Zak Goldstein 2/4/19 Zak Goldstein 2/4/19

PA Supreme Court Continues Trend of Making It Harder to Withdraw Guilty Plea

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Norton. This decision reaffirms the Court’s holding in the previous case of Commonwealth v. Carrasquillo that a bare assertion of innocence may not be enough to justify withdrawing even a pre-sentence guilty plea. This is true even where there are undisputed issues with the complainant’s credibility. This decision is significant because it will make it harder for a defendant to withdraw a guilty plea once it has been accepted by the court.

Commonwealth v. Norton

In December 2012, a criminal complaint was filed against the defendant charging him with five counts of indecent assault and one count of corruption of minors. According to the complaint and the accompanying affidavit of probable cause, on at least five occasions from September 2008 through April 2012, the defendant sexually assaulted his paramour’s granddaughter. The complainant was four years old when this abuse began.

On February 27, 2013, a preliminary hearing occurred where the complainant and a Corporal from the Pennsylvania State Police testified. Following the hearing, the magisterial district justice dismissed three counts of indecent assault, but the judge held the defendant for court on the remaining charges. Once the case reached the Court of Common Pleas, the defendant filed an omnibus pretrial motion in which he sought an order to preclude the Commonwealth from presenting evidence at trial that the defendant allegedly abused his now-adult daughter when she was a child in the late 1980s and early 1990s. Specifically, the Commonwealth sought to introduce a 1996 statement signed by the defendant in which he admitted to sexually abusing his daughter.

The trial court held a hearing on the defendant’s pretrial motion at which his daughter testified regarding the abuse the defendant allegedly perpetrated on her. The trial court denied the defendant’s motion and held that this evidence was admissible as a relevant prior bad act under Pennsylvania Rule of Evidence 404(b). The court then scheduled the defendant for trial.

When the trial date arrived, however, the defense and the Commonwealth informed the trial court that they had reached a plea agreement. Specifically, the defendant agreed to plead no contest to one count each of indecent assault and corruption of a minor charge in exchange for an aggregate term of imprisonment of two to six years. The defendant’s attorney conducted a plea colloquy which was supplemented by questioning by the district attorney regarding the fact that the defendant’s plea would require him to be assessed for purposes of determining whether he should be classified as a sexually violent predator. The parties also submitted to the court the defendant’s written plea colloquy. The trial court accepted the plea agreement and his sentencing was scheduled for May 7, 2015.

On March 23, 2015, the defendant filed a motion to withdraw his plea. In that motion, the defendant asserted his innocence and proclaimed that he could not live with himself for taking a plea under the circumstances. The trial court then held a hearing concerning this motion to withdraw the guilty plea. At that hearing, the defendant reiterated that he wanted to withdraw his plea because he was innocent of the crimes to which he pleaded no contest and he could not live with himself for entering this plea.

Pennsylvania Law on Withdrawing Guilty Pleas

At the time of this hearing, the prevailing law in Pennsylvania required a trial court to grant a pre-sentence motion to withdraw a plea when the withdrawal of the plea was based on nothing more than a defendant’s bare assertion of innocence. However, this issue of whether a defendant could withdraw his plea based solely on a defendant’s assertion of innocence was before the Pennsylvania Supreme Court in Commonwealth v. Carrasquillo. Nonetheless, because Carrasquillo had not been decided yet, the trial court granted the defendant’s motion and allowed him to withdraw his plea, with the caveat that the law could change.

On June 5, 2015, the Pennsylvania Supreme Court held in Carrasquillo that a defendant does not have an absolute right to withdraw a guilty plea. Instead, a trial court has discretion in determining whether a withdrawal request should be granted. The Pennsylvania Supreme Court held that this request should be administered liberally in favor of the accused and that any demonstration by a defendant of a fair-and-just reason will suffice to support a grant of a motion, unless withdrawal would cause substantial prejudice to the Commonwealth. The Pennsylvania Supreme Court further opined that a defendant’s claim of innocence must be at least plausible to demonstrate, in and of itself, a fair and just reason for pre-sentence withdrawal of a plea. In other words, the proper inquiry on consideration of such a withdrawal motion is whether the accused has made some colorable demonstration, under the circumstances, such that permitting withdrawal of the plea would promote fairness and justice.

After the Pennsylvania Supreme Court issued this opinion, the Commonwealth filed a motion to reconsider the trial court’s order to withdraw the defendant’s plea. On June 25, 2015, the trial court heard arguments on the Commonwealth’s motion for reconsideration. For its part, the Commonwealth questioned the plausibility and sincerity of the defendant’s innocence and suggested that the defendant was seeking to delay the prosecution and the consequences that awaited him. The Commonwealth argued that the evidence against him was strong and thus his assertion of innocence was implausible and that fairness and justice did not require the court to allow him to withdraw his plea.

In response, the defense argued that the defendant had always maintained his innocence. This was shown by him entering a no-contest plea that did not equate to an admission of guilt. Further, defense counsel also argued that the defendant refused to participate in the assessment to determine whether he was a sexually violent predator because he maintained his innocence. Finally, the defense argued that they intended to attack the Commonwealth’s evidence at trial by attacking the granddaughter’s credibility because she answered “I don’t remember” at least 15 times during the preliminary hearing.

On June 26, 2015, the trial court issued an order granting the Commonwealth’s motion for reconsideration and denying the defendant’s motion to withdraw his plea. The trial court stated that the defendant “did not make a colorable demonstration for withdrawal of his plea of no contest that would promote fairness and justice.” The trial court also stated that in his motion the defendant only asserted that he was innocent and could not live with himself for taking a plea to offenses of which he was innocent. The defendant then filed a motion for reconsideration which was denied. The defendant was subsequently sentenced to the previously agreed upon terms. He then filed a timely appeal.

The Defendant’s Appeal to the Superior Court

On appeal, the defendant argued that the trial court abused its discretion by denying his pre-sentence motion to withdraw his no contest plea. The defendant argued that he maintained his innocence throughout the trial court proceedings. Additionally, he argued that he offered a viable defense to the charges to which he pleaded, namely, he could challenge the sufficiency of the Commonwealth’s evidence by undermining the credibility of the Commonwealth’s witnesses, particularly that of the granddaughter.

In response, the Commonwealth insisted that the trial court properly denied the defendant’s motion to withdraw his guilty plea. The Commonwealth argued that the defendant merely asserted his innocence without making a specific colorable demonstration that the withdrawal of that plea would promote fairness and justice. In response to the defendant’s proclaimed trial strategy, the Commonwealth argued that any defense predicated on attacking the granddaughter’s credibility should have been readily apparent to the defense and his counsel following the preliminary hearing. Yet, despite these inconsistencies, the defendant chose to plead no contest.

The Superior Court denied the defendant’s appeal. The Superior Court found that the trial court did not abuse its discretion in denying his motion to withdraw his plea. In support of its conclusion, the Superior Court stated that the defendant had nearly two years between his arrest and his plea to examine and weigh the evidence in this case in deciding whether to assert his innocence or a viable defense to the charges at trial. The defendant then filed a petition for allowance of appeal to the Pennsylvania Supreme Court which was granted.

What is the Standard for Withdrawing a Guilty Plea?

As discussed above, asserting one’s innocence is no longer sufficient to withdraw a guilty plea or a plea of no contest because of the Pennsylvania Supreme Court’s decision in Commonwealth v. Carrasquillo. Rather, the Pennsylvania Supreme Court ordered that in addition to a defendant’s claim of innocence, this claim must be at least plausibly demonstrate, in and of itself, a fair and just reason for pre-sentence withdrawal of a plea. Despite these new restrictions, the “policy of liberality” remains in effect in favor of withdrawing the guilty plea. However, Carrasquill did give trial courts the discretion to assess the plausibility of claims of innocence.

Pennsylvania Supreme Court Upholds Lower Court’s Decisions Denying Defendant’s Motion to Withdraw His Guilty Plea

The Pennsylvania Supreme Court denied the defendant’s appeal. In its decision, the Pennsylvania Supreme Court stated that the defendant’s appeal was merely just him asserting his innocence. What is troubling is that the Pennsylvania Supreme Court characterized the credibility issues of the complainant as the defendant wanting to merely “test the Commonwealth’s evidence at trial.” The Pennsylvania Supreme Court seems to tacitly acknowledge that there were credibility issues with the complainant, yet it held that this was not sufficient to withdraw a guilty plea. Consequently, the defendant will not get a new trial and will be forced to serve his negotiated sentence.

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 and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, 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 1/31/19 Zak Goldstein 1/31/19

PA Superior Court: A really specific anonymous tip might be enough for a stop.

The Pennsylvania Superior Court has decided the case of Commonwealth v. Price, holding that a very specific anonymous tip might provide the reasonable suspicion necessary for police to conduct a Terry stop. This case is a disastrous decision for civil liberties and Fourth Amendment rights which defies common sense and ignores decades of Pennsylvania Supreme Court and Superior Court precedent.

The Facts of Price

In Price, the defendant was charged with various firearms offenses including possession of a firearm by a prohibited person, firearms not to be carried without a license, and possession of a firearm in the City of Philadelphia. Price filed a motion to suppress the gun, and the trial court conducted a hearing on the motion.

At the motion to suppress hearing, the Commonwealth presented the testimony of a Philadelphia Police Officer. The officer testified that he was on routine patrol with his partner when he received a radio call to respond to the 5100 block of Willows Ave. The officer testified that he had been on the force for seven years, and he knew that the 5100 block of Willows Ave is an area where violent crime is prevalent. He testified that the radio call provided the information that a black male, wearing a white t-shirt and gray shorts, was driving a silver Lexus with a license plate reading GWL8569, and was carrying a firearm. The officer had also learned that the radio call was the result of a call to 911.

The officers drove to 51st and Willows Avenue within a minute of receiving the broadcast and found a silver Lexus stopped at a stop sign. The officers were able to see that the driver was a black male who was wearing a white t-shirt, and they saw that the license plate read GWL8568, meaning it differed only by one digit from the number provided to 911. The officers activated their lights and sirens and stopped the vehicle. The Lexus pulled over, and the officers approached the vehicle. They could then see that the defendant was wearing gray shorts in addition to the white t-shirt. The officers opened the door and asked the defendant to step out. He did, and as he got out, the officer could see that he had a large bulge in the stomach area of his waistband. The officers searched the defendant and found a gun in his waistband.

As the officers were recovering the gun, a woman approached them. She told police that she was the person who had called 911 and that they had arrested the right guy. She asked the officers if they had recovered the gun. The officers noted that at first, this woman was standing outside of the defendant’s view and seemed to be nervous. She later told them that she had called 911 because she saw the defendant with the gun and bullets. She told the officers that she saw the defendant put bullets in the trunk. Police asked the defendant if there was anything else in the car, and he confirmed that there were bullets in the trunk.

The trial court denied the motion to suppress. The defense argued that at the time of the stop, police were relying on an entirely anonymous radio call and had no way to verify whether the call, no matter how specific, contained accurate and reliable information. Decades of Pennsylvania case law, including Commonwealth v. Jackson and Commonwealth v. Hawkins, have held that anonymous tips do not provide police with any level of reasonable suspicion or probable cause to make a stop unless the police are able to corroborate that information prior to the stop. Nonetheless, relying on a recent United States Supreme Court case, the trial court found that police had reasonable suspicion to stop the defendant based on the 911 call. The court reasoned, possibly without supporting evidence, that the 911 call center in Philadelphia has caller ID and can track who made the call, thereby ensuring that calls to 911 are not actually anonymous. Because people know that they may be tracked when calling 911, the court reasoned, they have an incentive not to call in with fake accusations. Therefore, the court denied the motion to suppress, and the defendant was eventually convicted of all of the gun charges.

The Superior Court Appeal

The defendant appealed to the Pennsylvania Superior Court. Breaking with decades of precedent, the Superior Court affirmed the trial court’s reasoning. It also inexplicably concluded that because the 911 call center has caller ID, people would never call in incorrect information to 911 in order to harass someone else. Obviously, this reasoning is absurd and completely ignores the fact that most school-age children possess the technological prowess to use a “burner” phone or mask their true phone number or caller ID with an app. It also erroneously assumes that everyone knows (and cares) that their cell phone number could be tracked by 911 if they make a call. Accordingly, the court affirmed the trial court’s denial of the motion to suppress.

It is highly likely that this opinion will be appealed further. It is also important to note that the opinion relies entirely on federal law as the defendant in this case did not advance the argument that the Pennsylvania Constitution provides greater protections against stops based on anonymous tips than the United States Constitution. Whether such arguments will work in the future remains an open question. Finally, the tip in this case was extremely specific down to the make and model of the car, the defendant’s clothing, and the license plate of the vehicle. Nonetheless, this case substantially expands the power of the police to make stops based on anonymous radio calls. Such a power is extremely problematic because of the ease with which any citizen may mask his or her identity and call in an anonymous and false complaint against someone else to harass them. Normally, police are required to show that information was at least relatively trustworthy prior to acting on it. This opinion eliminates that requirement.

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, Aggravated Assault, VUFA, Rape, 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 1/24/19 Zak Goldstein 1/24/19

Attorney Goldstein Wins Not Guilty by "Knockout" in F1 Aggravated Assault Case

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire has continued to rack up wins in the courtroom. In the case of Commonwealth v. J.G., Attorney Goldstein eventually obtained a complete victory in what began as a case of First Degree Felony Aggravated Assault. In that case, prosecutors alleged that J.G. had started a fist fight with a male acquittance. Prosecutors further alleged that during the fight, the girlfriend of one of the participants attempted to separate the two men. When the girlfriend got in between J.G. and the other man, J.G. allegedly punched her in the face twice, causing her to fall and fracture her wrist. She also claimed that she suffered bruising and red marks to her face. Due to the broken bone in her wrist, the prosecution charged J.G. with F1 Aggravated Assault.

Fortunately, J.G. retained Attorney Goldstein for the preliminary hearing in this case. At a preliminary hearing, the defense is generally limited to making legal arguments based on the facts to which the complainant or witness testifies. Despite this limitation, Attorney Goldstein was able to successfully cross-examine the complainant during the preliminary hearing and get her to admit that she had put her hands on J.G. first in order to try to end the fight. She also admitted that a number of other people were involved in the fight and that J.G. had only punched her once while she was holding onto him. With this admission secured, Attorney Goldstein was able to successfully move for the dismissal of the felony charges and a remand to the Philadelphia Municipal Court for a trial on a misdemeanor Simple Assault charge. Aggravated Assault requires not only the causation of serious bodily injury, which is an element that is often satisfied by the presence of a broken bone, but also the intent to cause that serious bodily injury. Pennsylvania case law such as Commonwealth v. Alexander, however, provides that one punch that results in serious bodily injury generally does not provide sufficient evidence of intent to cause serious bodily injury and is therefore usually not an Aggravated Assault absent other extraordinary circumstances. Because the complainant testified that J.G. only punched her once prior to her fall, the Municipal Court judge dismissed the felony charges.

Attorney Goldstein then represented J.G. at the Municipal Court trial and obtained a full acquittal on the remaining charges. Once again, the complainant testified that J.G. started the fight with her boyfriend, that he had punched her, and that he had caused her injuries. However, on cross-examination, she admitted to a number of inconsistencies relating to the nature of her injuries, who had started the fight, how many times she had been punched, and her involvement in the incident. Due to Attorney Goldstein’s extensive and effective cross-examination of the complainant, the complainant eventually recanted most of her story, admitted that her boyfriend had in fact hit J.G. in the face with a rock, and she then stormed out of the court-room. With the witness having left mid-trial, the Municipal Court judge immediately found J.G. Not Guilty of all charges, resulting in a complete win in an Aggravated Assault case. J.G. will be eligible for an expungement of the charges.

Zak Goldstein 1/23/19 Zak Goldstein 1/23/19

PA Superior Court: Out-Of-State Sale of Drugs Not a Defense to Drug Delivery Resulting in Death Prosecution

The Pennsylvania Superior Court has decided the case of Commonwealth v. Peck, holding that a defendant can be convicted of drug delivery resulting in death in Pennsylvania even if the defendant sold the drugs in a different state. This decision is concerning because it exposes people to more criminal liability for actions that occurred outside of Pennsylvania.

Commonwealth v. Peck

The decedent lived in York County, Pennsylvania with his father. The decedent texted the defendant, and they met at a convenience store located ten miles south of the Pennsylvania border in Maryland. At the meeting in Maryland, the defendant sold the decedent heroin. After this meeting, the two continued to text. The decedent expressed concern that the heroin looked like a “rock,” to which the defendant replied that the heroin was “off the brick, purest of the pure” and told the decedent to try it. Further messages indicated that the decedent tried the heroin and then thanked the defendant for it.

The next day, the decedent’s father discovered the decedent. He was hunched over on the floor, and his body was stiff. His face was blue and had blood on it. His father immediately called 911. A Pennsylvania State Trooper responded to the call and found a “rock” of heroin on the decedent’s nightstand. He also found the decedent’s cell phone and read the text messages between the decedent and the defendant.

A criminal complaint was filed against the defendant charging him with possession with the intent to deliver (“PWID”) and drug delivery resulting in death. The defendant then filed a motion to dismiss the PWID charge because he sold the drugs in Maryland. However, the defendant did not file a motion to dismiss the drug delivery resulting in death charge. At the motions hearing, the Commonwealth conceded the motion to dismiss the PWID charge. The defendant then went to trial on the drug delivery resulting in death charge. A York County jury found the defendant guilty of drug delivery resulting in death despite the fact that the drugs had not been sold in Pennsylvania.

At the sentencing hearing, the trial court sentenced the defendant to the statutory maximum sentence of twenty to forty years’ imprisonment. The defendant then filed timely post-sentence motions requesting the dismissal of the conviction or a re-sentencing hearing. These motions were denied. The defendant then filed an appeal. His appeal focused on two issues: 1) whether the evidence was insufficient to sustain his conviction because he sold the drugs in Maryland, and 2) whether the trial court erred in imposing the statutory maximum sentence. For purposes of this post, only the issue of whether the evidence was sufficient to convict the defendant of drug delivery resulting in death will be discussed. However, for a more detailed analysis of a judge’s discretion in sentencing, please see our blog posts on the Superior Court’s decisions in Commonwealth v. Sarvey and Commonwealth v. Conte.

What is the crime of Drug Delivery Resulting in Death?

18 Pa. C.S.A. § 2506 is the statute that governs the crime of drug delivery resulting in death. A person commits this offense if the person intentionally administers, dispenses, delivers, gives, etc. any controlled substance or counterfeit substance, in violation of the Controlled Substances Act, and another person dies as a result of using the substance. A defendant does not have to intend to kill the decedent to be convicted of this crime. Instead, the defendant must only intend to provide the decedent with the controlled substance. Further, a defendant can be found guilty even if the decedent has a controlled substance in their system other than the one that the defendant provided to the complainant. To convict, the Commonwealth only must show that the controlled substance that was given to the decedent was a direct and substantial factor in causing their death.

How Does Jurisdiction Work in Criminal Cases?

Jurisdiction can be a complicated issue. Even though the defendant in Commonwealth v. Peck did not technically argue that the trial court lacked jurisdiction to hear his case, his argument on appeal was basically a jurisdictional argument. As a preliminary matter, there are multiple types of jurisdiction. The subsequent paragraphs in this section will discuss the most common jurisdictional issues in criminal cases. However, if you are charged with a crime where you believe that jurisdiction may be an issue, you need an experienced defense attorney to handle your case.

The most basic example of jurisdiction is when it is based on geography. If a defendant commits a crime in Pennsylvania, usually only Pennsylvania would have jurisdiction to hear the case. A different state (i.e. New York) probably would not have jurisdiction over the case because the crime did not occur there. However, as Commonwealth v. Peck shows, Pennsylvania can have jurisdiction over a defendant when he commits a crime in a different state but the defendant’s actions have a consequence or “result” in Pennsylvania.

Another example of jurisdiction is federal and state jurisdiction. The federal government has jurisdiction over some offenses that states do not have (i.e. immigration offenses). However, there are plenty of crimes for which the federal government and the states share jurisdiction. For example, both the state and federal government have jurisdiction over cases involving drugs and guns. Unfortunately, as of now, state and federal governments can both prosecute a defendant for the exact same crime. This issue is currently before the United States Supreme Court, however most legal experts do not expect the Supreme Court to overturn this principle. In Pennsylvania, prosecutors may not file charges if the federal government has already prosecuted a defendant. The federal government, however, is not limited from filing charges even if a defendant has already been prosecuted in Pennsylvania state court.

Jurisdiction is also relevant in determining whether a police officer legally stopped someone. Some police officers have very limited authority. For example, the South Eastern Pennsylvania Transportation Authority (hereinafter “SEPTA”) police officers do not have the same authority as regular Philadelphia Police Officers. SEPTA police officers are restricted to areas involving SEPTA property and customers. However, just because a police officer does not have jurisdiction to stop you does not mean that a court lacks jurisdiction over you to hear your case. As stated above, jurisdiction can be a very complicated issue, and if your case involves different jurisdictions, then you need an attorney who is knowledgeable on these complex issues.

What is the remedy if a court or police officer does not have jurisdiction to arrest me or hear my case?

There are different remedies for whether a court lacks jurisdiction versus whether a police officer lacks jurisdiction. If a court lacks jurisdiction, then the remedy is the dismissal of the case. This is what happened with the PWID charge in Commonwealth v. Peck. Because the PWID occurred in Maryland, the charge was dismissed. If Maryland wanted to prosecute the defendant, then they likely could, and he would not be able to get the case dismissed on jurisdiction grounds. However, if a police officer who lacks jurisdiction arrests a defendant, then the case will not be automatically dismissed. Instead, what will happen is that a defendant will be able to argue that the evidence seized as a result of the illegal seizure should be suppressed because the police officer lacked the authority, or jurisdiction, to stop the defendant in the first place.

Pennsylvania Superior Court affirms the defendant’s conviction

In a very limited opinion, the Superior Court affirmed the defendant’s conviction. The Superior Court rejected the defendant’s argument that there was not sufficient evidence to convict him of drug delivery in resulting in death because he sold the drugs to the decedent in Maryland. The Superior Court stated because the decedent died in Pennsylvania, there was sufficient evidence to convict him. In other words, the Superior Court stated it was inconsequential that the defendant sold the drugs in Maryland for him to be convicted of drug delivery resulting in death. Further, the Superior Court also affirmed his sentence, so he will not get 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, Rape, 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.