Philadelphia Criminal Defense Blog
PA Superior Court: Pointing a Gun at Someone May Be Aggravated Assault
Philadelphia Criminal Defense Lawyer
The Pennsylvania Superior Court has decided the case of Commonwealth v. Miller, holding that the trial court properly found the defendant guilty of Aggravated Assault for the act of merely pointing a gun at the complainant. This is a poorly reasoned case which fails to follow the statutory language of the Aggravated Assault statute by allowing a conviction for Aggravated Assault even where the defendant did not actually do anything to try to cause serious bodily injury to the complainant.
The Facts of Miller
In Miller, the defendant became involved in a road range incident with the complainant. The complainant was driving home when he turned onto a street which was blocked by the defendant’s car. The defendant started yelling at the complainant, so the complainant pulled over and got out of his car. The defendant got out of his car, and the two began to argue. The defendant then went back to his car, retrieved a handgun, and pointed it at the complainant’s head with his finger on the trigger. He repeatedly stated things like “What’s your problem now, fucker? I got a gun. I’m going to kill you. I’m going to shoot you.” The complainant put his hands up defensively and said that was not necessary, and the defendant continued to threaten him and say that he should kill him.
At some point, one of the defendant’s friends came out of his house and began yelling at the defendant to put the gun away. He did, but then the two men argued some more. The defendant then started to go back to his car to get the gun again, but the complainant’s wife grabbed the gun and threw it. Police arrested the defendant, and he later yelled “I shoulda just fucking killed them. I shoulda just shot them.” He made a number of other similar statements which did not help his case.
The Criminal Charges
Prosecutors charged the defendant with Aggravated Assault, Simple Assault, Terroristic Threats, Recklessly Endangering Another Person, Disorderly Conduct, and Harassment. He proceeded by way of jury trial and was found guilty of all charges. The trial judge sentenced him to four to ten years’ incarceration in state prison, and the defendant appealed.
The Superior Court Appeal
On appeal, the defendant argued that the evidence was insufficient to support the conviction for Aggravated Assault. Specifically, Aggravated Assault requires either that a defendant cause or attempt to cause serious bodily injury to the complainant. Here, the defendant did not cause serious bodily injury to the complainant because he did not do anything other than point the gun, but the Court found that the conviction could be upheld because he attempted to cause serious bodily injury.
Can you be convicted of a aggravated assault just for pointing a gun at someone?
Sometimes, depending on the facts. Here, the Court upheld the conviction. The Superior Court reasoned that for aggravated assault purposes, an attempt can be found where the accused who possesses the required, specific intent acts in a manner which constitutes a substantial step towards perpetrating a serious bodily injury upon another. Intent ordinarily must be proven through circumstantial evidence and inferred from acts, conduct or attendant circumstances.
Here, the Court found that the jury was free to believe that the defendant meant what he repeatedly said to the complainant: that he intended to shoot him. The threat, in conjunction with the act of pointing the gun at the complainant’s head, was sufficient to sustain the conviction for Aggravated Assault. Further, the encounter was only defused because the neighbor came out and began yelling at the defendant to stop, thus suggesting that the defendant may have carried through with the threat had someone else not intervened. Therefore, the Court upheld the conviction.
Potential Defenses to Aggravated Assault Charges for Pointing a Gun
This really is a bad opinion – Aggravated Assault requires an actual attempt to cause serious bodily injury, and here, it does not appear that anything actually happened which prevented the defendant from causing that serious bodily injury if he wanted to do so. Where a defendant shoots at someone and misses or points a gun at someone who flees and escapes, it may make sense for a court to find that there was sufficient evidence of Aggravated Assault. But where the defendant points the gun at someone and has every opportunity to shoot but does not do so, there should not be a conviction for Aggravated Assault.
In general, Pennsylvania case law now seems to hold that pointing a gun at someone may be Aggravated Assault where there are some intervening circumstances which arguably lead to the defendant deciding not to carry through with the threat. However, where the defendant does nothing more than point the gun at a complainant and then voluntarily stops on his or her own, there is still case law that supports the idea that this type of action should only be a Simple Assault. Unfortunately, Pennsylvania courts often do not take the fact that Aggravated Assault is a first-degree felony seriously enough. This makes it extremely important to hire an experienced criminal defense lawyer if you are facing charges or under investigation for assault.
Facing criminal charges? We can help.
Assault Lawyers in Philadelphia
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 at trial and on appeal. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, VUFA, PWID, 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 Motion to Quash First-Degree Murder Case
Philadelphia Criminal Defense Lawyer Zak Goldstein
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire recently won the dismissal of all charges in a first-degree murder case by successfully litigating a Motion to Quash (also known as a Petition for Writ of Habeas Corpus). In the case of Commonwealth v. M.B., the Philadelphia Court of Common Pleas Judge dismissed all of the charges against M.B. after Attorney Goldstein moved for dismissal on the grounds that the Commonwealth had failed to present a prima facie case of the client’s participation in a homicide at the preliminary hearing.
In M.B., prosecutors alleged that the defendant, his brother, and their cousin had been at a block party in Southwest Philadelphia. At some point, the defendant became involved in a verbal argument with the decedent. The defendant’s brother and the man began fighting, and the defendant briefly jumped into the fight. Other partygoers broke up the fight, and the defendant, his brother, and their cousin left. The decedent also left the party shortly thereafter and went home.
A few hours later, the defendant, his brother, and their cousin went to the man’s house, which was not far from where the block party had been taking place. Surveillance video showed them entering the block prior to the shooting and leaving shortly thereafter. Witnesses testified at the preliminary hearing that as they approached the house, the brother told the defendant and the cousin to go sit down across the street, which they did. The brother then knocked on the decedent’s door. The decedent opened the door and began cursing at the brother. The brother pulled out a loaded handgun and shot him one time in the torso, killing him. The brother then crossed the street, and the three of them all left. Surveillance footage showed them walking off of the block together.
Investigators eventually recommended homicide charges against M.B. despite the fact that he had not been the shooter and had done nothing more than wait across the street while his brother went over to the house. They declined to charge the cousin. They also obviously charged the shooter, but they had not located him at the time of M.B.’s preliminary hearing.
The Philadelphia Municipal Court conducted a preliminary hearing in the case against M.B. while M.B. was represented by different counsel, and the Court held M.B. for court on charges of first-degree murder and conspiracy. Essentially, the Commonwealth argued, and the Court agreed, that M.B. must have conspired with his brother to kill the decedent and told his brother where the decedent lived. Therefore, because conspiracy can potentially result in liability for the underlying substantive criminal offense, the Court held M.B. over for trial on the murder and conspiracy charges. If convicted, M.B. would be facing a mandatory minimum sentence of life without parole.
M.B. retained Attorney Goldstein following the preliminary hearing. Attorney Goldstein promptly obtained the transcript from the preliminary hearing and filed a Motion to Quash. A Motion to Quash asks the Court of Common Pleas judge to review the findings of the Municipal Court judge or magistrate and dismiss the charges because the Commonwealth failed to establish a prima facie case that the defendant actually committed a crime. Here, the defense argued that M.B. had done nothing more than walk with his brother to the decedent’s house. There was no evidence that M.B. knew what his brother was going to do, encouraged his brother to do it, or had actually been the person who provided his brother with the decedent’s address. Further, the Commonwealth had declined to charge the cousin with the shooting. Thus, the evidence showed that it was just as likely as not that the men had gone over to the house to talk to the decedent and resolve the issues from the block party instead of going there to shoot him. Even if the brother planned to shoot the decedent, there was simply no evidence that M.B. had encouraged or facilitated it in any way. Instead, the evidence suggested that the brother may have gotten mad when the decedent opened the door and began cursing at him and acted on his own.
The Common Pleas judge reviewed the transcript, watched the video from the surveillance cameras, and held a hearing for both sides to make argument. The judge agreed with Attorney Goldstein that the evidence showed only that M.B. had been merely present at the scene of a crime. Under Pennsylvania law, it is well-established that mere presence alone is not enough to infer that a person was part of a criminal conspiracy or intended for the crime to occur. Therefore, the judge dismissed all charges against M.B. in this first-degree murder case.
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 at trial and on appeal. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, VUFA, PWID, 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.
Criminal Defense Lawyers Zak Goldstein and Demetra Mehta Rated 2019 Super Lawyers Rising Stars
Criminal Defense Attorneys Zak Goldstein and Demetra Mehta Selected to 2019 Super Lawyers
Zak T. Goldstein, Esq. and Demetra P. Mehta, Esq., Criminal Defense Attorneys at Goldstein Mehta LLC, have been named to the 2019 Pennsylvania Rising Stars list. This is an exclusive list, recognizing no more than 2.5 percent of the lawyers in the state.
Super Lawyers, part of Thomson Reuters, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process, which results in a credible, comprehensive and diverse listing of exceptional attorneys.
The Super Lawyers and Rising Stars lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in their practice of law. For more information about Super Lawyers, go to SuperLawyers.com.
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PA Supreme Court: Posting Photos of Drugs, Guns, and Money on Social Media May Not Be a Probation Violation
Philadelphia Criminal Defense Lawyer Zak Goldstein
The Pennsylvania Supreme Court has decided the case of Commonwealth v. Foster, holding that a criminal defendant may not be found in violation of probation without a proper finding by the trial court that the defendant violated a specific condition of probation. In this case, the violation of probation was based solely on the defendant’s decision to post photos of guns, drugs, and money on social media. Because the Commonwealth did not introduce any evidence that the defendant was actually in possession of the contraband or that the terms of probation specifically prohibited from posting these types of things on social media, the Supreme Court held that the defendant should not have been found to have violated his probation.
The Facts of Foster
In Foster, the defendant pleaded guilty to Possession with the Intent to Deliver of a controlled substance. He received a sentence of four years’ probation. Shortly after he started his probation, he posted photos on his social media accounts which depicted guns, drugs, and large amounts of money. The photos also included his sentencing sheet from the PWID case. The defendant’s probation officer detained him, and the trial court held a hearing on whether the defendant had violated his probation despite the fact that he had not been convicted of any new crimes and had been reporting, testing negative for drugs, and seeking employment as required.
The trial court found the defendant in violation of his probation and sentenced him to 11.5 – 23 months’ incarceration followed by a new period of probation. At the hearing, the Commonwealth essentially produced only the photographs that the defendant had posted on social media. The photographs did not show the defendant actually in possession of the drugs, money, or guns. The Commonwealth argued that he was using his social media account “as an ad agency to sell drugs” and that he was continuing to engage in illegal activity. The prosecutor further argued that the photos showed that he had no respect for the court or for probation and that he should be sentenced to a period of incarceration.
The defendant responded by admitting that the accounts in question were his, but he asserted that he had merely downloaded the photographs from the internet and re-posted them in order to show off for friends. He denied that he had ever been in possession of any contraband since starting his probation. The Commonwealth did not introduce any evidence to rebut the defendant’s position. Essentially, the defense argued that the defendant should have been smarter in terms of what he posted on the internet, but he had not violated the terms of his probation merely by showing off for friends on social media because nothing in the law governing probation or the actual terms of his probation which were provided by the probation department prohibited him from posting on social media.
The Trial Court’s Ruling
The trial court accepted the Commonwealth’s position, revoked probation, and sentenced the defendant to jail. The defendant appealed to the Pennsylvania Superior Court, which affirmed the order revoking his probation, and the defendant filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court. The Pennsylvania Supreme Court agreed to accept the case.
Is it a violation of probation to post photos of drugs and guns on social media?
Probably not. On appeal, the Pennsylvania Supreme Court found that the trial court had erred in finding the defendant in violation of his probation because there was no evidence that he had committed a new crime, violated a specific term of his probation, or actually been in possession of contraband. The Commonwealth’s bare assertions that it must have been the defendant holding the contraband in the photographs were not sufficient to prove that he had not in fact downloaded the photos from the internet and simply re-shared them.
The Supreme Court noted that when a trial court places a defendant on probation, the court must specify the length of the term of the probation at the time of sentencing. The court must also identify which conditions of probation the defendant must follow. The law provides a number of potential conditions from which a court may choose. For example, a court may properly require a defendant:
1) To meet his family responsibilities.
2) To devote himself to a specific occupation or employment.
3) To participate in a public or nonprofit community service program unless the defendant was convicted of murder, rape, aggravated assault, arson, theft by extortion, terroristic threats, robbery or kidnapping.
4) To undergo available medical or psychiatric treatment and to enter and remain in a specified institution, when required for that purpose.
5) To pursue a prescribed secular course of study or vocational training.
6) To attend or reside in a facility established for the instruction, recreation, or residence of persons on probation.
7) To refrain from frequenting unlawful or disreputable places or consorting with disreputable persons.
8) To have in his possession no firearm or dangerous weapon unless granted written permission.
9) To make restitution of the fruits for his crime or to make reparations, in an amount he can afford to pay, for the loss or damage caused thereby.
10) To remain within the jurisdiction of the court and to notify the court or the probation officer of any change in his address or his employment.
11) To report as directed to the court or the probation officer and to permit the probation officer to visit his home.
12) To pay such fine as has been imposed.
13) To participate in drug or alcohol treatment programs.
14) To satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.
15) To remain within the premises of his residence during the hours designated by the court.
Further, the statute provides when a court may find a defendant in revocation. It provides:
“The court may revoke an order of probation upon proof of the violation of specified conditions of the probation. Upon revocation the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation.”
The Pennsylvania Supreme Court’s Ruling
Here, the Supreme Court ultimately agreed with the defense on appeal that the defendant had not violated a specific term of probation. Nothing in the statute or the orders which the probation department had actually given him dictated that he could not post photos of drugs and guns on the internet. Therefore, the Court reversed the order finding the defendant in violation of his probation, vacated the jail sentence, and remanded the case back to the trial court.
It is important to note that in this case, the Commonwealth could not actually prove that the defendant possessed the guns, drugs, or cash, and the rules did not specifically prohibit him from posting these types of photos. If the Commonwealth had been able to show that he did have those things in his possession, then the Commonwealth may have been successful in proving a probation violation even if it did not proceed against the defendant on new charges. Likewise, it may be possible for probation to prohibit a defendant from engaging in this type of behavior in the future, although such rules could raise free speech concerns. Therefore, it is extremely important for a probationer to closely review the rules of probation or parole at the beginning of the supervision period and to seek experienced criminal defense counsel in the event of a potential violation.
Facing criminal charges? We can help.
Philadelphia 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 at trial and on appeal. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, VUFA, PWID, 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.