Philadelphia Criminal Defense Blog

Zak Goldstein 9/28/19 Zak Goldstein 9/28/19

PA Superior Court: Trial Court Abused Discretion in Dismissing Case Due to Witnesses Being Late

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Superior Court has decided the case of Commonwealth v. Ligon, holding that the trial court abused its discretion when it dismissed a criminal case due to the late arrival of witnesses despite the fact that the prosecutor indicated that he was ready to begin the trial and that they were on their way.

Commonwealth v. Ligon

Philadelphia police arrested the defendant in March 2012 and charged him with multiple crimes, including charges of robbery, burglary, aggravated assault, and various violations of the Uniform Firearms Act. The charges stemmed from an alleged incident that took place in September 2011 involving a Mr. Brady and his grandmother Ms. Martin.

The defendant’s case would be subsequently continued five times before his preliminary hearing was held and the municipal court judge found that there was enough evidence to go to trial on the charges. After his preliminary hearing, his case was then assigned to a Court of Common Pleas judge. When it reached the trial room, his case again was continued a “copious” amount of times. Eventually, his case again was continued and then reassigned to a different trial judge. This trial judge then granted two more continuances, one due to a court conflict and one because the assigned prosecutor had another trial.

The trial finally began on December 5, 2016 and on that day, the parties picked a jury. The following morning, before the jury came into the courtroom, the assigned prosecutor told the trial court that the complaining witnesses had not arrived. The prosecutor stated that although she had arranged a ride for the complaining witnesses, they did not answer the door. The prosecutor further stated that she had been in constant contact with them, having spoken with both the day before trial and having met with one of them on the Friday preceding trial. Based on these conversations, the prosecutor asked for “a little bit more time” for the witnesses to arrive. The trial court said that it could “probably give [the Commonwealth] till 11 [AM].”

When the court reconvened at 11:00 AM, a different prosecutor addressed the court and explained that the probation officer of Mr. Brady was attempting to contact him and that the Commonwealth had arranged for additional transportation to get him because Mr. Brady was in a wheelchair. The trial court then stated that it would recess the proceedings until 11:45 AM. At 12:00 PM, the assigned prosecutor stated that the witnesses were “on their way” and that she was ready to proceed with trial and asked if she could begin with her opening statement. The trial court replied that the witnesses were supposed to be there at 9:30 AM. The prosecutor then repeated that the witnesses were on their way. She then stated that she could do the opening statement and then put on another witness by the end of which she was “absolutely certain” the complaining witnesses would arrive. The trial court declined to allow the prosecutor to proceed with her case and discharged the case against the defendant. The Commonwealth then filed a timely appeal, arguing that the trial court abused its discretion when it discharged the case against the defendant.

What is the Abuse of Discretion Standard?

It can often be difficult for an appellant to win a case on an abuse of discretion standard. The abuse of discretion standard requires appellate courts to give great deference to the trial court in making its decision. As stated in a recent Pennsylvania Supreme Court case, an abuse of discretion only occurs “where the trial court misapplies the law, or where the judgment is exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will.” Further, appellate courts are not supposed to step in the shoes of the trial court. As such, this standard can be very difficult to win under, and usually the appellate courts will defer to the trial court. It is worth noting that it is usually defendants who, on appeal, argue that the trial court abused its discretion.

The Superior Court’s Decision

The Superior Court held that the trial court abused its discretion when it discharged the case against the defendant. In its brief opinion, the Superior Court stated that a trial court must take into account the public interest when determining whether to dismiss a case. The Superior Court stated that the trial court did not do this. The Superior Court’s opinion omits any real discussion on why the public interest was harmed by the dismissal of this case. Further, the Superior Court essentially stated that trial courts are to assume that prosecutors are telling the truth when they say they will be ready for a case.

Further, the Superior Court cited Commonwealth v. Carson in support of its position that the trial court abused its discretion. Carson is easily distinguishable from the instant case. In Carson, the trial court stated the reason the case was discharged was because of its court schedule and specifically chastised the Allegheny District Attorney’s Office for its tardiness and its excuses. In the instant case, the trial court did not state its schedule was the reason why the case was being discharged. It stated that the case had not gone to trial in the 1,782 days after the complaint had been filed. Further, it ignored the fact that the Commonwealth offered no corroborative evidence that their witnesses were actually coming to court. As such, the only evidence to support this was the Commonwealth’s representations. Nonetheless, the Superior Court still found that the trial court abused its discretion in dismissing the case and therefore the defendant will have to face trial for these charges (assuming the witnesses actually show up to court).

Facing criminal charge? We can help.

Criminal Defense Attorneys 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 state and federal 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.

Zak Goldstein 9/25/19 Zak Goldstein 9/25/19

What is the penalty for getting arrested for drugs or guns while on state parole in Pennsylvania?

Pennsylvania State Parole Violations

The impact of new criminal charges for a person who is on state parole in Pennsylvania can be very confusing for the defendant and his or her loved ones. In general, a new arrest while under state parole is going to result in at least some amount of jail time because the parole board almost always lodges a parole detainer following a new arrest for a misdemeanor or felony criminal charge. Additionally, once the parole board lodges the detainer, it is usually not possible to get the detainer lifted because the judge who sentenced the defendant to prison time does not have the authority to have a state detainer lifted. Instead, only the parole board can lift the detainer, and the board usually does not do this unless the defendant has served the maximum sentence (“maxed out”).

The parole board can impose severe consequences for a conviction for a new offense. This can include both taking away the parolee’s “street time,” meaning the time served on parole would not count towards the sentence, and requiring the parolee to serve a state parole hit or additional time in state prison. Therefore, if you or a loved one are facing new criminal charges while on state parole, it is important to retain a defense attorney who has the skill and expertise to resolve the case in a timely manner and in a way that minimizes the parole consequences. It is important to retain a defense attorney who is well-versed in what those potential consequences could be. In some cases, a defendant on state parole may simply need to do everything possible to win the case in order to avoid a set back, and in others, it may be possible to negotiate a plea deal that does not result in a significant amount of additional jail time or that reduces the amount of time that the parole board is likely to impose.

Pennsylvania State Parole Set Backs for New Drug Charges

Deciding whether to go to trial or accept a plea deal is an extremely important decision for every criminal defendant. This decision can be even more difficult for a defendant who is on state parole because the defendant has to consider both the sentence that he or she would be facing on the new case as well as the sentence that the state parole board would be likely to impose. Fortunately, the parole board provides guidelines as to what kind of sentence a parolee can expect to serve in the event of a parole violation so that the system is not totally arbitrary.

With respect to a new drug charge, the length of potential jail time for the parole violation depends on the type of the drug charge and the gradation of the offense.

The regulations provide that a drug felony with a maximum of 15 years, such as the sale of heroin, could lead to a 24 to 36 month sentence for the parole violation.

A drug felony with a maximum of ten years in prison, such as the sale of cocaine or crack, has a presumptive range of 18 months to 24 months in prison for the violation.

A drug felony with a maximum of five years, such as the sale of marijuana, has a shorter presumptive range of 9 to 15 months in state prison.

Misdemeanor narcotics offenses are punished less severely. A misdemeanor with a maximum of 2 or 3 years is likely to lead to a 6 to 12 month hit, while a misdemeanor with a maximum of one year is likely to lead to a 3 to 6 month hit.

It is important to note that these presumptive ranges are simply advisory. It is always possible that the parole board could impose a longer or shorter sentence for a direct violation of state supervision.

Pennsylvania State Parole Hits for Gun Charges

The parole board also provides a presumptive setback for a Violation of the Uniform Firearms Act (“VUFA charge” or gun charge). According to the regulations, any defendant who is on state parole and is convicted of illegally possessing a firearm is likely to face an additional 18 months to 24 months in state prison in addition to whatever sentence the defendant receives on the new case. Therefore, a new gun charge arrest can be an extremely serious situation for a parolee.

Can I get a state parole detainer lifted?

In general, you cannot get a state parole detainer lifted. In most cases, the defendant will remain in jail until the new case is resolved. If the defendant serves the maximum sentence, then the parole board would likely lift the detainer because the defendant would no longer be on parole.

Can I get a county probation detainer lifted?

It is important to note that this discussion applies only to state parole detainers. County probation and state-supervised probation is very different. These presumptive ranges do not apply to potential probation violations. Instead, the judge which sentenced the defendant to probation would decide what sentence to impose in the result of a direct violation, and that sentence is not limited by any guidelines. At the same time, the judge may lift a probation detainer if the defendant’s lawyer files a motion to have the detainer lifted.

Can I get a county probation detainer lifted if I am being supervised by the state?

In some cases where a defendant receives a state sentence followed by a period of county probation, the judge may order that the state parole board supervise the defendant once the defendant is released and on probation. In that case, the defendant would be supervised by a state agent, but the judge would still retain jurisdiction to decide the penalty for a violation. The judge would also still have the authority to lift a detainer.

What should I do if I’m arrested for a new charge and am on state parole?

You should retain an experienced criminal defense lawyer who can give you the best possible chance to win your case at trial, preliminary hearing, or through a motion to suppress, or reduce the potential parole consequences through negotiations. 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, 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.

Zak Goldstein 9/19/19 Zak Goldstein 9/19/19

Not Guilty: Attorney Goldstein Wins Full Acquittal in Rape Jury Trial

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire recently won a full acquittal from a Philadelphia jury on Rape charges in the case of Commonwealth v. J.B..

In this case, the complainant alleged that her mother's boyfriend, J.B., had been regularly beating her with a belt and sexually assaulting her. She claimed that these incidents would usually happen when she got in trouble at school or otherwise failed to follow the rules in the home. She also claimed that this would often happen when her mother or siblings were home, but no one saw anything or did anything about it. Based on her complaint, Philadelphia Police arrested J.B. and charged him with Rape, Unlawful Contact with a Minor, and Indecent Assault.

Knowing that these cases are extremely difficult to defend and win at trial, J.B. retained Attorney Goldstein for trial. Upon reviewing the discovery for the case, Attorney Goldstein quickly saw that there were major problems with the complainant's story, and Attorney Goldstein was able to show those problems to the Philadelphia jury.

First, the complainant had made similar allegations to her sister and mother prior to going to the police but then admitted to them that she had made the story up because she was afraid of getting in trouble for receiving a bad report card at school.

Second, although she claimed that J.B. had beaten her with a belt and sexually assaulted her two days before she went to the police, not a single investigator had seen her with any kind of bruising or injuries. The police officers who investigated, the DHS worker who was assigned to her case, and the medical professionals who examined her at the hospital all failed to note any injuries or bruising of any kind.

Third, there were major inconsistencies in her story that Attorney Goldstein was able to highlight on cross-examination.

Finally, she claimed that this had all happened in broad daylight in front of numerous family members, but none of the family members had seen anything or corroborated her story, and the Commonwealth had also not obtained any physical or forensic evidence linking J.B. to any kind of assault in any way.

Attorney Goldstein successfully cross-examined the complainant on these major holes in her story and highlighted the lack of any other corroborating evidence for the jury. Faced with the problems in the testimony and the lack of physical evidence, the jury quickly acquitted J.B. of all charges.

These types of cases are extremely difficult to defend and win in today's climate. Jurors are under a significant amount of pressure to believe the alleged victim in a sexual assault case even in the absence of any corroborating evidence. Therefore, if you or a loved one are facing criminal charges for alleged sexual misconduct, it is extremely important that you retain counsel with the skill and experience necessary to properly defend you in court and protect the presumption of innocence.

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, DUI, PWID, Rape, and Murder. We have also won new trials on appeal and in Post-Conviction Relief Act litigation for clients who were wrongfully convicted or who received the ineffective assistance of counsel. 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 9/16/19 Zak Goldstein 9/16/19

PA Superior Court: No New Trial Even Though Judge Was Stealing Cocaine from Evidence Storage

The Pennsylvania Superior Court has decided the case of Commonwealth v. Urwin, holding that the defendant should not receive a new trial in his Murder case despite the fact that the trial judge was later convicted of stealing cocaine from evidence around the time that the judge presided over the case. The Court found that the defendant failed to successfully prove that the judge was actually under the influence at the time of the trial, and therefore the judge’s ongoing thefts did not necessarily mean that the judge was unfair during the trial.

Commonwealth v. Urwin

The decedent’s body was discovered in a field in Washington County in February 1977. The police determined that the cause of death was blunt force trauma to the head. The investigators were able to locate her clothing which was scattered nearby and the police seized it as evidence. The victim was last seen with the defendant and a Mr. Davoli, however the charges against Mr. Davoli were dismissed at the preliminary hearing. At the time, the defendant was not charged with her death.

The case remained unsolved for several decades until the victim’s clothing was submitted for DNA testing in 2009. The results of the testing contained the profiles of both the defendant and Mr. Davoli. The police then questioned Mr. Davoli, and he confessed to his and the defendant’s involvement in the victim’s death. The defendant was subsequently arrested and charged with first degree murder. The defendant was very concerned about proceeding by way of jury trial because he thought that female jurors would not be sympathetic to him. As such, the defendant elected to have a bench trial in front of the Honorable Paul Pozonsky.

At his trial, Mr. Davoli testified against the defendant. He testified that he and the defendant each had sex with the victim and then the defendant dragged her from the vehicle and beat her with a car tool. The court convicted the defendant of third-degree murder and sentenced him to 10-20 years’ incarceration. The defendant then appealed to the Pennsylvania Superior Court. The Superior Court affirmed his sentence and, the Pennsylvania Supreme Court denied his petition for allowance of appeal.

The PCRA Petition

The defendant then filed a timely Post-Conviction Relief Act (hereinafter “PCRA”) petition. In his PCRA petition, he raised several claims based on trial counsel’s alleged errors. He also asserted that Judge Pozonsky had been convicted of theft of cocaine and that he had been using cocaine during the trial. Specifically, Judge Pozonsky would order police to deposit cocaine in the evidence locker in his courtroom and then take it it for his personal use. The defendant therefore argued that he had an incompetent tribunal which violated his right to due process. A different judge presided over the PCRA litigation, and that judge ordered a hearing at which the defendant’s trial counsel and other witnesses testified.

During the hearing, the witnesses were asked about Judge Pozonsky’s behavior during the trial. The defendant’s sister testified and said that Judge Pozonsky was “acting funny” and “not paying attention to the proceedings.” Additionally, the defendant’s trial counsel stated that although Judge Pozonsky acted not as one might expect a judge to act, he dismissed it “because he always appeared that way.” Further, the Assistant District Attorney who prosecuted the defendant’s case stated that Judge Pozonsky’s behavior was “consistent” with the other experiences he has had with the judge over the years. Ultimately, the defendant’s PCRA petition was denied because he failed to adequately show that Judge Pozonsky was under the influence of cocaine during his trial. The defendant then filed a timely appeal.

Can You File a PCRA Petition Because of a Judge’s Actions?

Sometimes. Typically, PCRA petitions allege either after-discovered evidence or ineffective assistance of counsel. However, the PCRA statute is not limited to just those two avenues of relief. 42 Pa C.S.A. § 9543 (a)(2)(i) allows a defendant to get relief if “[a] violation of the Constitution of this Commonwealth or the Constitution or laws of the United States, which in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” In the instant case, the defendant argued that he should receive a new trial because Judge Pozonsky was using cocaine during his trial and this undermined the reliability of his conviction.

The Superior Court’s Decision

The Superior Court denied the defendant’s appeal. The Superior Court agreed with the PCRA court that the defendant had not met his burden. The Superior Court found that Judge Pozonsky was not addicted to cocaine even though he would regularly order police officers to deposit cocaine in an evidence locker in his courtroom and would use this cocaine for his personal use. The Superior Court cited Judge Pozonsky’s disbarment opinion as evidence that he was not addicted to cocaine. Therefore, the Superior Court determined that the defendant’s claim that Judge Pozonsky was high during his trial as “speculative at best.” As such, the defendant was not entitled to relief, and he will have to serve his sentence barring further appeals.

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 and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, 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.