Philadelphia Criminal Defense Blog

Zak Goldstein 3/26/20 Zak Goldstein 3/26/20

PA Supreme Court Revives Sexually Violent Predator Designation

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Butler, reversing the Superior Court and finding Pennsylvania’s scheme for designating some sex offenders as “sexually violent predators” or “SVPs” constitutional. The Court rejected the Superior Court’s prior ruling that the mechanism for finding a defendant to be an SVP was unconstitutional because it allowed a judge to make the decision instead of a jury. This opinion will likely have an immediate and dramatic effect as prosecutors throughout Pennsylvania, many of whom had stopped pursuing the SVP designation in sex offense cases, will likely begin moving to have many defendants classified as sexually violent predators under Pennsylvania’s Megan’s Law. This classification requires lifetime Megan’s Law Registration for most defendants and carries with it a number of other negative consequences.

The Facts of Butler

In Butler, the defendant pleaded guilty to statutory sexual assault and corruption of minors after having sexual intercourse with a 15-year-old girl on approximately 50 occasions. Under Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”), the defendant was required to undergo an assessment by the Sexual Offender Assessment Board (“SOAB”) to determine whether he should be designated as an SVP. The SOAB recommended that he be designated an SVP, and the trial court held a hearing on the issue at sentencing. The judge found that the Commonwealth met its burden under the statute of producing clear and convincing evidence that the defendant was a sexually violent predator, and so the judge ordered that the defendant be designated as such. The trial court also imposed a sentence of 12 to 30 months’ incarceration followed by 90 months’ probation.

The defendant filed post-sentence motions, and the trial court denied those motions. He appealed to the Superior Court, and the Superior Court overturned the SVP portion of his sentence. The Superior Court found that Pennsylvania’s procedures for designating SVPs were unconstitutional because they allowed the trial judge to impose the additional punishment of being an SVP by making factual findings that should be made by a jury. Therefore, the Superior Court ruled that the defendant did not have to register as an SVP and that the whole scheme was unconstitutional because it allowed the judge to impose criminal punishment without a jury finding. Due to this ruling, prosecutors throughout Pennsylvania mostly stopped moving for SVP hearings, but the Commonwealth appealed in this case to the Pennsylvania Supreme Court.

What is a sexually violent predator?

The SVP designation is particularly problematic in Pennsylvania both because of the stigma that it entails and because it requires lifetime Megan’s Law registration even for offenses which would otherwise require a shorter registration period such as 15 years or 25 years. Under SORNA, an SVP must appear in person every three months to register and be photographed by the State Police. They must appear in person to report any changes to their registration information. They must submit to the registry their names, addresses, computer IP addresses, phone numbers, social security numbers, employer information, professional licensing information, vehicle information, and birthdates. Failure to comply with the Megan’s Law and sexually violent predator registration requirements is a serious felony.

Once an SVP registers with the State Police, the State Police notify the local police, and the local police must notify the SVP’s victim of the offender’s name, residence, address of employment, and any address at which the SVP is enrolled as a student. Local police must notify neighbors, the local county’s children and youth agency director, local school superintendents, local day-care centers and preschool programs, and local colleges and universities regarding the SVP. This notice must provide the person’s name, address, offense for which the person was convicted, a statement that the person has been designated an SVP, and a photograph of the person.

The offender must also attend monthly counseling sessions in a program approved by the SOAB and is financially responsible for paying for those sessions unless he or she can prove indigence. The offender must verify compliance with the counseling requirements during the quarterly registration, and failure to comply with the counseling requirement is a misdemeanor.

Many of these requirements are far worse than those imposed on other Megan’s Law registrants, particularly than those imposed on Tier I offenders. However, even someone who has been convicted of a Tier I offense can be designated a sexually violent predator.

The Pennsylvania Supreme Court’s Ruling

The Pennsylvania Supreme Court accepted the Commonwealth’s appeal and reversed the ruling of the Superior Court. The Superior Court had ruled that the SVP scheme was unconstitutional because the SVP designation constitutes criminal punishment and the fact-finding necessary to impose criminal punishment must be completed by a jury instead of a judge.

The Supreme Court rejected this finding, holding that despite all of the horrific consequences of SVP registration, the SVP designation is not a criminal punishment but instead an attempt by the legislature to help the offender and avoid re-offending. Because the Court ruled that the designation does not constitute criminal punishment, there is no requirement that a jury make the findings necessary for a person to be labeled a sexually violent predator. The Court also strongly approved of the fact that Pennsylvania did amend the statute to allow for an SVP to petition the trial court for removal from Megan’s Law after 25 years on the list.

This decision is difficult to reconcile with the Supreme Court’s recent decision in Commonwealth v. Muniz in which the Court held that requiring someone to register with Megan’s Law constitutes criminal punishment. Ultimately, the Court has now found that sex offender registration in general constitutes criminal punishment and cannot be imposed ex post facto, but the increased requirements of the SVP designation are not an additional criminal punishment. Therefore, the Court rejected the defendant’s arguments in Butler.

It is still important to note that there are a number of pending appeals regarding Pennsylvania’s Megan’s Law registration scheme and whether it is constitutional to make someone register based solely on the offense of conviction without any individualized fact finding as to whether the person is actually a risk to society. In the short term, it is extremely important that anyone who is charged with a sex offense retain a lawyer with experience in this field as avoiding the SVP designation is absolutely critical given the additional negative consequences that stem from such a finding. Our lawyers have extensive experience defending clients against sex offense charges and in contesting the sexually violent predator designation. We regularly work with some of the best experts in this field to have our clients evaluated and convince prosecutors and judges that they do not need to register for life.

If you need a criminal defense lawyer in Philadelphia, PA, we can help.

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, DUI, 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 3/20/20 Zak Goldstein 3/20/20

Philadelphia Courts Shut Down But Still Hearing Bail Motions and Detainer Motions During Coronavirus Pandemic

Are the Philadelphia Criminal Courts open for business?

Philadelphia Criminal Lawyer Zak Goldstein

Although some courts announced that they would be closing last week, the Philadelphia criminal courts remained open until Monday March 16, 2020. At that point, the courts announced that they would be shutting down all non-essential operations and delaying court dates for all types of criminal cases, including preliminary hearings, arraignments, bench trials, and jury trials.

Initially, the Court of Common Pleas announced that it planned to re-open on April 1, 2020. However, the Pennsylvania Supreme Court subsequently declared a statewide judicial emergency and ordered that courts remain closed until at least April 3, 2020. The Supreme Court, however, directed that courts remain at least partially open for essential functions such as bail hearings, detainer hearings, bench warrant hearings, preliminary arraignments, and potentially preliminary hearings for defendants who are incarcerated. At the moment, the Philadelphia courts have not been conducting preliminary hearings. It is still possible to file motions to reduce bail, lift detainers, and to lift bench warrants.

Are courts open in the rest of Pennsylvania during the Coronavirus pandemic?

No. Although the courts initially responded by letting each President Judge determine what should happen in each Pennsylvania district, the Pennsylvania Supreme Court issued an order generally closing all courts with the exception of certain essential hearings as mentioned above. The counties are still sorting out how they will proceed with essential hearings during the shut down, but jury and bench trials are currently not occurring anywhere in Pennsylvania. New Jersey has also suspended most court operations.

Is it possible to get bail reduced due to the disease?

Yes, Philadelphia and the surrounding counties are still processing and ruling on bail motions, and it is possible that the lack of adequate health care in the prison system could be a reason why a prosecutor and/or judge may look more favorably on a bail motion than they normally would. Even with the general shut down of the courts, it is possible to file an emergency bail motion. In Philadelphia, it appears that the judges may rule on bail motions on the paperwork without holding actual hearings, but the District Attorney’s Office and the courts are hoping to reduce the prison population to the extent possible in the hopes of avoiding the spread of the Coronavirus. Therefore, if your loved one is being held on high bail for a case which has been postponed due to the shut down, contact us immediately to discuss the prospects of getting that bail reduced.

Can I get a probation detainer lifted while the courts are closed?

Yes, like bail motions, the Philadelphia courts continue to accept emergency motions to lift probation detainers. All probation detainer motions and bail motions are being heard by the President Judge or a designee for either the Court of Common Pleas or the Municipal Court. This means that it remains possible to file a motion to lift a probation detainer despite the general shut down caused by the virus. Further, if you or your loved one has been detained due to a technical violation or an arrest for a relatively less serious crime, the odds may be good for getting a probation detainer lifted.

What happens to criminal cases while the courts are closed?

That is a good question. At the moment, everything except emergency petitions for bail motions, detainer motions, and bench warrant hearings are currently on hold. Defendants who have been arrested on new charges are still entitled to a prompt preliminary arraignment at which bail will be set, and the Supreme Court has allowed the Municipal Court to proceed with preliminary hearings for incarcerated defendants. However, the Municipal Court has not yet been holding preliminary hearings in those cases as the judges are still working through what the procedures will be and evaluating how long the shut down is likely to be in effect. It is clear that trials will not happen for some time, and that fact may be helpful in getting a detainer lifted or bail reduced. The courts have also suspended the function of Rule 600, which is the speedy trial rule for trials.

The bottom line is that if you or your loved one have recently been arrested or are being held on high bail or a probation detainer, we may be able to help. Call 267-225-2545 to speak with a Philadelphia Criminal Defense attorney today. Our award-winning criminal lawyers stand ready to help you navigate this difficult time.

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Philadelphia Courts

Zak Goldstein 3/16/20 Zak Goldstein 3/16/20

Criminal Defense Attorney Zak Goldstein Wins Motion to Quash in Possession with the Intent to Deliver Case

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire recently won the full dismissal of the charges against his client in a case involving charges of Possession with the Intent to Deliver various controlled substances such as crack, heroin, and marijuana. In Commonwealth v. A.T., Attorney Goldstein won the dismissal of all charges by filing a Motion to Quash in the Court of Common Pleas. Because the trial judge agreed that the Commonwealth had completely failed to prove that A.T. ever possessed any drugs, the judge dismissed the entire case against her.

In A.T., Philadelphia police officers testified at the preliminary hearing that they saw a group of people running down the street. Based on their experience, they believed that they were witnessing people either running away from a shooting or that a shooting was about to occur. Therefore, the officers immediately gave chase to determine what was going on.

The majority of the group made it into a house before the police stopped them. One person, however, was left behind and locked out. That person told the officers that he believed that there was going to be a shooting. The officers then went around to the back of the house and a saw A.T. and another person run from the house. The officers chased them, caught them, and brought them back to the house.

The officers then searched the house for evidence of a shooting. In one bedroom in a baby’s crib, they found a significant quantity of narcotics. They also found drug paraphernalia in that bedroom. Later, the officers saw a cat in the kitchen pawing at a duffel bag. Allegedly concerned that the cat might be hungry, the officers went into the bag to see if there was cat food in the bag. They found more drugs in the bag in the kitchen.

Officers asked A.T. who lived in the house, and she admitted to living there. She did not, however, tell them that the drugs in the bag or in the bedroom belonged to her. The officers also found mail in her name in the house, but they did not say where they found the mail. The officers testified at the preliminary hearing that there was more than one bedroom in the house and that they had brought the male who ran out the back of the house back to the house, as well. They ultimately let that person go without filing drug charges against him.

Based on the discovery of the significant quantity of drugs and paraphernalia in the house and the fact that A.T. admitted to living there and receiving mail there, the officers decided to arrest A.T. and charge her with Possession with the Intent to Deliver. A.T. quickly retained Attorney Goldstein, who moved for dismissal of the charges at the preliminary hearing on the grounds that the Commonwealth failed to establish that A.T. constructively possessed the drugs in question. The Municipal Court Judge, however, disagreed and held A.T. for court on all charges.

Attorney Goldstein then filed a motion to quash in the Court of Common Pleas. A motion to quash, which is sometimes called a Habeas Petition in the suburban counties, asks the Court of Common Pleas judge to review the notes of testimony from the preliminary hearing and dismiss some or all of the charges. Essentially, it is an appeal of the preliminary hearing that could result in the dismissal of a case prior to charges if the Commonwealth really introduced insufficient evidence at the preliminary hearing.

In the quash, Attorney Goldstein argued that the Commonwealth failed to establish anything beyond A.T.’s presence in a house in which police later found drugs. In order to prove possession of a controlled substance where the defendant is not found physically possessing the drugs (with the drugs on him or her), the Commonweath has to establish constructive possession. Constructive possession requires showing that the defendant knew about the drugs and had the intent and ability to control them. This doctrine protects an individual from being held responsible for drugs that belong to someone else.

Thus, if you live in a house with a roommate who is involved in drug activity, you should not be held responsible for the decisions of your roommate so long as you do not participate in the drug activity. Here, the Commonwealth showed only that there were drugs in a house and that A.T. stayed in the house. The Commonwealth completely failed to show that the drugs belonged to her, that the mail was found anywhere near the drugs, or that she was engaged in selling drugs. Furthermore, because multiple people had run through the house and then out the back of the house, it was very possible that one of those people had seen the police chasing them and discarded the drugs in the house so as to avoid drug possession charges.

The trial court agreed that there was simply insufficient evidence to force A.T. to stand trial for Possession with the Intent to Deliver. Therefore, the court dismissed all of the charges, and A.T. will be eligible to have the arrest record expunged immediately.

If you need a criminal defense lawyer in Philadelphia, we can help.

Criminal Defense Lawyer for Drug Charges - Zak T. Goldstein, Esquire

Zak Goldstein 3/6/20 Zak Goldstein 3/6/20

Third Circuit Court of Appeals: Court May Consider Total Weight of Drugs Handled on Different Occasions at Sentencing

The Third Circuit Court of Appeals has decided the case of United States v. Diaz. The Court held that a trial court may consider the cumulative weight of drugs possessed by a defendant for purposes of his sentencing guidelines. This decision is important because it allows a trial court to aggregate all of the drugs that a defendant possessed on different occasions when calculating the guideline sentencing range, which can make the recommended sentence much higher. Even minor differences in the weight of drugs involved can have a dramatic effect on a criminal defendant’s sentencing guidelines.

United States v. Diaz

The defendant was charged along with five co-defendants with conspiracy to distribute and possess with the intent to distribute heroin. One of the co-defendants, Guzman, allegedly orchestrated the conspiracy. He distributed drugs to his co-defendants, including his mother and the defendant. All of the defendant’s co-defendants pleaded guilty. The defendant, however, pleaded not guilty and went to trial.

After being indicted, the defendant represented that he could not afford counsel and he was appointed a Criminal Justice Act (CJA) counsel to represent him. Shortly after his CJA counsel was retained, she accepted a position as an assistant district attorney with an unknown prosecutor’s office. As such, she withdrew from the defendant’s case and he was appointed a new attorney on July 13, 2016. The defendant was not satisfied with his new attorney’s representation. According to the defendant, his new attorney pressured him to plead guilty, did not accept his advice on submitting pre-trial motions, and failed to turn over discovery to him. Consequently, the defendant filed a pro se motion to remove his new attorney from the case. The court held a hearing, and the trial court attempted to resolves their issues. Despite the trial court’s best efforts, it was not able to assuage the defendant’s concerns. The court therefore gave the defendant a new court-appointed attorney.

Unfortunately for the defendant, his relationship with his new attorney was not great, either. On December 5, 2016, the defendant wrote the trial court a letter stating that he had not received requested documents from his new attorney. The trial court then issued an order acknowledging receipt of the defendant’s letter and then forwarded a copy of said order to his attorney. It is unknown if the attorney responded to the defendant.

A few months later, on February 7, 2017, the defendant wrote to the trial court again stating that he still did not have his requested discovery. The trial court then ordered the attorney to file a response to the defendant, however he did not. Shortly thereafter, the defendant filed another motion requesting a new attorney. The trial court did not seek any additional information from the attorney or the defendant. The trial court also did not schedule a hearing to address the defendant’s request or replace the attorney. About a month after the latest request from the defendant seeking new counsel, the attorney wrote to the trial court requesting a continuance. He also stated that he and the defendant had resolved all of their issues and that the defendant wished to continue having the attorney represent him. At the April 7, 2017 pre-trial conference, the defendant did not raise any issues between him and his attorney.

This harmony was short lived. Ten days after the pre-trial conference, the defendant again wrote to the trial court stating that the attorney failed to adequately represent him and to provide him his requested discovery. It is unclear if the trial court made a formal acknowledgment of this letter. Approximately two months later, the defendant wrote to the trial court again complaining of his attorney’s supposed shortcomings. However, the defendant did not specifically request a new attorney. On August 16, 2017 the defendant’s case proceeded to trial with the defendant being represented by his current attorney.

At his trial, multiple witnesses were called to testify against the defendant. These witnesses included his co-defendants (who had already pleaded guilty) and various DEA agents. Additionally, the Government introduced intercepted communications between the defendant and his co-defendants. The testimony showed that although the defendant was not the leader of the organization, he was involved in the drug trafficking. Specifically, the calls showed that he would primarily “bag” up the drugs and that he would also engage in selling on his own behalf. The testimony showed that on multiple occasions the defendant would bag 500 bags of heroin, which amounted to approximately 15 grams. At the conclusion of his trial, the defendant was found guilty of conspiring to distribute and possession with the intent to distribute.

At his sentencing hearing, there was some debate about the weight of drugs that were involved in this case. The defendant argued that only 15 grams of heroin should be attributed to him instead of the 30 grams that the Government alleged. This is significant because U.S.S.G. § 2D1.1(c)(12) governs the guidelines for 20-30 grams of heroin and, it may go without saying, but the guidelines are harsher for 20 grams in comparison to 15 grams. At the conclusion of the sentencing hearing, the defendant was sentenced to 33 months imprisonment and three years of supervised release. After his sentencing, the defendant filed a timely appeal. On appeal, the defendant raised three issues: the trial court’s failure to inquire into the defendant’s motion for appointment of new counsel, the improper admission of one of the DEA agent’s testimony, and finally the trial court’s attribution of more than 20 grams of heroin to the defendant at sentencing. For purposes of this blog, only the defendant’s issue of whether the trial court improperly attributed more than 20 grams of heroin to the defendant at sentencing will be discussed.

Does the Weight/Type of Drugs Matter for Determining a Defendant’s Sentencing Guidelines?

Yes. A defendant’s sentencing guidelines can be dramatically affected by the weight and type of drug that was involved. This is true in Pennsylvania too. In Pennsylvania, a defendant’s guidelines can be substantially different depending on how much heroin he possessed. For example, let’s assume that a defendant is convicted with Possession with Intent to Deliver with 50 grams of heroin and that he has no prior record. His guidelines on the case would be 22-36 months +/- 12. However, if this same defendant was convicted with 49 grams of heroin, his guidelines would be 9-16 months +/- 9 months. As one can see, the weight of the drugs is significant and one gram can make a huge difference in determining one’s sentencing guidelines.

The federal guidelines are no different. In the instant case, the defendant was arguing that the evidence only showed that he possessed 15 grams of heroin. This is significant because per the federal sentencing guidelines, that would make his offense graded as a level 14. However, if the drugs had a weight of 30 grams (as alleged by the Government), then the offense is graded as a 16. Assuming the defendant was a zero (which is unclear from the Third Circuit’s opinion), his guidelines would have been 15-21 months if it was just 15 grams. However, if it was actually 30 grams, then his guidelines would be 21-27 months. Therefore, the weight of drugs can have a significant impact on the guidelines regardless of whether your case is in federal or state court.

The Third Circuit’s Decision

The Third Circuit upheld the defendant’s conviction and sentence. Regarding the weight of the drugs, the Third Circuit found that there was an “ample basis for determining that the defendant was responsible for at least 20 grams of heroin.” The defendant would frequently bag 500 bags of heroin which amounted to 15 grams of heroin. Additionally, the defendant did this more than once. As such, the trial court found that the trial court did not err in attributing at least 20 grams of heroin to the defendant for purposes of sentencing. Therefore, his sentence will stand and he will not 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.