FAQ

A defendant may file a direct appeal within 30 days of being convicted of a crime, i.e., after being sentenced or the date the sentencing order is entered.  Therefore, time is of the essence.  There are different grounds of direct appeals in criminal cases, and a common one is that the lower court committed a reversible error.

If a defendant does not file a direct appeal, he may file a PCRA petition.  It is important to note that direct appeals and PCRA petitions are independent of each other; a defendant can file one or both.  A defendant may file both a direct appeal and a PCRA petition.  Thus, if a defendant files a direct appeal and the appeal is unsuccessful, the defendant may file a PCRA petition thereafter.

Criminal defense lawyers are presumed to be effective in their representation of their clients.  Therefore, defendants have the burden to prove that their lawyers were ineffective in their criminal trials.  There are various ways a PA criminal defense lawyer can be ineffective, and defendants have to meet the three-prong test when arguing how their lawyers were ineffective in any way.

Defendants must prove: 1. the claim of ineffectiveness of counsel has arguable merit; 2. defense counsel’s act was not reasonably designed to advance the interest of the defendant; and 3. the defendant was prejudiced by the defense counsel’s actions, i.e., but for his counsel’s actions, the result of the trial would have been different. Click here to see a discussion of what each prong entails when proving ineffective assistance of counsel (IAC).

There are several grounds of appeal defendants may argue in their PCRA petitions, including but not limited to, ineffective assistance of counsel, newly discovered evidence, and Brady violations.  One of the most common grounds is ineffective assistance of counsel, which essentially argues that a criminal defense lawyer was incompetent and the lawyer’s actions had an adverse effect on trial, i.e., resulted in the defendant’s conviction.

Another common ground of appeal is newly discovered evidence.  Essentially, the argument is that the newly discovered evidence was not available during trial, and if it was available, it would have changed the outcome of the criminal trial.

For a detailed discussion of grounds of appeal, see PA Criminal Appeals and PCRA Lawyer Discusses Common Grounds of Appeal in PCRA Petitions.

One of the grounds of appeal for PCRA petitions is ineffective assistance of counsel.  This occurs when a defense attorney’s performance falls below an objective standard of reasonableness when representing a defendant.  However, just because a lawyer is inexperienced does not mean that the lawyer is ineffective.  There is a three-prong test a defendant must prove to show that their attorney was ineffective.  For further discussion and answer, see PA Post Conviction Relief Act Petition – How to Prove Ineffective Assistance of Counsel Claims.

PCRA petitions must be timely filed.  However, the deadline to file the petitions depends on the specific facts of the case.  In general, a defendant has 1 year from the day a judgment becomes final or the order being appealed is entered by the court clerk.  There are limited exceptions to this 1 year time limitation.  See full answer at Pennsylvania PCRA Law: What is the time deadline to file a PCRA petition?

PCRA petitions are a type of appeal that is different from direct appeals. However, a direct appeal and a PCRA petition are not mutually exclusive of one another.  A defendant may file a direct appeal and a subsequent PCRA petition if the direct appeal is not granted.

A defendant may file a PCRA petition if he is convicted of a crime in Pennsylvania and is serving time in prison, is on probation/parole or has been sentenced to death. See PCRA Petitions in Philadelphia Criminal Cases for a full discussion.

Answer: Possession of a Controlled Substance with Intent to Deliver (PWID) is a serious charge. Under Pennsylvania criminal law, convictions for drug dealing or trafficking will result in mandatory minimum sentences. A potential mandatory minimum sentence varies and depends on the circumstances, such as:

• the type of drugs involved,
• the amount of drugs involved,
• whether another person died, and
• the defendant’s prior record for drug dealing or trafficking.

For instance, a Philadelphia resident with a prior criminal record for drug dealing is arrested and charged with PWID 12 grams of cocaine or crack. Due to Pennsylvania’s mandatory minimum sentencing laws, the required minimum prison sentence is 5 years. Read more about drug sentencing laws in Philadelphia drug cases.

AGGRAVATING FACTORS

In addition, certain aggravating factors may be alleged in the case, such as drug dealing in or near a school zone or drug dealing while in possession of a firearm. These factors can result in longer mandatory prison sentences.

Currently, the law with respect to these aggravating factors is unsettled due to a recent United States Supreme Court case which held that any aggravating factors that increase the mandatory minimum sentence must be submitted to the fact finder. Previously, aggravating factors only had to be submitted and proved to the sentencing judge.

Basically, in criminal drug dealing cases in Philadelphia, certain aggravating factors must be submitted to the trier of fact (i.e., judge or jury) and proved beyond a reasonable doubt.

WINNING A CRIMINAL PHILADELPHIA DRUG CASE

In general, a criminal drug case in Philadelphia can be won when some legal or constitutional issue bars the prosecution from being allowed to use a piece of evidence, like the actual drugs or the statement of the accused. In other words, a legal issue or violation of a constitutional right may lead to evidence being thrown out in the case. If this occurs, the case is very likely to be withdrawn from prosecution (i.e., dismissed). Therefore, it’s crucial to analyze the circumstances related to the individual’s arrest and where appropriate, make a motion to suppress drug evidence or statements.

More: David Nenner Wins Motion to Suppress in a Philadelphia Drug Case – Prosecution Withdrawn

In some instances, there may be factual issues which raise enough doubt to win at trial. For instance, police arrest a Philadelphia resident and find a bag nearby. The bag contains drugs and evidence of drug dealing, like small bags and a scale. The individual is arrested and charged with PWID. Here, there may be a valid defense – that the bag did not belong to the individual.

CHARGED WITH A DRUG CRIME IN PHILADELPHIA? CALL US FOR A FREE CONSULTATION AT (215) 515-0042">(215) 515-0042

Disclaimer: This website does not create any attorney-client relationship or provide legal advice. Our lawyers provide legal advice only after accepting a case. It is imperative that any action taken is done on advice of counsel. Read full disclaimer below.

Question: I was arrested for dealing drugs in Philadelphia. What is the maximum sentence I face?

Answer: In Pennsylvania criminal drug cases, the possible mandatory sentence will depend on proof of certain facts, such as:

• whether a gun was found within the vicinity of the drugs,
• the type and amount of the drugs, and
• where the transactions allegedly occurred.

For example, selling drugs near a school zone may result in a mandatory 2 year (up to 4 year) prison sentence, as well as large court fines and costs.

Related: Arrested for Drugs in Pennsylvania? Read About PA’s Mandatory Minimum Sentences

Below are some common criminal sentencing laws which come into play in a criminal state court drug case in Philadelphia:

• 18 Pa.C.S. Section 6317 (drug-free school zone sentencing law)
• 18 Pa.C.S. Section 6314 (selling drugs to minors)
• 42 Pa.C.S. Section 9712.1 (firearm sentencing enhancement law)

Pennsylvania criminal law was changed in a significant way this past year. As the result of a 2013 U.S. Supreme Court case, Alleyne v. United States, sentencing factors must now be submitted to the fact finder, i.e., the jury in a jury trial or the judge in a court trial and proved beyond a reasonable doubt. Therefore, when a mandatory minimum sentence is under consideration, the Commonwealth (District Attorney) is now required to prove the element triggering the mandatory minimum sentence beyond a reasonable doubt.

For instance, in a firearm drug case involving a mandatory minimum sentence under Section 9712.1, the relevant sentencing factor is defined in subsection (a), which states:

“when at the time of the offense the person or the person’s accomplice is in physical possession or control of a firearm, whether visible, concealed about the person or the person’s accomplice or within the actor’s or accomplice’s reach or in close proximity to the controlled substance…”

This basically means that there must be evidence of the following:

1. the defendant or an accomplice possessed a gun,
2. a gun was in close proximity to the defendant/accomplice, or
3. a gun was in close proximity to the drugs.

Prior to the Alleyne case, Pennsylvania courts only required that these types of sentencing factors be proved at sentencing and by a preponderance of the evidence, a far lower standard than the beyond a reasonable doubt standard. As a result of the Alleyne case, the Commonwealth is required to prove these factors beyond a reasonable doubt. Failure to do so results in violation of a criminal defendant’s 14th Amendment (due process) and 6th Amendment (jury trial) rights.

FACING DRUG CHARGES IN PHILADELPHIA?  GET A FREE CASE REVIEW

David S. Nenner is an experienced criminal defense lawyer who focuses on handling drug, gun and murder cases in the Philadelphia area. Learn more about our drugs and narcotics practice in Pennsylvania. If you or a loved one would like a free case review, please call(215) 515-0042"> (215) 515-0042">(215) 515-0042.

Disclaimer: This website does not create any attorney-client relationship or provide legal advice. Our lawyers provide legal advice only after accepting a case. It is imperative that any action taken is done on advice of counsel. Read full disclaimer below.

The answer depends on a whole host of factors, including the following:

• the type of drugs involved,
• the amount of drugs involved, and
• any prior conviction record.

Pennsylvania criminal law varies in terms of the minimum (and maximum) jail sentences for drug possession convictions. The potential sentence depends on the quality and quantity of drugs. Drug sentences will be more severe for certain drugs such as heroin and less severe for possession of small amounts of other drugs, like marijuana.

Also, it is important to note that an individual who is already on probation or parole and gets arrested for a new criminal charge will face a violation of probation/parole charge. This is in addition to the new criminal charge. The standard of proof required to find a probation violation or parole violation is much lower than the standard to sustain a conviction. A Philadelphia judge may deem the evidence sufficient to prove (by a mere preponderance of the evidence) that a defendant violated probation. Probation may be revoked, and the individual may be sent to jail.

FIGHTING A DRUG CHARGE IN PHILADELPHIA

There are various ways to challenge a drug charge in Philadelphia (state) court. Prior to trial, the facts may support a motion to suppress evidence based on a constitutional violation. For instance, in an auto stop case which resulted in a drug arrest, there may be grounds to challenge the stop in the first place. If the stop is held to be unconstitutional, statements and drug evidence may be suppressed or thrown out. As a result, the case may be dismissed, or this may increase the defendant’s bargaining power to get a better plea deal on other charges.

TAKING CHANCES AT TRIAL

In a drug possession case, the prosecution is required to prove that the defendant knowingly possessed the drugs. This means proving that the defendant 1. had ownership or control of the drugs, and 2. knew that the drugs were in fact, drugs. Oftentimes, prosecutors rely on circumstantial evidence to prove guilt. At trial, the evidence may be attacked, and weaknesses may be exposed. Ultimately, this may result in a “not guilty” verdict.

There are other complex legal issues which may come into play. Currently, Pennsylvania drug sentencing law is in a state of flux due to a major U.S. Supreme Court decision which held that sentence enhancement schemes, such as PA’s drug free zone sentence enhancement law, may be unconstitutional. Since then, Pennsylvania courts have ruled in favor of defendants and refused to apply sentence enhancement laws.

PHILADELPHIA CRIMINAL LAWYER HANDLING DRUG CHARGES – FREE CONSULTATIONS

David Nenner is an experienced criminal defense lawyer who has handled many drug cases in both Pennsylvania state and federal court. He offers a free phone consultation for all drug possession and drug distribution cases. (215) 515-0042">(215) 515-0042

Disclaimer: This website does not create any attorney-client relationship or provide legal advice. Our lawyers provide legal advice only after accepting a case. It is imperative that any action taken is done on advice of counsel. Read full disclaimer below.

Question: If I was charged with possessing cocaine, will I be convicted? What are the penalties? Will I go to jail? I have never been charged with possessing cocaine before, and I am worried about my future.

Answer: Facing cocaine drug charges in Philadelphia is understandably frightening.  However, just because you have been charged with a drug crime does not mean that you will be convicted.  You are innocent until proven guilty.

PA drug law classifies drugs into different schedules, from I to V, with the most dangerous drugs in Schedule I and the least dangerous drugs in Schedule V.  Drugs in Schedule II have a high potential for abuse.  Abuse of these drugs may lead to severe psychic or physical dependence. Cocaine is a Schedule II drug, and the penalties for individuals convicted of possessing cocaine can be severe.

Even if you possess a small amount of cocaine in Philadelphia for your own personal use, you may be sentenced up to one year in prison.  Your driver’s license will be also suspended for 6 months.

There are different kinds of drug possession charges, from simple possession to possession with intent to deliver (PWID).  If cocaine was found on you, i.e., your pocket, shoes, socks, or somewhere you have control over, i.e., your home or car, you would be charged with simple drug possession.

If you possessed cocaine and intended to sell or distribute them, then you would be charged with PWID.

FIGHTING DRUG CHARGES

As I said in the beginning, being charged does not mean that you will be convicted.  There may be some legal issues with regard to how the cocaine was found on you.  These are called search and seizure issues.  If a police officer found cocaine on you, but it was unconstitutionally obtained, then the cocaine may be suppressed and cannot be used as evidence in the case against you.  Pursuant to PA law, a police officer may search a car without a warrant after pulling a driver over for a traffic offense.  However, the police officer can only search the vehicle if there is reasonable cause to believe that a crime is being committed.

Related: PA Supreme Court Makes Sweeping Changes to Search-Seizure Law in PA Drug-Gun Cases

For example, a police officer pulls you over for a broken tail light.  When you are pulled over, you are coming home from work and showed no indication of being high.  The car is properly registered and there are no active warrants.  There is no smell of drugs in the car.  He gives you a ticket and says he wants to search your glove compartment.  You keep a small amount of cocaine in your glove compartment for personal use, and the police officer finds the small amount of cocaine.

In this situation, it can be argued that the police officer did not have reasonable cause to believe a crime was being committed.  Therefore, he could not search your glove compartment.

FIGHTING PA DRUG CHARGES IN PHILADELPHIA –FREE CONSULTATIONS FROM A PHILADELPHIA CRIMINAL LAWYER

If you or a loved one was arrested for a state or federal drug related charge in Philadelphia, call David Nenner, a top rated Philadelphia criminal defense lawyer, who has handled countless state and federal drug cases. Mr. Nenner offers FREE consultations.(215) 515-0042"> (215) 515-0042

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Disclaimer: This website does not create any attorney-client relationship or provide legal advice. Our lawyers provide legal advice only after accepting a case. It is imperative that any action taken is done on advice of counsel. Read full disclaimer below.

Question: I was driving through Philadelphia, ad a police car behind me flashed his lights for me to pull over. I stopped and pulled my car to the side of the road. The police officer said he pulled me over because one of my tail lights was broken. Then, the police officer asked me to exit my car and began searching the car. He found a small bag of cocaine under the driver seat, and I have been charged with simple possession.  Are the police allowed to stop my car for a broken tail light and then search my car for drugs? I thought they cannot search my car without a warrant.

Answer: Yes, the police in Philadelphia can make traffic stops and then search the cars without a warrant so long as they have probable cause. In 2014, the standard for warrantless car searches changed after a Pennsylvania Supreme Court case. Prior to 2014, police officers were only allowed to conduct a warrantless search of a car after a traffic stop if there was probable cause and exigent circumstances.

After the Supreme Court’s ruling in 2014, the police are now  allowed to search a car for drugs or weapons after a traffic stop if there is probable cause.  The police no longer have to prove exigent circumstances.  To see a detailed discussion about this case, see Major Changes in Pennsylvania Search-Seizure Law, Drug/Gun Cases.

WHAT IS PROBABLE CAUSE?

Probable cause to search a car exists if there are sufficient facts that would lead a reasonable person to believe that evidence of a crime will be found in the car.  In order to assess whether police had probable cause to search your car, I would need more information about your case, such as what were you doing when the police approached your car, what did the police officer say to you, what part of Philadelphia were you driving through, etc.

If your situation consisted of the following facts, then the police may not search your car after the traffic stop:

• you were driving through Center City, near City Hall,
• you did not reach down after you pulled over,
• you did not make sudden movements after you pulled over,
• the car did not smell like drugs, and
• you were not nervous when the police officer came to the car.

If those were the facts, the police would not have been able to search your car because there was no probable cause that a crime was committed, i.e., you had drugs or illegal weapons in the car.

On the other hand, if the following were true when you pulled over, then the police officer has a good argument that he had probable cause to search your car:

• you were driving through a neighborhood in Philadelphia known for selling drugs,
• the police saw you reach over to the glove compartment as he approached the vehicle,
• the police saw you throw something out the window as you were pulling over,
• the police saw you making sudden movements in the car, and
• you appeared really nervous and on edge when the police officer was talking to you.

Since I don’t have all of the facts surrounding the traffic stop, it is best that you discuss your case with a Philadelphia criminal defense lawyer.  Unlike many Philadelphia criminal defense lawyers, we offer a FREE initial consultation.  (215) 515-0042">(215) 515-0042

Question: My son was stopped by the police after he went through a stop sign in Philadelphia.  He was driving his friend’s car. He was charged with selling drugs after heroin and cocaine were found in the car.  It was a traffic stop.  How can he be charged with selling drugs? It wasn’t even his car.  My son is not perfect, but I know he does not sell drugs.  What can we do?

Answer: Per Pennsylvania drug laws, a person does not have to be caught in the act of selling drugs to be charged with the crime.  Your son is being charged with Possession with Intent to Deliver (PWID) drugs, which occurs when an individual possesses illegal drugs and intends to sell them.  It is a serious offense.

Related: Simple Possession of Drugs in Philadelphia

Even though the police stopped your son for a traffic violation, the law allows police to search the vehicle if the officer has probable cause to believe that a crime is being committed.  For instance, if after stopping your son, the officer smelled drugs like marijuana, he then had probable cause to search the vehicle.  If the search yielded a large amount of drugs, such as small plastic bags, a scale, etc., your son would have been arrested and charged with PWID.

It is best that we talk about your son’s PWID charge so we know all of the facts and circumstances in order to help your son.  Depending on the situation, there may be an argument that the search of the car was illegal.  Therefore, the drugs found in the car your son was driving are not admissible.  If the drugs are not admissible, then the prosecution has no case.

Even if the search was legal, there are other defenses.  In order for you son to be convicted of PWID, the prosecution must prove the following:

• the drugs found are controlled substances,
• your son possessed the drugs,
• your son knew or was aware of the item and knew that it was a controlled substance, and
• your son possessed the drugs with the specific intent to deliver the item to another person.

Proving the fourth element depends on the facts.  In your son’s case, because he was driving his friend’s car, there may be an argument that he did not know that the drugs were in the car.  Thus, he had no intention of delivering or selling the drugs because he didn’t even know they were in the car.

Feel free to schedule an appointment with our office located in Philadelphia.  We offer FREE initial consultations for criminal cases in Philadelphia.  (215) 515-0042">(215) 515-0042

Question: My son was arrested and charged with possession of drugs and possession of drugs with the intent to deliver.  He says that he didn’t even have the drugs on him.  He was driving his friend’s car when a police officer pulled him over.  The officer ended up searching the car and found drugs and money in a duffel bag in the trunk. My son says that he didn’t know about the drugs and money in the car and that they belong to his friend. He is not even sure why the police officer pulled him over.  How can the police officer search the car without a warrant?  Isn’t that illegal?  Also, how can he be charged with possession of drugs when they didn’t find the drugs on him?

Answer:  There are two types of drug possession charges in Philadelphia criminal drug cases: actual possession and constructive possession. Actual possession is when the drugs are found on the person.   Constructive possession is when the drugs are not found on the person.  Even though the drugs were not found on your son, he can be convicted of drug possession if the prosecution can prove constructive possession.

CONSTRUCTIVE POSSESSION OF DRUGS IN PHILADELPHIA

In constructive possession of drugs cases, the prosecution must prove certain legal elements in order for the defendant to be convicted.

First, the prosecution must prove that your son knew where the drugs were located, in or around the place where they were discovered.  Second, the prosecution has to prove that your son knew or should have known that the drugs were illegal.  Third, the prosecution must prove that your son had control of the drugs, i.e., the ability to control and move the drugs.

I would need to know more details surrounding your son’s arrest to determine whether the prosecution can prove its case.  For instance, even though the drugs were in his friend’s car, he can still be convicted if the following are true.

Let’s assume that your son was driving your friend’s car and has driven it many times before. Let’s also assume that your son knew that his friend had drugs in the trunk.  Lastly, let’s assume your son had the key to a small lock on the bag found in the trunk.  In such a case, the prosecution can argue that he had constructive possession of the drugs because he knew where the drugs were located, knew that they were illegal, and had the key to the locked bag found in a car he was driving.

Related: Drug Charges in Philadelphia PA State Court – Possession of a Controlled Substance

SEARCH AND SEIZURE ISSUES IN PHILADELPHIA DRUG CASES

Even if all of the assumptions are true, there may be some legal issues, such as a search and seizure issue, which would prevent the prosecution from going forward with the case.  For instance, let’s assume the police officer stopped your son due to a traffic violation, i.e., speeding.

Pursuant to Philadelphia criminal law, a police officer can conduct a warrantless search of a car if he/she had probable cause to believe that evidence of a crime would be found in the car.  In order to have probable cause, there must exist sufficient facts that would lead a reasonable person to believe that criminal activity is about to happen or happened.

Let’s assume the following after the police officer pulled your son over:

• he saw your son reach down after he was pulled over,
• the car also smelled like drugs when he approached the vehicle, and
• your son was extremely nervous when the police officer simply asked him for license and registration.

With these facts, the police officer may have probable cause to search the car.  However, if these facts did not exist, the police officer would not have probable cause to search the car without a warrant.  In such a case, we would file a motion to suppress the evidence found in the search, i.e., the drugs and money in the duffel bag.  In other words, the prosecution cannot use the drugs and money found in the car against your son because they were obtained illegally.  Without the drugs and money, it would be rather difficult for the prosecution to prove a case against your son without any other evidence.

Whether there was probable cause depends on the circumstances of the traffic stop and what happened after.  Again, it would be best that you contact a Philadelphia criminal lawyer to discuss the case.  We offer FREE initial consultations.  Feel free to contact our office to schedule. (215) 515-0042">(215) 515-0042

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