Philadelphia Criminal Defense Blog

Zak Goldstein 10/22/20 Zak Goldstein 10/22/20

PA Superior Court: NJ Aggravated Assault Conviction Not a Prior "Strike"

The Pennsylvania Superior Court has decided the case of Commonwealth v. Johnson, holding that a defendant’s conviction for third-degree aggravated assault in New Jersey does not qualify as a prior “strike” offense under 42 Pa. C.S.A. § 9714. This decision is significant for people who have convictions in other states because it requires a trial judge to analyze said conviction to determine whether it qualifies as a strike offense in Pennsylvania. As this decision shows, “strike” offenses are very serious and can result in lengthy mandatory minimum sentences at sentencing for subsequent offenses.

Commonwealth v. Johnson

In 2018, the complainant was working as a cashier at a convenience store in Chester County, Pennsylvania. At about 7:45 p.m., a customer approached the counter with a bag of chips. The complainant asked for twenty-five cents to which the man then proceeded to drop the chips and pull a gun on him. The complainant told him not to “play” unless he wanted to go to jail and advised him that there were cameras in the store. The man then left the store with the chips and the complainant followed him demanding payment. The man then re-entered the store, put the chips back on the counter, and told the complainant that he made a mistake and did not want the chips. The man then left the store.

The complainant did not immediately report the robbery. The following day when his manager came into the store, the complainant told him what happened. The two men then viewed the security camera video and saved the video footage of the robbery. Later that day, the man who committed the robbery entered the store. The cashier recognized this man as the robber from the night before. Upon seeing the complainant, the man abruptly left the store. The complainant reviewed the footage and confirmed it was the person who robbed him the night before and called the police.

About five minutes later, an officer with the Chester Police Department arrived at the convenience store. The officer reviewed the footage and sent out a “flash” including a description of the individual and what he was wearing. The officer then left the store and began to search for the suspect himself. About fifteen minutes after he left the store, he came across the defendant. The officer detained the defendant and the complainant made an identification of him. The defendant was subsequently arrested and charged with robbery and possessing an instrument of crime (“PIC”).

The defendant proceeded by way of a jury trial where he was convicted of both charges. He was then sentenced to a term of ten to twenty years of imprisonment. The reason he received that sentence was because the trial court determined that this was a “second strike offense” based on his prior New Jersey conviction for aggravated assault graded as an indictable offense (felony) of the third-degree. Afterwards, the defendant filed a timely appeal raising multiple issues. For purposes of this blog, only his sentencing issue will be addressed.

What is Pennsylvania’s Strike Statute?

42 Pa. C.S.A. § 9714 is the statute that governs second and third strike offenses. It states:

(a) Mandatory sentence.--
(1) Any person who is convicted in any court of this Commonwealth of a crime of violence shall, if at the time of the commission of the current offense the person had previously been convicted of a crime of violence, be sentenced to a minimum sentence of at least ten years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. Upon a second conviction for a crime of violence, the court shall give the person oral and written notice of the penalties under this section for a third conviction for a crime of violence. Failure to provide such notice shall not render the offender ineligible to be sentenced under paragraph (2).
(2) Where the person had at the time of the commission of the current offense previously been convicted of two or more such crimes of violence arising from separate criminal transactions, the person shall be sentenced to a minimum sentence of at least 25 years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. Proof that the offender received notice of or otherwise knew or should have known of the penalties under this paragraph shall not be required. Upon conviction for a third or subsequent crime of violence the court may, if it determines that 25 years of total confinement is insufficient to protect the public safety, sentence the offender to life imprisonment without parole.

42 Pa. C.S.A. § 9714(g) also lists the offenses that qualify as a “strike” offense. It should be noted that not every crime of violence qualifies as a strike offense. For example, only two of the nine subsections of Pennsylvania’s aggravated assault statute qualify as a “strike” offense. Thus, it can be inferred that these mandatory minimum sentences are only reserved for the most serious crimes.

The Superior Court’s Decision

The Pennsylvania Superior Court remanded the defendant’s case for a new sentencing hearing. In making its decision, the Court analyzed New Jersey’s aggravated assault statute. New Jersey defines third-degree aggravated assault as when a person “[a]ttempts to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury. The New Jersey Code of Criminal Justice defines “significant bodily injury” as: “bodily injury which creates a temporary loss of function of any bodily member or organ or temporary loss of any of the five senses.” This is different from Pennsylvania’s aggravated assault statute which requires “serious bodily injury” which is defined as “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

This distinction proved to be important for the Pennsylvania Superior Court. It found that the defendant’s New Jersey conviction was not serious enough to warrant a classification as a prior “strike” offense. Therefore, the statutes were not equivalent, and a conviction under the statute did not constitute an equivalent offense. Therefore, the defendant did not qualify for an enhanced sentence under 42 Pa. C.S.A. § 9714. As such, the Superior Court vacated his sentence, and his case will be remanded for re-sentencing.

Facing Criminal Charges? We Can Help.

Criminal Defense Lawyers.jpg — 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.

Zak Goldstein 10/19/20 Zak Goldstein 10/19/20

Criminal Defense Attorney Zak Goldstein Wins Motion to Dismiss in Philadelphia Drug Trafficking Case

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire recently won a motion to quash Possession with the Intent to Deliver charges in Philadelphia. Relying on the defense of constructive possession, Attorney Goldstein successfully convinced the Court of Common Pleas judge to dismiss all charges because the Commonwealth failed to adequately show at the preliminary hearing that the defendant actually or constructively possessed the controlled substance in question.

In Commonwealth v. QG, Philadelphia prosecutors charged the defendant with possession with the intent to deliver (“PWID”) and related charges. A Pennsylvania State Police Trooper had pulled QG over on the highway for a minor motor vehicle code violation. QG pulled over on command, and the trooper approached the car. Once the trooper reached the driver’s side window, he could smell the odor of marijuana coming from the vehicle. He therefore removed QG and the front seat passenger from the vehicle and began searching the car. He found nothing on QG or the passenger, but he did find a small amount of marijuana in the center console. He also found a pouch on the back seat of the vehicle behind the passenger’s seat, and inside that pouch, the trooper found a significant quantity of heroin/fentanyl and paraphernalia which suggested that the drugs were likely for sale. Neither occupant of the car made any incriminating statements, neither person appeared nervous or attempted to flee, the car did not belong to QG, and the Commonwealth did not perform any forensic testing on the pouch or its contents to determine whether QG’s fingerprints or DNA were on any of the items.

The Commonwealth proceeded on a theory of constructive possession, meaning that they argued that even though the pouch was not physically on QG, it must have been his because he was the driver of the car. The Philadelphia Municipal Court judge agreed and held the case for court, so Attorney Goldstein filed a motion to quash when the case reached the Court of Common Pleas. In the motion to quash, Attorney Goldstein argued that the Commonwealth had failed to prove constructive possession – meaning essentially that the DA’s office had failed to prove that the drugs belonged to QG and that they could have belonged to the passenger or someone else who had recently been in the vehicle.

In general, constructive possession is a legal doctrine that allows the Commonwealth to obtain a conviction for a possessory offense even when the contraband is not found on the defendant. In order to prove constructive possession, the Commonwealth must prove that a defendant had the intent and ability to control the contraband in question; in other words, the Commonwealth must be able to circumstantially prove that the contraband belonged to the defendant. Typically, the Commonwealth will seek to show that a defendant constructively possessed something by showing nervousness, furtive movements, flight, statements, or by using forensic testing to obtain DNA or fingerprints. Here, the Court of Common Pleas granted Attorney Goldstein’s motion to quash because the Commonwealth could not prove any of those things. Accordingly, the Court dismissed all of the charges, and QG was immediately released.

If you need a criminal defense lawyer in Philadelphia, PA, 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, 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 10/11/20 Zak Goldstein 10/11/20

PA Supreme Court Eliminates Public Record Presumption for Newly-Discovered Evidence PCRAs

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Small, eliminating the “public records presumption” with respect to Post-Conviction Relief Act (“PCRA”) litigation. The public-records presumption often allowed courts to dismiss PCRA Petitions based on newly-discovered evidence on the theory that a petitioner should have found out about potential evidence contained in records which were theoretically publicly available at an earlier date, thereby rendering petitions untimely. PCRA Petitions based on newly-discovered evidence generally must be filed within one year of the date on which the Petitioner learned of the new evidence. Of course, inmates don’t really have access to public records, and even when they have lawyers, their lawyers may not be aware of certain new evidence or facts. Therefore, the presumption unfairly resulted in the dismissal of countless petitions.

Commonwealth v. Small

The defendant and his co-defendant committed an armed robbery of a drug dealer in the co-defendant’s home in 1981. During the incident, the defendant stabbed the drug dealer and the decedent. The decedent died from his wounds. The defendant and his co-defendant were tried together in 1983. At their trial, the drug dealer testified and identified the defendant and his co-defendant as the assailants. The drug dealer also testified that the defendant stabbed him during the robbery, while the co-defendant was armed with a shotgun. During the struggle, the drug dealer was able to escape through a kitchen window.

The co-defendant testified in his own defense and provided a different account of the events. He admitted that he and the defendant intended to rob the drug dealer and the decedent. However, he denied wielding a shotgun. He testified that he and the defendant entered the apartment and ordered the decedent and the drug dealer on the floor. While tying up the drug dealer, he jumped up and struck the co-defendant. The defendant then came to the co-defendant’s aid and hit the drug dealer three times “with what sounded like punches.” The defendant then “punched” the decedent who cried out that he had been stabbed. The co-defendant stated that he left the apartment in a panic, but then they realized he had left his hat behind. The two men then went back to the apartment. They entered the apartment by breaking a kitchen window whereupon the co-defendant retrieved his hat and the defendant carried off a television set.

The defendant also testified in his own defense. He denied any participation in the crimes. He even denied making an incriminating statement that he had given to detectives which stated that he served as a lookout outside of the apartment. The defendant stated that the detectives approached him in the interrogation room with a statement already prepared and instructed him to sign it, but he refused to do so. At the conclusion of the trial, the jury found both the defendant and the co-defendant guilty of second-degree murder, robbery, aggravated assault, and criminal conspiracy. The defendant was sentenced to life imprisonment. His sentence was later affirmed by the Superior Court.

The PCRA Petition

Over the course of several decades, the defendant made several attempts to obtain relief under the PCRA. His first three PCRA petitions were denied and their dismissals were affirmed on appeal. The instant case has to do with his fourth PCRA petition which was filed in 2014. In this petition, the defendant alleged that the co-defendant testified during his own post-conviction proceedings in a manner that was substantially different than from his trial testimony. The defendant testified that he learned this in 2013 while conducting legal research in the prison library. Due to what the PCRA court characterized as “some administrative and inexplicable error,” the defendant’s petition was neither assigned to nor received by the PCRA court until April 2017.

The PCRA court issued a notice of its intent to dismiss this PCRA petition without conducting an evidentiary hearing. The defendant responded to the notice, contending that his averments satisfied the newly discovered fact exception to the PCRA’s time bar. The PCRA court reconsidered its intent to dismiss the defendant’s petition. The PCRA court stated that the defendant obtained this “newly discovered” evidence based on his reading of a 1998 Superior Court decision that affirmed the denial of the co-defendant’s PCRA petition. In that opinion, the court cites the co-defendant’s testimony from his evidentiary hearing. It stated that the co-defendant testified that the defendant killed the decedent for personal reasons, specifically because his wife had an affair with him.

This was obviously different than what the co-defendant testified to at their trial. Based on this representation, the PCRA court appointed the defendant an attorney to represent him. His attorney was then able to obtain transcripts from evidentiary hearings conducted from the co-defendant’s PCRA proceedings. Consequently, the defendant then filed an amended petition citing these transcripts and alleging that he was entitled to a new trial in light of the after-discovered evidence prong of the PCRA statute. It should be noted that both the Commonwealth and the defendant stipulated that these transcripts constituted “public records.”

In making its decision, the PCRA court gave significant weight to the evidence revealed in the 1993 transcripts. The court found the transcripts relevant because the co-defendant gave another version of events that was different than what he said at their trial. Based on these discrepancies, the PCRA court concluded that this amounted to newly discovered evidence and he was entitled to a new trial. The Commonwealth then filed a timely appeal.

On appeal, the Pennsylvania Superior reversed the PCRA court. Specifically, the Superior Court found that because these transcripts from the 1993 hearing were a matter of public record and therefore could not be considered “unknown” to the defendant. Further, the Superior Court found that the co-defendant’s testimony from the 1993 hearing was not significantly different than his trial testimony. Consequently, the defendant was not entitled to PCRA relief. The defendant then filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court, and the Court agreed to hear the case.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court eliminated the public record presumption of the PCRA. The Court analyzed the plain language of the newly discovered evidence prong of the PCRA and found that it only has two elements: “that the facts upon which the claim is predicated were unknown to the petitioner,” and that those facts “could not have been ascertained by the exercise of due diligence.” Further, the Court stated that “[t]his language plainly calls for a circumstance-dependent analysis of the petitioner’s knowledge, not that of the public at large.” In other words, the language of the newly discovered evidence prong of the PCRA has no requirement that the evidence be of public record and that this presumption was a judicially crafted presumption that was inconsistent with the plain language of the statute.

Unfortunately for the defendant, the elimination of the public records presumption did not mean that he would get a new trial. The Pennsylvania Supreme Court adopted the Superior Court’s finding that the co-defendant’s testimony from his 1993 hearing was not significantly different than what he testified to at their trial. The Court acknowledged that there were inconsistencies and omissions between what he testified to in 1993 and what he testified to at trial. Nonetheless, the co-defendant’s testimonies were consistent enough and therefore held that the defendant is not entitled to a new trial. As such, he will be forced to serve the remainder of his sentence. However, this opinion will help many petitioners going forward as they will be able to get into court by filing a PCRA even if the new evidence appeared in public records to which they do not have access outside of the one year window for filing a newly-discovered evidence petition.

Facing Criminal Charges? We Can Help.

Zak Goldstein 10/7/20 Zak Goldstein 10/7/20

PA Bench Warrants | Get A Bench Warrant Lifted

Bench warrants don't go away on their own. Our Philadelphia criminal defense lawyers can help get a bench warrant lifted.

Bench Warrants in Pennsylvania

If you have missed court as a complainant or a defendant, you may have a bench warrant. Bench warrants can be a serious problem because they can lead to the revocation and forfeiture of bail or a contempt citation and potential jail time. If you have an outstanding warrant for your arrest and would like assistance in turning yourself in and avoiding jail time as punishment for the warrant, our Philadelphia, PA criminal defense lawyers can help. Call or text 267-225-2545 to speak with an experienced and understanding defense attorney today. Although we provide general information about bench warrants here, we can help give you more specific advice on how to handle your individual case for the best possible results.

What will happen if I don’t go to court?

Zak T. Goldstein, Esq. - Criminal Defense Lawyer for Lifting a Bench Warrant in PA

If you were subpoenaed for court as a defendant and miss your court date without letting the court know, you will almost certainly receive a bench warrant. You could also be held in contempt and have your bail revoked when you are eventually arrested on the warrant. The same could be true for a witness in a case. The Commonwealth does not always seek to arrest its witnesses when the witnesses fail to appear, but in some cases, the Commonwealth could obtain a material witness warrant for you if you were subpoenaed for court to testify as a witness and failed to appear.

What is a bench warrant?

A bench warrant is an order issued by the judge directing any law enforcement officers with whom you come into contact to arrest you. This means that if you do not get the warrant taken care of and you get stopped by the police, the police will likely arrest you if they run your name and find out that you have a warrant. If you have an outstanding warrant, you could also run into problems when attempting to travel in and out of the country or by airplane.

Are there any other punishments for missing court?

Demetra Mehta, Esq - Philadelphia Bench Warrant Lawyer

Eventually, you will likely get arrested or decide to turn yourself in. When you go before a judge to have the warrant lifted, there are other potential punishments that the judge could impose. For example, a judge could hold you in contempt, which can be punished by a fine or a jail sentence of up to six months. Additionally, the judge could revoke your bail if the judge concludes that you are a flight risk or the judge could raise your bail so that you have to pay more money in order to get released. You could also be required to pay a significant amount of money to the county or city if your bail is forfeited. In most counties in Pennsylvania, the defendant or the surety actually pays 10% of the bail amount. This means that if bail is set at $100,000, then the defendant would have to pay $10,000 in order to be released. If a judge finds that the defendant willfully missed court, then the defendant could be required to post the other $90,000.

How can I get a bench warrant lifted?

In most cases, the only way to get a bench warrant lifted is by turning yourself in. When you turn yourself in, the court must schedule a bench warrant hearing before a judge or commissioner within 72 hours. If the 72 hours falls on a weekend or holiday, then the hearing may be scheduled for the next regular business day. The judge who conducts the bench warrant hearing will lift the bench warrant and determine whether to reinstate and release you on the same bail, revoke bail, or raise the bail. Additionally, the prosecution may move for contempt, in which case you would have a contempt hearing.

In Philadelphia, you turn yourself in at the basement of the Criminal Justice Center. You must be there early in the morning, and then you will be seen that day and potentially released. The consequences are almost always less severe if you voluntarily turn yourself in and retain counsel to represent you at the bench warrant hearing. If you do not turn yourself in but get arrested, you will be taken to the Curran-Fromhold Correctional Facility and held until you can see the bench warrant judge from the prison for a video hearing.

Has Philadelphia changed its bench warrant procedures due to COVID-19?

Yes, in Philadelphia, the procedures for lifting a bench warrant are currently different from the normal procedure of turning yourself in in the basement of the Criminal Justice Center. Currently, for all cases at the Municipal Court level (misdemeanor trials and preliminary hearings), it is possible to retain a criminal defense attorney and then for the attorney to file a motion to lift the bench warrant electronically. The DA’s office will then also respond electronically as to whether they agree or disagree to the bench warrant being lifted without an in-person hearing. Once both parties file their motions, a Municipal Court judge will then decide based on the submissions whether or not to lift the bench warrant without a hearing. If the judge lifts the warrant, then the defendant will receive a new court date without having to physically go into the courthouse to resolve the warrant. If the judge denies the motion, then the defendant would still have to turn himself or herself in and have a formal hearing.

This new procedure will likely remain in effect until the COVID-19 pandemic has been resolved. It applies primarily in the Municipal Court, and the judges have been encouraged to lift the bench warrants remotely rather than force defendants to come into the building and risk exposure to the virus. Similar procedures are in place in the Court of Common Pleas, but in that court, the decision on the bench warrant goes to the judge who is assigned to the case instead of a random Municipal Court judge.

Most of the counties outside of Philadelphia have also started using similar procedures to resolve warrants for failing to appear for court. Some counties now allow motions to be filed by an attorney to resolve a bench warrant rather than requiring the defendant to turn themselves in.

What is a judge-only bench warrant?

A judge-only bench warrant means that when you get arrested on the warrant or turn yourself in, your bench warrant hearing will be held before the judge that originally issued the warrant. In Philadelphia, if you receive a normal bench warrant, then the warrant will be addressed by whichever judge happens to be assigned to bench warrant court on the day that you have your hearing. If you receive a judge-only warrant, then you will have the warrant addressed by the judge who issued it.

How long can they hold me on a bench warrant?

The Pennsylvania Rules of Criminal Procedure provide that the hearing must be scheduled within 72 hours or on the next business day if the 72 hour period falls on a weekend or holiday. Once the warrant is lifted, you could still be held if the judge raises or revokes your bail. This is true both for criminal defendants and material witnesses. Sometimes, if you are arrested in a different county from the one that issued the warrant, it may be take a little bit longer to get the warrant lifted.

What happens after the bench warrant is lifted?

Once the bench warrant is lifted, the judge will schedule the case for the next hearing. If you missed your preliminary hearing, then the judge would schedule the case for the preliminary hearing. If you missed your trial date, then the case would be scheduled for trial. It is relatively rare, but in some cases, the court may conduct a hearing or trial in your absence if the court finds that you willfully failed to appear. Thus, it is possible (but unlikely) that you may have been found guilty in absentia, in which case you would have to serve your sentence. It may still be possible to appeal at that point, but whether you can do so depends on how quickly you have been arrested or turned yourself in following the in absentia sentencing.

How can I find out if I have a bench warrant?

If you missed court as a defendant, you probably have a bench warrant. The best way to find out for sure is by retaining a lawyer. If you are facing criminal charges and have a bench warrant, we are happy to look it up for you and discuss representation in the case and getting the warrant lifted. You can also check the public court dockets by searching for your name at https://ujsportal.pacourts.us/DocketSheets/CP.aspx. If you have a bench warrant, it will typically be indicated on the docket.

Case Study: Bench Warrant Lifted and Charges Dismissed in Commonwealth v. K.E.

Our Philadelphia bench warrant lawyers have helped numerous clients resolve both recent and older bench warrants. For example, in the case of Commonwealth v. K.E., Attorney Goldstein assisted a client who learned that he had an unresolved twenty-year-old bench warrant for knowing and intentional possession of a controlled substance. K.E. had been arrested approximately two decades ago for two misdemeanor drug cases in different jurisdictions at around the same time. Although K.E. resolved one of the drug charges through participation in a treatment program, K.E. did not realize that he still had an outstanding warrant when he left the program.

K.E. moved out of state, rebuilt his life, and eventually obtained a job as a professional which required a great deal of travel for work. Over the years, K.E. had trouble re-entering the country after business trips and would be detained for up to 24 hours, but K.E. had never been arrested or informed that he had a warrant for his arrest and pending charges. K.E. had even been stopped for traffic tickets and never been told of the warrant. When returning from a recent trip, K.E. learned that he had a bench warrant from the old drug case and immediately contacted Attorney Goldstein.

Attorney Goldstein put together a mitigation packet for the District Attorney's Office showing that K.E. completed drug treatment at the time, had remained clean for twenty years, and had gone on to have a successful career in another state. After receiving the packet, the District Attorney's Office agreed to lift the bench warrant and dismiss the charges without requiring K.E. to return to Philadelphia.

Why should I retain a Philadelphia Criminal Defense Lawyer for help with my bench warrant?

As the previous example illustrates, our Philadelphia criminal defense lawyers have successfully represented countless clients in criminal cases and in resolving bench warrants. Each case is different, and results are never guaranteed, but the odds of a successful outcome are significantly higher when you retain counsel and turn yourself in voluntarily. In many cases, we are able to have a client’s bail reinstated and the client released on the same day. We offer a free criminal defense strategy session to any potential client. Call or text 267-225-2545 to discuss your case today.