CRIMINAL LAW UPDATE
Berks County Bench Bar Conference (April 2017) (includes cases through April 7, 2017)
TABLE OF CONTENTS
ACCOMPLICE................................................................................................................................1
APPEAL: TIMELINESS.................................................................................................................1
ARREST: HOME............................................................................................................................2
ARREST: STOP..............................................................................................................................3
ASSAULT........................................................................................................................................5
ATTORNEY: DEFENDANT’S REQUEST TO PROCEED PRO SE............................................8
CAUTIONARY INSTRUCTIONS.................................................................................................9
COLLOQUY....................................................................................................................................9
CONSPIRACY..............................................................................................................................10
CONSTITUTIONAL LAW...........................................................................................................12
DATE OF OFFENSE....................................................................................................................12
DEFIANT TRESPASS..................................................................................................................13
DISORDERLY CONDUCT..........................................................................................................14
DOUBLE JEOPARDY..................................................................................................................15
DRIVING UNDER THE INFLUENCE........................................................................................16
ENDANGERING WELFARE OF CHILD...................................................................................22
EVIDENCE: AFTER DISCOVERED..........................................................................................22
EVIDENCE: FRYE.......................................................................................................................24
EVIDENCE: RELEVANCE..........................................................................................................24
EVIDENCE: REOPEN CASE.......................................................................................................25
EXPUNGEMENT..........................................................................................................................27
FIREARMS....................................................................................................................................28
FLIGHT TO AVOID APPREHENSION......................................................................................29
FRUIT OF THE POISONOUS TREE...........................................................................................29
GUILTY PLEA..............................................................................................................................31
HINDERING APPREHENSION..................................................................................................32
IDENTIFICATION........................................................................................................................33
INEFFECTIVENESS: CONSULTATION WITH CLIENT.........................................................34
INEFFECTIVENESS: INCORRECT LEGAL ADVICE.............................................................34
INFORMATION............................................................................................................................35
INSANITY.....................................................................................................................................35
JURY: DELIBERATIONS............................................................................................................36
JUDGE: RECUSAL.......................................................................................................................37
JURY: SELECTION......................................................................................................................38
JUVENILE.....................................................................................................................................39
KIDNAPPING...............................................................................................................................40
LURING CHILD...........................................................................................................................42
PCRA.............................................................................................................................................43
POSSESSION................................................................................................................................47
PRECEDENT................................................................................................................................49
PRELIMINARY HEARING.........................................................................................................49
i
PRIOR CRIMES/SUBSEQUENT CRIMES.................................................................................50
PROBABLE CAUSE: CONDUCT...............................................................................................52
PROBABLE CAUSE: DESCRIPTION, PROXIMITY................................................................57
PROHIBITED OFFENSIVE WEAPON.......................................................................................58
PROTECTION FROM ABUSE....................................................................................................60
RAPE SHIELD LAW....................................................................................................................63
RECEIVING STOLEN PROPERTY............................................................................................63
ROBBERY.....................................................................................................................................66
RULE 600......................................................................................................................................68
SEARCH AND SEIZURE: BLOOD.............................................................................................69
SEARCH AND SEIZURE: CONSENT........................................................................................73
SEARCH AND SEIZURE: CURTILAGE....................................................................................74
SEARCH AND SEIZURE: EXPECTATION OF PRIVACY......................................................76
SEARCH AND SEIZURE: INCIDENT TO ARREST.................................................................76
SEARCH AND SEIZURE: INFORMANT...................................................................................77
SEARCH AND SEIZURE: WARRANT......................................................................................78
SELF INCRIMINATION..............................................................................................................83
SENTENCE: CREDIT...................................................................................................................85
SENTENCE: GUIDELINES.........................................................................................................86
SENTENCE: INCHOATE OFFENSES........................................................................................87
SENTENCE: INTERMEDIATE PUNISHMENT........................................................................88
SENTENCE: LENIENT................................................................................................................89
SENTENCE: MANDATORY MINIMUM...................................................................................90
SENTENCE: MERGER................................................................................................................92
SENTENCE: POST SENTENCE MOTION.................................................................................96
SENTENCE: PROBATION AND PAROLE................................................................................96
SENTENCE: REASONS ..............................................................................................................97
SENTENCE: RESTITUTION.......................................................................................................98
SENTENCE: VICTIM IMPACT.................................................................................................100
SENTENCE: WAIVER...............................................................................................................101
SPEEDING..................................................................................................................................101
STATUTE OF LIMITATIONS...................................................................................................102
SUMMARY OFFENSES............................................................................................................103
TERRORISTIC THREATS.........................................................................................................106
UNLAWFUL CONTACT WITH MINOR.................................................................................107
WITNESS: COMPULSORY PROCESS....................................................................................109
WITNESS: CONFRONTATION................................................................................................110
WITNESS: EXPERT...................................................................................................................111
WITNESS – INTIMIDATION....................................................................................................113
WITNESS: OPINION BY LAY PERSON.................................................................................115
ii
ACCOMPLICE
Defendant’s convictions arose from a physical altercation with Mr. Calvin Wilson
that occurred on the evening of May 15, 2014, at North 15 th Street in Philadelphia. Mr.
Wilson was in his car, returning to his apartment with his girlfriend and her two
grandchildren, when he observed a white Jeep blocking the driveway. Mr. Wilson saw
defendant standing by the driver’s door of the Jeep.
Mr. Wilson then exited his car and exchanged words with defendant. He noticed
two women inside the Jeep. Then Mr. Wilson saw defendant raise his arm and throw
the first punch, which resulted in fists flying between the two men. Next, an individual or
individuals, including one or more of the women, pulled off Mr. Wilson’s eyeglasses and
sprayed him with mace. As a result of being sprayed with mace, Mr. Wilson no longer
could see clearly, but defendant, who had pushed him flat onto the street and knelt on
him, kept punching and kicking Mr. Wilson while someone kept spraying him.
The evidence in this case, viewed in a light most favorable to the
Commonwealth as the verdict-winner, demonstrates defendant’s active participation in
the physical altercation, in which he was aided by the unidentified person or persons
who sprayed the mace and facilitated the aggravated assault of Mr. Wilson. Defendant,
when he began punching Mr. Wilson, prompted one or more of his unidentified cohorts
to spray mace at Mr. Wilson, and is therefore criminally liable as an accomplice for their
acts.
Chambers, ___ A.3d ___ (Pa. Super. 3/7/17)
APPEAL: TIMELINESS
A defendant whose revocation of probation sentence has been imposed after a
revocation proceeding has 30 days to appeal her sentence from the day her sentence is
entered, regardless of whether or not she files a post-sentence motion. Pa.R.Crim.P.
708(D). Therefore, if a defendant chooses to file a motion to modify her revocation
sentence, she does not receive an additional 30 days to file an appeal from the date her
motion is denied. Commonwealth v. Coleman, 721 A.2d 798 (Pa. Super. 11/24/98);
Pa.R.Crim. P. 708(D).
Despite this rule, when the trial judge sentenced Parlante on October 19, 2001,
he told her that she had 30 days to file a post-sentence motion and if he denied her
post-sentence motion, "[she would have] 30 days to appeal to the Superior Court from
then." (emphasis added). As a result, Parlante filed a motion to modify her sentence on
October 29, 2001, which was denied on the same day. On November 27, 2001, 39 days
after the trial court entered the revocation of probation sentence, but only 29 days after
he denied her petition for modification, Parlante filed the instant appeal. Therefore,
Parlante's appeal is facially untimely. Nevertheless, we decline to quash this appeal
because Parlante's error resulted from the trial court's misstatement of the appeal
period, which operated as a "breakdown in the court's operation." Commonwealth v.
Coolbaugh, 770 A.2d 788, 791 (Pa. Super. 3/9/01) (where defendant was led to believe
that he had 30 days to appeal from denial of reconsideration motion following revocation
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of probation, our court declined to quash appeal recognizing that problem arose as a
result of the trial court's misstatement of appeal period, which operated as a breakdown
in the court's operation).
Parlante, 823 A.2d 927 (Pa. Super. 4/30/03)
Duffy, 143 A.3d 940 (Pa. Super. 7/15/16)
ARREST: HOME
In June 2011, Angel Romero's brother and Wendy Castro's brother-in-law,
Earnest Moreno, was declared delinquent after absconding from the Diagnostic
Rehabilitation Center (DRC), a Philadelphia halfway house, while he was on state
parole. A warrant was issued for Moreno's arrest; the warrant listed defendants' address
as Moreno's most likely place of residence. In August 2011, Parole Agent Sean
Finnegan executed the arrest warrant at defendants' residence. Agent Finnegan, along
with other members of the United States Marshals Violent Crime Task Force, knocked
on defendants' door and announced their presence. One of the Defendants answered
the door and permitted the authorities to enter the premises. Agent Finnegan told
defendants that he was looking for Moreno, at which point Romero told Finnegan that
Moreno was not on the property. Agent Finnegan and the United States Marshals
conducted a search of the property for Moreno. As the authorities approached the
basement, defendants began objecting to the search. Disregarding their objections,
Finnegan proceeded to the basement.
In the process of searching for Moreno, Agent Finnegan uncovered 61 marijuana
plants growing in the basement of defendants' house. Agent Finnegan contacted the
Narcotics Strike Force where a search warrant was secured for defendants' residence.
The search uncovered a baggie of marijuana, high-intensity heat lamps, a scale,
Romero's driver's license, mail addressed to defendants, a food saver heat sealer, an
illegally registered silver Smith & Wesson 9 mm handgun, one silver magazine loaded
with 9 mm bullets, and a box of bullets. Romero and Castro were subsequently charged
with various drug offenses and possession of an instrument of crime.
Where authorities have a reasonable belief that the subject of an arrest warrant
lives within a given premises, they can enter the home and arrest the suspect without a
search warrant. Muniz, 5 A.3d 345 (Pa. Super. 9/3/10), appeal denied, 610 Pa. 584, 19
A.3d 1050 (3/29/11). Compare Conception, 657 A.2d 1298 (Pa. Super. 5/8/95) (where
police listed address on arrest warrant as possible residence of one of two fugitives, no
search warrant needed to enter third-party defendant's apartment) with Steagald v.
United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (4/21/81) (where authorities
conclude fugitive may be inside premises, but is not believed to be resident of premises,
arrest warrant for fugitive inadequate to justify search of third-party owner's residence).
The validity of an arrest warrant must be assessed on the basis of the information that
the officers disclosed, or had a duty to discover and to disclose, to the issuing
magistrate.
Agent Finnegan testified that he believed Moreno's residence was 4745 North
2nd Street based upon: (1) the address listed on Moreno's most recent (2007), but
2
expired, driver's license; (2) the address Moreno had given to the police department
when he was arrested in 2009; (3) the address Moreno had given to the DRC in 2011
as a point of contact after being paroled; (4) the address Moreno listed while signing out
of the DRC when he absconded in 2011; and (5) the fact that Moreno still had family
living at that address. Agent Finnegan also testified that, based upon his investigation,
while there may have been other possible addresses that could be linked to Moreno, the
4745 North 2nd Street address seemed to be the most likely residence due to the
familial connection.
The Commonwealth established, by a preponderance of the evidence, that Agent
Finnegan reasonably believed that Moreno's last place of address was defendants'
home. Because the arrest warrant for Moreno was valid, the authorities had the legal
basis to enter defendants' residence without a search warrant, despite the fact that
Moreno was not inside the home.
Romero, 138 A.3d 21 (Pa. Super. 4/19/16)
ARREST: STOP
On March 4, 2014, at approximately 11:40 a.m., Detective Jamie Caterino of the
Borough of Munhall was driving southbound on Andrews Street in a marked vehicle
when he observed a maroon Pontiac driving westbound on 13th Avenue. The
detective’s attention was drawn to the three occupants of the maroon vehicle when he
noticed that one of the passengers of the vehicle attempted to shield his face from the
officer with his hand. Additionally, Detective Caterino recognized the driver of the
vehicle from prior interactions and investigations, and he knew that the driver did not
possess a valid driver’s license. The detective initiated a traffic stop and called for backup.
Detective Caterino approached the vehicle, and confirmed that the driver was
unlicensed. Defendant was located in the rear seat on the passenger side of the
vehicle. Detective Caterino recognized defendant from prior arrests and from the time
that he had spent as a school resource officer at Steel Valley High School. The
detective also had previously investigated defendant for firearm offenses, and he knew
that defendant was a suspect in a recent shooting that occurred in the area.
Upon determining that none of the occupants of the vehicle possessed a valid
license, Detective Caterino arranged for the vehicle to be towed from the area. The
vehicle was not stopped in a legal parking space so it could not remain in the location
where the traffic stop occurred. Detective Caterino eventually asked the driver, front
seat passenger, and defendant to exit the vehicle, as the occupants were prohibited
from remaining in the vehicle while it was being towed.
Detective Caterino frisked the defendant based upon his suspicious conduct both
before and after exiting the vehicle. Defendant argues that, because the traffic stop had
concluded before he was ordered to exit the vehicle, [reasonable suspicion was
required for the longer detention, and] the reasonable suspicion analysis is limited to
considering only defendant’s nervous behavior after exiting the vehicle.
3
An officer conducting a valid traffic stop may order the occupants of a vehicle to
alight to assure his own safety. This absolute right to order occupants out of a vehicle is
limited in duration, however, and once the primary traffic stop has concluded the
officer’s authority to order either driver or occupant from the car is extinguished.
Reppert, 814 A.2d 1196 (Pa. Super. 12/10/02) (en banc).
The United States Supreme Court has held that authority for a seizure pursuant
to a traffic stop ends “when tasks tied to the traffic infraction are— or reasonably should
have been—completed.” Rodriguez v. United States, ___ U.S. ___, 135 S.Ct. 1609, 191
L.Ed.2d 492 (4/21/15). Applying this principle, this court’s analysis of similar cases has
turned on whether the purpose of the traffic stop was accomplished prior to ordering
occupants out of the vehicle, and whether the occupants had previously been issued
citations or told that they were free to leave.
When an officer determines that the driver of a vehicle does not have a valid
driver’s license, the tasks tied to the stop are not limited to simply issuing a citation.
Where an unlicensed driver parks illegally or pulls into a place that impedes the flow of
traffic, an officer may have the vehicle towed in the interest of public safety. The traffic
stop remained ongoing when Detective Caterino ordered the occupants out of the
vehicle. Detective Caterino stopped the vehicle on suspicion of Driving Without a
License. Moreover, the driver stopped the car in an illegal parking spot and none of the
occupants, including defendant, possessed a valid driver’s license. Because none of the
vehicles occupants could legally move the vehicle to a proper spot, Detective Caterino
properly elected to have the vehicle towed in the interest of public safety. In order to tow
the vehicle, Detective Caterino had to order the occupants out of the vehicle so that it
could be safely towed.
All of the steps taken by Detective Caterino, including calling for a tow truck and
ordering the passengers out of the vehicle so that it could be towed, were tasks tied to
the traffic infraction. Moreover, there was no evidence to suggest that Detective
Caterino had concluded the traffic stop before asking the defendant to exit the vehicle
because Detective Caterino had not issued a citation, told the occupants that they were
free to leave, or otherwise signaled the end of the stop.
We conclude that defendant was ordered to exit the vehicle during a valid and
ongoing traffic stop. As defendant’s entire argument is premised on his assumption that
the traffic stop terminated prior to being ordered out of the vehicle, defendant is not
entitled to relief on his claim.
Palmer, 145 A.3d 170 (Pa. Super. 8/4/16)
If there is a legitimate stop for a traffic violation, additional suspicion may arise
before the initial stop’s purpose has been fulfilled. In that situation detention may be
permissible to investigate the new suspicions.
Valdivia, 145 A.3d 1156 (Pa. Super. 8/19/16)
appeal granted [on other grounds], No. 9 MAP 2017 (2/1/17)
4
On October 11, 2013, at approximately 7:00 p.m., Philadelphia Police Officers
Colin Goshert and Jeffrey Thompson were on routine patrol near East Ashmead and
Wakefield Streets when Officer Goshert saw Baldwin, who was in a parking lot, pass
behind a van. The officer believed that Baldwin might have discarded something behind
the vehicle. This raised concerns because the police consider 200 East Ashmead Street
to be a problem area based on a high number of reports of drug and gun crimes.
The officers pulled their marked patrol car into the lot without use of lights or
sirens, and did not block Baldwin's path. After searching the area behind the van, and
not observing any contraband, Officer Goshert approached Baldwin and requested his
identification. Baldwin voluntarily provided his identification, which Officer Goshert ran
through the National Criminal Information Center and the Pennsylvania Criminal
Intelligence Center. Baldwin had open traffic-related warrants out for his arrest, and the
officers took him into custody. During the course of a search incident to arrest, police
found two clear jars of marijuana and twenty-five and one-half Xanax pills on his person.
A mere request for identification does not in itself create an investigatory
detention. It is only where the request for identification is coupled with a restraint of
liberty, physical force or show of authority that a detention occurs.
Baldwin was in a parking lot when Officers Goshert and Thompson observed
him. Baldwin passed behind a van and the officers lost sight of him. Believing that
Baldwin may have discarded something, the officers pulled their marked patrol car into
the parking lot, but did not block Baldwin's path. After searching the area behind the
van, Officer Goshert approached Baldwin and asked to see his identification. Baldwin
argues that by taking his identification, Officer Goshert detained him. The relevant case
law does not support this assertion.
When the officers entered the parking lot, they did so without activating sirens or
lights. The officers did not block the path out of the parking lot. The officers went first to
the area behind the van; they did not immediately approach Baldwin. Only after
searching the area did police approach Baldwin and ask for his identification.
The totality of the circumstances test requires that for an investigatory detention
to exist there must be physical force or a show of authority to activate Fourth
Amendment protections. The manner in which police approached Baldwin lacked the
coercive elements of an investigatory stop. Therefore, the request for identification was
a mere encounter.
Baldwin, 147 A.3d 1200 (Pa. Super. 9/1/16)
ASSAULT
On March 11, 1983, a ten year old female child was walking to school with a
younger brother and two friends. When she reached the school grounds, Eric Fry, age
eighteen, approached her from behind, grabbed her by putting his arms around her and
lifted her off the ground. When she started to kick and scream, Fry said, "shut up, you're
coming with me." The child had not been acquainted previously with Fry. Two children
who were serving as safety patrol members saw what was happening and ran toward
Fry; whereupon, he put the child down and walked away.
5
The only evidence of physical menace was that Fry put his arms around the child
and picked her up. He did not strike or attempt to subdue her by physical means. He did
not threaten to inflict bodily injury upon her. There was no evidence that serious bodily
injury was imminent or that defendant intended to put the child in fear thereof.
The evidence did show that defendant told the child to "shut up" and that he was
taking her with him. The child speculated that perhaps defendant intended to take her
toward the steps leading to the locker room. Certainly one can infer from this that a
young child would be alarmed and frightened by defendant's conduct. However, that is
not the conduct which was made criminal by 18 Pa.C.S. § 2701(a)(3). The statute
required a specific intent on the part of defendant to put the child in fear of imminent
serious bodily injury. This the Commonwealth failed to prove. There was no evidence
from which it could be inferred that defendant, by his conduct, intended to put the child
in fear of imminent, serious bodily injury. The intent with which defendant acted has not
been shown by the evidence, and it would be inappropriate for us to indulge in
speculation with respect thereto. The Commonwealth charged him with a crime
requiring a specific intent, i.e., with an intent to put the child in fear of imminent serious
bodily injury; but its evidence failed to establish that defendant had acted with such an
intent. The crime, therefore, was not proved; and the conviction cannot stand.
Fry, 341 Pa. Super. 333, 491 A.2d 843 (3/22/85)
We find the present case distinguishable from Fry, 341 Pa. Super. 333, 491 A.2d
843 (3/22/85). Namely, defendant, a 41 year-old man, clearly attempted to subdue T.
H., a 12 year-old child, by grabbing her wrist and pulling her to his car. Defendant made
a very explicit, sexual comment to T. H. just prior to gripping her wrist, and held T. H.
with such force that she had to put her foot against his car to gain leverage to escape
his grasp. T. H. could have fallen backward and struck her head, or injured herself in
some other serious manner, due to defendant's physically restraining her in this way.
Moreover, defendant was sitting in the driver's seat of an idling vehicle when he
grabbed T. H., who was standing on the sidewalk. At any moment, defendant could
have accelerated his vehicle and dragged or struck T. H., which certainly would have
caused serious bodily injury to the 11-year-old child. These facts were sufficient to
permit the jury to infer that defendant had a specific intent to place T. H. in fear of
immediate, serious bodily injury. Thus, the evidence was sufficient to sustain his
conviction of simple assault.
Walker, 139 A.3d 225 (Pa. Super. 5/13/16)
On the night of August 6, 2012, Packer and her then fiancé, Julian Shutak, drove
to the Walmart outside of State College, Pennsylvania. They drove Packer's mother's
Chevrolet Trailblazer. At the Walmart, they purchased two cans of 3M brand aerosol
dust remover. The aerosol dust remover contains 1, 1-difluoroethane (DFE), a noxious
chemical that can be inhaled to obtain a brief, but dangerous, high. The method of
inhaling the gas is commonly called "huffing." Video surveillance from the Walmart
6
shows Packer and Shutak leaving the store and entering the Trailblazer at
approximately 9:37 p.m. While in the car, and before driving away, the two "huffed" the
dust remover at least twice. After "huffing" but prior to driving, Packer asked Shutak,
"Do you trust me?" to which Shutak replied, "Am I going to die tonight?" They then
drove to a Sheetz store. With Packer driving, they left the Sheetz store, and at a nearby
stop light, Packer "huffed" again.
At approximately 9:42 p.m., Packer, while in what Shutak described as a
"zombielike state", drove out of her lane of traffic into the oncoming lane of traffic on
Benner Pike. The Trailblazer narrowly missed one vehicle and then struck, head on, a
Hyundai driven by Matthew Snyder. Packer did not slow down, or swerve to avoid either
vehicle. Although the Trailblazer was travelling under the speed limit, the crash
essentially demolished the Hyundai, killing Snyder. The force of the collision pushed the
Hyundai off the road down the embankment. At impact, the rear wheels of the
Trailblazer lifted off the ground; causing it to make a 180 degree turn, and come to rest
facing the opposite direction it had been travelling.
Packer called 9-1-1 to report the accident and during the conversation with the
dispatcher asked, three times, if she would be going to prison. At the accident scene,
Packer spoke with both police and paramedics. She expressed concern that she would
be arrested and explained to the police that she was changing the radio station at the
time of the accident and may have blacked out just prior to the collision. She also told
the police that prior to leaving the Walmart, she had used the aerosol duster to clean
the air vents in the Trailblazer. Due to injuries she suffered in the accident, Packer was
taken to the hospital. The police obtained a warrant for a blood draw and blood was
taken from Packer approximately three hours post-accident. Packer was subsequently
determined to have had a blood saturation of .28 mcg/mL of DFE.
Wendy Adams, forensic toxicologist, testified that .28 mcg/mL of DFE is at the
lowest range of detectible amounts. However, Adams also testified that DFE is rapidly
excreted from the body during exhalation and that it has an approximately 23 minute
half-life. Accordingly, the three hours between the accident and the blood draw allowed
for approximately seven half-lives, meaning blood concentration at the time of the
accident was several times higher. Adams further testified DFE is a central nervous
system depressant that produces a quick high and can produce such effects as
confusion, disorientation, loss of consciousness, seizures, impaired memory, ataxia,
slurred speech, convulsions, and/or sudden death.
Although most traffic accidents, even with an impaired driver, will not provide
evidence of malice sufficient to support either third-degree murder or aggravated
assault, the facts attendant to this accident rise to the level of malice.
While driving impaired and causing a fatal accident alone may demonstrate only
a reprehensible recklessness, here, Packer's own words supply the proof needed to
establish malice. Immediately after "huffing" and prior to driving, she asked Shutak if he
trusted her. This shows an awareness of her impaired condition and the harm she might
cause. This awareness was acknowledged by Shutak, who had been with her on prior
occasions when they "huffed", and was concerned enough to ask if he was about to die.
Nonetheless, she did not wait for the effects to pass before driving. Indeed, while
operating the vehicle, not more than minutes after "huffing" at the Walmart, she "huffed"
again. Packer's debilitated state was confirmed by Shutak who testified she was
7
"zombielike", showing no awareness she was driving or was in immediate peril. She
drove, without slowing or taking any evasive action directly into Snyder's vehicle. Then,
in confessing to the police, she admitted that she had blacked out after prior occasions
of "huffing." This statement again confirmed Packer's knowledge of the effects on her
that "huffing" produced.
We believe there is a qualitative difference between knowingly driving while
impaired and knowingly driving when one is aware of a strong likelihood of becoming
unconscious. While impairment denotes a diminished capacity for proper functioning,
unconsciousness renders a person incapable of functioning, thereby ensuring a person
has no opportunity to avoid a collision, and virtually guaranteeing some manner of
accident.
Accordingly, when Packer drove her vehicle immediately after "huffing" at least
three times, knowing the likelihood that she could black out and become unconscious,
she disregarded an unjustified and extremely high risk that her actions might cause
death or serious bodily injury. Therefore, the evidence presented to the jury was
sufficient to prove she displayed the malice needed to support the conviction of third
degree murder.
Similarly, those same actions displayed a conscious disregard for almost certain
death or serious bodily injury needed to demonstrate the malice required to support her
conviction of aggravated assault.
Packer, 146 A.3d 1281 (Pa. Super. 7/6/16)
appeal granted, No. 114 MAP 2016 (granted 12/5/16)
ATTORNEY: DEFENDANT’S REQUEST TO PROCEED PRO SE
The trial court denied defendant's request to proceed pro se based upon his utter
disregard for the authority of the court and its process. Indeed, defendant understates
the severity of his disruptive conduct during a “test run” opportunity to proceed pro se.
Defendant continuously and unabatedly interrupted and argued with the trial court,
disregarded the court's rulings and warnings to cease his contemptuous behavior, and
directed derogatory comments to the judge, the prosecutor, and his defense counsel.
He incessantly objected and repeated already ruled-upon arguments and threatened to
refuse to participate in the proceedings altogether when the trial court's rulings were
unfavorable to him. He ignored the trial court's reasonable attempts to explain its
rulings, as well as the court's directives regarding when to speak and when to desist.
In light of the record, we conclude that defendant's disobedient and disruptive
behavior, in conjunction with his refusal to participate in a mental health evaluation,
constituted an effective waiver of his right to represent himself.
Green, 149 A.3d 43 (Pa. Super. 9/16/16)
appeal pending, No. 478 EAL 2016 (filed 10/11/16)
Link to: Bender, J. dissenting
8
CAUTIONARY INSTRUCTIONS
In the opening statement to the jury, the prosecutor mentioned that an
anonymous tipster identified the codefendant as a participant in the robbery. As a result
of that tip, the police were able to identify fingerprints.
The trial judge gave a cautionary instruction to the jury, telling them that the
police were allowed to act based on the tipster’s information, but that information was
not to be considered as evidence of defendants’ guilt.
Here, because the statement about the tipster was made to explain the course
of conduct pursued by the police, not for the truth of the matter asserted, it was not
hearsay. Moreover, any prejudice allegedly suffered by defendant was cured by the
court's cautionary instruction, which the jury is presumed to have followed.
A reference to the tipster during a detective’s testimony was also cured by the
court’s instruction.
Rayner, 153 A.3d 1049 (Pa. Super. 12/29/16)
appeal pending, No. 24 MAL 2017 (filed 1/11/17)
COLLOQUY
When the defendant seeks to waive the right to counsel after the preliminary
hearing, the judge shall ascertain from the defendant, on the record, whether this is a
knowing, voluntary, and intelligent waiver of counsel. Pa.R.Crim.P. 121(c). In addition to
the Rule 121(A) factors, a waiver colloquy must always contain a clear demonstration of
the defendant's ability to understand the questions posed to him during the colloquy.
Additionally, a trial court must go beyond merely inquiring into a defendant's
understanding of the offenses: It is incumbent on the court to fully advise the accused of
the nature and elements of the crime before accepting waiver of counsel. The court
should also inquire about the defendant's age, educational background, and basic
comprehension skills. The trial judge need not literally be the one to pose the questions
to the defendant, but the text of Rule 121(c) requires the judge to ascertain the quality of
the defendant's waiver.
Thus, the court omitted several provisions of Rule 121 at the first colloquy and
nearly all of them at the second colloquy. The court also failed to elicit directly from
defendant his understanding of the permissible range of sentences for the offenses
charged at the third colloquy. The various courts' failures to comply with the minimum
requirements of Rule 121 at each of the three colloquies constituted error. In light of the
several courts' failure to meet the minimum requirements of Rule 121 and to question
defendant on the qualitative aspects of his waiver of counsel at multiple critical stages of
the proceedings, we are constrained to vacate the judgment of sentence and remand
for further proceedings.
Phillips, 93 A.3d 847 (Pa. Super. 6/5/14)
9
APPEAL AFTER REMAND AND NEW TRIAL:
Defendant argues that Pa.R.Crim.P. 121(A)(2)(c), which requires the trial court to
advise potential pro se defendants of the “permissible range of sentences,” also
required the trial court to advise appellant of the sentencing guidelines applicable to his
case.
Rule 121, by its plain language, requires the trial court to determine “that the
defendant is aware of the permissible range of sentences and/or fines for the offenses
charged[.]” Pa.R.Crim.P. 121(A)(2)(c) (emphasis added). The plain language of Rule
121 does not mention that the trial court must advise the defendant of the applicable
sentencing guidelines. Our Supreme Court is aware of the existence of sentencing
guidelines, and if it wished to include the sentencing guidelines in the requirements
under Rule 121, it was free to do so. The Supreme Court did not.
We, thus, conclude that under the plain language of Rule 121, the trial court was
not required to advise defendant of the applicable sentencing guidelines prior to finding
that defendant had knowingly, voluntarily and intelligently waived his right to counsel.
Therefore, defendant is not entitled to relief on this claim.
Although our research yielded no controlling case law in Pennsylvania on the
issue of the need to repeat the colloquy, our survey of our sister states and federal
circuit courts shows that every jurisdiction but one has held that a valid waiver of
counsel is presumed to remain effective throughout any subsequent trial proceedings
absent either a revocation by the defendant or a substantial change in circumstances.
Therefore, the colloquy prior to the suppression motion did not have to be repeated at
the motion in limine proceedings.
Phillips, 141 A.3d 512 (Pa. Super. 5/19/16)
CONSPIRACY
Reginald Smith, the victim in this matter, resided with Tiffany, his girlfriend and
the mother of his child, on the 3500 block of Camac Street, Philadelphia. On March 27,
2012, Mr. Smith arrived at his home and discovered Dantzler engaging in sexual activity
with Tiffany. As a result, Mr. Smith tried to remove both Tiffany and Dantzler from the
home. Dantzler and Mr. Smith then began to fight, with Mr. Smith attempting to force
Dantzler out his front door. Mr. Smith ultimately retrieved a stick during the struggle and
began to beat Dantzler. Tiffany also used a taser on Dantzler.
On April 7, 2012, Mr. Smith’s neighbor, Kim Amos observed Dantzler and codefendant Gelain Heard approach her home. She recognized Dantzler from the fight but
had never seen Mr. Heard. After they stopped in front of her house, she shouted at
them that, "You have the wrong house." She repeated that several times. Nonetheless,
Mr. Heard used a cell phone to take a picture of her house.
Ms. Amos then followed the two men in her car and saw them enter a black
Dodge Durango. She drove next to the Durango and again informed the men that they
had the wrong home. Dantzler was seated in the driver's seat of the Durango. Mr. Heard
then said twice, "On everything I love, just don't be in the house tonight."
10
Later that evening, a video surveillance camera captured an individual in a black
hoodie with a baseball cap standing next to Dantzler's Durango, conversing with the
driver, around the corner from Ms. Amos' and Mr. Smith's homes. Several minutes later,
Ms. Amos saw Mr. Heard on her steps, wearing a black hoodie and baseball cap. Mr.
Heard asked her twice, "Is this the F-in' house?" Ms. Amos responded, "F-no, this is not
the house," and slammed her door. Id. Within five minutes, she heard four or five gun
shots ring out. Mr. Smith, who was alone in his house at the time, described bullets
flying into his home. He was hit in the shoulder with a bullet and another bullet grazed
his neck.
Dantzler had a fight with the victim. He and Mr. Heard were then seen in the
immediate area of Mr. Smith's home within two weeks of the prior incident. Ms. Amos
testified that, in the twenty-three years she lived in the neighborhood, the first time she
saw Dantzler was the day of the fight. The day of the shooting was the only time she
saw Mr. Heard. Dantzler was present when Mr. Heard took a picture of Ms. Amos'
home, located next door to the victim's house. Dantzler was present when Ms. Amos
repeatedly told him and Mr. Heard that they were at the wrong house. Mr. Heard
expressly told Ms. Amos not to be in her home while he was seated directly next to
Dantzler. Dantzler's vehicle was captured on video tape with a person matching Mr.
Heard's description talking to the occupant of that vehicle in the vicinity of Mr. Smith's
home shortly before the shooting. Mr. Heard, wearing the same clothes as the person
who had been seen talking to a person inside Dantzler's car, appeared on the front
steps of Ms. Amos' house. After Ms. Amos again told Mr. Heard he was at the wrong
home, shots rang out next door and Mr. Smith suffered gunshot wounds.
This evidence, and the reasonable inferences derived therefrom, establishes a
prima facie case that Dantzler conspired with Mr. Heard to retaliate for the prior fight.
Dantzler, 135 A.3d 1109 (Pa. Super. 3/9/16) (en banc)
Link to: Lazarus, J. concurring
Defendant was charged with, and acquitted of, Robbery under 18 Pa.C.S.
§§ 3701(a)(1)(i) or (ii), and there cannot be any dispute that these Subsections
constitute felonies of the first degree. Defendant was neither charged with nor
prosecuted under any other subsections of the Robbery statute. The jury’s verdict slip
read as follows:
Guilty: COUNT 6: Criminal Conspiracy
Guilty: Robbery
Not Guilty: Kidnapping
The trial court correctly determined the jury was presented only with qualifying
sections of the Robbery statute that involved the threat of and/or fear of serious bodily
injury; therefore, it could have convicted defendant only of Criminal Conspiracy to
commit Robbery as a felony of the first degree.
11
The mandatory sentence at 42 Pa.C.S. § 9714 was properly imposed on
defendant because the jury convicted him of a conspiracy to commit a first degree
felony robbery.
Tooks, 151 A.3d 666 (Pa. Super. 11/29/16)
CONSTITUTIONAL LAW
Act 192 of 2014, which combined provisions regarding a crime involving the theft
of secondary metals and provisions permitting the enjoinment of local gun control laws,
violated the prohibition against legislation encompassing more than a single subject.
We respectfully disagree with the legislative leaders to the extent they suggest
Act 192 passes single-subject scrutiny because all of its provisions amend aspects of
the Crimes Code. This Court has rejected similarly broad proposed topics centering on
an entire title of Pennsylvania statutory law. The mere fact that a piece of legislation
amends a particular title of the Pennsylvania Consolidated Statutes or amends a
particular article of a codified body of statutes such as the County Code will not
automatically fulfill the requirements of Article III, Section 3. The scope of the Crimes
Code is broad. It contains dozens of chapters which, among other things, define crimes
and defenses, set penalties, establish victims' rights and civil remedies, and regulate
criminal history records.
Creating a civil cause of action for persons affected by local gun regulations is
simply too far afield from the definition of new offenses relating to the theft of secondary
metal to be considered part of one subject under Article III, Section 3.
Disapproving: Ritter v. Commonwealth, 120 Pa. Cmwlth. 374, 548 A.2d 1317
(10/13/88), aff'd per curiam, 521 Pa. 536, 557 A.2d 1064 (5/10/89).
Leach v. Commonwealth, ___ Pa. ___, 141 A.3d 426 (6/20/16)
DATE OF OFFENSE
Defendant was charged with an ongoing pattern of sexual abuse that spanned
several months. Defendant took advantage of C.H.’s age and exploited her insecurity to
groom her for sexual contact by complimenting her appearance and showing physical
affection through extended embraces and back rubs. Defendant was able to escalate
his behavior to fondle complainant’s breasts and force her to give him oral sex while he
pinned her down so she could not escape. Through his manipulation, defendant
subsequently pressured C. H. to engage oral sex with him on multiple occasions.
The Commonwealth must be afforded broad latitude when attempting to fix the
date of offenses which involve a continuous course of criminal conduct. C. H. was able
to testify that defendant subjected her to an ongoing pattern of molestation that began
when she was fourteen and ended when she was sixteen. C. H. clearly confirmed that
defendant first began forcing her to have oral sex when she was fourteen years old.
12
Defendant continued to sexually assault C. H. until he no longer had access to her
when C. H.’s sister ended her relationship with defendant in September 2004.
At trial, the Commonwealth presented evidence to narrow the timeframe during
which Defendant’s course of sexual assault began. The prosecutor introduced the
testimony of C. H.’s sister, who testified that she began living with defendant in July
2002. Defendant’s advances toward C. H. quickly escalated from hugs and back rubs to
inappropriate touching and forcible oral sex when C. H. was still fourteen years old. C.
H. clearly testified that she remembered her first sexual encounter with defendant
occurred when she was fourteen. As C. H. turned fifteen on January 6, 2003, the
Commonwealth clarified that defendant committed IDSI and indecent assault with
fourteen-year-old C. H. within an approximate six-month period (July 2002 to early
January 2003).
Accordingly, we conclude defendant was not deprived due process by the
Commonwealth’s inability to fix the time of the offenses that occurred in a continuous
course of conduct with greater specificity. Counsel cannot be deemed ineffective in
failing to pursue a meritless claim.
Benner, 147 A.3d 915 (Pa. Super. 8/31/16)
DEFIANT TRESPASS
On January 26, 2016, defendant and her co-defendant rang the doorbell of a fur
shop known as Charles Exclusive Furriers. When the shop owner came to the door,
they told her that they were curious about the shop’s products. She allowed them to
enter. After entering the shop, they began touching the furs and asking questions about
the furrier process. Suddenly, their tone changed, as they began referencing the Bible
and asking the shop owner if she thought she was God. At that point, the shop owner
asked them to leave. She repeated the request multiple times but they would not go.
Something akin to a scuffle occurred as the owner attempted to usher defendant
and her co-defendant from the shop area into the lobby. During the scuffle, defendant
thrust her cell phone into the shop owner’s face. The owner somehow got possession of
both defendant’s and her co-defendant’s phones as she ushered them outside the shop
and into the lobby. Another scuffle ensued after they were all in the lobby as the owner
tried to lock the shop door behind her. After she was eventually able to get the door
locked, she ran up the steps to the office to call the police. Defendant and her codefendant ran screaming behind her. They were still in the lobby when the police
arrived.
Defiant Trespass is defined, in relevant part, as follows: “A person commits an
offense if, knowing that he is not licensed or privileged to do so, he enters or remains in
any place as to which notice against trespass is given by . . . actual communication to
the actor[.]” 18 Pa.C.S. § 3503(b)(1)(i). Thus in order to establish a violation it is
necessary to prove that the defendant: 1) entered or remained upon property without a
right to do so; 2) while knowing that he had no license or privilege to be on the property;
and 3) after receiving direct or indirect notice against trespass. The crime of defiant
trespass thus includes an element of intent or mens rea. Therefore, a defendant who
13
entered a property with a bona fide, good faith, but mistaken belief that he was entitled
to be there cannot be convicted of Defiant Trespass.
Defendant relies on Commonwealth v. Burton, 299 Pa. Super. 147, 445 A.2d 191
(4/30/82), to argue that their delay in leaving the shop was excused by the fact that the
shop owner confiscated their phone. This reliance is misplaced. In Burton, the landlord
of a boarding home told the defendant to leave and attempted to force the defendant to
exit through the back porch door, which was being blocked by a large dog. The
defendant told the landlord that he was afraid of the large dog, and attempted to leave
by going through the house towards the front door. The landlord chased the defendant,
grabbed him, and attempted to force him back towards the rear door. After a scuffle,
Burton broke free and escaped through the front door, away from the dog. On appeal,
we found that Burton attempted to comply with the request to leave, and that his
decision to remain in the house longer in order to leave through the front door was not
an unexpected action, as no other reasonable alternative for exit was presented to him.
Defendant argued that the shop owner’s act of confiscating her phone made it
reasonable for her to remain in the lobby of the shop until police arrived. However, this
argument fails for two reasons. In the first instance, the crime was complete before the
cell phones had been wrested from defendant and her co-defendant. The owner had
revoked their privilege to remain in the store by telling them to leave numerous times.
However, they refused. Furthermore, it was clear that their refusal to leave was not
because their telephones had been taken; it was part of their plan to harass the shop
owner because of her business.
Wanner, ___ A.3d ___ (Pa. Super. 3/28/17)
DISORDERLY CONDUCT
On December 14, 2013 at approximately 8:00 PM, Pennsylvania State Police
Corporal Raymond O’Donnell was on patrol on southbound State Route 61, Perry
Township. It had been snowing and was still snowing at that time. Corporal O’Donnell
observed Vetter’s car stopped in the traveling lanes of southbound Route 61 with the
driver’s side door opened and the occupant of the vehicle standing outside the vehicle
in between the door and his vehicle with his back towards the Corporal and his hands in
front of him as though he was urinating in the roadway.
18 Pa.C.S. § 5503(c)(4) is the only applicable section to public urination, creating
a physically offensive condition. However, we are also mindful that, the offense of
disorderly conduct is not intended as a catchall for every act which annoys or disturbs
people; it is not to be used as a dragnet for all the irritations which breed in the ferment
of a community. It has a specific purpose; it has a definite objective, it is intended to
preserve the public peace. Commonwealth v. Maerz, 879 A.2d 1267, 1269 (Pa. Super.
7/20/05).
Here, the Commonwealth has presented no evidence or argument to
demonstrate how, under the specific facts of this case, where Vetter appeared to be
urinating at the side of a highway, in the dark of night, in a snow storm, away from any
14
residence or businesses, positioning himself such that he was largely protected from
view, such action was likely to lead to tumult and disorder.
In Strickler, 563 Pa. 47, 757 A.2d 884 (8/24/00), the defendant and a companion
were observed urinating at the side of a public roadway near a farm property. However,
Strickler did not challenge the sufficiency of the evidence, so the issue was not before
any appellate court. Footnote 9 in Strickler merely noted that in Commonwealth v.
Williams, 390 Pa. Super. 493, 568 A.2d 1281 (1/16/90), Williams was arrested for
disorderly conduct after being observed publically urinating. On that basis, without
further analysis, the Supreme Court stated that prevailing precedent allowed public
urination to be treated as the predicate for disorderly conduct.
However, the issue in Williams was not whether public urination was a predicate
to disorderly conduct. In Williams, the defendant parked his car on the sidewalk and
urinated on a building in downtown Denora. He was arrested for disorderly conduct, a
summary offense, but challenged the search incident to arrest for a summary offense.
Accordingly, in Williams, there was no analysis of public urination as a predicate for
disorderly conduct.
The issue in Barber, 889 A.2d 587 (Pa. Super. 12/8/05), was whether a tip from
an identified caller to the police complaining of a man urinating in a parking lot, drinking
beer and driving a van (which was identified by description and license plate) provided
reasonable suspicion to stop said van. The Barber decision incorrectly noted that
Strickler held that observation of public urination provided reasonable suspicion. As
noted, the Strickler decision merely commented, in a footnote, about Williams.
Accordingly, the Commonwealth is incorrect in asserting that “precedent dictates” public
urination constitutes criminal activity.
Vetter, 149 A.3d 71 (Pa. Super. 9/27/16)
DOUBLE JEOPARDY
Ball was on trial, charged with violating 75 Pa.C.S. § 1543(b). When the
Magisterial District Judge found Mr. Ball guilty of violating 75 Pa.C.S. § 1543(a), the
effect of that ruling was to implicitly find Mr. Ball not guilty of 1543(b). When Ball filed his
summary appeal from the conviction for 1543(a), the 1543(b) charge could not be
reinstated. Reinstatement of a charge for which a defendant has been found not guilty is
a violation of that defendant’s double jeopardy rights.
A defendant does not waive his double jeopardy rights on one offense by taking
a summary appeal from a conviction on a separate offense.
Ball, ___ Pa. ___, 146 A.3d 755 (9/28/16)
Link to: Wecht, J. specially concurring
Link to: Baer, J. dissenting
15
DRIVING UNDER THE INFLUENCE
For Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed.2d 560
(6/23/16), see Search and Seizure/Blood.
Act 33 of 2016
10 year look back period runs from date of offense, not date of current
sentencing (effective May 25, 2016)
Ignition interlock limited license (effective August 25, 2017)
DUI under 75 Pa.C.S. § 3802 (except general impairment); or
Refusal to submit to chemical testing under 75 Pa.C.S. § 1547
In this case, shortly before 6:00 p.m. on November 6, 2012, an eyewitness
observed a black pickup truck driving erratically on local roads and then swerving off the
road and striking an object violently enough to cause sparks and send debris flying
towards her car. Little more than one hour after the accident, Sergeant Gillingham
visited Eichler's house and observed a black pickup truck in the driveway with heavy
damage to its right front passenger side corner and passenger door. At that moment,
Eichler staggered towards Sergeant Gillingham with a strong odor of alcoholic beverage
about his person and breath and red blood shot eyes. Eichler was slurring his speech
and appeared highly intoxicated. Sergeant Gillingham asked Eichler why he left the
scene of the accident, and Eichler responded: "Because I've been drinking." Sergeant
Gillingham took Eichler into custody. En route to the hospital, Eichler told another
officer, Officer Sholtis, that he had been involved in an accident on his way home. A
blood test taken at the hospital less than 2½ hours after the accident revealed that
Eichler's BAC was .30%, far above the legal limit. Officer Sholtis drove Eichler back to
the police station, where Eichler told the officer that (1) he consumed three or four beers
at a club in Collinsburg, (2) he was driving home from the club, alone in his Nissan
truck, when he hit what he thought was a deer directly beside the Gun Rack business
establishment, and (3) upon arriving home, he noticed that his truck was damaged. The
Commonwealth's accident reconstruction expert, Trooper Stephenson, testified that a
sober, attentive driver would have been able to slow to a reasonable speed and steer
around the object, if not stop altogether.
Construed in the light most favorable to the Commonwealth, this evidence was
sufficient for the jury to find Eichler guilty under Section 3802(a)(1).
Section 3802(c) of the Vehicle Code provides:
An individual may not drive, operate or be in actual physical control
of the movement of a vehicle after imbibing a sufficient amount of
alcohol such that the alcohol concentration in the individual's blood
or breath is 0.16% or higher within two hours after the individual
has driven, operated or been in actual physical control of the
movement of the vehicle.
75 Pa.C.S. § 3802(c). Section 3802(c)'s requirement to take the defendant's blood test
within two hours after the individual has driven is subject to a "good cause" exception
within Section 3802(g), which provides:
16
Notwithstanding the provisions of subsection. . . (c). . . where
alcohol or controlled substance concentration in an individual's
blood or breath is an element of the offense, evidence of such
alcohol or controlled substance concentration more than two hours
after the individual has driven, operated or been in actual physical
control of the movement of the vehicle is sufficient to establish that
element of the offense under the following circumstances: (1)
where the Commonwealth shows good cause explaining why the
chemical test sample could not be obtained within two hours; and
(2) where the Commonwealth establishes that the individual did not
imbibe any alcohol or utilize a controlled substance between the
time the individual was arrested and the time the sample was
obtained.
75 Pa.C.S. § 3802(g). In a Section 3802(c) prosecution, when the blood test does not
take place within two hours after the defendant drives, operates or is in actual physical
control of the vehicle, test results are subject to suppression unless Commonwealth
proves good cause for the delay in obtaining a blood test and the defendant did not
imbibe alcohol between his arrest and his blood test. 75 Pa.C.S. § 3802(g).
Eichler's blood draw took place more than two hours after he drove, operated or
was in actual physical control of his vehicle, but under Section 3802(g), the blood test
results still were admissible in Eichler's Section 3802(c) prosecution. Eichler's flight from
the accident scene, and the consequential delay in finding him, constituted good cause
for the failure to obtain his blood test within two hours after he stopped driving. The
Commonwealth fulfilled Section 3802(g)'s no-imbibing element by presenting the
testimony of three officers during trial that Eichler did not drink alcohol between the time
of his arrest and the time of his blood test.
Eichler, 133 A.3d 775 (Pa. Super. 2/2/16)
On August 15, 2014, around 3:00-3:30 p.m., Tiffany Mowrer heard a loud bang
and saw defendant get out of a vehicle which had just struck a green electrical box in a
grassy area adjacent to the parking spaces of Montgomery Village. Ms. Mowrer testified
that the parking lot in general was open to the public, and that the sign upon entry from
Bloom Road states “Private Property.” Further, an alternate entry point from Woodbine
Land is obstructed with a chain on which is hung a sign that states “No Trespassing.”
The area between the demarcated parking space from which defendant had emerged
and the green electrical box is planted with grass.
Ms. Mowrer’s cousin, Tony Mowrer, confirmed that he, too, had seen
[defendant’s] vehicle strike the green electrical box. Mr. Mowrer testified that the U.S.
Postal Service and UPS regularly traverse the parking lot in general, but Mr. Mowrer
also confirmed that a sign at the entrance to the parking lot in general which serves both
Evergreen Point and Montgomery Village states that the parking lot is “Private
Property.” Mr. Mowrer confirmed that defendant had been parked in a parking space
marked with a number on a portable concrete curb, that she proceeded forward over the
concrete curb marked with the number, into the grass and into the green electrical box,
17
and that defendant did not drive anywhere else. There was absolutely no evidence that
defendant had been in actual physical control of a vehicle in the parking lot in general.
Defendant’s blood alcohol content was 0.189%. It was stipulated that the grassy
area between the curb and the green electrical box is not a “highway” or “trafficway.”
The parties stipulated that defendant did not operate her vehicle anywhere except in her
parking space and the grassy area into which she drove.
The DUI incident occurred within the parking lot serving both the Evergreen Point
and Montgomery Village housing complexes. The parking lot is marked with a sign
stating “Private Property,” but non-residents frequently cross the premises, including
mailmen, deliverymen, and other visitors. Defendant drove her vehicle while
intoxicated, over the tire stop, and onto an adjacent grassy area where she struck a
green electrical box. The evidence given at the hearing by defendant and the
Commonwealth’s witnesses showed members of the public routinely used the
Montgomery Village parking lot, satisfying the public use requirement of a trafficway
under the DUI statute.
Defendant presented a photograph showing how the parking spaces are
numbered. Defendant produced a signed copy of the “Declaration of Covenants,
Conditions and Restrictions for Montgomery Village Homeowners Association,” listing
her rights and responsibilities as a homeowner. Defendant also produced a document
entitled “Proposed Amendments,” which purports to reserve one parking space for each
homeowner. The copy of the Proposed Amendments was not signed, and there was no
evidence that the housing complex had ever adopted the Amendments.
Defendant’s argument for habeas corpus relief at the hearing rested on a
distinction between the parking lot generally and a private parking space, the
Commonwealth was able to show defendant’s asserted ownership of the parking space
was unclear both as to right and custom.
Lees, 135 A.3d 185 (Pa. Super. 3/24/16) (prima facie case)
The amphetamine test results admitted at defendant’s trial were obtained using
liquid chromatography. Defendant contended that liquid chromatography was not an
approved testing method.
The relevant regulations state:
Equipment used for blood analysis to determine the amount of
alcohol in a person’s blood which performs the analysis by
means of gas chromatography, enzymatic procedures, distillation
procedures or diffusion procedures is approved by the Department
...
28 Pa. Code § 5.103 (emphasis added).
Here, the Code specifically and clearly states this is the equipment and/or tests a
laboratory may use to test for blood alcohol content. See 28 Pa. Code § 5.103. There is
nothing in the plain language of this section of the Code with respect to controlled
substance testing and nothing to suggest that the General Assembly intended this list to
apply to controlled substance testing. Had the drafters wanted to include controlled
substance testing in the Section, they could have added the phrases “controlled
18
substance” or the “amount of alcohol or a controlled substance in a person’s blood,” as
they did in Section 5.101. They chose not to do so and we have no basis for reading
such phrases into the explicit language of the Code.
The Department of Health approved the laboratory in question. By granting the
laboratory its permit, the Department of Health knew that it would be using a liquid
chromatograph and knew what tests it would be performing and approved its use.
Accordingly, we conclude that Section 5.103, particularly when read in combination with
Section 5.11(c), does not bar this equipment for controlled substance testing.
Stine, 143 A.3d 951 (Pa. Super. 7/18/16)
appeal denied, ___ Pa. ___, ___ A.3d ___ (1/31/17)
Robinson Township Police Department patrolman Michael Gastgeb testified that,
on April 29, 2013 at approximately 1:20 a.m., he observed a disabled vehicle on the
roadway with no occupant. According to Officer Gastgeb, no one was around the
vehicle at that time. Officer Gastgeb stated that the vehicle had a bent tire and
scratches on the passenger side consistent with a guard rail impact. Officer Gastgeb
explained that the accident had occurred just prior to his arrival, since the vehicle had
not been present when he passed that location just fifteen minutes earlier. Officer
Gastgeb further indicated that while he was at the scene, Marnik approached, dressed
in gym shorts and a t-shirt. Marnik stumbled, had glassy eyes, slurred speech and
smelled of alcohol. Officer Gastgeb described his interaction with Marnik as follows:
Q. And how long after you came upon this disabled vehicle did
[Marnik] show up?
A. It was within a few minutes.
Q. And what kind of balance did Mr. Marnik manifest at that time?
A. [Marnik] was stumbling. He had [a] general[ly] hard time keeping
his balance walking towards me.
Q. And what happened after [Marnik] approached you?
A. I asked him if that was his vehicle.
Q. What was his answer?
A. He said, yes; it’s my grandfather’s vehicle.
Q. What did you next say to him?
A. I asked if he had been driving the vehicle and he said yes. And I
asked if he was in an accident and he said he did not know.
Q. He didn’t know. Okay. What happened next after you asked him
if he had been in an accident and he responded that he didn’t
know?
A. Yes. I asked if he had been drinking tonight and he said, yes; I
was earlier.
Officer Gastgeb testified that Marnik did not possess car keys at that time. On
cross-examination, Officer Gastgeb admitted he did not recall whether the vehicle was
running when he arrived and whether the keys were in the ignition, but that if such were
the case, he would have noted it in his report, and it was not so noted. According to
Officer Gastgeb, he never personally observed Marnik present in the vehicle.
19
The issue is whether the police officer had reasonable grounds to believe that the
licensee was operating or was in actual physical control of the movement of the vehicle
while under influence of alcohol. It is not necessary for an officer to actually witness a
licensee operating a vehicle in order to have reasonable grounds to place him under
arrest for DUI. An officer’s belief that the licensee was driving will justify a request to
submit to chemical testing if one reasonable interpretation of the circumstances
supports the officer’s belief.
At the hearing, Officer Gastgeb explained he discovered the vehicle at
approximately 1:20 a.m. and that the vehicle was not present when he passed the same
location fifteen minutes earlier. Officer Gastgeb also testified that Marnik admitted that
he had been driving the vehicle, and when asked if he had been in an accident, stated
that he did not know. Although the trial court mentioned this testimony in its opinion, it
did not, in its review of the objective evidence, explicitly address or make a factual
finding regarding Officer Gastgeb’s assertion that he had not seen the vehicle at the
location when he had been there fifteen minutes prior, or Officer Gastgeb’s testimony
that Marnik admitted he had driven the vehicle. Thus, Marnik maintains that the trial
court must not have assigned that testimony “any weight” or found Officer Gastgeb’s
statements not credible.
It is unclear whether the trial court accepted as credible Officer Gastgeb’s
testimony that Marnik admitted that he drove the vehicle. Specifically, the trial court
stated, “[n]owhere is there any evidence that [Marnik] had any intoxicating beverage
when he drove his car.” Thus, this Court cannot determine whether the trial court
accepted Officer Gastgeb’s testimony that Marnik admitted he had driven the car at
some time. We may not decide this case on conjecture. And thus, we remand this
matter for the trial court to clarify whether it found credible Officer Gastgeb’s testimony
that Marnik admitted driving the vehicle, and that the vehicle was not present at the
scene fifteen minutes prior to Officer Gastgeb finding it.
If the trial court found Officer Gastgeb’s testimony credible that the accident must
have happened in the fifteen minute period before he arrived, that Marnik appeared
visibly intoxicated only a few minutes after Officer Gastgeb’s arrival, and Marnik
admitted that he had driven the car and been drinking earlier that evening, one
reasonable interpretation (although certainly not the only possible interpretation) of the
circumstances is that Marnik had been drinking prior to the incident, was intoxicated and
driving the vehicle at the time the damage to the vehicle occurred.
There is no speculation necessary regarding whether Marnik was intoxicated
prior to the accident. According to Officer Gastgeb, Marnik demonstrated multiple signs
of intoxication within twenty minutes of the accident. When asked if he was drinking that
night, Marnik admitted to Officer Gastgeb that he had been drinking earlier. When asked
if the vehicle was his, he responded affirmatively, and then stated it was his
grandfather’s. He also admitted that he had driven the vehicle, and did not know if he
had been in an accident. Officer Gastgeb also testified that there was no one around the
vehicle when he arrived at approximately 1:20 a.m.
It was not necessary for the officer to see Marnik driving the vehicle. DOT was
simply required to demonstrate that Officer Gastgeb’s conclusion that Marnik had driven
while intoxicated was reasonable given the totality of the circumstances. Stated another
way, DOT was only required to prove that one reasonable interpretation of the
20
circumstances is, as Officer Gastgeb believed, that Marnik drove the vehicle while
intoxicated.
Marnik v. Dept. of Transportation, 145 A.3d 208 (Pa. Cmwlth. 8/9/16)
75 Pa.C.S. § 3804(d) provides:
§ 3804. Penalties.
...
(d) Extended supervision of court.--If a person is sentenced
pursuant to this chapter and, after the initial assessment required
by Section 3814(1), the person is determined to be in need of
additional treatment pursuant to Section 3814(2), the judge shall
impose a minimum sentence as provided by law and a maximum
sentence equal to the statutorily available maximum. A sentence to
the statutorily available maximum imposed pursuant to this
subsection may, in the discretion of the sentencing court, be
ordered to be served in a county prison, notwithstanding the
provisions of 42 Pa.C.S. § 9762 (relating to sentencing proceeding
and place of confinement).
A sentencing court has no discretion or authority to impose a sentence for a DUI
violation prior to the completion of the assessment required by 75 Pa.C.S. § 3814. This
section requires, in certain circumstances including those presented herein (where
defendant had a prior DUI conviction within ten years), a full drug and alcohol
assessment, to be completed prior to sentencing. For the benefit of the offender and the
public, the legislature set forth a specific and precise sentencing scheme that requires,
in Sections 3804 and 3815, that the treatment recommendations developed through the
assessment be implemented as part of the offender's sentence. A sentence imposed
without the requisite presentence assessment does not comply with the Vehicle Code's
mandatory sentencing scheme for DUI offenders.
Taylor, 628 Pa. 547, 104 A.3d 479 (11/20/14)
Link to: Eakin, J. dissenting
75 Pa.C.S. § 3804(d) is not applicable when the sentencing court exercises its
discretion to sentence an eligible defendant to County Intermediate Punishment.
Popielarcheck, 151 A.3d 1088 (Pa. Super. 12/06/16)
appeal pending, No. 101 WAL 2017 (filed 3/10/17)
Watson, ___ A.3d ___ (Pa. Super. 3/08/17)
21
ENDANGERING WELFARE OF CHILD
Defendant was the aunt (and adoptive parent) of the complainant. The
complainant made accusations of improper sexual conduct against defendant’s
husband. The complainant testified that defendant, in response to the complainant's
bringing these assaults to defendant's attention, had stated to the complainant, "what
happens at the house doesn't leave the house." Moreover, when the complainant was
asked why she had never reported these assaults to personnel at her school, she
replied that "we wasn't [sic] allowed to talk about it."
The trial court, as the fact-finder, was free to draw a reasonable inference from
this evidence that defendant knew that the assaults occurred, but that she had
pressured the complainant to not report them.
Schley, 136 A.3d 511 (Pa. Super. 2/19/16)
EVIDENCE: AFTER DISCOVERED
On September 3, 2013, Officer Stephen Dmytryk observed defendant, who
matched the descriptions that several residents and a confidential informant (“CI”)
provided, standing in front of an abandoned house at 3153 Weymouth Street. Officer
Dmytryk conducted a controlled buy using a CI on September 3, 2013. Officer Dmytryk
searched the CI before and after the transaction. Officer Dmytryk observed the CI hand
pre-recorded buy money to defendant, who then entered 3153 Weymouth Street, exited
shortly thereafter, and handed 13 small packets of heroin to the CI.
On September 15, 2013, Officer Dmytryk, assisted by Officers Gina Jackson and
Charles Kapusnick, conducted a second controlled buy using a CI. As Officer Jackson
and Officer Kapusnick looked on, Officer Dmytryk searched the CI before and after the
transaction. The three officers observed the CI hand pre-recorded buy money to
defendant, who then entered 3163 Weymouth Street, exited shortly thereafter, and
handed one clear Ziploc packet of marijuana to the CI.
The Commonwealth obtained a search warrant and on September 17, 2013,
Officer Thomas Kuhn arrested defendant at Officer Dmytryk’s direction during the
execution of the search warrant, assisted by Officers Thomas Kuhn and Micah Waters,
as well as Sergeant William Torpey.
Defendant filed a Post-Sentence Motion for a New Trial based on afterdiscovered evidence, pursuant to Pa.R.Crim.P. 720(C). At the hearing, defendant
offered the following documents as after discovered evidence, none of which pertain to
the instant case:
1. A federal indictment unsealed on July 27, 2014, charging six
Philadelphia police officers with numerous federal crimes, including
charges under the Racketeer Influence and Corrupt Organizations
Act. One paragraph in the indictment alleged that police officer
[Dmytryk] falsified a police report in a criminal case against
Kenneth Mills in 2011.
22
2. A federal civil rights complaint filed in Kenneth Mills v. The City of
Philadelphia and Philadelphia Police Officer Dmytryk, Badge #1851
containing an allegation that Officer Dmytryk included false
allegations and material misrepresentations of fact in an affidavit of
probable cause supporting a search warrant. Mills also alleged that
Officer Dmytryk conspired to bring false charges and malicious
prosecution against him.
3. A Philadelphia Inquirer article from August 1, 2014, quoting
Kenneth Mills and repeating his accusations about Officer Dmytryk.
4. A transcript from the preliminary hearing in Commonwealth v.
Kenneth Mills, where Officer Dmytryk testified about his
participation in the execution of a search warrant.
5. Police reports and property receipts pertaining to the case of
Commonwealth v. Kenneth Mills.
An indictment is not evidence. The federal indictment against six police officers
that defendant presented as “after-discovered evidence” does not contain any
allegations that have any connection to the instant case. Significantly, Officer Dmytryk
was not one of the six indicted officers, and none of the six indicted officers played any
role in defendant’s case. The indictment mentions [Dmytryk] in only one paragraph, and
the allegation of wrongdoing in that paragraph relates to another case.
The federal civil rights Complaint Defendant provided as “after discovered
evidence” does not meet the definition of admissible, relevant evidence. A Complaint is
a pleading asserting allegations or accusations. Moreover, the federal complaint
defendant submitted involves allegations about an unrelated person in an unrelated
case. The Complaint has nothing to do with defendant’s guilt or innocence and has no
connection to the instant case.
The newspaper article does not meet the definition of “evidence” because it is
merely the reporter’s version of facts and is not admissible at trial. While newspaper
articles can alert a party to the possible existence of evidence, the party must do more
than attach the article.
The transcript and other police paperwork involving an unrelated preliminary
hearing for another defendant contain no information that pertains to defendant’s case.
Defendant has not identified testimony, physical evidence, documentation, or
other matters that would constitute after-discovered evidence such that a trial court has
the authority to the grant of a new trial based on Rule 720(C). The “evidence” that
defendant offers to support his allegations of Officer Dmytryk’s wrongdoing is unrelated
to his own case. None of the proffered “evidence” shows charges filed against Officer
Dmytryk in this or any other case. None of defendant’s “evidence” contains factual
findings and official conclusions relevant to Officer Dmytryk or to this case.
Moreover, a defendant seeking a new trial must demonstrate he will not use the
alleged after-discovered evidence solely to impeach a witness’s credibility.
Griffin, 137 A.3d 605 (Pa. Super. 4/8/16)
23
EVIDENCE: FRYE
During the Commonwealth's case defendant challenged the admissibility and
weight of evidence derived from what was described as an Event Data Recorder (EDR),
a device in defendant’s vehicle that records speed and other data, much like the wellknown "black box" does on commercial aircraft. In this vehicle, a 2007 Dodge Caliber
SXT, the EDR is known as the Airbag Control Module. Testimony was presented
concerning the results of the examination of the EDR.
In an effort to deflect the technology's acceptance in the automotive industry,
defendant asserts that novelty exists, as there is no Pennsylvania case law addressing
the use of this technology for accident reconstruction purposes. While correct, such an
omission does not prove novelty.
The evidence in the record established that the technology has existed for almost
40 years, has been adopted by the major automobile manufacturers, and has been
recognized as an acceptable tool used by accident reconstruction experts to determine
a vehicle's speed prior to an impact. It is not novel science; it is an accepted technology.
We note that Florida, Illinois, Massachusetts, and New Jersey have permitted the
introduction of EDR data to establish the speed of a vehicle. For the foregoing reasons,
we find that there is no legitimate dispute regarding the reliability of EDR technology
necessary to consider it a novel science.
Safka, 95 A.3d 304 (Pa. Super. 6/25/14)
Link to: Wecht, J. concurring and dissenting
aff’d, ___ Pa. ___, 141 A.3d 1239 (7/19/16)
Link to: Donohue, J. dissenting
Link to: Dougherty, J. dissenting
EVIDENCE: RELEVANCE
Defendant was the aunt (and adoptive parent) of the complainant. The
complainant made accusations of improper sexual conduct against defendant’s
husband. The complainant testified that defendant, in response to the complainant's
bringing these assaults to defendant's attention, had stated to the complainant, "what
happens at the house doesn't leave the house." Moreover, when the complainant was
asked why she had never reported these assaults to personnel at her school, she
replied that "we wasn't [sic] allowed to talk about it."
The husband pled guilty. Prior to the wife’s trial, she filed a motion seeking to
introduce at trial evidence of the complainant's having previously made three false
sexual assault allegations against non-family members, all of which defendant knew to
have been subsequently disproved and/or recanted by the victim. The trial court refused
to admit this evidence. At trial defendant testified that the complainant never spoke up
about any misconduct by her husband. Defendant was convicted at a bench trial.
Evidence of the false sexual assault allegations was highly probative of
defendant's reasonable belief that the complainant's allegation against her husband was
one more fabrication, and defendant's conclusion that the latest allegation was similarly
24
untruthful. In other words, the excluded evidence was probative of whether defendant
actually was aware that the complainant was in circumstances that could have
threatened her physical or psychological welfare.
By denying defendant's motion before trial, the trial court's decision inherently
affected defendant's overall theory of defense and trial strategy, including, among other
things, her decision whether or not to testify.
Schley, 136 A.3d 511 (Pa. Super. 2/19/16)
EVIDENCE: REOPEN CASE
Safka was the driver of an automobile that crashed killing three of his four
passengers. The investigating police officer believed that defendant's speed caused the
accident. He, in part, relied upon data retrieved from the vehicle's Event Data Recorder
(EDR) which recorded the vehicle's speed for the five seconds prior to the airbag's
deployment.
The trial court initially denied defendant's untimely and undeveloped motion in
limine to preclude evidence derived from the EDR, but indicated it would reconsider
admissibility when the evidence was introduced.
After the Commonwealth rested its case, the trial court permitted defendant and
the prosecutor to revisit the motion in limine, which defense counsel characterized as a
motion for judgment of acquittal. Defense counsel argued that without testing,
certification, or calibration, and with a lack of uniformity among manufacturers, data
derived from the EDR was not reliable and should not be admitted. The Commonwealth
responded that EDRs are not meant to be certified or calibrated. Rather, an EDR is
installed during a vehicle's manufacture, where it remains for the life of the automobile.
The trial court denied defendant's motion in limine and stated that it was the court's
obligation as fact-finder to determine how much weight to give the EDR data. Defendant
chose not to testify, or to present evidence.
Closing arguments proceeded, during which the trial court indicated its concern
that Trooper Kern was not clear about how data was recorded onto the EDR and
suggested that additional testimony about the general operation of EDRs would be
helpful. The trial court explained that it was not revisiting the motion in limine, but was
concerned with what weight the court should give to "some amorphous module that
someone gathers data from." Following closing arguments, the trial court stated that it
would review the matter overnight.
The next morning the trial court indicated that it was not prepared to return a
verdict due to questions raised in defendant's motion in limine. Because defendant had
not filed a formal pre-trial motion or raised a Frye challenge, which would have
permitted the court to assess the acceptability of EDR data in the scientific community,
the trial court explained that it was unable to resolve the admissibility, and, if admissible,
the appropriate weight to afford the EDR data. Moreover, the court explained that there
was no Pennsylvania precedent to guide it. Accordingly, the trial court sua sponte
decided to reopen the record and continue the trial in two weeks for the limited purpose
25
of providing both parties the opportunity to present expert testimony about the accuracy
and reliability of information recorded by the EDR.
When trial reconvened, the Commonwealth presented an expert witness who
was cross examined by defense counsel. Defendant presented no evidence. The trial
court confirmed its tentative decision that the EDR data was admissible based on the
expert’s testimony that this evidence is generally accepted in the relevant scientific
community. The parties presented argument about the weight the trial court should
afford the EDR data. Following argument, the trial court found defendant guilty of all
counts.
Contrary to defendant's protestations, the trial court never indicated that it could
not reach a verdict without this evidence. Instead, it stated that it wanted to hear more
evidence concerning the admissibility and the weight to be afforded the EDR data. We
find no abuse of discretion in the trial court affording both parties a full opportunity to
introduce foundational evidence regarding EDRs to allow the court to decide
thoughtfully both the admissibility and the weight of this evidence. The trial court's
actions were consistent with its gate-keeper role of determining admissibility, its factfinder role of assessing weight, and the discretion afforded by the Rules of Evidence
and our precedent in analogous situations permitting a party to move to supplement the
record, as long as the opposing party is not prejudiced.
Because of the timing of defendant's day-of-trial oral motion, the trial court was
left without sufficient information or time to resolve an unfamiliar question of law.
Because this was a novel legal issue which the trial court lacked time to resolve pre-trial
due to the timing of defendant's request, it was within its discretion to revisit the
question and provide equal opportunity for both parties to respond to its concern. By
reopening the record to permit the parties to present foundational evidence regarding
the reliability and accuracy of EDRs, the trial court essentially gave the parties the
opportunity to do what the timing of defendant's oral motion in limine precluded: present
preliminary testimony about the admissibility of the EDR data. Further, the trial court's
actions were especially beneficial to defendant, who had lost his untimely and inapt oral
motion in limine during the trial and was essentially afforded a second chance to have
the EDR data excluded.
We see no meaningful distinction between the oft-cited scenario of reopening a
record either on a parties' motion or sua sponte, as long as in both scenarios there is no
prejudice to either party and, accordingly, justice is served. Therefore, the trial court was
not constrained to reject the EDR data, but had the discretion to afford the parties equal
opportunity to respond to its concerns. Accordingly, we hold that the trial court
possessed the discretion to reopen the record sua sponte in order to permit both sides
an opportunity to address the court's concern about the EDR data, and that it did not
abuse its discretion in this case.
Safka, ___ Pa. ___, 141 A.3d 1239 (7/19/16)
Link to: Donohue, J. dissenting
Link to: Dougherty, J. dissenting
26
Proposed amendment to add Pa.Ra.Crim.P. 578(12)
Types of relief appropriate for omnibus pretrial motion
(12) proposing or opposing the admissibility of scientific or expert
evidence.
Challenges may still be raised at trial
EXPUNGEMENT
Defendant was found guilty of summary offenses in 1997 and in 1998. She
sought expungement of the convictions from both sets of offenses in 2013. The Centre
County District Attorney objected to the expungement of the 1997 offense. The
objection was based on the fact that defendant had been arrested and pled guilty to the
1998 offense; thus, she had not remained arrest or prosecution free for the five years
following her conviction for the 1997 offense as required by 18 Pa.C.S. § 9122(b)(3)(i)
(“has been free of arrest or prosecution for five years following the conviction for that
offense”). The trial court agreed with the Commonwealth’s argument and granted
expungement for the 1998 offenses, but not for the 1997 offenses.
Defendant has been free from arrest and prosecution for more than sixteen years
following those convictions, over ten years longer than the five-year requirement set
forth in Section 9122(b)(3)(i). Defendant, whose minor offenses occurred long ago,
when she was very young, and who has stayed arrest-free for almost two decades, is
the kind of person who would benefit from the elimination of the perpetual stigma of her
youthful misconduct.
Our determination the statute is ambiguous is further supported by viewing the
language in its context as part of the overall statutory scheme. It is undisputed Section
9122 is designed to afford the prospect of expungement relief to certain individuals
under specified circumstances. The statute embraces three distinct approaches:
situations where expungement must be granted, situations where it cannot be granted,
and situations where expungement is possible in the discretion of the trial court. For
example, subsection (a) describes situations where criminal record history must be
expunged. 18 Pa.C.S. § 9122(a) (criminal history record information shall be expunged
when no disposition has been recorded within 18 months of arrest and it is certified no
action is pending, or when a person convicted of underage drinking attains 21 years of
age and has satisfied all terms and conditions of sentence). Contrarily, subsection (b.1)
describes situations where criminal history records can never be expunged. 18 Pa.C.S.
§ 9122(b.1) (court shall not have authority to order expungement of arrest record where
defendant was placed on Accelerated Rehabilitative Disposition for violation of certain
enumerated offenses where victim is under 18 years of age). Finally, subsection (b)
describes middle-ground situations where the court may grant expungement under
certain conditions. 18 Pa.C.S. § 9122(b). Here, the reading of the Superior Court and
the Commonwealth takes the provision framed in discretionary language and carves out
an exception where expungement can never be secured. The overall structure of the
statute weighs against this narrowing construction.
Accordingly, in our judgment, defendant's construction of the statute is more
persuasive. Moreover, the lower courts' contrary, stricter reading of the statute has
27
yielded an unreasonable result: defendant's 1998 conviction has been expunged while
the older ones remain intact and, by the lower courts' reasoning, those 1997 offenses
can never be expunged, even if another sixteen, or fifty, arrest-free years elapse. We
hold this is not a result the Legislature intended. Instead, we hold defendant is eligible
for expungement of the criminal history record of her 1997 harassment and public
drunkenness convictions.
Giulian, ___ Pa. ___, 141 A.3d 1262 (7/19/16)
Link to: Baer, J. concurring
Link to: Wecht, J. concurring
FIREARMS
Defendant contends that evidence failed to prove his guilt under Section 6110.2
for possessing a firearm with an altered manufacturer's number, because the firearms
expert testified he was able to make out the number upon his examination. At trial,
however, the expert clarified that someone had clearly attempted to remove the number
by mechanical means—most likely a grinder or some kind of circular tool—but that he
was still able to see the numbers when placed under magnification.
When considered in its entirety, the expert’s testimony confirms that the
manufacturer’s number on the firearm had been mechanically abraded to such a degree
that it was no longer legible unless magnification was employed. This degree of
degradation of the number—rendering it illegible by ordinary observation—satisfied the
statutory requirement that an alteration or change to the number be apparent on the
firearm. In this respect, the expert’s opinion that the number had not been “altered”
because it was unnecessary to use chemical means to enhance remnants of a number
ostensibly removed did not bear on the legal question of culpability under Section
6110.2, for it was not for the firearms expert to define any of the four discrete terms
used in the statute. The value of his testimony, instead, lay in his reporting the means
by which discernment of the number was capable, and his testimony that only
extraordinary means — in this case, magnification — enabled observation of the
number established culpability under Section 6110.2.
LAZARUS, J. CONCURRING JOINED BY DUBOW, J.:
Because the number could still be discerned via magnification, in a strict sense,
the number was not altered, changed, or removed. I note, however, that one definition
of “obliterate” is “to make undecipherable or imperceptible by obscuring or wearing
away.” Merriam Webster Dictionary. Under this definition, “obliterated” in the statute
means that the number had been made indecipherable or imperceptible. This definition
aptly describes what occurred in the instant matter, since the number had been ground
away to such an extent that it was not perceivable by the naked eye. Using this
definition of “obliterated” differentiates it from the term “removed,” thereby giving full
effect to the words of the statute.
Smith, 146 A.3d 257 (Pa. Super. 8/25/16)
Link to: Lazarus, J. concurring
28
FLIGHT TO AVOID APPREHENSION
Penn Hills police officer Bernard Sestili responded to a report of shots fired
during a house burglary. Police were informed that suspects were believed to be fleeing
in a burgundy Buick and were armed. As Officer Sestili approached the area, he saw a
burgundy Buick pass him. Accordingly, he activated his lights and attempted to pull the
vehicle over. The driver of the Buick initially pulled the vehicle over, but sped away after
Officer Sestili began to exit his car. The occupants of the Buick then engaged in a highspeed chase with police. While attempting to make a turn at an intersection, the car
crashed into a guard rail. The driver and passengers, one of whom was the defendant,
fled from the scene. Police apprehended defendant after a foot chase.
The offense described in 18 Pa.C.S. § 5126, Flight to avoid apprehension, trial
or punishment provides:
(a) Offense defined. — A person who willfully conceals himself or moves
or travels within or outside this Commonwealth with the intent to avoid
apprehension, trial or punishment commits a felony of the third degree
when the crime which he has been charged with or has been convicted of
is a felony and commits a misdemeanor of the second degree when the
crime which he has been charged with or has been convicted of is a
misdemeanor.
The plain language of the pertinent portion of the statute requires that a person
have been charged with a crime. This language is simply not ambiguous. The
Commonwealth has failed to cite or point to a single Pennsylvania case in support of its
interpretation. That is, it has not discussed any case law where a defendant was found
guilty of fleeing to avoid apprehension where the person had not been charged with a
crime at the time he or she fled.
Phillips, 129 A.3d 513 (Pa. Super. 12/14/15)
Interest of P.S., ___ A.3d ___ (Pa. Super. 3/17/17)
FRUIT OF THE POISONOUS TREE
In December 2006, someone called the South Salt Lake City police's drug-tip line
to report "narcotics activity" at a particular residence. Narcotics detective Douglas
Fackrell investigated the tip. Over the course of about a week, Officer Fackrell
conducted intermittent surveillance of the home. He observed visitors who left a few
minutes after arriving at the house. These visits were sufficiently frequent to raise his
suspicion that the occupants were dealing drugs.
One of those visitors was Edward Strieff. Officer Fackrell observed Strieff exit the
house and walk toward a nearby convenience store. In the store's parking lot, Officer
Fackrell detained Strieff, identified himself, and asked Strieff what he was doing at the
residence.
As part of the stop, Officer Fackrell requested Strieff's identification, and Strieff
produced his Utah identification card. Officer Fackrell relayed Strieff's information to a
police dispatcher, who reported that Strieff had an outstanding arrest warrant for a traffic
29
violation. Officer Fackrell then arrested Strieff pursuant to that warrant. When Officer
Fackrell searched Strieff incident to the arrest, he discovered a baggie of
methamphetamine and drug paraphernalia.
We have recognized several exceptions to the exclusionary rule. Three of these
exceptions involve the causal relationship between the unconstitutional act and the
discovery of evidence. First, the independent source doctrine allows trial courts to admit
evidence obtained in an unlawful search if officers independently acquired it from a
separate, independent source. Second, the inevitable discovery doctrine allows for the
admission of evidence that would have been discovered even without the
unconstitutional source. Third, and at issue here, is the attenuation doctrine: Evidence is
admissible when the connection between unconstitutional police conduct and the
evidence is remote or has been interrupted by some intervening circumstance, so that
the interest protected by the constitutional guarantee that has been violated would not
be served by suppression of the evidence obtained.
The attenuation doctrine evaluates the causal link between the government's
unlawful act and the discovery of evidence, which often has nothing to do with a
defendant's actions. And the logic of our prior attenuation cases is not limited to
independent acts by the defendant.
The three factors articulated in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45
L.Ed.2d. 416 (6/26/75), guide our analysis. First, we look to the temporal proximity
between the unconstitutional conduct and the discovery of evidence to determine how
closely the discovery of evidence followed the unconstitutional search. Second, we
consider the presence of intervening circumstances. Third, and particularly significant,
we examine the purpose and flagrancy of the official misconduct.
The first factor, temporal proximity between the initially unlawful stop and the
search, favors suppressing the evidence. In contrast, the second factor, the presence of
intervening circumstances, strongly favors the State. Finally, the third factor, the
purpose and flagrancy of the official misconduct, also strongly favors the State.
Officer Fackrell was at most negligent. In stopping Strieff, Officer Fackrell made
two good-faith mistakes. First, he had not observed what time Strieff entered the
suspected drug house, so he did not know how long Strieff had been there. Officer
Fackrell thus lacked a sufficient basis to conclude that Strieff was a short-term visitor
who may have been consummating a drug transaction. Second, because he lacked
confirmation that Strieff was a short-term visitor, Officer Fackrell should have asked
Strieff whether he would speak with him, instead of demanding that Strieff do so. Officer
Fackrell's stated purpose was to find out what was going on in the house. Nothing
prevented him from approaching Strieff simply to ask. But these errors in judgment
hardly rise to a purposeful or flagrant violation of Strieff's Fourth Amendment rights.
While Officer Fackrell's decision to initiate the stop was mistaken, his conduct
thereafter was lawful. Moreover, there is no indication that this unlawful stop was part of
any systemic or recurrent police misconduct. To the contrary, all the evidence suggests
that the stop was an isolated instance of negligence that occurred in connection with a
bona fide investigation of a suspected drug house. Officer Fackrell saw Strieff leave a
suspected drug house. And his suspicion about the house was based on an anonymous
tip and his personal observations.
30
Applying these factors, we hold that the evidence discovered on Strieff's person
was admissible because the unlawful stop was sufficiently attenuated by the preexisting
arrest warrant. Although the illegal stop was close in time to Strieff's arrest, that
consideration is outweighed by two factors supporting the State. The outstanding arrest
warrant for Strieff's arrest is a critical intervening circumstance that is wholly
independent of the illegal stop. The discovery of that warrant broke the causal chain
between the unconstitutional stop and the discovery of evidence by compelling Officer
Fackrell to arrest Strieff. And, it is especially significant that there is no evidence that
Officer Fackrell's illegal stop reflected flagrantly unlawful police misconduct.
Utah v. Strieff, ___ U.S. ___, 136 S.Ct. 2056, 195 L.Ed.2d 400 (6/20/16)
GUILTY PLEA
Defendant negotiated a plea agreement by which the Commonwealth withdrew
all charges that carried Megan’s Law registration requirements. A subsequent legislative
enactment imposed a new registration requirement for one of the offenses to which
defendant pled guilty.
The parties entered into a plea bargain that contained a negotiated term that
defendant did not have to register as a sex offender. Defendant was entitled to specific
enforcement of that bargain, and we affirm the order declaring that defendant was not
subject to registration.
Hainesworth, 82 A.3d 444 (Pa. Super. 12/12/13) (en banc)
appeal denied, 626 Pa. 683, 95 A.3d 276 (7/8/14)
Martinez, ___ Pa. ___, 147 A.3d 517 (9/28/16)
Link to: Saylor, C.J. concurring
Link to: Wecht, J. concurring
Ritz, 153 A.3d 336 (Pa. Super. 12/21/16)
appeal pending, No. 187 MAL 2017 (filed 3/24/17)
Defendant negotiated a guilty plea calling for his new sentence to be concurrent
with his existing state sentence. However, the Department of Corrections (DOC)
computed defendant’s new state sentence to run consecutively to the back time he was
directed to serve as a consequence of his violation of parole on his original state
sentence, citing 61 Pa.C.S. § 6138(a)(5) (“If a new sentence is imposed on the parolee,
the service of the balance of the term originally imposed by a Pennsylvania court shall
precede the commencement of the new term imposed . . .”).
Defendant sought post-conviction relief alleging ineffective assistance of counsel
regarding the negotiated, but unenforceable sentence. The PCRA court denied relief
and the Superior Court affirmed that ruling. Defendant unsuccessfully sought from
Commonwealth Court a writ of mandamus directing DOC to enforce the trial court’s
sentence.
31
DOC cannot be compelled by a writ of mandamus to enforce an illegal
sentencing order. Fajohn v. [Dep’t of Corrections], 547 Pa. 649, 692 A.2d 1067
(4/22/97). The order of the Commonwealth Court is affirmed, but without prejudice to
defendant’s right, acknowledged by DOC, to seek modification of his sentence nunc pro
tunc before the sentencing court, asserting he has not received the benefit of the guilty
plea bargain negotiated with the Commonwealth and approved by the court.
Citing with approval: Kelley, 136 A.3d 1007 (Pa. Super. 3/15/16).
Duncan v. [Dept. of Corrections]. ___ Pa. ___, 137 A.3d 575 (5/25/16)
HINDERING APPREHENSION
Defendant was upstairs in a room in his mother's home when the police came to
the door looking for Knox. Someone in that room called down and asked the man who
had opened the door not to let the police inside the house, but the police came inside
anyway. When the officer entered the room, he saw scuff marks on the wall, leading up
toward the ceiling, where a ceiling tile was out of place. He arrested defendant, calling
him "Knox," and defendant did not correct him or tell the officer that Knox was hiding in
the ceiling.
The judge presiding over the bench trial reasonably inferred that defendant was
aware Knox was hiding in the ceiling from the evidence that both Knox and defendant
were in defendant's mother's home, defendant was aware police were searching for
Knox, and there were scuffmarks on the walls leading up toward a displaced ceiling tile.
Although defendant did not affirmatively lie to police and stated his true name
when questioned, defendant concealed Knox's whereabouts so that he would not be
arrested, and harbored Knox. Although defendant contends that he was not charged
with "harboring" Knox, the statute specifically states that one is guilty of hindering
apprehension if one conceals or harbors another. Here, there was sufficient evidence
for the court to conclude that defendant concealed Knox.
Beasley, 138 A.3d 39 (Pa. Super. 4/28/16)
appeal denied, ___ Pa. ___, ___ A.3d ___ (11/22/16)
Where, as here, a defendant withdraws or successfully challenges his plea, the
bargain is abrogated. When a defendant abrogates a plea agreement, he resumes his
pre-agreement status, and the government may proceed as if the agreement had never
existed.
If the defendant were permitted to accept a bargain and then revoke his part
while leaving the prosecution bound, the entire purpose of plea bargaining would be
defeated. Every defendant would find it in his interest to plead and then challenge his
plea after sentencing. Every plea would thus require subsequent litigation, and if
successfully revoked, would be followed by the very trial and consumption of judicial
resources which the bargain supposedly had precluded. As a result, the criminal justice
32
system would become more clogged with litigation than if there were no plea
bargaining.
In the instant case, trial counsel represented defendant in two unrelated cases:
this case, and an aggravated assault case not at issue in this appeal. Initially, defendant
pled guilty in both cases, and as a term of the negotiated plea agreement in the assault
case, the sentences in both cases were set to run concurrent to one another.
Defendant subsequently challenged and withdrew his guilty plea in the instant
case, forcing the Commonwealth to proceed to trial in this case and denying the
Commonwealth the benefit of the bargain reached. Defendant’s own actions abrogated
the bargain and, thus, at sentencing he was no longer entitled to receive the benefit of
the bargain, i.e., to recommend to the court that it impose a sentence concurrent to the
sentence for aggravated assault.
Jarosz, 152 A.3d 344 (Pa. Super. 12/13/16)
appeal pending, No. 20 WAL 2017 (filed 1/9/17)
IDENTIFICATION
Officer Daniel Kostick testified that on the evening of October 15, 2011, he was
on routine patrol with his partner in a marked police cruiser in the vicinity of 62nd and
Arch Streets in the City of Philadelphia. At approximately 9:09 p.m. the complainant,
Nathaniel Harley, pulled alongside and reported that he had just been robbed. He
instructed Mr. Harley to park his car and get into the police vehicle in order to look for
the assailant.
Officer Kostick testified that when Mr. Harley got into the cruiser he had a picture
displayed on his computer screen of a black male, identified as [defendant], whom he
was investigating from the prior evening. On seeing the picture, Mr. Harley immediately
recognized [defendant] as his assailant. Realizing that he had forgotten to close the
picture in the excitement of the moment, Officer Kostick immediately removed it from
view. Officer Kostick explained that on the previous evening he had been on patrol
without his partner and had observed [defendant] acting in a suspicious manner. He
was showing the picture to his partner in order for him to be on the lookout for him. He
testified that it was not his intention for Mr. Harley to see the photograph on his
computer screen.
Philadelphia Police Detective Frank Mullen, in an abundance of caution and in an
effort to further verify Mr. Harley's identification, prepared a photo array of eight
photographs, including defendant's. Prior to being interviewed by Detective Mullen, Mr.
Harley viewed the array and immediately identified defendant as his assailant. When he
was asked how sure he was of his identification, Mr. Harley replied: "Positive, 100
percent." Mr. Harley also told Detective Mullen, "[w]hile I was in the car, they had a
picture of the guy on their computer already. I told them that it was the guy that robbed
me."
In addition to identifying defendant from the photo array, Detective Mullen
testified that Mr. Harley told him that he recognized defendant from the neighborhood.
He explained that, although he didn't know defendant's name and hadn't seen him for
33
quite some time, he had grown up on the same street, a block away from defendant.
This was corroborated by Mr. Harley at trial.
Defendant did not demonstrate that improper police conduct occurred during the
initial out-of-court identification. Rather, as the trial court found, Mr. Harley's viewing of
defendant's photo on the police cruiser's computer screen was inadvertent and not an
attempt to utilize a suggestive single photo identification procedure. Rather, Mr. Harley's
viewing of the photo was more akin to a spontaneous identification of a suspect, which
is permissible. See Commonwealth v. Wilcox, 481 Pa. 284, 392 A.2d 1294 (10/5/78).
Jaynes, 135 A.3d 606 (Pa. Super. 3/1/16)
appeal denied, ___ Pa. ___, 145 A.3d 724 (8/25/16)
INEFFECTIVENESS: CONSULTATION WITH CLIENT
Counsel in a capital case is per se ineffective if he fails to have one face to face
meeting with the client prior to the trial. It is irrelevant that defendant was not ultimately
sentenced to death. Defendant has no obligation to show prejudice.
Citing: Brooks, 576 Pa. 332, 839 A.2d 245 (12/30/03)
Brown, 145 A.3d 196 (Pa. Super. 8/12/16)
appeal granted, No. 6 EAP 2017 (granted 2/1/17)
INEFFECTIVENESS: INCORRECT LEGAL ADVICE
Affirmative misinformation regarding the length of the back time (“setback”) that
would be imposed by the parole board constitutes ineffective assistance of counsel.
Defendant established that he was prejudiced by the ineffective assistance of counsel
given that the trial court expressly credited defendant's testimony that not losing more
than 11 months of street time was the most important thing to him when he decided to
plead guilty.
Defendant is permitted to withdraw his guilty plea.
Barndt, 74 A.3d 185 (Pa. Super. 7/25/13)
Link to: Colville, J. dissenting
Kelley, 136 A.3d 1007 (Pa. Super. 3/15/16)
(misinformation regarding effective date of sentence in light of
upcoming state parole violation)
34
INFORMATION
Pa.R.Crim.P. 564 was amended effective December 21, 2017. It now states:
RULE 564. AMENDMENT OF INFORMATION.
The court may allow an information to be amended, provided that the information as
amended does not charge offenses arising from a different set of events and that
the amended charges are not so materially different from the original charge that
the defendant would be unfairly prejudiced. Upon amendment, the court may grant
such postponement of trial or other relief as is necessary in the interests of justice.
INSANITY
Defendant stood trial for murder. He presented a diminished capacity defense,
but not an insanity defense. Because no insanity defense was presented at the trial, the
trial court would not allow evidence of or permit a verdict of guilty but mentally ill.
Defendant now argues that trial counsel was ineffective for not counseling him to plead
guilty but mentally ill.
Section 314 draws a distinction between a defendant who pleads not guilty and
a defendant who pleads guilty. Under Section 314(a), a defendant who pleads not guilty
may be found by a fact-finder to be guilty but mentally ill only if the defendant “offers a
defense of insanity.” 18 Pa.C.S. § 314(a); see Commonwealth v. Hatfield, 579 A.2d 945,
947 (Pa. Super. 9/4/90). The reason for this rule is that, under Pennsylvania law, mental
illness is not a defense to criminal liability unless the mental illness rises to the level of
legal insanity under Section 314(c)(2). This limitation is set forth in Section 315(a) of the
Crimes Code.
Thus, under Section 314(a), if a defendant wishes to plead not guilty on the
basis of his mental illness, he must claim to have been legally insane when he
committed the crime. If the fact-finder then agrees that the defendant was insane, it will
find the defendant not guilty on the basis of that defense. But if the fact-finder concludes
that the defendant committed the crime while he was mentally ill but not insane, it may
not acquit him on the basis of the mental illness; instead, it may find the defendant
“guilty but mentally ill.” Such a verdict then triggers provisions of the Sentencing Code
that enable the defendant to receive mental health treatment while undergoing his
criminal punishment.
But in claiming that he should have been advised to plead guilty but mentally ill,
appellant does not rely on Section 314(a). Instead, he relies on Section 314(b), which,
by its precise terms, specifically authorizes a defendant to “waive[] his right to trial” and
“plead guilty but mentally ill.” Contrary to the Commonwealth’s argument, Section
314(b) does not condition the ability to plead guilty but mentally ill on the assertion of an
insanity defense. Indeed, any such condition would make no sense. An insanity
defense requires a plea of not guilty. Here, appellant argues that he should have been
advised to plead guilty but mentally ill. If a defendant pleads guilty but mentally ill and
the court accepts that plea, the defendant waives the defense of insanity. There thus
35
would be no reason for a defendant to invoke the defense of insanity before entering a
plea of guilty but mentally ill.
We hold that a defendant need not assert an insanity defense before entering a
plea of guilty but mentally ill. Accordingly, the PCRA court erred by dismissing
appellant’s claim on the ground that he did not assert such a defense. We therefore will
vacate the PCRA court’s decision and remand for further consideration of appellant’s
claim of ineffective assistance. On remand, appellant will have to establish all three
elements of an ineffective assistance claim. Because he contends that he should have
been advised to plead guilty but mentally ill, these requirements will include proof that
he would have been able to satisfy the trial court “that [he] was mentally ill at the time of
the offense to which the plea is entered,” as required by Section 314(b), and that the
Commonwealth would have agreed to a guilty but mentally ill plea and the court would
have accepted a guilty plea on those terms.
Andrews, ___ A.3d ___ (Pa. Super. 4/7/17)
JURY: DELIBERATIONS
At common law jurors were forbidden to impeach their verdict, either by affidavit
or live testimony. The [Lord] Mansfield rule, as it came to be known, prohibited jurors,
after the verdict was entered, from testifying either about their subjective mental
processes or about objective events that occurred during deliberations. American courts
adopted the Mansfield rule as a matter of common law, though not in every detail.
Some jurisdictions adopted a different, more flexible version of the no
impeachment bar known as the “Iowa rule.” Under that rule, jurors were prevented only
from testifying about their own subjective beliefs, thoughts, or motives during
deliberations. Jurors could, however, testify about objective facts and events occurring
during deliberations, in part because other jurors could corroborate that testimony.
When a juror makes a clear statement that indicates he or she relied on racial
stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires
that the no-impeachment rule give way in order to permit the trial court to consider the
evidence of the juror’s statement and any resulting denial of the jury trial guarantee.
Not every offhand comment indicating racial bias or hostility will justify setting
aside the no-impeachment bar to allow further judicial inquiry. For the inquiry to proceed
there must be a showing that one or more jurors made statements exhibiting overt racial
bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations
and resulting verdict. To qualify, the statement must tend to show that racial animus
was a significant motivating factor in the juror’s vote to convict. Whether that threshold
showing has been satisfied is a matter committed to the substantial discretion of the trial
court in light of all the circumstances, including the content and timing of the alleged
statements and the reliability of the proffered evidence.
The practical mechanics of acquiring and presenting such evidence will no doubt
be shaped and guided by state rules of professional ethics and local court rules, both of
which often limit counsel’s post-trial contact with jurors.
36
This case does not ask, and the Court need not address, what procedures a trial
court must follow when confronted with a motion for a new trial based on juror testimony
of racial bias. The Court also does not decide the appropriate standard for determining
when evidence of racial bias is sufficient to require that the verdict be set aside and a
new trial be granted.
Disapproving: Steele, 599 Pa. 341, 961 A.2d 786 (12/18/08).
Pena-Rodriguez v. Colorado, ___ U.S. ___, 137 S.Ct. 855, ___ L.Ed.2d ___ (3/6/17)
JUROR NO. 3: I was coming back from lunch. It was probably about 1:00
o'clock, and I was in the hallway out just across from the District Attorney's Office, and
there were three men, one was standing with his back toward the office, and the other
two were seated on the bench and they were having a conversation. So I said before I
went between them, I said, "Excuse me." And the guy says, "Oh, you are excused. Just
remember, guilty, guilty, guilty."
We are satisfied that the trial court appropriately responded to this ex parte
communication between a member of the public and Juror Number Three by
questioning each juror and alternate juror individually, on the record, to determine
whether the jury could remain impartial. Moreover, we discern no abuse of discretion in
the trial court's conclusion that despite the ex parte communication, defendant was not
deprived of a fair and impartial trial. Accordingly, a mistrial was not warranted.
McCamey, 154 A.3d 352 (Pa. Super. 1/13/17)
JUDGE: RECUSAL
A Nevada jury convicted petitioner, Michael Damon Rippo, of first-degree
murder and other offenses and sentenced him to death. During his trial, Rippo received
information that the judge was the target of a federal bribery probe, and he surmised
that the Clark County District Attorney’s Office—which was prosecuting him—was
playing a role in that investigation. Rippo moved for the judge’s disqualification under
the Due Process Clause, contending that a judge could not impartially adjudicate a case
in which one of the parties was criminally investigating him.
Under our precedents, the Due Process Clause may sometimes demand
recusal even when a judge has no actual bias. Recusal is required when, objectively
speaking, the probability of actual bias on the part of the judge or decision maker is too
high to be constitutionally tolerable.
The Nevada Supreme Court did not ask the question our precedents require:
whether, considering all the circumstances alleged, the risk of bias was too high to be
constitutionally tolerable. As a result, we grant the petition for writ of certiorari and the
motion for leave to proceed in forma pauperis, and we vacate the judgment below and
remand the case for further proceedings not inconsistent with this opinion.
Rippo v. Baker, ___ U.S. ___, 137 S.Ct. 905, ___ L.Ed.2d ___ (3/6/17)
37
JURY: SELECTION
In this case, prospective juror R.Z. initially indicated that she was incapable of
rendering a fair, impartial and unbiased verdict. The Commonwealth's entire case rested
upon the credibility of the police officers, given that the Commonwealth's only two
witnesses at trial were City of Pittsburgh Police detectives. Yet, R.Z. answered "yes" to
the written question "[w]ould you be more likely to believe the testimony of a police
officer or any other law enforcement officer because of his or her job?"—and R.Z. then
unequivocally testified during voir dire that she "would be more likely to believe the
testimony of a police officer," thus indicating that R.Z. was biased in favor of the police
and the Commonwealth.
R.Z.'s admitted bias in favor of the police rested on a firm bedrock, given that
R.Z. testified: she currently works as a security officer for a casino; she previously
worked in the California University of Pennsylvania Police Department for two years,
while she was a student in college; she previously served two years in the United States
Marshals' apprenticeship program; she previously completed an internship with the
Bethel Park Police Department; and, her boyfriend is a police officer in a borough that
surrounds the City of Pittsburgh.
R.Z. eventually testified that she would be able to follow the trial court's
instructions and render a fair and impartial decision. However, almost immediately after
R.Z. testified that she would be able to "be fair and impartial," R.Z. again testified that,
"because of [her] experience[,]. . . [she] would be inclined to believe" the police.
Therefore, as we held in Commonwealth v. Johnson, 299 Pa. Super. 172, 445 A.2d 509
(5/7/82), appeal denied (9/9/82), we hold in the case at bar that "[R.Z.'s] eventual
assurance to the [trial] court that [she] would ‘be fair’ did not dispel the force of [her]
admissions" of bias.
The trial court abused its discretion when it denied defendant's challenge to
excuse R.Z. for cause. Moreover, we must conclude that the error was not harmless:
where, as here, a defendant is forced to use one of his peremptory challenges to
excuse a prospective juror who should have been excused for cause, and then
exhausts his peremptories before the jury is seated, a new trial will be granted. We must
therefore vacate defendant's judgment of sentence and remand for a new trial.
Penn, 132 A.3d 498 (Pa. Super. 2/1/16)
Juror No. 1 stated that he is a police officer, employed part-time by two police
departments located in Beaver County, and that he knows several of the police officers
listed as potential witnesses in the case. Juror No. 1 stated that when, in his capacity as
a police officer, he files criminal complaints, they are prosecuted by the Beaver County
District Attorney's Office, which is the same district attorney's office that prosecuted the
instant case. Juror No. 1 stated that he has worked on previous cases with the two
Beaver County District Attorneys representing the Commonwealth in this case, and that
they have handled cases that he has filed.
A prospective juror's status as a law enforcement officer in and of itself is
insufficient to require disqualification as a juror in a criminal case. Indeed, the likelihood
38
of bias on the part of police officers, who have no particular relationship to the case or to
the police force involved, is not so great that the court must remove the officer from the
jury. Absent any "real relationship" to the case, the removal of a law enforcement officer
should depend on the sound exercise of discretion by the trial judge.
However, if a police officer has a "real relationship" to the case, he must
automatically be excluded from serving on a criminal jury. A "real relationship" has been
found to exist between a proposed juror and the case where that juror is a member of
the same police force that has officers testifying in the case, and the focus of the
defense was on the credibility of testifying officers.
The ongoing relationship between Juror No. 1 and the Beaver County District
Attorney's Office, as well as his relationship with the two Assistant District Attorneys
prosecuting this case, is sufficiently close so as to raise the presumption of prejudice.
Although Juror No. 1 is not a member of the same police department as any of the law
enforcement witnesses, the Commonwealth's case rested in part on the testimony of ten
police officers, several of whom were known to Juror No. 1. Even if this circumstance
alone were not sufficient to disqualify Juror No. 1 from sitting on the jury, we conclude
that, taken together with the ongoing relationship between Juror No. 1 and the Beaver
County District Attorneys prosecuting this case, the likelihood of prejudice on the part of
Juror No. 1 must be presumed. The trial court's failure to sustain a challenge for cause
as to Juror No. 1 constitutes reversible error, requiring a new trial.
Kelly, 134 A.3d 59 (Pa. Super. 2/8/16)
Link to: Shogan, J. dissenting
appeal denied, ___ Pa. ___, ___ A.3d ___ (9/27/16)
JUVENILE
Just as a juvenile bears the overarching burden of proving a transfer to juvenile
court is warranted, he or she also bears the burden of coming forward with evidence
that a gun in his or her possession was not a deadly weapon for purposes of Section
2301. There is, therefore, no merit to Shull's argument placing this burden upon the
Commonwealth.
The second part to Shull's decertification argument states that he established his
transfer would better serve the public interest. Specifically, he points to the testimony of
two psychiatrists who opined that he suffers from bi-polar disorder and exhibits a level
of functioning and maturity comparable to a 14 year-old. The experts also testified Shull
possesses a benevolent disposition, lacks a history of aggression or delinquent
behavior, and displays no indicia of antisocial or psychotic traits, all of which suggested
he was amenable to treatment and counseling which could "alleviate his diminished
impulse control and aid his maturity and coping skills[ ]" during his minority.
Simply citing some factors which, standing alone, could support decertification
does not establish the abuse of discretion required to reverse a court's order refusing to
decertify a case. The trial court considered that the experts' prognoses for rehabilitation
were qualified because Shull was already 18 years old at the time of the hearing and
there existed insufficient time to achieve full rehabilitation before he reached 21.
39
On balance, it was the court's determination that factors going against
decertification outweighed those offered in support of decertification. In its February 3,
2015, order denying decertification, the court alluded to its many considerations
informing its decision, including: the serious effects of Shull's crime on his 21 year-old
victim; community fears about walking in downtown State College at night; the
circumstances surrounding the violent crime--including Shull's theft of a CO-2 powered
replica gun earlier that night; his apparent lying in wait for an unsuspecting pedestrian
and positioning of his car to flee the scene; his admission to Dr. Altman that he
brandished a gun to scare the victim into turning over her purse; his extensive record of
unsuccessful rehabilitation efforts in private facilities offering treatments comparable to
those administered in juvenile facilities; and his treating psychiatrists' own lingering
questions about Shull's ability to rehabilitate during his minority. We discern no abuse of
discretion in the court's thoughtful application of the 42 Pa.C.S. § 6355(a)(4)(iii) factors
to deny Shull's motion to decertify.
Shull, 148 A.3d 820 (Pa. Super. 9/13/16)
KIDNAPPING
The crime of Kidnapping requires proof that the defendant unlawfully confined
another “for a substantial period in a place of isolation.” 18 Pa.C.S. § 2901(a). Based
upon the statutory language, the history of the crime of kidnapping, the Model Penal
Code on which Section 2901(a) is based, and our Court's decisions interpreting the
kidnapping statute, we take this opportunity to reaffirm that, for purposes of
Pennsylvania's kidnapping statute, a "place of isolation" is not geographic in nature, but
contemplates the confinement of a victim where he or she is separated from the normal
protections of society in a fashion that makes discovery or rescue unlikely.
Defendant held the fate of the victims in his exclusive control during the entire
ordeal until he left the home and the subsequent arrival of the police. For at least two
hours, the victims were handcuffed and bound, threatened repeatedly to be quiet, one
was sexually assaulted, and all were placed in great fear. Specifically, Cynthia Collier,
while attempting to telephone for help, was handcuffed behind her back, forced onto the
floor of her son's bedroom, threatened at gunpoint with death if she did not shut up,
endured hearing her son Dustin being murdered by blows from a hammer, was
frequently checked on, and was threatened to be silent if she wanted to live, especially
upon Samantha's arrival to the home. Both Cynthia and her son Matthew, who was also
bound, remained restrained while defendant stole their bank cards and a ring from
Cynthia's finger. Repeatedly returning to check on Cynthia and Matthew, defendant only
later in the ordeal indicated that Wes Collier would be the next person in the home, and
that they could yell for assistance at that time, and then, after considering the time,
informed them that they could do what they wanted if defendant was not back by 6:30
a.m. Similarly, defendant confined Matthew, even though handicapped and using a
wheelchair, to a bed by tying his hands and legs, rendering him unable to seek
assistance by escape or telephone. Again, Matthew was checked on multiple times to
prevent his escape or calls for assistance during the early morning events.
40
Finally, with respect to Samantha, upon her arrival at the home, she was directed
into her bedroom, shown the dead body of her son's father, forced onto her stomach at
gunpoint while her hands were tied behind her back and her feet bound with a cable.
She was forced to remain on her bed under threat of rape, indecently assaulted, was
checked on multiple times, and her cell phone was removed, and then thrown on
Justin's dead body. Samantha's car keys were taken, and defendant indicated that he
had already killed, and would kill more individuals if the police did not find him.
Samantha was bound such that she could not free herself and was only able to call for
assistance after retrieving her phone from Justin's dead body and dialing with her toe,
reaching the police only after numerous attempts.
While confined in their own home, the victims were nevertheless tightly bound
and unable to seek discovery or rescue. Indeed, the victims were threatened with death
if they attempted to obtain help from neighbors or the police. There is no evidence that
others had access to the home, other than Wes, whose return was expected, but the
time of his arrival was uncertain and not imminent. Rather than being incidental to the
other crimes, defendant's confinement of the victims was with the intent to commit those
other crimes, and to facilitate his escape. Thus, based upon these facts, we believe the
Commonwealth established that the victims were confined in a place of isolation which
rendered them separated from the normal protections of society in a fashion that made
their discovery or rescue unlikely, thus satisfying the requirements of the kidnapping
statute.
Rushing, 627 Pa. 59, 99 A.3d 416 (8/18/14)
Defendant bound the hands of the victims in their home while he and his cohort
swore at them, held a gun to their heads, and pushed and shook her autistic son,
Joshua, while ordering the child and Ms. Varela to tell him where the money was.
Before tying Ms. Varela's hands behind her back, defendant kicked her in the stomach
causing her to fall to the floor. After taking thousands of dollars, defendant fled the
premises, leaving the victims bound in the home. Defendant also took Ms. Varela's
phone from her at the outset in an effort to prevent her from calling for assistance.
While the victims' home was located in close proximity to others and Mr. Torres
[the victim’s husband] returned shortly after defendant and his cohort left, this does not
negate defendant's vicious criminal acts, nor does the unlocked door require a finding
that the victims were not isolated from any chance of outside discovery and aid.
The last time the victims saw Mr. Torres, he was leaving to show defendant and
his cohort an apartment, and the time at which he was to return was unknown to them.
In fact, Mr. Torres testified he returned when he received a phone call to do so. In
addition, he indicated to defendant and his cohort that he would need about an hour to
clean the apartment which the duo falsely expressed interest in renting. Therefore,
when defendant barged into the victims' home, he was operating under the assumption
he had ample time to find the money stored there. As such, rather than being incidental
to the robbery, defendant's confinement of the victims was with the intent to commit
crimes and to facilitate his escape.
41
Defendant further claims that he did not immobilize the victims completely in that
only their hands were tied and they had not been gagged or otherwise prevented from
screaming for help. However, the victims were physically restrained and at times
separated at gunpoint on different floors of their home. When defendant initially
confronted Joshua, the child was alone upstairs, and while defendant tied Ms. Varela's
hands behind her back with a plastic zip tie and beat her on the main floor, his cohort,
armed with a gun, forced Joshua to the basement. Although her mouth was not
covered, it is significant that defendant prevented Ms. Varela from utilizing her phone to
call for help. Indeed, Mr. Torres testified that he returned to find Ms. Varela's and
Joshua's hands still bound with plastic ties. In light of the foregoing, defendant held the
fate of the victims in his exclusive control until he and his cohort left the home and help
subsequently arrived.
Moreover, upon first seeing his wife, Mr. Torres remarked she was "scared"
"terrorized" and "crying." The traumatic circumstances especially affected Joshua who
was "scared," "crying," left "paralyzed" and "shaking and crying." Such acute distress
clearly affected his ability to seek help for his mother and him, and further confirms the
victims were placed in significant fear for a "substantial period" in a "place of isolation"
for purposes of the kidnapping statute. As such, we find the Commonwealth presented
sufficient evidence to sustain defendant's kidnapping convictions.
Green, 149 A.3d 43 (Pa. Super. 9/16/16)
appeal pending, No. 478 EAL 2016 (filed 10/11/16)
Link to: Bender, J. dissenting
LURING CHILD
In Hart, 611 Pa. 531, 28 A.3d 898 (9/28/11), our Supreme Court held that an
attempt to lure under Section 2910 does not occur upon the mere offer of a ride in a
motor vehicle to a child, but, rather, involves only situations where a child is provided a
further enticement or inducement to enter the vehicle, in addition to the offer of the ride.
Hart also held that a broader definition of the term "lure" includes "the performance of
some other affirmative act calculated to strongly induce another individual to take a
particular action . . ." Hart, at 549-550, 28 A.3d at 909.
T.H., age 12, testified that defendant, age 41, pulled his car alongside her while
she was walking, asked her if she had "hair on her pussy," and then grabbed her wrist
and tried to pull her toward his car. Defendant pulled T.H. with such force that she had
to put her foot on the car and push back to escape from his grip. By this conduct,
defendant committed an "affirmative act calculated to strongly induce" T.H. to enter his
vehicle, which satisfies the Hart court's definition of "lure."
Walker, 139 A.3d 225 (Pa. Super. 5/13/16)
42
PCRA
In Flanagan, 578 Pa. 587, 854 A.2d 489 (7/23/04), we found no abuse of
discretion in a PCRA court’s decision to permit a defendant to amend his PCRA petition
and raise new claims eleven years after he filed his initial, timely petition. In Flanagan,
however, the defendant’s PCRA claims had never been ruled upon by the PCRA court,
let alone any appellate court. At the time Flanagan sought to amend his original, timely
PCRA petition, that petition was still pending, unadjudicated, before the PCRA court. In
fact, the Flanagan Court specifically identified this as a factor affecting its assessment of
whether the petition could properly be treated as an amendment.
We contrasted the procedural posture of Flanagan from those present in Rienzi,
573 Pa. 503, 827 A.2d 369 (3/19/03), wherein we concluded that amendment was not
proper. See id. at 371 (finding that the Superior Court erred by treating petitioner’s
second filing as an amendment to his first PCRA petition, as petitioner had withdrawn
his first PCRA petition before the PCRA court, only filing the petition at issue ten months
later, at which point there was nothing to “amend”); Flanagan, 578 Pa. at 605 n.7, 854
A.2d at 500 n.7 (distinguishing Flanagan from Rienzi because “Flanagan’s original
petition for collateral relief was never withdrawn or dismissed”). Flanagan, therefore, is
inapposite to the case at bar.
The PCRA court and Sepulveda are correct that Rule 905(A) gives the PCRA
court discretion to “grant leave to amend or withdraw a petition for [PCRA] relief at any
time,” and states that “[a]mendment shall be freely allowed to achieve substantial
justice.” Pa.R.Crim.P. 905(A). Rule 905(A) was created “to provide PCRA petitioners
with a legitimate opportunity to present their claims to the PCRA court in a manner
sufficient to avoid dismissal due to a correctable defect in claim pleading or
presentation.
Once the PCRA court renders a decision on a PCRA petition, however, that
matter is concluded before the PCRA court, having been fully adjudicated by that court,
and the order generated is a final order that is appealable by the losing party. Although
liberal amendment of a PCRA petition is, in some circumstances, permitted beyond the
one-year time frame, see, e.g., Flanagan, 578 Pa. at 604-605, 854 A.2d at 499-500,
Rule 905(A) cannot be construed as permitting the rejuvenation of a PCRA petition that
has been fully adjudicated by the PCRA court. We have consistently held that in the
absence of permission from this Court, a PCRA petitioner is not entitled to raise new
claims following our remand for further PCRA proceedings.
While we believe that our case law is clear, to the extent there is any lack of
clarity in our prior decisions by their failure to consider Rule 905(A), we specifically hold
that a PCRA court does not have discretion to treat new claims raised by a PCRA
petitioner as an amended PCRA petition following remand from this Court unless such
amendment is expressly authorized in the remand order. Rather, application of the
liberal amendment policy of Rule 905(A) requires that the PCRA petition in question is
still pending before the PCRA court at the time the request for amendment is made.
Following a full and final decision by a PCRA court on a PCRA petition, that court no
longer has jurisdiction to make any determinations related to that petition unless,
following appeal, the appellate court remands the case for further proceedings in the
lower court. In such circumstances, the PCRA court may only act in accordance with the
43
dictates of the remand order. The PCRA court does not have the authority or the
discretion to permit a petitioner to raise new claims outside the scope of the remand
order and to treat those new claims as an amendment to an adjudicated PCRA petition.
Sepulveda, ___ Pa. ___, 144 A.3d 1270 (8/15/16)
Baldus - Woodworth study purporting to show racial discrimination in the
application of the death penalty was based on statistics which were of public record,
and were not “unknown” to defendant. As such, this information does not fall within the
purview of 42 Pa.C.S. § 9545(b)(1)(ii).
Lark, 560 Pa. 487, 746 A.2d 585 (2/23/00)
Link to: Nigro, J. concurring
Whitney, 572 Pa. 468, 817 A.2d 473 (3/5/03)
Defendant filed a PCRA petition and argued that he had “newly discovered
evidence” that his trial counsel was arrested for driving under the influence only days
after entering his appearance on behalf of defendant. This was alleged to be a conflict
of interest on the part of counsel.
The fact that trial counsel was arrested for DUI was a matter of public record and,
therefore, cannot be said to have been "unknown" to defendant for purposes of the
PCRA's "newly discovered evidence" exception to the PCRA's one year jurisdictional
time-bar.
Chester, 586 Pa. 468, 895 A.2d 520 (3/21/06)
Link to: Baer, J. concurring
Here, defendant cannot prove an exception to the PCRA time-bar. Information
related to trial counsel's disciplinary issues was publicly available for years, including
when defendant's first PCRA petition was being prepared. As these facts were easily
discoverable and in the public record for longer than 60 days before this petition was
filed, the petition is time-barred, and we lack jurisdiction to address the merits.
Lopez, 616 Pa. 570, 51 A.3d 195 (8/20/12) (per curiam)
Link to: Castille, C.J. concurring
Link to: McCaffery, J. concurring
The basis for defendant’s claim for PCRA relief was that counsel, at the same
time he was representing defendant, also was counsel in other cases for defendant’s
father-in-law, Mr. Barshinger, who was related to the victims of the homicide. This was
alleged to constitute a conflict of interest.
44
Trial counsel represented Barshinger, in three matters unrelated to defendant's
current litigation, between 1981 and 1988. These cases were docketed, filed with the
clerk of court, and readily available. Therefore, as defendant has not presented any
newly-discovered evidence, and the evidence presented would not meet the
requirement the information be unknown at the time the petition was filed, the PCRA
court properly found defendant failed to satisfy the newly-discovered evidence
exception. His third PCRA petition was, therefore, untimely.
Gamboa-Taylor, 620 Pa. 429, 67 A.3d 1245 (5/29/13)
BUT SEE (with regard to facts in a public record):
Defendant’s timely filed first PCRA petition was denied. Defendant appealed. His
appeal was dismissed when his attorney failed to file a brief. He filed a second PCRA
petition. The PCRA court restored defendant’s appellate rights. Superior Court quashed
defendant’s appeal, holding that the second PCRA petition was untimely filed and that
the PCRA court lacked jurisdiction to grant defendant relief.
Defendant argues that his right to relief arises from the statutory provision that
the time bar for filing a PCRA petition does not apply when “the facts upon which the
claim is predicated were unknown to the petitioner and could not have been ascertained
by the exercise of due diligence.” 42 Pa.C.S. § 9545(b)(1)(ii).
In this case, by invoking the exception at Subsection (b)(1)(ii), defendant alleges
that he did not know that his trial counsel was appointed to represent him in his PCRA
appeal until much later in the process. Likewise, he contends that he never received a
copy of the Superior Court's order dismissing his appeal. Rather, he alleges that he
attempted to find out the status of his appeal from the PCRA and Superior Courts.
Ultimately, he contends that he did not know of PCRA appellate counsel's failure to file
an appellate brief until October 4, 2000, when he received a letter from the Superior
Court explaining that his appeal was dismissed due to PCRA counsel's failure to file a
brief. Therefore, defendant has alleged that there were facts that were unknown to him.
Additionally, defendant has provided a description of the steps he took to ascertain the
status of his case. These steps included writing to the PCRA court and the Superior
Court. Accordingly, defendant alleges that he exercised due diligence in ascertaining
those facts.11 Defendant’s allegations, if proven, fall within the plain language of
subsection (b)(1)(ii).
11The PCRA also provides that any exception set forth in
Subsection (b)(1)(ii) must be plead within 60 days of when it “could
have been presented.” 42 Pa.C.S. § 9545(b)(2). In this instance, we
are content that defendant has alleged that his petition was filed
within 60 days of the date it could have been presented, since it
was filed less than 25 days after when defendant found out that the
Superior Court dismissed his first PCRA appeal.
Defendant must prove that the facts were “unknown” to him and that he could not
uncover them with the exercise of “due diligence.” Such questions require further factfinding and the PCRA court, acting as fact finder, should determine whether defendant
met the “proof” requirement under 42 Pa.C.S. § 9545(b)(1)(ii).
45
The dissent by Justice Eakin points out that defendant cannot establish that the
facts were “unknown” to him as a matter of law under this court's decision in Chester,
586 Pa. 468, 895 A.2d 520 (3/21/06). In Chester, petitioner filed a PCRA petition and
argued that he had “after discovered evidence” that his trial counsel was arrested for
driving under the influence only days after entering his appearance on behalf of
petitioner. Petitioner alleged that the arrest created a conflict of interest. In considering
the petitioner's claim, we explained that just because the petitioner did not discover the
evidence did not mean it was “unknown” to him for purposes of § 9545(b)(1)(ii). Instead,
we held that information is not unknown to a PCRA petitioner when the information was
a matter of public record.
The August 14th order [dismissing defendant’s appeal] was a matter of “public
record” only in the broadest sense. Such orders are not sent directly to the prisoner.
Rather, counsel is sent the notice on the assumption that counsel will inform his client of
the court's action. In a case such as the instant one, it is illogical to believe that a
counsel that abandons his or her client for a requested appeal will inform his client that
his case has been dismissed because of his own failures. More importantly, in light of
the fact that counsel abandoned defendant, we know of no other way in which a
prisoner could access the “public record.” 13 Rather, we believe this situation is
sufficiently distinct from the situation in Chester, since in this case, the matter of “public
record” does not appear to have been within defendant's access.
13Of course, the PCRA court can examine this matter on remand.
Bennett, 593 Pa. 382, 930 A.2d 1264 (8/23/07)
Link to: Saylor, J. dissenting
Link to: Eakin, J. dissenting
AND:
On May 30, 2013, [almost 30 years after defendant’s conviction for the murder of
a prison inmate,] defendant received a letter from Charlotte Whitmore, a staff attorney
with the Pennsylvania Innocence Project. The letter, dated May 23, 2013, included a
copy of a pro se “Motion for Partial Expunction of Adult Criminal Record” (hereinafter
“Motion to Expunge”) filed by Goodwine[, the jointly tried codefendant,] on July 29,
2009. In the Motion to Expunge, Goodwine asserted that he murdered Floyd “in self
defense,” but was “advised not to use this defense at trial.” Motion to Expunge, at 2 ¶ 4.
Goodwine further averred in the motion that “an innocent man went to jail for a crime
that [Goodwine] committed.” The motion to expunge had been publicly docketed.
In the instant case, after careful consideration, we conclude that, however
reasonable the public record presumption may be with regard to PCRA petitioners
generally, the presumption cannot reasonably be applied to pro se PCRA petitioners
who are incarcerated.
We expressly adopt herein what was the essence of our holding in Bennett.
Specifically, we hold that the presumption that information which is of public record
cannot be deemed “unknown” for purposes of 42 Pa.C.S. § 9545(b)(1)(ii) does not apply
to pro se prisoner petitioners. As discussed above, the application of the public record
presumption to pro se prisoners is contrary to the plain language of Subsection 9545(b)
46
(1)(ii) and was imposed without any apparent consideration of a pro se prisoner’s actual
access to information of public record.
We have not been asked in this appeal to reconsider the applicability of the
public record presumption generally. In requiring the facts be unknown to the petitioner,
the statute itself contains no exception, express or constructive, regarding information
that is of public record.
BAER, J. DISSENTING:
It is unclear to me from the Majority Opinion at what stage an incarcerated PCRA
petitioner must be pro se to qualify for the exception to the public record presumption.
For example, to benefit from this exception, does the incarcerated petitioner have to be
pro se when the “unknown fact” occurred, when it became publicly accessible, or when
he files his PCRA petition?
Burton, ___ Pa. ___, ___ A.3d ___ (3/28/17)
Link to: Saylor, C.J. concurring
Link to: Baer, J. dissenting
Counsel was appointed on a first PCRA petition. Counsel did not file an amended
PCRA petition. When the court gave notice of intent to dismiss the petition summarily,
counsel did not respond. Defendant filed a pro se response. The court summarily
dismissed the PCRA petition on the basis that the issues raised had been either raised
on direct appeal or not raised in the petition with the requisite specificity; in this case, an
insufficient offer of proof with regards to witness who allegedly should have been
presented at trial.
Superior Court reversed the order dismissing the PCRA petition concluding that
appointed counsel had failed to either meaningfully participate in the representation of
the PCRA petitioner, or file a petition to withdraw as counsel pursuant to Turner, 518
Pa. 491, 544 A.2d 927 (7/27/88); or Finley, 379 Pa. Super. 390, 550 A.2d 213
(10/31/88) (en banc). The case was remanded for the appointment of new PCRA
counsel.
Hampton, 718 A.2d 1250 (Pa. Super. 9/15/98)
Powell, 787 A.2d 1001 (Pa. Super. 12/4/01)
Cherry, ___ A.3d ___ (Pa. Super. 2/6/17)
POSSESSION
Carbondale Police Sergeant Patrick Lawler testified that, on March 1, 2014, he
and Officer John Bradley were conducting surveillance of a "known drug house," which
was located in a "high drug area" in Carbondale. At approximately 10:00 p.m., he
observed a male, who was later identified as defendant, enter the residence, remain
therein for ten or fifteen minutes, and then exit the residence. The officers were in an
unmarked vehicle which pulled up next to defendant, rolled down the windows, exited
47
the car, and asked him what was going on. Defendant looked into the vehicle and then
began to run northbound on Taylor Street.
Officer John Bradley followed defendant in the unmarked patrol vehicle, and
Sergeant Lawler ran around the corner in an effort to determine where he could
intercept defendant. Defendant ran between two houses and out onto the street, at
which time Sergeant Lawler began chasing defendant on foot. Defendant ran into a
driveway, around a car parked in the driveway, and then back onto the street. During
the chase, Sergeant Lawler slipped and fell on ice in the driveway. Officer Bradley
stopped the police vehicle, exited it, and identified himself as a police officer. Officer
Bradley captured defendant when he also fell on ice.
Sergeant Lawler realized that he had dropped his portable radio during the
chase. He began to backtrack his steps. As he was walking down Church Street, he
went into the alleyway where he had initially fallen, and Sergeant Lawler noticed a cell
phone on the ground and a few feet away from it a large bag containing a powdery
substance and another bag right next to it containing a white chunky substance. The
location of the discovery was where defendant ran around the vehicle. One bag seized
by the police contained 42.46 grams of cocaine, while the other bag contained 36.15
grams of cocaine.
The jury was free to accept the inference that the drugs were dropped by
defendant during the pursuit. Upon review of all the facts and circumstances, the
evidence presented at trial was sufficient to connect defendant to the specific area
where Sergeant Lawler discovered the cocaine to prove that defendant had control and
possession of it.
Roberts, 133 A.3d 759 (Pa. Super. 2/2/16)
appeal denied, ___ Pa. ___, 145 A.3d 725 (9/6/16)
There is no reasonable dispute that someone in defendant's apartment placed
child pornography in the HP laptop's Ares program. One of just two persons residing in
his apartment, defendant clearly had access to and control over the HP laptop and the
child pornography files it contained. The laptop's username was his name, he knew the
password, and he admitted using the Ares file-sharing program on the HP laptop in the
past. Forensic study of the laptop revealed a three-year history of frequent child
pornography-related word searches, image viewing, and video downloading, marked by
a pattern of repeatedly viewing the same materials in a manner suggestive of a single
user. All recent child pornography activity for which defendant was charged occurred
during nighttime, including midnight of April 16, 2014, just hours before the morning
service of the search warrant; evidence indicated defendant worked in the daytime.
Nor does evidence support defendant's position that the laptop was open and
accessible to guests, as authorities found the laptop secreted in a hallway closet. In
fact, only a Gateway laptop lay in the open, and it contained no pornography of any
kind. Neither does defendant's attempt to enlarge the number of potential users gain
any traction when read against the record. At trial, an agent discussed the lawenforcement resources she used to confirm that defendant and Ms. Gonzalez were the
only two residents at the address, and she observed no other persons entering or
48
leaving defendant's residence during an approximately two-hour surveillance of the
property. In short, evidence placed no one other than defendant and Ms. Gonzalez in a
position to control or possess the illicit materials contained in the HP laptop.
Colon-Plaza, 136 A.3d 521 (Pa. Super. 2/25/16)
PRECEDENT
Philadelphia Municipal Court Judge handed down an order suppressing
evidence. The Commonwealth appealed and a judge of the Court of Common Pleas
reversed the Municipal Court’s suppression order and remanded the case for trial. After
a conviction in the Municipal Court, defendant filed a Writ of Certiorari to the Court of
Common Pleas challenging the suppression ruling.
Since they are both sitting in an appellate capacity, the Law of the Case doctrine
forbids a second Common Pleas Court Judge from overturning the suppression ruling
by the first Common Pleas Court judge.
Lancit, 139 A.3d 204 (Pa. Super. 5/18/16)
In the absence of a ruling on a particular question by the United States Supreme
Court, the decision of a federal intermediate appellate panel, much less that of a federal
district court, is not binding on Pennsylvania courts. Pennsylvania courts are not bound
by the decisions of inferior federal courts where the case specifically concerns
Pennsylvania law. While decisions of the lower federal courts have a persuasive
authority, they are not binding on Pennsylvania courts even where they concern federal
questions.
Ragan, 560 Pa. 106, 743 A.2d 390 (12/22/99)
Steckley, 128 A.3d 826 (Pa. Super. 11/30/15)
appeal denied, ___ Pa. ___, 140 A.3d 13 (5/24/16)
Walker, 139 A.3d 225 (Pa. Super. 5/13/16)
PRELIMINARY HEARING
Pa.R.Crim.P. 542
...
(E) Hearsay as provided by law shall be considered by the issuing
authority in determining whether a prima facie case has been
established. Hearsay evidence shall be sufficient to establish any
element of an offense, including, but not limited to, those requiring
proof of the ownership of, non-permitted use of, damage to, or
value of property.
49
If hearsay evidence is sufficient to establish one or more elements of the crime, it
follows that, under the rule, it is sufficient to meet all of the elements. Accordingly, we
find that the rule does allow hearsay evidence alone to establish a prima facie case.
The right to confrontation is a trial right, not applicable at a preliminary hearing.
Ricker, 120 A.3d 349 (Pa. Super. 7/17/15)
appeal granted, No. 41 MAP 2016 (granted 4/18/16) (argued 12/7/16)
PRIOR CRIMES/SUBSEQUENT CRIMES
Defendant objected to the consolidation of the prosecution for the separate
murders of Featherstone and Crowder.
Defendant’s contention that testimony pertaining to the Crowder murder would
have been inadmissible in the Featherstone trial is erroneous. Officer Kelly Walker of
the Firearms Identification Unit related that three bullet fragments recovered from the
scene of the Featherstone murder matched the bullet recovered from Crowder’s body
and that they were fired from the same gun; therefore, any conclusion to be drawn by
the jury concerning whether appellant was the person who used that weapon to kill
Featherstone would bear upon the identity of the individual who shot Crowder, and vice
versa.
In light of the weaknesses in the testimony of the Commonwealth’s witnesses,
the fact the same gun had been used in both murders was relevant to a jury’s
determination of whether appellant shot and killed Featherstone. The murders occurred
six days apart in different neighborhoods, and while Featherstone was a teenage male
who was shot in a crowd of people at a Fourth of July party, Crowder was a forty-one
woman who was killed following a robbery. As such, the crimes were easily
distinguishable by the jury.
Stiles, 143 A.3d 968 (Pa. Super. 7/19/16)
appeal denied, ___ Pa. ___, ___ A.3d ___ (12/6/16)
Defendant pled guilty to murdering his wife in 1989 in Berks County,
Pennsylvania. While defendant was incarcerated, he penned two (2) letters and a "hit
list." The first letter and "hit list" named persons involved in the murder case and
described methods for torturing and killing said persons. The second letter also named
persons related to the murder case and contained statements regarding killing said
persons and their entire families. While defendant was being held at Centre County
Correctional Facility for the charges stemming from the letters and "hit list," defendant
made an unmonitored phone call to his daughter in which defendant made threatening
statements to her and regarding defendant's brother because of defendant's brother's
testimony against defendant.
Defendant's murder case and facts thereof, which constituted the prior bad acts
evidence, were all part of a chain of events of various crimes that occurred which were
50
inextricably interrelated. Since the victims of the above-captioned matter were involved
in defendant's murder case and defendant's statements regarding the victims were
related to their involvement with defendant's murder case, the admission of the
evidence was relevant to show motive, intent, and the natural development of the
history of the case. Additionally, the inextricable interrelation of the evidence to the
crimes causes the probative value of said evidence to outweigh any potential prejudice.
The fact that the jury acquitted defendant of all charges stemming from the
threats set forth in the letters reveals it was not so prejudiced against him for killing his
wife so as to deny him a fair trial on the remaining charges. No relief is due.
Richard, 150 A.3d 504 (Pa. Super. 11/15/16)
Defendant averred that the circumstances of a 2016 burglary appeared to be
identical to the 2013 burglary, for which he was currently charged, such that there was a
serious question raised as to the identity of the perpetrators. The trial court ruled that it
was permitting evidence with regard to the 2016 burglary of the victim’s home to be
admitted at defendant’s trial for the 2013 burglary.
We conclude that the 2016 burglary incidents and the crime in this case (the
2013 burglary) are not so highly similar, distinctive, or unusual as to reveal the
handiwork of an individual. To clarify, although the June 23, 2016, and June 27, 2016,
incidents are arguably themselves similar enough to be considered distinctive, the
conduct in the instant 2013 burglary was different therefrom.
For instance, with regard to the instant 2013 burglary, the affidavit of probable
cause reveals that entry was made into the victim’s home via the use of the garage door
code, and the lockbox was opened with the use of a key, which was hanging on the wall
near the lockbox. The victim reported there was no forced entry into the house and no
signs of forced entry to the lockbox. Further, there were no tools utilized.
With regard to the 2016 incidents, on the other hand, the manner of entry into the
house was different as compared to the 2013 burglary. Both the June 23, 2016, and
June 27, 2016, incidents involved the initial use of a woodpile to gain access to the
second floor deck of the victim’s house in order to attempt entry through a sliding glass
door. In the first 2016 incident, the sliding glass door was unlocked, thus requiring no
force to gain entry; however, in the second 2016 incident, the sliding glass door was
locked resulting in the alternate forced entry through the basement door by removing
the door’s strike plate to gain entry. Further, unlike with the 2013 burglary, the suspect
in the June 23, 2016, burglary attempted to pry open the lockbox and, after being
unable to do so, apparently discovered and utilized the key hanging nearby on the wall.
In the incident occurring four days later, the key was used with no additional damage to
the lockbox. Therefore, unlike in the 2013 burglary, during both of the 2016 incidents,
tools/force were utilized to either gain access to the house or to attempt to open the
lockbox.
Based on the aforementioned, and additionally in light of the remoteness of time
between the 2013 and 2016 incidents, we conclude that the trial court erred in allowing
for the entry of evidence from the 2016 burglary on the basis it was so similar in nature
to the one in this case. We agree with the Commonwealth that the fact the burglaries
51
involved the same residence, and the victim reported to have similar amounts stolen in
the 2013 and June 23, 2016, burglaries, are not sufficient factors by themselves to
conclude the nature of the crimes was so distinctive or unusual as to be like a signature
or the handiwork of the same individual.
Gill, ___ A.3d ___ (Pa. Super. 3/28/17)
PROBABLE CAUSE: CONDUCT
In the evening hours of May 26 Pittsburgh Police Officer Brendan Flicker and his
partner Officer Opsenica, were on a routine foot patrol near the intersection of
Frankstown Avenue and Putnam Street in the Larimer section of the City of Pittsburgh,
an area known for open-air drug sales. The two officers passed a red Chrysler with an
Ohio license plate and observed the butt of a black and silver semi-automatic firearm
through the car window. The officers returned to their vehicle and waited for the car to
leave. Shortly thereafter, Officer Dustin Rummel radioed that he was traveling behind
the vehicle, which had left its parking space without being seen by Officers Flicker and
Opsenica. Officer Rummel followed the red Chrysler for a time, then the pursuit was
assumed by Officer Gregory Livesey, who observed the vehicle attempt to park against
the flow of traffic without a turn signal and initiated a traffic stop. When Officer Livesey
activated his patrol vehicle lights, the defendant jumped out of the vehicle and ran.
Defendant's hands were by the center of his waistband while he was running. Officer
Livesey and other officers followed, and defendant ducked between two houses.
Immediately a shot was heard and defendant emerged saying "You shot me." Shortly
thereafter, a thermal imaging camera was used to locate the weapon, which was still hot
from having recently been fired. A gunshot residue test performed on defendant's
clothing revealed particles characteristic of gunshot residue on his left cuff.
Defendant argued that cases involving the stop and frisk of a defendant in visible
possession of a firearm do not justify a stop and frisk when a weapon is observed in an
unoccupied car. The statute at question indicates that the cases are indistinguishable:
[A]ny person who carries a firearm in any vehicle or any person
who carries a firearm concealed on or about his person, except
in his place of abode or fixed place of business, without a valid and
lawfully issued license under this chapter commits a felony of the
third degree.
18 Pa.C.S. § 6106(a)(1) (emphasis added).
The language of the statute establishes the reasonable suspicion that was
required for the police to stop the red Chrysler, regardless of whether a violation of the
Motor Vehicle Code was observed. The officers had a reasonable suspicion that
defendant may be dangerous; and by stopping the red Chrysler, the officers were
properly conducting an investigatory detention.
Mason, 130 A.3d 148 (Pa. Super. 12/22/15)
appeal denied, ___ Pa. ___, 138 A.3d 3 (4/20/16)
52
Carbondale Police Sergeant Patrick Lawler testified that, on March 1, 2014, he
and Officer John Bradley were conducting surveillance of a "known drug house," which
was located in a "high drug area" in Carbondale. At approximately 10:00 p.m., he
observed a male, who was later identified as defendant, enter the residence, remain
therein for ten or fifteen minutes, and then exit the residence. The officers were in an
unmarked vehicle which pulled up next to defendant, rolled down the windows, exited
the car, and asked him what was going on. Defendant looked into the vehicle and then
began to run northbound on Taylor Street.
Defendant's interaction with the police continued to be that of a mere encounter
when Sergeant Lawler exited the vehicle and asked defendant, "What's going on, what
are you doing?" When defendant fled in response to Sergeant Lawler's question, and
the police chased him, he was subjected to an investigative detention.
In assessing the totality of the circumstances, including the fact the chase
occurred in a high crime area immediately after defendant exited a known drug house,
combined with defendant's unprovoked flight upon being approached by uniformed
police officers, the officers were justified in suspecting that criminal activity was afoot.
Therefore, the contraband abandoned by defendant during his flight from the police was
properly recovered
Roberts, 133 A.3d 759 (Pa. Super. 2/2/16)
appeal denied, ___ Pa. ___, 145 A.3d 725 (9/6/16)
On November 13, 2013, at approximately 2:45 p.m. Officer Bruce Cleaver set up
surveillance outside an address on Kelvin Avenue due to receipt of a narcotics
complaint. At approximately 3:00 p.m., Stilo arrived at the location as a passenger in a
white Ford Explorer. Stilo exited the vehicle and entered the basement of the property
where he remained for approximately three minutes. As Stilo exited the property, an
unknown white male arrived on location in a red Ford pickup truck and entered the
property. Stilo re-entered the Ford Explorer and waited a few minutes. Shortly
thereafter, the unknown white male exited the property and entered his truck. Both Stilo
and the male left the location simultaneously. Stilo was followed, stopped, and removed
from the vehicle. Officer Cleaver spoke to Stilo and Stilo gave the officer a clear Ziploc
bag containing marijuana and he was arrested.
Officer Cleaver testified that he had been a police officer for 16 years, had
worked in the narcotics unit for six years, and had conducted several narcotics
surveillances. He had seen "this type of interaction where an individual goes into a
house and comes out a short time later." He further stated that, "With the two males
walking in at the same time, I believe it was a drug transaction going on."
When police received the narcotics complaint, Officer Cleaver learned that the
owner of the subject residence had previously been arrested on drug charges by
members of his narcotics unit. As such, police had information of a prior nexus of the
house to drugs. During surveillance, police witnessed the same suspicious activity of
Stilo and another individual, separately entering and then leaving the subject residence
53
after a very brief visit, within moments of each other. This activity was viewed through
the eyes of a trained officer, Officer Cleaver, who believed it was a drug transaction.
A suppression court is required to take into account the totality of the
circumstances—the whole picture. Even in a case where one could say that the conduct
of a person is equally consistent with innocent activity, the suppression court is not
foreclosed from concluding that reasonable suspicion nevertheless existed. In
conducting a reasonable suspicion inquiry, a suppression court is required to afford due
weight to the specific, reasonable inferences drawn from the facts in light of the officer's
experience.
Stilo, 138 A.3d 33 (Pa. Super. 4/28/16)
On December 12, 2013, Troopers Hoy and Long were traveling east bound in a
marked patrol cruiser on Interstate 80. The troopers were following a white Dodge
Caravan with a Michigan license plate in the left hand lane. Trooper Hoy observed the
vehicle quickly move from the left lane to the right lane without using a turn signal, at
which time Trooper Long immediately activated his overhead lights and initiated a traffic
stop. Defendant did not challenge the validity of the stop.
Both Troopers Hoy and Long exited their police cruiser and Trooper Hoy
approached the vehicle from the passenger side while Trooper Long stood behind the
vehicle as backup. As Trooper Hoy approached the vehicle, he noticed two large boxes
wrapped in Christmas paper and a suitcase in the cargo area of the vehicle. Trooper
Hoy testified that drug smugglers often wrap drugs in Christmas paper around the
holidays in an effort to blend in with innocent motorists.
Trooper Hoy asked the driver (Valdivia) for his license, registration, and proof of
insurance. Valdivia gave Trooper Hoy a license and rental agreement and stated that
the vehicle was a rental. As Valdivia produced the documents, the trooper noticed that
Valdivia’s hands were shaking, and that he seemed nervous. Valdivia stated that he
needed to pull off and get gas. Trooper Hoy found this strange because gas had been
available at two exits that Valdivia had just passed.
Trooper Hoy asked Valdivia about his travel plans. Valdivia responded that he
was flying from Fort Lauderdale, Florida to New Jersey, but his flight had been re-routed
to Detroit, Michigan, and he had to rent a vehicle because he had missed his
connecting flight to New Jersey. Trooper Hoy found it strange that the packages in the
cargo area were unblemished, even though they presumably had been part of Valdivia’s
belongings on his flight from Florida. Trooper Hoy noticed from the vehicle information
that Valdivia rented the car in Ann Arbor, Michigan, not Detroit, Michigan as he had
stated, and that the rental was for a one way trip. Trooper Hoy knew from his training
and experience that the route Valdivia was traveling, Michigan to New Jersey, is a
common drug trafficking route.
Trooper Hoy then went back to his patrol cruiser and ran a records check, as is
his custom, while completing the warning paperwork for the illegal lane change. Trooper
Hoy also contacted a State Police K-9 Unit to respond to the scene. The record check
revealed that Valdivia had been previously charged in Florida with possession with
intent to deliver.
54
Trooper Hoy returned to Valdivia’s vehicle, asked him to exit the vehicle,
explained the warning, and returned Valdivia’s identification documents. Trooper Hoy
then inquired if he could ask some follow-up questions about Valdivia’s travel plans.
Valdivia changed his story when answering these additional questions. He now stated
that he had flown to Detroit to visit a friend and had left early the next morning. He also
said that when he arrived at the Detroit airport, all of the rental companies were closed,
which was why he rented the vehicle in Ann Arbor. Trooper Hoy felt that Valdivia’s
responses were unusual, because one does not normally visit a friend for such a short
time, most of which would be spent sleeping. Trooper Hoy also found it difficult to
believe that all rental companies would have been closed at a large airport such as
Detroit.
The troopers requested and received defendant’s consent to search the vehicle.
Trooper Hoy observed a variety of suspicious details during the traffic stop.
Valdivia behaved nervously during the traffic stop, and his hands were visibly shaking.
He claimed that he was about to run out of gas, an odd remark given that he had just
passed two exits with gas stations. His explanation for why he was driving on I-80 was
unusually elaborate. He said that he was flying from Florida to New Jersey, but his flight
was rerouted to Detroit, Michigan, and he missed his connecting flight to New Jersey.
All car rental companies in Detroit were closed (a detail that Trooper Hoy found unusual
due to the size of Detroit’s airport), so he had to travel to Ann Arbor, Michigan to rent a
vehicle to drive to New Jersey. He was driving a rental vehicle one way, a common
tactic of drug smugglers. Inside the car, there were two large boxes wrapped in
Christmas paper in the backseat. Strangely, the packages were unmarked and
undamaged, even though they presumably had been on board Valdivia’s flight to
Detroit. Drug smugglers, Trooper Hoy added, often wrap drugs in Christmas paper
around the holidays in an effort to blend in with innocent motorists. Trooper Hoy
discovered during a criminal history check that Florida authorities had charged Valdivia
with selling drugs. Finally, when Trooper Hoy asked Valdivia to exit the vehicle to
receive a warning for his turn signal violation, Valdivia changed his story. He now stated
that he flew to Detroit (not New Jersey) to meet a friend and then left the following
morning to rent a vehicle to drive to New Jersey. This combination of factors provided
reasonable suspicion to detain Valdivia and continue an investigation into possible
criminal wrongdoing.
Valdivia, 145 A.3d 1156 (Pa. Super. 8/19/16)
appeal granted [on other grounds], No. 9 MAP 2017 (2/1/17)
Defendant next alleges that once Trooper DeLuca told Kyles and defendant that
they were free to leave, any facts garnered during the course of the valid vehicular stop
could not be used to justify the continued detention. In this respect, defendant relies
upon our panel decision in Commonwealth v. Ortiz, 786 A.2d 261 (Pa. Super. 11/5/01).
While Ortiz does stand for the proposition advanced by defendant, we conclude that it
was wrongly decided.
The language [from Ortiz] implies that once an officer confers the “free-to go
language,” he may not rely upon facts ascertained prior to conferral of that verbiage to
55
establish reasonable suspicion. This construction was assigned to Ortiz in
Commonwealth v. Johnson, 833 A.2d 755 (Pa. Super. 9/25/03).
Thus, under Ortiz and Johnson, the current law in Pennsylvania provides that
once a police officer informs a defendant that he is free to leave after completing a valid
traffic stop, any facts ascertained during that initial traffic stop are nullified and may not
be utilized to support a continued detention, even if the facts discovered during the
processing of the traffic stop support the existence of reasonable suspicion that the
defendant is engaging in illegal activity.
We conclude that Ortiz’s decision is improper for two distinct reasons. First, it is
simply analytically inconsistent for a defendant to argue that “free-to-go” language does
not step down the police interdiction from a seizure to a mere encounter, but that if an
officer does utter those words, all facts ascertained lawfully by the police officer during
the traffic stop are erased for purposes of analyzing whether the continued detention
was permissible. If the seizure achieved through the traffic stop never ended, and if
thereby the defendant remained subject to a continuing detention when the traffic
infraction was processed, then there is no reason why the facts observed by the officer
during the constitutionally-proper traffic stop cannot be used to justify the continuation of
the detention. If it is a continuing detention for the defendant, despite the free-to-go
language, then by the same logic, it is a continuing detention for purposes of the police
investigation. Additionally, we believe that the approach adopted by Ortiz conflicts with
appropriate constitutional analysis.
The Ortiz position has not been accepted in the federal system. It is also not
supported by the reasoning of Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903
(8/24/00). Therefore, we overrule Ortiz and Johnson to the extent that they hold that
facts gathered during a valid traffic stop cannot be utilized to justify an investigatory
detention occurring after a police officer has indicated that a defendant is free to leave.
Kemp, 961 A.2d 1247 (Pa. Super. 11/26/08) (en banc)
To the extent that Ngyuen, 116 A.3d 657 (Pa. Super. 4/27/15), can be interpreted
as applying the type of limited reasonable suspicion assessment struck down in Kemp,
we are clearly bound to follow the en banc decision in Kemp, rather than the three-judge
panel decision in Ngyuen. We also note that the Ngyuen panel did not distinguish
Kemp, or cite any decision by the United States Supreme Court, the Pennsylvania
Supreme Court, or an en banc panel of this Court that could be interpreted as overruling
or abrogating Kemp. Rather, the only decision relied upon by the Ngyuen panel was this
Court’s three-judge panel decision in Jones, 874 A.2d 108 (Pa. Super. 4/25/05). See
Ngyuen, 116 A.3d at 668 (quoting Jones, 874 A.2d at 117). However, Jones was
decided prior to Kemp, and also applied an interpretation of Freeman, 563 Pa. 82, 757
A.2d 903 (8/24/00), that was expressly renounced by the Kemp panel. Accordingly,
defendant’s reliance on Ngyuen is misplaced and we are bound to follow Kemp.
Interest of A.A., 149 A.3d 354 (Pa. Super. 10/18/16)
Link to: Stevens, P.J.E.concurring
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On January 9, 2015, Sergeant Christopher Still of the Halifax Area Regional
Police Department was on routine traffic patrol in the area of Market and North Second
Streets. Sergeant Still observed a black sedan straddling the center yellow lines and
decided to follow the vehicle. While following the vehicle, he conducted a check on the
registration and found that it was expired. Sergeant Still then conducted a traffic stop on
the vehicle based on the expired registration.
Sergeant Still testified that at the time of the traffic stop, defendant was the
driver, and Mr. Lewis was the passenger. When Sergeant Still requested the vehicle
information, he observed defendant to be confused and her movements to be sluggish.
Defendant provided Sergeant Still with a driver's license and an expired registration
card, but failed to provide proof of financial responsibility. While completing a citation for
the expired registration and a warning for the failure to provide proof of financial
responsibility, Sergeant Still observed Mr. Lewis making furtive movements around the
passenger area. He also observed Mr. Lewis briefly open the passenger door and reclose it. Sergeant Still returned to the vehicle and issued defendant the citation and
warning. At that time, Sergeant Still testified that he smelled an odor of marijuana
coming from the interior of the vehicle. After returning defendant's documents, Sergeant
Still bid defendant goodnight and broke contact.
Sergeant Still subsequently re-engaged appellant and began to ask if there was
anything illegal in the car that he should know about. Appellant cut him off and said "no"
and then asked if Sergeant Still wanted to search the vehicle. Sergeant Still responded
that he would like to search the vehicle. He testified that Mr. Lewis then voluntarily
stated that there was a marijuana pipe in the car and that the two of them had smoked
marijuana prior to driving.
Aside from the traffic violations that compelled Sergeant Still to conduct the traffic
stop, the sergeant observed, during the course of the stop, that defendant appeared
“confused and her movements were sluggish.” When Sergeant Still returned to his
vehicle to process the paperwork supplied by defendant, he noticed that the passenger,
Mr. Lewis, was making furtive movements around the passenger area compartment of
the vehicle and [Mr. Lewis] also had opened up the passenger door briefly and reclosed it. When the sergeant returned to the driver’s side window of defendant’s car, he
smelled an odor of marijuana coming from the interior of the vehicle. Upon smelling the
marijuana, Sergeant Still suspected that defendant and Mr. Lewis may have been
smoking marijuana in the vehicle and driving, which constituted the criminal offense of
“impairment behind the wheel” or, in other words, DUI. Based on these facts, it was
reasonable for Sergeant Still to suspect that defendant was engaged in criminal activity.
Interest of A.A., 149 A.3d 354 (Pa. Super. 10/18/16)
Link to: Stevens, P.J.E.concurring
PROBABLE CAUSE: DESCRIPTION, PROXIMITY
Just minutes after the robbery, Officers Goshert and Thompson encountered
defendant walking with a group of other young African American males within two
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blocks of the area where the complainant had been robbed. Matching the description
the complainant had provided police, two of the individuals were wearing dark jackets
and tan pants and one of them wore a red, hooded sweatshirt. They began to disperse
as the officers advanced. In addition, upon seeing the officers, defendant and another
fled on foot in opposite directions. Defendant hid under a car in effort to avoid police
detection.
In light of these facts, the defendant court did not err in denying defendant’s
suppression motion on the basis that he had been unlawfully seized. Defendant and his
companions matched the race of the suspects, were traveling in a group and were
dressed as described in the flash broadcast over police radio. Officers observed
defendant and his cohorts just about two blocks away within minutes of the crime. In
addition, defendant acted evasively when he saw the police vehicle.
J.G., 145 A.3d 1179 (Pa. Super. 8/26/16)
Link to: Lazarus, J. concurring and dissenting
PROHIBITED OFFENSIVE WEAPON
Two juveniles rummaged through tall grass behind an abandoned building.
Defendant bent over and arose with a shotgun which he slipped down his right pants
leg. Defendant borrowed his friend’s sweatshirt which defendant than wore to conceal
the weapon. The stock end of the shotgun had been altered and the barrel of the
shotgun was eighteen and nine-sixteenth inches long, and the overall length of the
shotgun was thirty-one and three-quarter inches.
Defendant contended that he could not be adjudicated delinquent under the
general prohibition against possession of a firearm altered for concealment where there
was a more specific provision in the statute governing sawed-off shotguns that did not
subject him to criminal liability. Defendant also argued that, by specifically defining only
sawed-off shotguns with barrels less than eighteen inches in length as offensive
weapons, the legislature intended to exclude sawed-off shotguns with longer barrels
from the definition of offensive weapons entirely.
Defendant was charged with the delinquent act of possessing a firearm specially
adapted for purposes of concealment in violation of § 908, and adjudicated delinquent
based on that conduct. While the weapon happened to be a shotgun with a shortened
barrel, it also was a firearm with the stock end altered to reduce its overall length.
Defendant does not dispute that the shotgun as adapted met the definition of “a firearm
specially made or specially adapted for purposes of concealment.” 18 Pa.C.S. § 908.
18 Pa.C.S. § 908(c) prohibits the possession of a “firearm specially made or
specially adapted for concealment. . .” A firearm for purposes of this section is defined
as “Any weapon which is designed to or may readily be converted to expel any
projectile by the action of an explosive or the frame or receiver of any such weapon.”
That is a different definition of “firearm” than the definition found at 18 Pa.C.S. § 6102.
The legislature clearly intended to include a more expansive definition of a firearm for
purposes of the offensive weapons statute.
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Section 908 was intended to establish a prohibition very nearly absolute aimed at
the implements or weapons themselves, whether enumerated or falling within the
general definition which are offensive by nature. The offensive weapon statute lists a
number of offensive weapons. Certain items are offensive weapons per se: bombs,
machine guns, daggers, stun guns, and metal knuckles. Others are defined as offensive
weapons when they have certain characteristics, such as a sawed-off shotgun with a
barrel less than eighteen inches, a firearm specially made or altered for purposes of
concealment or silent discharge, and a knife, dagger or cutting instrument with a blade
that is exposed by switch, push button, or some other automatic mechanism. The
definition of an offensive weapon also contains a catchall provision that encompasses
any “other implement for the infliction of serious bodily injury which serves no common
lawful purpose[,]” which makes it apparent that the enumerated items are not intended
to be an exhaustive list. 18 Pa.C.S. § 908(c). The legislature clearly intended the statute
to be expansive in its reach.
The officers observed defendant and his cohort looking through the tall grass, as
if searching for an item. Defendant picked up the shotgun with the shortened stock and
barrel and loaded it with 20-gauge birdshot that he already had in his possession. The
Commonwealth cites the reasoning of the trial court: “The [juveniles] would have us
imagine that it was just pure happenstance that one or two of them would have shells
on their person to load a 20 gauge shotgun. That confluence of happenstance is beyond
any reasonability.” Defendant then hid the weapon in his pant leg and put on a jacket to
further conceal the firearm.
We agree with the trial court that the Commonwealth adduced sufficient evidence
to prove the requisite mens rea. One can reasonably infer from the testimony of the
officers that defendant and A.E. knew where the sawed-off shotgun was hidden, and
that they intentionally retrieved it, loaded it, and took possession of it.
Interest of R.A.F., 149 A.3d 63 (Pa. Super. 9/21/16)
appeal denied, ___ Pa. ___, ___ A.3d ___ (3/22/17)
Defendant’s son was suspended from elementary school for three days for
bringing a knife to school. On September 4, 2014, at 2:45 PM, defendant and his wife
attended a meeting at the school to discuss the disciplinary action with school
administrators. Defendant arrived at the meeting directly from his job as a carpenter.
When defendant arrived at the conference, he had in his pocket a 3-4 inch
pocketknife that he uses not only at work as a carpenter, but also to sharpen pencils,
whittle sticks with his sons, and “open tuna cans when my wife forgets to pack me a
tuna can opener.”
During the meeting, defendant removed the knife from his pocket and placed it
forcefully on a conference table around which the meeting attendees were seated and
asked whether he would be arrested. Following the meeting, on September 14, 2014,
the police charged defendant with Possession of Weapon on School Property and other
offenses.
59
18 Pa.C.S. § 912(c) (emphasis added) sets forth the statutory defense: It shall be
a defense that the weapon is possessed and used in conjunction with a lawful
supervised school activity or course or is possessed for other lawful purpose.
Contrary to the trial court’s conclusion, the “other lawful purpose” language does
not restrict the defense provided in Section 912(c). Instead, the phrase does just the
opposite: it expands the defense to include any additional or different lawful reason not
otherwise mentioned in the first clause of Section 912(c), regardless of whether it is
school-related. To conclude otherwise, would make “possessed for other lawful
purpose” redundant with “possessed and used in association with a lawful supervised
school activity or course.”
We conclude that the language of Section 912(c), though broad, is unambiguous,
and that defendant possessed his pocketknife on school grounds for “other lawful
purpose.”
Goslin, ___ A.3d ___ (Pa. Super. 2/16/17 (en banc)
PROTECTION FROM ABUSE
J.N.K., defendant's former wife, initiated a protection from abuse action against
defendant on or about September 26, 2011. A final protection from abuse order was
entered on May 18, 2012 (the "PFA Order"). The PFA Order provided that defendant
"shall not contact [J.N.K.], or any other person protected under this order, by telephone
or by any other means, including through third persons." The only exception to the
communication restriction in the PFA Order was found in paragraph 5, which provided
that "the parties may have text message contact for the purposes of custody scheduling
only, without said contact constituting violation of this order. All other terms of this order
remain in effect during such contact." On May 22, 2013, the parties entered into a
separate custody consent order, paragraph 6 of which provided that "the parties may
have text communication with one another for legitimate issues involving the children."
On June 21, 2013, J.N.K. and defendant met at the Sheetz convenience store in
Kittanning, Pennsylvania for a custody exchange of the parties' two children. The
children exited J.N.K.'s car and walked to defendant's vehicle. The parties were parked
approximately four vehicle widths apart. Defendant then asked one of the children to
ask J.N.K. whether she had spoken with her lawyer about matters concerning the sale
of the parties' former marital residence. The child went back to J.N.K.'s car, spoke with
her about the matter, then returned to defendant's vehicle. J.N.K. then exited her vehicle
and began speaking to defendant about the house. After the parties' exchange,
defendant went into the store with the children. Based on his indirect communication
with J.N.K., through the child, defendant was charged with indirect criminal contempt.
On or about July 13, 2013, defendant sent J.N.K. a text message, again with
regard to the marital residence. It read as follows:
I also sent an email to your lawyer today about the house on 4th
Avenue. The bank said if you get paperwork done I told [your
lawyer] about they will take your name off. So if you could please
60
talk to her about it, me and the girls can start moving into it.
Thanks. I will tell them. They said they love you.
Based on the contents of the text message, defendant again was charged with indirect
criminal contempt.
Defendant claims that his intent at the Sheetz store was to communicate
regarding the living arrangements and possible relocation of the parties' children.
However, the trial court concluded defendant's intent was not to discuss matters
involving the children's well-being or custody schedule, but instead was to discuss with
J.N.K. the outstanding issues regarding their jointly-held real property and to impress
upon her defendant's desire to come to a quick resolution. We reach the same
conclusion. The trial court found J.N.K.'s testimony more credible and we are not
permitted to usurp the trial court's credibility determinations when the record supports
those determinations. Here, when viewed in the light most favorable to the
Commonwealth, the testimony demonstrates that defendant's intent was to shore up
financial plans for the former marital residence. Although, at the time of the
communication, defendant's purported goal was to move into the home and eventually
relocate the parties' children, the children's interests were remote and tangential. We
agree with the trial court that defendant communicated with wrongful intent through a
third party. Thus, there was ample support in the record to establish each element of
indirect criminal contempt.
The trial court determined the text message did not relate genuinely to the
children, but instead "was [sent] to discuss with [J.N.K.] the outstanding issues
regarding their jointly-held real property and to impress upon her [defendant's] desire to
come to a quick resolution." We agree and discern no error. J.N.K. testified that the sale
of the joint property was related to the parties' divorce. Defendant was prodding
J.N.K. to move faster with "the paperwork" to transfer title on the house. While
relocation with the children potentially loomed on the horizon, the main thrust of the
communication was financially centered and focused upon the transfer of marital
property. Financial issues surrounding the house had to be resolved before relocation
could be considered or even discussed.
Moreover, defendant knew that, at the time of the subject communications,
J.N.K. was represented by an attorney. As previously stated, J.N.K. testified, regarding
the communication sent through the parties' oldest daughter, that defendant said, "You
haven't talked to your attorney yet. Why haven't you talked to your attorney[?]"
According to the subsequent text message to J.N.K., defendant submitted paperwork
regarding the sale of the marital home to J.N.K.'s attorney. He then communicated this
fact to J.N.K. This demonstrates that defendant knew to communicate with J.N.K.'s
attorney, but contacted J.N.K. anyway when financial matters surrounding the house
were progressing too slowly for him. Thus, we cannot discern a legitimate reason for the
subject communication, other than to harass or annoy J.N.K. Accordingly, defendant's
communication satisfies the element of wrongful intent under the indirect criminal
contempt statute. Hence, we affirm defendant's conviction for indirect criminal contempt
based upon text message communication.
DISSENTING OPINION: First, in regard to the incident at Sheetz, J.N.K. testified
that defendant was “asking about what was going on with [another] house [the parties'
jointly owned] and that [defendant] wanted to move into it” and that defendant
61
“approached [her] in regards to the sale of the other house." This testimony does not
establish that defendant's communication with J.N.K. was abusive, harassing, or
threatening. Indeed, J.N.K. stated that defendant told her he did not want to move into
the other house if it were going to be a PFA violation, thus indicating that defendant's
intent in communicating with her was to avoid violating the PFA order. Moreover, the
infraction was de minimis and clearly non-threatening, as J.N.K. engaged in the
conversation with defendant rather than leaving the scene. Therefore, I would conclude
that the evidence was insufficient to demonstrate that defendant acted with wrongful
intent to support his conviction of Indirect Criminal Contempt.
The court found that defendant's purpose in sending the July 13 text message
was to discuss with J.N.K. the outstanding issues regarding their jointly-held real
property and to impress upon her defendant's desire to come to a quick resolution.
Again, this message was not sent to abuse, harass, stalk, or threaten J.N.K., and a text
message communication (which J.N.K. was free to ignore) is even more de minimis an
infraction than the face-to-face exchange at the Sheetz store.
Furthermore, I also believe that the trial court's interpretation of defendant's
message completely ignores his statement, "So if you could please talk to her about it,
me and the girls can start moving into it." (emphasis added). Reading defendant's
message as a whole demonstrates that his purpose in communicating with J.N.K. was
to discuss the legitimate issue of their children's housing. Such communication was
permissible under the parties' custody consent order. Therefore, I would reverse
defendant's conviction for this communication as well.
Taylor, 137 A.3d 611 (Pa. Super. 4/11/16) (en banc)
Link to: Bender, J. dissenting
In early October of 2015, the plaintiff ended her one and one-half year intimate
relationship with defendant because of what she termed "his mental abuse and
everything he has absolutely put me through, especially in the last six months." She
filed an emergency PFA petition on October 13, 2015, and, on October 26, 2015,
obtained a final PFA order against defendant. The order directed that, for the ensuing
three years, defendant was prohibited from having any contact with plaintiff, either
directly or indirectly, at any location. Moreover, the order directed that "[Defendant] may
not post any remark(s) and/or images regarding plaintiff, on any social network(s),
including, but [not] limited to, Facebook, Myspace, Twitter, or any other electronic
networks."
The day following entry of the final PFA order, defendant authored a series of
posts on Facebook alluding to a nameless, former paramour, his disapproval of how
she ended their relationship, and the emotions he was experiencing because of the
unfair treatment he believed he received from both her and the justice system.
Plaintiff testified about her fearful reaction to defendant's posts, which were
entered into evidence during her testimony. Though the posts never identify her by
name, plaintiff was certain she was the subject of defendant's commentary. The use of
personal pet names, displaying the image of their shared tattoo, discussing relationship
troubles, criticizing the justice system and how women abuse it, and referencing the
62
"three years" she would have "without [him] taking care of her" all pertained to her and
the three-year duration of the PFA order. Plaintiff testified that, based on defendant’s
mental health history, she feared for her physical safety based upon defendant’s post,
“God only knows what I will do next.”
We find ample evidentiary support for the trial court's determination that
defendant possessed the wrongful intent to violate the PFA. The proscription against
social media posts by defendant is not content-based, clearly advances an important
governmental interest unrelated to speech, and is narrowly-tailored to advance this
interest. It is undisputed that the proscription, itself, is limited to social and electronic
network remarks "regarding [p]laintiff." As written, therefore, the proscription is not
concerned with the content of defendant's speech but with, instead, the target of his
speech, namely, plaintiff, whom the court has already deemed the victim of his abusive
conduct. There is no violation of defendant’s free speech rights under either the federal
or state constitution.
Lambert, 147 A.3d 1221 (Pa. Super. 9/7/16)
RAPE SHIELD LAW
Because evidence that the complainant made prior false sexual assault
allegations does not concern the complainant's past sexual conduct, and does not
impugn the complainant’s reputation for chastity, the Rape Shield Law does not prohibit
such evidence. However, this determination does not end our inquiry as to the
admissibility of the false sexual assault allegations; we must address whether the
testimony is relevant and material under the rules of evidence.
Schley, 136 A.3d 511 (Pa. Super. 2/19/16)
RECEIVING STOLEN PROPERTY
On May 19, 2013, Officers Christopher Dinger and Brett Sneeringer intervened
in a domestic dispute involving Robinson. The officers were informed that Robinson was
currently carrying a firearm in his pocket. Officer Dinger testified that he then
approached Robinson and asked if he had any weapons on his person, to which
Robinson "just froze where he stood" and "stared at [the officer] stone-faced." Officer
Dinger conducted a pat down search of Robinson's exterior for weapons, at which time
he felt a large revolver in Robinson's left front coat pocket. Officer Dinger held the
revolver tightly through the jacket and asked Robinson if he had a permit to carry the
weapon. Robinson again offered no response, remaining "stone-faced" and just stood
"without moving or saying anything". Officer Sneeringer handcuffed Robinson and
Officer Dinger removed a loaded .357 Magnum revolver, manufacturer's serial number
140594, from his left front coat pocket. The gun had been stolen sometime in the past
three years.
63
The Commonwealth had the burden to establish either that Robinson knew the
firearm in question was stolen, or believed that it had probably been stolen. Mere
possession of stolen property, without more, is not sufficient circumstantial evidence to
support an inference of guilty knowledge. Proof that the goods were recently stolen,
however, may provide the jury with sufficient circumstantial evidence to support an
inference of guilty knowledge, since the circumstances of possession as presented by
the Commonwealth (the recency of the theft) suggest an explanation for the possession
(that the accused was the thief). A jury may infer guilty knowledge from evidence of
recency, which in turn may require the defendant to offer an alternative explanation for
his possession of the stolen item. It is the Commonwealth's circumstantial evidence of
guilty knowledge (recency) that compels the need for an explanation, since in the
absence of an explanation the jury may infer guilty knowledge beyond a reasonable
doubt based upon the Commonwealth's evidence. Even if the accused offers an
explanation, the jury may nevertheless find it unsatisfactory and reach a finding of guilty
knowledge based upon the recency of the theft.
Circumstantial evidence of guilty knowledge may include the place or manner of
possession, alterations to the property indicative of theft, the defendant's conduct or
statements at the time of arrest (including attempts to flee apprehension), a false
explanation for the possession, the location of the theft in comparison to where the
defendant gained possession, the value of the property compared to the price paid for it,
or any other evidence connecting the defendant to the crime.
This was not a recent theft. Additionally, none of the other recognized indicia of
knowledge of the stolen nature of the property is present. The handgun in Robinson's
possession was located in an unremarkable location (his coat pocket), and it had not
been altered in any way to conceal its stolen status, as the manufacturer's serial
number remained plainly visible. Robinson's conduct at the time of arrest likewise
provided no indicia of guilty knowledge, as he merely stared "stone-faced" in response
to Officer Dinger's inquiries, and he did not offer any false explanation for his
possession of the handgun or make any effort to flee apprehension.
Because the Commonwealth did not establish the recency of the theft and
provided no other circumstantial evidence of guilty knowledge, Robinson had no
obligation to offer any explanation for his possession of the handgun.
The trial court ruled that Robinson's failure to prove that he had "registered" his
ownership of the handgun was evidence that he knew that it was probably stolen. The
trial court's analysis is in error, in substantial part because it reflects a basic
misunderstanding of Pennsylvania law with respect to the sale of firearms and the
absence of any paperwork to demonstrate firearm ownership. Specifically, no
requirement exists under Pennsylvania law to obtain a license, permit, or other
permission to own a firearm, and the Commonwealth does not maintain a registry of
ownership of firearms. Robinson was charged, convicted, and sentenced for the crime
of carrying a firearm without a license, and he does not contest that conviction in this
appeal. Without more, however, this conviction does not implicate Robinson for the
separate crime of receiving stolen property.
The Commonwealth proved only that Robinson possessed a stolen handgun.
The Commonwealth did not introduce any evidence that would support a jury inference,
64
beyond a reasonable doubt, that Robinson knew or had reason to believe that the
handgun was stolen.
Robinson, 128 A.3d 261 (Pa. Super. 11/19/15) (en banc)
Officer Steven Kester, a police officer with the North Braddock Police
Department, stated that on Sunday, January 17, 2016 at approximately 8:10 p.m., he
and a fellow officer were on patrol when they came into contact with a Jeep SUV.
According to Officer Kester, he ran the license plate number of the Jeep SUV because
moments before, he had learned from the East Pittsburgh Police Department that a
Jeep SUV had been reported stolen.
Upon confirmation that the license plate on the vehicle matched that of the Jeep
SUV that was reported stolen, Officer Kester testified that they activated their lights and
siren on the police vehicle and attempted to stop the Jeep SUV. Officer Kester testified
that instead of stopping, the Jeep SUV “took off, went down a couple [of] streets, turned
down a back alley along the train tracks, lost control on a dirt road and smashed into a
tree.” Officer Kester added that once the vehicle took off, it traveled at a rate above the
speed limit for approximately one-half mile before the driver lost control of the Jeep SUV
on an icy, dirt road, which caused the vehicle to slide sideways and impact a tree headon. The collision with the tree then caused the Jeep SUV to be knocked down onto the
railroad tracks. Officer Kester testified that when the Jeep SUV crashed, the police car
was approximately twenty feet behind the Jeep forcing them to slam on their brakes.
Once the vehicle stopped, Officer Kester was able to determine the number of
occupants in the Jeep SUV vehicle because both the headlights of the police vehicle
and the overhead take down lights were extremely bright and illuminated the interior of
the Jeep SUV. Officer Kester saw three occupants “bail” out of the Jeep SUV from the
passenger side of the vehicle and flee the scene. Officer Kester stated he was pretty
sure that the individual behind the steering wheel was wearing a puffy, blue coat. This
person was also the last one to exit the vehicle. The other two occupants were wearing
black hoodies.
After a chase, the person in the blue coat, the defendant, P.S., surrendered to
the police. P.S. told Officer Kester that he (P.S.) had been at a friend’s home earlier
that evening, that the friend had called a “jitney” for him, and that this jitney was the
same vehicle in which he was riding when the police pulled up behind them. P.S. also
denied knowing the other two passengers in the vehicle.
The victim testified that her car had been stolen and that she had not given P.S.
permission to operate it. P.S. was identified by Officer Kester as the person who was
driving the car.
Issues: Was there sufficient proof that the recovered car was the victim’s car?
Was there sufficient proof that defendant was more than a passenger in the car and that
he knew the car was stolen?
While the victim could not remember her license plate number or the exact date
she contacted police, she confirmed that she had reported her car stolen. Officer Kester
testified that he confirmed that the license plate on the Jeep matched the license plate
on the car reported stolen.
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The fact that the person wearing the blue jacket (later identified as defendant)
was the last to exit the car, on the passenger side of the vehicle, was significant in
establishing the identity of the driver” because it would take the driver more time to exit
on the passenger side, because the front passenger had to exit first and the driver had
to climb over the console.
The vehicle was reported stolen, police confirmed it, and defendant was in
possession of it. While defendant claims he believed he was in a jitney, the trial court
was free to infer that was a false explanation for the possession, because defendant
was in fact driving. Moreover, defendant fled from police twice, initially in the vehicle
during the traffic stop and then later on foot when the car crashed. Based upon all
evidence, defendant was in possession of a stolen car and the trial court properly
inferred defendant’s guilty knowledge.
Interest of P.S., ___ A.3d ___ (Pa. Super. 3/17/17)
ROBBERY
Defendant, pretending to need assistance, induced the attendant in a parking lot
garage to open the door to the booth in which he was working. Defendant then forced
his way inside the booth, knocking the attendant to the side with his body. The attendant
ran away to seek help. While inside the booth, appellant obtained a plastic garbage bag
and filled it with keys from vehicles parked in the garage.
The attendant was entrusted with protecting the keys at issue. In order to gain
access to those keys, appellant deceived the attendant into unlocking and opening the
valet booth, and physically pushed past him. Despite fearing for his safety, the attendant
initially remained in the booth and attempted to dissuade appellant from taking the keys.
The attendant was not a mere observer of the crime in question. Rather, he had
exercised dominion, control, and possession over the keys when appellant took them in
his presence. These facts were sufficient to establish that appellant took property from
the attendant’s person.
The evidence supports the finding that appellant took the keys with force.
defendant gained entry to the valet-booth by using his body to physically remove the
attendant from the entrance. In so doing, appellant forcefully separated the attendant
from the keys under his protection.
Lloyd, 151 A.3d 662 (Pa. Super. 11/29/16)
This matter stems from then-seventeen year-old Gabriel Shull’s conduct during
the early morning hours of October 13, 2014, as he drove in Centre County smoking
marijuana with a former high school acquaintance, Paul Sepich.
At approximately 3:00 a.m., the two were driving in downtown State College as
23 year-old Penn State student Morgan Grego was walking home after she had
completed work at a local pub and stopped for groceries. Carrying grocery bags and her
purse, Grego elected to turn down less-traveled Calder Avenue in order to avoid
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walking by “the drunk students that normally take College Avenue” during the early
morning hours.
As she walked along Calder toward her residence on South Burrowes Street,
Grego noticed two men in a car pull out of a nearby parking deck, drive past her “a little
faster than what was appropriate,” and turn right onto South Burrowes. She did not think
anything of it at the time, and she continued to walk. Before Grego reached the corner,
however, Shull had exited his vehicle and intercepted her on the pretext that he needed
directions to a gas station.
Grego stopped and pointed the way to the convenience store where she had just
been, to which Shull replied “[o]kay, do you think you can spot me some money?”
Feeling uncomfortable, Grego answered “no” and attempted to walk away, but Shull,
with his hands remaining in his hoodie pocket, blocked her path. As Grego repeatedly
tried to walk around Shull, he continued to block her path in an increasingly aggressive
manner. Now frightened, Grego pushed Shull, but he remained in front of her. She
pushed harder, and, according to Grego, he “got really mad and kind of snapped and
came at me.” At that point, Shull grabbed for Grego’s purse with one hand and held her
body with the other.
“When he couldn’t separate me from any of my things, he just whipped me down
on the ground[,]” Grego testified. With Grego on her back, Shull reached down, grabbed
her by her hair, and dragged her as he walked in the direction opposite from her
destination. It was at this point that Grego looked up and saw a gun in Shull’s other
hand. Utterly panicked, Grego began to scream as Shull continued to drag her “like
luggage” without either looking down at her or saying anything for just under ten
seconds, Grego estimated, before a police car turned the corner.
Officer Adam Salyards of the State College Police Department was passenger in
his patrol car at the intersection of West College Avenue and South Burrowes Street at
approximately 3:00 a.m. when he and fellow officer, Officer Jeremy Gibson, heard what
Salyards described as a “bloodcurdling scream” from nearby. Sensing something was
very bad from the “worst scream” he had ever heard in his 13 years’ service, Officers
Salyards and Gibson turned down South Burrowes, where the officers immediately saw
Grego near the corner at Calder and a man, Shull, running away. The officers pursued
Shull approximately 200 feet onto New Alley where they saw him getting into the
driver’s side of a vehicle already occupied by a passenger. The officers used their patrol
car to block this vehicle and approached the vehicle on foot.
Officer Salyards encountered Sepich in the passenger seat and, seeing what
appeared to be a black semi-automatic handgun at Sepich’s feet, alerted Officer Gibson
of a gun and pulled Sepich out and down to the ground, where he handcuffed him,
performed a weapons frisk, and placed him under arrest. Officer Gibson did the same
with Shull. As the officers transported Shull and Sepich to the police station, they
received a dispatch stating a female called to report an armed man wearing a black
checkered shirt and dark jeans had just attacked her at Calder Street. Officer Salyards
advised the dispatch center that Officer Gibson and he had just arrested a suspect
observed fleeing the scene and matching the physical description perfectly. A
subsequent investigation of Shull’s vehicle revealed that the gun in question was, in
fact, a CO-2 powered BB gun made to replicate a real firearm.
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Grego agreed to provide a “show-up identification,” and Officer Ferron
transported her to the arrest scene, where Shull and Sepich were seated in the patrol
car. Without hesitation, Grego identified Shull as her assailant.
Defendant argued that Grego testified that in the seven to nine seconds Shull
assaulted her he issued no verbal threats, never pointed the gun at her or explicitly
referred to the gun, and never looked at her while he dragged her by her hair.
Additionally, Grego was unable to describe precisely how she ended up on her back.
Grego's account allowed the finder of fact to infer Shull acted with the intent to
place her in fear of serious bodily injury when he angrily responded to her defiant stance
against his attempt to restrain her. Specifically, Grego described how, under cover of
darkness on an isolated street, Shull reacted violently after she tried to shove him out of
her way, physically overwhelmed her, and aggressively dragged her by the hair while
clutching a gun--with finger on trigger-- directly over her face. According to Grego,
seeing the gun at this moment as she lay overpowered and helpless terrified her, and
she let out a series of screams described by two seasoned police officers as "bloodcurdling" and unlike any scream they had heard in their many years of service. Only
upon the arrival of police did Shull release Grego and run for his vehicle. When viewed
in a light most favorable to the Commonwealth as verdict winner, this evidence was
sufficient to prove the intent element of Section 3701(a)(1)(ii), as Grego's belief that
Shull was prepared to inflict serious bodily harm upon her was entirely reasonable
under the dire circumstance in which Shull placed her.
Shull, 148 A.3d 820 (Pa. Super. 9/13/16)
RULE 600
The Commonwealth issued subpoenas for the complainant on all the trial dates
in question, but Mr. Sampson failed to appear for reasons unattributable to the
prosecution. Indeed, even at the February 1, 2011, listing, when Sampson was in the
courthouse, he "didn't come willingly," but rather was "brought in by the detectives."
Shortly thereafter, the Commonwealth withdrew the assault charges. Although the
Commonwealth re-filed the charges in February or March 2011, it withdrew them again
on March 30, 2011.
ADA Frantz testified that he contacted Sampson's parole officer after the
February 1, 2011, listing from which Sampson absconded. He knew Sampson was
going to be picked up by State Parole, and asked Sampson's parole officer to let him
know when that happened so the Commonwealth could re-file the assault charges. Id.
at 40-41. ADA Frantz testified he had no recollection of the parole officer ever notifying
him that Sampson was in custody.
We agree with the trial court that the Commonwealth acted with due diligence
while the charges were pending against Dixon. ADA Frantz issued subpoenas directing
Sampson to appear in court, and when he did not do so, the prosecutor sent detectives
to bring him in. However, after Sampson expressed to ADA Franz that he did not want
to testify, and fled the courthouse, ADA Franz withdrew the assault charges.
Accordingly, because we find the trial court did not abuse its discretion in determining
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the Commonwealth acted with due diligence while the assault charges were pending
against Dixon, any purported lack of diligence on the part of the Commonwealth during
the time when the charges were withdrawn but before they were re-filed, is irrelevant for
Rule 600 purposes.
Dixon, 140 A.3d 718 (Pa. Super. 6/7/16)
appeal denied, ___ Pa. ___, ___ A.3d ___ (10/19/16)
SEARCH AND SEIZURE: BLOOD
Birchfield: A North Dakota state trooper, arrested Birchfield for driving while
impaired, gave the usual Miranda warnings, again advised Birchfield of his obligation
under North Dakota law to undergo BAC testing, and informed him, as state law
required, that refusing to take the test would expose him to criminal penalties. Birchfield
refused to let his blood be drawn. Birchfield was charged with and pled guilty to a
violation of the North Dakota statute imposing criminal penalties for refusing the blood
test.
Bernard: Minnesota officers arrested Bernard for driving while impaired. Back at
the police station, officers read Bernard Minnesota’s implied consent advisory, which,
like North Dakota’s, informs motorists that it is a crime under state law to refuse to
submit to a legally required BAC test. The officers asked Bernard to take a breath test.
After he refused, prosecutors charged him with test refusal. Bernard was convicted of
that offense.
Beylund: A North Dakota police officer arrested Beylund for driving while
impaired and took him to a nearby hospital. There he read Beylund North Dakota’s
implied consent advisory, informing him that test refusal in these circumstances is itself
a crime. Unlike the other two petitioners in these cases, Beylund agreed to have his
blood drawn and analyzed. A nurse took a blood sample, which revealed a blood
alcohol concentration of 0.250%, more than three times the legal limit. Given the test
results, Beylund’s driver’s license was suspended for two years.
The Fourth Amendment permits warrantless breath tests incident to arrests for drunk
driving. The impact of breath tests on privacy is slight, and the need for BAC testing is
great. We reach a different conclusion with respect to blood tests. Blood tests are
significantly more intrusive, and their reasonableness must be judged in light of the
availability of the less invasive alternative of a breath test. There is no satisfactory
justification for demanding the more intrusive alternative without a warrant.
Because breath tests are significantly less intrusive than blood tests and in most cases
amply serve law enforcement interests, we conclude that a breath test, but not a blood
test, may be administered as a search incident to a lawful arrest for drunk driving. As in
all cases involving reasonable searches incident to arrest, a warrant is not needed in
this situation.
Having concluded that the search incident to arrest doctrine does not justify the
warrantless taking of a blood sample, we must address respondents' alternative
argument that such tests are justified based on the driver's legally implied consent to
submit to them. It is well established that a search is reasonable when the subject
69
consents, and that sometimes consent to a search need not be express but may be
fairly inferred from context. Our prior opinions have referred approvingly to the general
concept of implied-consent laws that impose civil penalties and evidentiary
consequences on motorists who refuse to comply. Petitioners do not question the
constitutionality of those laws, and nothing we say here should be read to cast doubt on
them.
It is another matter, however, for a State not only to insist upon an intrusive blood
test, but also to impose criminal penalties on the refusal to submit to such a test. There
must be a limit to the consequences to which motorists may be deemed to have
consented by virtue of a decision to drive on public roads. We conclude that motorists
cannot be deemed to have consented to submit to a blood test on pain of committing a
criminal offense.
Birchfield was criminally prosecuted for refusing a warrantless blood draw, and
the search he refused cannot be justified as a search incident to his arrest or on the
basis of implied consent. Birchfield’s conviction must be reversed.
Bernard was criminally prosecuted for refusing a warrantless breath test. That
test was a permissible search incident to Bernard’s arrest for drunk driving, an arrest
whose legality Bernard did not contest. Accordingly, the Fourth Amendment did not
require officers to obtain a warrant prior to demanding the test, and Bernard had no right
to refuse it.
Beylund was not prosecuted for refusing a test. He submitted to a blood test after
police told him that the law required his submission, and his license was then
suspended and he was fined in an administrative proceeding. The North Dakota
Supreme Court held that Beylund’s consent was voluntary on the erroneous assumption
that the State could permissibly compel both blood and breath tests. We leave it to the
state court on remand to reevaluate Beylund’s consent given the partial inaccuracy of
the officer’s advisory.
Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed.2d 560 (6/23/16)
Pennsylvania consequences of Birchfield v. North Dakota
Pennsylvania has a criminal sanction for breath/blood test refusal.
Sentence enhancement: 75 Pa.C.S. § 3804(c)
We hold that, pursuant to Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct.
2160, 195 L.Ed.2d 560 (6/23/16), in the absence of a warrant or exigent circumstances
justifying a search, a defendant who refuses to provide a blood sample when requested
by police is not subject to the enhanced penalties provided in 75 Pa.C.S. §§ 3803-3804.
We emphasize that our holding does not prohibit a driver from being subjected to
enhanced penalties under sections 3803 and 3804 for refusing to provide a breath
[sample].
Giron, ___ A.3d ___ (Pa. Super. 1/31/17)
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Penn DOT has revised the DL-26 into separate breath test and blood test versions.
The blood test version omits any warning of a criminal penalty.
Does “implied consent” permit a warrantless blood test?
Issue not decided by Missouri v. McNeely.
No application to license suspension proceedings.
Regula v. [Penn DOT], 146 A.3d 836 (Pa. Cmwlth. 9/6/16)
Boseman v. [Penn DOT], ___ A.3d ___ (Pa. Cmwlth. 3/17/17)
A police officer made a lawful drunk driving arrest of Myers at 3:30 pm. The
officer was of the opinion that Myers was in need of medical attention. Myers was
promptly transported to a hospital. Myers was given drugs which rendered him
unconscious at 4:40 pm. The police department’s chemical testing officer did not arrive
at the hospital until 4:45 pm. When he could not communicate with Myers, the officer
requested that the hospital draw blood from Myers. The warrantless blood draw
occurred at 5:01 pm.
Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552, 185 L.Ed.2d 696 (4/17/13),
requires a search warrant or exigent circumstances before blood may be withdrawn
from a motorist without his consent. Because police did not act pursuant to the implied
consent law until 4:45 p.m., after Myers had been rendered unconscious by an
intervening cause that occurred subsequent to his DUI arrest and transport to the
hospital, we conclude McNeely controls here. Further, we agree with the trial court that
the Commonwealth failed to justify the failure to obtain a warrant prior to the 5:01 p.m.
blood draw.
Distinguishing: Keller, 823 A.2d 1004 (Pa. Super. 5/5/03), as a case which was
decided pursuant to 75 Pa.C.S. § 3755 (hospital’s own determination of probable
cause).
Myers, 118 A.3d 1122 (Pa. Super. 6/15/15)
appeal granted No. 7 EAP 2016 (granted 2/3/16) (argued 9/14/16)
Sergeant Kimberly Brown of the Cumru Township Police Department responded
at 6:31 p.m. to a single vehicle accident at 601 Philadelphia Avenue, near Cumru
Elementary School. When Sergeant Brown arrived at the scene around 6:36 p.m., EMS
was already there, treating Defendant, who was the unresponsive, male driver. EMS
then took defendant to Reading Hospital for emergency medical care and treatment.
Sergeant Brown learned from witnesses to the accident that the vehicle had been
traveling eastbound on Philadelphia Avenue when it drove across the westbound lane,
went off the road, and struck a tree and utility pole. Witnesses stated the vehicle "did not
appear to have a reason to drive off of the roadway." Witnesses also described the
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driver as "out of it" and "pale." Police were able to identify defendant through vehicle
registration.
In plain view inside the vehicle, Sergeant Brown noticed five blue wax paper
bags and the bottom of a cut-off prescription bottle on the floor of the vehicle near the
driver's seat. The prescription bottle contained residue consistent with liquid added to
heroin and used in the injection of hypodermic needles. Another officer saw a
hypodermic needle on the floor of the front passenger side of the vehicle.
Sergeant Brown went directly to Reading Hospital, where she requested a
sample of defendant's blood. Although police now had probable cause, defendant was
not yet under arrest. Defendant was unconscious, and Sergeant Brown could not read
the Implied Consent DL-26 form to defendant. Defendant's blood was drawn at 7:59
p.m.; the results indicated the presence of several Schedule I controlled substances in
defendant's blood.
In contrast to Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552, 185 L.Ed.2d
696 (4/17/13), here defendant was involved in a motor vehicle accident and removed,
unconscious, from the scene by ambulance for emergency medical treatment, thus
triggering Section 3755. Defendant was not under arrest, so he had no right to refuse
the blood test under Pennsylvania's Implied Consent Statute. See Riedel, 539 Pa. 172,
651 A.2d 135 (12/1/94). While defendant was at the hospital, police investigated the
accident and uncovered probable cause to believe a DUI was involved. Given the
automobile accident and the probable cause to suspect DUI, police were allowed to
request and receive blood test results from hospital personnel without a warrant. See 75
Pa.C.S. §§ 1547, 3755; Riedel, supra; Barton, 456 Pa. Super. 290, 690 A.2d 293
(2/27/97). Because McNeely involved only the "exigent circumstances" exception to the
warrant requirement, it is not dispositive of the present case.
In contrast to Myers, 118 A.3d 1122 (Pa. Super. 6/15/15), defendant could not
claim the explicit right that a driver, who is under arrest for DUI, has to refuse to consent
to chemical testing. See Eisenhart, 531 Pa. 103, 611 A.2d 681 (6/2/92). While
defendant was already removed to the hospital, police investigated the accident and
uncovered probable cause to believe a DUI was involved. Given the automobile
accident and the probable cause to suspect DUI, the police had statutory authority to
request and receive blood test results from hospital personnel without a warrant. See 75
Pa.C.S. §§ 1547, 3755; Riedel, supra; Barton, supra. Thus Myers is not dispositive of
the present case.
Finally, defendant was unconscious and unresponsive at the scene of the
accident. The Pennsylvania Supreme Court has refused to "reformulate the law to grant
an unconscious driver or driver whose blood was removed for medical purposes the
right to refuse to consent to blood testing," so defendant did not have the right to refuse
consent in this case in any event. See Riedel, supra at 185, 651 A.2d at 142. Unlike the
McNeely and Myers cases, the interplay between the law on implied consent and the
law on the reports by emergency room personnel law in the instant case allowed for
defendant's warrantless blood draw and release of the results. See Barton, supra at 296
(citing Riedel, supra at 180, 651 A.2d at 139-40) (referring to "statutory scheme" that
implies consent of driver to undergo chemical testing and requires hospital personnel "to
withdraw blood from a person, and release the test results, at the request of a police
officer who has probable cause to believe the person was operating a vehicle while
72
under the influence"). Because defendant was involved in a motor vehicle accident, was
unconscious at the scene and required immediate medical treatment, was not under
arrest, and remained unconscious when the blood tests were administered, the
warrantless blood draw was permissible. Therefore, we hold the court erred in
suppressing the results of defendant's blood test.
March, ___ A.3d ___ (Pa. Super. 1/26/17)
appeal pending, No. 128 MAL 2017 (filed 2/27/17)
SEARCH AND SEIZURE: CONSENT
On December 12, 2013, Troopers Hoy and Long were traveling east bound in a
marked patrol cruiser on Interstate 80. The troopers were following a white Dodge
Caravan with a Michigan license plate in the left hand lane. Trooper Hoy observed the
vehicle quickly move from the left lane to the right lane without using a turn signal, at
which time Trooper Long immediately activated his overhead lights and initiated a traffic
stop. Defendant did not challenge the validity of the stop.
Both Troopers Hoy and Long exited their police cruiser and Trooper Hoy
approached the vehicle from the passenger side while Trooper Long stood behind the
vehicle as backup. As Trooper Hoy approached the vehicle, he noticed two large boxes
wrapped in Christmas paper and a suitcase in the cargo area of the vehicle. Trooper
Hoy testified that drug smugglers often wrap drugs in Christmas paper around the
holidays in an effort to blend in with innocent motorists.
Trooper Hoy asked the driver (Valdivia) for his license, registration, and proof of
insurance. Valdivia gave Trooper Hoy a license and rental agreement and stated that
the vehicle was a rental. As Valdivia produced the documents, the trooper noticed that
Valdivia’s hands were shaking, and that he seemed nervous. Valdivia stated that he
needed to pull off and get gas. Trooper Hoy found this strange because gas had been
available at two exits that Valdivia had just passed.
Trooper Hoy asked Valdivia about his travel plans. Valdivia responded that he
was flying from Fort Lauderdale, Florida to New Jersey, but his flight had been re-routed
to Detroit, Michigan, and he had to rent a vehicle because he had missed his
connecting flight to New Jersey. Trooper Hoy found it strange that the packages in the
cargo area were unblemished, even though they presumably had been part of Valdivia’s
belongings on his flight from Florida. Trooper Hoy noticed from the vehicle information
that Valdivia rented the car in Ann Arbor, Michigan, not Detroit, Michigan as he had
stated, and that the rental was for a one way trip. Trooper Hoy knew from his training
and experience that the route Valdivia was traveling, Michigan to New Jersey, is a
common drug trafficking route.
Trooper Hoy then went back to his patrol cruiser and ran a records check, as is
his custom, while completing the warning paperwork for the illegal lane change. Trooper
Hoy also contacted a State Police K-9 Unit to respond to the scene. The record check
revealed that Valdivia had been previously charged in Florida with possession with
intent to deliver.
73
Trooper Hoy returned to Valdivia’s vehicle, asked him to exit the vehicle,
explained the warning, and returned Valdivia’s identification documents. Trooper Hoy
then inquired if he could ask some follow-up questions about Valdivia’s travel plans.
Valdivia changed his story when answering these additional questions. He now stated
that he had flown to Detroit to visit a friend and had left early the next morning. He also
said that when he arrived at the Detroit airport, all of the rental companies were closed,
which was why he rented the vehicle in Ann Arbor. Trooper Hoy felt that Valdivia’s
responses were unusual, because one does not normally visit a friend for such a short
time, most of which would be spent sleeping. Trooper Hoy also found it difficult to
believe that all rental companies would have been closed at a large airport such as
Detroit.
The troopers requested and received defendant’s consent to search the vehicle.
We detect a mixture of coercive and noncoercive factors at the time of Trooper
Hoy’s request. The coercive elements were: (1) Trooper Hoy never told Valdivia he was
free to leave, (2) Trooper Hoy ordered Valdivia to exit his car to receive the traffic
warning, (3) there was more than one trooper at the scene of the stop, and (4) Trooper
Hoy never verbally advised Valdivia that he was free to refuse consent. The noncoercive elements were: (1) Trooper Hoy gave back Valdivia’s documentation, (2) there
is no evidence of police abuses, aggressive tactics, coercive language, coercive tone of
voice, physical contact, or the use of physical restraints any time during the detention,
and (3) Valdivia read and signed a consent form which advised that he did not have to
consent. The most persuasive indicium of voluntary consent is that Valdivia read and
signed the consent form. He knew from the form that he could refuse consent, but he
voluntarily elected not to do so.
A reasonable person would have understood that Valdivia’s consent
encompassed canine sniffs of packages found in his vehicle. Nothing about a canine
sniff strikes us as more intrusive than a vehicle search by humans, so when an
individual consents to an official search of his vehicle, it is natural to assume that his
consent includes both human and canine searches. The most logical way – and
perhaps the only way – for a defendant to place canine sniffs beyond the scope of
consent is to tell the officer that canine searches are off limits. In this case, Valdivia
never told any officer that he did not consent to a canine sniff.
Valdivia, 145 A.3d 1156 (Pa. Super. 8/19/16)
appeal granted, No. 9 MAP 2017 (2/1/17)
[EDITOR’S NOTE: Review was granted by the Supreme Court of Pennsylvania to
determine whether or not defendant’s consent encompassed the canine sniff,
particularly in light of the one hour delay waiting for the dog’s arrival.]
SEARCH AND SEIZURE: CURTILAGE
A pickup truck was observed driving erratically. The truck was involved in an
accident in which a pedestrian in a wheel chair was injured. The debris at the accident
scene showed that the vehicle was a Nissan Titan truck. A resident living near the
accident informed the police that Eichler owned a Nissan Titan truck.
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Sergeant Gillingham proceeded to Eichler's residence at 274 Salem Church
Road, 2.3 miles from the accident scene. Eichler's house stood about 200 feet from
Salem Church Road, on a hillside at least 40 feet above the road, at the end of a long,
steep driveway which bent to the left through dense trees and shrubbery. There were no
fences, gates or "no trespassing" signs to keep visitors out.
When Sergeant Gillingham drove up the driveway and rounded a bend, he
observed the back of a black Nissan Titan truck on the driveway next to the right side of
a one-story house. The truck was parked inward and had not been visible from Salem
Church Road. Sergeant Gillingham pulled up directly behind the truck, exited his patrol
vehicle, walked to the front of the pickup truck, and examined the truck with his
flashlight. He observed a large amount of damage to the right front corner and
passenger side of the truck. He discovered that the engine block was still warm. He also
observed a visibly intoxicated Eichler.
Since Eichler parked his truck several feet from his house, it clearly was within
the curtilage at the time of Sergeant Gillingham's inspection. 6
6We note that this Court has held that driveways to private
residences are not curtilage. See Simmen, 58 A.3d 811, 815 (Pa.
Super. 12/11/12) (holding, where defendant's car was parked in
driveway, that driveway "was not curtilage," so officer viewed
defendant's vehicle from lawful vantage point by walking up
driveway); Loughnane, 128 A.3d 806 (Pa. Super. 11/23/15), appeal
granted on other grounds, No. 72 MAP 2016 (granted 7/19/16)
(citing Simmen).
Under Florida v. Jardines, 569 U.S. ___, 133 S.Ct. 1409, 185 L.Ed.2d 495
(3/26/13), Eichler's truck was within the curtilage, even though it also happened to be
parked in his driveway. It also is possible to harmonize Simmen and Loughnane with
Jardines. In Simmen, the car was parked 20-30 feet away from the defendant's
residence, so it arguably fell outside the zone that Jardines designates as curtilage
(area immediately surrounding the home). Loughnane did not specify where the vehicle
was parked on the driveway, so it, too, might have fallen outside Jardines' definition of
curtilage.
This, however, does not end our inquiry, for two other principles require
consideration. First, police officers have the authority to enter the curtilage for the
purpose of conducting an investigation. Second, entry onto the curtilage generally is not
a Fourth Amendment violation when the curtilage is used by the public.
Applying these principles, we conclude that Sergeant Gillingham's conduct was
constitutional. Sergeant Gillingham was investigating a serious hit-and-run accident that
had occurred just over one hour before. He obtained information at the accident scene
and then from a Game Commission Officer that gave him reason to believe that a black
Nissan pickup truck owned by Eichler was involved in the accident. While Eichler's
house stands 200 feet from the roadway, it is still accessible to the general public,
because there are no fences or gates on his driveway or signs that warn against
trespassers or prohibit public entry. As Sergeant Gillingham drove up the driveway, he
saw a black Nissan pickup truck next to the house, so he parked directly behind the
truck, exited his patrol vehicle, walked several feet to the front of the truck, and
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observed significant damage. These were all reasonable acts within the course of a
legitimate police investigation.
Eichler, 133 A.3d 775 (Pa. Super. 2/2/16)
SEARCH AND SEIZURE: EXPECTATION OF PRIVACY
"Property-based" standards is a separate Fourth Amendment doctrine that the
United States Supreme Court has applied recently in United States v. Jones, 565 U.S.
__, 132 S. Ct. 945, 181 L. Ed. 2D 911 (1/23/12), and Florida v. Jardines, 569 U.S. ___,
133 S.Ct. 1409, 185 L.Ed.2d 495 (3/26/13). "Property-based" analysis is tied to
common-law trespass. The home is first among equals in this analysis, for at the Fourth
Amendment's very core stands the right of a man to retreat into his own home and there
be free from unreasonable governmental intrusion. The curtilage, the area immediately
surrounding and associated with the home, is part of the home itself for Fourth
Amendment purposes. When an officer enters the curtilage, the key inquiry under the
property-based test becomes whether an implied license exists for the officer's conduct
within the curtilage. For example, an implied license exists for the officer to approach
the house by the front path without a warrant and knock on the front door for the
purpose of asking the occupant about an ongoing investigation. Such conduct is
permissible because it is no more than any private citizen might do. Conversely, an
officer does not have an implied license to explore the front path with a metal detector,
or march his bloodhound into the garden before saying hello and asking permission.
Jones and Jardines indicate that defendants have the option to raise Fourth
Amendment challenges under both expectation-of-privacy and property-based
principles. See, e.g., Jones, 133 S.Ct. at 1417 ("the . . . reasonable-expectation-ofprivacy test has been added to,not substituted for, the common-law trespassory test";
because officer's conduct violated property-based test, "we need not decide whether the
. . . investigation of Jardines' home violated his expectation of privacy") (emphasis in
original).
Eichler, 133 A.3d 775 (Pa. Super. 2/2/16)
SEARCH AND SEIZURE: INCIDENT TO ARREST
City of Pittsburgh Police Detective Harry Lutton testified that, at approximately
8:30 p.m. on February 9, 2010, he received a call that shots had been fired in the
Greenway housing project. Uniformed police officers informed Detective Lutton that they
apprehended defendant "a matter of blocks away from the scene" and that defendant
matched the description of the shooter. Detective Lutton also learned that the victim
was shot twice, was taken to the hospital, and was in critical condition and that a shell
casing and a bullet fragment were recovered from the scene.
City of Pittsburgh Police Detective Blase Kraeer testified that, following
defendant's arrest, he performed a gunshot residue test on defendant's hands. As
76
Detective Kraeer testified, to perform the post-arrest gunshot residue test upon
defendant, the detective took a swab and swabbed four different parts of the two hands.
Detective Kraeer testified that the swab had a "sticky substance" that he just brushed
against the hand and that the test did not use any liquid. Daniel Wolfe, an employee of
the Allegheny County Medical Examiner's Office, testified that a gunshot residue test is
generally necessary to detect such residue because gunshot residue particles are the
size of a micron and are not readily apparent to the naked eye.
In contrast to the exigent circumstances exception, the search incident to arrest
exception applies categorically. In other words, the search incident to arrest exception
permits a search of the arrestee's person as a matter of course — and without a caseby-case adjudication of whether a search of a particular arrestee is likely to protect
officer safety or evidence.
When the gunshot residue swab test was performed upon defendant, he was
under a lawful arrest. The expectations of privacy of an individual taken into police
custody necessarily are of a diminished scope. The physical intrusion in this case was
negligible. The gunshot residue test is capable of revealing only one bit of information,
the presence of gunshot residue on the swab. Finally, application of the gunshot residue
swab is not an experience that is likely to cause any great enhancement in the
embarrassment that is inherent in any arrest. Therefore, we conclude that the gunshot
residue swab and test in this case did not implicate significant privacy concerns.
The two paramount interests of the Commonwealth are ensuring the public
safety and welfare. The gunshot residue test promotes these interests by identifying
individuals who might have unlawfully discharged a firearm or who might have harmed
or murdered another person — and then preserving the evidence for trial.
Therefore, we conclude that the gunshot residue test has a negligible intrusion
upon an individual's privacy and that it serves an important function in promoting vital
governmental interests. As such, we conclude that the gunshot residue test constitutes
a reasonable search incident to arrest. Moreover, since the search incident to arrest
exception applies categorically — and not on a case-by-case basis — defendant's
claims that the police "had time" to obtain a warrant and that the police could have
“bagged” the hands of defendant until a warrant was obtained, necessarily fail.
Simonson, 148 A.3d 792 (Pa. Super. 9/12/16)
appeal denied, ___ Pa. ___, ___ A.3d ___ (3/31/17)
SEARCH AND SEIZURE: INFORMANT
Search warrant:
1. Informant was inside 1110 Pleasant Grove Road within the past 72 hours, observed a
marijuana growing information and that Timothy Manuel lives there.
2. The informant should be considered reliable due to the fact that [he has] provided
police with information that has led to a felony drug arrest that is currently pending in the
York County Court system. This informant is familiar with what marijuana looks like and
how it is packaged in York County.
3. Officer confirmed through Penn DOT that Timothy Manuel lives at that address.
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Defendants assert that the reliability of the CI was not established where the CI
had previously provided information leading to only one arrest which had not yet, at the
time the affidavit was executed, led to a conviction.
There is no “magic number” of arrests or convictions for which a CI need
previously have provided information to be deemed reliable. Accordingly, the fact that
the CI had previously provided information leading only to one arrest does not
automatically deem the information provided in this case unreliable. Where, as here, a
CI’s tip provides inside information, police corroboration of the inside information can
impart additional reliability to the tip.
Here, however, the lack of substantial follow-up investigation by the police to
secure true corroboration of such inside information constrains us to conclude that,
under the totality of the circumstances, the affidavit did not establish probable cause.
The police failed to conduct any investigation that might have yielded corroboration of
information unavailable to the public at large and, thereby, increased the reliability of the
CI’s tip. They neither arranged for the CI to conduct a controlled buy at the premises nor
performed any type of photographic or electronic surveillance. Rather, Officer Hoover
merely ran searches through Penn DOT that established that Timothy Manuel resided
at the Pleasant Grove Residence and that Charles Manuel registered a car at that
address. This generally available information was not corroborative of criminal conduct.
Manuel, ___ A.3d ___ (Pa. Super. 4/7/17)
Link to: Stabile, J. dissenting
SEARCH AND SEIZURE: WARRANT
Search warrant affidavit:
On August 25, 2014, Officer Smith, Robeson Twp., PD received information from
a confidential source that marijuana plants were being grown in the area of 1045
Schuylkill Road. At approximately 1200 hours Ofc. Smith went to the area of 1045
Schuylkill Road. At this time he observed approximately twelve (12) marijuana plants
growing on the edge of the property belonging to 1045 Schuylkill Road and the property
belonging to Sensient Colors. The plants were observed to be regularly tended to and
had animal traps set up around the plot of plants. There was also a decoy coyote set to
the side of the plants.
There is a dirt road approximately fifteen (15) yards from the plants that [led] from
the rear of 1045 Schuylkill Road. The only access to the dirt road is from 1045 Schuylkill
Road. Approximately thirty (30) yards from the plants was a large pile of tree stumps
and shrubs which have been dumped from the dirt road which leads from 1045
Schuylkill Road. There was a large piece of outdoor equipment parked in the area of the
dumping pile.
The plot of marijuana plants is approximately one hundred (100) yards from the
house located at 1045 Schuylkill Road. The house is visible from the plot of plants.
The owner of 1045 Schuylkill Road, [the defendant], has a prior criminal history
stating that in 1984 [he] was arrested for drug possession and possession with intent to
manufacture/deliver.
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It is the belief of your affiants that the owner of 1045 Schuylkill Road, [the
defendant], is aware of the plants and is the owner of the marijuana plants due [to] the
fact that the only access to the plants is [from] a dirt road which leads from the rear of
his property.
Trial court’s reasons for suppressing the evidnce:
(1) There were no facts in the affidavit of probable cause linking defendant to the
marijuana plants other than the fact his residence was located within one hundred yards
of the plants and the fact he had been arrested for a drug offense thirty years before. (2)
The affiants' observations constitute mere speculation that defendant was the person
tending to the marijuana plants. (3) Since marijuana plants observed by the affiants
were growing on the edge of defendant's property and the adjoining property held by
Sensient Colors, "it is just as likely" that someone from Sensient Colors was tending to
the plants. (4) The police should have conducted surveillance. (5) While defendant was
arrested for drug offenses, he was never convicted. (6) Defendant's arrest for drug
offenses was more than thirty years ago. (7) The affiants' belief that defendant was
aware of the plants and owned the plants was based upon speculation and conjecture.
Reasons for reversing the suppression order:
The twelve marijuana plants were fifteen yards from a dirt road accessing the
rear of 1045 Schuylkill Road, and the marijuana plants were one hundred yards from
the house. When the police discover twelve marijuana plants growing near a dirt road
accessing the rear of a property, and in close proximity to the house, common sense
dictates that additional contraband may be located in the areas.
To the extent the suppression court suggested the police should have conducted
surveillance to determine who was tending to the marijuana plants and that "it is just as
likely" someone from Sensient Colors was tending to the plants, we remind the
suppression court that, not only in this case was the focus on the property to be
searched and not on any one individual, but the requirements of a probable cause
finding are tempered by the courts so as not to impede the goals and obligations of law
enforcement. Moreover, affidavits of probable cause are subject to a much less rigorous
standard than those governing evidence and burdens of proof at trial, and the police
need not rule out all other possibilities in establishing probable cause for the issuance of
a search warrant. Finally, the law does not require that the information in a warrant
affidavit establish with absolute certainty that the object of the search will be found at
the stated location, nor does it demand that the affidavit information preclude all
possibility that the sought after article is not secreted in another location.
Rapak, 138 A.3d 666 (Pa. Super. 4/29/16)
Trooper Eric Guido of the Pennsylvania State Police testified that toward the end
of February of 2015, he was conducting an investigation regarding the sale of controlled
substances out of an apartment at 501 East Beaver Avenue in State College. According
to the trooper, the investigation began after a Confidential Informant advised him that he
had purchased Xanax pills from Aaron Murray. Subsequently, Trooper Guido and the
Confidential Informant made two controlled buys of Xanax from Mr. Murray, the first of
which occurred in Mr. Murray’s bedroom in Apartment 201.
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The description of the property to be searched by the warrant was listed as “The
Phoenix Apartment Complex, 501 East Beaver Ave, Apt. #201 located in State College
Boro, Centre County.” According to Trooper Guido, the owner, occupant or possessor of
this apartment was listed as “Aaron Murray,” because the confidential informant told him
that Mr. Murray “was the only one that was supposed to be living there.”
Upon entering the apartment, Trooper Guido stayed with Mr. Murray, while two
other troopers checked the apartment for other occupants. At that time, Trooper Guido
could hear knocking on a door at the end of a hallway and repeated saying, “Come out
of the room, state police, we have a search warrant, get out of the room.” According to
the trooper, after about five minutes, defendant opened the bedroom door, and “wanted
to know what was going on.” When he was advised about the reasons for the troopers’
presence, defendant asked to see a copy of the search warrant, and the troopers
complied. Id. At that time, another trooper searched defendant’s person and found
several Xanax pills.
Trooper Guido testified that the search of the apartment began in the bedroom
that had been occupied by defendant. According to the trooper, defendant’s bedroom
door was not marked in any way to distinguish it from the other bedroom. Trooper Guido
did not recall a dead bolt or key lock on the door but testified the door was locked when
first approached by the other troopers. Upon searching the bedroom, Trooper Guido
noticed a safety deposit-type box on a desk. After finding a key in a backpack in the
room, another officer unlocked the box. Inside the box, the troopers found three
vacuum-sealed bags containing approximately 7000-8000 white pills, and approximately
$5,000 in cash. Various drug packaging and a scale, as well as a safety deposit key,
were also found inside the bedroom. A subsequent search warrant was issued for the
corresponding safety deposit box, which was rented by defendant, and approximately
$12,000 in cash was found inside.
Describing the bedroom further, Trooper Guido repeated that he did not recall a
dead bolt or key lock, and the bedroom did not have a separate apartment number,
mailbox, or entrance. According to the trooper, it was a typical college apartment that he
was used to executing search warrants on with a common area, two bedrooms,
bathroom, and kitchen.
The trial court suppressed the evidence, concluding that defendant’s bedroom
was a separate living unit, not subject to search pursuant to the warrant authorizing the
search of Apartment 201.
Trooper Guido testified without contradiction that Apartment 201 consisted of a
regular, two-bedroom college apartment; he could not recall a dead bolt or a key entry
to defendant’s bedroom. Further, there was no indication that defendant’s bedroom had
a separate mailbox, address, or any private entrance. In concluding that the bedroom
was a separate living unit, the trial court did not apply “a practical, common-sense”
approach when determining whether the place to be searched was specified with
sufficient particularity in the search warrant.
SHOGAN, J. DISSENTING: A search warrant directed against an apartment
house, or other multiple-occupancy structure will be held invalid for lack of specificity if it
fails to describe the particular room or subunit to be searched with sufficient
definiteness to preclude a search of other units. Where the description provided is
precise enough to enable the officer to ascertain and identify, with reasonable effort, the
80
place intended, and where probable cause exists to support the search of the area so
designated, a warrant will not fail for lack of particularity. Moreover, a warrant directing a
search of more than one living unit is valid only if there is probable cause that all are
being used for the unlawful purposes involved. Finally, the reviewing court must make a
practical, commonsense decision whether the place to be searched has been specified
with sufficient particularity.
This matter is squarely on point with our decision in Interest of Wilks, 418 Pa.
Super. 73, 613 A.2d 577 (8/13/92), because (a) the affidavit of probable cause reflects
that the drug transaction that occurred on February 22, 2015, took place in a bedroom
into which Aaron Murray specifically escorted the CI and Trooper Guido, (b) Trooper
Guido testified that the apartment “was a typical college apartment that I’m used to
executing warrants on, common area, two bedrooms, bathroom, kitchen,” (c) the search
warrant for the apartment specifically listed “Aaron Murray” as the owner, occupant or
possessor of the premises to be searched, and (d) the police were specifically put on
notice during the execution of the search warrant that the apartment actually contained
multiple bedrooms which were capable of being secured from the common area and
that there was another occupant, i.e., Defendant, locked within a separate living area of
the apartment. Thus, it cannot be said that this was a single unit household occupied or
controlled by a single person, i.e., Aaron Murray.
The place specified in the search warrant was not a single unit house, nor was
there any evidence that the entire apartment was under the control of Aaron Murray.
Rather, as previously mentioned, the facts show that the place searched was more akin
to a multiple unit dwelling and, as evidenced by defendant being locked in a separate
living area, certain portions of the premises were not under the control of Aaron Murray.
Many college students live in multi-occupancy units and have individualized
privacy interests. Because the affidavit in this case only established probable cause as
to the areas accessed and controlled by Mr. Murray, and because the police were put
on notice that there was another bedroom occupied by at least one other person, I am
of the opinion that the search was overbroad.
Korn, 139 A.3d 249 (Pa. Super. 5/25/16)
Link to: Shogan, J. dissenting
In the affidavit of probable cause for a search warrant, the affiant set forth the
facts of his investigation in apparent chronological order, from September 2012 to
March 21 of 2014. In the final paragraph of the affidavit, the affiant referenced a dog
sniff (canine sweep) of a storage unit stated to have occurred on March 21, 2013.
The trial court determined that the March 21, 2013 date was a typographical error
and the magisterial district judge could find probable cause notwithstanding that error.
There is ample case law holding that a warrant may be upheld notwithstanding a
magisterial district judge's typographical errors. However, those cases involved
"technical" errors that did not affect the issuing authority's determination of probable
cause.
The trial court found that Detective Lombardo's statement regarding the date of
the canine sweep was a typographical error. That finding was supported by an
81
application of common sense. It is reasonable to believe the error escaped detection by
the detective, the reviewing assistant district attorney, and the magisterial district judge,
in light of chronological structure of the affidavit and its placement on the last page of
the affidavit immediately before the request for the warrant. Considering the informal,
often hurried context of the application process, we do not fault the parties for
overlooking the error.
We also agree with the trial court that the affidavit of probable cause contained
sufficient chronological milestones to believe that the canine sweep occurred
immediately before Detective Lombardo applied for and obtained the search warrant at
7:00 p.m., on March 21, 2014. The allegations, as well as the indication that the sweep
occurred at a specific time, all suggest that the canine sweep was the final event before
the detective sought the search warrant. Indeed, it would defy common sense to believe
Detective Lombardo squandered police resources on a sweep of the storage unit in
March 2013, one year before the allegations appellant was visiting his storage unit
frequently and the March 21, 2014 interview of the facility's manager that confirmed
defendant's link to the specific unit.
Leed, 142 A.3d 20 (Pa. Super. 6/1/16)
appeal granted, No. 122 MAP 2016 (granted 12/28/16)
Police executing search warrant of apartment belonging to Tina Cosgrove.
Defendant, a male, was a visitor to the apartment. The warrant described defendant as
an associate of Cosgrove who had previously been observed in the apartment, a known
drug user, and the target of law enforcement investigations.
When police entered the premises, defendant and Cosgrove were in the kitchen.
On the back of a chair some four feet from where defendant stood was draped a black
leather jacket. Without first ascertaining its ownership, police reached into the pockets,
discovering brass knuckles.
Scope of search pursuant to a warrant extends to entire area in which the object
of the search may be found, including containers. United States v. Ross. The police are
not prohibited from searching a visitor's personal property (not on the person) located
on premises in which a search warrant is being executed when that property is part of
the general content of the premises and is a plausible repository for the object of the
search.
It would be ineffective and unworkable to require police officers to make the
distinction between which articles of clothing and personal property belong to the
resident and which belong to the visitor before beginning the search.
Reese, 520 Pa. 29, 549 A.2d 909 (10/25/88)
Police were executing a valid search warrant at 5203 C Street, Philadelphia.
Defendant was not named in the search warrant, and he was not previously known to
the police. He was found in bed. Defendant’s pants were on the floor. Before
defendant could put on his pants, the police searched them and found drugs.
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A valid search warrant authorizes the search of any container found on the
premises that might contain the object of the search. However, the search warrant does
not, by itself, authorize the search of guests. In this case, it did not matter that the
police knew the pants belonged to defendant. Because defendant did not physically
possess the pants when the officers found them, the police were authorized to search
them.
Petty, ___ A.3d ___ (Pa. Super. 3/10/17)
SELF INCRIMINATION
N.M. and J.B. were involved in an alleged retail theft. In the adjudicatory hearing
for N. M., she sought to call J. B. as a defense witness. The juvenile court judge
refused to allow J. B. to testify based on a concern that J.B. would incriminate herself.
Defendant argued that the juvenile court erred in so doing because J.B. was
represented by counsel, was fully advised of her right against self-incrimination, and
wished to testify on defendant's behalf.
We conclude that a juvenile may waive his or her right against self-incrimination
in the context of providing witness testimony if the waiver is knowing, intelligent, and
voluntary. In determining whether such waiver is proper, we believe that a totality-of-thecircumstances test strikes the proper balance between accounting for the
disadvantages associated with one's youth and ensuring the interests of justice are
served. We therefore adopt that test today and, in so doing, hold that the following
factors are among those to be considered when implementing this approach: the
juvenile's youth, experience, comprehension, and the presence or absence of an
interested adult; the presence or absence of appointed counsel; the advice provided by
counsel; and whether the juvenile was facing criminal charges arising from the same
incident at issue. Moreover, any evidence of coercion or improper suggestion on behalf
of the defendant, other witnesses, the attorneys involved, and the juvenile court is also
to be considered. Finally, the juvenile court shall conduct an on-the-record colloquy to
ensure that the juvenile is fully aware of both the nature of the right being abandoned
and the consequences of the decision to abandon it.
The record does not reveal that such a colloquy was conducted. In the absence
of this colloquy, we have little basis upon which to confirm that J.B. was fully aware of
both the nature of her Fifth Amendment right against self-incrimination and the
consequences of waiving that right. Moreover, we have no indication of the manner in
which her youth, experience, and comprehension impacted her decision, or whether
there was any indication that J.B. was coerced or otherwise influenced improperly when
making her decision. Given these circumstances (i.e., no on-the-record-colloquy), we
hold that the juvenile court's refusal to permit J.B. to waive her Fifth Amendment right
was in error. Thus, defendant is entitled to a new disposition wherein the juvenile court
shall perform a proper colloquy with respect to J.B.'s waiver of her Fifth Amendment
rights and give full consideration to all of the factors.
In re N. M., 141 A.3d 539 (Pa. Super. 6/14/16)
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During an investigation into Doe’s access to child pornography over the internet,
the Delaware County Criminal Investigations Unit executed a valid search warrant at
Doe’s residence. During the search, officers seized an Apple iPhone 5S and an Apple
Mac Pro Computer with two attached Western Digital External Hard Drives, all of which
had been protected with encryption software. Police subsequently seized a passwordprotected Apple iPhone 6 Plus as well.
Doe voluntarily provided the password for the Apple iPhone 5S, but refused to
provide the passwords to decrypt the Apple Mac Pro computer or the external hard
drives. Despite Doe’s refusal, forensic analysts discovered the password to decrypt the
Mac Pro Computer, but could not decrypt the external hard drives. Child pornography
images were found on the decrypted drives.
The act of producing evidence in response to a subpoena has communicative
aspects of its own, wholly aside from the contents of the papers produced. Compliance
with a request for evidence may tacitly concede the existence of the documents
demanded and their possession and control by the defendant. By producing documents,
one acknowledges that the documents exist, admits that the documents are in one’s
custody, and concedes that the documents are those that the Government requests.
The “foregone conclusion” rule acts as an exception to the otherwise applicable
act-of-production doctrine. Under this rule, the Fifth Amendment does not protect an act
of production when any potentially testimonial component of the act of production—such
as the existence, custody, and authenticity of evidence—is a foregone conclusion that
adds little or nothing to the sum total of the Government’s information. For the rule to
apply, the Government must be able to describe with reasonable particularity the
documents or evidence it seeks to compel.
The Magistrate Judge found that, though the Fifth Amendment may be implicated
by Doe’s decryption of the devices, any testimonial aspects of that production were a
foregone conclusion. According to the Magistrate Judge, the affidavit supporting the
application for the search warrant established that (1) the Government had custody of
the devices; (2) prior to the seizure, Doe possessed, accessed, and owned all devices;
and (3) there are images on the electronic devices that constitute child pornography.
Thus, the Magistrate Judge concluded that the Decryption Order did not violate Doe’s
Fifth Amendment privilege against self-incrimination.
The Government has provided evidence to show both that files exist on the
encrypted portions of the devices and that Doe can access them. The affidavit
supporting the search warrant states that an investigation led to the identification of Doe
as a user of an internet file sharing network that was used to access child pornography.
When executing a search of Doe’s residence, forensic analysts found the encrypted
devices, and Doe does not dispute their existence or his ownership of them. Once the
analysts accessed Doe’s Mac Pro Computer, they found one image and logs that
suggested the user had visited groups with titles common in child exploitation. Doe’s
sister then reported that she had witnessed Doe unlock his Mac Pro while connected to
the hard drives to show her hundreds of pictures and videos of child pornography.
Forensic analysts also found an additional 2,015 videos and photographs in an
encrypted application on Doe’s phone, which Doe had opened for the police by entering
a password. Based on these facts, the Magistrate Judge found that, for the purposes of
84
the Fifth Amendment, any testimonial component of the production of decrypted devices
added little or nothing to the information already obtained by the Government. The
Magistrate Judge determined that any testimonial component would be a foregone
conclusion. The Magistrate Judge did not commit a clear or obvious error in his
application of the foregone conclusion doctrine.
United States v. Apple MacPro Computer, ___ F.3d ___ (3rd Cir. 3/20/17)
SENTENCE: CREDIT
4/9/07: Philadelphia County sentence of 11 ½–23 months plus 4 years probation
4/10/07: Defendant taken into federal custody
9/26/13: Release from federal custody following federal sentence
Issue: Was new offense on 4/24/14 a violation of the 2007 probation, or had the
probation been completed while defendant was serving his federal sentence?
Allshouse, 33 A.3d 31 (Pa. Super. 9/1/11), held that there is no support in the
Pennsylvania statutes that the General Assembly intended to permit defendants to
serve a term of probation and a term of state incarceration simultaneously. Logic would
lead to the conclusion that a term of probation cannot be served while the defendant is
imprisoned on an unrelated sentence, whether it be in a state facility as in Allshouse or
in federal custody as with Brown.
Defendant’s 4 year probationary period did not begin until his release from
federal custody on September 26, 2013. Brown committed a new offense during his
probationary period.
Brown, 145 A.3d 184 (Pa. Super. 8/9/16)
appeal denied, ___ Pa. ___, ___ A.3d ___ (1/24/17)
Shull—with the full emotional and financial support of his family—had voluntarily
admitted himself into an exclusive, private rehabilitation facility not to avoid pre-trial
detention but, instead, to acquire for himself the best treatment available for his
addiction and medical difficulties. Our review of the record supports this determination,
and so we decline to find the court abused its exercise of sentencing discretion in
refusing to credit time-served for time he spent in voluntary rehabilitation.
Shull, 148 A.3d 820 (Pa. Super. 9/13/16)
Defendant pled guilty to murdering his wife in 1989 in Berks County,
Pennsylvania. While defendant was incarcerated, he penned two (2) letters and a "hit
list." The first letter and "hit list" named persons involved in the murder case and
described methods for torturing and killing said persons. The second letter also named
persons related to the murder case and contained statements regarding killing said
85
persons and their entire families. Defendant was arrested for this conduct on December
13, 2012. He was subsequently acquitted on these charges.
While defendant was being held at Centre County Correctional Facility for the
charges stemming from the letters and "hit list," defendant, on April 4, 2013, made an
unmonitored phone call to his daughter during which defendant made threatening
statements to her and regarding defendant's brother because of defendant's brother's
testimony against defendant. Defendant was arrested for this conduct on April 10, 2013
and he was subsequently convicted.
Defendant was not entitled to credit for time served from December 13, 2012 to
April 10, 2013.
Richard, 150 A.3d 504 (Pa. Super. 11/15/16)
SENTENCE: GUIDELINES
Section 303.10(a)(2) provides, in pertinent part, that an offender has “used” a
deadly weapon if he or she employed a firearm, loaded or unloaded, in a way that
threatened another individual. Viewed under this statutory definition, Shull’s mere
possession of a gun transcended to his use of the gun as an implement of submission
and fear when he decided to remove it from under his clothing and hold it—with finger
on trigger—directly above Grego’s face as she lay helplessly under his forcible control.
Indeed, Shull’s presentation of the gun in this manner had a terrifying effect on Grego,
who testified her concern amplified when she first saw the gun in her assailant’s hand,
as she realized at that point this was not someone just “messing with me” and believed
something “bad is going to happen right now.”
Under these circumstances, the fact that Shull never actually stopped and
pointed the gun at Grego in the several seconds before he heard police sirens and fled
is of no moment to the inquiry before us, as he had already made the gun a component
part of his use of force when he revealed it to his victim as he brutally dragged her to
some intended location.
Shull, 148 A.3d 820 (Pa. Super. 9/13/16)
In this case, defendant's vehicle was originally used for its intended purpose: to
transport two friends and himself to a bar. However, the character of the vehicle
changed to a deadly weapon the instant defendant backed his vehicle out of the bar's
parking lot, accelerated forward at its maximum rate of acceleration, and struck the
victim with sufficient force to cause death. To conclude otherwise would result in the
untenable position that an automobile is different than a litany of other everyday objects,
which when used with a wicked purpose, can cause serious bodily injury or death.
Therefore, we hold that a motor vehicle is a deadly weapon for purposes of the deadly
weapon enhancement provision within the sentencing guidelines. Disapproving: Burns,
390 Pa. Super. 426, 568 A.2d 974 (1/17/90), appeal denied (6/12/90).
86
Buterbaugh, 91 A.3d 1247 (Pa. Super. 5/13/14) (en banc)
Solomon, 151 A.3d 672 (Pa. Super. 11/22/16) (driving SUV directly at police
officer), appeal pending, No. 520 WAL 2016 (filed 12/21/16)
[EDITOR’S NOTE: The Superior Court panel in Solomon cited to both the definition of
deadly weapon at Section 303.10(a) of the Sentencing Guidelines and to the definition
found at 18 Pa.C.S. § 2301. Since 1997, the Sentencing Guidelines no longer use the
Section 2301 definition of a deadly weapon.]
BUT SEE:
At the time of the accident, defendant was using his car as a mode of
transportation. Defendant was drunk and distracted at the time of the incident, thus his
performance of this task was reckless. Nevertheless, he had no intention to use the
automobile as a deadly weapon. In light of the surrounding circumstances, there is no
indication that defendant actually used the car for any reason other than conveying
himself and his passengers, even though the victim suffered permanent injuries
resulting therefrom.
The Deadly Weapon Enhancement is not applicable to defendant's sentence.
Smith, 151 A.3d 1100 (Pa. Super. 11/29/16)
appeal pending, No. 138 MAL 2017 (filed 3/6/17)
In determining the offense gravity score with respect to controlled substance
convictions, it may be necessary for the sentencing court to determine the quantity of
the controlled substance. “If any mixture or compound contains any detectable amount
of a controlled substance, the entire amount of the mixture or compound shall be
deemed to be composed of the controlled substance. If a mixture or compound contains
a detectable amount of more than one controlled substance, the mixture or compound
shall be deemed to be composed entirely of the controlled substance which has the
highest Offense Gravity Score.” 204 Pa. Code § 303.3(e).
The waste byproduct contents in the bottle seized from defendant weighed
approximately 288 grams. That quantity determines the offense gravity score without
regard to the actual weight of methamphetamine in the bottle. Section 303.3(e) of the
guidelines is the controlling provision. The formula for the calculation of quantity found
at the now invalidated 18 Pa.C.S.§ 7508 is not be be considered.
Sunealitis, 153 A.3d 414 (Pa. Super. 12/19/16)
SENTENCE: INCHOATE OFFENSES
Kingston faced DUI charges. He wrote three letters from prison, where he was
incarcerated on other charges, to his girlfriend, Jennifer Mroz. The first letter defendant
wrote from prison requested Mroz commit perjury and hinder prosecution by testifying
and stating to police investigators that Kingston's father had been driving on the night
Kingston was arrested. The second letter requested Mroz to commit perjury and hinder
87
prosecution by testifying and stating to police investigators that Mroz had been driving
on the night Kingston was arrested. The third letter requested that Mroz commit perjury
and hinder prosecution by testifying and stating to police investigators that she was
intoxicated on the night Kingston was arrested, and that she was driving.
The question that we face distills to whether “more than one of the inchoate
crimes” refers to more than one substantive inchoate crime only, or whether it also
connotes more than one count of a particular inchoate crime. Viewed as a whole, Title
18 evinces the General Assembly’s appreciation of the distinction between convictions
for more than one of several specifically enumerated crimes and convictions for multiple
violations of a single crime. The General Assembly included no language in Section 906
limiting convictions for two or more successive violations of a single inchoate crime.
Instead, it barred multiple convictions for “more than one of the inchoate crimes of
criminal attempt, criminal solicitation or criminal conspiracy.” Section 906 does not
prevent convictions for more than one count of the inchoate crime of solicitation; it
applies only to convictions for “more than one of the inchoate crimes of criminal attempt,
criminal solicitation or criminal conspiracy.”
It is not difficult to imagine why the General Assembly would proscribe multiple
convictions for distinct inchoate offenses in circumstances where a defendant’s conduct
was designed to culminate in the commission of a single underlying crime. Successive
steps in a criminal undertaking often will constitute a criminal solicitation, a criminal
conspiracy, and a criminal attempt, because all three offenses necessarily overlap. All
conspiracies follow a solicitation of some kind; there can be no acceptance without an
offer. In addition, the difference between an “overt act” necessary to establish a criminal
conspiracy and a “substantial step” evidencing a criminal attempt is one of degree only.
It is less clear why the General Assembly would bar plural convictions for defendants
who attempt repeatedly to commit the same crime.
The trial court lawfully sentenced defendant for three counts of solicitation to
commit perjury and for three counts of solicitation to commit hindering apprehension or
prosecution.
Kingston, ___ Pa. ___, 143 A.3d 917 (8/15/16) (rejecting Model Penal Code)
Link to: Saylor, C. J. dissenting
SENTENCE: INTERMEDIATE PUNISHMENT
75 Pa.C.S. § 3804(d) provides:
§ 3804. Penalties.
...
(d) Extended supervision of court.--If a person is sentenced
pursuant to this chapter and, after the initial assessment required
by Section 3814(1), the person is determined to be in need of
additional treatment pursuant to Section 3814(2), the judge shall
impose a minimum sentence as provided by law and a maximum
sentence equal to the statutorily available maximum. A sentence to
the statutorily available maximum imposed pursuant to this
88
subsection may, in the discretion of the sentencing court, be
ordered to be served in a county prison, notwithstanding the
provisions of 42 Pa.C.S. § 9762 (relating to sentencing proceeding
and place of confinement).
A sentencing court has no discretion or authority to impose a sentence for a DUI
violation prior to the completion of the assessment required by 75 Pa.C.S. § 3814. This
section requires, in certain circumstances including those presented herein (where
defendant had a prior DUI conviction within ten years), a full drug and alcohol
assessment, to be completed prior to sentencing. For the benefit of the offender and the
public, the legislature set forth a specific and precise sentencing scheme that requires,
in Sections 3804 and 3815, that the treatment recommendations developed through the
assessment be implemented as part of the offender's sentence. A sentence imposed
without the requisite presentence assessment does not comply with the Vehicle Code's
mandatory sentencing scheme for DUI offenders.
Taylor, 628 Pa. 547, 104 A.3d 479 (11/20/14)
Link to: Eakin, J. dissenting
75 Pa.C.S. § 3804(d) is not applicable when the sentencing court exercises its
discretion to sentence an eligible defendant to County Intermediate Punishment.
Popielarcheck, 151 A.3d 1088 (Pa. Super. 12/6/16)
appeal pending, No. 101 WAL 2017 (filed 3/10/17)
Watson, ___ A.3d ___ (Pa. Super. 3/8/17)
SENTENCE: LENIENT
The Commonwealth asserted that the court unreasonably departed from both the
enhancement and the robbery guideline ranges when it imposed a below-mitigating
range departure sentence designed for the sole purpose of securing a county sentence
for Shull. For Shull’s conviction of Robbery—Fear of Serious Bodily Injury, the
sentencing guidelines’ standard range sentence was 22 to 36 months without
application of any weapons enhancement, 31 to 45 months with a DWE/Possessed
application, and 40 to 54 months with an DWE/Used application. At the initial
sentencing hearing, the court applied a DWE/Possessed enhancement and, in its
discretion, imposed a mitigated range 29 to 59 month sentence with the intention of
placing Shull in a county correctional facility.
At the post-sentence motion hearing, however, the court observed that, under 42
Pa.C.S. § 9762(b)(2), it was unable to place Shull in the county facility unless the
District Attorney consented, and she did not consent. For this reason, alone, the court
sua sponte reduced Shull’s sentence to 11 ½ to 24 months, less one day, to circumvent
the restrictions of Section 9762(b)(2) [together with defendant’s agreement not to seek
parole and to serve the entire 24 month’s sentence.
89
Reasons offered by the trial court:
It just seems to me that logically the place of incarceration should
be the county, and although I agree to some extent with the
Commonwealth’s position that I’m not totally positive that this young
man is going to straighten himself out, I don’t see him as being the
type of threat to the public at this point that requires him being
locked up in a State correctional facility. So that’s why I want him
sentenced locally.
The court supplied an inexplicably inadequate factual basis to substantiate a
sentence significantly below the mitigating range for a typical first-degree felony robbery
conviction, let alone one for which a deadly weapon enhancement also pertained.
Other than citing Shull’s age and making unconfirmed, general propositions about the
fate of SCI inmates of Shull’s ethnicity, the court engaged in no discussion as to why
Shull’s particular circumstances warranted a severe downward departure sentence.
Neither Shull’s personal history nor his amenability to rehabilitation were cited as
militating in favor of departing downward from the guideline ranges. To the contrary, in
its previous sentencing hearing reference to the prospects of rehabilitation, the court
voiced serious doubts concerning Shull’s future, indicating that he found himself in this
position despite his parents’ considerable expenditure of time and money in previous
failed efforts to help their son right himself.
The court’s skepticism concerning the state correctional system’s ability to
rehabilitate Shull as well as can the county system, a subjective notion unsupported by
any facts of record, provides insufficient grounds for this sentence.
The court’s singular purpose of circumventing a statutory scheme requiring state
confinement for the sentence the court would have otherwise imposed produced an
inappropriate sentence that failed to reflect due consideration of the deadly weapon
enhancement guideline ranges, Shull’s lack of amenability to prior rehabilitation efforts,
the disturbing circumstances of his crime and its effect on the victim, and the public
safety needs of society at large. Under the facts of the present case, therefore, we
deem the departure sentence entered in the court below unreasonable in light of
considerations set forth in Section 9781(d) of the Sentencing Code.
Accordingly, we vacate sentence and remand this matter for resentencing
Shull, 148 A.3d 820 (Pa. Super. 9/13/16)
SENTENCE: MANDATORY MINIMUM
Certain mandatory minimum sentences in Pennsylvania were triggered by factual
determinations which were not elements of the offense of conviction (e.g., the quantity
of a controlled substance). Pennsylvania statutory law postponed the determination of
the applicability of the mandatory minimum sentence to the sentencing proceeding, with
the determination made by the judge, pursuant to a preponderance of the evidence
standard.
In Alleyne v. United States, 570 U.S. 1, 133 S.Ct. 2151, 186 L.Ed.2d 314
(6/17/13), the United States Supreme Court held that any fact which triggers a
90
mandatory minimum sentence must be found by a jury (or at a bench trial) pursuant to
the standard of proof applicable to an element of an offense, proof beyond a reasonable
doubt. Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524
(6/24/02) (plurality opinion) was explicitly overruled. McMillan v. Pennsylvania, 477 U.S.
79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (6/19/86) was implicitly overruled.
Several mandatory sentence statutes in Pennsylvania had been drafted in
reliance upon McMillan v. Pennsylvania. The portions of those statutes that did not
provide for jury trial determinations of the facts triggering mandatory minimum
sentences became unconstitutional. In Commonwealth v. Hopkins, 632 Pa. 36, 117
A.3d 247 (6/15/15), the Supreme Court of Pennsylvania held that the mandatory
sentencing provision found at 18 Pa.C.S. § 6317 (Drug Free School Zones), was
invalid in its entirety and could not be cured by granting to the defendant a
determination of facts by a jury.
In light of Commonwealth v. Hopkins (invalidating 18 Pa.C.S. § 6317) the
following, additional mandatory minimum sentencing provisions are likely
unconstitutional or have already been held to be unconstitutional.
18 Pa.C.S. § 6111(h) (2nd offense – straw purchaser of firearm)
18 Pa.C.S. § 6314 (Drug trafficking to minors)
18 Pa.C.S. § 7508 (Drug trafficking – quantity of substance)
Fennell, 105 A.3d 13 (Pa. Super. 11/21/14)
appeal denied, 632 Pa. 691, 121 A.3d 494 (8/12/15)
42 Pa.C.S. § 9712 (Visible possession of firearm)
Valentine, 101 A.3d 801 (Pa. Super. 10/3/14)
Link to: Gantman, P. J. concurring
appeal denied, ___ Pa. ___, 124 A.3d 309 (9/23/15)
42 Pa.C.S. § 9712.1 (Drug offenses committed with firearms)
Newman, 99 A.3d 86 (Pa. Super. 8/20/14) (en banc)
Link to: Mundy, J. concurring
appeal denied, 632 Pa. 693, 121 A.3d 496 (8/7/15)
42 Pa.C.S. § 9713 (Crimes committed on public transportation)
Valentine, 101 A.3d 801 (Pa. Super. 10/3/14)
Link to: Gantman, P. J. concurring
appeal denied, ___ Pa. ___, 124 A.3d 309 (9/23/15)
42 Pa.C.S. § 9718(a)(1) (Crimes against children)
Wolfe, ___ Pa. ___, 140 A.3d 651 (6/20/16)
Link to: Baer, J. concurring
Link to: Todd, J. dissenting
Link to: Dougherty, J. dissenting
BUT SEE (deciding constitutionality of 42 Pa.C.S. § 9718(a)(3)):
Commonwealth v. Resto, No. 86 MAP 2015 (granted 8/23/16)
42 Pa.C.S. § 9718.4 (Failure to comply with registration)
Pennybaker, ___ Pa. ___, 145 A.3d 720 (8/31/16)
rev’g per curiam, Pennybaker, 121 A.3d 530 (Pa. Super. 7/28/15)
42 Pa.C.S. § 9719 (Offenses while impersonating law enforcement)
91
The Supreme Court of Pennsylvania will decide the constitutionality of other statutes.
Bragg, 133 A.3d 328 (Pa. Super. 2/5/16) (42 Pa.C.S. § 9714) (three strikes)
appeal granted, No. 31 EAP 2016 (granted 8/4/16)
Commonwealth v. Macklin, No. 78 MAP 2016 (granted 8/4/16)
Commonwealth v. Sachette, No. 79 MAP 2016 (granted 8/4/16)
(42 Pa.C.S. § 9718.2) (repeat sexual offenders)
Alleyne not retroactively available to PCRA petitioners.
Washington, ___ Pa. ___, 142 A.3d 810 (7/19/16)
Ciccone, 152 A.3d 1004 (Pa. Super. 12/13/16) (en banc)
appeal pending, No. 27 MAL 2017 (filed 1/12/17)
Sentencing guidelines remain constitutional.
Ali, 112 A.3d 1210 (Pa. Super. 3/5/15)
rev’d on other grounds, ___ Pa. ___, 149 A.3d 29 (11/22/16)
SENTENCE: MERGER
Kingston faced DUI charges. He wrote three letters from prison, where he was
incarcerated on other charges, to his girlfriend, Jennifer Mroz. The first letter defendant
wrote from prison requested Mroz commit perjury and hinder prosecution by testifying
and stating to police investigators that Kingston's father had been driving on the night
Kingston was arrested. The second letter requested Mroz to commit perjury and hinder
prosecution by testifying and stating to police investigators that Mroz had been driving
on the night Kingston was arrested. The third letter requested that Mroz commit perjury
and hinder prosecution by testifying and stating to police investigators that she was
intoxicated on the night Kingston was arrested, and that she was driving.
The question that we face distills to whether “more than one of the inchoate
crimes” refers to more than one substantive inchoate crime only, or whether it also
connotes more than one count of a particular inchoate crime. Viewed as a whole, Title
18 evinces the General Assembly’s appreciation of the distinction between convictions
for more than one of several specifically enumerated crimes and convictions for multiple
violations of a single crime. The General Assembly included no language in Section
906 limiting convictions for two or more successive violations of a single inchoate crime.
Instead, it barred multiple convictions for “more than one of the inchoate crimes of
criminal attempt, criminal solicitation or criminal conspiracy.” Section 906 does not
prevent convictions for more than one count of the inchoate crime of solicitation; it
applies only to convictions for “more than one of the inchoate crimes of criminal attempt,
criminal solicitation or criminal conspiracy.”
It is not difficult to imagine why the General Assembly would proscribe multiple
convictions for distinct inchoate offenses in circumstances where a defendant’s conduct
92
was designed to culminate in the commission of a single underlying crime. Successive
steps in a criminal undertaking often will constitute a criminal solicitation, a criminal
conspiracy, and a criminal attempt, because all three offenses necessarily overlap. All
conspiracies follow a solicitation of some kind; there can be no acceptance without an
offer. In addition, the difference between an “overt act” necessary to establish a criminal
conspiracy and a “substantial step” evidencing a criminal attempt is one of degree only.
It is less clear why the General Assembly would bar plural convictions for defendants
who attempt repeatedly to commit the same crime.
The trial court lawfully sentenced defendant for three counts of solicitation to
commit perjury and for three counts of solicitation to commit hindering apprehension or
prosecution.
Kingston, ___ Pa. ___, 143 A.3d 917 (8/15/16) (rejecting Model Penal Code)
Link to: Saylor, C. J. dissenting
It is apparent from the criminal information, complaint, and affidavit of probable
cause that the Commonwealth did not allege criminal acts that constituted terroristic
threats as distinct or delineated from the conduct that constituted robbery. Indeed, the
information offers only a generic recitation of the offenses and the statutory elements of
each, while the factual accounts in both the complaint and the affidavit of probable
cause describe defendant's threat to the complainant and robbery by gunpoint in the
next moment as a seamless event occurring in the course of a theft. Neither the
charging information nor supporting documents of record describe the operative facts in
such a way as to distinguish the specific conduct underlying the offenses of robbery and
terroristic threats, respectively. We may not conclude, therefore, that the offenses were
based on two discrete criminal acts for purposes of avoiding merger at sentencing
The relevant elements of terroristic threats comprise the communication of a
threat to commit a crime of violence with the intent to cause terror. Robbery, as charged
in this case, requires threatening serious bodily injury or intending to place a victim in
fear of serious bodily injury. Though the two statutes do not employ identical words, it
would be championing a distinction without a difference to conclude that threatening
serious bodily injury or intending to cause fear of serious bodily injury was not the
functional equivalent of a threat of violence intended to cause terror. Particularly where,
as here, both offenses arose from the same act, we do not discern from these statutes
the legislative intent to permit separate sentences. We must, therefore, reverse
judgment of sentence in this respect, as defendant's terroristic threats and robbery
convictions merged for purposes of sentencing.
In reviewing whether defendant's conviction for Recklessly endangering another
person (REAP) merges with his conviction for robbery, however, a comparison of the
respective statutes leads to the conclusion that each offense requires proof of an
element that the other does not, and, therefore, cannot merge for sentencing purposes.
Indeed, among the elements of REAP is the requirement that the defendant possessed
the actual present ability to inflict harm. This evidentiary burden exceeds that required
for robbery under Section 3701(a)(1)(ii), which only requires proof that the defendant
threatened another with, or intentionally placed a person in fear of, immediate serious
93
bodily injury whether or not the ability to cause such injury was actual. Moreover, REAP
does not concern itself with the victim's state of mind, while robbery under Section
3701(a)(1)(ii) requires proof that the victim was placed in fear of serious bodily injury.
Defendant's merger argument with respect to REAP and robbery is, therefore,
unavailing.
Defendant's conviction for simple assault, likewise, does not merge with his
Section 3701(a)(1)(ii) robbery conviction when comparing the two statutes under a Title
42, Section 9765 analysis. defendant's simple assault conviction required evidence that
he caused or attempted to cause complainant bodily injury, while his robbery conviction
required no proof of injury or attempted injury but only that he threatened complainant
with or intentionally placed him in fear of serious bodily injury. Conversely, robbery
required proof that the proscribed conduct occurred during the course of a theft, while
simple assault required no such proof. Between defendant's robbery and simple assault
convictions, where all statutory elements of one conviction were not contained within the
statutory elements of the other, the trial court properly declined to merge the convictions
for purposes of sentencing.
Martinez, 153 A.3d 1025 (Pa. Super. 12/29/16)
Raven's conviction for Accidents Involving Death or Personal Injury (AIDPI) while
not properly licensed required the Commonwealth to demonstrate that Raven caused
an accident that resulted in the injury or death of a person, and that his operating
privilege was either disqualified, canceled, recalled, revoked or suspended (and not
restored), or that Raven did not hold a valid driver's license. See 75 Pa.C.S. § 3742.1.
Raven's conviction for Driving While under Suspension, DUI related (DWS-DUI related)
required the Commonwealth to demonstrate that Raven's operating privilege was
suspended or revoked as a condition of acceptance of ARD (for driving under influence,
or for a similar offense that occurred outside of the Commonwealth), or for a refusal to
submit to chemical testing. A review of the plain language of these statutes
demonstrates that DWS-DUI related clearly imposes an additional requirement that a
license suspension be related to DUI or ARD. 75 Pa.C.S. § 1543(b). Such an element
is not contemplated by the AIDPI statute.
It is entirely possible that a conviction for AIDPI while not properly licensed could
be sustained without necessarily proving a Section 1543(b) violation. Raven's conviction
for AIDPI while not properly licensed did not require any particular category of license
suspension, whereas his conviction for DWS-DUI related did. Because each offense
requires proof of an element that the other does not, Raven's sentences do not merge.
Raven also maintains that his habitual offender’s conviction should merge with
his conviction for AIDPI while not properly licensed. This claim is similarly meritless. A
conviction for habitual offenders requires the Commonwealth to demonstrate that a
person has accumulated three separate convictions for serious traffic offenses within a
five-year period. See 75 Pa.C.S. § 1542. AIDPI while not properly licensed has no such
element, and additionally requires that a person cause an accident resulting in injury or
death. Because these two offenses each require proof of an element that the other does
not, Raven's imposed sentences do not merge.
94
Raven, 97 A.3d 1244 (Pa. Super. 8/12/14)
appeal denied, 629 Pa. 636, 105 A.3d 736 (12/23/14)
Jarosz, 152 A.3d 344 (Pa. Super. 12/13/16)
appeal pending, No. 20 WAL 2017 (filed 1/9/17)
Defendant was convicted of Accidents Involving Death or Personal Injury (AIDPI)
while not properly licensed. The elements are: 1) negligence; 2) causing death or
personal injury; and 3) while unlicensed. 75 Pa.C.S. § 3742.1. The elements of
Homicide by Vehicle are: 1) recklessness or gross negligence; 2) causing death; and 3)
while violating the vehicular code; and 4) the violation is the cause of death. 75 Pa.C.S.
§ 3732.
Although both Homicide by Vehicle and AIDPI require a violation of the vehicular
code, Homicide by Vehicle specifically requires that the violation of the vehicle code be
the cause of death. The vehicle code violation in AIDPI is driving without a license.
Since driving without a license was not the cause of death in this case, AIDPI does not
merge into Homicide by Vehicle for sentencing purposes.
Jarosz, 152 A.3d 344 (Pa. Super. 12/13/16)
appeal pending, No. 20 WAL 2017 (filed 1/9/17)
In a series of decisions, the Supreme Court of Pennsylvania has declined to
overturn a jury’s verdict finding a defendant guilty of separate degrees of murder arising
from the death of a single victim. The Supreme Court has declined to grant relief on the
basis of alleged inconsistent verdicts. Young, 561 Pa. 34, 748 A.2d 166 (1/22/99);
Laird, 555 Pa. 629, 726 A.2d 346 (3/1/99); Meadows, 567 Pa. 344, 787 A.2d 312
(12/31/01).
Notwithstanding that ruling, a panel of the Superior Court vacated the sentences
imposed upon defendant for second degree murder (burglary), second degree murder
(robbery) and third degree murder on merger grounds. In this case, the trial court had
imposed separate sentences for each count of murder even though there was only one
victim.
McCamey, 154 A.3d 352 (Pa. Super. 1/13/17)
Because the statutory elements for rape of a child and IDSI with a child are the
same, and because the [single] criminal act underlying the convictions for each offense
is the same, the convictions for rape of a child and IDSI with a child merge for
sentencing purposes. Therefore, the trial court erred when it imposed separate
sentences for the rape of a child and IDSI with a child convictions.
Brown, ___ A.3d ___ (Pa. Super. 3/28/17)
95
SENTENCE: POST SENTENCE MOTION
A post sentence motion must be decided within 120 days (plus one 30 day
extension) or the motion shall be deemed denied by operation of law.
Even in the absence of a formal order from the Clerk of Courts denying the
motion, a modification of the sentence after the deadline is a nullity. The sentencing
court is without jurisdiction to enter the modification of sentence order.
Santone, 757 A.2d 963 (Pa. Super. 8/3/00)
appeal denied, 564 Pa. 730, 766 A.2d 1247 (2/7/01)
Martinez, 141 A.3d 485 (Pa. Super. 6/10/16)
A defendant whose revocation of probation sentence has been imposed after a
revocation proceeding has 30 days to appeal her sentence from the day her sentence is
entered, regardless of whether or not she files a post-sentence motion. Pa.R.Crim.P.
708(D). Therefore, if a defendant chooses to file a motion to modify her revocation
sentence, she does not receive an additional 30 days to file an appeal from the date her
motion is denied. Commonwealth v. Coleman, 721 A.2d 798 (Pa. Super. 11/24/98);
Pa.R.Crim. P. 708(D).
Despite this rule, when the trial judge sentenced Parlante on October 19, 2001,
he told her that she had 30 days to file a post-sentence motion and if he denied her
post-sentence motion, "[she would have] 30 days to appeal to the Superior Court from
then." (emphasis added). As a result, Parlante filed a motion to modify her sentence on
October 29, 2001, which was denied on the same day. On November 27, 2001, 39 days
after the trial court entered the revocation of probation sentence, but only 29 days after
he denied her petition for modification, Parlante filed the instant appeal. Therefore,
Parlante's appeal is facially untimely. Nevertheless, we decline to quash this appeal
because Parlante's error resulted from the trial court's misstatement of the appeal
period, which operated as a "breakdown in the court's operation." Commonwealth v.
Coolbaugh, 770 A.2d 788, 791 (Pa. Super. 3/9/01) (where defendant was led to believe
that he had 30 days to appeal from denial of reconsideration motion following revocation
of probation, our court declined to quash appeal recognizing that problem arose as a
result of the trial court's misstatement of appeal period, which operated as a breakdown
in the court's operation).
Parlante, 823 A.2d 927 (Pa. Super. 4/30/03)
Duffy, 143 A.3d 940 (Pa. Super. 7/15/16)
SENTENCE: PROBATION AND PAROLE
As a matter of state constitutional law, the exclusionary rule bars the introduction
at parole revocation hearings of evidence obtained in violation of the parolee's Fourth
Amendment rights.
96
Rejecting: Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357,
118 S.Ct. 2014, 141 L.Ed.2d 344 (6/22/98). Implicitly overruling: Scott v. Pa. Board of
Probation and Parole, 553 Pa. 68, 717 A.2d 1021 (9/10/98). Disapproving: Lehman,
851 A.2d 941 (Pa. Super. 5/28/04).
Arter, ___ Pa. ___, 151 A.3d 149 (12/28/16)
A trial court’s imposition of a county sentence and retention of parole authority
does not satisfy Section 9756(b)(3) and make a defendant eligible for parole prior to the
expiration of his minimum sentence. The court shall, at the time of sentencing, state
whether or not the defendant is eligible to participate in a reentry plan in order for that
defendant to be eligible for parole prior to the completion of the aggregate minimum
sentence.
Finley, 135 A.3d 196 (Pa. Super. 4/5/16)
State Parole back time must be served consecutively to new sentence. Dorian,
503 Pa. 116, 468 A.2d 1091 (12/27/83); Wilson v [Parole Board], 124 A.3d 767 (Pa.
Cmwlth. 8/11/15). A trial court has no authority to order the sentences to be served
concurrently. If a defendant is induced to plead guilty pursuant to an unlawful promise
that the sentences will be served concurrently, that defendant’s proper remedy is to
seek to vacate the plea agreement in the trial court.
Palmer v. [Parole Board], 134 A.3d 160 (Pa. Cmwlth. 3/8/16)
Kerak v. [Parole Board], 153 A.3d 1134 (Pa. Cmwlth. 11/10/16) (en banc)
[EDITOR’S NOTES:
1. The dissenting opinion in Kerak argued that (1) regardless of the illegality of the trial
court’s order, a defendant ought to be entitled to the benefit of a plea agreement, see
e.g., Martinez, ___ Pa. ___, 147 A.3d 517 (9/28/16), and that (2) executive branch
agencies must comply with final orders of a court until a court corrects or amends that
order, even if agency officials believe the order does not comply with the law, see e.g.,
McCray v. [Dep’t of Corrections], 582 Pa. 440, 872 A.2d 1127 (4/27/05).
2. The Palmer panel did not note the conflicting authority with respect to the proper
remedy. Compare Commonwealth v. Zuber, 466 Pa. 453, 353 A.2d 441 (3/17/76)
(ordering reduction of sentence to afford defendant the benefit of his original plea
agreement), with Hickman, 799 A.2d 136 (Pa. Super. 5/15/02) (declining to order boot
camp eligibility). See Kersteter, 877 A.2d 466 (Pa. Super. 6/9/05) (leaving remedy to
the trial court).]
SENTENCE: REASONS
When a sentence is vacated and the case is remanded to the sentencing court
for resentencing, the sentencing judge should start afresh. Reimposing a judgment of
97
sentence should not be a mechanical exercise. Given the important nature of the
interests involved, the judge at the second sentencing hearing should reassess the
penalty to be imposed on the defendant-especially where defense counsel comes
forward with relevant evidence which was not previously available. Thus, defendant's
conduct since the prior sentencing hearing is relevant at resentencing. The sentencing
judge must take note of this new evidence and reevaluate whether the jail term which
defendant received is a just and appropriate punishment.
These directives are particularly salient where, as here, the resentencing judge
did not preside over the defendant's previous sentencing proceeding and is not
personally familiar with the defendant and his background, offenses and character.
Accordingly, the new presiding judge must familiarize himself with the defendant, the
offense, and the attendant circumstances of the case.
After the appellate remand the first sentencing judge died. At the new sentencing
proceeding the second judge declined to make any findings of his own demonstrating
that Serrano's sentence was individualized. Instead, he deferred entirely to what he
speculated to have been the judgment of a deceased jurist. This is especially
concerning in a case, such as here, where the prior judge sentenced Serrano under a
mandatory minimum sentencing scheme that has since been deemed to be
unconstitutional. The second judge's duty at resentencing was not to channel the
presumed intent of his colleague, but rather to perform an independent assessment of
the record as a whole, as well as the evidence presented in the PSI and by the parties
at sentencing.
Serrano, 150 A.3d 470 (Pa. Super. 11/15/16)
COMPARE:
The court justified the imposition of the initial oral sentences; it was not
necessary to repeat the reasons when the sentence was corrected.
Perkins, 302 Pa. Super. 12, 448 A.2d 70 (7/16/82)
After an appellate remand, the court may reference the initial sentencing hearing
and incorporate it into the record of the new sentencing.
Kearns, 150 A.3d 79 (Pa. Super. 11/07/16)
appeal pending, No. 851 MAL 2016 (filed 11/28/16)
SENTENCE: RESTITUTION
To qualify for restitution “[a] governmental agency must have compensated the
victim in a monetary fashion as a result of the loss of `property [which] has been stolen,
converted or otherwise unlawfully obtained, or its value substantially decreased as a
direct result of the crime, or wherein the victim suffered personal injury directly resulting
from the crime." 18 Pa.C.S. § 1106(a).
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In order, restitution is to be paid as follows to:
(A) The victim.
(B) The Crime Victim's Compensation Board.
(C) Any other government agency which has provided
reimbursement to the victim as a result of the defendant's criminal
conduct.
(D) Any insurance company which has provided reimbursement to
the victim as a result of the defendant's criminal conduct.
18 Pa.C.S. § 1106(c)(1)(ii).
No restitution may be paid except to a "victim," the two categories of government
entities that the General Assembly has authorized to compensate victims (when they
have, in fact, done so), or victims' insurance policies for monies paid to insured victims.
To qualify for restitution under Subsection 1106(c)(1)(i), a Commonwealth
agency either must be a victim as that term is used in that subsection or must have
reimbursed a victim as defined by Title 18, Section 11.103, directly or by paying a third
party on behalf of the victim. The Department of Community and Economic
Development (DCED), itself, cannot be a victim under Section 11.103. Furthermore,
DCED received no compensation from another Commonwealth agency in this case.
Thus, DCED is not entitled to restitution under Section 1106.
Veon, ___ Pa. ___, 150 A.3d 435 (11/22/16)
Link to: Baer, J. concurring and dissenting
Link to: Donohue, J. concurring and dissenting
DISAPPROVING:
Perzel, 116 A.3d 670 (Pa. Super. 5/4/15), vacated, ___ Pa. ___, ___ A.3d ___ (2/9/17)
OPINION IN SUPPORT OF AFFIRMANCE:
When restitution is ordered under Section 1106(a), it is a part of an offender's
sentence. A sentence of restitution is mandatory when there has been injury to person
or property by an offender's criminal conduct. Restitution as a part of a sentence is not
satisfied until paid in full, regardless of a defendant's financial resources. In contrast,
ordering restitution as a condition of probation under Title 42, Section 9754(c)(8) must
be based upon an offender's ability to pay and also, as stated, is discharged upon the
expiration of the term of probation regardless of whether the obligation has been paid in
full. It is inconsistent to order restitution as a sentence, regardless of an ability to pay
and without discharge until paid in full, and at the same time order restitution as a
condition of probation where the ability to pay must be determined and the restitution
obligation is discharged upon the expiration of the term of probation. If restitution must
be ordered and paid in full under Section 1106(a), it cannot at the same time also be a
condition of probation that can be discharged upon completion of probation.
Because we find restitution had to be ordered under Section 1106(a), we need
not reach the question as to whether the trial court erred in failing first to determine
defendant's ability to pay restitution under Section 9754 of the Sentencing Code, 42
Pa.C.S. § 9754, which permits restitution to be imposed as a condition of probation. If
we were to reach this question, we would conclude that the trial court erred in ordering
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restitution as a condition of probation under Section 9754 without first determining
defendant's ability to pay the restitution.
OPINION IN SUPPORT OF REVERSAL:
We agree that the trial court erred to the extent it ordered restitution as a
condition of defendant's probation under Section 9754(c)(8) of the Sentencing Code. As
explained in the Opinion in Support of Affirmance, restitution cannot be imposed as both
a condition of probation and as part of a defendant's sentence under Section 1106(a) of
the Crimes Code. Furthermore, the trial court did not determine defendant's ability to
pay as required under Section 9754(c)(8).
Holmes, ___ A.3d ___ (Pa. Super. 1/4/17) (en banc) (equally divided court)
Link to: Opinion in support of affirmance
Link to: Opinion in support of reversal
SENTENCE: VICTIM IMPACT
Defendant was charged with the illegal sale of K2, synthetic marijuana. At
sentencing, the court received testimony from the next of kin of the victims of a fatal
automobile accident which occurred after the defendant had consumed K2 purchased
from the same store, but not directly from this defendant.
42 Pa.C.S. § 9738 does not purport to address the admissibility of victim impact
evidence, but merely operates to protect certain crime victims from being sequestered
at trial based on the possibility they may later offer victim impact evidence. While no
other provision of the Sentencing Code defines the term victim, it is notable that, in
incorporating the Act's restrictive definition, Section 9738(b) does not suggest an
intention to address the Sentencing Code as a whole. Section 9738(b) contains no
reference, for example, to the meaning of the term "victim" for purposes of 42 Pa.C.S. §
9721(b).
Furthermore, Section 9721(b), which the panel failed to discuss, has a broader
focus than the panel derived from Section 9738. Without belaboring the point, when it
comes to impacts and effects of crimes, the provision explicitly directs courts to fashion
sentences that are consistent with the protection of the public and the impact on both
the life of the victim and on the community. The General Assembly has recognized that
criminal law exists to protect not only direct victims, but also the community that bears
the indirect consequences of crime, and this, in turn, affords some flexibility in the trial
court considering the practical and tangential effects of a crime in fashioning a
sentence.
The general community effects of illegal drug distribution are well-known,
including effects (sometimes fatal) upon abusers, attendant property crimes by certain
of those suffering from addiction, and violence associated with certain drugs or manners
of distribution. The risk or danger is present and where, as here, the crime in fact is
logically connected to a community impact suffered by specific individuals, Section
9721(b) makes that impact or effect a relevant consideration at sentencing — whether
the evidence is called "victim impact" or not, and regardless of whether the affected
individuals would be deemed "victims" under the Crime Victims Act.
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Citing with approval: Commonwealth v. Curran, 932 A.2d 103 (Pa. Super.
7/31/07) (proper to consider two people died as indirect result of furnishing alcohol);
Commonwealth v. Griffin, 804 A.2d 1 (Pa. Super. 6/24/02) (proper to consider drug
crimes on low income neighborhood); Commonwealth v. Roden, 730 A.2d 995 (Pa.
Super. 5/5/99) (proper to consider that babysitter's murder of infant made families afraid
to take children to caregivers); Commonwealth v. Penrod, 396 Pa. Super. 221, 578 A.2d
486 (7/25/90) (proper to consider injuries sustained by others as result of DUI).
Ali, ___ Pa. ___, 149 A.3d 29 (11/22/16)
Link to: Baer, J. dissenting
SENTENCE: WAIVER
The court held that the Alleyne challenge implicated the legality of the sentence.
Defendant’s claim was considered on the merits even though raised for the first time in
a Petition for Allowance of Appeal.
Barnes, ___ Pa. ___, 151 A.3d 121 (12/28/16)
Link to: Saylor, C.J. concurring
Link to: Dougherty, J. concurring
SPEEDING
During the Commonwealth's case defendant challenged the admissibility and
weight of evidence derived from what was described as an Event Data Recorder (EDR),
a device in defendant’s vehicle that records speed and other data, much like the wellknown "black box" does on commercial aircraft. In this vehicle, a 2007 Dodge Caliber
SXT, the EDR is known as the Airbag Control Module. Testimony was presented
concerning the results of the examination of the EDR.
The evidence in the record established that the technology has existed for almost
40 years, has been adopted by the major automobile manufacturers, and has been
recognized as an acceptable tool used by accident reconstruction experts to determine
a vehicle's speed prior to an impact. It is not novel science; it is an accepted technology.
We note that Florida, Illinois, Massachusetts, and New Jersey have permitted the
introduction of EDR data to establish the speed of a vehicle. For the foregoing reasons,
we find that there is no legitimate dispute regarding the reliability of EDR technology
necessary to consider it a novel science.
Safka, 95 A.3d 304 (Pa. Super. 6/25/14)
Link to: Wecht, J. concurring and dissenting
aff’d, ___ Pa. ___, 141 A.3d 1239 (7/19/16)
Link to: Donohue, J. dissenting
Link to: Dougherty, J. dissenting
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STATUTE OF LIMITATIONS
The criminal activity against the victim, A. S., was alleged to have occurred in
June of 1988. At that time, the applicable statute of limitations under 42 Pa.C.S. § 5552
(Act 199 of 1984) required the prosecution to commence within five years from the date
of the offense. Accordingly, the mechanical run date would have been June 30, 1993.
Prior to the mechanical run date of June 30, 1993, on February 19, 1991, the
relevant statute of limitations was again amended. Section 5552 (Act 208 of 1990) was
amended to provide that prosecution must be commenced within five years from the
date of the victim’s eighteenth birthday. However, Act 208 of 1990 also provided a
public-employee exception, which stated that even if the relevant statute of limitations
expired, a prosecution may be commenced for: “Any offense committed by a public
officer or employee in the course of or in connection with his office or employment at
any time when the defendant is in public office or employment or within five years
thereafter, but in no case shall this paragraph extend the period of limitation otherwise
applicable by more than eight years.” Act 208 of 1990.
At the time Section 5552 was amended by Act 208 of 1990, the statute of
limitations under Act 199 of 1984 had not expired. Accordingly, A. S. was entitled to the
newer statute of limitations. Harvey, 374 Pa. Super. 289, 293-295, 542 A.2d 1027,
1029-1030 (6/1/88) (en banc), Thus, the statute of limitations would expire on
December 26, 1994, five years after A. S.’s eighteenth birthday. However, due to the
public employee exception, that mechanical run date could be extended eight years.
Because Mr. Sandusky was still a public employee in 1994, the eight year extension
applied and resulted in the statute of limitations expiring on December 26, 2002.
On August 22, 2002, Act 86 of 2002 extended the statute of limitations to the
victim’s thirtieth birthday. Because the statute of limitations under Act 208 of 1990 had
still not expired as of the effective date of Act 86 of 2002, the mechanical run date
became December 26, 2001, A. S.’s thirtieth birthday. However, we must take into
account the public-employee exception, and therefore determine when Mr. Sandusky
left his employment at the university.
It is unclear as to whether Mr. Sandusky’s employment terminated on June 29,
1999, the day he signed his retirement papers, or on December 29, 1999, the day after
the Alamo Bowl when Penn State’s football season concluded. For purposes of our
discussion, this determination is ultimately of no moment. Even if we use the later of the
two dates, December 29, 1999, A. S.’s private criminal complaint was untimely. In
applying the public employee exception, prosecution of Mr. Sandusky had to be
commenced within five years of his termination of public employment. This results in a
run date of, at the latest, December 29, 2004.
Effective January 29, 2007, Act 179 of 2006 amended Section 5552. Pursuant to
this amendment, the statute of limitations was extended to a victim’s fiftieth birthday. We
conclude, however, that A. S. is not entitled to the benefit of Act 179 of 2006 because,
as of the effective date of Act 179 of 2006, January 29, 2007, the December 29, 2004
run date we determined above had passed. Accordingly, the time in which
A. S. could have brought his claims had expired prior to the effective date of Act 179 of
2006.
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The Attorney General properly denied the private complaint based upon the
statute of limitations having expired.
A. S. v. Kane, 145 A.3d 1167 (Pa. Super. 8/25/16)
SUMMARY OFFENSES
On August 20, 2012, Ross Township enacted Ordinance No. 2321, which
created a no parking zone on Fairley Road within the municipality. Thereafter, on
October 4, 2014, Officer Jonathan Killmeyer of the Ross Township Police Department
responded to a complaint from defendant’s neighbor regarding an illegally parked
vehicle along Fairley Road. Officer Killmeyer traveled to the scene and observed
defendant’s car parked unlawfully where “No Parking” signs were erected pursuant to
Ordinance No. 2321. Officer Killmeyer issued a citation and had the vehicle towed. The
following day, October 5, 2014, Office Killmeyer returned to the area and found
defendant’s vehicle parked in the same location. He again issued a citation and mailed
it to defendant.
At trial, the defense was that that Ross Township never acquired ownership of
Fairley Road and that it remained private land. Specifically, defendant argued that the
Commonwealth failed to present sufficient evidence in support of defendant’s conviction
because it did not come forward with proof that Ross Township conducted a required
traffic and engineering study of Fairley Road that supported the need to proscribe
parking either because parking on Fairley Road created a safety hazard or impeded the
free flow of vehicular movement.
Under the Motor Vehicle Code, official traffic-control devices are presumed to
comply with lawful requirements unless competent evidence establishes the contrary.
Section 3111 of the Motor Vehicle Code, which governs the legal presumption that
attaches to official traffic-control devices, provides:
§ 3111. Obedience to traffic-control devices
(d) Presumption of proper devices.--Any official traffic-control
device placed or held pursuant to the provisions of this title and
purporting to conform to the lawful requirements pertaining to such
devices shall be presumed to comply with the requirements of this
title, unless the contrary shall be established by competent
evidence.
75 Pa.C.S. § 3111(d). Applying Section 3111, this Court has consistently held that, it is
not the Commonwealth’s initial burden to offer into evidence the results of an
engineering and traffic study and that where official traffic-control signals are posted so
as to be readily observable by the motoring public, the Commonwealth is entitled to the
presumption that they were lawfully authorized.
At his hearing de novo, defendant came forward with no evidence to establish
that Ross Township failed to perform the traffic study required under Section 3353(d).
Thus, the presumption of validity codified at Section 3111(d) defeats defendant’s claim
that the Commonwealth failed to meet its burden of proving the performance of a traffic
study.
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Defendant’s next claim alleges that Fairley Road is not subject to regulation
under the Motor Vehicle Code and that Ross Township lacked authority to enforce its
prohibition on parking. Defendant bases this claim on his contention that the
Commonwealth failed to prove that Fairley Road is a “highway” within the meaning of
that term as defined in 75 Pa.C.S. § 102 since “the evidence in the record is that Fairley
Road is a private road; that it is a loop providing access to [only] a handful of houses in
Ross Township; and that [Fairley Road] cannot be used by the public to travel
anywhere.”
The key question in determining whether a local authority has appropriately
erected an official traffic-control device that prohibits or restricts parking within its
boundary is whether the regulated area constitutes a highway open to the public for
vehicular traffic.4 See 75 Pa.C.S. § 3353(d).
4We conclude that the Commonwealth is not entitled to the
presumption of validity codified at Section 3111(d) on this question.
The certified record establishes that Defendant came forward at his
February 23, 2015 hearing de novo with evidence tending to show
that Fairley Road was not open to the public. In so doing,
Defendant offset the presumption of validity under Section 3111(d)
and the Commonwealth was required to prove the highway status
of Fairley Road beyond a reasonable doubt.
The Motor Vehicle Code defines “highway” as follows:
“Highway.” The entire width between the boundary lines of every
way publicly maintained when any part thereof is open to the use of
the public for vehicular travel. The term includes a roadway open to
the use of the public for vehicular travel on grounds of a college or
university or public or private school or public or historic park.
75 Pa.C.S. § 102.
The public use component of Section 102 of the Vehicle Code can be met
despite certain restrictions on access to the regulated area so long as the record
establishes that a sufficient number of drivers use the roadway for vehicular traffic.
Whether Fairley Road was dedicated to Ross Township is not a relevant factor,
however, in determining whether it is a highway under Section 102 of the Motor Vehicle
Code. Instead, the dispositive question is whether Fairley Road is open to the public for
vehicular traffic. We conclude there is sufficient evidence in the record to support
highway status for Fairley Road.
There is no signage designating Fairley Road as a private roadway. Cars travel
along Fairley Road to get to the homes situated along the street. No signage erected on
the road instructs motorists that trespassing is not permitted. Fairley Road is a “loop” on
which the means of entrance and exit are the same. Fairley Road is a public road
maintained by Ross Township. In addition, Ross Township erected the street sign
showing the name of the road. There is no evidence in the record establishing that
Fairley Road is not open to members of the public. We may infer from the foregoing
circumstances that Fairley Road was open to postal authorities, delivery services,
visitors, and other members of the public without restriction. Under these
circumstances, we conclude there was ample evidence to support the trial court’s
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finding that Fairley Road constituted a highway within the meaning of Section 102 of the
Vehicle Code.
Ansell, 143 A.3d 944 (Pa. Super. 7/15/16)
On September 26, 2014, while on patrol in his marked police cruiser, Trooper
Shawn Panchik of the Pennsylvania State Police observed Slattery driving his Dodge
Durango traveling east on Route 30 in the area of North Hills Road in York County.
Trooper Panchik drove behind the Durango as it changed from the right lane to the left
turn-only lane. As the Durango approached the intersection of North Hills and Industrial
Roads, the trooper followed the vehicle as it turned left onto Industrial Road. After
making the turn, Trooper Panchik initiated a traffic stop. Trooper Panchik initiated the
traffic stop after he observed Slattery’s vehicle make a lane change without signaling at
least one hundred feet prior to making that lane change.
Pursuant to this Commonwealth's Vehicle Code:
(a) General rule. — Upon a roadway no person shall turn a vehicle
or move from one traffic lane to another or enter the traffic stream
from a parked position unless and until the movement can be made
with reasonable safety nor without giving an appropriate signal in
the manner provided in this section.
(b) Signals on turning and starting. — At speeds of less than 35
miles per hour, an appropriate signal of intention to turn right or left
shall be given continuously during not less than the last 100 feet
traveled by the vehicle before turning. The signal shall be given
during not less than the last 300 feet at speeds in excess of 35
miles per hour. The signal shall also be given prior to entry of the
vehicle into the traffic stream from a parked position.
75 Pa.C.S. § 3334 (emphasis added).
The words of the statute are clear that the 100-foot rule applies to a vehicle
turning, it is silent regarding the length that a signal must be activated prior to changing
lanes. Moreover, the language found throughout the remaining subsections of 3334 is
consistent with the interpretation that the term "before turning" means before a vehicle
makes a turn onto another roadway, not before a person changes lanes. See id. at
§ 3334(a) ("Upon a roadway no person shall turn a vehicle or move from one traffic
lane to another. . . unless and until the movement can be made with reasonable safety
nor without giving an appropriate signal in the manner provided in this section."); id. at
§ 3334(d) ("Turn signals shall be discontinued immediately after completing the turn
or movement from one traffic lane to another traffic lane.")
Because Trooper Panchik testified that Slattery appropriately activated his signal
prior to changing lanes, the trooper did not have probable cause to believe that Slattery
had violated the general rule for signaling found in Section 3334(a). Because the stop
was unlawful, any evidence flowing from it should have been suppressed.
Slattery, 139 A.3d 221 (Pa. Super. 5/13/16)
105
Section 4303 of the Vehicle Code states that “[e]very vehicle operated on a
highway shall be equipped with a rear lighting system including, but not limited to, rear
lamps, rear reflectors, stop lamps and license plate light, in conformance with
regulations of the department.” 75 Pa.C.S. § 4303(b). Department regulations at 67 Pa.
Code §§ 175.80(a)(9)(i) and 175.66(k) provide a vehicle is not in compliance with the
Vehicle Code if “[a]n exterior bulb or sealed beam, if originally equipped or installed,
fails to light properly,” and “the registration plate lamp shall emit white light and make
the registration plate visible from [a] distance of 50 feet to the rear of the vehicle.”
In this case, Officer Sheaffer determined the license plate lamp was out, which
meant the plate was not illuminated, which in turn meant that the registration plate could
not have been visible from a distance of 50 feet to the rear of the vehicle at 3:00 a.m.
Officer Sheaffer possessed probable cause to stop defendant’s vehicle, as this was a
violation of the Vehicle Code. Nothing more needed to be determined by Officer
Sheaffer upon a stop to verify that the plate light was not operating. It is of no moment
that the officer was 75 feet away from the vehicle when he determined the plate was not
illuminated, or that Officer Sheaffer did not verify the license plate light did not illuminate
the license within the required 50 feet prior to the stop. Probable cause does not require
certainty, but rather exists when criminality is one reasonable inference, not necessarily
even the most likely inference. Here, while Officer Sheaffer initially merely suspected
the traffic violation at issue, he was able to confirm the violation by driving within 75 feet
of defendant’s vehicle and turning his headlights off. Once he turned his headlights off,
he indeed confirmed the plate was not illuminated. The lights were out. Although
observed from 75 feet, this observation provided sufficient trustworthy facts to
reasonably believe the lights also were out at 50 feet.
Salter, 121 A.3d 987 (Pa. Super. 8/4/15)
Link to: Shogan, J. concurring
TERRORISTIC THREATS
Terroristic threats do not have to be communicated directly. See Commonwealth
v. Kelley, 444 Pa. Super. 377, 385-386, 664 A.2d 123, 127 (8/17/95), appeal denied,
544 Pa. 603, 674 A.2d 1068 (1996) (holding a threat was communicated when Kelley
gave a secretary a message to threaten violence to certain intended recipients).
Further, a defendant does not need to intend to carry out the consequence of the threat
to communicate a threat. See Commonwealth v. Cancilla, 437 Pa. Super. 317, 322, 649
A.2d 991, 994 (11/9/94) (holding a threat was communicated by a phone call that stated
a bomb was in a building, although there was no bomb).
Defendant had a link on his Facebook page to a YouTube video titled "Fuck the
Police." Although his Facebook page did not list his full, legal name, he used the name
"Beaz Mooga" which does not completely disguise his last name, Beasley. The rap
video specifically threatened to kill Officers Zeltner and Kosko "wit a glock." We need
not ponder whether deciding to broadcast songs or linking YouTube videos to one's
Facebook page generally indicates intent to communicate, because defendant stated
106
his intent by saying in his rap song: "My momma told me not to put this on C.D., but I'm
gonna make this fuckin city believe me, so nigga turn me up." Defendant chose not to
listen to his mother because he wanted Officers Zeltner and Kosko to hear his
message, and they did. He successfully and intentionally communicated his threat.
Thus, defendant's challenge to the sufficiency of the evidence for his terroristic threats
convictions merits no relief.
Beasley, 138 A.3d 39 (Pa. Super. 4/28/16)
appeal denied, ___ Pa. ___, ___ A.3d ___ (11/22/16)
UNLAWFUL CONTACT WITH MINOR
When the most serious underlying offenses for which the defendant contacted
the minor were offenses for which the defendant was acquitted, defendant may only be
sentenced under the default grading.
SAYLOR, J. CONCURRING: Result may be compelled by Apprendi. In instances
in which the Commonwealth does not charge underlying crimes, it may be incumbent
upon it to secure special jury findings to support enhanced sentencing.
Reed, 607 Pa. 629, 9 A.3d 1138 (12/21/10)
Link to: Eakin, J. dissenting
Jury acquitted defendant of involuntary deviate sexual intercourse (IDSI), but
convicted him of unlawful contact with a minor. The grading of the unlawful contact
offense depends upon the grade of the offense for which defendant contacted the
minor. However, unlike as in Reed, 607 Pa. 629, 9 A.3d 1138 (12/21/10), in this case
the jury was specifically instructed that in order to find defendant guilty of unlawful
contact with a minor, it had to conclude that defendant attempted to contact the victim
for the purpose of committing IDSI.
Thus, when the jury returned a verdict of guilty on the unlawful contact with a
minor offense, it must have concluded, as a matter of fact, that defendant contacted the
victim for the purpose of engaging in IDSI. Therefore, the jury did find that a first-degree
felony was “the most serious underlying offense . . . for which the defendant contacted
the minor[.]” 18 Pa.C.S. § 6318 (b)(1). The trial court properly sentenced defendant for a
first degree felony.
Aikens, 139 A.3d 244 (Pa. Super. 5/20/16)
The Commonwealth charged defendant, generally, with committing unlawful
contact as defined by Section 6318(a)(1); it did not define what specific Chapter 31
offense(s) defendant intended to commit when he contacted the victims in this case.
However, the trial court instructed the jury that, to find defendant guilty of unlawful
contact, it must conclude, inter alia, that defendant "was intentionally in contact with a
minor, and that the contact was for the purpose of engaging in an unlawful act; that
107
unlawful act being sexual assault and/or indecent assault with a child under 13 years of
age. . . ." The Commonwealth did not object to the trial court's instruction.
According to defendant, the court's instruction narrowed the scope of his unlawful
contact charges and required the Commonwealth to prove, beyond a reasonable doubt,
that he contacted the complainants with that specific intent, that is, to commit indecent
assault or sexual assault. Defendant then discusses why the evidence was inadequate
to prove that he contacted the victims with this intent.
Defendant offers no binding, legal authority to support his argument that the trial
court's jury instruction required the Commonwealth to prove that he intended to commit
indecent assault or sexual assault, rather than any Chapter 31 offense. For instance,
defendant relies on the Third Circuit Court of Appeals' decision in United States v.
McElroy, 644 F.2d 274, 280 (3rd Cir. 3/17/81) (concluding that where the trial court's jury
charge, to which the prosecutor did not object, narrowed the definition of the charged
crime, the conviction must rest on proof of the crime as defined by the court).
Defendant's reliance on McElroy is unavailing. Absent a United States Supreme Court
pronouncement, decisions of federal courts are not binding on state courts.
Here, defendant was on notice that he was charged with four counts of unlawful
contact with the intent to commit a Chapter 31 offense. Again, defendant does not
contend that the Commonwealth was required to specify, in the criminal information, the
Chapter 31 offense(s) he intended to commit when contacting the minor victims.
Further, defendant's argument that this Court is constrained to assessing only the
sufficiency of the evidence to prove he committed the specific crimes stated by the court
in its jury instruction is not supported by any binding legal authority.
Walker, 139 A.3d 225 (Pa. Super. 5/13/16)
Defendant approached the victim in an alley next to a corner store located at
2033 Orthodox Street, Philadelphia, and asked him if he needed anything. The victim
told defendant that he did not need anything from defendant and that he was in the alley
"just looking for a place to go to the bathroom." Defendant then asked the victim, "What
do you got?" The victim told defendant that he "did not have anything." At that moment,
defendant pulled out a silver revolver and pressed it against the victim's cheek.
Defendant them slammed the victim against the hood of a nearby motor vehicle and
rummaged through the victim's pockets. Defendant took fifty dollars and a cellular
phone from the victim and ran away.
The crime of terroristic threats is committed when a person "communicates,
either directly or indirectly, a threat to commit any crime of violence with intent to
terrorize another." 18 Pa.C.S. § 2706(a)(1). An express or specific threat is not
necessary to sustain a conviction for terroristic threats. Consequently, it is unnecessary
for an individual to specifically articulate the crime of violence which he or she intends to
commit where the type of crime may be inferred from the nature of the statement and
the context and circumstances surrounding the utterance of the statement.
Here, it is reasonable to infer from the totality of circumstances that defendant's
question, posed in a dark alley to the victim after he had already indicated he wished to
be left alone, was intended both to serve notice that the victim would not be left alone
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and to place him in a resultant state of fear and submission. When the victim, instead,
rebuffed him a second time, defendant immediately acted on his implied threat of force
by placing a gun against the victim's face to effectuate the robbery. Accordingly,
because evidence of defendant's words and conduct established beyond a reasonable
doubt a threat to commit a crime with the intent to terrorize his victim, the evidence was
sufficient to prove terroristic threats were made.
Martinez, 153 A.3d 1025 (Pa. Super. 12/29/16)
WITNESS: COMPULSORY PROCESS
N.M. and J.B. were involved in an alleged retail theft. In the adjudicatory hearing
for N.M., she sought to call J.B. as a defense witness. The juvenile court judge refused
to allow J.B. to testify based on a concern that J.B. would incriminate herself. Defendant
argued that the juvenile court erred in so doing because J.B. was represented by
counsel, was fully advised of her right against self-incrimination, and wished to testify on
defendant's behalf.
We conclude that a juvenile may waive his or her right against self-incrimination
in the context of providing witness testimony if the waiver is knowing, intelligent, and
voluntary. In determining whether such waiver is proper, we believe that a totality-of-thecircumstances test strikes the proper balance between accounting for the
disadvantages associated with one's youth and ensuring the interests of justice are
served. We therefore adopt that test today and, in so doing, hold that the following
factors are among those to be considered when implementing this approach: the
juvenile's youth, experience, comprehension, and the presence or absence of an
interested adult; the presence or absence of appointed counsel; the advice provided by
counsel; and whether the juvenile was facing criminal charges arising from the same
incident at issue. Moreover, any evidence of coercion or improper suggestion on behalf
of the defendant, other witnesses, the attorneys involved, and the juvenile court is also
to be considered. Finally, the juvenile court shall conduct an on-the-record colloquy to
ensure that the juvenile is fully aware of both the nature of the right being abandoned
and the consequences of the decision to abandon it.
The record does not reveal that such a colloquy was conducted. In the absence
of this colloquy, we have little basis upon which to confirm that J. B. was fully aware of
both the nature of her Fifth Amendment right against self-incrimination and the
consequences of waiving that right. Moreover, we have no indication of the manner in
which her youth, experience, and comprehension impacted her decision, or whether
there was any indication that J.B. was coerced or otherwise influenced improperly when
making her decision. Given these circumstances (i.e., no on-the-record-colloquy), we
hold that the juvenile court's refusal to permit J.B. to waive her Fifth Amendment right
was in error. Thus, defendant is entitled to a new disposition wherein the juvenile court
shall perform a proper colloquy with respect to J.B.'s waiver of her Fifth Amendment
rights and give full consideration to all of the factors.
In re N. M., 141 A.3d 539 (Pa. Super. 6/14/16)
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WITNESS: CONFRONTATION
Although the medical examiner is independent, "[i]n the exercise of his duties as
contained in this subdivision, the [medical examiner] shall, so far as may be practicable,
consult and advise with the district attorney." 16 P.S. § 1242. Although not all autopsies
in Pennsylvania are used in court proceedings, the statutory framework contemplates
that the autopsy report will be used in a criminal trial when the circumstances suggest
that the death was sudden, violent or suspicious or was the result of other than natural
causes. In this case, the circumstances surrounding Morton's death suggest that his
death was sudden, violent and suspicious and not the result of natural causes. A
relatively young male died in the middle of the street after being shot multiple times. As
such, based upon the statutory framework in Pennsylvania and the circumstances
surrounding Morton's death, it is evident that the autopsy report in this case was
testimonial in nature.
We hold that an autopsy report that is prepared because of a sudden, violent, or
suspicious death or a death that is the result of other than natural causes, is testimonial.
Such an autopsy report is prepared to prove a fact, i.e., the victim's cause and manner
of death, that an objective observer would reasonably believe could later be used in a
criminal prosecution. As such autopsy reports are testimonial and the author of the
autopsy report is required to testify at trial in order to satisfy the Confrontation Clause.
In this case, Dr. Osbourne did not testify and appellant did not have a chance to crossexamine him prior to trial. Accordingly, appellant's Confrontation Clause rights were
violated by the admission of the autopsy report in this case.
The Confrontation Clause is not violated when an expert expresses his or her
independent conclusions based upon his or her review of inadmissible evidence.
Williams v. Illinois, 567 U.S. ___, 132 S.Ct. 2221, 183 L.Ed.2d 89 (6/18/12) (Alito, J.
announcing the judgment of the Court). However, the underlying inadmissible evidence
does not become admissible based upon the expert's independent conclusions and his
or her reliance on such inadmissible evidence. See id. at 2256-2257 (Thomas, J.
concurring); id. at 2268-2269 (Kagan, J. dissenting). Thus, we turn to Pennsylvania law
regarding what evidence an expert can rely upon in order to offer his or her own
independent conclusions.
Under Pennsylvania Rule of Evidence 703:
An expert may base an opinion on facts or data in the case that the
expert has been made aware of or personally observed. If experts
in the particular field would reasonably rely on those kinds of facts
or data in forming an opinion on the subject, they need not be
admissible for the opinion to be admitted.
Pa.R.Ev. 703
Courts in Pennsylvania have long held that such independent conclusions based
upon inadmissible evidence are admissible. A medical expert may express his opinion
on the cause of death based upon the report of a non-testifying physician who
examined the body. Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (7/27/78).
See also Commonwealth. v. Ali, 608 Pa. 71, 111-112, 10 A.3d 282, 306 (12/29/10) ("[A]
medical expert who did not perform the autopsy may testify as to cause of death as long
110
as the testifying expert is qualified and sufficiently informed[.]"); Commonwealth v.
Smith, 480 Pa. 524, 531-532, 391 A.2d 1009, 1012-1013 (10/5/78) (permitting
pathologist to testify regarding cause of death based upon findings of an autopsy
performed by a non-physician).
Dr. Albert Chu, an assistant medical examiner, testified as an expert witness as
to the cause and manner of Morton's death. Dr. Chu neither assisted nor was present at
Morton's autopsy which was performed by Dr. Marlon Osbourne. Dr. Chu's independent
conclusions regarding the cause and manner of Morton's death were admissible. During
trial, Dr. Chu testified that it was his own independent conclusion that the cause of
death was multiple gunshot wounds and that the manner of death was homicide. He
emphasized that these conclusions were his own and not a mere parroting of Dr.
Osbourne's conclusions as set forth in the autopsy report.
Brown, 139 A.3d 208 (Pa. Super. 5/10/16)
appeals granted, Nos. 40, 41 EAP 2016 (granted 12/14/16)
WITNESS: EXPERT
We find that the use of expert testimony regarding eyewitness testimony when
relevant does not improperly intrude upon the jury’s credibility determinations and that
cross-examination of a witness, and closing argument, are insufficient to convey factors
To be admissible under Pa.R.E. 702 proffered expert testimony must also
address matters beyond the knowledge possessed by the average layperson. The
potential fallibility of eyewitness identification is beyond the knowledge possessed by
the average layperson.
Factors at issue in this appeal — concerning weapons focus; the reduced
reliability of identification in cross-racial identification cases; decreased accuracy in
eyewitness identifications in high-stress/traumatic situations; the risk of mistaken
identification when police investigators do not warn a witness, prior to viewing a photo
array or line up, that the perpetrator may or may not be in the display; and the lack of
correlation between witness statements of confidence and witness accuracy — all are
topics which the average juror may know little about. Thus, in light of misconceptions
ordinary individuals may possess regarding eyewitness testimony, and its presumption
of reliability, we conclude that, as a general proposition, the particular area of expert
testimony at issue in this appeal may be beyond the ken of the average juror, and thus,
as a threshold matter, possibly subject to expert testimony.
Here, there was no direct evidence against defendant other than eyewitness
identifications. Thus, the eyewitness identifications were central to defendant’s
conviction. Moreover, defendant was the subject of cross-racial identification, made by
witnesses that were under stress, and who were robbed at gunpoint. The police in this
appeal did not instruct the witnesses when viewing the array that their assailant may or
may not have been included in the array, and finally, while one witness equivocated
during her identification of defendant during the array and lineup, she declared with
confidence her identification at trial. We believe at least in these limited circumstances,
expert testimony on these aspects of eyewitness identification could be highly relevant.
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While numerous Frye jurisdictions have accepted eyewitness identification
expert testimony as being admissible under the Frye standard, the Commonwealth has
raised sufficient questions about certain methodology in this area to warrant further
inquiry by the trial court through a Frye hearing. Accordingly, we remand this matter to
the trial court for a determination of the appropriateness of a Frye hearing, consistent
with our decision today.
We envision that allowing such expert testimony would be limited to certain
cases. As discussed below, such testimony would only be permitted where relevant.
While we need not precisely define such situations, generally speaking, it would be
where the Commonwealth’s case is solely or primarily dependent upon eyewitness
testimony.
Trial courts will exercise their traditional role in using their discretion to weigh the
admissibility of such expert testimony on a case by case basis. It will be up to the trial
court to determine when such expert testimony is appropriate. If the trial court finds that
the testimony satisfies Frye, the inquiry does not end. The admission must be properly
tailored to whether the testimony will focus on particular characteristics of the
identification at issue and explain how those characteristics call into question the
reliability of the identification. We find the defendant must make an on-the-record
detailed proffer to the court, including an explanation of precisely how the expert’s
testimony is relevant to the eyewitness identifications under consideration and how it
will assist the jury in its evaluation. The proof should establish the presence of factors
(e.g., stress or differences in race, as between the eyewitness and the defendant) which
may be shown to impair the accuracy of eyewitness identification in aspects which are
(or to a degree which is) beyond the common understanding of laypersons.
Disapproving: Spence, 534 Pa. 233, 627 A.2d 1176 (6/30/93); Simmons, 541
Pa. 211, 662 A.2d 621 (7/19/95), cert. denied, 516 U.S. 1128, 116 S.Ct. 945, 133
L.Ed.2d 870 (1996); Abdul-Salaam, 544 Pa. 514, 678 A.2d 342 (6/18/96), cert. denied,
520 U.S. 1157, 117 S.Ct. 1337, 137 L.Ed.2d 496 (1997); Bormack, 827 A.2d 503 (Pa.
Super. 6/16/03), appeal denied, ___ Pa. ___, ___ A.2d ___ (3/2/04).
Walker, 625 Pa. 450, 92 A.3d 766 (5/28/14)
Link to: Castille, C. J. dissenting
Link to: Eakin, J. dissenting
Walker, 625 Pa. 450, 92 A.3d 766 (5/28/14), permits exclusion of expert
testimony about eyewitness identifications on grounds of relevance if the case is not
“solely and primarily dependent” on the identifications, but we do not read Walker to
require such exclusion. The “solely or primarily dependent” test is notably more
stringent than the general test of relevance set forth in Evidence Rule 401. The
Supreme Court in Walker repeatedly emphasized the broad discretion that is vested in
trial courts regarding the admission of such expert testimony. We understand Walker to
hold that expert evidence about eyewitness identifications is most clearly relevant where
a case is solely or primarily dependent on the identifications, but that a trial court has
discretion to determine that the evidence is relevant in other situations too, weighing its
admissibility on a case-by-case basis. In most cases that do not turn solely or primarily
112
on eyewitness identifications, trial courts are most likely to conclude that proffered
expert identification evidence is not relevant.
In addition, as the Supreme Court in Walker emphasized, trial courts retain
broad discretion under Evidence Rule 403 to weigh the probative value of the proffered
evidence against concerns about such things as unfair prejudice, jury confusion, delay,
and the inefficiencies resulting from presentation of cumulative evidence. The scales in
that balance necessarily weigh less in favor of admitting the evidence when its
relevance to the case — and, thus, its probative value — is weaker. Therefore, in those
cases that are not solely or primarily dependent on eyewitness identifications, a trial
court may more readily exclude proffered expert evidence about such identifications
upon a showing of countervailing concerns.
In view of the abundance of circumstantial evidence that was produced at trial,
we conclude that the trial court correctly held that the Commonwealth’s case against
defendant did not solely or primarily depend on identification testimony. In light of all of
the circumstantial evidence, the Commonwealth’s case was not “solely” dependent on
eyewitness identification. And a review of the record makes clear that it was not
“primarily” dependent on the identification either. Rather, the primary evidence in the
case was the forensic evidence linking defendant to the crime scene and demonstrating
defendant’s common scheme in Luzerne County. While identification of defendant
certainly was an element of the Commonwealth’s case, the bulk of the case was
comprised of other evidence. Accordingly, defendant’s proffered expert testimony was
not relevant and admissible under the portion of the Walker opinion that set forth the
“solely or primarily dependent” test for determining admissibility.
Defendant did not make any argument that the expert testimony was relevant
was relevant upon any grounds other than the “solely or primarily dependent” test.
Selenski, ___ A.3d ___ (Pa. Super. 3/16/17)
WITNESS – INTIMIDATION
On June 30, 2012, while arguing with his wife, defendant struck her, knocked her
to the ground, and attempted to force her back into their home; she escaped and drove
to the police station. Police charged defendant with harassment and simple assault.
While in prison awaiting his preliminary hearing, defendant tried to call his wife (the
victim) multiple times; she did not answer because the calls upset her. On July 14,
2012, defendant called his father, who called the victim on a separate phone and
relayed defendant's statements to her, establishing a three-way call on the two phones.
Defendant insisted his wife tell the magistrate she would not testify, that she made a
mistake, and that she caused her own injuries. If she failed to do so, defendant stated
he would go to jail for two years, starve, and lose everything. He also told her that she
must comply for the sake of their marriage, which he repeatedly described as
"priceless." Defendant stated that if his wife was charged with making false statements,
he would pay her fines. Two days later, she told police she no longer wished to press
charges. Defendant was convicted of intimidation of a witness.
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People may purposely intimidate in any number of ways, without manifesting
bullying or fearsome words, and if they do so with the requisite mens rea, the crime is
made out.
Brachbill, 520 Pa. 533, 555 A.2d 82 (3/6/89), did not vitiate the need to prove
intimidation. Rather, it disagreed with the argument that the statute requires threats or
attempts of coercion. Where Brachbill goes awry is in suggesting a pecuniary benefit, in
and of itself, comprises intimidation. Such an inducement may or may not intimidate, but
the legislature replaced the element of inducement with the element of intimidation. The
legislature did not state that inducements cannot suffice to constitute intimidation; it said
the opposite.
Brachbill did not abolish the Commonwealth's need to prove intimidation.
Whether an offer of a pecuniary or other benefit contains sufficient indicia of intimidation
is to be determined by the fact finder and assessed under the totality of the
circumstances, cognizant that proof of manifest threats is not required. Insofar as
Brachbill is read to mean pecuniary inducement alone will suffice without proof of
intimidation, it is disapproved.
Defendant "berated his wife, directly and indirectly, to not testify. Given
defendant’s history of threatening behavior toward his wife, (“[H]e said if I ever tried to
leave him he’d kidnap me and chain me into a basement, or . . . kill [me].”), and
“invective” during the prison recording, we agree there was sufficient evidence for the
jury to find defendant attempted to intimidate his spouse.
Doughty, ___ Pa. ___, 126 A.3d 951 (11/18/15)
Link to: Saylor, C. J. concurring
This matter arises from defendant's telephone and in-person conversations with
his girlfriend while incarcerated and awaiting trial in a rape case. In those conversations,
defendant asked his girlfriend to contact the victim in the rape case and offer to pay her
not to testify. Defendant was convicted of soliciting the intimidation of a witness.
The Doughty Court concluded that the fact-finder cannot infer intimidation from
the mere offer of a pecuniary benefit not to testify. Rather, there must be other evidence
from which the fact-finder can infer intimidation, such as a prior relationship between the
defendant and victim or the manner in which the defendant made the pecuniary offer
not to testify.
Unlike the facts in Doughty, in this case there was no evidence of a history of
violent interactions between the defendant and the victim and no invective conversation
making the pecuniary offer to the victim. Rather, the Commonwealth's only evidence
was a conversation between the defendant and a third party to make a pecuniary offer.
We conclude that this, without more, is evidence merely of an intention to "induce," and
not to "intimidate" a witness from not testifying.
Evans, ___ A.3d ___ (Pa. Super. 4/6/17)
Link to: Stevens, P.J.E. concurring
114
WITNESS: OPINION BY LAY PERSON
Prosecutor cross examined a defense witness by relating the arguably
inconsistent testimony by other previous witnesses and asking the witness whether the
previous witnesses were “lying?”
The question was improper. Lay persons are not permitted to offer an opinion as
to the truthfulness of another person’s testimony. However, in this case the error was
harmless.
Yockey, ___ A.3d ___ (Pa. Super. 4/4/17)
115