Philadelphia Criminal Defense Blog

Zak Goldstein 6/21/23 Zak Goldstein 6/21/23

Motion to Suppress Firearm Granted Due to Defective Search Warrant

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire, recently won the suppression of a firearm in the Philadelphia Municipal Court. In the case of Commonwealth v. J.K., the client was charged with possessing a firearm as a prohibited person for allegedly refusing to relinquish two firearms after Family Court issued a final protection from abuse order against him. Fortunately, J.K. retained Attorney Goldstein, and Attorney Goldstein obtained suppression of the gun that police recovered when they searched J.K.’s apartment.

In this case, J.K.’s relative obtained a protection from abuse order against him. The final order contained a condition which required J.K. to surrender any firearms. After nearly a year went by, the Philadelphia Police conducted a background check on J.K. and concluded that he had not surrendered any firearms to the Sheriff’s Department as directed by the order. According to police records, J.K. had allegedly purchased two firearms legally about four or five years ago. A detective called J.K., and he told them that he did not have any firearms to surrender. Similarly, sheriffs deputies went to J.K.’s apartment and left notices on his door that he was required to surrender any firearms according to the terms of the PFA.

J.K. never surrendered any firearms, leading police to then obtain a search warrant for the apartment. When they executed the search warrant, they found one gun in the apartment. They arrested J.K., and the District Attorney’s Office charged him with possessing a firearm as a prohibited person in violation of 18 Pa.C.S. § 6105 (VUFA § 6105). Under the statute, it is illegal for a person to possess a firearm while they have an active PFA order against them.

J.K. retained Attorney Goldstein, and Attorney Goldstein litigated a motion to suppress on his behalf. Attorney Goldstein moved that the Municipal Court judge suppress the firearm because the warrant that the police relied upon did not actually contain probable cause. Specifically, the warrant provided only that J.K. had purchased firearms about four or five years prior to the date on which the Family Court issued the PFA and that he had not relinquished those firearms to the sheriff. The problem with the warrant, however, was that the police had no evidence that J.K. still had the firearm.

Does Pennsylvania Maintain a Registry of Firearms?

The simple answer to this question is no. Pennsylvania does not maintain a registry of firearm possession. Pennsylvania and federal law require a person who wishes to purchase a firearm from a dealer to undergo a background check and fill out certain paperwork at the time of the sale. The dealers generally keep that paperwork, and they provide copies of that paperwork to the police or federal agents when someone fails the background check so that the police can investigate whether the person attempted to purchase the gun illegally. This paperwork, however, does not go into any kind of central registry that can tell the police or other law enforcement where a particular gun is at any time. Additionally, there are many firearms transfers which do not require the completion of any paperwork at all. For example, a person may give a firearm to a parent, spouse, child, grandparent, or grandchild without completing any of the background check paperwork. Additionally, if someone left the state and sold the firearm in another state, the Pennsylvania State Police would not have any information on that transaction. Finally, if a gun were lost, stolen, or destroyed, the local police also may not have any information on the whereabouts of the gun.

So, although it is common for people to believe that a gun is “registered” to them after they have purchased it from a gun store, the reality is that Pennsylvania does not maintain a registry of firearms. Instead, the police tried to find out if J.K. still had a gun by checking various databases for whether or not the gun had ever been reported stolen. They did not know whether J.K. had gifted it to a close relative as allowed by law, had it stolen, sold the gun legally, or lost or destroyed it. When the police called, J.K. calmly told them that he did not have any firearms to surrender, and the purchase of the firearms had been four or five years earlier. The police, however, had obtained the search warrant based on this mistaken idea that guns are registered and that if J.K. had legally disposed of or transferred the guns, the police would somehow know about it. This idea, however, is not correct. Accordingly, Attorney Goldstein successfully argued that just because J.K. had a gun four or five years earlier did not mean he would still have a gun that he would need to surrender at the time that the PFA order was issued by the Family Court judge. The Municipal Court agreed, found that the warrant did not contain probable cause, and granted the motion to suppress.

It is also important to note that Pennsylvania does not have a good faith requirement for invalid search warrants. In the federal system, prosecutors often may move forward even if the search warrant was defective in some way or even if it had already been executed. In the state court system, evidence obtained in reliance on a defective warrant must be suppressed. Once evidence has been suppressed, it cannot be used in court, and prosecutors will generally be unable to move forward with the case.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

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 6/14/23 Zak Goldstein 6/14/23

PA Supreme Court: Trial Court May Not Revoke Probation Before It Begins

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Rosario, holding that a trial court may not revoke a probationary sentence before it begins. This decision is extremely important as it provides a great deal of protection to individuals who are still serving the incarceration or parole portions of sentences that have a probationary tail. Previously, a judge could revoke a consecutive probationary tail and sentence a defendant up to the maximum possible sentence for the offense. With parole, however, the maximum possible sentence is the portion of the jail sentence that has not yet been served. This case upholds the Superior Court’s ruling in Commonwealth v. Simmons which prohibited a longstanding practice of judge’s finding a defendant in violation of probation which has not yet started.

The Facts of Rosario

In Rosario, the defendant pleaded guilty to carrying a firearm without a license and drug charges. He received a sentence of 2.5 - 5 years’ incarceration followed by five years’ probation. He made parole before the maximum prison sentence expired, and while on parole, he was arrested and charged with kidnapping and then shooting a man. The Commonwealth prosecuted him for attempted murder and related charges in the new case. The trial court also revoked Rosario’s parole and probation in the original gun and drug case. The trial court sentenced him to the remaining unserved sentence of his five year prison term (improperly in this case as the parole board had jurisdiction) as well as an additional 5 - 10 years’ incarceration and five years’ probation for the violation of the probation on the drug charges. Rosario’s probation, however, had not yet started at the time of the new offense. The court had run the probation consecutively to the prison sentence, so he was still on the parole portion of the sentence.

Rosario appealed to the Pennsylvania Superior Court. While his appeal was pending, the Superior Court decided the case of Commonwealth v. Simmons. In Simmons, the Superior Court held that a trial court may not find someone in violation of probation which has not yet started. In other words, the law does not allow anticipatory probation violations. Accordingly, the Superior Court applied the new rule of Simmons to Rosario’s case, vacated the prison sentences on the drug charges because the probation had not started when he committed the new crime, and remanded the case to the trial court for re-sentencing. The Commonwealth appealed to the Pennsylvania Supreme Court, and the Supreme Court accepted the case.

The Supreme Court’s Ruling

The Supreme Court affirmed and held that anticipatory probation violations are illegal. Examining the language of the statute, the Court found that a trial court may only revoke a probationary sentence which has already begun. For example, one portion of the statute specifically provides that the court may “revoke an order of probation upon proof of the violation of specified conditions of the probation.” 42 Pa.C.S. §9771(b). In other words, only a violation of the probation itself may trigger revocation, not a violation of a probation order before the probation term has started. A different section requires the court resentencing a defendant following a revocation to give “due consideration . . . to the time spent serving the order of probation.” 42 Pa.C.S. §9771(b). Obviously, if the probation had not yet started at the time of the violation or revocation, then the court could not consider how the defendant had done on probation or for how long the defendant had been on probation. Likewise, another section provides: “[t]here shall be no revocation” of probation “except after a hearing at which the court shall consider . . . evidence of the conduct of the defendant while on probation.” 42 Pa.C.S. §9771(d).

Ultimately, numerous sections of the statute direct the resentencing court to consider how the defendant did while on probation, how long the defendant was on probation, and whether the probation itself was violated. None of these things can be evaluated for someone who has not yet started their probation, suggesting that the legislature intended that only probation which has begun can be violated. The court therefore found that the statute is unambiguous and the plain language prohibits an anticipatory violation. Even if the statute were ambiguous, however, the rule of lenity would apply. The rule of lenity requires that any ambiguity in a criminal statute be construed in favor of the defendant. Therefore, the Supreme Court affirmed. A trial court may not find a defendant in violation of a consecutive period of probation when the defendant is still in custody or on parole.

There are ways around this ruling for pending and future cases, however. Previously, trial judges would often sentence a defendant to a prison sentenced followed by a period of probation on the lead charge and no further penalty on the remaining counts. For example, a defendant charged with carrying a firearm without a license and carrying a firearm on the streets of Philadelphia might receive a sentence of 11.5 - 23 months in jail followed by two years’ probation on the carrying without a license offense and no further penalty on the carrying on the streets of Philadelphia count. Now, a judge can impose 11.5 - 23 months’ incarceration on one offense and concurrent probation on the other so that the probation will start immediately. This limits the overall potential maximum penalty for a violation in that the probation is only on one offense, but it does still limit the effects of this ruling. For many defendants who are currently serving sentences of incarceration or parole, however, it provides a tremendous amount of protection against a probation violation for a probation sentence that has not started yet.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Lawyers

Zak Goldstein 6/9/23 Zak Goldstein 6/9/23

Not Guilty: Attorney Goldstein Obtains Acquittal in Aggravated Assault of Child Case

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire, recently won a full acquittal in an aggravated assault of a child case. In Commonwealth v. S.B., prosecutors charged S.B. with aggravated assault of a child and endangering the welfare of a child because S.B. was unable to explain injuries that occurred to her three month old baby.

About two years ago, S.B. called 911 after noticing that her nearly three month old baby began to make unusual motions with his arm. An ambulance quickly arrived and took S.B. and the baby to the emergency room. At the emergency room, doctors quickly determined that the baby was suffering from seizures. Further testing determined that the baby was also suffering bilateral brain bleeds and had an injury to his neck. Fortunately, the doctors were able to stabilize the child, and the child began to make a successful recovery. Had the doctors not acted, quickly, however, the baby likely would have died from the brain bleeds.

Hospital personnel questioned S.B. about the cause of the injuries, and S.B. was unable to provide them with any explanation. She asked reasonable questions. For example, she asked whether hugging the baby too hard or leaving the baby in a swing for too long could have caused these issues. After telling S.B. that these injuries could not have been caused by accident, the doctors concluded that someone had committed child abuse. They called the Philadelphia Police Department, and a Special Victims Unit detective began an investigation. The detective interviewed S.B., the child’s father, S.B.’s grandmother, and the medical staff. Additionally, a child protection team doctor wrote a report concluding that the baby had been the victim of child abuse. S.B. was unable to provide any explanation as to what happened, and she told the police and doctors that she was the primary caregiver to the baby. She did mention that she had left the baby alone with the baby’s father on the night before the seizures began, but the police ignored that fact. Instead, they asked to search her phone after she told them that she had been texting with her mother about what could have caused the injuries and googling the various symptoms of shaken baby syndrome and SIDS. Notably, the father did not accompany S.B. and the baby to the hospital.

After the police confirmed that she had in fact conducted these Google searches, the police arrested S.B. Prosecutors promptly charged her with aggravated assault of a child and endangering the welfare of a child. They could not find the baby’s father to obtain an interview for a month, and he had a lengthy history of domestic violence. Nonetheless, they opted only to arrest S.B. Prosecutors maintained at all times that she must have intentionally injured the baby that she had rushed to the hospital.

S.B. quickly found herself facing $500,000 bail and the prospect of a 5-10 year mandatory minimum sentence should she be convicted of aggravated assault. Fortunately, she retained Attorney Goldstein. Attorney Goldstein thoroughly investigated the case and quickly became convinced that law enforcement had made an egregious error in charging S.B. Attorney Goldstein reviewed the discovery, interviewed family members, obtained medical records, and located records which showed the baby’s father’s violent history. Attorney Goldstein then had the case scheduled for trial before a Philadelphia judge.

Through cross-examination of the child protection team doctor, Attorney Goldstein established that the police had evidence of child abuse but no evidence that S.B. committed the abuse. Specifically, S.B. had no prior record, rushed the baby to the hospital as soon as she realized something was seriously wrong, seemed appropriately concerned, asked normal questions, and remained at the hospital until the baby was discharged. She voluntarily spoke with the doctors, nurses, and police detectives, and she provided the detectives with her phone without even requiring the detectives to get a search warrant. She maintained at all times that she did not know what happened, that she was the primary caregiver for the baby, and that she had left the house for about an hour shortly before the symptoms developed.

Attorney Goldstein also cross-examined the detective on his failure to investigate the father’s history of domestic violence and the lack of evidence showing that S.B. had done anything other than rush the baby to the hospital and try to Google the possible causes of symptoms. The Commonwealth objected, arguing that such evidence was not admissible. Anticipating this argument, Attorney Goldstein was prepared with the recent Pennsylvania Supreme Court case law on the issue and successfully convinced the trial judge that the evidence was admissible to show that someone else had committed the crime.

Finally, Attorney Goldstein used S.B.’s text messages to show that there was absolutely no consciousness of guilt on her part - she had googled the symptoms to try to get help, immediately contacted her mother and 911, and acted the same way that a concerned parent who did not in fact cause the injuries would have acted. Attorney Goldstein also presented evidence of S.B.’s good character in the community.

The trial judge immediately found S.B. not guilty of all charges. Instead of facing a mandatory minimum sentence of five to ten years’ incarceration, S.B. will have the charges expunged. Unfortunately, this case highlights the rush to judgment that police and healthcare professionals often engage in anytime a child presents for an appointment or at the emergency room with an injury. Accidents happen, illnesses sometimes present in atypical ways, and even if child abuse has occurred, the police do not always know who committed it. But in cases involving the potential abuse of children, the system is under a lot of pressure to make an arrest. This leads to innocent people like S.B. getting arrested, and this case serves as a cautionary tale as to why you should always consult with a lawyer before speaking with the police. Fortunately, the trial judge acquitted, the baby recovered well from the injuries, and S.B. will be able to return to her life.

Facing criminal charges? We can help.

Zak Goldstein 6/7/23 Zak Goldstein 6/7/23

Federal Third Circuit Finds Felon in Possession of Firearm Laws Unconstitutional as Applied to Old, Non-Violent Offenses

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The United States Court of Appeals for the Third Circuit has decided the case of Range v. Attorney General. In Range, the Third Circuit held that the federal felon in possession of a firearm law, 18 U.S.C. § 922(g)(1), is unconstitutional as applied to a plaintiff whose only conviction was for a 30-year-old non-violent fraud offense. Under Range, prosecutors throughout the Third Circuit, which includes Pennsylvania, New Jersey, and Delaware, will now have significant difficulties in bringing prosecutions against defendants who are found with firearms which they would otherwise not be allowed to possess due to non-violent convictions. The case, however, leaves open the questions of exactly which convictions will still prohibit a person from possessing a firearm and whether a more recent non-violent offense could still trigger the prohibition on firearm possession by a felon.

The Facts of Range

In 1995, Range pleaded guilty in the Lancaster County Court of Common Pleas to one count of making a false statement to obtain food stamps. At the time, a violation of that statute was classified as a a misdemeanor of the first degree under Pennsylvania law. A misdemeanor of the first degree may be punished by up to five years in prison. Range had lied about his income on the food stamp application, and he received a sentence of probation. He also had to pay restitution.

Range’s conviction, however, prohibited him from possessing a firearm or ammunition. Under the federal law, §922(g), anyone with a felony conviction generally may not possess a firearm that has been transported in interstate commerce.

The federal definition of a felony, however, can be somewhat confusing. The federal statute defines a felony as any federal offense punishable by more than one year in prison regardless of the sentence that the defendant actually received. This means that a defendant who pleaded guilty to conspiracy to commit securities fraud, which could have a five year maximum, would be prohibited from possessing a firearm even if the defendant received a probationary sentence or a prison sentence of one year or less.

The federal definition of “felony” also includes state court crimes. But for state court crimes which have been designated by the state as a misdemeanor, the law only prohibits firearm possession if the offense of conviction is punishable by more than two years.

Pennsylvania has three degrees of graded misdemeanors as well as various ungraded misdemeanors. Misdemeanors of the third degree are punishable by up to a year in prison, and misdemeanors of the second degree are punishable by up to two years in prison. First offense DUIs and drug possession charges are ungraded misdemeanors. For example, a first DUI has a maximum penalty of six months’ incarceration, and possession of a controlled substance has a maximum of one year in prison. Misdemeanors of the first degree, however, are punishable by up to five years in prison. Accordingly, misdemeanors of the first degree prohibit a person from possessing a firearm under federal law even if Pennsylvania law would still allow firearm ownership. This means that even some DUI offenses may trigger a permanent, lifetime bar on firearm possession under federal law because many second and third DUI offenses may be graded as misdemeanors of the first degree or worse. Likewise, a second offense possession of a controlled substance usually carries a maximum of three years in jail, so that offense also would trigger a lifetime ban on firearm possession.

In short, a conviction for any federal offense with a maximum penalty of more than one year or any state misdemeanor with a maximum of more than two years would trigger a lifetime ban on firearm possession under federal law. Prior to Range, this was true regardless of the nature of the offense or the sentence that the defendant received; the only thing that mattered was the maximum possible sentence.

Range, however, filed a lawsuit in the United States District Court for the Eastern District of Pennsylvania seeking a declaration that the federal statute violates the Second Amendment as applied to him. He argued that but for the statute, he would purchase a gun for self-defense or for hunting. And he argued that because his only conviction was for a thirty-year-old non-violent state court misdemeanor, the statute unconstitutionally violates his right to possess a firearm.

The Third Circuit’s Ruling

In a somewhat surprising ruling, the Third Circuit went en banc (meaning more than three judges heard the case) and overwhelmingly voted that the statute prohibiting firearm ownership for all federal felons did in fact violate Range’s Second Amendment rights. The Court’s analysis focused primarily on the United States Supreme Court’s recent ruling in New York State Rifle & Pistol Ass’n, Inc. v. Bruen. There, the United States Supreme Court struck down New York’s prohibition on carrying a firearm outside of the home. The Court also provided an entirely new rubric for testing the constitutionality of firearms regulations. Bruen requires a court to focus on whether the Second Amendment applies to a person and his proposed conduct. If it does, then the government bears the burden of proof to “affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”

Here, the Court found that Range is one of the people to whom the Second Amendment applies because he is a citizen of the United States. Therefore, the government had to try to justify the regulation prohibiting from possessing a firearm by pointing to similar laws existing around the time of the founding of the United States. The Court ultimately concluded that there were no similar laws which would have prohibited someone with an old, non-violent fraud offense from permanently possessing a firearm. Accordingly, the statute is unconstitutional as applied to Range, and it may not be applied to him or people like him. Unless the United States Supreme Court decides to review the case, Range may possess a firearm for hunting or self-defense.

The question remains as to how broadly the courts will read this opinion. For example, the Court did not find that felons convicted of violent crimes may still possess firearms. It also did not really define non-violent offenses as there are all sorts of crimes that could be considered violent or not depending on one’s definition. Finally, it did not clarify how old an offense should be before it no longer matters. Had Range’s conviction been more recent, for example, would the prohibition have been constitutional.

In the short term, there will be numerous challenges to both federal and state firearms regulations, and it appears that no regulation is safe. Exactly which crimes prohibit possession and for how long is now debatable. Laws prohibiting people under 21 or who have active protection from abuse orders against them from possessing a firearm may also be unconstitutional. A Texas federal appellate court found that the federal prohibition on possessing a firearm while being the subject of an active PFA order is unconstitutional, and other courts have found that states may not prohibit 18 - 20 year olds from carrying firearms. It remains to be seen whether background check laws and even straw purchase laws may be enforced by the police and prosecutors. Ultimately, these decisions will be decided by the courts, and many statutes may have to be revised by various legislatures. And while many laws may eventually be struck down, you should not assume that any given law is unconstitutional as violating a statute could still have enormous consequences. However, if you have been charged with illegal firearm possession, you should immediately speak with an attorney. There may be constitutional challenges to the statute under which the charges were filed.