Philadelphia Criminal Defense Blog

Zak Goldstein 3/17/23 Zak Goldstein 3/17/23

Attorney Goldstein Wins Release of Wrongfully Convicted Man Who Spent 33 Years in Prison

Last week, I obtained the dismissal of all charges for a client who had been convicted of first-degree murder 33 years ago and sentenced to life without parole.

In 1989, Philadelphia Police arrested Kevin Bowman and charged him and his co-defendant with murder for a shooting incident that left one man dead and another injured. The only evidence against Mr. Bowman was supposedly the statements of the surviving complainant. At the preliminary hearing and at trial, that man denied that Mr. Bowman shot him and that he had ever told the police that Mr. Bowman was involved in the shooting.

Nonetheless, five police detectives, many of whom have already been sued for misconduct by other wrongfully convicted men, took the stand and each testified that the complainant had made five statements to them and identified Mr. Bowman as one of the shooters. The complainant denied making the statements, and four of them were unsigned. The detectives, however, swore to the jury that the complainant was physically unable to sign the statements at the time due to a hand injury.

Under the oft-abused Brady-Lively rule, the court permitted the prosecution to introduce the statements into evidence as substantive evidence of Mr. Bowman’s guilt even though the complainant denied making them. The prosecution then argued that the jury should believe that the complainant made the statements and told the truth at the time of the statements rather than at trial or the preliminary hearing. The prosecution had no other evidence, so the jury was left to guess as to whether the statements were true or the trial testimony was true. Without any corroboration whatsoever, the jury convicted, and Mr. Bowman was sentenced to life without parole. He had been in custody for 33 years. Last week, a Philadelphia judge ordered his release.

After learning from his co-defendant, who was also convicted, that the co-defendant’s lawyers had obtained access to the file and found potentially exculpatory material which was never disclosed to the defense, Mr. Bowman retained me to investigate his case. I also gained access to the District Attorney’s file, and I found medical records for the complainant and interviews with the hospital personnel that showed that the detectives’ story was impossible. On many of the same dates that the detectives claimed the complainant had a hand injury which prevented him from singing the statements, the complainant had actually signed medical treatment consent forms. The records also showed that his injuries would not have prevented him from signing anything, and one nurse even told the detectives that he had been communicating with the providers by writing notes.

Other doctors told the detectives that the complainant would have been under the influence of medication which could have impacted his ability to tell them what happened. The complainant also told a hospital social worker that he thought someone else might have been responsible for the shooting. And shortly before trial, the Commonwealth submitted the one signed statement for handwriting comparison against other known signatures of the complainant, showing that they had even begun to doubt the testimony of their own detectives. Unsurprisingly, the results were inconclusive, suggesting that even the signed statement may have been a forgery. Finally, and perhaps most outrageously, the file contained a statement from another man who had approached police a day or two later and told them that he had been involved in the shooting and might have hurt someone. Police records showed that they transported the man to the hospital, but it is unclear what they did after that. The prosecutor did not provide any of this critical information to the defense.

Despite the prosecutor having material in his file which showed that the complainant could sign the statements, that the complainant was on strong medication, that the complainant thought someone else might have been the shooter, that the signature might not be the complainant’s, and that someone else had confessed to the crime, the Commonwealth proceeded to trial. Each detective took the stand and insisted that the complainant was unable to sign the four unsigned statements because his hand was injured. And a jury quickly convicted Mr. Bowman. The Commonwealth sought the death penalty, but fortunately, the jury sentenced Mr. Bowman to life in prison.

After finding this material, I filed a Post-Conviction Relief Act Petition arguing that Mr. Bowman should receive a new trial because the Commonwealth committed a Brady violation by suppressing exculpatory material that would have led to an acquittal. After two or three years of delays as we navigated the COVID shut downs and waited for the Commonwealth’s response, the Commonwealth did the right thing and agreed to a new trial. It then agreed that the charges against Mr. Bowman should be withdrawn, and Mr. Bowman was finally released last week. I went to meet him at SCI Chester and make sure that he was released the same day.

Mr. Bowman’s story is both unique and far too routine. It’s unique because he is one of the lucky few who received relief in a court system that is far too focused on upholding convictions even in the face of egregious error and misconduct. Mr. Bowman and his co-defendant had excellent defense attorneys at the time, but those attorneys could not overcome the Commonwealth’s complete failure to comply with its constitutional obligations and produce the exculpatory documents. It’s also unique in that he is truly an inspiring individual who had a perfect record at SCI Chester and prior institutions, helped create critical programming for other inmates, taught a class at Swarthmore College, and even after learning he was due to be released, went to work at his job in the prison.

It is too routine because people go to jail every day, sometimes for decades or even life, based on the testimony of a police officer that a witness who fails to even show up for court said something a few years ago. And in most cases, they don’t have the resources to investigate the case thirty years later or the good luck to find blatant evidence that the prosecution committed misconduct. Fortunately, Mr. Bowman’s criminal case is finally over, he is finally home with his family, and I know he is going to do big things.

Facing criminal charges? We can help.

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

If you are facing criminal charges or under investigation by the police, we can help. Our experienced and understanding Philadelphia criminal defense attorneys have successfully defended clients and obtained new trials after conviction in cases involving charges as serious as Aggravated Assault, Rape, Murder, and Fraud. We have also won criminal appeals and post-conviction relief in state and federal court. At the same time, our extensive experience in the Philadelphia criminal justice system and skills in the courtroom often allow us to obtain outcomes like this one even in relatively less serious cases in the Philadelphia Municipal Court. We offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with a defense attorney today.

Zak Goldstein 3/16/23 Zak Goldstein 3/16/23

PA Superior Court: Jail Time Required After Third Conviction for Driving on DUI Suspended License

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Rollins, holding that a defendant must be sentenced to six months’ incarceration for a third conviction for driving on a DUI suspended license under 75 Pa.C.S. § 1543(b). The appellate courts had previously concluded that trial courts could not constitutionally sentence defendants to jail time for the first two convictions because the penalty sections of the statutes do not contain maximum possible sentences, making the statute unconstitutionally vague for the first two offenses. The third offense, however, is graded as a misdemeanor of the third degree, so a court may sentence a defendant to jail.

The Facts of Rollins

The defendant had his driver’s license suspended due to a DUI conviction. He was charged with driving on a DUI suspended license in violation of 75 Pa.C.S. § 1543(b) three times. He was convicted for the first two, but the case is not clear as to what sentence he received. In 2021, he was arrested and charged with the offense for a third time. He pleaded guilty, but he argued that he could not receive jail time because the statute was unconstitutionally vague. The trial court, however, sentenced him to six to twelve months’ incarceration. The statute provides:

(iii) A third or subsequent violation of this paragraph shall constitute a misdemeanor of the third degree and, upon conviction of this paragraph, a person shall be sentenced to pay a fine of $2,500 and to undergo imprisonment for not less than six months.

The statute itself does not specify the maximum penalty, so the defendant argued that he could not receive jail time. Two appellate cases arguably supported his position. Specifically, in Commonwealth v. Eid, the defendant was convicted of the summary offense of DWS set forth at 75 Pa.C.S.A. § 1543(b)(1.1)(i), which applied when an individual was found to be driving with a suspended or revoked license and refused a breath test. Section 1543(b)(1.1)(i) provided that an individual found in violation of this section “shall, upon first conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.” Eid was sentenced to a term of ninety days to six months’ imprisonment as well as a $1,000 fine.

On appeal, the Pennsylvania Supreme Court found that the statute was “unconstitutionally vague and inoperable” as the provision failed to provide a maximum term of incarceration. The Supreme Court affirmed Eid’s conviction and fine, but it vacated the imprisonment term as it declined to infer a maximum sentence, which would have forced the Court to “engage in sheer speculation as to which sentence the General Assembly intended.”

Shortly thereafter, in Commonwealth v. Jackson, the defendant pleaded guilty to the summary offense of DWS set forth at 75 Pa.C.S.A. § 1543(b)(1)(ii), which applied when an individual was found to have a second DWS violation. Section 1543(b)(1)(ii) provided “[a] second violation of this [crime] shall constitute a summary offense and, upon conviction [ ], a person shall be sentenced to pay a fine of $1,000[.00] and to undergo imprisonment for not less than 90 days.”

The Superior Court applied Eid and found that the section was unconstitutionally vague and inoperable because it contained identical language to that in Eid. The statute provided a mandatory minimum, but it provided no maximum, and the court could not guess as to what maximum the legislature intended. Therefore, the Jackson Court affirmed Jackson’s conviction and the imposition of the fine, but it vacated the house arrest portion of the sentence.

The Superior Court’s Decision

Here, the Superior Court affirmed the judgment of sentence and rejected the defendant’s argument. The Court found that the statute properly provides both a minimum and a maximum. It states that the minimum sentence shall be six months’ incarceration, and it also defines the statute as a third degree misdemeanor. The crime code provides that third degree misdemeanors may be punished by up to a year in jail, and so the absence of the specific maximum in the statute itself does not make the statute unconstitutionally vague because the offense is defined as a third degree misdemeanor. Therefore, the Court found that the section was not like the flawed sections in Eid and Jackson that apply to first and second offenses. Barring any successful additional appeals, the defendant will have to serve the six to twelve month jail sentence.

Facing criminal charges? We can help.

Criminal Defense Attorney Zak T. Goldstein, Esquire

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. We have also won criminal appeals and PCRAs in state and federal court. 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 3/10/23 Zak Goldstein 3/10/23

PA Superior Court: Bad Info From Third Party in Search Warrant Does Not Invalidate Warrant

The Pennsylvania Superior Court has decided the case of Commonwealth v. Adorno, holding that a search warrant is still valid even where the warrant contains incorrect information that has been provided by a third party. In this case, the Court found that the police relied on the information provided by a third party in good faith, so they had probable cause for the warrant. The fact that the information turned out to be wrong did not require suppression of the evidence that they later found.

Commonwealth v. Adorno

In this case, police officers discovered a Facebook Live video that showed a user named “Zay-Yaho” dancing while holding a gun and drugs. They identified the user as the defendant and determined that he had a criminal record which prohibited him from possessing a firearm. The officers learned that he lived at a certain address in Lackawanna County, Pennsylvania. They interviewed the landlord of the apartment building, and the landlord confirmed that the defendant lived there. The landlord also told them that the location in the video looked like the suspected address. The police then obtained a search warrant for that address. They executed the warrant, and they found three guns and prescription medication.

The Motion to Suppress

After finding the contraband, the police arrested the defendant. The defense filed a motion to suppress the evidence, and the trial court held a hearing on the motion to suppress. In the motion, the defense alleged that the police conducted a search without probable cause, that the search was based on incorrect information, and that the search exceeded the scope of the search warrant. Essentially, the defendant argued that the evidence should be suppressed because the video did not actually show the location that the police searched. At the hearing on the motion, the officers agreed that there were noticeable differences between the walls and layout of the home that they searched and the home in the Facebook video. Similarly, a friend of the defendant’s testified that the location in the video was her house, not the defendant’s apartment. She had not been aware of the video.

The trial court granted the motion to suppress, finding that police had searched the wrong location because the defendant’s apartment, which was the subject of the warrant, was not the location in the video. The Commonwealth appealed to the Pennsylvania Superior Court.

The Superior Court Appeal

On appeal, the Commonwealth argued that the police properly relied on a validly issued search warrant and that the fact that the warrant turned out to contain incorrect information did not render it invalid. The Superior Court agreed. First, the Court found that there was a nexus between the crime and a home that would justify the search of a home because the video showed the gun in a home. Where a defendant commits a crime on the street, police may not have probable cause to search a come because the police cannot just assume a defendant will store evidence of the crime there. But where the crime is committed in a home, the case for searching a home is stronger.

Second, the Court found the warrant to be valid despite the factual error regarding the location depicted in the video. In order for a court to find a search warrant invalid due to a factual error, the defense must show that the police intentionally included false information or included false information with a reckless disregard for the truth. Here, the defense did not even allege that the police had acted in bad faith by either lying or including the information with a reckless disregard for the truth. Accordingly, the defense failed to meet its burden. This type of motion is often called a Franks motion. Here, the defense had argued only that the information was wrong, but showing that a warrant contains incorrect information is not enough to invalidate a warrant.

Therefore, the Superior Court reversed the order granting the motion to suppress. The defendant will have to face trial in the Court of Common Pleas.

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Zak Goldstein 2/17/23 Zak Goldstein 2/17/23

PA Superior Court: Police May Conduct Warrantless Inventory Search of Car if Necessary

The Pennsylvania Superior Court has decided the case of Commonwealth v. Thompson. The Court held that the recent decision in Commonwealth v. Alexander, in which the Pennsylvania Supreme Court reinstated the requirement that police get a search warrant before searching a car, did not eliminate the inventory search exception to the warrant requirement. Under Thompson, when the requirements of the inventory search exception are met, the police may search a car without a warrant. The Court left open the issue of whether the exception may apply when the owner of the vehicle could potentially make other arrangements for the safekeeping of their property.

The Facts of Commonwealth v. Thompson

On July 1, 2020, police and medical personnel were dispatched to an AAMCO station for a report of an unconscious person in a vehicle. When the Marple Township Police Department arrived, EMT personnel were speaking to the defendant, whose vehicle was blocking two or three other cars. Police spoke to the defendant and concluded that he appeared lethargic, stumbled as he walked, and was slurring his speech. Police determined that he was incapable of operating the vehicle, and they decided to tow the car. Per departmental policy, they performed an inventory search of the vehicle to record its contents, and of course, they found a firearm. They charged the defendant with persons not to possess a firearm (VUFA § 6105).

The defendant moved to suppress the firearm, arguing that the police were required to obtain a search warrant prior to searching the vehicle. The trial court denied the motion to suppress after concluding that the police properly conducted an inventory search of the car which did not require a search warrant. The defendant was then found guilty of the charges, and he appealed.

The Superior Court Appeal

On appeal, the defendant argued that the Court’s decision in Alexander requiring a search warrant for the search of a car eliminated the inventory search exception. In response, the Commonwealth argued that Commonwealth v. Alexander dealt only with searches for evidence of a crime, and therefore it did not have any relevance in whether the inventory search remains a proper exception to the warrant requirement when dealing with an automobile.

What is an inventory search?

When the police have to tow a vehicle, they are permitted to conduct an inventory search of the vehicle. An inventory search is permissible when 1) the police have acted lawfully in impounding the vehicle and 2) the police have acted in accordance with a reasonable, standard policy of routinely securing and inventorying the contents of the impounded vehicle. Often, the challenge to an inventory search will involve challenging whether police really needed to tow the vehicle or whether they could have safely parked it or released it to someone else. In this case, the question was whether the inventory search still applied post-Alexander.

The Superior Court’s Decision

The Superior Court affirmed the denial of the motion to suppress. The court recognized that the law contains many exceptions to the warrant requirement. In other words, many searches may be allowed even where the police do not get a search warrant. Some examples include a search due to exigent circumstances, a search for weapons for officer safety, a search where contraband is in plain view, and in this case, the inventory search exception.

Here, the court concluded that Alexander did not eliminate the other exceptions that applied prior to the decision. Instead, it only held that where police are going to search a car for evidence of a crime, they must get a search warrant or have exigent circumstances and probable cause. As an inventory search theoretically has nothing to do with searching for contraband or evidence of a crime, Alexander did not make that type of search illegal.

Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. An inventory search falls under “community caretaking” and thus does not require any showing of probable cause or reasonable suspicion at all. Therefore, the police were not required to have probable cause, and they were allowed to search the vehicle in order to ensure that it did not contain anything dangerous and in order to protect the defendant’s belongings.

The Superior Court, however, did leave the door open to the idea that an owner could object to the inventory search or make other arrangements for moving the vehicle. This is based on the theory that inventory searches are done on the behalf of the property owner, to protect it while in custody, and shield police from disputes or claims of lost or stolen property. There could also be privacy interests at stake, in which the individual’s privacy interest outweighs the government’s interests. These arguments were not raised in this appeal, so the Superior Court did not rule on them. Obviously, the inventory search exception is ripe for abuse - police who want to search a vehicle but who don’t have probable cause for a search warrant can simply claim that it was necessary to tow the vehicle for some reason, and then they are permitted to conduct a warrantless search. Therefore, as previously mentioned, motions to suppress in these cases often involve challenging whether it was really necessary to tow the vehicle.

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