Philadelphia Criminal Defense Blog
PA Superior Court: Multiple Possession of Child Pornography Counts Do Not Combine for Purposes of Sentencing Enhancement
The Pennsylvania Superior Court has decided the case of Commonwealth v. Christman. holding that the trial court should not combine possession of child pornography charges to trigger the sentencing enhancement. As will be discussed in greater detail below, a defendant can be subjected to a sentencing enhancement if they are in possession of a certain number of child pornography images. This decision is significant because the Commonwealth will frequently charge a defendant with multiple charges of possessing child pornography (i.e. if a defendant is in possession of eleven videos, they will charge them with eleven counts). However, if the Commonwealth does do that, then they can no longer combine each count to trigger the sentencing enhancement.
Commonwealth v. Christman
On January 11, 2016, the defendant pleaded guilty to eleven counts of sexual abuse of children in Blair County, Pennsylvania. Specifically, the defendant admitted to possessing eleven videos depicting child pornography. It also appears that this was an open guilty plea, which means that the defendant and the prosecution did not negotiate a recommended sentence. The judge sentenced the defendant to an aggregate term of 36 to 72 months’ incarceration. The defendant received this sentence, in part, because the trial court applied the “Sexual Abuse of Children Enhancement” sentence that allows a court to increase the guidelines for a defendant when he or she is in possession of a specific amount of child pornography. Notably, the defendant did not file a post-sentence motion.
The defendant then filed a timely notice of appeal. His first appeal was denied by the Superior Court. The Superior Court’s logic was that his appeal was a challenge to the discretionary aspects of his sentence and because he failed to file a post-sentence motion he had waived the issue. Undeterred, the defendant then filed a timely petition under the Post-Conviction Relief Act (PCRA) alleging that his trial counsel was ineffective by not preserving his sentencing claim that the sentencing enhancement should not have applied. The court then appointed a new attorney for the defendant and after conducting an evidentiary hearing, the court granted his petition and reinstated his post-sentence motion and direct appeal rights.
The defendant then filed a nunc pro tunc post-sentence motion raising his challenge to the court’s application of the 18-month sentencing guideline enhancement. The trial court then denied that motion. The defendant then filed a nunc pro tunc notice of appeal. On appeal, he raised two issues: 1) whether the trial court abused its discretion in applying the sentencing enhancement to all eleven charges of sexual abuse of children and 2) whether the trial court erred as a matter of law by applying the sentencing enhancement to all eleven counts. The defendant specifically argued that the trial court improperly applied the sentencing enhancement because he was sentenced on eleven separate counts for possessing eleven separate videos and thus because these videos, by themselves, did not contain enough images to trigger the sentencing enhancement, the trial court should not have applied it to him.
What is the Sentencing Enhancement for Possessing Child Pornography?
204 Pa Code § 303.9 (I) lists the sentencing enhancements for a defendant who is convicted of possessing child pornography. Per § 303.9(I), a defendant’s guidelines can increase due to the number of images of child pornography the defendant possessed. For example, if a defendant was found to have more than 50 images, but less than 200, then six months are added to both the lower and upper limit of the standard range of one’s guidelines. If the offender is found to possess more than 200, but less than 500, twelve months are added to both the lower and upper limits. Finally, if a defendant is found to have more than 500 images of pornography, then eighteen months are added to both the lower and upper limits.
How Do Videos Impact the Sentencing Enhancements for Child Pornography?
204 Pa Code § 303.10 (e)(ii) provides guidance on this question. Though it can be done, it is typically difficult to determine how many images are in a video that contain child pornography. § 303.10 (e)(ii) states that a court “shall” consider that each video, video clip, or movie contains 50 images. It is worth noting that, per § 303.9 (I), 50 images would not be enough to trigger the sentencing enhancement.
The Superior Court’s Decision
The Superior Court agreed with the defendant and reversed his sentence. In making its decision, the Superior Court first analyzed the plain language of both § 303.9(I) and § 303.10 (e)(ii). In reading these statutes, the Superior Court found that the sentencing enhancement is only triggered when each violation meets the criteria. Thus, a court must examine each conviction to determine if it meets the requirement that offender possessed more than 50 images before the guideline enhancement may be applied.
In the instant case, the defendant pleaded guilty to eleven counts of child pornography. Because each count was possession of one video, and that video only counted as 50 images as provided by the statute, the trial court should not have applied the sentencing enhancement to any of the charges. Further, the Superior Court reminded the Commonwealth that they had made a strategic decision to charge the defendant with eleven separate counts of possessing child pornography. The Commonwealth could have elected to charge him with fewer counts, but with enough images to trigger the sentencing enhancement (i.e. made one charge possession of two videos). For whatever reason, the Commonwealth chose not to do this. Therefore, because of the trial court’s error in applying the sentencing enhancement, the defendant will get a new sentencing hearing.
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.
PA Issues New Sentencing Guidelines for Probation Violations
Probation Lawyer Zak Goldstein
The Pennsylvania Sentencing Commission recently issued new guidelines concerning violation of probation hearings (“VOP hearings”). The Sentencing Commission’s decision could dramatically change the way in which probation violations in Philadelphia and throughout the state are handled because the court no longer has unlimited discretion in fashioning a sentence. Further, the Sentencing Commission has created the guidelines in such a way that they recommend significant prison sentences for most probation violations no matter how minor. It will take some time to see how seriously judges take the guidelines, and there has also been a recent push in the legislature to limit the unlimited discretion of judges to impose extreme prison sentences for probation violations which could lead to future changes. For now, however, the creation of these guidelines, which typically recommend jail time, appear to be a step in the wrong direction.
What is a Violation of Probation Hearing in Philadelphia?
A VOP hearing occurs when a defendant violates a judge’s probation. There are two types of potential violations: technical violations and direct violations. Technical violations occur when the defendant does not comply with some condition of his or her probation. For example, let’s assume that a condition of a defendant’s probation is that the defendant attend anger management classes. If the defendant does not go to the anger management classes, then the probation officer could recommend that the judge find the defendant in violation of his or her sentence. The judge, after holding a hearing, could then decide to revoke the defendant’s probation, impose a new period of probation, or even impose a period of incarceration on the defendant. This is just one example. Judges are given broad discretion in fashioning their sentences and thus can impose a variety of conditions on a defendant. This means that a defendant can be found in violation of probation and sentenced to prison without committing any new crimes.
Direct violations are usually more serious than technical violations. A direct violation occurs when a defendant is convicted of a new crime while on probation for another crime. Judges will often impose harsher sentences on defendants who have committed direct violations than on defendants who have committed technical violations, and potential direct violations often lead to probation detainers which prevent the defendant from being released until the new case has been resolved. Additionally, a defendant’s back judge can impose a sentence that is consecutive to the sentence the defendant received on his new case. Therefore, direct violations can cause great harm to a defendant.
What Are the New Sentencing Guidelines?
The new sentencing guidelines affect both technical and direct violation hearings. If a defendant is found to be in technical violation, then the court is to consider the defendant’s original guidelines from the time of sentencing on the offense when deciding on a new sentence. For example, let’s assume that a defendant was serving a sentence on an Aggravated Assault that is graded as a felony of the first degree. Let’s also assume that when he was sentenced, he had a prior record score (“PRS”) of 1. As such, his guidelines were 42-60 months of incarceration, with the judge given the discretion to add or subtract 12 months to or from the sentence. Now let’s assume that this defendant was ordered to attend anger management classes, but he did not do so. At his VOP hearing, per the new sentencing guidelines, the court could sentence him to anywhere from 30-72 months for this technical violation. As such, a defendant can receive a worse sentence than what he originally received based on these new guidelines.
Things get worse if you are in direct violation on your probation based on the new sentencing guidelines. If you receive a direct violation, your new guidelines are most likely higher than they would be if you only had a technical violation. Instead of being sentenced to the original guidelines, if a defendant is found to be in direct violation, then the defendant will be resentenced on an increased PRS (the courts add one point for defendants with a prior PRS of 0-4, if a defendant is a 5, REVOC, or RFEL then no points are added).
To help explain this, let’s use our defendant from the previous example. Instead of not attending his anger management classes, he picks up a simple assault case which results in a conviction. At his Gagnon II hearing at which he is re-sentenced, the judge must now add a point to his PRS. So instead of being a 1, he is now a 2. Now his guidelines for resentencing are 48-66 months of incarceration plus or minus twelve months for aggravating or mitigating circumstances. Therefore, because of his new direct violation, his guidelines on his VOP range from 36-78 months. As one can see, these new guidelines are significant and can result in defendants spending more time incarcerated than they previously would have been. In many ways, this is actually worse than simply leaving it to the discretion of the judge as the rules require that the judge consider these guidelines when imposing a sentence and place any reasons for departing from them on the record.
The problem with these guidelines is that the sentencing guidelines call for jail in almost all cases. It can be almost draconian to impose a significant jail sentence on someone for not complying with a condition of their probation or even being convicted of a minor crime such as a misdemeanor. If fully implemented, these guidelines have the potential to worsen the mass incarceration problem instead of alleviating it.
Are The New Sentencing Guidelines Mandatory at a Probation Violation Hearing?
No. Just like the sentencing guidelines for the original conviction, courts are not required to impose guideline sentences. If a court imposes a sentence outside of the guidelines, then the judge must state in open court the reasons for the revocation and the sentence imposed. If a court imposes a sentence outside the guidelines, then the court must document the reasons why on the “Guideline Sentence Form” which then will be electronically submitted to the Pennsylvania Commission on Sentencing. This means that the guidelines are not binding on the court. But judges do tend to consider the guidelines and take them seriously when imposing sentence.
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Probation Violation Lawyers
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: No Basis for Stop Due to Mere Possession of Concealed Gun
The Pennsylvania Superior Court has decided the case of Commonwealth v. Price, holding that the police cannot stop you simply because they believe you have a concealed gun without some other basis for concluding that you are possessing the gun illegally or without a license to carry. This decision is not a surprise given the Pennsylvania Supreme Court’s holding in Commonwealth v. Hicks, and it is reassuring that the Superior Court is following the Supreme Court’s precedent and respecting the Second and Fourth Amendments.
Commonwealth v. Price
A Philadelphia Police Officer was working in an unmarked patrol vehicle with his partner when they received a radio call to respond to the 5100 block of Willows Avenue. According to the police, this is a high crime area, particularly for crimes of video. The radio call was for a black male wearing a white t-shirt and gray shorts. He was also driving a silver Lexus and carrying a firearm. There was no other information given to the police to suggest that he was doing anything with the gun or was not eligible to possess a gun.
At the motion to suppress hearing, the testifying officer stated that he and his partner arrived at the intersection of 51st and Willows Avenue within a minute of receiving the radio call. They then saw a silver Lexus facing westbound and stopped at stop sign. The Lexus then proceeded through the intersection and past the unmarked police vehicle. As the Lexus passed the officers’ car, one of the officers observed that the driver was a black male who was wearing a white t-shirt. The officers then turned their vehicle around and followed the Lexus until it pulled into a parking spot. The officers then stopped their vehicle and activated their lights.
One of the officers then exited the police car and approached the passenger side of the Lexus. One of the windows was down, and the officer could see that the driver, the defendant, was wearing gray shorts in addition to wearing a white t-shirt. The defendant had his hands on the steering wheel and did not respond when asked if he was carrying a firearm. One of the officers then walked to the driver’s side of the Lexus, opened the door, and asked the defendant to step out. The defendant complied with the officer’s request. He then stood up, and as he turned, the officer could see that he had a large bulge in the stomach area of his waistband. In response to seeing this bulge, both officers grabbed the defendant’s arms. One of the officers then felt the bulge and found “that it felt like a hard metal object.” The officers then handcuffed the defendant and removed from his waistband a Kel-Tec 9-millimeter gun.
As the officers were arresting the defendant, they were approached by a woman. She identified herself and told the officers that she was the one who called 9-1-1. She then pointed to the defendant and said “that’s him” and asked if they recovered the gun. The woman stated that she called 9-1-1 because she observed the defendant put an item in the trunk of a vehicle and that “he loaded bullets into a brown bag and placed that item into the trunk of the vehicle.” The woman was then taken to the police station where she gave a statement.
After speaking with the woman, the officers asked the defendant if he had any other bullets in the vehicle. The defendant responded that there were bullets in the trunk, and gave the officers written permission to retrieve them. In the trunk, the officers found a brown corduroy bag containing 41 live rounds of 9-millimetere ammunition, six blue latex gloves, and one pair of black leather gloves.
The defendant was then subsequently arrested and charged with possession of a firearm by a prohibited person (VUFA 6105), firearms not to be carried without a license (VUFA 6106), and possession of a firearm in the City of Philadelphia (VUFA 6108). Prior to trial, the defendant filed a motion to suppress arguing that he had been seized without probable cause or reasonable suspicion. At the hearing, the above stated facts were presented and entered into evidence. At the conclusion of the hearing, the trial court denied the defendant’s motion to suppress. Afterwards, he proceeded to a non-jury trial where he was found guilty of the above offenses and sentenced to five to ten years’ incarceration followed by five years’ probation. The defendant then filed a timely appeal.
The Superior Court initially denied the defendant’s appeal, holding that possession of a concealed firearm by an individual in public is sufficient to create a reasonable suspicion that the individual may be dangerous. This would permit an officer to briefly detain him in order to investigate whether the person is properly licensed. This was known as the Robinson rule. After his appeal was denied, the defendant petitioned the Pennsylvania Supreme Court for allowance of appeal. On May 31, 2019, the Pennsylvania Supreme Court decided Commonwealth v. Hicks, and this decision overturned the Robinson rule. Because of this decision, the Supreme Court remanded the defendant’s case back to the Superior Court for further review in light of Commonwealth v. Hicks.
What Happened in Commonwealth v. Hicks?
For a more detailed analysis of Commonwealth v. Hicks, please see our blog “PA Supreme Court: Police Cannot Legally Stop You Just for Carrying a Gun.” (https://goldsteinmehta.com/blog/pa-supreme-court-police-cannot-legally-stop-you-just-for-carrying-a-gun) In Hicks, the Pennsylvania Supreme Court held that the police cannot stop someone just because they have a gun. As such, a trial court must look at the totality of the circumstances to determine whether there are additional facts that would warrant a lawful stop by the police. The fact that a defendant is possession of a firearm can play a role in that analysis, but it cannot be the sole reason why an officer stops a defendant.
The Superior Court’s Decision
In light of Hicks, the Superior Court reversed itself and found that the trial court improperly denied the defendant’s motion to suppress. The Superior Court held that because “there was no evidence that the police had reason to believe that [the defendant] was carrying a firearm illegally or was engaged in any other illegal activity” the police illegally stopped the defendant. As such, the gun that was obtained from his waistband cannot be used against him in his trial. The defendant’s sentence is also vacated and he will now get a new trial.
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.
PA Superior Court: Constructive Possession Allows for Firearms Conviction Even When Firearm Not Immediately Accessible
Criminal Defense Lawyer Zak Goldstein
The Pennsylvania Superior Court has decided the case of Commonwealth v. Gomez, affirming the defendant’s conviction for gun charges even though the gun was not on him and was not immediately accessible to him because it was in a locked safe. The Court also affirmed the defendant’s conviction for receiving stolen property with respect to the firearm, which had been reported stolen, because it found that the circumstances showed a guilty conscience on the part of the defendant. This second part of the holding is important because it highlights the fact that mere possession of stolen property, including a gun, cannot support a conviction for theft or receiving stolen property. Instead, a defendant must have knowledge that the property was stolen.
Commonwealth v. Gomez
The defendant was stopped in Lancaster County, Pennsylvania while operating his vehicle. After he was stopped, he repeatedly refused to provide his license, registration, and insurance information. The defendant was not the sole occupant in the car as there were two other individuals in the car with him. According to the officers, the defendant and his companions were making furtive movements and were acting “strangely.” Specifically, the defendant called his attorney and also invited people on social media to come witness the stop by the police. His companions were flailing their hands and kicking bags. Based on these actions, the officers stated that they believed they were in danger. After repeatedly asking the defendant and his companions to exit the vehicle, the officers broke the window and physically removed them from the car.
The police then searched the vehicle. They found and recovered two firearms that had the defendant’s DNA on them. These firearms had previously been reported stolen. One of the firearms was recovered in a locked safe, while the other was found in the front center console. Also, the key to the safe was found on the defendant’s key ring. In addition to the firearms, the police also recovered heroin, fentanyl, methamphetamine, suboxone, marijuana, and other drug paraphernalia. The defendant was arrested and subsequently charged with possession with the intent to deliver (hereinafter “PWID”), various charges under the uniform firearms act (including persons not to possess a firearm (hereinafter “VUFA 6105”), receiving stolen property, and several traffic related offenses.
The Commonwealth chose to proceed under a bifurcated trial for the charges against the defendant. Specifically, the Commonwealth elected to try the defendant under the VUFA 6105 cases first and then would try him under the remaining charges. The reason the Commonwealth would do this is because they are then allowed to introduce the defendant’s prior conviction showing that he is prohibited from possessing a firearm. In the defendant’s case, he had a prior conviction for PWID which made him ineligible to possess a firearm.
The defendant chose a jury trial for the VUFA 6015 charges. At his trial, the above-mentioned facts were presented as well as his prior PWID convictions. Following the presentation of the evidence, the jury was instructed on the relevant law. Notably, defense counsel did not make any objections. At the conclusion of deliberations, the defendant was found guilty of the two charges. A few months later, the defendant proceeded with a bench trial on his remaining charges. The defendant stipulated to all the evidence presented at his previous trial. He was found guilty of the remaining charges. The defendant was subsequently sentenced to 12.5-25 years of state incarceration. The defendant then filed a timely post-sentence motion which was denied. The defendant then filed a timely appeal.
On appeal, the defendant made three arguments: first, that the evidence was insufficient to establish that he knew the weapons were stolen; second, that the Commonwealth failed to establish that he had actual possession of the gun that was found in the safe (he did not appeal his conviction for the firearm found in the center console); and finally that the trial court did not properly instruct the jury regarding possession of the firearm. For purposes of this blog, only the defendant’s second argument will be addressed.
Can I Be Convicted of a Possessory Offense Even if I am Not Actually Holding the Contraband?
Yes. You can still be convicted of a possessory offense even if you are not in actual physical possession of the contraband. Constructive possession is a legal term of art that allows a trier of fact to find that a defendant was in possession of the contraband even when they are not physically controlling it. To find that someone “constructively possessed” contraband, the finder of fact will analyze the facts to determine if the totality of the circumstances shows that the defendant was the possessor of the contraband. The trier of fact is allowed to rely on circumstantial evidence in making its decision too.
How Can a Prosecutor Prove that I Knew an Object Was Stolen?
Mere possession of a stolen good is not sufficient to convict a defendant of RSP. A prosecutor must prove beyond a reasonable doubt that the defendant knew the object was stolen or should have known that it was. To prove this, a prosecutor, like he can to prove possession, can use circumstantial evidence to show that a defendant knew or should have known an item was stolen. Prosecutors will often use the timing of a stolen good to show that a defendant had knowledge that it was stolen. For example, let’s assume that someone reports their car stolen at 12:00 PM. If a defendant was seen with the vehicle at 12:30 PM, a prosecutor can argue that he stole the car (or at the very least knew it was stolen) given the length of time between when the car was reported stolen and when the defendant was seen with it. This is just one example. Prosecutors can also argue that a defendant’s statement, how he was acting when he was arrested, alterations to the object, etc. can be sufficient proof to show that the defendant knew or should have known the object in question was stolen.
The Superior Court’s Decision
The Superior Court upheld the defendant’s conviction for illegally possessing the firearm in the safe. Regarding whether the evidence was sufficient to find that the defendant possessed the firearm, the court analyzed the facts of the case. The Superior Court found that even though that the gun was in the safe, and not immediately accessible to him, there was sufficient evidence to show that it was his firearm. Specifically, the defendant’s DNA was on the gun; he was in possession of the key to the safe where the gun was found; and the gun was found in his vehicle. As such, the Superior Court held that there was sufficient evidence to convict the defendant of illegally possessing the gun in the safe.
Additionally, the defendant’s other issues that he raised on appeal were also rejected. The Superior Court found that there was sufficient evidence to establish that he knew or should have known that the firearms were stolen. The Superior Court agreed with the defendant’s argument that there was not any direct evidence presented at trial that he knew the guns were stolen. However, the Superior Court found that there was sufficient evidence to establish that he knew or should have known they were stolen. In support of this, the Superior Court referenced the defendant’s prior convictions showing that he was not eligible to possess the firearms and his actions during the traffic stop. The Superior Court conceded “that this is not evidence that he knew the firearms in his possession were stolen…Nevertheless, these circumstances are sufficient to enable a fact-finder to infer that [the] defendant believed that the firearms were probably stolen.” Accordingly, he will be forced to serve his sentence and will not get a new sentencing hearing or a new trial.
Facing Criminal Charges? We Can Help.
Criminal Defense Lawyers
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.