Philadelphia Criminal Defense Blog

Zak Goldstein 10/2/26 Zak Goldstein 10/2/26

PA Supreme Court: Prosecutors May Not Use a Defendant’s Decision to Hire a Lawyer Against Him

The Pennsylvania Supreme Court has decided Commonwealth v. Jenkins, No. 66 MAP 2024 (Pa. Oct. 1, 2026), holding that a prosecutor violates a defendant’s due process right to a fair trial by telling the jury that the defendant consulted or retained a lawyer before police questioned or arrested him. But the defendant did not get a new trial. The Court held that the error is not structural and found it harmless this case because the trial judge gave a strong curative instruction and the evidence of guilt was overwhelming.

The Facts of Jenkins

On Valentine’s Day 2017, the defendant spent the evening drinking with a longtime friend and the friend’s girlfriend at their Dauphin County apartment. The friend felt dizzy and went to bed. The girlfriend told the defendant to leave, and he refused. She remembered him striking her and throwing her against a wall hard enough to damage it, and she remembered nothing after that. Motel surveillance video showed the defendant arriving at his room around 3:15 a.m. and carrying her limp body inside. She woke up in his room with her pants and underwear removed.

Two months later, after the defendant hired a lawyer, a detective interviewed him by phone with his attorney participating. The defendant denied any wrongdoing and specifically denied having sex with the complainant. DNA testing later identified his semen on the vaginal swab taken at the hospital, which is a tough fact. The Commonwealth charged him with rape of an unconscious victim, kidnapping, and related offenses.

The defendant did not testify at trial. In closing, the prosecutor told the jury that the defendant knew the case was serious, so “[h]e gets a lawyer. He gets an attorney. This isn’t some schlep who just went in and spoke with the police without the benefit of having someone there to protect your rights, no.” She then argued that when he had the chance to come clean with his lawyer on the call, “[h]e lies. He lies.”

Defense counsel unsurprisingly moved for a mistrial. The trial court denied the motion but, at defense counsel’s request, told the jury that the defendant had a right to counsel, that “when statements are given the law prefers that it be with counsel,” and that the jurors should draw no adverse inference from his use of a lawyer. The jury convicted him on all charges, and the court imposed 13 to 30 years of incarceration. A divided Superior Court panel affirmed.

The Supreme Court’s Decision

The Supreme Court affirmed, but it agreed with the defense on the central question. Writing for the majority, Chief Justice Todd explained that when a person has reason to believe police are investigating him, the decision to consult or hire a lawyer does not suggest guilt and has no relevance to whether he committed the crime. Relying on federal and out-of-state decisions, including the Third Circuit’s decision in United States ex rel. Macon v. Yeager, 476 F.2d 613 (3d Cir. 1973), the Court held that “it is error for a prosecutor to inform the finder of fact that a criminal defendant sought the advice or assistance of counsel prior to questioning by the police, or prior to arrest, for the criminal offense for which they are being tried, as it impacts the defendant’s due process right to a fair trial guaranteed by the Fourteenth Amendment.”

The Court found this prosecutor’s argument especially troubling because she tied the lie to the lawyer, suggesting that the defendant lied with his attorney’s help or blessing. The Commonwealth was free to argue that the DNA proved the defendant lied when he denied having sex with the complainant. The reference to his attorney added nothing to that point. It only undermined the defendant, and his lawyer, in the eyes of the jury.

The Court then rejected the defense argument that the error was structural and required automatic reversal. Applying Weaver v. Massachusetts, 582 U.S. 286 (2017), the Court found that a single improper comment at the end of a three-day trial did not infect the whole proceeding and that its effect could be measured against the rest of the evidence. Like other improper prosecutorial remarks, the comment is subject to harmless error review.

Finally, the Court held that the error was harmless beyond a reasonable doubt. The surveillance video, the DNA results, and the complainant’s testimony provided overwhelming evidence of guilt. The trial judge also gave a prompt instruction that directed the jury not to draw any adverse inference from the defendant’s use of a lawyer, and the Court presumed the jury followed it. The opinion closes with a warning to prosecutors that “this line of questioning should be scrupulously avoided.” Justice McCaffery, joined by Justice Donohue, filed a concurring and dissenting opinion.

The Takeaway

Goldstein Mehta Criminal Defense — Goldstein Mehta LLC Criminal Defense

Jenkins gives defense lawyers a clear, binding rule: the Commonwealth may not tell the jury that the defendant spoke with or hired a lawyer before police questioned or arrested him. But the rule helps only if trial counsel objects right away and moves for a mistrial. In distinguishing the federal and out-of-state cases that granted new trials, the Court pointed out that those cases involved no timely objection, no curative instruction, or an instruction that did not address the comment. Lawyers litigating this issue should also raise Article I, Section 9 of the Pennsylvania Constitution. The defendant in Jenkins did not argue that it provides greater protection, so the Court did not decide that question. But here, the evidence was still just too strong to overcome, so the defendant did not receive a new trial. In many cases, the evidence will not be quite as strong. Lawyers should always object to improper commentary on a defendant’s decision to retain counsel or remain silent in the face of questioning.

Facing Criminal Charges or Appealing a Criminal Case in Pennsylvania? 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 successful direct appeal of a first-degree murder conviction and 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.

Zak Goldstein 10/1/26 Zak Goldstein 10/1/26

PA Superior Court: Service of a Temporary PFA Order Does Not Prove the Defendant Knew About the Final Order

The Pennsylvania Superior Court has decided the case of Commonwealth v. Miller, 2026 PA Super 219, reversing a conviction for indirect criminal contempt of a Protection From Abuse order because the Commonwealth never proved that the defendant knew a final PFA order existed. The defendant had been served with the temporary order and the notice of the final hearing, but he did not attend the hearing, and the Commonwealth put on no evidence that anyone ever told him the court had entered a final order. The Court held that is not enough. It also refused to let the Commonwealth save the conviction with a portion of a video that was never played in court and never admitted into evidence.

The Facts of Miller

The complainant obtained a temporary PFA order against the defendant, with whom she lived, in March 2023. He was served with the temporary order on March 17, 2023. The court held the final hearing on April 19, 2023. The complainant appeared, the defendant did not, and the court entered a final PFA order by default barring him from contacting her or being at her residence for three years. On the day of the hearing, the defendant was in Philadelphia County custody.

On May 29, 2023, the complainant called the police at 2:19 a.m. and reported a verbal dispute with the defendant. The officer’s report stated that she did not report any assault, injury, or weapon, although she later testified that she had told him the defendant strangled her and threatened to kill her. Police arrested the defendant for violating the final PFA order and charged him with strangulation, terroristic threats, unlawful restraint, simple assault, recklessly endangering another person, and false imprisonment.

The Procedural History

The case went to a bench trial in December 2023. During cross-examination, defense counsel played a short portion from the beginning of the complainant’s recorded police interview to show that her speech was slurred. Both sides marked the video, but neither side moved it into evidence, and nothing in the record shows that any other part of it was played. The parties stipulated to the procedural history of the temporary and final orders. They did not stipulate that the defendant had notice of the final order, and the Commonwealth presented no evidence that he did.

The trial judge found the complainant’s testimony about the alleged assault not credible and acquitted the defendant of every charge except contempt. The judge found that he had been at her residence in violation of the final order and sentenced him to six months of reporting probation. The contempt conviction also triggered a probation violation on an older case, for which the defendant received five to ten years in prison. He appealed the contempt conviction, arguing that the Commonwealth never proved he knew about the final order.

The Superior Court’s Decision

To convict someone of indirect criminal contempt of a PFA order, the Commonwealth must prove that the order was clear, that the defendant had notice of it, that he did something the order prohibited, and that he acted with wrongful intent. On notice, the Pennsylvania Supreme Court held in Commonwealth v. Stevenson, 283 A.3d 196 (Pa. 2022), that the Commonwealth must prove beyond a reasonable doubt that the defendant had actual knowledge of the PFA order at the time of the violation. The defendant can get that knowledge any way at all, including from someone telling him. But the Supreme Court made clear it was not holding that knowledge of a temporary order equals knowledge of a final order.

The trial court’s opinion reasoned that the defendant knew about the final order because he had been served with the petition, the temporary order, and the notice of the April 19 hearing date. The Superior Court rejected that reasoning as contrary to Stevenson. Notice of the temporary order and of the hearing is not notice that the court actually entered a final order. The Commonwealth had to prove that the defendant knew the final order existed, and it offered nothing on that point.

The Commonwealth tried to fill the gap on appeal with the police interview video. It claimed that at roughly the eight-minute mark the complainant said the defendant took her copy of the final PFA order when he left, which would support an inference that he knew about it. The Court would not consider it. The video was marked for identification but never moved into evidence. The record showed that the judge saw only the opening minutes, played by the defense for a different purpose, and the trial court’s opinion never mentioned the statement the Commonwealth was relying on. The Commonwealth cited Commonwealth v. Jones, 271 A.3d 452 (Pa. Super. 2021), where the Court treated a video as part of the record even though no one formally moved it in, but in Jones the defense had stipulated to its admissibility and the video had been played for the judge. The Court applied the general rule from Jones instead: an exhibit that is only marked for identification is not evidence a fact-finder can rely on. The Court vacated the sentence, reversed the conviction, and discharged the defendant.

The Takeaway

PFA contempt cases move fast, and defendants often plead or go to a short bench trial without anyone asking whether the Commonwealth can prove notice of the final order. Miller shows why that question matters. A defendant who was served with a temporary order and then missed the final hearing, as this defendant did because he was in custody, has not necessarily learned that a final order was entered. The Commonwealth has to prove he knew, and if its only evidence is service of the temporary order, the conviction cannot stand.

The stakes here were not small. The contempt conviction itself carried six months of probation, but it also served as the basis for a five-to-ten-year sentence on a probation violation. The defendant separately appealed the revocation, and with the contempt conviction reversed, the conviction that supported it is gone. Defense lawyers handling probation violation cases should look hard at the underlying conviction, because a weak contempt case can be the only thing holding up a long state sentence.

Facing Criminal Charges? 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 in jury trials, bench trials, preliminary hearings, and appeals in state and federal court. We have won cases involving the most serious charges, including first-degree murder, and we have obtained new trials and sentencing relief for our clients through direct appeals and PCRA petitions. We offer a free criminal defense strategy session to anyone who is facing charges or who may be under investigation. Call 267-225-2545 to speak with an experienced and understanding defense attorney today

Zak Goldstein 9/30/26 Zak Goldstein 9/30/26

PA Superior Court: Google and Facebook Are Not Government Agents When They Scan User Accounts and Report Internet Contraband to NCMEC

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Thomas, 2026 PA Super 209, holding that Google and Facebook do not act as agents of the government when they scan their users’ accounts for child sexual abuse material and report what they find to the National Center for Missing and Exploited Children (NCMEC). The defendant argued that federal law, which requires the companies to report this material and fines them if they do not, makes them instruments of law enforcement, so their warrantless searches of his accounts violated the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution. The Court rejected the argument in a published opinion. But the holding rests on a thin record, and the Court left the harder questions open.

The Facts of Thomas

In May 2023, Facebook and Google sent three CyberTipline reports to NCMEC stating that files had been uploaded through Facebook Messenger and to Google Photos. NCMEC forwarded the reports to the Pennsylvania State Police. A State Police corporal viewed the images, subpoenaed Verizon and Google for the subscriber behind the IP address, and obtained a search warrant for the defendant’s home in Fayette County. Police found child sexual abuse material on two of his phones. The defendant moved to suppress, arguing that Google, Facebook, and NCMEC were all acting as agents of law enforcement when they searched his accounts. The trial court denied the motion, a jury convicted him of twenty counts of possession, one count of dissemination, and one count of criminal use of a communication facility, and the court sentenced him to six to twelve years in prison.

The Superior Court’s Decision

The Fourth Amendment and Article I, Section 8 restrain the government, not private parties. Under United States v. Jacobsen, 466 U.S. 109 (1984), and Commonwealth v. Shaffer, 209 A.3d 957 (Pa. 2019), the police may use what a private party finds and turns over so long as they do not exceed the scope of the private search. The doctrine does not apply if the private party was really acting as an agent or instrument of the government, and the answer to that question depends on the degree of the government’s participation in the private party’s activities.

The defendant’s argument rested on 18 U.S.C. § 2258A, which requires providers to report apparent child sexual abuse material to NCMEC and fines them up to $1,000,000 for knowingly failing to do so. The Court held that the statute does not make Google and Facebook government agents because subsection (f) of the same statute says that nothing in it requires a provider to monitor its users or affirmatively search, screen, or scan for the material. Congress required the companies to report what they know and left the decision whether to look entirely to them. The Court then made a critical point: nothing in the record showed that Google and Facebook searched the defendant’s accounts at the government’s urging or through any manipulation or coercion. The Court cited decisions from five federal circuits reaching the same result and followed them.

The Court treated NCMEC differently. It acknowledged that Congress funds NCMEC, requires providers to report to NCMEC rather than to the police, requires NCMEC to forward every report to law enforcement, authorizes NCMEC to receive and distribute material that would be a crime for anyone else to possess, and immunizes NCMEC for doing so. It noted that the Second Circuit in United States v. Guard, 152 F.4th 375 (2d Cir. 2025), and the Tenth Circuit in United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016), have held that NCMEC is a government agent. The Court did not decide the question because the defendant never argued that NCMEC or the police looked at anything Google and Facebook had not already looked at. Without a scope argument, NCMEC’s status did not matter.

The defendant did win a new trial on the dissemination count, because the Commonwealth proved that charge entirely through the CyberTipline report, which it introduced as a business record through the corporal, and the Court held that an investigating officer who merely receives and relies on NCMEC reports is not a qualified witness who can authenticate them.

The Takeaway

The state actor argument is still open. The Court did not hold that Google and Facebook can never be government agents. It held that this defendant did not prove they were on a record that failed to provide any evidence as to why the companies scan their users’ accounts, how those systems came to exist, or what role law enforcement and NCMEC play in them. The Court said in so many words that the record did not support a finding that the government urged, manipulated, or coerced the searches. That may be an opportunity to build a better record in a future case. A defendant could subpoena the providers and develop testimony about the government’s participation in the design and operation of these scanning programs, where the hash databases the providers match against come from, and what the providers get in return presents a different case. The agency test turns on the degree of government participation, and no one in Thomas presented any evidence of participation to the trial court, so there was nothing to support the appeal.

The second open question is what happens when the police look at files that no human at the company ever opened. In Thomas, the Facebook report itself said that NCMEC never viewed the files, and nothing in the opinion says anyone at Facebook viewed them either. A computer flagged them, and the first person to actually open them may have been the trooper. The private search doctrine lets the police look at what a private party already looked at. It does not necessarily let the police look at something a private party's software only flagged. The defendant never made that argument, so the Court did not address it. It has to be raised in the suppression motion and supported with evidence at the hearing because the Superior Court will not consider it for the first time on appeal.

Facing Criminal Charges? We Can Help.

Zak Goldstein 9/21/26 Zak Goldstein 9/21/26

PA Superior Court: No Reasonable Expectation of Privacy in Bag Left in the Open Bed of a Pickup Truck Where Defendant Had No Connection to the Truck

Zak T. Goldstein, Esquire - Criminal Defense Attorney in Philadelphia

The Pennsylvania Superior Court has decided Commonwealth v. Serrano, 2026 PA Super 205 (Pa. Super. Sept. 18, 2026), holding that the trial court erred in suppressing a gun that police found in a bag in the open bed of a parked pickup truck. The Commonwealth produced evidence that the defendant’s only connection to the truck was that he stood next to it, and he did not present any evidence to the contrary. The Court concluded that he did not have a reasonable expectation of privacy in the truck and that he abandoned the bag when he left it there and ran. It did not decide whether the open bed of a pickup truck should receive the same protection as the inside of a vehicle in a case where a defendant actually establishes a connection to the truck.

What happened in Commonwealth v. Serrano?

On August 26, 2024, two uniformed Philadelphia police officers received a call from another officer who had seen the defendant near Reese and Somerset Streets with a black fanny pack. The officers ran a warrant search and found an active arrest warrant. When they arrived, they saw the defendant crouching behind a parked pickup truck. One officer asked to speak with him, and he ran. Police arrested him after a brief chase. He did not have keys to the truck.

Meanwhile, the second officer looked around the truck and saw a black satchel on the floor of the open truck bed. He reached in, took the bag to the police car, searched it, and found a gun. The officer did not have a search warrant. The officers testified that the defendant was not holding the bag when they arrived.

The Commonwealth charged the defendant with three firearms/VUFA offenses, and he moved to suppress. The suppression court granted the motion under the Pennsylvania Constitution. It reasoned that society would treat the bed of a pickup truck as part of the vehicle, with the same expectation of privacy as the interior. It also found that the Commonwealth did not meet its initial burden of showing that the defendant lacked a privacy interest in the truck. In the court’s view, the only evidence on that point was the absence of keys, and the defendant could have been spending time outside his home in his neighborhood. The Commonwealth appealed.

The Superior Court’s Ruling

The Superior Court reversed. Under Commonwealth v. Enimpah, 106 A.3d 695 (Pa. 2014), the Commonwealth bears the initial burden of producing evidence that the defendant lacked a reasonable expectation of privacy in the place searched. The defendant then bears the burden of persuasion. The Court found that the suppression court did not consider the totality of the circumstances and wrongly treated the question as one of ownership. A person who does not own a vehicle may still have a reasonable expectation of privacy in it if he lawfully possesses or controls it. Commonwealth v. Anderson, 340 A.3d 297 (Pa. 2025).

Here, the Court found that the Commonwealth showed more than missing keys. The officers did not see anyone in the truck, no one claimed it, no one saw the defendant operate it, and his only apparent connection to it was that he stood near it. He did not introduce any evidence linking himself to the truck. The Court relied on Commonwealth v. Millner, 888 A.2d 680 (Pa. 2005), in which the Pennsylvania Supreme Court held that a defendant who stood beside a parked car and tossed items into it did not have a reasonable expectation of privacy in the car. In the cases the defense cited, the police saw the defendant inside the vehicle. The Court did criticize the Commonwealth, noting “with displeasure” that it never ran the truck’s registration and that running the registration could have made things a lot easier for everyone.

The Court then turned to the bag. A defendant cannot maintain a reasonable expectation of privacy in property he has abandoned. Leaving property in a place open to the public is not enough. The evidence must also show that the person tried to dissociate himself from it. The Court found that showing here because the defendant walked away from the truck and the bag when the police approached, ran, and did nothing to suggest that he intended to come back for it.

Because the defendant did not have a privacy interest in the truck, the Court declined to decide whether an open truck bed is protected like the rest of the vehicle. In a footnote, it said that the defendant might have prevailed on that argument, but that the question requires analysis because the Fourth Amendment does not protect what a person knowingly exposes to the public.

The Takeaway

Serrano is a reminder that the defendant carries the ultimate burden on the expectation of privacy. When police find a gun or drugs in a car that is not registered to the client, and the client was not inside it, the defense should be prepared to present evidence connecting him to it. Without it, the Commonwealth can meet its burden by showing that the police did not find any link between the defendant and the place they searched. It is also a reminder that people who run and throw contraband are usually worse off for a motion to suppress than people who remain calm and do not run away.

The decision also leaves room for future litigation. The Court left open whether the police need a warrant to take property from an open truck bed when the defendant has a connection to the truck. And abandonment only helps the Commonwealth when the police acted lawfully. Here, the police had an arrest warrant. Where the police unlawfully seize someone and he discards property in response, the forced abandonment doctrine requires suppression, as the Superior Court held two days earlier in Commonwealth v. Thomas, 2026 PA Super 202. This defendant may have lost either way. If the police found the warrant, they likely could have searched him incident to arrest, and if the gun was on him, they would have found it. But running away will usually not improve your case.