, the Superior Court rejected this argument. It agreed that the defendant had taken a substantial step towards the commission of a killing as shooting someone could lead to death, but it rejected the idea that the defendant had acted with the intent to kill. Attempted Murder requires more than just an action that could result in death – it requires an actual attempt to kill. Thus, had the defendant shot at the complainant’s head, or had the defendant said something that indicated that he wanted to kill the complainant, the Commonwealth may have presented sufficient evidence. The Commonwealth’s evidence failed to meet its burden, however, because the Commonwealth showed only that the defendant shot at the complainant’s legs from close range.

Notably, the Court’s opinion rejected the idea that the trial court should have just assumed the existence of the mens rea element from the defendant’s act of merely shooting a gun. In many preliminary hearings, magistrates tend to relieve the Commonwealth of its burden of actually showing that the defendant acted with a certain level of intent. Because the standard for holding a defendant for court at a preliminary hearing is less than the standard for obtaining a conviction at a trial, courts often assume that if something could have happened, the defendant may have intended for it to happen, and therefore actual evidence of mens rea is unnecessary.

The Superior Court explicitly rejected that argument here. The specific intent to kill may be inferred from the use of a deadly weapon on a vital part of a victim’s body. However, the legs were not a vital part of the defendant’s body. Further, there was no evidence that the defendant had shot at a vital part and missed because the defendant was only a few feet away from the complainant. There was also no verbal statement from the defendant that suggested an intent to kill or evidence of motive to kill. Therefore, there was no evidence of the requisite mens rea, and the Court upheld the dismissal of the Attempted Murder charge. A shooting is not automatically an Attempted Murder.

FACING CRIMINAL CHARGES? WE CAN HELP.

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, Possession with the Intent to Deliver, Robbery, Aggravated Assault, and Attempted 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 11/21/18 Zak Goldstein 11/21/18

PA Superior Court: Fire Risk from Growing Marijuana at Home Does Not Support Conviction for Risking Catastrophe or Recklessly Endangering Another Person

The Pennsylvania Superior Court has decided the case of Commonwealth v. McCoy, holding that growing marijuana in one’s home and the corresponding risk of fire do not provide enough evidence to support a conviction for Risking a Catastrophe or Recklessly Endangering Another Person.

Commonwealth v. McCoy

On December 22, 2015, Philadelphia police officers were called to a residence in Philadelphia. At the location, they met the defendant, who was complaining about trespassers. These trespassers were relative’s of the defendant’s recently deceased girlfriend. The defendant claimed that they were on scene and taking his property. While speaking to individuals in the apartment, one of the officers was informed by the mother of the defendant’s late girlfriend that the defendant was growing marijuana in his apartment.

One of the officers then asked the defendant where the marijuana was, and the defendant showed the officer to a closet in the front bedroom. The closet door was closed, but the officer noticed bags of potting soil and fans in the bedroom. The defendant then opened the closet door, revealing the marijuana plants inside. The defendant stated that he just grew the marijuana as a hobby and did not sell it. The officer then placed Appellant under arrest and called for a search warrant to be prepared. The police subsequently recovered 31 marijuana plants and one heat lamp. Notably, the defendant’s home is about fifteen feet away from his neighbor’s home. There was also a first floor apartment in the house, but no one was living there at the time.

Police arrested the defendant and charged him with Risking a Catastrophe, Possession of Marijuana, and Recklessly Endangering Another Person (“REAP”). The defendant filed a pre-trial motion to suppress his statements and the physical evidence. The trial court denied the motions and convicted the defendant following a bench trial.

At this trial, the Commonwealth called a fire marshal who was qualified as an expert in the field of fire prevention. He testified that the defendant had used ordinary household extension cords to plug in the lamps in the closet. He opined that this created a dangerous condition because the lamp could draw a greater voltage than that which the cord could handle. Additionally, the fire marshal stated that in his expert opinion, the defendant’s marijuana growing operation represented a risk of causing a fire and that it was “an extreme fire hazard.” However, the fire marshal admitted that he was not familiar with the particular type of sun lamp used by the defendant, and he did not see evidence of transformers or an irrigation system in the operation.

The defendant also testified at his trial. He testified that he used a fluorescent lamp which did not generate heat in his marijuana growing operation. He also stated that the metal foil used in his closet was to reflect light, not heat, to the marijuana plants. He further stated that he watered the plants with a spray bottle and that he and his late girlfriend would monitor them in the morning and evening.

At the conclusion of the trial, the court found him guilty of Risking a Catastrophe, Possession of Marijuana, and REAP. He received a sentence three years’ reporting probation. He appealed, arguing that the Commonwealth presented insufficient to convict him of either Risking a Catastrophe or REAP.

What is Risking a Catastrophe?

Risking a Catastrophe is a serious felony charge in Pennsylvania. 18 Pa.C.S.A. § 3302(b) provides:

“[a] person is guilty of a felony of the third degree if he recklessly creates a risk of catastrophe in the employment of fire, explosives, or other dangerous means listed in subsection (a) of this section (i.e. radioactive or poison materials).”

The fact that a catastrophe did not occur is not a defense to this statute. A catastrophe is defined as widespread injury or damage. However, courts have previously held that a risk of fire involving a single residence is not sufficient to establish a “catastrophe” for purposes of the statute. However, courts have held that if one has a methamphetamine lab in his or her home it is sufficient to convict a defendant of Risking a Catastrophe.

What is REAP?

18 Pa.C.S.A. § 2705 provides:

“[a] person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.”

To be convicted of REAP, one must have a conscious disregard of a known risk of death or great bodily harm to another person. The apparent ability to inflict harm is not sufficient to convict someone of REAP. Unlike most crimes, this is not a specific intent crime. As such, it is easier for the Commonwealth to prove the mens reas for REAP which is, unsurprisingly, recklessness.

The Superior Court Reverses the Convictions for REAP and Risking a Catastrophe.

After reviewing the record, the Superior Court reversed the convictions for REAP and Risking a Catastrophe. The Superior Court opined that though the defendant’s actions created a fire hazard, the record did not support that it had the potential for widespread injury or damage. Specifically, because he lived alone and the closest neighboring home was not in real danger of being engulfed by a potential fire from his house, he had not taken actions which sufficiently risked a catastrophe to justify a conviction under the statute.

The Superior Court further held that his actions were not “reckless.” Although the fire marshal described the defendant’s actions as “inadequate” to prevent a fire hazard, the Superior Court found that the defendant had taken steps that showed he was not being reckless. Specifically, the defendant watered the plants and monitored them twice a day. Further, the metal foil used in his closet was to reflect light, not heat. As such, according to the Superior Court, the defendant was not “reckless” and therefore was not guilty of REAP. Consequently, his convictions were reversed and he will be re-sentenced on his unchallenged possession of marijuana conviction.

Facing Criminal Charges? We Can Help.

Philadelphia 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, Possession with the Intent to Deliver, Robbery, Aggravated Assault, and Attempted 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 11/18/18 Zak Goldstein 11/18/18

Not Guilty – Attorney Goldstein Obtains Full Acquittal in Car Theft Case

Philadelphia Criminal Defense Lawyer Zak Goldstein

Recently, in the case of Commonwealth v. F.S., Criminal Defense Attorney Zak T. Goldstein, Esquire, obtained a full acquittal for a client charged with stealing a car. Specifically, F.S. was charged with Theft by Unlawful Taking (F3), Receiving Stolen Property (F3), Conspiracy (F3), and Unauthorized Use of an Automobile (M2). The Commonwealth alleged that shortly before New Year’s Eve, the complainant had met a woman at a restaurant in Philadelphia. They left the restaurant together, and on the way to their next destination, they stopped for gas. When the complainant went inside to pay for the gas, the woman drove off in his car. The complainant promptly reported the vehicle stolen.

Approximately two or three days later, Philadelphia Police Officers found the car in a South Philadelphia neighborhood. The car was pulled over on the side of the road. F.S. and the woman who had taken the car were both in the vehicle. F.S. was in the driver’s seat, and the woman who had stolen the car from the complainant was in the backseat. Police approached the vehicle and asked for an explanation from F.S. and the woman. The woman did not make any statements, but F.S. told the police that he was friends with the woman and that she had asked him to drive. He denied having any knowledge that the car was stolen, and there was also nothing about the car that should have given off any warning signs. It was not a luxury vehicle, the ignition and locks were intact, and there was no other damage which would suggest to a reasonable person that it was stolen. Nonetheless, police arrested F.S. and charged him with participating in the auto theft.

The Philadelphia Municipal Court held a preliminary hearing on the charges a few weeks later. At the preliminary hearing, Attorney Goldstein cross-examined the officer on whether there was anything about the vehicle that should have warned F.S. that he was driving a stolen car. By showing that there was nothing obviously wrong with the car and that F.S. did not run away, act nervous, or say anything incriminating, Attorney Goldstein was able to have the charges related to actually stealing the vehicle (Theft by Unlawful Taking and Receiving Stolen Property) dismissed at the preliminary hearing. The court then scheduled the case for a trial in the Municipal Court.

At the Municipal Court, Attorney Goldstein made similar arguments in defending against the Unauthorized Use of an Automobile (M2) and Conspiracy charges. F.S. was not involved in the actual theft of the vehicle, there was nothing which should have suggested to him that there was a problem with it, and the police did not know anything about the relationship between F.S. and the woman who had stolen the car or whether she had told him that it was stolen. Attorney Goldstein also introduced character evidence on behalf of F.S. – meaning that F.S. has a reputation in the community for being a peaceful, law-abiding citizen, and that reputation alone should be enough to find F.S. not guilty of the charges.

Ultimately, the Municipal Court judge agreed and found F.S. Not Guilty of both the Conspiracy and Unauthorized Use of an Automobile charges. In general, it is often difficult to defend against Unauthorized Use charges because the Unauthorized Use of an Automobile statute appears to contain no mens rea element. Receiving Stolen Property requires the prosecution to prove that the defendant knew or suspected that the car was stolen, but the Unauthorized Use of an Automobile statute suggests that it is illegally simply to operate someone else’s car without permission even if you do not know that you do not have permission. However, the Pennsylvania Supreme Court has concluded in an appellate opinion that even though the statute appears to impose strict liability, the Commonwealth must actually show that the defendant was reckless in choosing to operate the car – meaning the defendant actually knew of a substantial risk that he or she did not have permission to operate the car. Armed with this key case law and the character evidence, Attorney Goldstein was able to obtain a full acquittal on all charges.

This case also illustrates the importance of the Matthews factors in defending against theft charges and receiving stolen property charges. Although the police often arrest a suspect whenever he or she is found in possession of stolen property, the mere possession of stolen property is not a crime. Instead, the prosecution must be able to show that the defendant knew or suspected that the property was stolen. In a case called Commonwealth v. Matthews, the appellate courts provided some of the factors that a judge or jury should look at in deciding whether a defendant likely had knowledge that the property was stolen. These factors include: 1) the condition of the property – is there something about it that suggests that it was stolen, 2) the amount of time which has passed since the property was stolen, 3) the defendant’s behavior when confronted – did the defendant act nervous or attempt to flee, or did the defendant provide a reasonable explanation for the possession of the stolen property. This case illustrates that if the prosecution cannot prove that the defendant knew the property was stolen, then the prosecution cannot obtain a conviction.

Other Courtroom Wins

In addition to the full acquittal in Commonwealth v. F.S., our criminal defense attorneys were also able to obtain a number of important victories in the courtroom. First, we have recently successfully litigated motions for the early termination of probation in the Philadelphia Court of Common Pleas. In both cases, the clients were on probation for serious charges such as Robbery and illegal gun possession, and they had been sentenced years ago to significant periods of incarceration followed by lengthy probationary sentences. However, they had not been in trouble in a number of years. Our attorneys were able to file motions to terminate the probation early and convince their back judges that they were no longer in need of supervision by the Philadelphia Probation Department.

Second, we were also able to negotiate the decertification of adult criminal charges for a juvenile client. In this case, the juvenile client was charged in two separate cases with gunpoint robbery and strong-arm robbery as an adult even though he was under the age of 18 at the time of the offenses. He was also on probation with the juvenile court system. By obtaining information about the juvenile client’s background and presenting it to the District Attorney’s office, we were able to convince prosecutors to decertify the adult criminal charges to juvenile court, where the client was sentenced to a residential juvenile treatment facility instead of state prison.

Finally, our attorneys have also obtained entry into the ARD program for multiple clients charged with DUI, including clients who had prior records of misdemeanor convictions.

FACING CRIMINAL CHARGES? WE CAN HELP.