PA Superior Court: Megan's Law Registrant May Challenge Retroactive Changes to Registration Laws Outside of PCRA Process

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

The Pennsylvania Superior Court has decided the case of Commonwealth v. Duncan. This decision did not make any substantive changes in the law. Rather, it dealt with some of the procedural difficulties that defendants have had in challenging their sex offender registration status following recent changes in the law stemming from Pennsylvania Supreme Court and Superior Court decisions. In this case, the court held that the defendant should have been appointed counsel to represent him when he was challenging the requirement that he register as a sex offender despite being a juvenile when he committed the crimes which triggered registration. This decision makes it clear that registrants may bring challenges to their registration status in the trial court in many cases even when the time for filing a post-conviction relief act petition has expired.  

Commonwealth v. Duncan

The defendant entered into a negotiated guilty plea to the charges of robbery, kidnapping of a minor, unlawful restraint, recklessly endangering another person, and carrying firearms without a license. The defendant received a sentenced of 4-10 years’ imprisonment. Notably, the defendant was a juvenile when he committed his offenses, even though he was charged as an adult. The defendant did not file a direct appeal from his judgment of sentence. 

More than a decade after his plea, the defendant filed a pro se petition for writ of error coram nobis. The defendant alleged that right before he was to be released from prison, the Pennsylvania Department of Corrections told him that he must register as a sex offender upon his release pursuant to the then-effective version of Megan’s Law. This would be due to the kidnapping of a minor conviction. The defendant argued that requiring him to register as a sex offender violated the Ex Post Facto principles of the Pennsylvania Supreme Court’s decision in Commonwealth v. Muniz. Further, the defendant argued that the Commonwealth was in breach of their agreement because he had never agreed to register as a sex offender. At the time that he pleaded guilty, that charge did not require sex offender registration.

The court initially treated his petition as a Post-Conviction Relief Act (“PCRA”) petition. At first, the PCRA court agreed with the defendant and ordered that he be removed from the sex offender registry. However, the PCRA court later vacated its decision to allow the Commonwealth an opportunity to respond to his petition. The Commonwealth responded that his request should be denied because it was an untimely filed PCRA petition. The PCRA imposes very strict deadlines and if a defendant misses a deadline they will often not be afforded any relief. Consequently, because the PCRA court thought the PCRA governed the defendant’s petition, it denied his request due to his petition being untimely. The defendant was subsequently appointed counsel, and he then filed a timely appeal. On appeal, the defendant only argued that he should have been appointed counsel to help him litigate his claim. 

The Ex Post Facto Clause of The United States and Pennsylvania Constitutions 

Both the United States and the Pennsylvania Constitutions prohibit Ex Post Facto laws. Those are laws that criminalize past behavior. The reason behind is that individuals have the right to adequate notice and should not be punished for actions that were legal when they did took them. In order to qualify as an Ex Post Facto law, the law must 1) apply retroactively and 2) negatively impact the offender. 

In the late ‘90s and early 2000’s, states across the country began passing laws that required individuals convicted of sexual offenses to register as sex offenders. These early Megan’s Law statutes imposed onerous requirements on defendants that were often seemingly punitive in nature. These laws were frequently challenged as violations of the Ex Post Facto clause because they applied to defendants retroactively (i.e. defendants were required to register as sex offenders even though they committed their crimes before the passage of these statutes).

Pennsylvania and many other states would argue that these Megan’s Law requirements were not punitive and therefore the Ex Post Facto clause of their respective constitutions did not apply. And, unfortunately, some of these governments had some success. For example, the state of Alaska was successfully able to defend its Megan’s Law statute all the way to the United States Supreme Court. However, in Pennsylvania, the Pennsylvania Supreme Court ruled in Commonwealth v. Muniz that Pennsylvania’s Megan’s Law statute violated the Ex Post Facto clauses of both the Pennsylvania and United States Constitutions. Nonetheless, the Pennsylvania Legislature passed a new Megan’s Law (SORNA) statute in the aftermath of the Muniz decision which certainly guarantees that this fight is far from over. 

   The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court agreed with the defendant that he should have been appointed an attorney to represent him when he litigated his PCRA petition. The Court further stated that the PCRA court was not required to treat the defendant’s petition as a PCRA petition. Specifically, the Superior Court cited the Pennsylvania Supreme Court’s decision in Commonwealth v. Lacombe which held that because he was raising Ex Post Facto claims, the PCRA court was not required to treat his filing as a PCRA petition and therefore he was not subjected to the stringent filing deadlines of the PCRA. Further, the Superior Court stated that the defendant “might have a valid Ex Post Facto and due process claim” and therefore remanded his case for consideration. This is an important decision due to the deadline issues. The PCRA requires a defendant to file his or her post-conviction relief act petition within one year of his or her sentence becoming final. Obviously, when the legislature passes a new law ten years later imposing new sex offender requirements on someone who did not have to register at that time that they were convicted, that person should have some procedural mechanism for challenging the law. By imposing the one-year deadline for filing a PCRA petition on these petitioners, the courts were able to block them from ever challenging these unconstitutional laws. By recognizing that these filings are not really PCRAs, the appellate courts have removed some of the deadlines for filing them and allowed these important issues to be resolved on the merits.

Facing Criminal Charges? We Can Help. 

Goldstein Mehta LLC 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.

PA Supreme Court: Commonwealth Bears Burden of Disproving Claim of Self-Defense in Gun Case

Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Lineman, reaffirming its decision in Commonwealth v. Torres. The Supreme Court again held that if a criminal defendant properly raises the issue of self-defense, the Commonwealth has the burden of disproving that claim beyond a reasonable doubt. Further, it is not adequate for the fact-finder to merely disbelieve the defendant’s evidence of self-defense. The Commonwealth must produce actual evidence to counter a defendant’s self-defense claim. The Lineman decision is significant because it applies the logic of Torres to a possessory offense rather than just a crime of violence.  

Commonwealth v. Lineman

A Philadelphia Police officer was on routine patrol when he received a radio call indicating that a male was screaming for assistance. The officer arrived on scene and observed the defendant and another male struggling on the ground. The defendant was lying on the ground with the other male on top of him. The officer ordered the male to get off the defendant. As the defendant began to stand he heard the sound of metal scraping the ground. The officer then looked at the defendant’s hand and saw that he was holding an Uzi. According to the officer, the defendant appeared to be under the influence of a controlled substance and was bleeding. The defendant was subsequently arrested for Violation of the Uniform Firearm Act § 6105 (“VUFA 6105”), Persons Prohibited from Possessing a Firearm. 

The defendant elected to proceed by way of bench trial. At his trial, he testified in his own defense. Specifically, he testified that he and the other male had been drinking. Eventually, the other male became violent towards him and hit him in the face with the gun, which broke the defendant’s nose. The two then began to wrestle for the gun. The officer arrived while they were wrestling and this is what caused the fight to end. During closing arguments, defense counsel argued that the defendant was entitled to an acquittal because he raised the issue of self-defense and the Commonwealth did not present any evidence to rebut this claim as required by the case of Commonwealth v. Torres.

The trial court disagreed. The trial court stated that because this was a possessory offense, he could not raise a self-defense argument. The trial court did state that the defendant could raise a duress defense, but because he did not believe the defendant’s story it was not applicable to him. As such, he found the defendant guilty and sentenced him to three to seven years’ incarceration. The defendant then filed a timely appeal.  

The Superior Court affirmed the trial court’s decision. In its decision, the Superior Court found that because the defendant was still in possession of the firearm after the police officer broke up the fight, this was sufficient to convict him of the charge of VUFA 6105. Undeterred, the defendant then filed a petition for allowance of appeal with the Pennsylvania Supreme Court. The Pennsylvania Supreme Court agreed to hear the case. 

Which side has to prove self-defense in Pennsylvania?

Commonwealth v. Torres is a Pennsylvania Supreme Court decision that was decided in 2001. The basic facts of the case were that the police arrived at a house in Philadelphia, PA after they received a radio call. When the police arrived on scene, they met with the complainant who said that the defendant had hit him in the head with a wrench. The defendant was about a half block away from the scene when the police arrived. While investigating the scene, the police were unable to locate a wrench. The defendant was then subsequently arrested and charged with simple assault. 

The complainant never appeared to court. Nonetheless, the Commonwealth still elected to prosecute the case against the defendant by calling the police officers who arrived on scene. The officers testified that the complainant said the defendant hit him with a wrench. In response, the defendant testified on his own behalf and stated that he was acting in self-defense. At the conclusion of the trial, the trial court stated he disbelieved the defendant and found him guilty. The defendant then filed an appeal to the Pennsylvania Superior Court which affirmed his conviction. He then filed a petition for allowance of appeal to the Pennsylvania Supreme Court which agreed to hear the case. 

The Pennsylvania Supreme Court reversed the lower courts’ decisions and vacated the defendant’s conviction. The Court stated that when a defendant raises the issue of self-defense, the Commonwealth bears the burden to disprove that claim beyond a reasonable doubt. According to the Court, the Commonwealth must produce some evidence to dispute this claim. Further, the Court specifically stated that it is not sufficient for the trial court to not believe the defendant. Therefore, because there was no evidence on the record to contradict the defendant’s claim that he was acting in self-defense, the defendant’s conviction could not stand and thus was vacated. It is important to note that the defendant in Torres was not charged with a possessory offense (i.e. possessing a gun). 

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court issued a slip opinion decision vacating the defendant’s conviction. In its opinion, the Pennsylvania Supreme Court specifically cited Commonwealth v. Torres as the reason why it was reversing the lower courts’ decisions. The Court did not provide any additional justification for its decision. Nonetheless, it is undisputed that the Court has now expanded Torres to include possessory offenses as well. As a matter of common sense, this decision makes sense. If someone is in danger and uses a weapon to protect themselves in self-defense, they should also be able to avoid a conviction for the possession of said weapon. Regardless of the logic of the decision, this decision is obviously favorable to the defendant because his conviction is now vacated, and he will be released from prison. 

Facing Criminal Charges? We Can Help. 

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.

PA Superior Court: Commonwealth Cannot Introduce DUI Blood Test Results Without Witness Who Actually Drew Blood

Philadelphia Criminal Defense Lawyer Zak goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Hajdarevic, holding that the Commonwealth may not introduce blood test results in a DUI case without calling as a witness the person who actually drew the defendant’s blood. In this case, the Commonwealth had tried to rely solely on an expert witness who had analyzed the results of the blood draw without ever presenting testimony to establish the chain of custody for the testing. The Superior Court rejected the Commonwealth’s position, finding that the evidence had been improperly admitted in violation of the defendant’s confrontation clause rights. This is an important case because it properly prevents the Commonwealth from taking short cuts to try to railroad defendants in DUI cases.   

Commonwealth v. Hajdarevic

A Pennsylvania State Police (“PSP”) trooper was on duty in 2017. While driving his marked police car in Shippensburg, PA, the trooper noticed a passing vehicle fail to deactivate its high beams. The trooper subsequently initiated a traffic stop at approximately 12:23 AM. The defendant was the sole occupant of the vehicle. The defendant told the trooper that he was coming from a friend’s house where he had consumed several beers. While speaking to the defendant, the trooper noticed a “moderate odor of alcoholic beverage” and stated that the defendant had bloodshot and glossy eyes. 

Shortly after this conversation, the trooper asked the defendant to exit the vehicle. The defendant was then asked to perform some field sobriety tests, but because the defendant had back problems, he only performed the Horizontal Gaze Nystagmus test. Presumably, the defendant failed this test, and he was subsequently placed under arrest. The defendant was then taken to Chambersburg Hospital for a blood draw. A technician drew the defendant’s blood at the hospital. They generated a report that showed that they took the defendant’s blood at 12:58 AM. The report showed that the defendant’s BAC was above the legal limit. 

Prosecutors charged the defendant with DUI, and he elected to proceed by way of bench trial. The Commonwealth presented the above facts at trial. However, it should be noted that the actual technician who drew his blood did not testify at the defendant’s DUI trial. Further, the technician who testified at this trial did not actually witness the blood draw of the defendant. At the conclusion of the trial, the defendant was found guilty of DUI. The defendant was sentenced to 6 months’ intermediate punishment, which included incarceration for 48 hours and 30 days of electronic and alcoholic monitoring. The defendant then filed timely post-sentence motions, which the trial court also denied. The defendant then filed a timely appeal. On appeal, the defendant raised several issues. For purposes of this blog, only the issue of whether his confrontation rights were violated when the Commonwealth did not call a witness who observed his blood being drawn will be addressed.

What is the Confrontation Clause? 

The Sixth Amendment to the United States provides a criminal defendant with the right “to be confronted with the witnesses against him.” Specifically, the Supreme Court of the United States has held that the Confrontation Clause protects a criminal defendant’s right to confront witnesses bearing testimony against him or her. Article 1, Section 9 of the Pennsylvania Constitution also provides this right to criminal defendants. 

The issue that has been heavily litigated throughout the years is what constitutes “testimony.” The United States Supreme Court has also ruled on this issue. And although there is not a clear definition of what testimonial means for purposes of the clause, courts have found that words can be “testimonial” if they are going to be used in a prosecution against a defendant. For example, if a complainant gives a statement to a detective about an alleged assault, that would be considered testimonial. However, if statements are introduced that were made during the course of an emergency, then they may not be testimonial. For example, 911 calls that deal with an ongoing emergency are often not considered testimonial and therefore may be admissible even without the live testimony of the person who made the call. For example, if someone were to call 9-1-1 to state that an individual was running down a street shooting at people, that statement could potentially be introduced at trial without the witness who uttered it because it had to do with an active emergency and therefore was not testimonial.  

It should also be noted that the United States Supreme Court has specifically held that forensic analyses are usually testimonial, and thus a defendant has a right to cross-examine those who performed these analyses. In other words, it is not sufficient for a prosecutor to merely introduce a technician’s report or an expert report into evidence. Further, the United States Supreme Court has also held that prosecutors cannot call surrogate witnesses to testify at trial. In order to comply with a defendant’s right to confrontation, the prosecutor must call the actual technician who performed the test. 

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court held that the defendant’s confrontation rights were violated when the Commonwealth failed to call any witnesses who actually observed the defendant’s blood draw. The Superior Court first had to determine whether the time of the defendant’s blood draw was a “testimonial factual statement.” The Superior Court held that it was because “[t]he plain language of the [DUI statute] here reveals that the time of the blood draw is an element that must be proven by the Commonwealth beyond a reasonable doubt. In the instant case, the time of the defendant’s blood draw was only introduced into evidence by the technician who testified at his trial. As such, because the Commonwealth failed to call the technician who actually drew the defendant’s blood (or anyone else who witnessed it), his right to confrontation was violated. Therefore, because of this violation, the defendant’s conviction was vacated, and he will receive a new trial. 

Facing Criminal Charges? We Can Help. 

Criminal Defense Lawyers in Philadelphia

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. 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: Advising Client to Accept Plea Deal Based on Wrong Guidelines Is Ineffective

Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Brown, holding that an attorney is ineffective if he or she advises his client to plead guilty based on an incorrect calculation of the sentencing guidelines. Because the sentencing guidelines are extremely relevant to both plea negotiations and a judge’s decision at sentencing, a criminal defense attorney has an obligation to correctly determine the applicable sentencing guidelines for a conviction prior to advising the client whether or not to plead guilty. 

Commonwealth v. Brown

In 2015, Limerick Township Police officers responded to a call in Royersford, Pennsylvania. The homeowner had invited some friends to watch a boxing match on pay-per-view television. A female acquittance arrived at the complainant’s home and was accompanied by her boyfriend, the defendant. At one point during the evening, the defendant pointed a small black revolver at the victim, demanding money. The defendant then took an Xbox game console and a wristwatch owned by the complainant and then left his home with his girlfriend and another male. 

Limerick Police investigated the case and decided to file criminal charges. The Commonwealth charged the defendant with robbery, conspiracy, persons not to possess firearms, firearms not to be carried without a license, possession of weapon, theft by unlawful taking, receiving stolen property, terroristic threats, and recklessly endangering another person.  

The defendant hired a private attorney to represent him in criminal court. Believing the evidence against the defendant to be strong, the attorney began to discuss a possible plea deal with the assigned assistant district attorney (“ADA”). During their negotiations, both the defendant’s attorney and the ADA believed that the defendant had a prior record score (“PRS”) of 4. However, as PCRA counsel would later discover, this was not accurate. The defendant’s actual PRS was 2. 

After some negotiating, the Commonwealth extended an offer at the high end of these miscalculated guidelines. The defendant refused this offer. The Commonwealth then offered the defendant an offer of 5 ½ to 11 years’ incarceration on the charges of Robbery (F1) and Conspiracy to Commit Robbery (F1). This offer was based on the bottom of the erroneously-calculated standard range guidelines. The defendant accepted this offer. The defendant appeared before the trial court where he was colloquied about the offer. The defendant then admitted that he, in the presence of his two co-conspirators, pointed a firearm at the victim and took the property from his home. The trial court accepted the negotiations and sentenced the defendant to the above sentence. 

Unhappy with this long state sentence, the defendant filed a PCRA petition. The defendant argued that he received ineffective assistance of counsel because the attorney mistakenly negotiated the defendant’s plea based upon an erroneous prior record score. The defendant’s PCRA attorney then spoke with the ADA who was handling the defendant’s PCRA petition and asked if she would be willing to sentence the defendant to a guideline sentence based on his correct PRS. The new ADA refused to discuss renegotiation. The PCRA court agreed to hold an evidentiary hearing, and the defendant’s original attorney testified and admitted that he made a mistake in calculating the defendant’s prior record score. The attorney also testified that he believed if he had gone to the ADA handling the defendant’s case with the correct guidelines at the time, he would have been able to get a better deal for his client. 

The defendant also testified at his hearing and stated that he would not have accepted an offer that was above his actual guidelines. The PCRA court found both the defendant and his trial attorney credible. Further, the PCRA court found that the defendant had made a sufficient showing of prejudice to satisfy his burden. Consequently, the PCRA court permitted the defendant to withdraw his guilty plea and to proceed to trial. The Commonwealth then filed a timely appeal. 

Are the Sentencing Guidelines Mandatory? And How are They Calculated?

For a more detailed analysis on this issue, please see our blog (“PA Sentencing Guidelines. I Got Arrested Am I Going to Jail?) https://goldsteinmehta.com/blog/pa-sentencing-guidelines). As a preliminary matter, the sentencing guidelines are not mandatory. As such, if you are convicted of a crime, it is not required that you be sentenced to your respective guidelines. The judge is required to consider the guidelines when he imposes a sentence, but he or she does not have to follow them. Although judges must impose any applicable mandatory minimums, they may sentence a defendant outside of the guidelines in both PA and federal court. 

To calculate one’s sentence, you must first determine what the defendant’s PRS is. This is based on prior convictions. Obviously, some crimes are more serious than others and so if you have a prior conviction for a serious offense it is likely your PRS will be quite high. For example, if you were previously convicted of Aggravated Assault (F1) (and this was your only conviction) then you will have a PRS of a 4. However, if you only have one prior Possession with the Intent to Deliver (“PWID”) conviction, then your PRS will be a 2. A defendant’s PRS can range from a “0” to “REVOC.”  

Next, the attorney must determine the Offense Gravity Score (“OGS”) of the offenses the with which the defendant is charged. The OGS of crimes range from 1-14, with 14 being the most serious. Usually, when calculating the sentencing guidelines, the OGS is only considered for the most serious charge. However, a defendant should remember that judges are allowed to impose sentences on the other crimes a defendant is convicted of so long as they are not lesser-included offense. This makes it important to calculate the sentencing guidelines for all of the crimes with which you are charged because a judge could impose consecutive sentences on each offense following a conviction.

Once the attorney has determined what the defendant’s PRS is and the OGS of the crimes he or she is charged with, then the attorney should consult the sentencing matrix. This matrix is a chart that will tell you what the guidelines are for the defendant. Again, these guidelines are not mandatory, but they are very relevant, and often the judge will sentence a defendant within these guidelines after a trial or even following a plea. Although they are not binding, they are very important.

The Pennsylvania Superior Court’s Decision

The Superior Court affirmed the PCRA court’s decision. In its analysis, the Superior Court found that the PCRA did not abuse its discretion in granting PCRA relief when it granted the defendant a right to a new trial. The Superior Court found that the defendant was prejudiced by his trial attorney’s failure to inform him of the proper sentencing guidelines and that there was a “reasonable probability” that he would have gone rejected the plea offer and gone to trial or obtained a better deal had he known his actual guidelines. In support of this position, the Superior Court found it very persuasive that the defendant previously rejected a high-end guideline offer. As such, this fact convinced the Superior Court that if he had known his actual sentencing guidelines, he would have been willing to go to trial. Therefore, the defendant’s sentence will remain vacated, and he will be given a new trial date. 

Facing Criminal Charges? We Can Help. 

Philadelphia 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.