PA Superior Court: A Shed Counts as a Building under the Burglary Statute

Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Reed, holding that a detached shed counts as a “building for purposes” of Pennsylvania’s Burglary statute even where the complainant does not provide a detailed description of the structure at trial. 

In Reed, the complainant rented the upstairs apartment at a given address to the defendant and his girlfriend. The property consisted of a house divided into an upstairs apartment and a downstairs apartment, a basement, and two outdoor sheds situated on off-street parking next to the house. The former tenant of the upstairs apartment which the defendant eventually rented stored his property in the smaller of the two sheds even after moving out. The owner of the property and his brother stored some of their belongings in the larger shed. When new tenants would move in, the owner of the property would inform them not to use the sheds and that they should instead store their belongings in the basement as necessary. The downstairs tenant also testified that tenants were not supposed to use or go into either shed.

On February 8, the downstairs tenant saw the defendant and his female roommate messing around inside the larger shed at 2am. Likewise, a neighbor from across the street witnessed the defendant and a female in the shed at around the same time. The neighbor approached the defendant and told him that he was not supposed to be in the shed. The defendant and the female responded that they had permission to be in the shed from the former tenant. The neighbor responded that they did not have permission and that it was not the former tenant’s shed. The defendant and the female left, but a couple of hours later, the neighbor saw them in the shed again. 

Both the downstairs tenant and the neighbor told the owner of the property that people had been in the shed. Based on this information, the owner called the police and spoke with an officer. The owner told the officer that she believed that the property had been burglarized. The owner then texted a friend and asked a friend to go check on the shed. The friend did so and found that the handle and lock on the shed were broken and that there was a new, unfamiliar padlock on the right-hand side of the shed. They also reported that a truck tire and window previously inside the shed were now outside of the shed. 

On some later date, the police officer, owner of the property, and owner’s friend went and visited the shed together. They discovered that about 26 items which had previously been stored in the shed were missing. These items included clothing and power tools. The owner of the property located some of these items for sale on a Facebook page. The police contacted the owner of that page and learned that the operator of the page had purchased those items from the defendant’s girlfriend.

Armed with this information, police arrested the defendant and charged him with Burglary, Criminal Trespass, and conspiracy. The defendant proceeded by way of jury trial and was found guilty. The trial court sentenced him to ten days’ to twelve months’ incarceration followed by a year of probation. The defendant appealed. 

Is breaking into a shed a burglary in Pennsylvania? 

On appeal, the defendant challenged the burglary and criminal trespass convictions by arguing that the shed did not qualify as a “building” or “occupied structure” under the Burglary statute. The second-degree felony burglary statute provides:  a person commits burglary "if, with the intent to commit a crime therein, the person enters a building or occupied structure, or separately secured or occupied portion thereof that is not adapted for overnight accommodations in which at the time of the offense no person is present.

Likewise, a criminal trespass occurs “if, knowing that he is not licensed or privileged to do so, [the defendant] breaks into any building or occupied structure or separately secured or occupied portion thereof.” 

Neither statute defines burglary, and here, the Commonwealth conceded that the shed was not an occupied structure because it had not been adapted for overnight accommodations – meaning it was not set up so that someone could live in it. Therefore, the Superior Court turned to Black’s Law Dictionary for the definition of a building. The dictionary defines a building as “a structure with walls and a roof.” Here, the testimony provided that the shed was likely a structure with walls and a roof. Although no witness specifically testified that the shed had four walls and a roof, the fact that the complainant stored power tools and other belongings there and kept it padlocked suggested that it was likely fully enclosed. Therefore, the evidence supported the jury’s conclusion that the defendant had committed a burglary and a criminal trespass. Thus, in most cases, a shed will qualify as a building for purposes of the burglary statute even where the complainant does not thoroughly describe the dimensions of the shed. 

Can you be convicted of burglary if you are not actually seen breaking into a building?

The defendant appealed on other sufficiency grounds, as well, but the Superior Court affirmed the conviction. For example, the defendant also argued for the criminal trespass conviction that no one had seen him “break in” as required by the statute. Instead, he had only been observed inside of the shed, suggesting that he could have arrived after someone else had already broken into it. The Court rejected this argument, however, finding that it was reasonable to infer from the evidence that he was the person who had broken the lock and stolen the items from the shed. Therefore, he will not receive a new trial. 

Philadelphia Criminal Defense Lawyers Zak Goldstein

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 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.

Attorney Goldstein Wins Dismissal of DUI Case Due to Racist Police Facebook Posts

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire recently won the case of Commonwealth v. R.J.when the Commonwealth agreed to withdraw the case due to the racist Facebook posts posted on social media by the arresting officer. In R.J., police established a DUI checkpoint on a Saturday night. R.J. was stopped at the checkpoint and ordered out of the car when the police determined that they smelled an odor of alcohol coming from the vehicle. They then performed field sobriety tests, which they claimed he failed, and placed him under arrest. Officers then detained R.J. in a holding pen for about an hour prior to administering a breathalyzer. The breathalyzer showed that R.J. had a BAC well above the legal limit, so police formally arrested him and charged him with DUI.

Attorney Goldstein filed a motion to suppress in the Municipal Court, and the motion was originally successful. Attorney Goldstein argued both that police had failed to follow the requirements of the Pennsylvania Constitution in determining the location of the checkpoint and that the Commonwealth failed to meet its burden at the motion because police did not call the officer who actually arrested R.J. to testify. Instead, they called his partner who was standing nearby when the arresting officer ordered R.J. out of the car. Thus, Attorney Goldstein argued that the officer that actually testified was basing his information about the arrest and odor of alcohol entirely on hearsay, and therefore the Commonwealth failed to prove at the evidentiary hearing on the motion that police actually had probable cause or reasonable suspicion to detain R.J.. 

The Municipal Court found that the checkpoint was constitutional but agreed that the Commonwealth was required to call the actual arresting officer to testify. Therefore, the Court granted the motion. The Commonwealth, however, appealed the granting of the suppression motion to the Court of Common Pleas. The Common Pleas judge found that the two officers were working together, and therefore the collective knowledge doctrine applied. The Court of Common Pleas reasoned that the partner was entitled to rely on the observations of the original arresting officer and that the Commonwealth had met its burden. Therefore, the Common Pleas judge reversed the granting of the motion and remanded the case for trial. 

Attorney Goldstein and R.J. made the decision to continue fighting the case even after the Common Pleas Court reversed the suppression motion. Attorney Goldstein still planned to challenge whether police had properly observed R.J. for the twenty-minutes required by PennDOT regulations prior to conducting R.J.’s breath test. However, shortly before trial, the Commonwealth turned over records showing that the arresting officer, who they had not called to testify at trial, had posted dozens of extremely racist and anti-muslim messages on Facebook. The Commonwealth turned this over right before trial, so Attorney Goldstein moved for the court to dismiss the charges based on the fact that the Commonwealth had violated its discovery obligations under the Rules of Criminal Procedure and under the Pennsylvania Constitution. Essentially, the police had known about the messages for months, and therefore they constituted Brady material that should have been turned over prior to the motion to suppress. After Attorney Goldstein moved to dismiss the case due to the Brady violation and discovery violation, or in the alternative, re-open the motion to suppress for a new hearing at which the arresting officer would have to testify and be confronted with the horrific posts, the trial judge asked the Commonwealth to consider withdrawing the charges, and they eventually did. All charges against R.J. were dismissed and he will be eligible to have the arrest expunged.

 Facing criminal charges? We can help.

Philadelphia Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

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 Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545to speak with an experienced and understanding defense attorney today.

Attorney Goldstein Wins Dismissal of First Degree Murder Charges

Philadelphia Criminal Defense Lawyer Zak Goldstein

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire recently obtained the complete dismissal of first degree murder charges in the case of Commonwealth v. D.R..

In D.R., prosecutors alleged that the decedent, who was wheelchair bound, was returning home just before midnight. The decedent’s friend happened to be driving by, and he stopped to help the decedent get into the house. As the friend was helping the decedent up into the house, two men approached, pulled out guns, and began walking quickly towards the decedent. The decedent managed to get into the house and close the door, but one of the men kicked the door open and fatally shot the decedent. The decedent’s friend began to run, and the men began firing in his direction, striking him one time in the leg. The friend survived his injuries. The two men then fled the scene. Prosecutors eventually arrested and charged D.R. with first degree murder for the killing of the decedent and Attempted Murder for the shooting of the decedent’s friend. 

Fortunately, D.R. quickly retained Attorney Goldstein, and Attorney Goldstein began investigating the case. It was clear that there was something strange about the case right away. First, D.R. had no motive to kill the decedent or even ties to that particular neighborhood in Philadelphia. Second, two witnesses had apparently identified D.R. as the killer in police-administered photo arrays, but those photo arrays were not conducted until months after the murder when police supposedly received an anonymous tip identifying D.R. as the shooter. Third, police had not uncovered any other evidence beyond these unusually-delayed witness identifications which would connect D.R. to the homicide. 

The first step in most Pennsylvania state court cases, including homicides, is a preliminary hearing. Attorney Goldstein was successfully able to move for a lineup with respect to one of the eyewitnesses – the decedent’s friend who had been shot and survived. When considering whether to grant a lineup, the court should consider the witness’s opportunity to observe, whether the witness knew or had seen the defendant before, and the overall strength of the case and whether there is other corroborating evidence against the defendant. In this case, the surviving victim had never seen D.R. before, had not had a great opportunity to observe the shooters, and had not made an identification for months. There was also no other evidence against D.R. other than the two eyewitness identifications. Accordingly, the Municipal Court granted the motion for a lineup with respect to the surviving victim, but the court denied it with respect to the other alleged eyewitness because he claimed that he had previously seen D.R. in the neighborhood.

 When Attorney Goldstein and D.R. attended the lineup, the surviving victim told detectives that he recognized D.R. as the person he had identified in the photo array, but after seeing him in person, he believed that he was not the person who killed his friend. He testified similarly at the preliminary hearing. On cross-examination by Attorney Goldstein, he admitted that detectives had suggested that he identify D.R. and that he had gone along with it because detectives assured him that they had lots of other evidence and D.R.’s eyes looked similar to the eyes of the shooter. However, the other eyewitness, one of the decedent’s neighbors from across the street, testified that he had seen D.R. in the neighborhood in the days before the shooting, that he had witnessed the shooting itself, and that he recognized D.R. as the shooter. Therefore, the case was held for court based on the one witness’s in-court identification, and the court subsequently scheduled the matter for trial.

Attorney Goldstein, believing in his client’s innocence, continued investigating the case. He was eventually able to obtain phone records, including cell site location data, which showed that it was unlikely that D.R. had ever been in the neighborhood of the shooting and that D.R. was probably too far away to have committed the murder on the night in question. Attorney Goldstein’s private investigator also spoke with the neighbor/purported eyewitness from across the street. That witness eventually recanted his statement and admitted that he had not really gotten a good look at the shooter. Like the surviving victim who attended the lineup, that witness also admitted that police detectives had also told him that he should identify D.R. when they conducted the photo array.  

Attorney Goldstein immediately provided prosecutors with the witness’s statement admitting that he had not told the truth about D.R. being the shooter. Now that both witnesses gave statements indicating that detectives had told them who to identify and faced with cell phone data showing that D.R. was probably too far away to have committed the murder, the Commonwealth asked D.R. to submit to a lie detector test. D.R. agreed and took the test. Following the completion of the test, prosecutors agreed to withdraw all charges, and D.R. was immediately released. Instead of facing life without parole on First Degree Murder charges, D.R. is now home with his family and enjoying his freedom. This case illustrates the importance of making strategic pre-trial motions such as a motion for a lineup, thoroughly cross-examining Commonwealth witnesses, and fully investigating a case prior to trial. By doing these three things, Attorney Goldstein was able to win freedom for D.R.

Facing criminal charges? We can help.

Philadelphia Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

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 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.

PA Superior Court: Sentencing Gradation of Unlawful Contact with Minor Charge Must Take Acquittal on More Serious Charges Into Account

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Pope, holding that the gradation of an unlawful contact with minor charge must take an acquittal on more serious charges into account. This is because the unlawful contact with a minor provides that unlawful contact shall either be graded as a felony of the third degree or the same as the most serious sexual offense that the defendant is alleged to have committed. In this case, the defendant was acquitted of first-degree-felony Attempted Involuntary Deviate Sexual Contact, and therefore the trial court erred in grading the unlawful contact with a minor charge as a felony of the first degree at sentencing.

The Facts of Pope

In Pope, the Commonwealth alleged that the minor complainant lived with her mother and her mother’s boyfriend, the defendant, from the age of three years old until she turned thirteen. At some point, the complainant began dating someone her own age. The complainant accused the defendant of extorting her for sexual favors in exchange for permission to visit her boyfriend. Specifically, she testified that she had to give the defendant a hand job for a two hour visit, two hand jobs for a four hour visit, or a blow job for a full day visit with her boyfriend. She testified that this happened on numerous occasions. She also claimed that on one occasion, the defendant attempted to have anal sex with her.

The complainant eventually told a friend that this had been happening, and her father eventually learned of the allegations. Her father took her to the police station to make a report. Police eventually charged the defendant with attempted involuntary deviate sexual intercourse (“IDSI”), aggravated indecent assault, indecent assault, one count of unlawful contact with a minor, and one count of corruption with minors. Following a jury trial, the defendant was convicted of unlawful contact with a minor and corruption of minors. The jury acquitted him of the other offenses. At sentencing, the trial court graded the unlawful contact with minors charge as a felony of the first degree and sentenced the defendant to 62-124 months’ incarceration. The defendant appealed, and the Superior Court denied the appeal.

PCRA Challenge to the Illegal Sentence

After the Superior Court denied the appeal, the defendant filed a timely Post-Conviction Relief Act Petition, eventually alleging, among other things, that his trial and appellate attorneys provided the ineffective assistance of counsel in failing to challenge the F1 gradation of the unlawful contact with minors charge. The trial court dismissed the petition, and the defendant appealed the denial of the PCRA to the Pennsylvania Superior Court. This time, the Superior Court granted relief.

The Superior Court Appeal

Initially, the defendant claimed that he had received the ineffective assistance of counsel because his prior attorneys failed to challenge the gradation of the unlawful contact charge. The Superior Court, however, concluded that it had the power to correct an illegal sentence even on the direct appeal of a timely PCRA Petition and that it did not have to reach the issue of whether the prior attorneys were ineffective. Instead, the Superior Court simply agreed with the defendant.

Section 6318 of the Pennsylvania Crimes Code defines unlawful contact with a minor as follows:

(a) Offense defined.--A person commits an offense if he is intentionally in contact with a minor, or a law enforcement officer acting in the performance of his duties who has assumed the identity of a minor, for the purpose of engaging in an activity prohibited under any of the following, and either the person initiating the contact or the person being contacted is within this Commonwealth:

(1) Any of the offenses enumerated in Chapter 31 (relating to sexual offenses).

(2) Open lewdness as defined in section 5901 (relating to open lewdness).

(3) Prostitution as defined in section 5902 (relating to prostitution and related offenses).

(4) Obscene and other sexual materials and performances as defined in section 5903 (relating to obscene and other sexual materials and performances).

(5) Sexual abuse of children as defined in section 6312 (relating to sexual abuse of children).

(6) Sexual exploitation of children as defined in section 6320 (relating to sexual exploitation of children).

(b) Grading.--A violation of subsection (a) is:

(1) an offense of the same grade and degree as the most serious underlying offense in subsection (a) for which the defendant contacted the minor; or

(2) a felony of the third degree; whichever is greater.

Thus, the key issue in the appeal was what the most serious underlying offense in subsection (a) for which the defendant contacted the minor would be following the jury’s acquittal on the most serious charge of IDSI. In general, the Commonwealth does not even have to charge a defendant with other offenses in order to pursue a prosecution for unlawful contact. Instead, the Commonwealth would simply allege unlawful contact with a minor, and if the prosecution could prove that the contact was for the purpose of committing IDSI (for example by obtaining oral or anal sex), then the unlawful contact would be properly graded as an F1.

The analysis changes, however, when a jury acquits the defendant of specific charges. Where the jury acquits the defendant of more serious charges, the sentencing court is not permitted to guess which offense the defendant sought to commit when he contacted the minor. Instead, the sentencing court should apply the default gradation of a felony of the third degree. Further, the jury instructions did not provide any clarification in this case as to which offense the jury found the defendant had attempted to commit. Therefore, the Superior Court reversed the sentence and found that the defendant should have been sentenced on unlawful contact with a minor as a felony of the third degree. The defendant will receive a new sentence, and it will necessarily be shorter because the maximum sentence for a felony of the third degree is 3.5-7 years’ incarceration.

FACING CRIMINAL CHARGES? WE CAN HELP.

Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

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 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.