Attorney Goldstein Published in PACDL’s For the Defense Magazine on Differences in Federal and State Constitutional Protections

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire was recently published in the Pennsylvania Association of Criminal Defense Lawyer’s For the Defense Magazine. Attorney Goldstein’s article focused on the differences between the protections provided by the Pennsylvania and United States Constitutions and the practical impact those differences may have on the litigation of motions to suppress and other challenges to improper seized evidence in state and federal court. Read more here.

Facing criminal charges or appealing a criminal case? 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 and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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.  

Attorney Goldstein Wins Motion to Suppress Firearm in Philadelphia

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire recently won a motion to suppress a firearm in the case of Commonwealth v. R.M.

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

In R.M., three police officers were patrolling Northwest Philadelphia in plainclothes and an unmarked car. They claimed that they saw the defendant driving a car with illegal window tint on all of the windows, so they pulled the car over. When the police approached the car, the defendant was cooperative with them and provided them with all of the paperwork for the vehicle. Nonetheless, one of the officers testified that he could immediately observe the magazine of a gun sticking out from underneath the mat underneath the driver’s feet. The officer asked the defendant if there were any guns or drugs in the car, and when the defendant denied having a gun in the car, the officers pulled him out of the car and searched it. The officers claimed that they only frisked the area around the driver’s seat for officer safety because they could see the magazine and the defendant had denied having a gun in the car. Of course, they did recover a gun and an extended magazine. They claimed to have recovered it from underneath the floor mat. The police arrested R.M., and prosecutors charged him with violations of the uniform firearms act (VUFA) under sections § 6105, § 6106, and § 6108. VUFA § 6105 is a particularly serious charge as it is typically graded as a first-degree felony.

R.M. retained Attorney Goldstein. Following the preliminary hearing, Attorney Goldstein filed a motion to suppress the firearm. Attorney Goldstein argued that police had illegally pulled R.M. over for no real reason and searched the car based on a hunch rather than any actual observation of a magazine or gun.

The Philadelphia Court of Common Pleas held a hearing on the motion to suppress. Attorney Goldstein cross-examined the arresting officer extensively on the fact that the officer had not been wearing a body camera even though most Philadelphia Police officers now wear body cameras, the officers failed to comply with virtually all of the police directives governing the behavior of plainclothes officers, the fact that the officers would not have even able to write a ticket for the window tint because they did not have a computer in their car and would have needed uniformed officers to come to the scene, and the absurdity of the story that the gun just happened to be sticking out in plain view.

Attorney Goldstein also called the vehicle’s passenger as a witness. She testified that the police had pulled the car over shortly after she and the driver left a gas station, immediately removed them from the vehicle, and searched the car extensively before finding the gun. She denied that it could have been in plain view.

As the police had not actually seen R.M. do anything illegal and the gun was likely not actually in plain view prior to the search, the trial court found the officers not credible and granted the motion to suppress the gun. Credibility rulings generally cannot be appealed, so the Commonwealth then withdrew the charges. R.M. will be eligible to have them expunged.

The Plain View Exception

Notably, whether the police can search a car without a search warrant if they see contraband in plain view is still debatable. In this case, the officers claimed that they could see the magazine of the gun in plain view. A magazine on its own is not illegal, and having one in a car does not give the police probable cause or reasonable suspicion to search or frisk the car with or without a warrant, but the presence of the magazine along with the defendant’s alleged denial that he had a gun in the car likely would have given the police the ability to search the car. A false denial would tend to suggest that the defendant actually had a gun but was not allowed to have it. The Superior Court has found that the police may conduct a warrantless search of a vehicle when they see contraband in plain view, but the Pennsylvania Supreme Court has granted review in that case and may reach a different conclusion. Either way, the trial judge found that the plain view exception did not apply in this case because the officers were not credible.

This case highlights the importance of retaining an attorney who will conduct a thorough investigation, who will locate and prepare witnesses to testify credibly for the defense, who will be  familiar with the case law and police directives in order to show that the police either did not follow required procedures or the law during a search, and who can effectively cross-examine officers and other witnesses to challenge their credibility at motions and trial.

Facing criminal charges or appealing a criminal case? We can help.

Philadelphia 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, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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 Explains When Ineffective Assistance Claims May Be Raised on Direct Appeal

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Watson, dismissing the defendant’s appeal because the defendant improperly tried to raise ineffective assistance of counsel claims prematurely through post-sentence motions and on appeal rather than by filing a Post-Conviction Relief Act Petition. The Superior Court held that the trial court abused its discretion in allowing the defendant’s claims of ineffective assistance of counsel to be reviewed in post-sentence motions rather than in a PCRA petition.

The Facts of Watson

The defendant appealed to the Pennsylvania Superior Court after he was convicted by a jury of rape and other related sex crimes. The conviction stemmed from the alleged sexual abuse of the defendant’s stepdaughter. She said that the abuse started when she was eleven and ended when she was seventeen. Prior to sentencing, the defendant retained new counsel, and trial counsel withdrew his appearance. The trial court sentenced the defendant to 27-60 years in prison and found the defendant to be a sexually violent predator.

The defendant’s new attorney filed a post-sentence motion and eventually an amended post-sentence motion. The motion raised claims of ineffective assistance of trial counsel, which usually need to be deferred until after a direct appeal has concluded. The amended post-sentence motion concluded with the statement, “[Defendant] has been advised that in raising ineffectiveness now, he waives the right to raising [sic] issues of merit on direct appeal.”

The trial court held an evidentiary hearing on the defendant’s motion. At the hearing, the Court did not really address whether it was appropriate to hear ineffective assistance claims in the post-sentence motions rather than defer any such claims until after the direct appeal had concluded. Instead, new counsel immediately called the defendant to the stand and asked the following preliminary questions:

[Defense Counsel]: [Defendant], before we go any further, I’ve advised you that in your [amended] post[-]sentence motion that you’re raising ineffectiveness of counsel, correct?

[Defendant]: Yes.

[Defense Counsel]: And I’ve advised you that raising it in your [amended] post[-]sentence motion means that the Superior Court of Pennsylvania will not, you’re not going to be raising questions of merit. Do you remember that?

[Defendant]: Yes.

[Defense Counsel]: Okay. And I’ve advised you that you have to make a choice of doing one or the other and you chose to raise ineffectiveness of counsel, correct?

[Defendant]: Yes.

[Defense Counsel]: Okay. And nobody’s forced you. You’re making this decision voluntarily, correct?

[Defendant]: Yes.

The trial court denied the amended post-sentence motion, and the defendant appealed to the Pennsylvania Superior Court. All of the issues that the defendant raised in the Superior Court related to the allegations that he received the ineffective assistance of counsel which he had asserted in his post-sentence motions. The Superior Court began by addressing whether it was appropriate for the Court to deal with claims relating to the ineffective assistance of counsel on direct appeal instead of in a PCRA petition. The Court also addressed the related claim of whether it was proper for the trial court to hear the ineffective assistance claims in a post-sentence motion rather than a PCRA. 

The Superior Court’s Decision

The Superior Court provided a helpful summary of when PCRA/ineffective assistance of counsel claims should normally be raised. In general, PCRA claims such as claims that the lawyer provided the ineffective assistance of counsel should not be raised until PCRA proceedings, and a PCRA petition must be filed either after the direct appeal has concluded or instead of a direct appeal. Trial courts usually should not entertain claims of ineffectiveness in post-sentence motions, and therefore, those claims should not ordinarily be raised on direct appeal. There are exceptions to this rule, however. A defendant may raise an ineffective assistance of counsel claim right away in the following scenarios:

(1) an extraordinary case where the trial court, in its discretion, determines that a claim of ineffectiveness is both meritorious and apparent from the record so that immediate consideration and relief is warranted; or

(2) when the defendant raises multiple, and comprehensive, ineffectiveness claims, which the court, and for good cause shown, determines that post-verdict review is warranted, and the defendant waives his right to PCRA review; or

(3) if the defendant is statutorily precluded from obtaining subsequent PCRA review, the trial courts must address claims challenging trial counsel’s performance.

The first exception is for claims that are so strong and so obviously likely to be granted that it would be an injustice to defer them until PCRA review. The second exception typically applies to a defendant who receives a short sentence or no sentence. The PCRA requires that a defendant still be in custody or under probation supervision in order for the court to have jurisdiction, so a defendant who receives a short sentence typically will not be able to file an appeal and then litigate a PCRA petition because the sentence will have expired.

Here, the Court found that none of the exceptions applied.  

With respect to the first exception for extraordinary claims, the Court found that because the trial court needed to schedule an evidentiary hearing to determine the merits of the claim, the claim was not apparent from the record. In other words, if the claim were so strong and so obvious that it should be resolved immediately, then it would not have been necessary for the trial court to hold a hearing. The court would have been able to just grant it from the record.

In addressing the second exception, the Court ruled that the defendant failed to argue that he had good cause for raising his ineffective assistance of counsel claims in a post-sentence motion, and the trial court did not make a finding of good cause for him to do so. Most importantly, the Superior Court found the defendant did not make a knowing waiver of his right to PCRA review. The Superior Court opined that the defendant’s attempted waiver of his right to file PCRA claims was based on new counsel’s misinterpretation of the relevant case law. Instead of asking if the defendant agreed to waive the right to litigate a PCRA after the conclusion of the direct appeal, the new attorney asked the defendant if he agreed to waive the right to raise normal appellate issues of trial court error. In order for the colloquy to be correct, the lawyer would have to ask the defendant if he agreed to waive his PCRA rights, not his direct appeal rights. It is possible to raise both ineffective assistance of claims and regular direct appeal claims in cases where the waiver is executed properly or in cases where the first exception for extraordinary claims applies. The Court did not address the third exception as the defendant was not statutorily precluded from obtaining subsequent PCRA review.

Ultimately, the Superior Court concluded that the trial court abused its discretion in allowing the defendant to address his premature ineffective assistance of counsel claims in the post-sentence motions. The Court therefore dismissed the appeal without prejudice for the defendant to file a timely PCRA petition and raise those claims. Procedurally, the Court probably should not have actually dismissed the appeal. The appeal was properly filed, it just raised claims that were not cognizable at this stage. Therefore, the Court should have simply affirmed. This wording, however, will likely not make a significant difference for the defendant as he will still be able to raise his claims by filing a PCRA petition. Either way, it is important to understand these exceptions and make sure you retain a lawyer who understands them if you want to raise a claim of ineffective assistance of counsel before filing a direct appeal. In most cases, it makes sense to do the direct appeal and then litigate a PCRA petition, but in some cases, the PCRA claims are so strong or the sentence is short enough that it makes sense to claim that trial counsel was ineffective right away.

Facing criminal charges or appealing a criminal case in Pennsylvania? We can help.

Goldstein Mehta LLC - Philadelphia 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, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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.  

Third Circuit Finds Laws Prohibiting 18 – 20 Year Olds From Carrying Guns Probably Unconstitutional

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The United States Court of Appeals for the Third Circuit has decided the case of Lara v. Commissioner Pennsylvania State Police, holding that Pennsylvania’s firearm laws, which prohibit 18 – 20-year-olds from carrying firearms, are probably unconstitutional. Federal courts in Pennsylvania and throughout the country have recently found many firearms regulations unconstitutional, and this latest case may have the effect of making Pennsylvania’s VUFA § 6106 and § 6108 statutes unconstitutional when applied to someone who is 18, 19, or 20 because Pennsylvania law prohibits someone who is under 21 from obtaining a license to carry a firearm and Philadelphia bars all public carrying of firearms without a license.

Under 18 Pa.C.S. § 6106(a), 6109(b), and §§ 6101 – 6128, an individual may not carry a concealed firearm without a license, and an individual must also be at least 21 years old to apply for a license. This is true even during a state of emergency. Ordinarily, Pennsylvania citizens may open-carry without a license outside of Philadelphia, but when the state has declared an emergency, an individual may not open carry without a license unless they are actively engaged in a “defense” or one of the fifteen other exceptions in § 6106(b) applies. There are exceptions for transporting a gun home from purchasing it or traveling to and from a shooting range.

The plaintiffs filed suit in federal court against the Commissioner of the Pennsylvania State Police in October 2020 seeking an injunction prohibiting the Commissioner from arresting them for carrying firearms. At that point, Pennsylvania had been in a state of emergency for three years due to COVID-19, the opioid addiction crisis, and Hurricane Ida. Accordingly, the plaintiffs, who were under 21, could not carry firearms outside of their homes openly due to the state of emergency or in a concealed manner because someone under 21 cannot obtain a license to carry. The district court granted the Commonwealth’s motion to dismiss the case. The plaintiffs appealed to the Third Circuit Court of Appeals, and the Third Circuit ruled that the statutes are unconstitutional when applied to 18-to-20-year-old citizens.

Where do these gun challenges come from?

The recent successful challenges to gun regulations come from two United States Supreme Court cases – District of Columbia v. Heller, and Bruen v. New York State Rifle & Pistol Association, Inc.

In Heller, the Supreme Court recognized that an individual has a Second Amendment right to possess a handgun in the home for self-defense regardless of whether they serve in a militia. Any law that banned all firearm possession in the home would therefore be unconstitutional. Specifically, the Court found a DC law which required firearms in the home to be rendered and kept inoperable at all times to be unconstitutional.

Then, in Bruen, the Supreme Court held that the Second and Fourteenth Amendments protect the right to carry a handgun outside the home. Bruen in particular has supported these recent challenges to gun regulations.

The US Supreme Court adopted a two part test for evaluating the legality of firearms regulations.

First, a court determines whether the Second Amendment’s plain text covers an individual’s conduct. If it does, then the Constitution presumptively protects the conduct.

Second, a court determines whether the regulation in question is consistent with the Nation’s historical tradition of firearm regulation. If it is, then the presumption applied as part of the first test is overcome, and the regulation is permissible. If it is not, then the regulation is unconstitutional. In order to prove that a regulation satisfies the second part of the test, the government bears the burden of identifying a “founding-era” historical analogue to the modern firearm regulation. In other words, the government must find similar laws from around 1791, or the regulation is unconstitutional. The laws need not be identical, but they must be very similar.

Here, the Third Circuit ruled in favor of the plaintiffs.

First, it concluded that the Second Amendment plainly applies to the action of carrying a firearm outside of the home and that adults under 21 are among the people protected by the Second Amendment.

Second, it concluded that the government could not point to a historical regulation that is analogous to the laws in question. Although there were similar laws on the books when the Fourteenth Amendment was ratified in 1868, the Court found that the government had to find similar laws from 1791 when the Second Amendment was ratified. In the court’s view, the government could not satisfy this burden, so the statutes are unconstitutional. The only law the government could find was a 1721 law which prohibited “carrying any gun or hunting on the improved or inclosed land of any planation other than his own.” This law had nothing to do with age, so the court found it to be irrelevant to this case. Meanwhile, numerous laws from that time period showed that young adults were actually permitted to or even required to arm themselves and serve in the miliia upon turning 18. Therefore, the Court granted the plaintiffs’ request for an injunction prohibiting the Commissioner from arresting law-abiding 18-to-20 year olds who openly carry firearms during a state of emergency declared by the Commonwealth.

The final impact of the Court’s holding is still open to debate. The Court did not find the statutes to be entirely unconstitutional. Instead, it simply granted an injunction directing the State Police not to arrest 18-to-20-year-olds for openly carrying guns during a state of emergency. The injunction was not technically issued against the Philadelphia Police Commissioner, but he would likely be sued should he ignore it. It also did not address the unique statutes in Philadelphia. This is important because Philadelphia does not allow the open carrying of a firearm without a license to carry. Similarly, for the rest of the state, the statute is arguably applicable only to carrying a firearm during a state of emergency because the statutes only completely prohibit open carry without a license during such a state of emergency. If the state of emergency provision were eliminated, then the laws may be constitutional, and it is not clear whether 18-to-20-year-olds have the right to obtain a license to carry.

It does seem likely, however, that the federal courts would find Pennsylvania’s statutes unconstitutional in Philadelphia because the laws which apply to Philadelphia make it permanently illegal for an 18-to-20-year-old to carry a firearm either openly or in a concealed fashion. Philadelphia never allows open carry without a license, and someone under 21 cannot get a license, so like an 18 year old in the rest of the state during a state of emergency, an 18 year old in Philadelphia can never carry a firearm outside of the home. Accordingly, if you are 18-to-20 years old and charged with carrying a firearm without a license in Philadelphia, you may have a viable motion to dismiss the charges as unconstitutional.

It is important to remember that even though you may have a viable motion to dismiss and the laws may be unconstitutional, the laws are still on the books. The Philadelphia Police are still enforcing them, and the state courts have largely rejected these types of constitutional challenges. Further, the Third Circuit could revisit this opinion en banc, or the United States Supreme Court could grant review. The Supreme Court has accepted appeals in post-Bruen cases challenging gun regulations, and it is very possible that the Supreme Court could decide that many of these regulations are still constitutional and overrule the lower courts. Therefore, it is generally better not to carry a firearm illegally and potentially be the test case in case this opinion does not hold up or the state courts ignore it. Nonetheless, if the Supreme Court approves of these rulings or does not address them, it will become increasingly difficult for the state courts to continue to ignore them. Ultimately, if you have been charged with carrying a firearm without a license or on the streets of Philadelphia and you are under 21, you should speak with one of our experienced gun lawyers today.

Read the Third Circuit’s Opinion

Facing criminal charges or appealing a criminal case in Pennsylvania? We can help.

Criminal Defense Lawyer 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, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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.