Zak Goldstein 11/3/19 Zak Goldstein 11/3/19

Attorney Goldstein Wins Aggravated Assault (F1) Jury Trial

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire recently won a full acquittal in a jury trial on Aggravated Assault charges in the case of Commonwealth v. J.B. Prosecutors charged J.B. with Aggravated Assault (F1), Aggravated Assault (F2), Simple Assault, Possession of an Instrument of Crime, and Recklessly Endangering Another Person, for an incident in which J.B. cut the complainant on her face and hands with a knife. In J.B., the Commonwealth alleged that J.B. and the complainant were roommates who had gotten into a fight after a dispute relating to damage to the complainant’s car. At some point, the fight allegedly escalated from a fist fight when J.B. pulled a switchblade knife and began stabbing the complainant. The complainant then pulled out a machete and began assaulting J.B. with the machete. However, the complainant was the first person to call police, so the police arrested J.B. and recommended that charges be filed against her.

J.B. retained Attorney Goldstein for trial, and J.B. proceeded to trial in front of a Philadelphia jury on a theory of self-defense. Attorney Goldstein’s cross-examination of the complainant on her motive to have started the fight and then lied about it, the fact that she inflicted serious injuries on J.B., and the fact that she is the type of person who carries a machete around quickly convinced the jury that J.B. had acted in self-defense and that the complainant had really been the aggressor. Attorney Goldstein was able to successfully argue to the jury that the complainant had actually been the first person to pull a knife and then had simply won the race to the police and that the police had filed charges without even giving J.B. and her witness the opportunity to tell them what had really happened. Accordingly, the jury deliberated for approximately two hours before acquitting J.B. of all charges. J.B. will be eligible to have all of the charges expunged from her record.

The key to defense in this case was the evidence that J.B. had preserved shortly after the incident. Fortunately, J.B. had documented her injuries by taking high-quality photographs which were extremely compelling. The defense was also able to obtain a copy of the 911 call (which the police would otherwise destroy within thirty days), and the 911 call showed that J.B. had also called police and that police could be heard arresting her without giving her a chance to tell them what happened. Finally, J.B. had preserved important text messages between her and the complainant which showed that J.B. had been trying to resolve the car situation and made it more likely that the complainant was the aggressor. These key pieces of evidence illustrate the importance of speaking with one of our experienced criminal defense attorneys right away if you are facing criminal charges or may be under investigation. Had J.B. waited to retain counsel, this valuable evidence could have been lost. Fortunately, J.B. was fully acquitted of these serious assault charges.

Philadelphia Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, 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 11/3/19 Zak Goldstein 11/3/19

PA Supreme Court: VUFA 6106 Statute Does Not Allow Conviction Based on Co-Defendant's Possession of Gun

Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

The Pennsylvania Supreme Court decided the case of Commonwealth v. Peters, holding that a defendant cannot be found guilty of the Uniform Firearm Act § 6106 when another person possessed the gun. This decision will likely only apply to a limited number of cases, but it is still significant because it reduces a defendant’s potential exposure for a conspiracy when that defendant did not possess the actual gun.

Commonwealth v. Peters

In August 2011, the defendant was involved in a relationship with the complainant. On the night in question, the defendant was visiting the victim at his apartment. The defendant was complaining that her father lacked rent money and was facing eviction. The complainant then showed her $700 in cash and stated that he would give the money to her father. Later that evening, the defendant and the complainant got into an argument and the victim renounced his earlier promise to assist the defendant’s father.

Shortly afterwards, the defendant left the residence and texted the complainant. The two exchanged text messages and the defendant texted him saying that he was “going to get it.” The defendant then returned to the residence and shortly thereafter let two individuals inside the complainant’s residence. One of them had a gun. When the complainant saw the man with the gun, he ran towards his bedroom. One of the individuals ransacked his room demanding the money, while the other pointed his gun at the complainant. Because they were unable to find any money, the one assailant shot the complainant. The shot pierced his jaw, tongue, and shoulder and caused the complainant to lose some teeth. The assailants eventually found the $700 and fled. The complainant was taken to the hospital and was released several days later.

The defendant was subsequently arrested and charged with attempted murder, conspiracy, robbery, aggravated assault, and violation of the uniform firearm act § 6106 (hereinafter “VUFA 6106”) which prohibits the possession of a concealed firearm without a license. At trial, the parties stipulated that the defendant did not possess a license. After the trial, the defendant was found guilty and sentenced to 13-30 years’ incarceration. The defendant then filed a timely appeal. For purposes of this article, only the appeal concerning her conviction under VUFA 6106 will be discussed.

The Superior Court’s Decision

The Superior Court denied the defendant’s appeal. The Court concluded that the defendant could have been found guilty under a constructive possession theory. In its opinion, the Superior Court recited the standard for constructive possession and then stated that the defendant “had the power to control the firearm.” Notably, as discussed later, the issue of concealment was not addressed by the Superior Court. The defendant then filed a petition for allowance of appeal with the Pennsylvania Supreme Court, which was granted for a limited review of whether the defendant could have been found guilty of VUFA 6106 under a constructive possession theory.

What is Constructive Possession?

Constructive possession is a legal fiction that permits a defendant to be convicted of a possessory crime when the defendant is not in physical possession of an item (i.e. the defendant is not holding the contraband). It is an inference arising from a set of facts that possession of contraband was more likely than not. The evidence must show a nexus between the accused and the item to sufficiently infer that the defendant had the power and intent to exercise dominion and control over it. Constructive possession is usually established by the totality of circumstances. It is important to remember though that mere presence or proximity to the contraband is not sufficient to convict a defendant under a constructive possession theory.

Appellate courts have previously held that it is possible for two people to constructively possess the same item(s). Usually, constructive possession comes into play in situations where the defendant is in the same proximity as the contraband (i.e. the defendant is in a car where contraband is found). In the instant case, the defendant was found guilty of VUFA 6106 when her co-conspirator brought the gun with him to the residence. There were not any facts in the record to suggest that she ever physically possessed the weapon.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court granted the defendant’s appeal and reversed her conviction for VUFA 6106. The Court came to this decision after a very careful review of the record. Specifically, the Court found that the defendant had been found guilty as an accomplice liability theory because she did not actually participate in the shooting and robbery of the complainant.

The Court then analyzed the VUFA 6106 statute. To be convicted under VUFA 6106, a defendant must not only possess the firearm, but he/she must also conceal the weapon. The Court then stated that usually only the actual possessor of the firearm is capable of both concealment and possession. The Court went one step further and rejected the notion that the concealment on a different person can satisfy the concealment requirement for VUFA 6106. As such, the defendant’s conviction for VUFA 6106 is vacated, and she will be resentenced on the other charges.

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, 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 10/22/19 Zak Goldstein 10/22/19

PA Superior Court Reduces Double Jeopardy Protections in Philadelphia Felony Cases

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Johnson, holding that the double jeopardy protections provided to the citizens of Philadelphia by the Pennsylvania Supreme Court’s decision in Commonwealth v. Perfetto simply do not apply to felony charges. The Supreme Court previously held that police could not file separate traffic court cases and criminal charges when a traffic stop leads to an arrest for more serious charges. This wrongly-decided decision completely undermines the Supreme Court’s ruling and allows prosecutors to subject defendants to the expense, stress, and dual penalties associated with two separate prosecutions arising from the same incident.

Commonwealth v. Johnson

A Philadelphia police officer stopped the defendant for careless driving and discovered that he had been driving with a suspended license. The police removed the defendant from the vehicle, patted him down, and found some heroin. They arrested him and charged him with Possession with the Intent to Deliver (“PWID”) and knowing and intentional possession of a controlled substance (“K&I). They also cited him for driving on a suspended license.

Before the defendant went to trial on the PWID and K/I charges in the Court of Common Pleas, the defendant was found guilty of driving with a suspended license in the Municipal Court of Philadelphia. Consequently, the defendant filed a motion to dismiss his drug case under 18 Pa. C.S.A. § 110 (“Rule 110”), which provides double jeopardy protections to citizens of Pennsylvania. Specifically, the defendant argued that the Commonwealth should have tried the defendant for the driving with a suspended license charge and his PWID charge at the same time because they arose out of the same incident. Per the defendant, the failure to do this not only violated his rights under Rule 110, but also his right against Double Jeopardy under both the Pennsylvania and Federal Constitutions.

The trial court denied the defendant’s motion to dismiss. The trial court opined that because Philadelphia has a separate traffic court, the traffic citation can be disposed of without violating a defendant’s Double Jeopardy rights. The defendant then filed an interlocutory appeal arguing that the trial court improperly denied his motion to dismiss. While his appeal was pending, the Pennsylvania Supreme Court decided the case of Commonwealth v. Perfetto. Perfetto, which will be discussed in more detail, was factually similar to this case. Therefore, in his appeal, the defendant argued that Perfetto should control and the felony charges should be dismissed.

Is Philadelphia’s Court System Different from Other Court Systems in Pennsylvania?

Yes. A quick refresher on Philadelphia’s court system will be necessary to fully understand the Johnson decision. When a defendant is charged with a felony in Philadelphia, he or she will first usually have a preliminary hearing in Municipal Court. If the Municipal Court judge finds that the Commonwealth provided sufficient evidence to establish a prima facie case for the charges filed against the defendant, then the case will be transferred to the Court of Common Pleas for further proceedings including trial. The defendant cannot have his felony cases heard in the Philadelphia Municipal Court (unless it is a first offense marijuana PWID). The defendant also cannot plead to a felony, with the exception of the aforementioned crime, in Municipal Court.

If a defendant is only charged with misdemeanors or summaries, including traffic citations, then the defendant will not receive a preliminary hearing. Instead, the case will go straight to trial before a Municipal Court judge. It is difficult for the defendant to demand a jury at this stage, and there are no jury trials in the Municipal Court. If the defendant is found guilty of any of the charges filed against him or her, the defendant then has the right to a de novo appeal in the Court of Common Pleas. If the defendant chooses to de novo appeal his case, the defendant will get a new trial on the remaining charges. If the defendant wants to, he can also elect to have a jury trial once the case reaches the Common Pleas level. Most defendants do not appeal to the Court of Common Pleas, but this system often benefits the defense because the Commonwealth actually has to convict a defendant twice in order to obtain a final conviction.

What happened in Commonwealth v. Perfetto?

For a more detailed analysis, please refer to our previous blog about Commonwealth v. Perfetto. For purposes of this blog, only a brief summary of the decision will be given. Commonwealth v. Perfetto is a Pennsylvania Supreme Court that was decided earlier this year. This case was significant because it held that if a defendant is charged with both a criminal case and a traffic case (and the defendant is acquitted or found guilty of his traffic case before his criminal case was resolved), then Rule 110 would prohibit the subsequent prosecution of the criminal case because of Double Jeopardy. This case is very significant because so many defendants were given a traffic citation after they were arrested for their underlying criminal case.

Because of Perfetto, defendants used Rule 110 to dismiss not only misdemeanor cases, but felony cases too. It is important to note that the facts of Perfetto only involved a Municipal Court case (i.e. a case that has a maximum penalty of five years or less). Perfetto did not involve a felony case and its holding also did not explicitly address whether it applied to felony cases. More specifically, Perfetto did not address whether 18 Pa. C.S.A. § 112 (hereinafter “Rule 112”) was applicable. As discussed later, this would prove to be decisive for the Superior Court.

What is Rule 112?

Rule 112 states that a subsequent prosecution is not barred by a former prosecution if the former prosecution was before a court which lacked jurisdiction over the defendant or the offense. In its appeal, the Commonwealth argued that the defendant’s motion should not be granted on the PWID charge because the Municipal Court could not hear the defendant’s case because the charge has a maximum penalty of more than five years. In its brief, the Commonwealth conceded that the K/I charge should have been dismissed because the Municipal Court did have jurisdiction to hear that particular charge.

The Superior Court’s Decision

The Pennsylvania Superior Court held that the K/I charge was properly dismissed, but the defendant must face trial for the PWID charge. The Superior Court opined that a defendant cannot obtain Double Jeopardy relief for his felony case when his traffic case is resolved. The reason is because of Rule 112. Specifically, because a defendant cannot have a trial for a felony charge in Municipal Court (unless it is a marijuana PWID as previously discussed), Rule 112 is implicated. Therefore, because Rule 112 is implicated, the defendant’s Double Jeopardy rights were not implicated when a defendant resolves his traffic court case. As such, for now, the defendant will have to face trial on his remaining PWID charge. This case is likely to receive review by an en banc of the Superior Court and/or the Supreme Court.

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, Possession with the Intent to Deliver, 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 10/20/19 Zak Goldstein 10/20/19

Attorney Goldstein Wins Dismissal of Gun Charges at Preliminary Hearing

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire recently won the full dismissal of gun charges at the preliminary hearing in the case of Commonwealth v. A.V.

In that case, A.V. was charged with illegal possession of a firearm on the streets of Philadelphia, possession of a concealed weapon without a permit, and possessing an instrument of crime after Philadelphia police officers arrested him for allegedly starting to engage in a drug transaction. Officers testified that while on routine patrol, they saw A.V. and another man standing in the street. A.V. received money from the other man and then went into a nearby van. The officers could not see what he was doing in the van, and someone down the block started to yell police. At that point, the other man walked into a corner store, and A.V. began to walk down the sidewalk.

Police stopped the other man in the corner store, arrested A.V., and then searched the van. They found money in the front of the van and a gun hidden under some clothes in the back. They also found a quantity of drugs in the street, but they did not find any drugs on the man with whom they believed A.V. had been engaging in a drug transaction.

A.V. retained Attorney Goldstein for the preliminary hearing. Attorney Goldstein cross-examined the officers on the fact that they had not seen A.V. provide the other person with any drugs, the van was not registered to him or linked to him by any paperwork, neither man had actually run away, the officers had not seen A.V. drop any drugs on the ground, and the gun that they recovered had been hidden under clothes in the back of the van such that someone could go into the vehicle without even realizing that the gun was there.

Given the fact that A.V. never actually possessed the gun, the ties to the van were tenuous at best, A.V. did not run or have any drugs on him, and police had done no forensic testing to see if A.V.'s DNA or fingerprints were on the gun, the Municipal Court judge agreed that the Commonwealth simply failed to prove that A.V. actually or constructively possessed a firearm without a license on the streets of Philadelphia. Accordingly, the judge dismissed all of the charges.

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, Theft, 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.