CRIMINAL LAW UPDATE
Adams County Bench Bar Conference (October 2015)
TABLE OF CONTENTS
ACCOMPLICE ............................................................................................................................... 1
ARREST – STOP ........................................................................................................................... 3
ATTORNEY ................................................................................................................................... 7
BAIL ............................................................................................................................................... 8
BURGLARY................................................................................................................................. 12
CAUSATION ............................................................................................................................... 13
CHANGE OF VENUE ................................................................................................................. 14
CIVIL COMMITMENT ............................................................................................................... 15
COMPETENCY TO BE EXECUTED ......................................................................................... 17
COMPETENCY TO STAND TRIAL .......................................................................................... 18
CONFESSION – ASSERTION OF RIGHTS .............................................................................. 18
CONFESSION – CUSTODY ....................................................................................................... 21
CONFESSION – VOLUNTARINESS ......................................................................................... 21
CONSOLIDATON – DEFENDANTS ......................................................................................... 22
CONSPIRACY ............................................................................................................................. 23
CONTEMPT OF COURT ............................................................................................................ 28
CORRUPTION OF MINORS ...................................................................................................... 30
CRUELTY TO ANIMALS........................................................................................................... 30
DISCOVERY ................................................................................................................................ 31
DISORDERLY CONDUCT ......................................................................................................... 33
DOUBLE JEOPARDY ................................................................................................................. 34
DRIVING UNDER SUSPENSION .............................................................................................. 35
DRIVING UNDER THE INFLUENCE ....................................................................................... 35
DRUGS – INTENT TO DELIVER .............................................................................................. 38
ENDANGERING WELFARE OF CHILD .................................................................................. 41
ESCAPE........................................................................................................................................ 42
EVIDENCE – AUTHENTICATION ........................................................................................... 43
EVIDENCE – CHARACTER ...................................................................................................... 46
EVIDENCE – INFLAMMATORY .............................................................................................. 46
EVIDENCE – STIPULATION..................................................................................................... 47
EXPUNGEMENT......................................................................................................................... 47
GUILTY PLEA ............................................................................................................................. 48
HEARSAY – COURSE OF CONDUCT ..................................................................................... 50
HEARSAY – DEFINITION ......................................................................................................... 51
HEARSAY – PRIOR TESTIMONY ............................................................................................ 53
HINDERING APPREHENSION ................................................................................................. 54
HOMICIDE – THIRD DEGREE MURDER ............................................................................... 55
IDENTIFICATION....................................................................................................................... 55
INEFFECTIVENESS – FAILURE TO CALL WITNESS .......................................................... 56
INEFFECTIVENESS – STANDARD OF REVIEW ................................................................... 58
INFORAMTION........................................................................................................................... 59
i
INVOLUNTARY DEVIATE SEXUAL INTERCOURSE .......................................................... 61
JUDICIAL DECORUM................................................................................................................ 62
JURY – DELIBERATIONS ......................................................................................................... 63
JURY – INCONSISTENT VERDICTS ....................................................................................... 63
JURY CHARGE - ACCOMPLICE .............................................................................................. 64
JUVENILE .................................................................................................................................... 66
KIDNAPPING .............................................................................................................................. 67
OBSTRUCTING ADMINISTRATION OF JUSTICE ................................................................ 68
PCRA ............................................................................................................................................ 69
POSSESSION ............................................................................................................................... 71
POSSESSION OF WEAPON ON SCHOOL PROPERTY ......................................................... 76
PRELIMINARY HEARING ........................................................................................................ 76
PRIOR CRIMES ........................................................................................................................... 77
PRIVILEGES ................................................................................................................................ 80
PRO SE DEFENDANT ................................................................................................................ 81
PROBABLE CAUSE – COLLECTIVE KNOWLEDGE ............................................................ 81
PROBABLE CAUSE – CONDUCT ............................................................................................ 82
RAPE ............................................................................................................................................ 88
RAPE SHIELD LAW ................................................................................................................... 89
RULE 600 ..................................................................................................................................... 89
SEARCH AND SEIZURE - BLOOD........................................................................................... 90
SEARCH AND SEIZURE – BURDEN OF PROOF ................................................................... 91
SEARCH AND SEIZURE – CONSENT ..................................................................................... 91
SEARCH AND SEIZURE – CONSENT (THIRD PARTY) ....................................................... 94
SEARCH AND SEIZURE – CONTAINERS .............................................................................. 94
SEARCH AND SEIZURE - COURTHOUSE ............................................................................. 96
SEARCH AND SEIZURE - CURTILAGE .................................................................................. 97
SEARCH AND SEIZURE – EXPECTATION OF PRIVACY ................................................. 101
SEARCH AND SEIZURE – EXIGENT CIRCUMSTANCES .................................................. 101
SEARCH AND SEIZURE – INFORMANT (ANONYMOUS) ................................................ 110
SEARCH AND SEIZURE – PLAIN VIEW, PLAIN FEEL ...................................................... 112
SEARCH AND SEIZURE – ROADBLOCK ............................................................................. 114
SEARCH AND SEIZURE – WARRANT ................................................................................. 119
SENTENCE - CREDIT .............................................................................................................. 120
SENTENCE – EXCESSIVE....................................................................................................... 121
SENTENCE – GUIDELINES .................................................................................................... 122
Deadly weapon - § 303.10(a) .................................................................................................. 122
Youth/School enhancement - § 303.10(b) .............................................................................. 123
SENTENCE – INTERMEDIATE PUNISHMENT.................................................................... 123
SENTENCE – JUVENILE ......................................................................................................... 124
SENTENCE – MANDATORY MINIMUM .............................................................................. 124
Effect of Alleyne v. United States .......................................................................................... 124
42 Pa.C.S. § 9714 (Second and subsequent offenses) ........................................................... 126
Sentencing guidelines remain constitutional .......................................................................... 127
SENTENCE – MERGER ........................................................................................................... 127
SENTENCE – PROBATION AND PAROLE ........................................................................... 129
ii
SENTENCE – RESTITUTION .................................................................................................. 131
SENTENCE - RRRI ................................................................................................................... 132
SENTENCE – WORK RELEASE ............................................................................................. 133
SEXUAL OFFENDER REGISTRATION ................................................................................. 134
SUMMARY OFFENSES ........................................................................................................... 134
VENUE ....................................................................................................................................... 135
WIRETAP ................................................................................................................................... 137
WITNESS – CONFRONTATION ............................................................................................. 138
WITNESS – EXPERT ................................................................................................................ 142
WITNESS – IMPEACHMENT .................................................................................................. 144
iii
ACCOMPLICE
The trial court conducted a charging conference, at which time it provided the
parties with a draft of its proposed charge to the jury and ruled on various requests for
additional instructions. During this charging conference, the Commonwealth did not
request a charge on "accomplice liability," ask that the term be defined, or otherwise
object to the absence of a charge or definition. During its charge to the jury, the trial
court used the word "accomplice" four times, all while summarizing the charges in the
informations filed against the co-defendants.
After the trial court completed its charge, the jury began deliberations and later
that day it posed a question concerning "the definitions as to what [the trial court] read
to us." In the discussion between counsel and the trial court regarding how to respond
to the jury's inquiry, counsel for the Commonwealth for the first time asked the trial court
to offer an expanded jury instruction to include a charge on accomplice liability.
Although the trial court initially indicated that the request for an instruction on
accomplice liability was too late, it agreed to consider it over the holiday weekend. On
the following Tuesday morning, the trial court stated that it had reconsidered and would
read to the jury an instruction on accomplice liability provided in writing by the
Commonwealth, to which counsel for defendant immediately objected.
Pursuant to Pa.R.Crim.P. 647(A), the trial court is required to rule on all proposed
jury instructions prior to charging the jury and closing summations. The purpose of this
rule is to require the judge to inform counsel in a fair way what the charge is going to be,
so that they may intelligently argue the case to jury. At bottom, the rule requires the trial
court to provide the parties with adequate notice of the instruction before closing
argument, and the rule is plainly violated when the trial court presents a new theory of
liability, or otherwise materially modifies the original instructions, after closing
arguments have been completed.
The trial court's decision to issue a supplemental instruction to the jury on
accomplice liability (in this case after closing arguments) violated Rule 647(A). At no
time prior to closing arguments did the trial court advise counsel that it intended to
instruct the jury on the specifics of accomplice liability, and the Commonwealth did not
request a charge on accomplice liability or object to the absence of such a charge. It
was only after closing arguments and after the jury began deliberating that the
Commonwealth first requested that the trial court instruct the jury, through a
supplemental charge, that defendant could be convicted as an accomplice.
In its August 14, 2012 information filed against defendant, the Commonwealth
did not charge her as an accomplice in any of the seven listed counts. Similarly, at trial
the Commonwealth never referred to defendant as an accomplice in either its opening
or closing arguments to the jury, and on appeal it points us to no evidence that it
introduced at trial to establish her status as an accomplice. The trial court's
supplemental charge on accomplice liability advised the jury, for the first time, that
defendant could be convicted on a new theory of criminal liability (accomplice liability).
Because this supplemental charge to the jury occurred after defendant's closing
argument, it violated Rule 647(A).
Although this issue has not been discussed by any Pennsylvania appellate court
in connection with Rule 647(A), federal courts have held that prejudice resulting from
1
violations of Federal Rule of Criminal Procedure 30 may in some cases be ameliorated
or eliminated by permitting counsel the opportunity for supplemental argument to the
jury. Because neither party raised or briefed the waiver issue, and the novelty under
Pennsylvania law of a violation of Rule 647(A), we will proceed to consider defendant's
claim of actual prejudice on its merits.
On the facts of this case, and considering the nature of the defense presented at
trial, defendant was not prejudiced by this error.
Orie Melvin, 103 A.3d 1 (Pa. Super. 8/21/14)
The weapon offense presently at issue — "[f]irearms not to be carried without a
license" — pertains, inter alia, when an individual carries a concealed firearm on his
person without a license. See 18 Pa.C.S. § 6106(a)(1) (setting forth and elaborating
upon this general rule, as well as delineating a series of exceptions). Obviously, such
permutation, on facial terms, does not apply to unarmed co-perpetrators in a larger
criminal undertaking who simply are not "carr[ying] a firearm concealed on or about
[their] person." Id. Nevertheless, the purport of the Superior Court's present opinion is
that the possessory weapons offense extends to persons who may be accomplices in
the abstract. In substance, the Superior Court's approach embodies the now-defunct
common-law principle that each accomplice bears equal criminal responsibility for all
acts of his associates or confederates committed in furtherance of a common design.
Per the express terms of the Crimes Code, however, accomplice liability has
been made offense-specific. Accordingly, the general rule is that a person is an
accomplice of another in the commission of "an offense" if, acting with the intent to
promote or facilitate the commission of "the offense," he solicits the other person to
commit it or aids, agrees, or attempts to aid the other person in planning or committing
it. 18 Pa.C.S. § 306(c). The broader approaches — including the common-design theory
and the related precept that an accomplice was liable for all of natural and probable
consequences of the principal's actions in the commission of a target offense — were
supplanted by the General Assembly with the adoption of the Crimes Code and its
incorporation of core restraints on criminal liability taken from the Model Penal Code.
After the passage of the Crimes Code, status as an accomplice relative to some
crimes within a larger criminal undertaking or episode no longer per se renders a
defendant liable as an accomplice for all other crimes committed.
Accordingly, the Superior Court should have analyzed whether the evidence and
reasonable inferences, taken in the light most favorable to the Commonwealth as the
verdict winner, supported a conclusion that defendant, acting with the intent to promote
or facilitate his brother's unlicensed carrying of a concealed firearm, solicited his brother
to commit such offense or aided, agreed, or attempted to aid his brother in doing so.
See 18 Pa.C.S. §§ 306(c), 6106(a)(1). In the absence of such a focused examination,
the intermediate court's broader assertion that, as accomplices, defendant and his
brother each was criminally liable for the other's actions in the abstract is unsustainable.
Knox, ___ Pa. ___, 105 A.3d 1194 (12/15/14)
Link to: Eakin, J. concurring
2
ARREST – STOP
Just after midnight on March 27, 2012, police officer Morgan Struble observed a
Mercury Mountaineer veer slowly onto the shoulder of Nebraska State Highway 275 for
one or two seconds and then jerk back onto the road. Nebraska law prohibits driving on
highway shoulders, and on that basis, Struble pulled the Mountaineer over at 12:06 a.m.
Struble is a K–9 officer with the Valley Police Department in Nebraska, and his dog
Floyd was in his patrol car that night. Two men were in the Mountaineer: the driver,
Dennys Rodriguez, and a front-seat passenger, Scott Pollman.
Struble approached the Mountaineer on the passenger’s side. After Rodriguez
identified himself, Struble asked him why he had driven onto the shoulder. Rodriguez
replied that he had swerved to avoid a pothole. Struble then gathered Rodriguez’s
license, registration, and proof of insurance, and asked Rodriguez to accompany him to
the patrol car. Rodriguez asked if he was required to do so, and Struble answered that
he was not. Rodriguez decided to wait in his own vehicle.
After running a records check on Rodriguez, Struble returned to the Mountaineer.
Struble asked passenger Pollman for his driver’s license and began to question him
about where the two men were coming from and where they were going. Pollman
replied that they had traveled to Omaha, Nebraska, to look at a Ford Mustang that was
for sale and that they were returning to Norfolk, Nebraska. Struble returned again to his
patrol car, where he completed a records check on Pollman, and called for a second
officer. Struble then began writing a warning ticket for Rodriguez for driving on the
shoulder of the road.
Struble returned to Rodriguez’s vehicle a third time to issue the written warning.
By 12:27 or 12:28 a.m., Struble had finished explaining the warning to Rodriguez, and
had given back to Rodriguez and Pollman the documents obtained from them. As
Struble later testified, at that point, Rodriguez and Pollman “had all their documents
back and a copy of the written warning. I got all the reason[s] for the stop out of the
way[,] . . . took care of all the business.”
Nevertheless, Struble did not consider Rodriguez “free to leave.” Although
justification for the traffic stop was “out of the way,” Struble asked for permission to walk
his dog around Rodriguez’s vehicle. Rodriguez said no. Struble then instructed
Rodriguez to turn off the ignition, exit the vehicle, and stand in front of the patrol car to
wait for the second officer. Rodriguez complied. At 12:33 a.m., a deputy sheriff arrived.
Struble retrieved his dog and led him twice around the Mountaineer. The dog alerted to
the presence of drugs halfway through Struble’s second pass. All told, seven or eight
minutes had elapsed from the time Struble issued the written warning until the dog
indicated the presence of drugs. A search of the vehicle revealed a large bag of
methamphetamine.
The tolerable duration of police inquiries in the traffic-stop context is determined
by the seizure’s “mission”—to address the traffic violation that warranted the stop,
Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (1/24/05), and
attend to related safety concerns. Because addressing the infraction is the purpose of
the stop, it may last no longer than is necessary to effectuate that purpose. Authority for
the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should
have been—completed.
3
Our decisions in Caballes and Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781,
172 L.Ed.2d 694 (1/26/09), heed these constraints. In both cases, we concluded that
the Fourth Amendment tolerated certain unrelated investigations that did not lengthen
the roadside detention. Johnson, 555 U.S. at 327–328 (questioning); Caballes, 543 U.S.
at 406, 408 (dog sniff). In Caballes, however, we cautioned that a traffic stop “can
become unlawful if it is prolonged beyond the time reasonably required to complete th[e]
mission” of issuing a warning ticket. 543 U.S. at 407. And we repeated that admonition
in Johnson: The seizure remains lawful only “so long as [unrelated] inquiries do not
measurably extend the duration of the stop.” 555 U. S. at 333.
Beyond determining whether to issue a traffic ticket, an officer’s mission includes
“ordinary inquiries incident to [the traffic] stop.” Caballes, 543 U.S. at 408. Typically
such inquiries involve checking the driver’s license, determining whether there are
outstanding warrants against the driver, and inspecting the automobile’s registration and
proof of insurance. These checks serve the same objective as enforcement of the traffic
code: ensuring that vehicles on the road are operated safely and responsibly.
A dog sniff, by contrast, is a measure aimed at detecting evidence of ordinary
criminal wrongdoing. Lacking the same close connection to roadway safety as the
ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic
mission.
Unlike a general interest in criminal enforcement, however, the government’s
officer safety interest stems from the mission of the stop itself. Traffic stops are
“especially fraught with danger to police officers,” Johnson, 555 U.S. at 330 (internal
quotation marks omitted), so an officer may need to take certain negligibly burdensome
precautions in order to complete his mission safely. On-scene investigation into other
crimes, however, detours from that mission. So too do safety precautions taken in order
to facilitate such detours. Thus, even assuming that the imposition here was no more
intrusive than the exit order in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54
L.Ed.2d 331 (12/5/77), the dog sniff could not be justified on the same basis. Highway
and officer safety are interests different in kind from the Government’s endeavor to
detect crime in general or drug trafficking in particular.
If an officer can complete traffic-based inquiries expeditiously, then that is the
amount of “time reasonably required to complete [the stop’s] mission.” Caballes, 543
U.S. at 407. As we said in Caballes and reiterate today, a traffic stop “prolonged
beyond” that point is “unlawful.” Ibid. The critical question, then, is not whether the dog
sniff occurs before or after the officer issues a ticket, but whether conducting the sniff
“prolongs”—i.e., adds time to—“the stop.”
Rodriguez v. United States, ___ U.S. ___, 135 S.Ct. 1609, 191 L.Ed.2d 492 (4/21/15)
When considering whether reasonable suspicion or probable cause is required
constitutionally to make a vehicle stop, the nature of the violation has to be considered.
If it is not necessary to stop the vehicle to establish that a violation of the Vehicle Code
has occurred, an officer must possess probable cause to stop the vehicle. Where a
violation is suspected, but a stop is necessary to further investigate whether a violation
has occurred, an officer need only possess reasonable suspicion to make the stop.
4
Illustrative of these two standards are stops for speeding and DUI. If a vehicle is
stopped for speeding, the officer must possess probable cause to stop the vehicle. This
is so because when a vehicle is stopped, nothing more can be determined as to the
speed of the vehicle when it was observed while traveling upon a highway. On the other
hand, if an officer possesses sufficient knowledge based upon behavior suggestive of
DUI, the officer may stop the vehicle upon reasonable suspicion of a Vehicle Code
violation, since a stop would provide the officer the needed opportunity to investigate
further if the driver was operating under the influence of alcohol or a controlled
substance.
Salter, ___ A.3d ___ (Pa. Super. 8/4/15)
Link to: Shogan, J. concurring
On the morning of January 13, 2013, Mr. Gilmore used an exit driveway to walk
into Parking Lot C at the National Western Stock Show in Denver, Colorado. Mr.
Gilmore was staggering and appeared intoxicated to Mr. Morris, a parking lot attendant.
A second attendant, Richard Gomez, observed Mr. Gilmore to be staggering or
swerving, mumbling to himself, and apparently intoxicated. Shortly thereafter, a police
dispatcher broadcast a brief description and location of Mr. Gilmore, describing him as a
suspicious party who was disoriented.
Lieutenant Vincent Gavito and his brother, Sergeant Dino Gavito, went to Lot C.
The officers spoke to Mr. Garcia, who had seen Mr. Gilmore in the lot and told the
officers Mr. Gilmore appeared "very disoriented" and "obviously out of it." The officers
drove through the parking lot entrance and parked their unmarked police car facing Mr.
Gilmore, who began walking toward the tie-out area entrance where they were waiting.
When the officers encountered Mr. Gilmore, he was wearing a dark red overcoat
over another dark coat, dark jeans, and tennis shoes, carrying a cloth briefcase over his
shoulder, and holding a small plastic bag and a large white jawbreaker in his hands. He
was staring blankly into the air; having difficulty focusing; walking in a meandering,
unsteady fashion; and did not appear to recognize the officers' presence. Lt. Gavito's
first impression upon seeing Mr. Gilmore was that he was a candidate for protective
custody due to his apparent level of intoxication.
The officers, who were both wearing uniforms, exited their car and approached
Mr. Gilmore. Lt. Gavito asked Mr. Gilmore if he was all right and what he was doing in
the lot. Mr. Gilmore turned and looked at Lt. Gavito, apparently registering his presence
for the first time, but did not respond. Lt. Gavito told Mr. Gilmore to put down the items
in his hand, and Mr. Gilmore complied. Lt. Gavito identified himself as a police officer
and repeated his question to Mr. Gilmore, asking what he was doing in the lot. Mr.
Gilmore mumbled an incoherent answer.
Lt. Gavito then asked Mr. Gilmore if he had any weapons. When Mr. Gilmore did
not answer, Lt. Gavito conducted a pat-down search of his outer clothing. Lt. Gavito felt
what he believed to be the butt of a handgun under Mr. Gilmore's coat. He lifted the
coat, saw a pistol, and seized it from Mr. Gilmore's waistband. The officers arrested him
for possessing a firearm while intoxicated in violation of Colorado law. Gilmore was
subsequently prosecuted in federal court based on his status as a felon.
5
The community caretaking function allows police officers to perform investigatory
seizures of intoxicated persons. To ensure community caretaking comports with the
Fourth Amendment, we have emphasized officers must first have probable cause to
take an individual into protective custody. To justify seizure for intoxication by alcohol,
an officer must have probable cause to believe an intoxicated person is a danger to
himself or others.
Although the officers here did not use a breathalyzer or blood draw test to
establish intoxication, other facts available to officers may suffice for them to determine
an individual is intoxicated. In light of the uncontroverted witness testimony and facts
established at the suppression hearing, we conclude the officers had probable cause to
believe Mr. Gilmore was sufficiently intoxicated so as to pose a danger to himself.
First, the officers could reasonably believe Mr. Gilmore was intoxicated based on
his behavior. The dispatcher informed the officers before they arrived that Mr. Gilmore
was a suspicious party who appeared disoriented. When the officers arrived at the lot,
Mr. Garcia told the officers Mr. Gilmore appeared "very disoriented" and "obviously out
of it." The officers' own observations during their interactions with Mr. Gilmore
confirmed this assessment. Lt. Gavito testified Mr. Gilmore "was having a difficult time
focusing," "[h]e was kind of staring off into the air," "he wasn't walking with purpose, in a
straight line," "he was kind of meandering," and "his balance was not very steady."
When the officers tried to engage Mr. Gilmore, he was unable to respond coherently to
basic questions regarding whether he was all right, what he was doing in the area, and
whether he had a weapon.
These conditions led Lt. Gavito to conclude Mr. Gilmore "was definitely under the
influence of alcohol or drugs, or something." The court's factual findings that Mr.
Gilmore was gazing into space, staggering, unsteady, and unable to respond to simple
questions were enough to establish a reasonable belief Mr. Gilmore was sufficiently
intoxicated for protective custody.
Second, it was reasonable for the officers to determine Mr. Gilmore's perception
and reaction time were impaired. When the officers, who were both wearing police
uniforms, exited their vehicle and initially encountered Mr. Gilmore, he did not appear to
notice their presence. Then, when Lt. Gavito approached him, Mr. Gilmore still did not
appear to register his presence until Lt. Gavito greeted him and asked if he was all right.
This evidence could lead a reasonable officer to believe Mr. Gilmore's perception was
limited. The officers' determination that Mr. Gilmore was intoxicated and had impaired
perception informed their assessment that Mr. Gilmore was at risk.
First, although there was no witness testimony that the neighborhood
surrounding the Stock Show placed Mr. Gilmore in immediate danger, there was
testimony that the surrounding neighborhood was dangerous. Lt. Gavito testified the
neighborhood surrounding the Stock Show was "very predominant with gang members"
and "a lot of gang activity," and he testified that in his years working at the Stock Show
he had numerous encounters with unauthorized weapon possession. Witnesses also
testified car thefts had occurred in the adjoining lots. A reasonable officer could believe
Mr. Gilmore could be harmed if he wandered disoriented into one of the surrounding
neighborhoods or areas carrying a briefcase. Additionally, the officers could have
reasonably believed if Mr. Gilmore wandered into another area of the Stock Show or an
6
area outside of the Stock Show with high-speed traffic, he could have been struck by a
car given his impaired state.
Finally, although the court determined Mr. Gilmore's dress was seasonally
appropriate, the officers could have reasonably believed if Mr. Gilmore were to become
unconscious in a remote area or fail to find shelter when the temperature dropped that
evening, he could suffer serious injury or death. Weather that would not be dangerous
to a properly dressed and sober individual can become dangerous when that person is
intoxicated. Although Mr. Gilmore's two coats were appropriate for the weather, this
does not mean Mr. Gilmore was fully protected from the elements. Clothing that might
be sufficient for a mid-day walk does not necessarily provide sufficient protection over
extended periods of exposure in severe cold.
We conclude the totality of the circumstances could lead a reasonable officer to
conclude Mr. Gilmore was a danger to himself because he appeared to be severely
intoxicated to the point of impairment and he was in an environment that posed
significant risks to an impaired individual. We stress that our holding is narrow and
highly fact-dependent. Officers must have probable cause to take an individual into
protective custody, and Mr. Gilmore only contests whether the facts support the officers'
determination that he was a danger to himself. Based on uncontroverted testimony
indicating Mr. Gilmore was highly unresponsive in an unforgiving environment with
considerable risks to his safety, we conclude it was within the scope of the officers'
community caretaking function to ensure he was safe from harm.
Mr. Gilmore concedes that if the officers had probable cause to believe he was a
danger to himself, they were permitted to conduct a pat-down search before taking him
into protective custody.
United States v. Gilmore, 776 F.3d 765 (10th Cir. 1/16/15)
ATTORNEY
Defendant’s fierce physical assault of his counsel in the presence of the court
constitutes “extremely serious conduct” establishing the forfeiture of the right to counsel.
Accordingly, the PCRA court did not err by permitting his attorney to withdraw and
adjudicating appellant’s pro se capital PCRA petition.
Although unnecessary to finding a forfeiture of the right to counsel, we note that
defendant had previously terminated several of his attorneys and was attempting to
terminate his attorney when he attacked him.
Staton, ___ Pa. ___, 120 A.3d 277 (7/20/15)
Link to: Saylor, C. J. concurring
Link to: Todd, J. concurring
7
BAIL
[EDITOR’S NOTE: The following two decisions, the Supreme Court opinion from 2013
and the Superior Court opinion from 2015 (on appeal after remand), should be
compared to the language of Act 16 of 2015 to see if any portion of either ruling has
been superseded by the legislative changes set out in Act 16.]
In September of 2010, the Pennsylvania State Police arrested Ricky Lynn Hann
for assaulting his then-girlfriend, Lisa Souders. Following an initial bail hearing, he was
released on his own recognizance. Contemporaneous to Hann's arrest and release,
Souders obtained a protection from abuse (PFA) order against him.
In November of 2010, police again arrested Hann and charged him with indirect
criminal contempt for violating the PFA order. He was subsequently found guilty, but
apparently remained free. Then, on February 19, 2011, Souders reported to State
Police that the previous day Hann had kidnapped her, and kept her against her will for
approximately 24 hours before she was able to escape. Based upon Souders'
statement, Trooper Gary Ford filed a criminal complaint against Hann, and received and
executed an arrest warrant against him. Hann was arraigned and bail was set at
$100,000.
Following the arraignment, arrangements were made with Paul Weachter, a
professional and licensed bail bondsman, for bail to be posted to secure Hann's release.
As part of his agreement leading to his release, Hann agreed to abide by the conditions
of bail which included the requirement that he not intimidate any witness and that he not
commit any crimes.
The following day, Trooper Ford was dispatched to Souders' residence, after
receiving a report that Hann had accosted Souders and taken her to a wooded area
behind her house. Upon his arrival, Trooper Ford heard three gunshots from the area
behind the home. Trooper Ford carefully investigated the area and discovered the
bodies of Souders and Hann, each dead of apparent shotgun wounds. The county
coroner would determine that Souders died of wounds to her abdomen, which caused
extensive damage to her liver, lungs, and aorta. Hann succumbed to a shotgun wound
to the face. The coroner determined the manners of death of Souders and Hann to be
homicide and suicide, respectively.
On March 1, 2011, the Commonwealth filed a petition for bail forfeiture, pursuant
to Pa.R.Crim.P. 536(A)(2)(a), which provides:
When a monetary condition of release has been imposed and the
defendant has violated a condition of the bail bond, the bail
authority may order the cash or other security forfeited and shall
state in writing or on the record the reasons for so doing.
The Commonwealth contended that, by murdering Souders and killing himself,
Hann violated the above-stated conditions of his bail bond and, therefore, was subject
to forfeiture of the bail. The bail bondsman opposed the petition, citing Rule
536(A)(2)(d), which permits a forfeiture order to be "set aside or remitted if justice does
not require the full enforcement" of the order. The bondsman cited to a three-part test,
originally established by the United States District Court for the Western District of
8
Pennsylvania and since heavily utilized by the Superior Court in considering whether
justice does not require full enforcement of the forfeiture order:
When a defendant breaches a bail bond, without a justifiable
excuse, and the government is prejudiced in any manner, the
forfeiture should be enforced unless justice requires otherwise.
When considering whether or not justice requires the enforcement
of a forfeiture, a court must look at several factors, including: 1) the
willfulness of the defendant's breach of the bond, 2) the cost,
inconvenience and prejudice suffered by the government, and 3)
any explanation or mitigating factors.
United States v. Ciotti, 579 F.Supp. 276, 278 (W.D. Pa. 1984); Commonwealth v.
Mayfield, 827 A.2d 462, 468 (Pa. Super. 5/30/03).
The bondsman contended that the second Ciotti/Mayfield prong requires a
monetary expense or cost to the Commonwealth to be associated with Hann's breach of
his bail bond conditions, and that the Commonwealth could not assert such a cost.
Indeed, the Commonwealth admitted that "Ricky Hann killing Tina Souders was the
cheapest thing that could happen for the Commonwealth in this case" because all
prosecution was now foreclosed.
Preliminarily, we note that this Court has never considered, let alone adopted,
the Ciotti/Mayfield factors as the controlling standard for evaluating whether "justice
requires forfeiture" under Rule 536(A)(2)(d). To that end, the parties only advocate
analysis of this case under the three prongs of Ciotti/Mayfield. We do not fault them in
this regard, as the Ciotti/Mayfield analysis, up to this point, has been binding in the trial
and Superior Courts and is thus the only existing framework in the Commonwealth.
Moreover, we view the construct as a sufficient starting point for determining the
appropriate standard under Rule 536(A)(2)(d).2
2As such, and despite our elaboration of the Ciotti/Mayfield
construct infra, we leave for another day an examination of the
viability of Ciotti, Mayfield, their progeny, and related cases as
neither party explicitly formulates such a challenge.
The decision to order forfeiture in the first instance belongs solely to the
discretion of the trial court. Despite this well-settled discretion, courts have seemingly
concentrated on a strict reading of Mayfield (and, by corollary, Ciotti) that the
Commonwealth must prove a demonstrable monetary loss in order to avail at a
forfeiture proceeding. In contrast, appellate courts in other jurisdictions have warned
that forfeiture decisions should be based upon an examination of the totality of the
circumstances presented in the individual case, and no one point or factor should be
talismanic in making that determination.
Recently, the New Jersey Supreme Court, in State v. Korecky, 169 N.J. 364, 777
A.2d 927 (2001), synthesized a non-exclusive list of various dynamics employed by
appellate courts of both state and federal jurisdictions, especially in cases such as the
one sub judice "involving a condition other than [non]-appearance. . . ." Specifically, the
Korecky Court found relevant the following factors for determining whether justice
required full enforcement of a forfeiture order:
(1) whether the applicant is a commercial bondsman; (2) the extent
of the bondsman's supervision of the defendant; (3) whether the
9
defendant's breach of the recognizance of bail conditions was
willful; (4) any explanation or mitigating factors presented by the
defendant; (5) the deterrence value of forfeiture; (6) the
seriousness of the condition violated; (7) whether forfeiture will
vindicate the injury to public interest suffered as a result of the
breach; (8) the appropriateness of the amount of the recognizance
of bail; and (9) the cost, inconvenience, prejudice or potential
prejudice suffered by the State as a result of the breach. That list is
not exhaustive, and trial courts may consider other factors as
interests of justice require.
Id. at 934-35 (internal citations and quotations omitted).
There is little dispute that Hann's breach of his bail bond conditions was willful,[4]
and that there can be no explanation of mitigating factors presented by a representative
of Hann or the bondsman; thus, the evidence in this case clearly weighs in favor of
forfeiture. Indeed, for purposes of the whole of Pennsylvania law, these two factors
need not be extensively examined, as any evidence of willful misconduct or mitigation
by either a defendant or his surety, and whether that evidence militates in favor of or
against forfeiture, should be self-explanatory.
In regard to this case, perhaps foremost is how various jurisdictions have
examined the cost, inconvenience, and prejudice or potential prejudice, if any, suffered
by the government. Preliminarily, we note that in 1992, this Court, in Chopak, 532 Pa.
227, 615 A.2d 696 (9/30/92), found that a partial forfeiture of bail was a proper
"consequence to one who flees in violation of their bail," despite the fact that the
Commonwealth had not expended any resources in apprehending the defendant.
Accordingly, and albeit outside of the Ciotti/Mayfield construct, this Court has authorized
forfeiture without any evidence of a particularized, monetary detriment to the
Commonwealth.
The relationship between the amount of bail forfeited and the costs incurred by
the state associated with a defendant's violation of his or her recognizance is of no
moment if a concomitant inconvenience or prejudice to the government or court is
otherwise suffered. The fair conclusion, then, is that cost, inconvenience, and prejudice
are significant factors, but remain only one of multiple dynamics for the trial court to
weigh in deciding whether justice requires full, partial, or no forfeiture of bail. Further,
and equally important, neither the lack of pecuniary loss or monetary prejudice should
outweigh the totality of other concerns presented by an individual case.
Courts have uniformly held that a surety's status as a bondsman tends to lean in
favor of forfeiture. The driving force behind a surety's provision of a bond is the profit
motive. In making the business decision of whether to take a bail bond, it is not
unreasonable to conclude that a bondsman should have been fully cognizant of his
responsibilities and the consequences of a defendant's breach of the conditions of the
bond. While bondsmen do not indemnify an absolute guarantee of a defendant's
compliance with bail bond conditions, there does arise a duty on the part of the
bondsman to exercise some minimal supervision over the defendant in order to
accomplish such compliance.
Deterring defendants in general from breaching bail bond conditions, and the
seriousness of the condition breached, are equally important considerations. If a
10
violation of a condition of release is more than technical, the court may require a
substantial forfeiture to deter not only the defendant but others from future violations.
It is self-evident that violating no-contact orders, intimidating or physically
harming witnesses, or committing other crimes while free on bail all constitute serious
bail bond breaches, to which courts may be inclined to respond with forfeiture orders in
order to deter future misconduct. When examining the willfulness of the defendant's
misconduct while released on bail, courts should also scrutinize the public harm, if any,
such malfeasance caused.
Finally, when determining the amount of bail, if any, to be forfeited, the court
should consider the appropriateness of the amount of the bail bond in light of the nature
of the offense with which [the] defendant was charged. Such an examination will assist
the forfeiture court in determining if a partial remission of the bail is appropriate,
especially in circumstances where the initial bail may have been too high.
The Superior Court, in Commonwealth v. Fleming, 336 Pa. Super. 377, ___, 485
A.2d 1130, 1131 (12/7/84), in upholding a forfeiture order, commented that the bond
surety seeking exoneration from a forfeiture order "failed to meet its burden of proof to
justify exoneration from payment of the bond." Several other jurisdictions have similarly
held that, upon the government's showing that a defendant breached a condition of a
bail bond and a surety had agreed to be bound by the bail bond, the burden then shifted
to the defendant or surety to prove that forfeiture was not warranted.
We find this to be the appropriate scheme by which trial courts should evaluate
whether to order forfeiture. Accordingly, in a case where the Commonwealth has
sought forfeiture, and the defendant or his surety opposes it, a hearing should be held.
At that hearing, the Commonwealth has the burden of proving the conditions to bail
forfeiture as aforesaid, upon which the burden will shift to the defendant or his surety to
justify full or partial remission of bail forfeiture.
The initial burden of proving a breach of a bail bond condition must be met by the
government to a preponderance of the evidence. Given the burden on the defendant or
surety to then rebut the finding that forfeiture may be ordered due to a breach of a bail
bond condition, the same burden — preponderance of the evidence — shall be on the
defendant or surety to prove that "justice does not require" full enforcement of the order.
Were we to accept the Superior Court's holding, however, that "justice only
requires" forfeiture in circumstances where the Commonwealth has expended money in
recapturing or retrying the defendant, the rule-based requirements of non-absconding
related conditions and the potential for forfeiture for breaching those conditions would
become nullities. To the extent the Superior Court so held, we respectfully find that it
erred.
It is for the trial court, in the first instance, to evaluate the facts and
circumstances of this case in conjunction with the multi-factor construct and
interpretation of Rule 536 elaborated upon herein. Accordingly, we vacate the order of
the Superior Court, and remand this matter to the court of common pleas for a new
forfeiture hearing and disposition in accord with this opinion.
Hann, 622 Pa. 636, 81 A.3d 57 (10/30/13)
Link to: Saylor, J. concurring
Link to: Todd, J. concurring
11
APPEAL AFTER REMAND:
On remand, the bondsman argued that at the second forfeiture hearing, the
arresting state trooper testified that he requested Hann’s bail be set at $500,000, but the
magisterial district justice set bail at only $100,000. Moreover, the bondsman points out
that the trooper stated he had attempted to contact the district attorney before bail was
set but was unable to reach him, and acknowledged that his failure to charge Hann with
additional crimes, such as witness intimidation and illegal possession of a firearm,
“might have been an oversight at that point.” The bondsman argues the trial court
“established a double standard whereby a surety is held to a much higher level of
scrutiny than the police, the district attorney, and the court system itself.” Further, he
asserts “the systematic breakdown within the criminal justice system, which failed to
further detain Hann, and/or the failure to impose additional bail restrictions, weighs
heavily as an explanation or mitigating factor.”
The trial court, however, concluded that “neither the Supreme Court in Hann nor
Pa.R.Crim.P. 536 permit [sic] the blame-sharing result [the bondsman] seeks.” We
agree.
it is evident that “mitigating factors” refer to any explanation for the defendant’s
conduct in violating the terms of his bail bond, i.e., the defendant failed to appear for a
court date because he was caring for his sick child. There is no support for the
bondsman’s claim that the Commonwealth’s failure to file additional charges against a
defendant, or the court’s failure to impose a higher bail, mitigates a surety’s duty to fully
investigate a defendant’s background before issuing a bail bond.
The bondsman took a calculated business risk when he agreed to post bail for
Hann, who was charged with kidnapping his ex-girlfriend and threatening her at
gunpoint. Accordingly, the fact that the state trooper did not file additional charges
against Hann, and that the magisterial district justice declined to set bail at $500,000 as
requested by the trooper, is not relevant to the question of whether the trial court should
have ordered the forfeiture of the $100,000 bond that was posted.
It is self-evident that violating no-contact orders, intimidating or physically
harming witnesses, or committing other crimes while free on bail all constitute serious
bail bond breaches, to which courts may be inclined to respond with forfeiture orders in
order to deter future misconduct.
In re Hann, 111 A.3d 757 (Pa. Super. 3/4/15)
appeal denied, ___ Pa. ___, ___ A.3d ___ (8/31/15)
BURGLARY
During a jury charge with respect to the elements of burglary, the trial court
instructed the jury that the Commonwealth must prove “that [the garage at the victim’s
address] was a building or occupied structure or separately secured or occupied portion
thereof that is adapted for overnight accommodation.” The trial court provided the
additional instruction regarding that element: "If you find — and it will be for you to find
whether or not the garage was entered in this case. I will tell you that the
12
Commonwealth has met the fifth prong because this is a legal determination that the
Court will deal with in this case."
The trial court erred in specifically instructing the jury that the Commonwealth
had established an element of the burglary charge.
Conaway, 105 A.3d 755 (Pa. Super. 11/26/14)
appeal denied, ___ Pa. ___, 118 A.3d 1107 (7/15/15)
CAUSATION
At approximately 2 p.m. on December 14, 2011, Wendy Van Horn was traveling to
her home. As she was driving across a two-lane bridge, Ms. Van Horn noticed a pickup
truck in her lane and coming straight at her car. She pulled to the right and sounded her
horn to alert defendant that he was going to strike her. That action had no effect on
defendant, who continued on course at the same speed. Ms. Van Horn was hit head on.
Ms. Van Horn’s car was completely within its lane of travel when it was struck by
defendant’s pickup truck.
Defendant had methylenedioxypyrovalerone (“MDPV”), a prohibited federally
classified Schedule I drug, in his system. MDPV is a drug with stimulant properties and
with effects similar to methamphetamine in small doses and cocaine in higher doses.
MDPV can also have psychedelic effects and produce insomnia, agitation, anxiety, and
panic attacks. The brain has a negative reaction to this stimulation, and as the drug is
being eliminated from the body, causes lethargic or sedative type behavior.
There was clear and unequivocal testimony regarding who was responsible for the
collision. Ms. Van Horn outlined that defendant was in the incorrect lane of travel, as
supported by the location of the vehicles after the accident, and drove head-on into her
car. There also was sufficient evidence to establish, beyond a reasonable doubt, that
defendant’s intoxication with MDPV was the reason that he operated his car in that
manner.
Defendant was traveling down a road in broad daylight and admittedly could not
explain why he went into the wrong lane. After Ms. Van Horn alerted him to the peril by
sounding her horn, defendant did not respond. He neither slowed his pickup truck nor
swerved to avoid her car. After the wreck, defendant displayed bizarre behavior. He
approached the victim, stared at the screaming woman, and returned to his truck, and
made no effort to comfort or aid her. Defendant admitted that, when he first started to
travel, he actually went in the wrong direction to reach his stated destination. He was
confused, lethargic, slurred his speech, and had glassy and bloodshot eyes. These
circumstances established beyond a reasonable doubt that the MDPV caused defendant’s
behavior and the accident in question.
Tucker, 106 A.3d 796 (Pa. Super. 12/23/14)
appeal denied, ___ Pa. ___, 116 A.3d 604 (5/27/15)
13
CHANGE OF VENUE
Defendant refers to the two newspaper stories of record which appeared shortly
before or during jury selection. We do not find these articles to be materially
sensational, inflammatory, or slanted toward conviction. These stories revealed
defendant’s prior criminal record in that they state he had been convicted and
sentenced to death previously, and that the then-impending proceeding would be a
retrial necessitated by the federal courts’ decision to vacate his first-degree murder
conviction and death sentence. Although defendant correctly notes that trial counsel
were concerned about such publicity, any such concerns were allayed when it emerged
during jury selection that only a small portion of the venire had been exposed to these
media stories, and anyone who knew that defendant was being retried would be
excluded from the jury.
The record before us does not suggest that pretrial publicity in this case was
extreme or that the community must be deemed to have been saturated with it. Only
two articles of record were disseminated in the media shortly before defendant’s retrial,
and only a comparatively small portion of the venirepersons indicated an awareness of
them. Thus, defendant’s assertion that prejudice should be presumed cannot be
supported.
Besides Juror 12, however, the ability to set aside preliminary opinions derived
from the media was not an issue since there is no record basis to believe that the other
seated jurors were exposed to the newspaper articles in question. As for Juror 12, his
exposure was limited to having heard that the case involved “gruesome” facts, a
description that was not substantially at issue. Additionally, Juror 12 testified during voir
dire that he did not form any preconceived ideas about defendant’s guilt or innocence,
and that he would refrain from speaking any further to his co-worker about the case.
Laird, ___ Pa. ___, 119 A.3d 972 (7/20/15)
We do not hesitate to hold that the pretrial publicity at issue here was inherently
inflammatory and inculpatory in nature. These articles were replete with sensationalism
and emotional appeals painting Sementelli (albeit accurately) as a sympathetic war hero
whose life was cut short by defendant, whom it portrayed as an unproductive, volatile,
conscienceless, drug-addled and “zombie-like” criminal, contained implications of
defendant’s guilt, recounted revelations of her prior criminal record and admissions to
the murder, and were derived largely from police and/or Commonwealth reports. These
articles, in addition to the insinuation that defendant’s prosecution was burdening the
county’s financial budget, potentially requiring a tax hike, are precisely the type of
reports that are likely to cause their readers to make up their minds to convict defendant
before the trial has begun.
Nevertheless, upon examination of the voir dire proceedings, we conclude that
the 11-month period between the latest of the submitted publicity and defendant’s trial
was sufficient to dispel any prejudice against her. Although numerous prospective
jurors were exposed to coverage concerning defendant’s case, only 33 of 300
14
prospective jurors (11%) indicated that they could not put the information aside and
fulfill their duty to decide the case fairly and impartially.
Walter, ___ Pa. ___, 119 A.3d 255 (7/20/15)
Link to: Saylor, C. J. dissenting
CIVIL COMMITMENT
Jennifer Fleet, Samantha Fleet's mother, entered the Crafton Borough Police
station regarding text messages Samantha sent stating that Samantha wanted to kill
herself. Mother showed the text messages to Officer Stephanie Newcomer. Mother also
told Officer Newcomer that she had conversations with Samantha during which
Samantha stated that she was depressed and wanted to end things. Upon hearing this
information, Officer Newcomer telephoned Rita Agostinelli at the Allegheny County
Mental Health Department (the "ACMHD") and advised her of the situation.
Telephoning the ACMHD is an established procedure in the Crafton Borough
Police Department and one with which Officer Newcomer was familiar. Officer
Newcomer had encountered warrants and involuntary commitments under the Mental
Health Procedures Act ("MHPA") before this incident. Jennifer Fleet stated that she
would sign a 302 warrant to commit Samantha. Jennifer Fleet read the text messages to
Ms. Agostinelli and went into more detail on the telephone. Ms. Agostinelli instructed
Officer Newcomer to tell Jennifer Fleet to follow Samantha to the hospital to conclude
the paperwork. At this point, Ms. Agostinelli gave Officer Newcomer verbal authorization
over the phone that the 302 warrant would be filed. Ms. Agostinelli advised Officer
Newcomer that as long as Jennifer Fleet followed the ambulance that would be taking
Samantha to the hospital, she would sign the paperwork that would complete the
warrant and commitment. It is not the Crafton Police Department's policy to require a
paper warrant; a verbal warrant such as the one in this matter is sufficient. Officer
Newcomer understood that the ACMHD would fax the 302 warrant to the hospital, and
that the hospital filled out and finalized the requisite paperwork.
Jennifer Fleet followed Officer Newcomer and the ambulance to Samantha's
brother's house where Samantha was located. Samantha was asked to come outside of
her brother's home, and was advised of the 302 warrant. Officer Newcomer asked
Samantha if she wanted to step inside, because a search was required prior to
transportation pursuant to a warrant. According to Officer Newcomer, a search of the
person is required pursuant to a warrant in such a situation for the safety of the police
and the ambulance crew. They went inside and Officer Newcomer asked Samantha if
she had anything on her. Samantha informed Officer Newcomer that she had heroin on
her, and handed the officer a capped syringe and five "stamp bags" containing heroin.
Officer Newcomer obtained the evidence from Samantha after the officer
"advised Samantha of the situation with the 302 warrant." Officer Newcomer informed
Samantha that she was going to be searched and "asked her if she had anything on
her," at which point Fleet handed the officer the heroin and syringe. It is clear that no
reasonable person would have felt free to leave, and that Samantha was therefore
"seized."
15
Samantha's seizure occurred as a result of Officer Newcomer's execution of a
302 warrant and Samantha challenged the propriety of the issuance of the 302 warrant.
Therefore, the determination of whether that seizure was lawful depends on whether the
Commonwealth satisfied its burden of proving at the suppression hearing that the
procedural requirements for the issuance of a 302 warrant pursuant to the MHPA were
met.
The standard for evaluating the validity of 302 warrants is whether reasonable
grounds exist to believe that a person is severely mentally disabled and in need of
immediate treatment. The standard must be whether, when viewing the surrounding
facts and circumstances, a reasonable person in the position of the applicant for a 302
warrant could have concluded that an individual was severely mentally disabled and in
need of immediate treatment.
Section 7301(a) of the MHPA, governing who may be subject to involuntary
emergency examination and treatment, provides:
Whenever a person is severely mentally disabled and in need of
immediate treatment, he may be made subject to involuntary
emergency examination and treatment. A person is severely
mentally disabled when, as a result of mental illness, his
capacity to exercise self-control, judgment and discretion in
the conduct of his affairs and social relations or to care for his
own personal needs is so lessened that he poses a clear and
present danger of harm to others or to himself.
50 P.S. § 7301(a) (emphasis added). Clear and present danger of harm to oneself
requires proof that "within the past 30 days," one of the following occurred:
(i) the person has acted in such manner as to evidence that he
would be unable, without care, supervision and the continued
assistance of others, to satisfy his need for nourishment, personal
or medical care, shelter, or self-protection and safety, and that
there is a reasonable probability that death, serious bodily injury or
serious physical debilitation would ensue within 30 days unless
adequate treatment were afforded under this act; or
(ii) the person has attempted suicide and that there is the
reasonable probability of suicide unless adequate treatment is
afforded under this act. For the purposes of this subsection, a
clear and present danger may be demonstrated by the proof
that the person has made threats to commit suicide and has
committed acts which are in furtherance of the threat to
commit suicide; or
(iii) the person has substantially mutilated himself or attempted to
mutilate himself substantially and that there is the reasonable
probability of mutilation unless adequate treatment is afforded
under this act. For the purposes of this subsection, a clear and
present danger shall be established by proof that the person has
16
made threats to commit mutilation and has committed acts which
are in furtherance of the threat to commit mutilation.
50 P.S. § 7301(b)(2) (emphasis added).
Officer Newcomer was the only witness to testify at the suppression hearing.
Although she stated that Samantha's mother came to the police station and indicated
that Samantha had threatened to kill herself, the officer provided no indication of when
the threats of suicide allegedly occurred. There was also no testimony that Samantha
had previously attempted suicide or testimony that in addition to threatening suicide,
Samantha took any actions in furtherance of her suicidal ideations. To the contrary, the
record reveals no evidence that in the thirty days prior to her mother coming to the
police station, Samantha engaged in any of the behaviors set forth in section 7301(b)(2)
such that she would meet the definition of a person posing a clear and present danger
to herself and thus, "severely mentally disabled." See 50 P.S. § 7301(b)(2).
The Commonwealth presented no evidence regarding when Samantha allegedly
sent the text messages or any specificity as to the content of the messages. Officer
Newcomer only testified that Samantha's mother came to the police station and showed
her text messages, allegedly sent by Samantha at some unknown time, indicating that
Samantha was contemplating suicide and that her mother had a conversation with
Samantha, again at a time unknown, "about being depressed and wanting to end
things."
There was no basis from the record to conclude that Samantha was lawfully
detained prior to the search. The evidence should have been suppressed.
Fleet, 114 A.3d 840 (Pa. Super. 4/16/15)
Link to: Allen, J. dissenting
COMPETENCY TO BE EXECUTED
Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (6/20/02), held
the Eighth Amendment of the United States Constitution prohibits the execution of
individuals with intellectual disability. Faced with inaction from our General Assembly,
this Court in Commonwealth v. Miller, 585 Pa. 144, 888 A.2d 624 (12/27/05),
established a three-pronged standard for determining intellectual disability. Mindful of
the hazards of comingling legal and medical concepts, we held an individual seeking
Atkins relief must prove, by a preponderance of the evidence, he is intellectually
disabled as defined by either (a) the American Psychiatric Association in the Diagnostic
and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) or (b) the American
Association of Mental Retardation (AAMR), now named the American Association on
Intellectual and Developmental Difficulties (AAIDD).
The three components of
intellectual disability proof are: (1) significantly subaverage intellectual functioning, (2)
significant adaptive deficits, and (3) age of onset.
We need only determine whether the PCRA court's findings are supported
by substantial evidence and its legal conclusions are free from error. Keeping in mind it
was defendant's burden to prove each Miller prong by a preponderance of the evidence,
we affirm the court's decision to vacate defendant's sentence of death.
17
Bracey, ___ Pa. ___, 117 A.3d 270 (6/16/15)
Link to: Stevens, J. dissenting
COMPETENCY TO STAND TRIAL
Section 402(a) of the Mental Health Procedures Act provides that a defendant is
legally incompetent if he or she is substantially unable to understand the nature or
object of the proceedings against him [or her] or to participate and assist in his [or her]
defense. 50 P.S. § 7402(a). Stated otherwise, the relevant question is whether the
defendant has sufficient ability at the pertinent time to consult with counsel with a
reasonable degree of rational understanding, and have a rational as well as a factual
understanding of the proceedings.
Appel, 547 Pa. 171, 689 A.2d 891 (1/28/97)
The same competency standard is applicable to standing trial, waiving the right
to counsel, pleading guilty, and waiving the right to present mitigation evidence.
Watkins, ___ Pa. ___, 108 A.3d 692 (12/29/14)
Link to: Todd, J. concurring
cert. denied, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (10/5/15)
CONFESSION – ASSERTION OF RIGHTS
Defendant was placed under arrest for tampering with evidence, giving false
information, and hindering a police investigation of a missing child, G. B. Defendant
was taken to an area of the farm near to where the ATV used by the child had been
found. Defendant was advised of his Miranda rights and then told that searchers had
found G. B.'s ATV. At that point, defendant made additional statements which further
aroused police suspicion. Shortly afterward, Sergeant Kevin T. Kolson of the
Pennsylvania State Police arrived on the scene, asked if defendant had been read his
rights, and, assured that he had been, asked defendant where G. B. was, while jabbing
his fingers into defendant's chest. Defendant did not respond. No further questions were
asked of defendant at that time; however, he was then moved to a nearby area that was
not as crowded with personnel searching for the missing girl. There, after the state
troopers began questioning him, defendant stated, "I think I need an attorney," and all
questioning immediately stopped.
Defendant was returned to the area of the farm that was being used as a staging
area for the search, and kept in the back seat of a patrol car while the state troopers
continued their search and investigation of the site where the ATV had been found.
Standing near the patrol car was a local constable who knew defendant. The constable
asked defendant if he was ok. Shortly thereafter, defendant volunteered that he could
18
save everyone some time, stating that only the ATV was down in the creek area, not G.
B., and that she was somewhere else. The constable called to the nearby state troopers
to inform them that defendant had something to say. Upon returning to the patrol car,
the state troopers re-advised defendant of his Miranda rights, transported defendant
back to the more quiet area of the search perimeter, once again advised defendant of
his right to remain silent and to consult with an attorney, and then requested that
defendant sign a written waiver of those rights as given him. Defendant stated that he
did not want to sign anything without consulting a lawyer. However, defendant
immediately volunteered that he been approached by a "fat, bald guy in a white truck,"
who offered him $100 to help bury an ATV. The troopers perceived this statement to be
a falsehood, became frustrated with defendant, and returned with him to the staging
area on the farm.
There, the troopers, concerned about the safety of the missing girl, pleaded with
defendant to divulge the girl's whereabouts. Defendant first stated that he could show
the troopers where the girl's helmet and shoes were buried, and shortly afterward stated
that he could show the troopers where G. B. was located. Defendant told the troopers
that they would need a backhoe to "recover" the girl. This statement confirmed that G.B.
was dead-until this point, the troopers had continued to treat the investigation as one
involving a missing child.
Subsequently, defendant made additional statements leading to the discovery of
the victim’s clothing, and, ultimately, her body.
Defendant acknowledged that he was given his Miranda warnings after his arrest
and credits Trooper Schuster for breaking off all questioning once defendant stated that
he needed to consult with a lawyer before he answered any more questions. Defendant
also admits that it was he who had re-initiated further communication with the police
when he said to the constable standing near the vehicle in which defendant sat, that he
could save the police some time because G. B. was not in the area where the ATV had
been found.
Defendant's specific contention here is that during the immediately subsequent
encounter with the troopers at a quiet area of the farm where he had been taken, his
refusal to sign a written waiver of rights should have been construed as "an
unambiguous re-assertion of his wish for counsel before proceeding with any custodial
interrogation." Defendant asserts that any further questioning should have then ceased.
Defendant did not actually request an attorney; at most, defendant's statement
would lead the troopers to believe only that defendant might be invoking the right to
counsel. Therefore, their interrogation need not have ceased.
Martin, ___ Pa. ___, 101 A.3d 706 (9/24/14)
Link to: Saylor, J. dissenting
cert. denied, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (10/5/15)
Dennis Bland, Jr., allegedly shot and killed Keron Remberan in Philadelphia, then
fled to his mother’s house in Florida. After learning of defendant’s whereabouts, police
obtained an arrest warrant and notified Florida law enforcement. Federal authorities in
19
Florida detained defendant, who was seventeen years old at the time, and he was
placed in a juvenile facility to await extradition to Pennsylvania.
The day after defendant’s arrest, his father contacted the Defender Association
of Philadelphia and apprised an attorney of his son’s circumstances. The lawyer sent a
form letter via facsimile to Florida counsel representing defendant in connection with the
extradition proceedings, asking that defendant sign and return the document. The letter
stated:
PLEASE BE ADVISED THAT I . . . DO NOT WISH TO SPEAK
WITHOUT AN ATTORNEY PRESENT.
I WISH TO BE REPRESENTED BY A LAWYER. UNTIL SUCH
TIME AS I HAVE AN OPPORTUNITY TO FULLY DISCUSS THE
DETAILS OF MY CASE WITH MY LAWYER . . ., I STATE THE
FOLLOWING TO YOU:
I DO NOT WISH TO BE QUESTIONED OR HAVE ANY
DISCUSSION WITH THE POLICE.
I DO NOT WISH TO SPEAK TO YOU WITHOUT MY
ATTORNEY PRESENT.
I WILL NOT WAIVE OR GIVE UP ANY OF MY RIGHTS UNDER
MIRANDA V. ARIZONA, NOR WILL I GIVE UP ANY OF MY
PENNSYLVANIA OR FEDERAL CONSTITUTIONAL RIGHTS
EITHER ORALLY OR IN WRITING WITHOUT THE PRESENCE
OF MY LAWYER.
Subsequently, defendant waived extradition and was escorted to Philadelphia,
where he remained in police custody. Six days after defendant had signed the form sent
by the Defender Association while he was in Florida, a detective provided him with
Miranda warnings. During ensuing questioning, defendant ultimately confessed to
perpetration of the killing, and, after later consultation with his father, he also provided a
written confession.
Justices of the Supreme Court of the United States have sent a plain signal that
the Miranda-based right to counsel should be constrained according to its express
justifications, namely, to counterbalance the coercive environment of custodial
interrogation which had been emphasized in Miranda. Accordingly, our assessment,
consistent with the weight of the authority, is that valid invocations of this Miranda right
should be made in close temporal proximity to the circumstances giving rise to the
relevant concern.
To the degree that a further cost-benefit assessment on our part is appropriate
for purposes of federal constitutional law, we agree with the Commonwealth that the
burden of invoking the right to counsel in close proximity to custodial interrogation is
outweighed by legitimate law-enforcement objectives. In weighing the competing
considerations of extended preemptive Fifth Amendment protections versus effective
law enforcement, it is our conclusion that the widely-prevailing Miranda regime strikes
an appropriate balance, and there is no presently apparent reason to expand it to
encompass all custodial situations.
In response to defendant’s claim for approval of anticipatory invocations of a right
to counsel under Article 1, Section 9 of the Pennsylvania Constitution, on the arguments
presented, we find that the textual similarity between the United States and
20
Pennsylvania Constitutions, the history of our abiding by the United States Supreme
Court’s Miranda regime as it has evolved, and the approach of other jurisdictions and
salient policy considerations as reflected in our discussion above, favor continued
alignment of our jurisprudence with that of its federal counterpart on the relevant point.
To require a suspension of questioning by law enforcement officials on pain of an
exclusionary remedy, an invocation of the Miranda-based right to counsel must be
made upon or after actual or imminent commencement of in-custody interrogation.
Bland, ___ Pa. ___, 115 A.3d 854 (5/26/15)
Link to: Baer, J. concurring
Link to: Todd, J. dissenting
CONFESSION – CUSTODY
Licensee was already pulled over and parked when Trooper Dugan arrived on
the scene, and Trooper Dugan's questioning of licensee occurred in the parking lot of an
establishment that was visible to the public. There is no evidence either that Trooper
Dugan's questioning of licensee was coercive, sustained or repetitive or that their
interaction was prolonged beyond the appropriate amount of time required for her to
investigate whether licensee was driving under the influence. Furthermore, though
Trooper Dugan had to physically assist licensee to his feet so that he could attempt to
perform the field sobriety tests, this was not indicative of any show or threat of force but
rather was required by licensee's intoxicated state. The record therefore reflects that
Trooper Dugan's interactions with licensee do not show the coerciveness or restriction
of freedom that have been determined in other cases to be the functional equivalent of
an arrest. Cf. Commonwealth v. Meyer, 488 Pa. 297, 412 A.2d 517 (3/20/80)
(suppressing statement given by motorist questioned after being detained in a patrol car
for over 30 minutes for failure to provide Miranda warnings); Commonwealth v. Turner,
772 A.2d 970 (Pa. Super. 3/9/01) (en banc) (concluding that motorist involved in an
accident and placed in the back of a police car by officer arriving at the scene should
have been issued Miranda warnings prior to questioning). Accordingly, we reject
licensee's argument that his statement that he had been driving should have been
suppressed because he had not yet been advised of his Miranda rights.
Walkden v. Dept. of Transportation, 103 A.3d 432 (Pa. Cmwlth. 11/6/14)
CONFESSION – VOLUNTARINESS
There is no per se rule that a defendant's waiver of his constitutional rights is
defective merely because his mental illness distorts the defendant's perceptions of
reality. See Commonwealth v. Logan, 519 Pa. 607, 549 A.2d 531 (10/18/88) (holding
that a person with a mental illness, including a history of hallucinations and delusions,
may be capable of waiving his constitutional rights, unless the confession flows from an
internal compulsion to confess that is rooted in a mental disease).
21
We discern no error in the PCRA court's finding that, based on the credible
evidence and testimony presented at the PCRA hearing, there was no obvious objective
indication that defendant suffered from any mental illness or diminished capacity at the
time he waived his Miranda rights, such that the police conduct can be viewed as
unconstitutional manipulation warranting suppression. Moreover, the totality of the
circumstances surrounding defendant's waiver of his Miranda rights and confession do
not suggest that defendant's alleged mental status interfered with the important, but
simple (all he needs to say is "no") choice of whether to waive his constitutional rights.
Thus, since the evidence defendant posits trial counsel should have presented at the
suppression hearing would not have established that defendant's alleged mental health
issues interfered with his waiver, we conclude trial counsel was not ineffective in this
regard.
Mitchell, ___ Pa. ___, 105 A.3d 1257 (12/16/14)
Link to: Saylor, J. concurring
CONSOLIDATON – DEFENDANTS
The concept of individualized sentencing does not forbid a consolidated capital
penalty phase proceeding involving codefendants who were tried together.
Daniels, ___ Pa. ___, 104 A.3d 267 (10/30/14)
Link to: Saylor, J. concurring and dissenting
This case, of course, does not involve two defendants both charged with murder.
None of the cases relied upon by the Commonwealth or the trial court in discussing that
joint trials for co-conspirators are favored involves a proceeding where one defendant
was charged with unrelated murders, indeed capital murder, and the other individual
was not also charged with either murder or conspiracy to commit murder. Pointedly, the
Commonwealth has failed to supply a single case where a person charged capitally was
tried jointly with another person who had no involvement in the res gestae of the
murder.
The overwhelming majority of the crimes charged against Kermit Gosnell and
defendant were not identical, nor were the circumstances giving rise to Gosnell’s crimes
identical to defendant’s criminal behavior. The overlap between Gosnell’s corrupt
organizations charge and the counts against defendant, while undeniable, is paltry in
comparison to the sheer amount of evidence against Gosnell that had no bearing on the
charges against defendant. This case took place over the course of a month, and the
vast majority of evidence focused on Gosnell’s horrendous actions. We find the
evidence in this case far more prejudicial than that at issue in Brookins.
If the evidence against Gosnell was not the type of emotionally charged evidence
that was so prejudicial and inflammatory as to warrant a separate trial where his codefendant was not implicated in the murder charges, it is difficult to conceive a scenario
where a person could show such prejudice.
22
Furthermore, the fact that the court instructed the jury to not consider the
evidence against Gosnell in deliberating on defendant’s charges does not preclude a
finding of prejudice. Indeed, if jury instructions could cure any resulting prejudice in a
case such as this, there would be little grounds for ever severing co-defendants for trial.
In virtually every jointly-tried case, the court can and does instruct the jury that it cannot
consider exclusive evidence against one defendant as evidence that a co-defendant is
guilty. The Commonwealth’s position would largely eviscerate Rule 583 since no
prejudice could be maintained as long as a jury was so instructed.
We find that this case was one of the exceptionally rare instances where the
evidence against one co-defendant was so inflammatory and inherently prejudicial that
jury instructions were insufficient. That defendant was acquitted of several offenses
does not alter our conclusion. It is mere conjecture whether the jury carefully separated
the evidence or merely issued a compromise verdict after two weeks of deliberating.
The evidence against Gosnell was shocking and highly disturbing. It is difficult to
even read the cold record without having a visceral reaction to what transpired in
Gosnell’s abortion clinic. This overwhelming and appalling evidence of the killing of live
born babies certainly would not have been admissible in a trial solely against defendant.
The prosecutor himself, a trained legal professional, could not separate the evidence
against Gosnell and defendant. Permeating throughout this trial was the idea that
defendant could not have been so blind and naïve not to have noticed what was
occurring one floor below. The trial court during sentencing even remarked, “The one
aspect of Ms. O’Neill’s case that does stun me is that someone with so much education
could stay at a place like this, could participate in any way and not be shocked to the
extent that they would either leave or call the authorities.” The court continued, stating,
that in going “to trial in a case that carries the horrors of the Gosnell trial, a lot of that
emotion is going to come your way, a lot of that anger.”
We find that the trial court abused its discretion in failing to sever defendant’s
case from the capital murder trial of Kermit Gosnell.
O’Neil, 108 A.3d 900 (Pa. Super. 1/20/15) (collecting cases)
appeal denied, ___ Pa. ___, 117 A.3d 296 (6/11/15)
CONSPIRACY
On November 3, 2010, at approximately 10:00 p.m., Officers David Clee and
Matthew Tobie of the Bensalem Township Police Department were patrolling the Route
1 corridor in Bensalem. The Route 1 corridor is considered a high-crime area, and has
an extensive history of arrests for offenses including narcotics, robberies, prostitution,
and other crimes at the various hotels in the region.
In the course of their regular patrol, the officers pulled their marked patrol car into
the parking lot of the Sunrise Inn on Route 1. Officer Clee was specifically assigned to
patrol the Route 1 corridor. As such, he was personally familiar with the crime that takes
place in the area and had made numerous arrests along the corridor, including arrests
at the Sunrise Inn. Upon pulling into the parking lot, the officers noticed a car with darkly
23
tinted windows parked in the parking lot. Officer Clee immediately recognized that the
tint was a violation of the Vehicle Code.
As they approached the car, a Chevrolet Impala, Officer Clee saw movement
inside the vehicle, which he described as someone moving from the front passenger's
side of the vehicle to the driver's side. Officer Clee decided to investigate the vehicle.
Officer Clee parked his patrol car, exited his vehicle, and approached the
Chevrolet Impala. Officer Clee then began to question the driver. As Officer Clee was
questioning the driver, Officer Clee observed a baseball cap sitting on the rear floor of
the car. Inside the baseball cap were several pieces of jewelry. From his experience,
Officer Clee recognized that a baseball cap full of jewelry left in a safe place means the
owner of the jewelry anticipated one of two things: that he was about to engage in a
fight or that, as a drug dealer, he had a fear of being robbed.
The occupant of the vehicle was later identified as Melvin Torres, from Camden,
New Jersey. During their conversation, Torres informed Officer Clee that he was not the
owner of the vehicle. Officer Clee questioned Torres in an attempt to ascertain the
location of the vehicle's owner and to determine Torres' connection to the hotel. Despite
being questioned only about the ownership of the vehicle, Torres appeared "extremely
nervous" and was evasive in his responses.
After repeated questioning, Torres eventually told Officer Clee that the vehicle's
owner was in Room 161 of the hotel. After Torres informed Officer Clee that the owner
of the Chevrolet Impala was in Room 161, an individual opened the door to Room 161
from within, locked eyes with Officer Clee, and, when Officer Clee began to walk
towards the room, the individual quickly closed the door. While Officer Tobie remained
with Torres, Officer Clee approached Room 161, knocked on the door several times,
and then made an announcement outside that he was the police and he was inquiring
about the owner or operator of the Chevrolet Impala that was occupied in the parking
lot. Approximately 45 seconds passed before the door was opened by a person later
identified as Francisco Saldana.
Standing outside the room, Officer Clee observed Saldana, defendant, and an
individual who was later identified as Raymer Carrasco standing just inside the
doorway. Officer Clee requested that each of the men produce identification. Officer
Clee noted that all three men were from Camden, New Jersey. None of the men
identified themselves as the owner of the Chevrolet Impala, and none would claim
responsibility for renting the hotel room.
From the doorway, Officer Clee looked around the room and observed a
Tupperware container, two trash bags, and a black, wheeled Tupperware container.
Additionally, the trash can was full of items, and just between the trash can and the wall
was a small apple baggie. Officer Clee testified that an "apple bag" is a larger plastic
bag that normally contains 500 baggies within it.
Acting on the belief, based on his experience, that there might be other people in
the rear bathroom, and the fact that the presence of the apple bag indicated there might
be illegal activity occurring inside the hotel room, Officer Clee entered the room and
walked through the room towards the rear hotel bathroom. As he crossed the room,
Officer Clee observed at least one portable lamp sticking out of a Tupperware container,
in addition to another Tupperware container and a large trash bag. As he passed the
trash bag, Officer Clee identified more apple bags. Further, Officer Clee observed a trail
24
of small rubber bands on the floor, with the trail leading to the toilet, and then two or
three small rubber bands in the toilet. Officer Clee also noticed that the window in the
bathroom was open, but that the window was extremely small, so the officer knew that
none of the three people standing at the door could have got out of it.
Based on his observations, Officer Clee made the decision to detain all four
suspects: the individual from the Chevrolet Impala and the three men from the hotel
room. Once the men were secured, the men were searched and Raymer Carrasco was
found to be in possession of heroin. The heroin in Carrasco's possession was packaged
in clear plastic baggies wrapped in small rubber bands and was later determined to
weigh 0.22 grams.
A search of defendant's person revealed that defendant possessed car keys to a
Honda vehicle; the police discovered this Honda vehicle parked next to the Chevrolet
Impala in the Sunrise Inn lot. Further, when questioned as to whether defendant had
any money on his person when he was searched, Officer Clee testified: "I don't recall
any money being recovered in this case."
Officer Clee then applied for a search warrant for the hotel room, the Chevrolet
Impala, and the Honda automobile that was parked next to the Chevrolet Impala (and to
which defendant possessed the keys). The four suspects were transported to the police
station and the room was secured until a search warrant was obtained.
Once the search warrant was obtained, all the evidence located in the hotel room
was brought back to the police station to be inventoried. Inside the containers and
garbage bag located in the hotel room, police found six coffee grinders that were used
to grind heroin, coffee filters that were used in the heroin-grinding process, three lamps,
thousands of glassine baggies, several digital scales, rubber stamps, wax papers that
were stamped with brand-insignia and that are ordinarily used to bag heroin, and other
items of drug paraphernalia. All of the grinders, filters, and scales tested positive for
residue of heroin or cocaine. Moreover, empty condoms were found in the hotel trash
can. None of the four individuals were the named renter of the hotel room; none of the
four individuals possessed any luggage or overnight bags.
The cars were transported to the police station so that they could be searched.
The officers located a concealed compartment in the dashboard of the Chevrolet Impala
that contained a .40-caliber handgun and 377.73 grams of uncut heroin, some of which
was packaged in rubber condoms for transportation in a human body. Officer Clee
testified that the heroin-filled condoms were “extremely similar" to the empty condoms
that were found in the hotel room trash can. In like fashion, Commonwealth expert,
Detective Timothy Carroll, also testified that the heroin-filled condoms found in the
Chevrolet Impala were "very similar, if not identical" to the used empty condoms that
were found in the hotel room. Further, within the Chevrolet Impala, the police
discovered an "owe sheet" in the vehicle's trunk, as well as an additional ledger that
was sitting on the vehicle's front seat.
Saldana was identified as the person responsible for the Chevrolet Impala.
Although no illegal substances or contraband of any sort were found in the Honda,
when Officer Clee introduced his trained narcotics dog to the Honda, the dog alerted to
the presence of an illegal substance. The K-9 also alerted to the presence of an illegal
substance in the Chevrolet Impala, which was consistent with the findings of the search.
25
The issue with respect to defendant's sufficiency of the evidence claim is whether
the conspiracy between defendant and Mr. Saldana encompassed, as its object, the
cutting and packaging of the 377.73 grams of uncut heroin that was discovered in Mr.
Saldana's vehicle. We conclude that the evidence was sufficient to support this
conclusion.
We have explained that the evidence at trial was sufficient to support the trial
court's conclusion that defendant was an active participant in an ongoing, multi-person
"mobile heroin mill," where raw heroin was cut, weighed, and packaged for sale at the
street level. Moreover, viewing the evidence in the light most favorable to the
Commonwealth, the evidence at trial demonstrated that the hotel room within which the
operation was being conducted was being used exclusively for the cutting and
packaging of raw heroin — and that defendant and his compatriots had already cut and
packaged "thousands of bags of heroin" before the police arrived. Further, Detective
Carroll testified that, by the time the police arrived, the thousands of bags of cut and
packaged heroin had already left the hotel room for ultimate sale at the street level.
Under such circumstances, it takes a very small inferential step to conclude that
defendant and Mr. Saldana understood, agreed, and intended to cut, weigh, and
package for sale the 377.77 grams of raw heroin that was discovered in Mr. Saldana's
vehicle. To be sure, the facts of this case demonstrate that Mr. Saldana transported
"well over a hundred thousand dollars" of raw heroin to an out-of-state hotel and then
entered a room where the only activity being conducted was the cutting of raw heroin
and the packaging of the cut heroin for sale on the street. Indeed, the grinders, scales,
lamps, stamps, and packaging materials were consistent with the items needed to
process raw heroin such as that found in Mr. Saldana's vehicle.
Moreover, the evidence at trial demonstrated that some of the raw heroin
discovered in Mr. Saldana's vehicle was packaged in rubber condoms for transportation
in a human body; and, as Detective Carroll testified, the heroin-filled condoms found in
Mr. Saldana's vehicle were "very similar, if not identical" to the used empty condoms
that were found in the hotel room. Since the evidence at trial demonstrates that
defendant and his compatriots had already cut and packaged thousands of bags of raw
heroin before the police arrived, a fair inference from the evidence is that the used
empty condoms in the hotel room had previously been filled with raw heroin, and that
defendant and his compatriots had already cut and packaged the heroin that had filled
those condoms. Further, since the heroin-filled condoms in Mr. Saldana's vehicle were
"very similar, if not identical" to the used empty condoms in the hotel room, the factfinder could have fairly inferred that defendant and Mr. Saldana had intended to cut and
package the raw heroin that filled the condoms in Mr. Saldana's vehicle.
DISSENTING OPINION:
I concede that the evidence was adequate to prove that defendant constructively
possessed the heroin residue and drug paraphernalia that was discovered in the hotel
room. However, for the reasons that follow, I cannot agree with the Majority's conclusion
that defendant was a member of an ongoing conspiracy with Mr. Saldana which
encompassed, as its object, the cutting and packaging of those drugs.
The Commonwealth did not present evidence proving the extent of defendant's
involvement in the “mobile heroin mill,’' other than his presence in the hotel room. More
importantly, the Commonwealth provided no evidence of the nature or degree of the
26
relationship between defendant and Mr. Saldana, or their respective roles in the drug
distribution operation. There was also no evidence demonstrating that defendant knew
about the drugs located in the secret compartment in Mr. Saldana's vehicle.
What the Commonwealth's evidence did prove was that Mr. Saldana arrived at
the hotel room approximately one minute before Officer Clee entered the parking lot.
Mr. Saldana approached and entered the hotel room empty handed. Id. He did not bring
with him the 377.73 grams of heroin, instead leaving those drugs in a secret
compartment in his vehicle. Mr. Saldana also left his jewelry in his vehicle, which Officer
Clee recognized as a sign that Mr. Saldana was about to engage in a fight or that, as a
drug dealer, he had a fear of being robbed.
Viewing this evidence in the light most favorable to the Commonwealth, it
indicated — at most — that Mr. Saldana may have been about to enter a conspiratorial
relationship with defendant and Mr. Carrasco to distribute the raw heroin left inside his
vehicle. However, the Commonwealth failed to proffer evidence proving that defendant
and Mr. Saldana actually entered into such an agreement with a shared criminal intent.
Vargas, 108 A.3d 858 (Pa. Super. 12/31/14) (en banc) (plurality opinion)
Link to: Ford Elliott, J. concurring
Link to: Bender, J. concurring and dissenting
appeal denied, ___ Pa. ___, 121 A.3d 496 (7/27/15)
On September 21, 2011, Officer Joseph McCook of the Philadelphia Police
Department was conducting narcotics surveillance on the 3200 block of North Fairhill
Street in Philadelphia. On that day, Officer McCook used a confidential informant ("CI")
to conduct a controlled narcotics purchase. Officer McCook observed Yong standing in
front of a residence located at 3202 Fairhill Street. The CI approached Yong, had a brief
conversation with him, and then handed him $120 in pre-recorded currency. Yong
passed the money to his codefendant, Samuel Vega, who then entered the residence
and later returned with twelve packets of marijuana. Vega then handed the marijuana to
the CI.
On September 23, 2011, the police continued their narcotics surveillance in the
same area. Officer McCook observed Yong and Vega in front of 3202 Fairhill Street.
Linwood Fairbanks, an undercover narcotics officer, approached Vega and handed him
$40 in pre-recorded currency. Vega then walked over to a nearby vacant lot, retrieved
something from the ground, and returned with eight packets of marijuana, which he
gave to Officer Fairbanks.
There was ample evidence that Yong intentionally aided Vega in selling
marijuana. At trial, the Commonwealth presented evidence that, immediately after Yong
accepted currency from the CI, Vega handed the CI twelve packets of marijuana. Two
days later, Yong was present when Vega sold marijuana to an undercover officer, and
was standing in the living room of the residence when police executed a search warrant.
Based upon this evidence, the jury was free to conclude that Yong and Vega had an
agreement whereby Yong would screen and accept payment from potential drug
purchasers, while Vega would retrieve and dole out the narcotics. Accordingly, Yong's
challenge to the sufficiency of the evidence is without merit.
27
Yong, 120 A.3d 299 (Pa. Super. 7/16/15)
Link to: Lazarus, J. concurring
CONTEMPT OF COURT
During a preliminary hearing in Philadelphia Municipal Court, Shaun Warrick’s
mother was called to testify. Spectators in the courtroom verbally and physically
assailed Ms. Warrick, and a general melee erupted in the courtroom. Warrick tried to
defend his mother, which led to an expanded struggle that required deputy sheriffs and
police reinforcements from outside the courtroom to restore order. The courtroom was
locked down for three hours.
When court reconvened, the trial court held a summary hearing for direct criminal
contempt against the spectators. The judge put his observations on the record. The
court officer then testified and confirmed the identity of three spectators as the
individuals who caused the disturbance. The spectators were not represented by
counsel at that time and did not question the court officer.
In Falana, 548 Pa. 156, 696 A.2d 126 (5/21/97), this Court held when an
individual makes a remark in court while the trial court is physically present, that person
cannot avoid a contempt finding simply by alleging the court did not hear the comment.
Falana, at 129. There, the contemnor’s statement to the victim, i.e., “I’ll be out one
day[,]” was made in open court while the judge was on the bench. In upholding the
contempt conviction, we did not require proof the court actually heard the contemnor
speak the words; we found it sufficient that the comment was made in the court’s
presence, in open court, even though the court did not hear it.
Summary contempt is warranted when the contemptuous conduct takes place in
the presence of the court. Thus, the court so violated is under no obligation to prove it
actually witnessed the disturbance.
It is uncontradicted that court was open and in session, and that the judge was
on the bench; the judge in every courtroom in the country will be facing into that
courtroom, not away. Thus, the judge was facing into the gallery where the fight
erupted, facing [spectator] Archie, who was holding a sign while screaming in obscene
language, and facing toward [spectator] Moody, who was running up to assault the
witness, with [spectator] Ivery joining the fight. It is hardly unreasonable to find this from
the factual record — we credit the judge’s statements of personal observation. Not only
did the judge necessarily see the fracas, he repeatedly stated he saw the contumacious
conduct himself. This is sufficient support for a finding of direct criminal contempt.
The Superior Court misapprehended the record and conflated the concept of
something being “in the presence of the court,” with that of it being “personally
observed” by the court. This Court has recognized misconduct occurs in the presence
of the court if the court itself witnesses the conduct or if the conduct occurs outside the
courtroom but so near thereto that it obstructs the administration of justice. Contempt,
therefore, is subject to summary proceedings not only where it takes place “directly
under the eye” of the court — in the sense that the court is looking directly at it — but
also anywhere “within the view of the court.”
28
A trial court has no need to contend with contemnors concerning whether the
court observed conduct that occurred in open court and severely obstructed the
administration of justice. Our law necessarily assumes observation for the sake of
establishing and maintaining order in the courts for the benefit of all whose rights are
protected thereby.
The physical and verbal attacks on a witness occurred in open court, caused
injury to a court officer, delayed proceedings for hours, required the immediate attention
of police officers and almost every free deputy sheriff in the courthouse, and
necessitated additional proceedings to address the contemptuous behavior. Based on
these circumstances, the trial court understandably deemed the summary finding of
contempt necessary to the vindication of its dignity and authority. As a means of
resolving disagreements, society has replaced fighting and violence with courts — to
allow fights and violence in those same courtrooms defeats the very justification of the
court. Indeed, we would be hard-pressed to construct a scenario better exemplifying the
definition of misbehavior occurring in the presence of the court, obstructing the
administration of justice, and therefore warranting immediate imprisonment. Under the
aforementioned well-settled jurisprudence, the trial court acted within its authority in
holding the summary proceeding at issue for the acts of contempt committed in open
court, and the Superior Court erred in holding otherwise.
We conclude without hesitation that a direct-criminal-contempt defendant is not
entitled to call or cross-examine witnesses during such proceedings.
Where an individual engages in contumacious conduct in open court — requiring
the court to act immediately to restore order and vindicate its authority, the court may do
so — assistance of counsel need only be secured prior to actual imprisonment for
contempt. Where testimony is required for the court to determine what happened before
it can make a finding of contempt, a different scenario presents itself. However, the full
panoply of due process protections becomes inapposite where the judge witnesses the
contempt in a situation like this one, where the initial finding of direct criminal contempt
occurred during a separate proceeding, prior to a subsequently scheduled sentencing
hearing. And, since the trial court appointed counsel prior to sentencing in this case, no
due process violation arose during the initial summary proceedings.
To the extent Crawford, 466 Pa. 269, 352 A.2d 52 (1/29/76); and Abrams, 461
Pa. 327, 336 A.2d 308 (4/17/75), may be read to require the assistance of counsel
during an initial summary proceeding where a defendant is found guilty of direct criminal
contempt, prior to separate proceedings where the defendant is actually sentenced to
imprisonment, those cases are expressly disapproved.
BAER, J. CONCURRING, JOINED BY STEVENS, J.:
In Falana, the contemnor threatened the victim as he was being escorted out of
the courtroom and while the judge was on the bench. Because the misconduct occurred
in open court, one would presume that the judge saw and heard the misconduct, and
there would be no need for the court to prove its understanding of the facts. However, in
Falana, the trial judge did not hear the threatening statement. The judge, therefore,
appropriately called witnesses, afforded the accused an opportunity to put on evidence,
and permitted the accused to avail himself of legal representation, indicating that his
lack of knowledge properly made the matter one of indirect rather than direct criminal
contempt.
29
By way of contrast, there is no question that in the present matter the trial judge
was entitled to dispense with normal due process requirements and conduct a summary
proceeding for direct criminal contempt for the purpose of restoring order in the
courtroom and to vindicate the authority and dignity of the court. As the Majority Opinion
notes, the brawl involving [the spectators] and Warrick’s mother occurred in the gallery
of the courtroom within the immediate view of the bench. Moreover, the trial judge, both
during the summary proceeding and again in his opinion, affirmed that he observed the
belligerent conduct. Because the misconduct at issue occurred in the view of the judge,
I agree with the majority’s assessment that a summary proceeding for direct criminal
contempt was proper in this instance. If, however, the brawl had occurred beyond the
observation of the court such that the trial judge would have necessarily depended on
the testimony of others to ascertain the essential elements of the alleged misconduct,
the facts would have instead warranted a charge of indirect criminal contempt and the
usual due process requirements would have applied.
Moody, ___ Pa. ___, ___ A.3d ___ (10/27/15)
Link to: Baer, J. concurring
Link to: Saylor, C. J. dissenting
CORRUPTION OF MINORS
Corruption of minors is a felony of the third degree if defendant engaged in “any
course of conduct.” Multiple acts are required. We cannot discern how the
Legislature's employment of the term "any," immediately preceding "course of conduct,"
so fundamentally expands the meaning of the latter phrase to encompass a single act.
Kelly, 102 A.3d 1025 (Pa. Super. 10/24/14) (en banc)
CRUELTY TO ANIMALS
We expressly adopt the Black's Law Dictionary definition of "wanton" in the
context of the animal cruelty statute, 18 Pa.C.S. § 5511, as "unreasonably or
maliciously risking harm while being utterly indifferent to the consequences."
Defendant wantonly neglected her dogs and cat by denying them access to clean
and sanitary shelter, as well as access to veterinary care. Each animal was filthy with
feces, had worms, and some had eye infections, teeth that needed to be removed, and
lumps. It is obvious from the pictures as well as the testimony of the Commonwealth's
witnesses that the unsanitary conditions existed for a period of some time. Defendant
was clearly in denial, and exhibited a conscious indifference to the consequences of the
home and animal conditions.
The large number of animals in the home required far more care than defendant
and her helpers provided. It is not as if defendant had one dog; she should have known,
and in fact did know, but did not accept, that she could no longer keep her animals
because she could not adequately care for them. Her defense that she became
30
overwhelmed should have led her to call the SPCA herself for help. She did not.
Instead, the evidence clearly shows that she kept the animals in her home in filthy,
uninhabitable conditions for a sustained period of time. Those animals were relying on
her as owner of the home and in control of the home to provide for them, and she had a
duty to do so. The condition of the home and animals is evidence of clear neglect.
Shickora, 116 A.3d 1150 (Pa. Super. 5/21/15)
DISCOVERY
Under Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995),
the prosecution's Brady obligation clearly extends to exculpatory evidence in the files of
police agencies of the same government bringing the prosecution. To the extent that
[former] Rule 305(B)(1)(a) [now Pa.R.Crim.P. 573(B)(1)(a)] and the cases construing it
could be read to suggest otherwise, such readings must bow to Kyles' elaboration of the
prosecutor's Brady duty respecting exculpatory evidence.
Burke, 566 Pa. 402, 781 A.2d 1136 (10/17/01)
The prosecutorial duty respecting exculpatory evidence in the files of police
agencies is limited to those agencies of the same government bringing the prosecution;
Commonwealth prosecutors are not responsible to secure and disclose information held
by federal authorities.
Watkins, ___ Pa. ___, 108 A.3d 692 (12/29/14)
Link to: Todd, J. concurring
cert. denied, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (10/5/15)
The Commonwealth has no duty to provide evidence in a form that the defendant
demands for the convenience of the defense. Defendants had no general right of
discovery. Once the Commonwealth disclosed the victims’ video DVD interviews, the
evidence was no longer in the exclusive control of the Commonwealth. Thus, the
evidence was equally available to defendants in a source other than a written transcript.
Moreover, the general rules and statutes the court relied on did not grant the court
inherent rule making authority or the discretionary power to order the Commonwealth to
prepare written transcripts in addition to the video copies of the interviews. The court’s
bald assertion that it is common practice in federal court to introduce a transcript with
every tape lacks confirmation. There is no rule of law, statute, or case that requires the
Commonwealth to reduce to writing that which is already on video and disclosed to the
defense. Thus, we hold the court abused its discretion in sanctioning the
Commonwealth by precluding the victims’ testimony at trial, which effectively dismissed
the charges against defendants.
31
Robinson, ___ A.3d ___ (Pa. Super. 8/3/15)
appeal pending, No. 509 EAL 2015 (filed 9/1/15)
On September 10, 2010, Police Officer Bradford Mitchell met with confidential
informant number 01079 ("CI-2"). CI-2 had aided Officer Mitchell in twenty to twenty-five
prior drug investigations, all of which had led to the recovery of narcotics and arrests,
and he was still being used as a CI. After following the controlled-buy mandates, Officer
Mitchell gave CI-2 twenty dollars in buy money and followed him to the 2700 block of
Judson Way. Officer Mitchell observed CI-2 engage defendant as well as a man named
James Lofton in a brief conversation, and he saw all three people enter 2737 Judson
Way. Within two minutes, CI-2 exited the building and gave Officer Mitchell two pieces
of crack cocaine. At that time, CI-2 informed Officer Mitchell that, inside 2737 Judson
Way, CI-2 handed Lofton the buy money, Lofton obtained the crack cocaine from
underneath a couch, and Lofton handed CI-2 the drug.
As soon as the trial court issued a ruling requiring the revelation of CI-2's identity,
the Commonwealth amended the delivery charge so that it was no longer premised
upon the controlled-buy conducted on September 10, 2010. Additionally, the
Commonwealth agreed to stipulate at the scheduled trial that CI-2 told Officer Mitchell
that, inside 2737 Judson Way on September 10, 2010, CI-2 gave the buy money to a
person named Lofton, not to the defendant. It was Lofton who reached inside a couch
for the crack cocaine, and it was Lofton, not the defendant, who handed the crack
cocaine to CI-2.
Even before the discretion of the trial court to order disclosure can be exercised,
the defendant must establish that the CI's identity is material to the preparation of a
defense and that the request is reasonable. If materiality and reasonableness are
proven, then the courts must balance the public interest in the police's ability to obtain
information against the defendant's right to prepare his defense. In this connection, we
consider the crime, the potential defense, and the significance of the CI's testimony. The
scales tip in favor of disclosure if the Commonwealth will be relying on police testimony
based on a single observation. If other proof corroborates a police officer's testimony,
disclosure is not mandated. Furthermore, the safety of the confidential informant can be
a controlling factor in determining whether to reveal a source's identity.
The Commonwealth agreed to stipulate that CI-2 told police that Lofton sold him
the drugs inside the row house on September 10, 2010, and to amend the delivery
charge to eliminate the September 10, 2010 controlled-buy. Thereafter, the identity of
CI-2 was not material to a defense to any pending charge. Additionally, this case was
not one where defendant's identity was established through a single police observation.
Rather, both Officer Francis and Officer Beattie saw defendant on September 7, 2010.
Officer Francis observed defendant initiate the controlled-buy with CI-1, who later drove
with Officer Beattie past defendant so that the officer could view defendant's face.
Officer Beattie watched as defendant conducted the controlled-buy with CI-1 on
September 8, 2010. Then, Officer Mitchell observed CI-2 speak with defendant and
Lofton before all three people entered 2737 Judson Way on September 10, 2010. This
case was not one where, even if the balancing test was applicable, the scales tipped in
favor of disclosure. Accordingly, the trial court abused its discretion in continuing to
32
insist that the Commonwealth reveal the identity of CI-2 after the Commonwealth
entered the stipulation and amended the delivery charge. Since the disclosure order
was improper, the Commonwealth did not violate Rule 573 and could not be sanctioned
for the same.
Jordan, ___ A.3d ___ (Pa. Super. 9/22/15) (en banc)
Link to: Wecht, J. dissenting
DISORDERLY CONDUCT
On the evening of June 3, 2013, two Pennsylvania State Police troopers were
patrolling U.S. Route 15 in Adams County. At about 11:45 p.m., they observed a red
Dodge pickup truck stopped on the shoulder. The truck’s lights were off, and it appeared
to be disabled. The troopers parked behind the truck, activated the police car’s
emergency lights for safety, and got out to investigate.
Defendant gave the troopers his name and address, but refused to answer other
questions. Instead, he began to scream and curse. He repeatedly walked to the
roadway, toward oncoming traffic. One of the troopers placed defendant in handcuffs to
prevent him from running away. During the encounter, defendant yelled at the troopers,
“all you fucking cops are communists just like Obama,” “[t]his fucking country sucks,”
and “[y]ou better watch your back.” Defendant was yelling loud enough that one of the
troopers could hear him ten feet down the embankment.
“Unreasonable noise” under the disorderly conduct statute is determined solely
by the volume of the speech, not by its content.
Pennsylvania law defines
unreasonable noise as not fitting or proper in respect to the conventional standards of
organized society or a legally constituted community.
The evidence of unreasonable noise is insufficient. The Commonwealth failed to
present any evidence that the volume of defendant’s speech was inappropriate for the
place at which it occurred: alongside a rural highway, out of hearing of any residential
community or neighborhood. The Commonwealth correctly points out that defendant
was yelling loud enough that a trooper heard him down the trash-strewn embankment.
However, even when viewing the evidence in a light most favorable to the
Commonwealth, there is no evidence that any member of the public heard defendant.
The arresting troopers could not account for the number of motorists who passed by,
and none of the troopers or police officers testified that any driver noticed defendant
based on the volume of his outburst.
It is true that a highway is, by statute, a public place. 18 Pa.C.S. § 5503(c).
However, being in public is merely necessary, but not alone sufficient, to convict of
disorderly conduct. The Commonwealth must also prove the particular act requirement,
that the noise here was unreasonable, i.e., inconsistent with neighborhood tolerance or
standards. The evidence here does not support such a finding. Highways and rural,
sparsely populated areas have a higher tolerance for loud noises, unlike residential
neighborhoods.
In this case, no evidence supports the finding that defendant’s shouts—though
loud—were heard by any passing drivers. Like the proverbial tree falling in a forest,
33
noise is not unreasonable if nobody hears it, because noise that is heard by no member
of the public cannot be inconsistent with community or neighborhood standards.
Forrey, 108 A.3d 895 (Pa. Super. 1/16/15)
On April 24, 2013, at approximately 10:00 p.m., the victim was present at her
home setting up a fire in a fire pit in her backyard. She noticed noises on the outside of
the fence surrounding her residence and, as a result, she walked over to investigate.
She was able to see defendant standing at the front door of his residence which was
diagonal from her own residence. Defendant repeatedly directed statements toward the
victim such as that the victim’s "fat mom humps [her] dog" and "whore." The statements
made her feel "uncomfortable and scared." Defendant was found guilty of disorderly
conduct under 18 Pa.C.S. § 5503(a)(4) (hazardous or physically offensive condition).
The dangers and risks against which the disorderly conduct statute is directed
are the possibility of injuries resulting from public disorders. A five or six foot high fence
separated the two properties. There was no evidence that anyone other than the victim
heard defendant's remarks. We cannot conclude defendant acted with the intent to
create public annoyance when he made his offensive remarks in a private setting and
the remarks apparently were heard only by the victim. Defendant's remarks were brief
and did not cause public unrest or create a risk of public unrest.
Mauz, ___ A.3d ___ (Pa. Super. 9/9/15)
DOUBLE JEOPARDY
On January 4, 2013, the parties appeared before the municipal court for a bench
trial concerning the above DUI charge. After the court crier's announcement of the case,
defendant waived arraignment and the Commonwealth requested a continuance
because it needed a particular witness in order to proceed. The municipal court denied
the continuance request.
Defense counsel inquired whether the Commonwealth's other witnesses were
present and the Commonwealth discovered that they had left without permission. The
municipal court refused the Commonwealth's second continuance request and asked
whether it wanted to withdraw the case. The Commonwealth immediately moved for
withdrawal over defendant's objection. After initially agreeing that the Commonwealth's
motion was appropriate, the municipal court instead declared defendant not guilty.
Jeopardy does not attach until the court begins to hear evidence and therefore,
where the municipal court did not hear any evidence, its not guilty verdict cannot be said
to be a ruling on the merits which should implicate double jeopardy concerns. We also
note that the proper action by the municipal court would have been to allow the
Commonwealth to withdraw the charges or to dismiss them itself, not to find defendant
not guilty.
Martin, 97 A.3d 363 (Pa. Super. 7/23/14)
34
On January 14, 2013, a police officer issued a traffic citation charging Ball with
Driving Under Suspension, Driving Under the Influence Related, 75 Pa.C.S.
§ 1543(b)(1). During a June 26, 2013 summary trial, the Magisterial District Judge found
Ball not guilty of the original charge, but found him guilty of Driving Under Suspension,
75 Pa.C.S. § 1543(a), a lesser-included offense for which Ball had not been formally
cited.
Ball filed an appeal from the summary conviction. The Common Pleas Court
judge ruled that de novo review required the court to consider the charges as originally
filed. After the de novo hearing, the trial court found Ball guilty of the original charge, 75
Pa.C.S. § 1543(b)(1).
The ruling by the Magisterial District Judge resulted in an implied acquittal of 75
Pa.C.S. § 1543(b)(1). The Common Pleas Court's adjudication of guilt at the de novo
bench trial was a legal nullity and a violation of Ball’s right not to be placed in double
jeopardy.
Ball, 97 A.3d 397 (Pa. Super. 7/24/14)
appeal granted, No. 23 MAP 2015 (granted 3/24/15)
DRIVING UNDER SUSPENSION
Harden failed to provide photo identification to Officer McGee during the traffic
stop. Under Dietz, 423 Pa. Super. 366, 621 A.2d 160 (3/8/93), appeal denied, 535 Pa.
634, 631 A.2d 1007 (9/9/93) and Crockford, 443 Pa. Super. 23, 660 A.2d 1326 (6/8/95)
(en banc), appeal denied, 543 Pa. 690, 670 A.2d 140 (12/8/95), that fact, in conjunction
with evidence that notice was mailed, is sufficient to permit the inference of knowledge.
The result of defense counsel's objection to Officer McGee's statement that Harden
provided him "false identification" is unclear from the notes of testimony, but if that
statement is to be considered competent evidence, then it would support an inference of
knowledge as well. Lastly, Harden's history of suspensions for previous violations, as
detailed in his driving record, also supports an inference of knowledge.
Harden, 103 A.3d 107 (Pa. Super. 10/27/14)
DRIVING UNDER THE INFLUENCE
The rules of evidence governing a trial are inapplicable to a determination of
probable cause. We reject defendant's assertion that Trooper Hunter could not rely
upon the results of the HGN test when assessing whether he had probable cause to
arrest defendant.
Weaver, 76 A.3d 562 (Pa. Super. 8/28/13)
aff’d per curiam, ___ Pa. ___, 105 A.3d 656 (12/1/14)
35
On February 25, 2012, at 11:55 p.m., Philadelphia Police Officer Gregory Dixon
stopped Wilson's vehicle at the 1900 block of 54th Street in the city of Philadelphia for
driving while under the influence. The legality of the stop and the legality of the arrest
were not challenged. Wilson was transported to the Philadelphia Detention Unit (PDU)
for processing. Because of the large number of defendant’s that night, Wilson was not
presented for blood processing until 2:25 a.m. and his blood sample was not tested until
2:36 a.m. The police eventually charged Wilson with driving under the influence of a
controlled substance, 75 Pa.C.S. § 3802(d).
The plain language of subsection 3802(d)(1) "prohibits one from driving if there is
any amount of a Schedule I controlled substance, any amount of a Schedule II or
Schedule III controlled substance that has not been medically prescribed for the
individual, or any amount of a metabolite of a controlled substance in one's blood." By
contrast, the plain language of subsections 3802(a)(2), (b) and (c) require the offender's
blood alcohol content reach a specified level within two hours of driving. We find the
express absence of such language in subsection 3802(d) to be conspicuous.
We find that the absence of any such time requirement in subsection 3802(d)
persuasive that the legislature did not envision a time limit on testing for the presence of
controlled substances after driving. Absent express legislative intent otherwise, we
decline to impose a two-hour time limit when testing for the presence of controlled
substances where it is not contemplated by the unambiguous language of the statute.
Wilson, 101 A.3d 1151 (Pa. Super. 9/18/14)
appeal denied, ___ Pa. ___, 121 A.3d 496 (7/28/15)
The Commonwealth charged defendant with one count of DUI under Section
3802(c), plus related summary offenses, and presented evidence that defendant's
Breathalyzer results indicated a BAC of 0.17% within two hours of the traffic stop. At
trial, the defense disputed the BAC level by challenging the accuracy of the testing
machine because it had not been adjusted for daylight savings time. Counsel sought to
characterize the time calibration as suggestive of a malfunction of the testing equipment
to call into question the BAC measurement. The court's unopposed jury instructions
allowed the jury to decide if the Commonwealth had proved defendant was DUI and, if
so, to select from one of each of the three separate BAC ranges according to the
evidence presented at trial. The jury found defendant guilty of DUI with a BAC between
0.10% and 0.159%, a range consistent with Section 3802(b). Defendant did not object
to the verdict when entered.
Although the lesser offense of Section 3802(b) may call for a BAC range lower
than the range in the greater offense of Section 3802(c), Section 3802(b) can still be
considered a lesser-included offense, because the evidence at trial to prove the Section
3802(c) offense established the elements of the Section 3802(b) offense. Consistent
with courts adopting this approach, here the same underlying conduct established the
elements of both offenses. The jury was therefore free to convict defendant under
Section 3802(b), even where the Commonwealth charged only Section 3802(c), as the
36
record evidence at trial reasonably supported a verdict on the lesser offense of Section
3802(b).
Houck, 102 A.3d 443 (Pa. Super. 9/26/14)
Link to: Fitzgerald, J. dissenting
Musau, 69 A.3d 754 (Pa. Super. 6/28/13), appeal denied, ___ Pa. ___, 117 A.3d
296 (6/10/15), has been overruled by statutory amendment, Act 189 of 2014.
The act amends Section 3803(a) of the Vehicle Code by replacing the phrase
“Notwithstanding the provisions of” with “Except as provided in.” The result is that any
second offense with refusal, accident, or minor occupant, occurring after October 27,
2014, will carry a maximum sentence of 5 years.
The specific M1 grading found at 75 Pa.C.S. § 3803(b)(5) (minor under 18 was
occupant of vehicle) prevails over the general language of 75 Pa.C.S. § 3803(b)(1)
(providing for a maximum sentence of six months).
Wilson, 111 A.3d 747 (Pa. Super. 2/18/15) (pre 10/27/14 offense)
Link to: Bender, J. dissenting
appeal pending, No. 263 WAL 2015 (filed 7/6/15)
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, ___ Pa. ___, 104 A.3d 479 (11/20/14)
Link to: Eakin, J. dissenting
On the morning of April 28, 2013, defendant’s vehicle was stopped for a
suspended registration. Adams Township police officer Ed Lentz gave uncontroverted
testimony that, upon approaching defendant’s car, he immediately smelled a very strong
odor of burnt marijuana emanating from the car. Officer Lentz had absolutely no
question that what he smelled was indeed burnt marijuana. The officer had previously
testified as to his training and experience identifying the odor of burnt marijuana, which
he described as “very distinct.” Defendant was the sole occupant. The officer ordered
37
defendant from the vehicle and placed him in handcuffs. Subsequently, the officer
asked defendant to submit to chemical blood testing, and defendant agreed. The
chemical blood test indicated that defendant had marijuana in his bloodstream.
The smell of alcohol alone is not sufficient to justify a request for a section 1547
blood test for suspected alcohol-based DUIs. Such a request requires some further
indicia of intoxication, such as erratic driving, slurred speech, bloodshot eyes, balance
issues, etc.
However, the Vehicle Code treats consumption of alcohol differently from
consumption of marijuana. The Vehicle Code does not preclude an adult from
consuming any amount of alcohol and then operating a motor vehicle in Pennsylvania.
See 75 Pa.C.S. § 3802(a). Instead, the Vehicle Code precludes the operation of a motor
vehicle only “after imbibing a sufficient amount of alcohol such that the individual is
rendered incapable of safely driving, operating or being in actual physical control of the
movement of the vehicle.” 75 Pa.C.S. § 3802(a)(1). On the other hand, the Vehicle
Code precludes an individual from operating a motor vehicle with any amount of
scheduled controlled substance, or a metabolite thereof, in the driver’s blood. 75
Pa.C.S. § 3802(d). Because marijuana is a Schedule I controlled substance, the Vehicle
Code prohibits an individual from operating a vehicle after consuming any amount of
marijuana. As a result, unlike cases where police suspect alcohol-based DUI, evidence
of operator consumption of any marijuana is enough to allow police to request a section
1547 blood test for suspected controlled substance-based DUI. Such evidence includes
the distinct odor of burnt marijuana emanating from a vehicle in which the operator is
the sole occupant.
Jones, 121 A.3d 524 (Pa. Super. 7/24/15)
DRUGS – INTENT TO DELIVER
A confidential informant apprised police that Norman Koch, a/k/a Matt Koch, was
selling cocaine and that Koch resided with his sister, the defendant, and Dallas Conrad,
her paramour, at an address on Aeronca Street in North Middleton Township. Based on
that information, police conducted two trash pulls at the residence, which yielded two
baggies, one containing cocaine residue, the other marijuana residue. Detective
Timothy Lively applied for and obtained a search warrant for defendant's residence and
on March 25, 2009, at approximately 6:05 p.m., members of the Cumberland County
Drug Task Force executed the search warrant on defendant's home. The officers, after
identifying themselves and stating their purpose, were granted access to the house.
Present were defendant, her brother Norman Koch, and Dallas Conrad.
Officer Richard Grove of the North Middleton Police Department and assigned to
the task force testified that he was involved in the search of the master bedroom. He
found two individual baggies of marijuana and seven hundred dollars in a dresser
drawer containing male underwear and socks. On top of another longer dresser located
in the room, he found a men's shoebox containing a bong, two pipes for smoking
marijuana, a grinder used to separate stems and seeds from the leaves, Phillies Blunts
38
cigars, and sandwich bags. In a basement freezer, other officers recovered a small bag
of marijuana and a marijuana bud. Scales containing residue of marijuana were located
on top of the refrigerator, along with a marijuana pipe.
The task force also seized two cell phones, one of which defendant identified as
hers. The other phone was subsequently identified as her brother's. The text messages
on defendant's phone were transcribed, and the Commonwealth offered testimony and
a transcript of what it described as thirteen drug-related text messages.
Viewing the evidence in the light most favorable to the Commonwealth, the
quantity of drugs recovered at her home, scales and packaging materials, the text
messages, in addition to the expert testimony of Detective Lively, we find that the
Commonwealth established possession with intent to deliver beyond a reasonable
doubt. Officer Grove testified that he searched the master bedroom of the home and it
contained both male and female clothing and mail addressed to defendant and her
paramour/codefendant, Dallas Conrad. In a dresser drawer containing male underwear
and socks, the officer located two baggies containing marijuana adjacent to
approximately seven hundred dollars in cash. A man's shoebox located on a longer
dresser contained a bong, two pipes, a grinder, sandwich bags, and the Phillies Blunts
cigars. Search of the basement freezer yielded a small bag of marijuana and a
marijuana bud.
Detective Lively testified that he had been a member of the Cumberland County
Drug Task Force since 2003 or 2004 and that he had training and experience in
narcotics and drug-trafficking. He participated in the search and personally recovered a
pipe and electronic scales from the top of the refrigerator and two cellular phones. He
continued that the purpose of searching for cellular phones is that "more often than not,
[they] are used to communicate between dealers and users." The detective stated that
he seized an AT&T cell phone that defendant identified as her phone and that he
transcribed the text messages stored in the phone. He segregated those messages that
were drug-related from those that were just general communications. The detective
related that thirteen of the text messages were drug-related and he explained to the jury
what each meant. He then testified as to his expert opinion, based on his experience
with the way marijuana is delivered, as opposed to personal use, that the large amount
of cash, the fact that there was more than one bag of marijuana, and scales saturated
with marijuana residue, were indicative of drug sellers rather than users. He further
suggested that the nice house, expensive furniture and electronics also were more
characteristic of dealers. He presented his opinion that the text messages, together with
the pipes and bongs, also indicated possession. We find such evidence sufficient to
sustain convictions for possession with intent to deliver.
Koch, 39 A.3d 006 (Pa. Super. 9/16/11)
aff’d [on other grounds] by an equally divided court, ___ Pa. ___, 106 A.3d 705
(12/30/14) Link to: Castille, C.J. in support of affirmance
Link to: Saylor, J. in support of reversal
Link to: Eakin, J. in support of reversal
39
On August 13, 2012, at approximately 2:00 p.m., Ridley Township Police Officer
Leo Doyle was on patrol in the Secane area in response to a complaint about illegal
drug activity at the Presidential Square Apartments on South Avenue. James Latticlaw,
the complainant, had told the police that squatters were selling drugs out of his
apartment. Sergeant Charles Palo and Corporal Daniel Smith, also members of the
Ridley Township Police Department, accompanied Officer Doyle to the Secane address
in a separate police vehicle. When the two police vehicles arrived at the apartment
complex, the police observed a black Cadillac driving towards them and saw Latticlaw
pointing toward the Cadillac.
After seeing Latticlaw gesture toward the Cadillac, both police vehicles followed
the car as it pulled out of the parking lot. While only a few feet behind the Cadillac,
Officer Doyle saw Mosley, the driver of the Cadillac, put his arm out of the driver's side
window and drop two clear plastic bags. Corporal Smith picked up the two bags while
Officer Doyle activated his siren and police lights and pulled the Cadillac over. Corporal
Smith contacted Officer Doyle to tell him the baggies contained narcotics. Doyle
arrested Mosley and, in a search incident to arrest, recovered two cellular phones and
$117.00 in cash from his person.
Sgt. Kenneth Rutherford testified that the phones contained text messages from
various people indicating "there was a sale of narcotics, there was a request for different
types of narcotics, drugs, meet, locations, places to meet, things like that." Sergeant
Rutherford consistently testified to common street terms used in illegal drug sales, the
manner in which dealers often stamp their bags of drugs with symbols and wording, and
that text messages are often sent to a phone in an attempt to buy drugs. Ultimately, the
prosecutor asked Sgt. Rutherford if, based on his expertise, he had formed an opinion
that the drugs and cell phones confiscated from Mosley were associated with the
distribution of drugs, or just mere possession for personal use, to which he replied:
Yes. A combination. I take into account everything, the totality of
everything. You know, a combination of the packaging, the text
messages, this is consistent with someone who is involved with the
sale of narcotics. And in this case, different types of narcotics.
***
A lot of times dealers — I mean, especially with the heroin because
the weights can really affect severe jail terms. They don't like to
carry a whole lot. I mean, they'd rather have less. A lot of times
you'll see — in some of the text messages he says what do you
need. What do you need because sometimes — depending on
where they set up their operation, they may only come out with
what you ask for.
First, Mosley was driving the car from which two clear plastic bags (each
containing multiple baggies within) were thrown out of the driver's side window. Second,
no drugs, paraphernalia or other incriminating drug evidence was found on the
passenger in the Cadillac. Third, expert testimony by Sgt. Rutherford confirmed that the
packaging, weight and type of drugs, in addition to the $117.00 and cell phones found
on Mosley's person at the time of his arrest, are all indicative of possessing drugs with
40
the intent to deliver. Accordingly, we find that there was sufficient evidence to support
Mosley's conviction for possession with the intent to deliver.
Mosley, 114 A.3d 1072 (Pa. Super. 4/20/15)
appeal pending, No. 387 MAL 2015 (filed 5/20/15)
PETITION HELD PENDING BARNES, NO. 36 EAP 2015 (order dated 9/21/15)
ENDANGERING WELFARE OF CHILD
Whether Father Lynn owed a duty of care to the children of St. Jerome’s, or to
D.G. in particular, is not an issue in this appeal and was not encompassed within our
grant of allowance of appeal. Rather, the legal issue we address concerns solely
whether the evidence sufficed to prove Father Lynn’s supervision of the welfare of a
child. While we recognize that the answer to this question will in most circumstances be
informed by exploring the extent of the duty owed to the endangered child, we need not
engage in such an exploration herein; nor do we wade into an unnecessary review of
the trial court’s conclusions regarding other elements of the offense, including that the
Commonwealth’s evidence sufficed to prove that Father Lynn was aware of his duty of
care, protection or support, that he violated this duty, or that he knowingly endangered
the welfare of a child, because, again, these questions are beyond our grant of
allowance of appeal.
Focusing on the supervision element, the statute is plain and unambiguous that it
is not the child that the defendant must have been supervising, but the child’s welfare,
including that of D.G. The Commonwealth’s evidence must demonstrate just that:
defendant was supervising the welfare of a child, here, D.G., as well as other unnamed
minors. Indeed, criminal liability does not turn on whether the offender was supervising
D.G. or the other children of St. Jerome’s, a construction which would render
meaningless the precise statutory language encompassing the child’s welfare.
Moreover, the requirement of supervision is not limited to only certain forms of
supervision, such as direct or actual, as the Superior Court held. By its plain terms it
encompasses all forms of supervision of a child’s welfare.
Supervision is routinely accomplished through subordinates, and is no less
supervisory if it does not involve personal encounters with the children. Like defendant,
school principals and managers of day care centers supervise the welfare of the
children under their care through their management of others. Depending upon the
facts, they could be criminally liable for endangering the welfare of the children under
their supervision if they knowingly place sexually abusive employees in such proximity
to them as to allow for the abuse of these youth.
Simply put, defendant did not safeguard the physical and moral welfare of D.G.
by placing Rev. Avery, a known child molester, in a position to molest him. For all his
legal gyrations, it was precisely this conduct that brought defendant within the class of
individuals subject to criminal liability: by his own concession, he supervised the welfare
of the children of the Archdiocese, including D.G., and knowingly endangered D.G.’s
welfare by placing Rev. Avery in a location and situation that gave him free license to
abuse D.G.
41
The Commonwealth’s evidence established that despite being responsible for
responding to sexual abuse allegations against priests for the purpose of protecting the
welfare of D.G. and other children, defendant mollified victims of sexual abuse by falsely
telling them their allegations were being seriously investigated and that the particular
priest would never again be assigned around children, despite knowing that the priests
under his supervision would merely be reassigned to another parish with no ministry
restrictions on contact with children; he informed parishioners that the priests he
transferred were moved for health reasons, leaving the welfare of children in jeopardy;
he routinely disregarded treatment recommendations for priests; he failed to inform the
relocated priest’s new supervisor about abuse allegations; he took no action to ensure
that the abusive priest was kept away from children at his new assignment; he
suppressed complaints and concerns by the colleagues of the priests; all with the
knowledge that sexually abusive priests rarely had only one victim and that all of these
actions would endanger the welfare of the diocese’s children, including D.G. Finally, and
even more egregiously, when defendant was contacted by law enforcement, he
misrepresented facts to thwart their investigation of these priests, and their crimes.
The plain reading and common sense of the phrase “supervising the welfare of a
child” leaves little doubt that defendant’s actions constituted endangerment of D.G.,
whose welfare he was responsible for safeguarding. Further, the broad protective
purpose of the statute, the common sense of the community, and the sense of decency,
propriety, and morality which most people entertain, coalesce and are actualized in our
conclusion that defendant’s particular conduct is rendered criminal. Viewing the
evidence in the light most favorable to the Commonwealth as verdict winner, the
Commonwealth proved beyond a reasonable doubt that as Secretary for Clergy
defendant’s day-to-day responsibilities involved receiving allegations of clergy sexual
abuse and reacting to them for the protection of the children of the Archdiocese from
harm by sexually abusive priests over whose assignments defendant exercised
significant influence. Defendant endangered the welfare of D.G., whose well-being he
supervised, when he placed Rev. Avery in a position to have access to him.
Lynn, ___ Pa. ___, 114 A.3d 796 (4/27/15)
Link to: Saylor, J. dissenting
ESCAPE
At the time defendant escaped, he was charged with a felony, burglary. The fact
that the Commonwealth subsequently withdrew the burglary charge does not change
the grading of defendant’s escape.
Stoppard, 103 A.3d 120 (Pa. Super. 10/29/14)
Devries was under supervision of probation. Her probation officer and a coworker went to Devries’ residence to conduct a routine home visit. As part of such
supervision, Devries would be required to supply a urine sample to demonstrate she
42
was drug free. Devries was informed if she failed her drug test, she could be taken
before a judge and her supervision might be terminated. Further, while in the bathroom,
immediately after she supplied the specimen and there was a preliminary indication of
opiate use, Devries was told “due to her violation and testing positive that my supervisor
had already predetermined if she was to test positive, she would be arrested and taken
to jail.” Subsequent to this, Devries repeatedly asked not to be taken to jail because she
did not want to leave her daughter. Probation Officer Tamblyn testified she repeatedly
told Devries she was going to be placed under arrest or was under arrest. Officer
Tamblyn testified she did not place Devries in handcuffs while in the residence because
she did not want the daughter to see her mother in handcuffs. Finally, Officer Tamblyn
told Devries, “[L]et’s go, it’s time to go, we have to get out of here.” She allowed Devries
to retrieve her wallet, but at the same time, Devries grabbed her car keys and fled.
Our review of the certified record supports the trial court’s determination that
Devries was under official detention at the time she fled. Devries was informed of the
specific consequences of a failed urine test, specifically that she would be arrested,
taken to jail, and brought before a judge. Devries knew, having failed the drug test, that
she was in the custody of her probation officer. She knew she was going to jail and pled
not to be taken from her daughter. This evidences her knowledge of the situation.
Viewed in the light most favorable to the Commonwealth as verdict winner, there was
sufficient evidence to prove Devries was under official detention at the time she fled.
Devries, 112 A.3d 663 (Pa. Super. 3/20/15)
EVIDENCE – AUTHENTICATION
During the execution of a search warrant, the task force seized two cell phones,
one of which defendant identified as hers. The text messages on defendant's phone
were transcribed, and the Commonwealth offered expert testimony and a transcript of
what it described as thirteen drug-related text messages. No evidence was presented
as to who was the author of the messages.
CASTILLE, C. J. joined by BAER AND TODD, JJ. IN SUPPORT OF AFFIRMANCE:
We believe that authorship is relevant to authentication, particularly in the context
of text messages proffered by the government as proof of guilt in a criminal prosecution.
This is not an elevated "prima facie plus" standard or imposition of an additional
requirement. Rather, it is a reasonable contemporary means of satisfying the core
requirement of Pa.R.E. 901 when a text message is the evidence the Commonwealth
seeks to admit against a defendant; the Commonwealth must still show that the
message is what the Commonwealth claims it to be, and authorship can be a valid (and
even crucial) aspect of the determination.
Here, appellee admitted ownership of the cell phone, and other evidence from
the Commonwealth showed that the content of the messages indicated drug sales
activity. However, whether appellee was the author of the messages was not
established by any evidence, either direct or circumstantial. Nevertheless, the burden
for authentication is not high, and appellee was charged as both an accomplice and a
conspirator in a drug trafficking enterprise. As such, authorship was not as crucial to
43
authentication as it might be under different facts. For these reasons, we are satisfied
that the trial court did not abuse its discretion in determining that the Commonwealth
met its authentication burden as to the text messages.
SAYLOR, J. IN SUPPORT OF REVERSAL:
I am in alignment with Mr. Justice Eakin's Opinion in Support of Reversal relative
to the authenticity issue, as well as its reasoning that the messages were properly
authenticated as being drug-related and sent to and from defendant’s phone.
Accordingly, I too would reverse the Superior Court. However, as to the authorship
aspect of authentication, I have reservations with the notion that "any question
concerning the actual author or recipient of the text messages bore on the evidentiary
weight to be afforded them." Opinion in Support of Reversal, slip op. at 1 (Eakin, J.,
joined by Stevens, J.). In this regard, my view is closer to that expressed in Mr. Chief
Justice Castille's Opinion in Support of Affirmance, namely, that authorship is a relevant
consideration in most electronic communication authentication matters. See Opinion in
Support of Affirmance, slip op. at 14-16 (Castille, C.J.). As it concerns the present
matter, my position in support of reversal is grounded in the Commonwealth's offer of
the messages at trial, which did not rely on who drafted the messages (a fact that the
Commonwealth readily conceded it could not demonstrate), but rather as circumstantial
evidence of appellee's complicity in dealing drugs in the same way that drug records or
receipts may be relevant.
EAKIN, J. joined by STEVENS, J. IN SUPPORT OF REVERSAL:
I agree with the Opinion in Support of Affirmance that the trial court did not abuse
its discretion in determining the Commonwealth met its burden as to the text messages.
However, I write separately because I disagree with the view that authorship is a
relevant part of authentication analysis.
Regarding authentication, Rule 901 requires only that the proponent of the item
establish it is what he claims it is. See Pa.R.E. 901(a). As the Commonwealth
established the criminal content of the text messages and the ownership of the cell
phone, the threshold requirement for authentication was met, and any question
concerning the actual author or recipient of the text messages bore on the evidentiary
weight to be afforded to them. See Trial Court Opinion, 11/30/10, at 13 ("[T]here was
sufficient circumstantial evidence to authenticate the cellular phone as belonging to
[defendant], and sufficient authenticity of the messages contained therein. The
possibility that a person other than defendant was the author of the drug-related text
messages went to the weight of the evidence rather than admissibility of the
messages."). Respectfully, I believe the Opinion in Support of Affirmance mistakenly
conflates authentication and authorship; the latter is not a requirement of the former
under the Rule or the facts of this case. Authorship may be pertinent to the value of the
evidence, but it is not a part of authenticating it.
Koch, ___ Pa. ___, 106 A.3d 705 (12/30/14) (equally divided court)
Link to: Castille, C.J. in support of affirmance
Link to: Saylor, J. in support of reversal
Link to: Eakin, J. in support of reversal
44
The authentication inquiry will, by necessity, be evaluated on a case-by-case
basis as any other document to determine whether there has been an adequate
foundation showing of its relevance and authenticity. Mosley denied that he owned the
two cell phones that were confiscated from his person incident to his arrest. Moreover,
there was no first-hand corroborating testimony from a witness regarding the
authenticity of the text messages. Pa.R.E. 901(b)(1). In addition, there were two email
addresses attached to the cell phones, which could indicate that someone else had
access to or owned the phones. Finally, while several of the text messages could be
interpreted as indicative of drug dealing, none of the specific drug-related
communications identified Mosley. In fact, Donte (Mosley's first name) is only
referenced in a few text messages dated months prior to the instant investigation. None
of the text messages sent from the phone concerned drugs and there were no drugrelated text messages sent from the phones around the time of Mosley's arrest.
Mosley was charged with purely possessory offenses, including with the intent to
deliver. Therefore, the authorship of the texts is more critical to an authentication
analysis under the facts of this specific case. The fact that that the trial court failed to
give an authentication instruction to the jury further compounds the effect that the issue
of authorship has on the case. Here, the court generally instructed the jury with regard
to circumstantial evidence and the weight to be accorded it in terms of evaluating
whether Mosley was the transmitter or receiver of the messages. However, the court did
not instruct the jury that in order to prove authentication, circumstantial evidence which
tends to corroborate the identity of the sender is required.
The trial court found that the Commonwealth authenticated the messages based
on the following facts: (1) similar contacts in both phones; (2) Donte Mosley's mother as
a contact on both phones; (3) mother of Mosley's child texting similar messages on both
phones; (4) prior incoming texts referencing "Donte". While these facts may support
authentication, the court does not take into account the fact that the texts referencing
"Donte" occurred more than one week prior to the current incident and that the texts
from defendant’s mother were sent in April, June and July of 2012 — weeks to months
before Mosley's arrest. Finally, and most relevant to the issue of authorship, the court
does not discuss the fact that there is no reference to Donte in any of the drug-related
text messages.
This is a close case regarding authorship and authentication. Here, there is no
evidence, direct or circumstantial, tending to substantiate that Mosley was the author of
the drug-related text messages. Moreover, no testimony was presented from persons
who sent or received the text messages. While there may be contextual clues with
regard to some texts, (i.e., one of the text messages is from Mosley's mother on July 26,
2012, just 18 days before his arrest, wishing Mosley a happy birthday), there are no
such clues in the drug-related texts messages themselves tending to reveal the identity
of the sender. Additionally, the fact that a text message corroborates the "crazy horse"
stamp on one of the baggies of drugs discarded by Mosley just prior to his arrest is
merely circumstantial evidence of authentication. Nothing in that specific message,
however, indicates the identity of the author or recipient of the message.
Because there was no evidence, direct or circumstantial, clearly proving that
Mosley was the author of the drug-related text messages, or any corroborating witness
45
testimony regarding authenticity of the messages, we find that the trial court erred in
determining that the drug-related texts were authenticated properly.
Mosley, 114 A.3d 1072 (Pa. Super. 4/20/15)
appeal pending, No. 387 MAL 2015 (filed 5/20/15)
PETITION HELD PENDING BARNES, NO. 36 EAP 2015 (order dated 9/21/15)
EVIDENCE – CHARACTER
The Commonwealth argues defendant's reputation as a "good father" was not
pertinent under Pa.R.E. 404(a). We reject this argument. Defendant was charged with
Endangering the welfare of a child, which requires proof of endangering a child to whom
a person owes a duty of care, protection, or support. Clearly, a person's reputation as a
good father may be pertinent to rebut a charge that the person abused children under
his care. Furthermore, nothing in our case law constrains character evidence in sex
crimes cases to the trait of "chastity." Rather, Rule 404(a) requires only that the
character trait be "pertinent," i.e., relevant. A person's reputation as a good father or
caretaker may be pertinent to rebut a charge that a person sexually abused children
under his care.
Reyes-Rodriguez, 111 A.3d 775 (Pa. Super. 3/11/15) (en banc)
appeal denied, ___ Pa. ___, ___ A.3d ___ (9/1/15)
EVIDENCE – INFLAMMATORY
Having reviewed Commonwealth’s Exhibits C-9, C-10, and C-11, we find no
abuse of discretion in the trial court’s admission thereof. Exhibit C-9, a poster board of
photos depicting Sementelli’s body as discovered by police, contains 8 photographs of
Sementelli’s body, reclined against his sofa, with several wounds to his face, head and
body, and with blood stains on his face, head, shirt and pants, as well as a portion of a
sofa, end table, loveseat, carpet, and wall.21 Exhibit C-10, another poster board of
photos depicting the scene after Sementelli’s body was removed, depicts a multitude of
blood stains in the living room. Finally, Exhibit C-11, yet another poster board of photos,
depicts various portions of Sementelli’s home in disarray, with emphasis on an
entertainment center that appears to have been ransacked. As the Commonwealth and
the trial court explain, these exhibits are highly probative of the nature of the attack and
Sementelli’s wounds, which in turn aided the jury in understanding Officer Kibler’s and
Dr. Ross’ testimony concerning the same, and the trial court reasonably concluded such
relevance outweighed their likelihood of inflaming the passions of the jury. Additionally,
prior to publishing the exhibits to the jury, the trial court issued a cautionary instruction,
which the jury is presumed to have followed..
Walter, ___ Pa. ___, 119 A.3d 255 (7/20/15)
Link to: Saylor, C. J. dissenting
46
EVIDENCE – STIPULATION
In a federal prosecution for possession of a firearm by a felon, a trial court
abuses its discretion under the Federal Rules of Evidence when it admits into evidence
the name and nature of defendant's prior conviction over the defendant's offer to
stipulate to defendant's status as a felon where the prior conviction is for an offense that
is likely to lead the jury to convict on some improper ground.
Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1/7/97)
The decision in Old Chief, based upon an interpretation of a federal statute and
the federal rules of evidence is not binding on Pennsylvania courts.
Under 18 Pa.C.S. § 6105, the offenses that bar an individual from possessing a
firearm are set forth in a list that includes both the names of the offenses as well as the
sections of the Criminal Code where they are defined. In contrast, under 18 U.S.C.
§ 922(g)(1), Congress chose not to include any listing of specific applicable offenses,
but rather barred an individual from possessing a firearm if he or she has been
convicted of a crime punishable by imprisonment for a term exceeding one year. While
the United States Supreme Court majority concluded that the statutory language of 18
U.S.C. § 922(g)(1) showed no concern with the specific name or nature of the prior
offense beyond what is necessary to place it within the broad category of qualifying
felonies, we are unable to draw an analogous conclusion regarding the concern of our
General Assembly in its enactment of 18 Pa.C.S. § 6105. Commonwealth v. Stanley,
498 Pa. 326, 446 A.2d 583 (6/1/82), remains the law in Pennsylvania, and the
defendant is not entitled to compel either the Commonwealth or the court to accept his
stipulation that he was convicted of a qualifying offense.
We are unable to conclude that, in a § 6105 prosecution, a defendant suffers
unfair prejudice merely by the admission into evidence of his or her certified conviction
of a specific, identified, predicate offense, which has been offered by the
Commonwealth to prove the prior conviction element of § 6105. Any possibility of unfair
prejudice is greatly mitigated by the use of proper cautionary instructions to the jury,
directing them to consider the defendant's prior offense only as evidence to establish
the prior conviction element of the § 6105 charge, not as evidence of the defendant's
bad character or propensity to commit crime.
Jemison, 626 Pa. 489, 98 A.3d 1254 (8/18/14)
Link to: Baer, J. dissenting
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
47
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).
The trial court agreed with the Commonwealth’s argument and granted expungement
for the 1998 offenses, but not for the 1997 offenses.
If the General Assembly intended 18 Pa.C.S. § 9122(b)(3)(i) to require only that
defendant remain free of arrest or prosecution for any period of five years following her
conviction for the 1997 offense, it would not have utilized the phrase "following the
conviction for that offense." As defendant was not free of arrest or prosecution for the
five years following the 1997 offense, we discern no error or abuse of discretion in the
trial court's order denying her petition to expunge the 1997 offense.
Giulian, 111 A.3d 201 (Pa. Super. 2/23/15)
appeal granted, No. 75 MAP 2015 (9/9/15)
GUILTY PLEA
Defendant pled guilty to the rape of a child (N. O.). Three and one-half months
later, the court conducted a sentencing hearing. The prosecutor read into evidence a
report prepared for the Sexual Offenders Assessment Board, which described
defendant's multiple sexually violent episodes and concluded that defendant was a
sexually violent predator. The report portrayed defendant as a cruel assailant, who "was
sexually aroused by acts of violence, domination, or threats upon the victims" and for
whom self-reported rage and anger were secondary motivators. In addition, N. O., her
parents, grandmother, teacher, and physician testified to the severe physical and
emotional trauma that N. O. had suffered. Among other things, the witnesses stated that
memories of the brutal attack continued to affect N. O.'s emotional and psychological
well-being.
Defendant explained in allocution that he had pled guilty to spare N. O. suffering,
and he therefore expressed surprise at his portrayal during the sentencing hearing.
Defendant also stated that he had entered his plea because, absent a polygraph
examination, his account would not have been believed and he would not have received
a fair trial. He continued to discuss scenarios unrelated to the sexual assault of N. O., in
which the CIA purportedly had victimized him by seeking to employ him as an assassin
abroad, and where a serpent assertedly appeared and "[t]he Antichrist, he came out of
me[.]" Claiming that he did not commit the assault against N. O. and had been framed,
defendant insisted that a polygraph test would prove his innocence and asked to
withdraw his guilty plea.
There is no absolute right to withdraw a guilty plea; trial courts have discretion in
determining whether a withdrawal request will be granted; such discretion is to be
administered liberally in favor of the accused; and any demonstration by a defendant of
a fair-and-just reason will suffice to support a grant, unless withdrawal would work
substantial prejudice to the Commonwealth. Our prior decisions lent the impression that
this Court had required acceptance of a bare assertion of innocence as a fair-and-just
reason.
48
Presently, we are persuaded by the approach of other jurisdictions which require
that a defendant's innocence claim must be at least plausible to demonstrate, in and of
itself, a fair and just reason for presentence withdrawal of a plea. More broadly, the
proper inquiry on consideration of such a withdrawal motion is whether the accused has
made some colorable demonstration, under the circumstances, such that permitting
withdrawal of the plea would promote fairness and justice. The policy of liberality
remains extant but has its limits, consistent with the affordance of a degree of discretion
to the common pleas courts.
This case, in our view, illustrates why the existing per se approach to innocence
claims is unsatisfactory. Here, defendant's assertion was first made in sentencing
allocution, after the close of the evidentiary record (which, in any event, was dedicated
to a different purpose, since no motion to withdraw had been advanced before or during
such record's development). No request was made to reopen the record for an orderly
presentation in support of defendant's request. Moreover, the bizarre statements made
by defendant in association with his declaration of innocence wholly undermined its
plausibility, particular in light of the Commonwealth's strong evidentiary proffer at the
plea hearing. In the circumstances, the common pleas court should not have been
required to forego sentencing; rather, we find that it acted within its discretion to refuse
the attempted withdrawal of the plea.
Carrasquillo, ___ Pa. ___, 115 A.3d 1284 (6/15/15)
Link to: Stevens, J. concurring
Defendant stabbed his estranged wife, Kimberly, to death. He immediately
surrendered to police and confessed. Subsequently, he pled guilty to first-degree
murder and possession of an instrument of crime. In exchange for the plea, the
Commonwealth was to recommend that defendant would receive the mandatory
sentence of life imprisonment for first-degree murder and a consecutive term of
incarceration pertaining to the possessory offense.
Just over two months later, when defendant appeared for sentencing, he advised
the common pleas court that he wished to withdraw his plea, stating: "I'm here to
maintain my innocence in the charge of murder in the first degree."
At the hearing, defendant again stated that he was innocent, but he offered no
evidence. The Commonwealth presented audiotapes of defendant's telephone
conversations from prison, in which he stated that, although he "did it" and knew that he
"deserve[d] what [he was] gonna get," he wished to stand trial to "get some of the story
out." On this basis, and more generally, the Commonwealth took the position that
defendant's assertion of innocence was implausible and insincere.
In the companion case of Carrasquillo, however, we have determined that a bare
assertion of innocence — such as defendant provided as the basis for withdrawing his
guilty plea — is not, in and of itself a sufficient reason to require a court to grant such a
request. Accordingly, and for the reasons set forth more fully in that case, the common
pleas court did not err in denying defendant's withdrawal motion.
Hvizda, ___ Pa. ___, 116 A.3d 1103 (6/15/15)
Link to: Stevens, J. concurring
49
HEARSAY – COURSE OF CONDUCT
While certain out-of-court statements offered to explain a course of police
conduct are admissible because they are offered merely to show the information upon
which police acted, some out-of-court statements bearing upon police conduct are
inadmissible because they may be considered by the jury as substantive evidence of
guilt, especially where the accused's right to cross-examine and confront witnesses
against him would be nullified. Commonwealth v. Palsa, 521 Pa. 113, 555 A.2d 808
(3/6/89)
Mosley's arresting officer, Officer Leo Doyle, testified at trial regarding a phone
call he received from James Latticlaw, who indicated that Mosley and a third party were
"squatters" selling drugs out of Latticlaw's apartment. Officer Doyle also testified that
when he arrived at the apartment complex to investigate the matter, Latticlaw pointed at
the black Cadillac driven by Mosley, indicating to Officer Doyle that the occupants were
the two men who had been involved in drug activity at his apartment. Specifically, the
prosecutor questioned Officer Doyle at trial as follows:
Q: What area did they make a complaint? A specific type of crime
or of a specific incident that happened in a certain place?
A: Yes.
Q: What — what was that?
A: Drug activity.
Q: Drug activity. And what location?
A: At the 640 South. I forget the exact apartment, but James
Latticelaw[sic]'s apartment in 640 South Avenue, Presidential
Square.
***
A: I was — the van was in front of me with Sergeant Paylow and
Corporal Smith and I was behind the van and the black Cadillac
was coming towards me occupied by two black males. Okay. And I
also then observed James Latticlaw, who I know from running that
area and having calls, pointing at the car making a motion that
that's the car that was — that had the two occupants in it that were
why we were there.
The trial court justified its decision to admit Officer Doyle's testimony as follows:
This [c]ourt properly admitted the statements, as they were
introduced by the prosecution to show why Officer Doyle went to
the Presidential Apartments and why his attention was drawn to the
black Cadillac, not to prove the truth of the matter asserted.
In Commonwealth v. Yates, 531 Pa. 373, 613 A.2d 542 (9/16/92), Yates was
convicted of possession and possession with the intent to deliver. At trial, two officers
testified why they went to the specific area where Yates was arrested. In their
testimony, the officers stated "that an informant had notified them that a large black
male, i.e. [Yates], was `dealing drugs' at that location." Id. at 543. The trial court
50
admitted the testimony, reasoning that the testimony explained the course of police
conduct and that, without the testimony, the jury would not have any way of knowing
why the police went to that location. Even though the trial court gave the jury a
cautionary instruction, the Supreme Court reversed the defendant's conviction and
granted a new trial since the informant's statements were of a highly incriminating
nature, contained specific assertions of criminal conduct, and would have the
unavoidable effect of prejudice. Id.
Similarly, Mosley was charged and convicted of possession and possession with
the intent to deliver. Therefore, Officer Doyle's statement that he responded to
Latticlaw's apartment complex in response to a complaint that defendant was
conducting "drug activity" would likewise unavoidably "have had a prejudicial impact."
Id. Moreover, unlike the trial court in Yates, here the judge did not give the jury a
cautionary instruction despite the defense's objections to the police officer's alleged
hearsay statements. Where Officer Doyle's testimony contained specific assertions of
criminal conduct, it was likely that the jury would interpret this testimony from a police
officer as substantive evidence of Mosley's guilt; it also deprived Mosley of his right to
confront and cross-examine Latticlaw at trial.
Because there is relevant, cumulative evidence indicative of drug activity, we find
that the admission of this out-of-court statement, while an abuse of the trial court's
discretion, was harmless error. Here, there was independent evidence showing that
Mosley threw bags of drugs from a car he was driving, while being pursued by the
police. Mosley's possession of two cell phones and U.S. currency on his person was
consistent with drug activity, while the weight and packaging of the drugs was indicative
of possession with the intent to deliver.
Mosley, 114 A.3d 1072 (Pa. Super. 4/20/15)
appeal pending, No. 387 MAL 2015 (filed 5/20/15)
PETITION HELD PENDING BARNES, NO. 36 EAP 2015 (order dated 9/21/15)
HEARSAY – DEFINITION
During the execution of a search warrant, the task force seized two cell phones,
one of which defendant identified as hers. The text messages on defendant's phone
were transcribed, and the Commonwealth offered expert testimony and a transcript of
what it described as thirteen drug-related text messages. No evidence was presented
as to who was the author of the messages.
CASTILLE, C. J. joined by BAER AND TODD, JJ. IN SUPPORT OF AFFIRMANCE:
The prosecutor conceded that he sought to admit the message contents as
substantive evidence probative of appellee's alleged intent to engage in drug sales
activity. And that is certainly how the jury would construe the messages. It requires a
suspension of disbelief to conclude that the messages had any relevance beyond their
substantive and incriminating import, especially because they served as a platform for
the crucial expert testimony of Detective Lively. Furthermore, as the panel below
recognized, the Commonwealth's evidence of appellee's intent to deliver, without the
truth revealed in the messages (via the expert testimony of the detective), was
51
negligible. Simply put, the messages were out-of-court statements that were relevant,
and indeed proffered, for a purpose that depended upon the truth of their contents, as
probative of appellee's alleged intent to deliver. Accordingly, appellee's hearsay
objection had merit and, in light of the paucity of other evidence that she possessed
illegal drugs with the intent to deliver, the trial court's abuse of discretion in admitting the
message contents was not harmless error.
SAYLOR, J. IN SUPPORT OF REVERSAL:
Justice Eakin's Opinion in Support of Reversal concludes that the "messages
were offered to demonstrate activity involving the distribution or intent to distribute drugs
and the relationship between the parties sending and receiving the messages [and,
thus] were not hearsay statements." Opinion in Support of Reversal, slip op. at 3 (Eakin,
J.) (citations omitted). As it pertains to the relationship aspect, I agree that the message
sent from the phone to a number listed as "Matt" (identified as one of appellee's alleged
co-accomplices) was properly admitted as non-hearsay, since the relationship of the
parties is demonstrated by the name of the contact (i.e., "Matt") and not any assertion in
the accompanying drug-related message, "can I get that other o[unce] from u."
Relative to the Commonwealth's proffer of the messages as evincing drug
distribution, I would conclude that one message sent from the phone, "I got a nice gram
of that gd julie to get rid of dude didn't have enuff cash so I had to throw in but I cant
keep it 8og," asserts the very matter for which it was offered. The testifying detective
explained that "julie" is a reference to cocaine, and that the sender had used his own
money to buy some cocaine, but needed to sell it. Stated plainly, the assertion of this
message is that the sender possesses drugs with the intent to sell them. Thus, the
assertion is the same as what the Commonwealth attempted to prove true, namely,
possession with the intent to distribute an illegal substance. In my view, this
corresponds to the commonly understood definition of hearsay as an "out-of-court
statement offered to prove the truth of the matter asserted." Pa.R.E. 801, cmt.
On the whole, it may be worth considering refinements to our evidentiary rules
based on accumulating wisdom and reflection. For the present, however, I do not
believe the hearsay rule in Pennsylvania operates to preclude the admission into
evidence of implied assertions such as those arising from at least the majority of the text
messages in issue here. Thus, I am of the view that, although one message was
improperly admitted, the other drug-related messages and the other circumstantial
evidence of drug distribution obviate the need for a new trial under the harmless error
standard.
EAKIN, J. joined by STEVENS, J. IN SUPPORT OF REVERSAL:
The text messages were not offered to prove the truth of the matter asserted —
i.e., that the "tree look[ed] good[.]" Rather, the messages were offered to demonstrate
activity involving the distribution or intent to distribute drugs and the relationship
between the parties sending and receiving the messages. See Commonwealth v.
Murphy, 418 Pa. Super. 140, ___ n.11, 613 A.2d 1215, 1225 n.11 (8/6/92) (business
papers, receipt books, and other memoranda were not hearsay because they were
offered only "to show that the parties mentioned therein were associated with one
another" (citation omitted)); Commonwealth v. Glover, 399 Pa. Super. 610, ___, 582
A.2d 1111, 1113 (11/29/90) (book noting dates and sums of money was not hearsay
because it was offered "only [to show] that these types of records were kept and were in
52
the possession of [the defendant]"). The trial court properly admitted the text messages
because they were not hearsay statements.
Koch, ___ Pa. ___, 106 A.3d 705 (12/30/14) (equally divided court)
Link to: Castille, C.J. in support of affirmance
Link to: Saylor, J. in support of reversal
Link to: Eakin, J. in support of reversal
HEARSAY – PRIOR TESTIMONY
The record and applicable jurisprudence supports the trial court's admission of
Henderson's preliminary hearing testimony as substantive evidence, which includes
Henderson's identification of defendant in her law enforcement statement. At the
preliminary hearing, the Commonwealth asserted that defendant's counsel had been
provided a copy of Henderson's statement, as well as her FBI extract for purposes of
preservation. Defendant's counsel at the preliminary hearing did not deny the
Commonwealth's assertion that those materials had been provided to him. We further
note that defendant's preliminary hearing counsel did not assert to the trial court that
there was any outstanding discovery which would prevent him from conducting a full
and fair cross-examination of Henderson. During direct examination, Henderson
explained that she had known defendant, a.k.a Flip, for approximately two to three
years. Henderson testified that she and defendant lived on the same block. Henderson
described defendant point and shoot at decedent. During Henderson's testimony, the
Commonwealth provided Henderson with a copy of Henderson's statement to law
enforcement “the night that this happened.” The Commonwealth reiterated that
defendant's preliminary hearing counsel had a copy of Henderson's statement to law
enforcement, as well as any relevant FBI extracts. Henderson testified she had initialed
and signed her statement to law enforcement, had signed a page with defendant's
picture and written the name "Flip" on it, and had signed a separate document indicating
she had “adopted” her statement to law enforcement. Henderson admitted that the
statement to law enforcement contained her “words when [she] talked to Homicide,” and
that she told them “what [she] saw” and “who [she] saw do it.” Henderson denied that
“anyone force[d] her to say anything[.]”
Defendant's preliminary hearing counsel cross-examined Henderson about 1) her
being a crack addict; 2) her efforts to reach defendant to buy drugs from him; 3) her
drug sale with decedent after she could not reach defendant; 4) her topics of
conversation with decedent during the drug transaction; 5) her drug and alcohol use the
evening of the shooting; 6) her vision and her use of reading glasses; 7) what
Henderson heard prior to the shooting; 8) defendant's position in the alley before the
shooting; 9) the lighting in the alley and Henderson's lack of flashlight; 10) what
defendant was wearing; 11) the length of time defendant stood in the alley prior to the
shooting; 12) Henderson's position in the alley prior to the shooting along with the
decedent's position vis á vis Henderson; 13) decedent's height; 14) what Henderson
observed after the shooting; 15) her actions following the shooting; 16) her failure to tell
law enforcement at the crime scene that defendant had perpetrated the shooting; 17)
53
and her fear of defendant and "everybody" following the shooting. After the
Commonwealth re-examined Henderson, defendant's preliminary hearing counsel
asserted to the trial court that "[f]or the purpose of this hearing, I don't have any other
questions."
Henderson is deceased and her unavailability is undisputed.
Henderson’s criminal record and statement to law enforcement had been
provided to defendant's preliminary hearing counsel, and defendant's preliminary
hearing counsel had a full and fair opportunity to cross-examine Henderson.
Buford, 101 A.3d 1182 (Pa. Super. 10/8/14)
appeal denied, ___ Pa. ___, 114 A.3d 415 (5/1/15)
HINDERING APPREHENSION
On September 15, 2011, at approximately 12:00 noon, twenty FBI agents and
United States Marshals went to an apartment located in a building at 633 West
Rittenhouse Street, Philadelphia, to execute an arrest warrant for Rodney Thompson.
Defendant shared the apartment with her mother. The law enforcement officers knocked,
announced that they were police officers, and stated that they had a warrant. Initially, there
was no response. After knocking a second time, defendant inquired who they were. Upon
being informed again that they were police officers with a warrant, defendant told them to
wait while she dressed. After five minutes, the officers heard someone running within the
apartment, and they attempted to force open the door, but stopped when defendant did so.
When questioned, defendant denied that there was anyone else in the apartment; after
being shown a photograph of Thompson, she denied knowing him.
The law enforcement officers noticed that a window was open and that the subject
of the warrant was running on the second floor roof of the apartment. Thompson was
apprehended behind the apartment building. Defendant was taken into custody and
charged with hindering apprehension.
The offense described in 18 Pa.C.S. § 5105, hindering apprehension or
prosecution provides:
(a) Offense defined. —A person commits an offense if, with intent to hinder
the apprehension, prosecution, conviction or punishment of another for
crime or violation of the terms of probation, parole, intermediate punishment
or Accelerated Rehabilitative Disposition, he:
(1) harbors or conceals the other;
...
(b) Grading.--The offense is a felony of the third degree if the conduct which
the actor knows has been charged or is liable to be charged against the
person aided would constitute a felony of the first or second degree.
Otherwise it is a misdemeanor of the second degree.
Where a person is charged with the felony offense of hindering apprehension, the
Commonwealth must establish that the actor knew that the conduct charged against the
aided person or which was liable to be charged against the aided person, would constitute
a felony of the first or second degree.
54
The Commonwealth offered no evidence as to why Thompson was wanted or
whether it was in connection with a crime, or violation of the terms of probation, parole,
intermediate punishment or Accelerated Rehabilitative Disposition. It did not place the
warrant into evidence and no witness testified regarding Thompson's purported crime. In
essence, although the Commonwealth offered evidence from which one might infer that
defendant intended to hinder the apprehension of Thompson, it did not offer proof that
Thompson was being sought for commission of a "crime or violation of the terms of
probation, parole, intermediate punishment or Accelerated Rehabilitative Disposition[.]" 18
Pa.C.S. § 5105(a)(1). The fact that the Commonwealth offered evidence that police
officers apprised defendant that they had a federal warrant, even an arrest warrant, was
not enough to satisfy this element.
Johnson, 100 A.3d 207 (Pa. Super. 8/20/14)
appeal denied, ___ Pa. ___, 112 A.3d 650 (3/3/15)
HOMICIDE – THIRD DEGREE MURDER
At the time of this incident, defendant was driving at a high rate of speed (55-61
miles per hour in a 30-40 miles per hour zone), while under the influence of marijuana,
in an attempt to flee from Officer Fiocca's pursuit. Defendant fled Officer Fiocca's initial
traffic stop at a high rate of speed and proceeded through a steady red light, fatally
striking two young pedestrians. Upon being struck, M.M. and M.T. were propelled from
50 to 100 feet. Instead of stopping at the scene of the accident, defendant fled,
abandoned the vehicle involved in the accident, and hid from police. There were no
adverse weather conditions during this time that impeded defendant's sight or precluded
him from stopping after the accident. These actions demonstrate a complete disregard
of the unjustified and extremely high risk that his actions would cause death or serious
bodily injury. Accordingly, we conclude the Commonwealth presented sufficient
evidence to prove that defendant acted with the requisite malice to support his thirddegree murder convictions.
Thompson, 106 A.3d 742 (Pa. Super. 12/10/14)
Link to: Bowes, J. concurring
IDENTIFICATION
Tejada next asserts that the trial court erred by permitting the witness to identify
him as the perpetrator of the robbery using his arrest photograph.
Tejada changed his appearance prior to trial. It has long been the law that where
there has been a change in the appearance of a defendant, witnesses may identify him
from photographs.
Tejada, 107 A.3d 788 (Pa. Super. 1/6/15)
appeal denied, ___ Pa. ___, 119 A.3d 351 (8/3/15)
55
INEFFECTIVENESS – FAILURE TO CALL WITNESS
There are two requirements for relief on an ineffectiveness claim for a failure to
present witness testimony. The first requirement is procedural. The PCRA requires that,
to be entitled to an evidentiary hearing, a petitioner must include in his PCRA petition "a
signed certification as to each intended witness stating the witness's name, address,
date of birth and substance of testimony." 42 Pa.C.S. § 9545(d)(1); Pa.R.Crim.P.
902(A)(15). The second requirement is substantive. Specifically, when raising a claim
for the failure to call a potential witness, to obtain relief, a petitioner must establish that:
(1) the witness existed; (2) the witness was available; (3) counsel was informed or
should have known of the existence of the witness; (4) the witness was prepared to
cooperate and would have testified on defendant's behalf; and (5) the absence of such
testimony prejudiced him and denied him a fair trial.
Reid, ___ Pa. ___, 99 A.3d 427 (8/20/14)
Link to: Saylor, J. dissenting
Pa.R.Crim.P. 902(A)(15) states that a petition seeking an evidentiary hearing
shall include "a signed certification as to each intended witness, stating the witness's
name, address, and date of birth, and the substance of the witness's testimony. Any
documents material to the witness's testimony shall also be included in the petition[.]"
While the rule also sets forth that a "defendant shall attach to the petition any
affidavits, records, documents, or other evidence which show the facts stated in support
of the grounds for relief," this is not a prerequisite for an evidentiary hearing.
Pa.R.Crim.P. 902(D). Concomitantly, the statute reads,
Where a petitioner requests an evidentiary hearing, the petition
shall include a signed certification as to each intended witness
stating the witness's name, address, date of birth and substance of
testimony and shall include any documents material to that
witness's testimony. Failure to substantially comply with the
requirements of this paragraph shall render the proposed witness's
testimony inadmissible.
42 Pa.C.S. § 9545(d)(1). A sworn affidavit is not necessary to secure a hearing.
The certification requirement can be met by an attorney or pro se petitioner
certifying what the witness will testify regarding. 42 Pa.C.S. § 9545(d)(1); Pa.R.Crim.P.
902(A)(15). We expressly overrule McLaurin, 45 A.3d 1311 (Pa. Super. 5/25/12), insofar
as it requires PCRA petitioners to file affidavits to be entitled to an evidentiary hearing.
Moreover, we note that it is improper to affirm a PCRA court's decision on the sole basis
of inadequate witness certifications where the PCRA court did not provide notice of the
alleged defect. Pa.R.Crim.P. 905(B).
Pander, 100 A.3d 626 (Pa. Super. 9/17/14) (en banc)
appeal denied, ___ Pa. ___, 109 A.3d 679 (2/4/15)
56
Here, trial counsel acted upon the qualified medical opinion of Dr. Tepper, after
having given him adequate information to form a conclusion. Trial counsel cannot be
found to lack a reasonable strategy merely because he did not consult an additional
mental health expert in the hopes of obtaining a more favorable conclusion for his client.
This is especially true where trial counsel knew that the Commonwealth's expert was
ready to testify that defendant suffered from no mental impairment at the time of the
offense.
Rivera , ___ Pa. ___, 108 A.3d 779 (12/29/14)
Link to: Saylor, J. dissenting
Defendant contends that counsel erroneously informed him that if he took the
stand, the Commonwealth would impeach him with his prior criminal record, yet
defendant had no prior crimen falsi convictions that could be revealed by the
Commonwealth. Instead, his prior convictions were for aggravated assault and
possession with intent to deliver. Defendant maintains that counsel’s improper advice
interfered with his right to testify, and was so unreasonable as to vitiate his knowing and
intelligent decision not to testify on his own behalf.
The PCRA court concluded that defendant failed to prove he was prejudiced by
counsel’s conduct, explaining that what defendant would have testified to completely
ignored the overwhelming evidence against him and would not have changed the
outcome of the case. In other words, the PCRA court rejected defendant’s
ineffectiveness claim because he failed to prove the outcome of the trial would have
been different had he taken the stand.
We conclude that the appropriate standard for assessing whether a defendant
was prejudiced by trial counsel’s ineffectiveness regarding the waiver of his right to
testify is whether the result of the waiver of counsel proceeding would have been
different absent counsel’s ineffectiveness, not whether the outcome of the trial itself
would have been more favorable had the defendant taken the stand. Accordingly, the
PCRA court’s determination that defendant was not prejudiced by counsel’s conduct is
legally incorrect, as the court applied the wrong standard for assessing prejudice in this
context.
Walker, 110 A.3d 1000 (Pa. Super. 1/28/15)
Link to: Strassburger, J. dissenting
appeal denied, ___ Pa. ___, ___ A.3d ___ (9/23/15)
Defendant did not present any witnesses at the PCRA hearing other than himself
and trial counsel. Thus, no witness testified to the other aspects of defendant's
character that he claims trial counsel should have elicited at trial. Among other things, a
PCRA petitioner must show the proposed testimony would have been beneficial, i.e.,
the absence of other good-character evidence "was so prejudicial as to have denied the
[petitioner] a fair trial." See Johnson, 600 Pa. 329, ___, 966 A.2d 523, 536 (3/18/09)
57
(quotation omitted). Without evidence of what defendant's three witnesses would have
said if asked about his reputation for peaceableness, quietness, good moral character,
chastity, and the disposition to observe good order, he cannot prove prejudice.
Reyes-Rodriguez, 111 A.3d 775 (Pa. Super. 3/11/15) (en banc)
appeal denied, ___ Pa. ___, ___ A.3d ___ (9/1/15)
INEFFECTIVENESS – STANDARD OF REVIEW
The Superior Court panel majority failed to assess counsel's performance based
upon the governing law in existence when counsel was alleged to have acted
ineffectively — i.e., in 1998. The panel conducted a survey of how other courts — in
particular, federal courts of appeals — had approached the issue under what the panel
correctly recognized was the leading United States Supreme Court case. Of course,
such surveys of the legal landscape can be an appropriate way to assess what
arguments were reasonably available to diligent defense counsel. But, the panel went
astray to the extent it measured counsel's conduct according to a standard from a
federal appellate case that did not exist at the time counsel acted.
Hill, ___ Pa. ___, 104 A.3d 1220 (11/21/14)
Link to: Saylor, J. concurring
Link to: Eakin, J. concurring
Defendant argues the instruction given by the court failed to apprise the jury that
character evidence alone may be sufficient to raise a reasonable doubt and justify an
acquittal. Neely, 522 Pa. 236, 561 A.2d 1 (6/28/89), requires such a charge if a
defendant introduces evidence of his or her good character. In this case, three
witnesses testified to defendant's reputation as a good father.
To prevail on his ineffective assistance of counsel claim defendant bore the
burden of showing that trial counsel had no reasonable basis for his inaction. Defendant
did not question trial counsel regarding his failure to request a charge under Neely. In
fact, there is no evidence of record as to trial counsel's strategy in this regard.
Defendant's failure to support his claim with any evidence requires rejection of the
claim.
Moreover, "a lawyer should not be held ineffective without first having an
opportunity to address the accusation in some fashion." Colavita, 606 Pa. 1, 993 A.2d
874 (4/29/10). Here, there was no evidence to support a conclusion that trial counsel
had no reasonable basis for his action. It may seem that trial counsel, having introduced
character evidence, had no reasonable basis for not requesting a jury instruction under
Neely. However, this Court does not sit as a fact-finder. With no supporting evidence in
the record, we cannot resolve a factual dispute in favor of defendant who bears the
burden of proof on this issue.
Reyes-Rodriguez, 111 A.3d 775 (Pa. Super. 3/11/15) (en banc)
appeal denied, ___ Pa. ___, ___ A.3d ___ (9/1/15)
58
Defendant claims that counsel was ineffective for failing to cross examine
Washington with respect to her alleged bias against the defendant. Washington
testified at the PCRA hearing and denied any bias against or hostility toward defendant.
The PCRA court found Washington’s PCRA testimony credible.
While defendant claims that the credibility of Washington’s testimony is for the
jury, and not the PCRA court, he misunderstands the import of the court’s role in making
credibility determinations. Beyond resolving the veracity of the underlying factual
foundation for the claim, Washington’s credibility goes to the question of prejudice. The
PCRA court’s finding that Washington credibly testified strongly supports its conclusion
that defendant failed to meet his burden of establishing that, but for the ineffectiveness
of trial counsel, the outcome of the proceedings would have been different.
Simpson, ___ Pa. ___, 112 A.3d 1194 (3/25/15)
Link to: Saylor, C. J. dissenting
[EDITOR’S NOTE: The credibility findings to be made by the PCRA court should be tied
to the general standard for prejudice arising from claims of ineffectiveness. See
Johnson, 600 Pa. 329, 966 A.2d 523 (3/18/09)
Examples of PCRA court rulings:
JUDGE: The witness who had not been called to testify at the prior proceeding
testified before me at the PCRA hearing. That witness was impeached by crossexamination. Additionally, other testimony was presented at the PCRA hearing
attacking the credibility of that witness.
If all of this testimony had been presented at trial, there is no reasonable
likelihood that it would have been found credible. There is no reasonable likelihood that
the result of the proceeding would have been different. PCRA relief is denied.
OR
If all of this testimony had been presented at trial, there is a reasonable likelihood
that it would have been found credible. There is a reasonable likelihood that the result
of the proceeding would have been different. PCRA relief is granted.
INFORAMTION
Defendant was arrested for driving under the influence of a controlled substance
on February 18, 2012. On July 3rd, 2012, the DUI case at docket number CP-67-CR0002278-2012 was listed for a pretrial conference. This case was then listed on the trial
list on the following dates, September 2, 2012; January 7, 2013: and January 13, 2013.
Subsequently it was scheduled for a pre-trial hearing on January 29, 2013 and later
appeared on the trial list, yet again, on March 4, 2013, April 1, 2013 and April 11, 2013.
In April of 2013, the Commonwealth discovered the report from the State Police
Laboratory which identified the pills as a Schedule IV drug, and on April 15, 2013 the
Commonwealth filed a motion for leave to amend the information, in order to add a
59
charge of Possession with intent to deliver (PWID). The trial court denied the
Commonwealth's request to amend the charges [on April 19, 2013,] due to prejudice.
Subsequently, on May 14, 2013, the Commonwealth requested to nolle pros the
charges under docket number CP-67-CR-0002278-2012, without prejudice, in order to
re-charge the previous charges and include an additional charge of PWID. The trial
court denied this request on May 24, 2013, because that court believed that the
Commonwealth was trying to circumvent the previous order denying the request to
amend the information.
In response, the Commonwealth filed a new complaint on June 27, 2013, and
information on September 9, 2013, docketed at CP-67-CR-0005613-2013, containing
the PWID charge, and then filed a motion to consolidate with docket number CP-67-CR0002278-2012 on October 17, 2013. The trial court denied the motion to consolidate on
October 24, 2013, and the trial court granted defendant's October 2, 2013 motion to
dismiss case number CP-67-CR-0005613-2013.
“Upon motion and a showing that an information has not been filed within a
reasonable time, the court may order dismissal of the prosecution, or in lieu thereof,
make such other order as shall be appropriate in the interests of justice.” Pa.R.Crim.P.
587(a)(1).
In the present case, the trial court determined that the Commonwealth failed to
show due diligence in carrying out its responsibility to charge defendant with PWID in a
reasonable time, and that failure caused defendant to waste more than a year of trial
preparation because he believed he would be defending a DUI charge. On the eleventh
hour, the Commonwealth charged defendant with a different, more serious crime more
than a year after the initial complaint was filed. The trial court determined such action
was unduly prejudicial to defendant as evidenced by the Commonwealth’s indication
that it would argue that defendant was under the influence of diazepam at the time of
the incident.
The Commonwealth represented that it was not “aware” of the April 2012
laboratory report until April 2013. The trial court, addressing the assistant district
attorney, asked, “You are indicating when Trooper Miles submitted the evidence to the
State Police sometime in 2012, that they never said to him, it’s done, this is what it is?”
The Commonwealth responded, “No,” and the trial court retorted, “And he never
bothered to check?” Again, the Commonwealth stated, “[T]hat’s correct.”
In reliance upon the trial court’s explanation for its reasons in dismissing the
PWID charge due to the Commonwealth’s unreasonable delay in filing the charge, and
the trial court’s identification and substantiated resultant prejudice to defendant, we
conclude that the trial court did not abuse its discretion in dismissing the PWID charges
against defendant.
Totaro, 106 A.3d 120 (Pa. Super. 12/3/14)
The juveniles were charged with conspiracy to commit burglary and burglary.
Following testimony and argument of counsel, the court concluded that the juveniles
engaged in a conspiracy. However, the court concluded that the facts supported
criminal trespass, rather than burglary. Consequently, the court made findings that the
60
juveniles had committed acts constituting conspiracy to commit criminal trespass and
criminal trespass.
Criminal trespass is not a lesser included offense of burglary, as trespass
contains the separate element of knowledge. See, Commonwealth v. Carter, 482 Pa.
274, 393 A.2d 660 (11/6/78).
Our Supreme Court considered this question specifically in Carter, where
defendants were charged with burglary but after a bench trial, were convicted of criminal
trespass, although they were never actually charged with that crime. The Supreme
Court reversed that conviction, holding, "[s]cienter is not an element of [burglary] and
thus, one defending against a burglary charge would have no reason to establish that
(albeit falsely) he believed his presence in a building or occupied structure was
privileged or licensed. Yet evidence of such a belief could provide a basis for an
acquittal of a charge of criminal trespass." Id. at 661.
We recognize that the Supreme Court's decision in Carter resulted from a
concern for the due process rights of a defendant. In fact, Carter held that although
there may have been evidence presented in a burglary case to support a trespass
conviction, due process must be observed, and a defendant must be put on notice of
the trespass charge.
D.G. was never given notice that he might be adjudicated for trespass until after
his case was presented. Despite this lack of notice, we do not perceive the same due
process violations that influenced the Supreme Court's decision in Carter. Although the
lower court may have erred in amending the information sua sponte, it remedied that
error by granting D.G. the opportunity to demonstrate prejudice with his motion to
reconsider and supporting brief. The court liberally construed D.G.'s oral objection as a
motion to reconsider, and permitted him to brief the issue. Despite that opportunity, D.G.
could not demonstrate any significant prejudice or precluded defense or evidence, other
than the fact that he "could not have introduced any additional evidence, or crossexamined any of the Commonwealth's witness on the issue, nor could he have asked
for a continuance at that time." The facts relied upon by the lower court were the same
presented with regard to the burglary charge. As such, D.G. was fully apprised of the
factual scenario which supports the charges against him.
D. G., 114 A.3d 1091 (Pa. Super. 4/21/15)
INVOLUNTARY DEVIATE SEXUAL INTERCOURSE
D.D., the victim in this case was a nine-year-old boy who had mental retardation
and he also has a degree of autism. He’s also bipolar and had oppositional defiance.
D.D. was riding the bus to school when twelve-year-old defendant pulled his own pants
down and told D.D. to “suck it.” Defendant told police that he had wanted oral sex and
asked D.D. to perform it on him.
In Bricker, 41 A.3d 872 (Pa. Super. 3/27/12), appeal denied, ___ Pa. ___, __
A.3d ___ (8/28/12), we noted that our holding in In re B. A. M., 806 A.2d 893 (Pa.
Super. 9/3/02), was intended to address situations limited strictly to sexual acts initiated
by and involving only peers—not to sexual acts done at the coercion of an adult.
61
Indeed, although our decision in In re B. A. M. held that an 11 year-old may not be
charged criminally for having mutually agreed upon sexual relations with another 11
year-old child, nothing in our opinion was intended to diminish the well-accepted
principle that an 11 year-old lacks the legal capacity to consent to sexual activity. To the
contrary, our holding in In re B. A. M. emphasizes that children under the age of 13 are
deemed by the legislature to be incapable of consenting to sexual activity.
We acknowledge that our use of the term "consensual" in In re B. A. M. can be
confusing and may appear to be in conflict. Specifically, in In re B. A. M. we held that
there can be no legitimate interest in prosecuting consensual sexual activity between
two children under 13, but then went on to state that children under the age of 13 are
incapable of consent. Defendant seeks to exploit that conflict, while turning the intent of
our holding in In re B. A. M. on its head. According to defendant's interpretation, any
sexual activity between children under the age of 13 is not a crime. Applying
defendant's interpretation of In re B. A. M. to other scenarios, he would have that case
determine that, regardless of the level of forcible compulsion used, a child under the
age of 13 is incapable of rape. Such a dangerous result was certainly not our intent and
is not supported by In re B. A. M.
Pursuant to Section 3123(a)(5), a person commits a felony of the first degree
when the person engages in deviate sexual intercourse with a complainant who “suffers
from a mental disability which renders him or her incapable of consent[.]” 18 Pa.C.S. §
3123(a)(5). This is precisely the conduct distinguished by the Bricker court and
specifically found to be beyond the scope of our holding in In re B. A. M. We continue to
decline the invitation to extend In re B. A. M. Accordingly, we conclude that defendant’s
assertion that the Commonwealth failed to show the acts were not consensual, and that
defendant was incapable of criminal liability based on his age, must fail.
Interest of C. R., 113 A.3d 328 (Pa. Super. 4/6/15)
JUDICIAL DECORUM
Collins also complains that Judge Sarmina improperly admonished Attorney
Stretton. After repeatedly objecting during the Commonwealth's closing arguments,
Judge Sarmina told Attorney Stretton "[i]f you are going to make another objection, Mr.
Stretton, write it down and I will address it at the end." We do not find this to be an
admonishment. Rather, Judge Sarmina was reasonably exercising judicial control of the
proceedings to ensure an orderly trial after Attorney Stretton's repeated objections
interrupted the Commonwealth's closing argument. See Commonwealth v. Jones, 546
Pa. 161, 181-83, 683 A.2d 1181, 1191-92 (1996) (trial court comments to defense
counsel were directed to maintaining order and decorum in courtroom, and did not
entitle Jones to relief). Attorney Stretton then had an opportunity after closing remarks
to make his objections before the jury. Accordingly, we find they did not prejudice the
jury against Attorney Stretton or Collins.
Collins, 70 A.3d 1245 (Pa. Super. 6/28/13)
appeal denied, 622 Pa. 755, 80 A.3d 774 (11/27/13)
62
JURY – DELIBERATIONS
The underlying reason for excluding certain items from the jury’s deliberations is
to prevent placing undue emphasis or credibility on the material, and de-emphasizing or
discrediting other items not in the room with the jury. If there is a likelihood the
importance of the evidence will be skewed, prejudice may be found; if not, there is no
prejudice per se and the error is harmless.
Strong, 575 Pa. 433, 836 A.2d 884 (11/25/03)
Link to: Nigro, J. dissenting
Although not directly applicable, we nonetheless find the Strong standard helpful,
and we discern no meaningful basis to distinguish between publication to a jury of an
exhibit and providing the jury with that exhibit during deliberations. Thus, we apply this
standard to defendant’s claim.
Ali, 112 A.3d 1210 (Pa. Super. 3/5/15)
Defendants are prohibited from using post-verdict statements of jurors as means
to contest their conviction in a post-conviction proceeding. During an inquiry into the
validity of a verdict, a juror may not testify about any statement made or incident that
occurred during the jury's deliberations; the effect of anything on that juror's or another
juror's vote; or any juror's mental processes concerning the verdict. Pa.R.E. 606(b)(1).
The court may not receive a juror's affidavit or evidence of a juror's statement on these
matters either. The purpose of this so-called "no impeachment rule" is to prevent
constant relitigation of matters decided by the jury, such as the kind defendant seeks
[whether or not a juror misunderstood the instructions].
Eichinger, ___ Pa. ___, 108 A.3d 821 (12/31/14) (capital case)
Link to: Castille, C.J. concurring
Link to: Saylor, J. concurring
Link to: Stevens, J. concurring
JURY – INCONSISTENT VERDICTS
Although defendant's murder and attempted murder acquittals may be logically
inconsistent with defendant's PIC conviction, in light of our enduring acceptance of
inconsistent verdicts in Pennsylvania, we conclude that the acquittals are not grounds
for reversal of defendant's PIC conviction.
In Magliocco, 584 Pa. 244, 883 A.2d 479 (9/28/05), we addressed a challenge to
the evidentiary sufficiency of a defendant's ethnic intimidation conviction. We agreed the
conviction could not stand because the defendant was acquitted of terroristic threats,
63
which was a predicate offense to ethnic intimidation at the time of the defendant's
conviction. Our holding in Magliocco was grounded in the delineation of the elements of
ethnic intimidation set forth in the text of that statute, and, thus, was not generally
applicable to convictions under other statutes.
In Watson, 494 Pa. 467, 431 A.2d 949 (7/8/81), Watson was convicted of
voluntary manslaughter and possession of a concealed weapon despite raising a selfdefense claim. On appeal before our Court, Watson challenged the sufficiency of the
evidence to sustain her convictions, arguing that the Commonwealth failed to meet its
burden of disproving her self-defense claim beyond a reasonable doubt and, thus, that
the evidence was insufficient to establish the necessary criminal intent to sustain her
convictions. We agreed, concluding the Commonwealth had failed to disprove the selfdefense claim, and, thus, essentially finding that the defendant killed her common law
husband in self-defense. Applying that crucial finding to Watson’s possession of a
concealed weapon conviction, we concluded that criminal intent could not be inferred
from the circumstances surrounding Watson’s possession of the gun which killed her
husband because Watson, having acted in self-defense, never used that gun to commit
a crime. Thus, Watson did not involve a jury acquittal, an inference from a jury acquittal,
or an inconsistent verdict challenge. Rather, our holding with regard to the PIC
conviction derived from this court's determination that Watson acted in self-defense by
virtue of our conclusion that the Commonwealth failed to disprove her self-defense
claim at trial.
In Gonzalez, 515 Pa. 98, 527 A.2d 106 (6/10/87), Mr. Gonzalez was acquitted of
murder and manslaughter, but convicted of possession of an instrument of crime.
However, no appellate court concluded that the evidence of murder was insufficient as a
matter of law. Such a conclusion may not be drawn merely from the jury’s acquittal.
Gonzalez departed from the long line of cases from both this Court and the United
States Supreme Court which unequivocally permit inconsistent jury verdicts and prohibit
drawing inferences from a jury's verdict of acquittal. We now come to the conclusion
that it must be overruled.
Moore, ___ Pa. ___, 103 A.3d 1240 (10/30/14)
Link to: Saylor, J. concurring
Link to: Baer, J. concurring
IMPLICITLY DISAPPROVING:
Interest of A. C., 763 A.2d 889 (Pa. Super. 11/30/00)
JURY CHARGE - ACCOMPLICE
The trial court conducted a charging conference, at which time it provided the
parties with a draft of its proposed charge to the jury and ruled on various requests for
additional instructions. During this charging conference, the Commonwealth did not
request a charge on "accomplice liability," ask that the term be defined, or otherwise
object to the absence of a charge or definition. During its charge to the jury, the trial
court used the word "accomplice" four times, all while summarizing the charges in the
informations filed against the co-defendants.
64
After the trial court completed its charge, the jury began deliberations and later
that day it posed a question concerning "the definitions as to what [the trial court] read
to us." In the discussion between counsel and the trial court regarding how to respond
to the jury's inquiry, counsel for the Commonwealth for the first time asked the trial court
to offer an expanded jury instruction to include a charge on accomplice liability.
Although the trial court initially indicated that the request for an instruction on
accomplice liability was too late, it agreed to consider it over the holiday weekend. On
the following Tuesday morning, the trial court stated that it had reconsidered and would
read to the jury an instruction on accomplice liability provided in writing by the
Commonwealth, to which counsel for defendant immediately objected.
Pursuant to Pa.R.Crim.P. 647(A), the trial court is required to rule on all proposed
jury instructions prior to charging the jury and closing summations. The purpose of this
rule is to require the judge to inform counsel in a fair way what the charge is going to be,
so that they may intelligently argue the case to jury. At bottom, the rule requires the trial
court to provide the parties with adequate notice of the instruction before closing
argument, and the rule is plainly violated when the trial court presents a new theory of
liability, or otherwise materially modifies the original instructions, after closing
arguments have been completed.
The trial court's decision to issue a supplemental instruction to the jury on
accomplice liability (in this case after closing arguments) violated Rule 647(A). At no
time prior to closing arguments did the trial court advise counsel that it intended to
instruct the jury on the specifics of accomplice liability, and the Commonwealth did not
request a charge on accomplice liability or object to the absence of such a charge. It
was only after closing arguments and after the jury began deliberating that the
Commonwealth first requested that the trial court instruct the jury, through a
supplemental charge, that defendant could be convicted as an accomplice.
In its August 14, 2012 information filed against defendant, the Commonwealth
did not charge her as an accomplice in any of the seven listed counts. Similarly, at trial
the Commonwealth never referred to defendant as an accomplice in either its opening
or closing arguments to the jury, and on appeal it points us to no evidence that it
introduced at trial to establish her status as an accomplice. The trial court's
supplemental charge on accomplice liability advised the jury, for the first time, that
defendant could be convicted on a new theory of criminal liability (accomplice liability).
Because this supplemental charge to the jury occurred after defendant's closing
argument, it violated Rule 647(A).
Although this issue has not been discussed by any Pennsylvania appellate court
in connection with Rule 647(A), federal courts have held that prejudice resulting from
violations of Federal Rule of Criminal Procedure 30 may in some cases be ameliorated
or eliminated by permitting counsel the opportunity for supplemental argument to the
jury. Because neither party raised or briefed the waiver issue, and the novelty under
Pennsylvania law of a violation of Rule 647(A), we will proceed to consider defendant's
claim of actual prejudice on its merits.
On the facts of this case, and considering the nature of the defense presented at
trial, defendant was not prejudiced by this error.
Orie Melvin, 103 A.3d 1 (Pa. Super. 8/21/14)
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JUVENILE
The current Rules of Juvenile Court Procedure are utterly silent as to how a
weight of the evidence claim must be presented to the juvenile court so that it may rule
on the claim in the first instance, which is, as discussed above, a necessary prerequisite
for appellate review. Further, Pa.R.J.C.P. 620(A)(2), which governs the filing of what it
expressly designates as an "optional post-dispositional motion," uses language nearly
identical to that of former Pa.R.Crim.P. 1410(B)(1)(c)[now Rule 720(B)(1)(c)], which
stated, "[i]ssues raised before or during trial shall be deemed preserved for appeal
whether or not the defendant elects to file a post-sentence motion on those issues." See
Pa.R.J.C.P. 620(A)(2) ("Issues raised before or during the adjudicatory hearing shall be
deemed preserved for appeal whether or not the party elects to file a post-dispositional
motion on those issues.").
As a result, J.B. faced procedural rules that made optional the filing of a postdispositional motion, and which did not otherwise specify how a weight of the evidence
claim was to be presented in the first instance to the juvenile court in order to preserve it
for appellate review. Also, J.B. presented his weight of the evidence claim to the lower
court by raising it in his Pa.R.A.P. 1925(b) statement, in which he comprehensively set
forth specific reasons why, in his view, the juvenile court's adjudication was against the
weight of the evidence.
The juvenile court here considered J.B.'s weight of the evidence claim, and then
ruled on it in its Rule 1925(a) opinion. We must, therefore, find that J.B.'s weight of the
evidence claim is not waived and remand this case to allow J.B. to file a postdispositional motion nunc pro tunc seeking a new adjudication hearing on the grounds
that his adjudication of delinquency was against the weight of the evidence.
A finding of waiver in juvenile proceedings has a harsher consequence for a
juvenile than a similarly-situated criminal defendant, inasmuch as if a claim is found to
be waived on appeal, the juvenile cannot raise such a challenge under the PCRA
because that act does not, by its terms, apply to juvenile proceedings. Thus, the
absence of that avenue of collateral relief for J.B. provides a stronger reason to decline
to impose waiver in this matter.
J. B., ___ Pa. ___, 106 A.3d 76 (12/15/14)
Link to: Castille, C.J. concurring
Link to: Saylor, J. concurring and dissenting
Link to: Stevens, J. dissenting
Pursuant to Pennsylvania Rule of Juvenile Court Procedure 632, a juvenile court
may order the early termination of court supervision when “the court is satisfied that
there are compelling reasons” to do so.
The juvenile, D. C. D., had repeatedly acted out inappropriately in a sexual
manner during his previous placements. The juvenile court found what it believed to be
a suitable placement facility, Southwood, which specialized in sexual offenders with
66
lower intellectual function. However, that facility would not accept juveniles with an
active adjudication of delinquency for a sexual offense. The juvenile court heard
testimony regarding the absence of appropriate treatment at the current placement
facility and the lesser suitability of other proposed facilities.
We cannot conclude the juvenile court abused its discretion in concluding that
Southwood was the most appropriate treatment facility for D. C. D.’s specialized needs,
and, therefore, compelling reasons existed to warrant the early termination of D. C. D.’s
delinquency supervision.
Interest of D. C. D., ___ A.3d ___ (Pa. Super. 9/11/15)
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.
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
67
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, ___ Pa. ___, 99 A.3d 416 (8/18/14)
OBSTRUCTING ADMINISTRATION OF JUSTICE
On September 15, 2011, at approximately 12:00 noon, twenty FBI agents and
United States Marshals went to an apartment located in a building at 633 West
Rittenhouse Street, Philadelphia, to execute an arrest warrant for Rodney Thompson.
Defendant shared the apartment with her mother. The law enforcement officers knocked,
announced that they were police officers, and stated that they had a warrant. Initially, there
was no response. After knocking a second time, defendant inquired who they were. Upon
being informed again that they were police officers with a warrant, defendant told them to
wait while she dressed. After five minutes, the officers heard someone running within the
apartment, and they attempted to force open the door, but stopped when defendant did so.
When questioned, defendant denied that there was anyone else in the apartment; after
being shown a photograph of Thompson, she denied knowing him.
The law enforcement officers noticed that a window was open and that the subject
of the warrant was running on the second floor roof of the apartment. Thompson was
apprehended behind the apartment building. Defendant was taken into custody and
charged with hindering apprehension.
Defendant intentionally delayed in opening the locked door to an announced
police presence in order to permit Thompson to escape apprehension. This constituted
physical interference or an obstacle to execution of the warrant. The evidence was
sufficient to sustain the conviction.
Johnson, 100 A.3d 207 (Pa. Super. 8/20/14)
appeal denied, ___ Pa. ___, 112 A.3d 650 (3/3/15)
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PCRA
This Court has held that, the failure to raise on direct appeal a claim that the
defendant was incompetent at the time of trial does not constitute a waiver of that claim
for purposes of the PCRA. Commonwealth v. Brown, 582 Pa. 461, 872 A.2d 1139
(4/29/05) (plurality). Brown was a plurality decision, but the proposition quoted above
garnered a majority view. See id. at 1170 (Nigro, J., concurring and dissenting)
(agreeing that claims regarding competency to be tried are not subject to waiver
provision of PCRA). See also Commonwealth v. Santiago, 579 Pa. 46, 855 A.2d 682
(8/17/04) (plurality). Brown addressed only the non-waiver of claims involving
competency to stand trial, see Commonwealth v. Fletcher, 604 Pa. 493, ___ n.24, 986
A.2d 759, 778, n.24 (12/28/09), but two later decisions, in separate capital PCRA
appeals involving defendant Mark Spotz, applied the Brown decision to embrace
unpreserved challenges to claims of competency to waive the right to counsel. See
Commonwealth v. Spotz, 616 Pa. 164, ___ n.6, 47 A.3d 63. 79, n.6 (6/26/12);
Commonwealth v. Spotz, 610 Pa. 17, ___ n.10, 18 A.3d 244, 262 n.10 (4/29/11).
Accordingly, under that precedent, which is not challenged by the Commonwealth here,
defendant may raise his competency to stand trial and competency to waive the right to
counsel for the first time on collateral review, notwithstanding the trial level default.
Blakeney, ___ Pa. ___, 108 A.3d 739 (12/29/14)
Link to: Castille, C.J. concurring
Link to: Eakin, J. concurring
Link to: Saylor, J. dissenting
BUT SEE:
Brown has fostered an unintended mischief by spawning a cottage industry of
fraudulent competency claims. Honesty and truth should play a stronger role in capital
PCRA review; and eliminating this avenue of potential fraud would further that goal.
Bomar , ___ Pa. ___, 104 A.3d 1179 (11/21/14) (Castille, C. J. concurring)
cert. denied, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (10/5/15)
On March 22, 2012, the PCRA court granted defendant relief on his claims that
trial counsel was ineffective for failing to file a post-sentence motion and failing to
preserve his sufficiency of the evidence claim. Therefore, the PCRA court reinstated
defendant's right to file a post-sentence motion and his right to file a direct appeal nunc
pro tunc. The PCRA court also denied relief on defendant's claim that trial counsel was
ineffective for failing to call an additional alibi witness and for failing to pursue the
motion to suppress. Instead of filing a post-sentence motion and a direct appeal, PCRA
counsel chose to appeal the PCRA court's denial of defendant's ineffectiveness claim
regarding trial counsel's failure to call an additional alibi witness. We affirmed that order
on March 11, 2013.
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As a threshold jurisdictional matter, however, the timeliness of the PCRA petition
must be addressed. Even where neither party nor the PCRA court have addressed the
matter, it is well-settled that we may raise it sua sponte since a question of timeliness
implicates the jurisdiction of our Court.
The first issue we must confront is when defendant's judgment of sentence
became final. There appear to be two possibilities. Under general PCRA principles,
defendant's judgment of sentence became final on April 23, 2012, the last day
defendant could have filed his direct appeal nunc pro tunc. However, if defendant's
judgment of sentence did not become final until he failed to seek allocatur with respect
to our affirmance of the PCRA court's order denying in part his first PCRA petition, then
his judgment of sentence became final on April 10, 2013.
We hold that defendant's judgment of sentence became final on April 23, 2012.
The plain language of the PCRA provides that a judgment of sentence becomes final at
the conclusion of direct review or when the time for seeking direct review expires. See
42 Pa.C.S. § 9545(b)(3). In fixing the date upon which a judgment of sentence becomes
final, the PCRA does not refer to the conclusion of collateral review or the time for
appealing a collateral review determination. Thus, the plain language of the PCRA
statute shows that a judgment of sentence becomes final immediately upon expiration
of the time for seeking direct review, even if other collateral proceedings are still
ongoing.
Having determined that defendant's judgment of sentence became final on April
23, 2012, we next consider whether the fact that defendant was unable to file a PCRA
petition until April 11, 2013 (30 days after this Court affirmed the order denying relief on
defendant's alibi witness claim) impacts our timeliness analysis. We hold that it does
not. Under Commonwealth v. Lark, 560 Pa. 487, ___, 746 A.2d 585, 588 (2/23/00),
defendant was precluded from filing a PCRA petition prior to April 11, 2013 because his
appeal of the partial denial of his first PCRA petition was still pending. As our Supreme
Court explained:
[W]hen an appellant's PCRA appeal is pending before a court, a
subsequent PCRA petition cannot be filed until the resolution
of review of the pending PCRA petition by the highest state
court in which review is sought, or upon the expiration of the
time for seeking such review. If the subsequent petition is not
filed within one year of the date when the judgment became
final, then the petitioner must plead and prove that one of the
three exceptions to the time bar . . . applies.
Lark, 746 A.2d at 588 (emphasis added; footnote, internal quotation marks, and citation
omitted). Thus, Lark precluded defendant from filing a subsequent PCRA petition until
his appeal of the partial denial of his first PCRA petition became final. Lark articulates
no preclusive effect on defendant's ability to file post-sentence motions or file a direct
appeal nunc pro tunc, as the first PCRA court's March 22, 2012 order allowed. Hence,
the rule in Lark has no impact on our timeliness analysis.
We hold that defendant's second PCRA petition was untimely. Defendant's
judgment of sentence became final on April 23, 2012. Thus, he was required to file his
PCRA petition on or before April 23, 2013. He did not file his PCRA petition until April
30, 2013, one week late. Defendant failed to plead and prove the applicability of any of
70
the PCRA's three statutory exceptions to the timeliness requirement. As such, the
PCRA court lacked jurisdiction to consider the merits of defendant's petition.
Callahan, 101 A.3d 118 (Pa. Super. 9/23/14)
POSSESSION
In narcotics possession cases, the Commonwealth may meet its burden by
showing actual, constructive, or joint constructive possession of the contraband. Actual
possession is proven by showing that the controlled substance was found on the
defendant's person. If the contraband is not discovered on the defendant's person, the
Commonwealth may satisfy its evidentiary burden by proving that the defendant had
constructive possession of the drug.
Constructive possession is the ability to exercise a conscious dominion over the
illegal substance: the power to control the contraband and the intent to exercise that
control. Constructive possession is a legal fiction, a pragmatic construct to deal with the
realities of criminal law enforcement. It is a judicially created doctrine that enables law
enforcement officials to prosecute individuals in situations where the inference of
possession is strong, yet actual possession at the time of arrest cannot be shown.
To find constructive possession, the power and intent to control the contraband
does not need to be exclusive to the defendant. Constructive possession may be found
in one or more actors where the item at issue is in an area of joint control and equal
access. Nevertheless, where more than one person has equal access to where drugs
are stored, presence alone in conjunction with such access will not prove conscious
dominion over the contraband.
For the Commonwealth to prove constructive possession where more than one
person has access to the contraband, the Commonwealth must introduce evidence
demonstrating either the defendant's participation in the drug related activity or evidence
connecting the defendant to the specific room or areas where the drugs were kept.
However, an intent to maintain a conscious dominion may be inferred from the totality of
the circumstances and circumstantial evidence may be used to establish a defendant's
possession of drugs or contraband. Moreover, we agree with the statement from the
United States Court of Appeals for the Tenth Circuit that, although "mere presence" at a
crime scene cannot alone sustain a conviction for possession of contraband:
a jury need not ignore presence, proximity and association when
presented in conjunction with other evidence of guilt. Indeed,
presence at the scene where drugs are being processed and
packaged is a material and probative factor which the jury may
consider. Drug dealers of any size and [illegal drug] manufacturers
probably are reticent about allowing the unknowing to take view of
or assist in the operation.
United States v. Robinson, 978 F.2d 1554, 1157-1158 (10th Cir. 11/2/92) (internal
quotations and citations omitted); see also Rivas v. United States, 783 A.2d 125, 138
(D.C. 8/23/01) (en banc) ("a claim of innocent presence becomes decidedly less
plausible in an environment (vehicular or otherwise) that is rife with evidence of ongoing
71
drug production or distribution, such as a manufacturing or cutting facility, a warehouse,
or a staging or preparation area where a large quantity of drugs or drug paraphernalia is
exposed to view"); United States v. Batista-Polanco, 927 F.2d 14, 18 (1st Cir. 2/28/91)
(casting doubt upon the "hypothesis that participants in a [large-scale heroin packaging]
scheme would permit a noncontributing interloper to remain for an extended period of
time in a small apartment while their conspicuous criminal conduct continued unabated
[since s]uch is not normally the conduct that one would expect of conspirators engaged
in conduct which by its nature is kept secret from outsiders") (internal quotations,
citations, and corrections omitted); United States v. Staten, 581 F.2d 878, 885 n.67
(D.C. Cir. 5/9/78) ("[i]t would seem that the voluntary presence of the accused in an
area obviously devoted to preparation of drugs for distribution is a circumstance potently
indicative of his involvement in the operation").
On November 3, 2010, at approximately 10:00 p.m., Officers David Clee and
Matthew Tobie of the Bensalem Township Police Department were patrolling the Route
1 corridor in Bensalem. The Route 1 corridor is considered a high-crime area, and has
an extensive history of arrests for offenses including narcotics, robberies, prostitution,
and other crimes at the various hotels in the region.
In the course of their regular patrol, the officers pulled their marked patrol car into
the parking lot of the Sunrise Inn on Route 1. Officer Clee was specifically assigned to
patrol the Route 1 corridor. As such, he was personally familiar with the crime that takes
place in the area and had made numerous arrests along the corridor, including arrests
at the Sunrise Inn. Upon pulling into the parking lot, the officers noticed a car with darkly
tinted windows parked in the parking lot. Officer Clee immediately recognized that the
tint was a violation of the Vehicle Code.
As they approached the car, a Chevrolet Impala, Officer Clee saw movement
inside the vehicle, which he described as someone moving from the front passenger's
side of the vehicle to the driver's side. Officer Clee decided to investigate the vehicle.
Officer Clee parked his patrol car, exited his vehicle, and approached the
Chevrolet Impala. Officer Clee then began to question the driver. As Officer Clee was
questioning the driver, Officer Clee observed a baseball cap sitting on the rear floor of
the car. Inside the baseball cap were several pieces of jewelry. From his experience,
Officer Clee recognized that a baseball cap full of jewelry left in a safe place means the
owner of the jewelry anticipated one of two things: that he was about to engage in a
fight or that, as a drug dealer, he had a fear of being robbed.
The occupant of the vehicle was later identified as Melvin Torres, from Camden,
New Jersey. During their conversation, Torres informed Officer Clee that he was not the
owner of the vehicle. Officer Clee questioned Torres in an attempt to ascertain the
location of the vehicle's owner and to determine Torres' connection to the hotel. Despite
being questioned only about the ownership of the vehicle, Torres appeared "extremely
nervous" and was evasive in his responses.
After repeated questioning, Torres eventually told Officer Clee that the vehicle's
owner was in Room 161 of the hotel. After Torres informed Officer Clee that the owner
of the Chevrolet Impala was in Room 161, an individual opened the door to Room 161
from within, locked eyes with Officer Clee, and, when Officer Clee began to walk
towards the room, the individual quickly closed the door. While Officer Tobie remained
with Torres, Officer Clee approached Room 161, knocked on the door several times,
72
and then made an announcement outside that he was the police and he was inquiring
about the owner or operator of the Chevrolet Impala that was occupied in the parking
lot. Approximately 45 seconds passed before the door was opened by a person later
identified as Francisco Saldana.
Standing outside the room, Officer Clee observed Saldana, defendant, and an
individual who was later identified as Raymer Carrasco standing just inside the
doorway. Officer Clee requested that each of the men produce identification. Officer
Clee noted that all three men were from Camden, New Jersey. None of the men
identified themselves as the owner of the Chevrolet Impala, and none would claim
responsibility for renting the hotel room.
From the doorway, Officer Clee looked around the room and observed a
Tupperware container, two trash bags, and a black, wheeled Tupperware container.
Additionally, the trash can was full of items, and just between the trash can and the wall
was a small apple baggie. Officer Clee testified that an "apple bag" is a larger plastic
bag that normally contains 500 baggies within it.
Acting on the belief, based on his experience, that there might be other people in
the rear bathroom, and the fact that the presence of the apple bag indicated there might
be illegal activity occurring inside the hotel room, Officer Clee entered the room and
walked through the room towards the rear hotel bathroom. As he crossed the room,
Officer Clee observed at least one portable lamp sticking out of a Tupperware container,
in addition to another Tupperware container and a large trash bag. As he passed the
trash bag, Officer Clee identified more apple bags. Further, Officer Clee observed a trail
of small rubber bands on the floor, with the trail leading to the toilet, and then two or
three small rubber bands in the toilet. Officer Clee also noticed that the window in the
bathroom was open, but that the window was extremely small, so the officer knew that
none of the three people standing at the door could have got out of it.
Based on his observations, Officer Clee made the decision to detain all four
suspects: the individual from the Chevrolet Impala and the three men from the hotel
room. Once the men were secured, the men were searched and Raymer Carrasco was
found to be in possession of heroin. The heroin in Carrasco's possession was packaged
in clear plastic baggies wrapped in small rubber bands and was later determined to
weigh 0.22 grams.
A search of defendant's person revealed that defendant possessed car keys to a
Honda vehicle; the police discovered this Honda vehicle parked next to the Chevrolet
Impala in the Sunrise Inn lot. Further, when questioned as to whether defendant had
any money on his person when he was searched, Officer Clee testified: "I don't recall
any money being recovered in this case."
Officer Clee then applied for a search warrant for the hotel room, the Chevrolet
Impala, and the Honda automobile that was parked next to the Chevrolet Impala (and to
which defendant possessed the keys). The four suspects were transported to the police
station and the room was secured until a search warrant was obtained.
Once the search warrant was obtained, all the evidence located in the hotel room
was brought back to the police station to be inventoried. Inside the containers and
garbage bag located in the hotel room, police found six coffee grinders that were used
to grind heroin, coffee filters that were used in the heroin-grinding process, three lamps,
thousands of glassine baggies, several digital scales, rubber stamps, wax papers that
73
were stamped with brand-insignia and that are ordinarily used to bag heroin, and other
items of drug paraphernalia. All of the grinders, filters, and scales tested positive for
residue of heroin or cocaine. Moreover, empty condoms were found in the hotel trash
can. None of the four individuals were the named renter of the hotel room; none of the
four individuals possessed any luggage or overnight bags.
The cars were transported to the police station so that they could be searched.
The officers located a concealed compartment in the dashboard of the Chevrolet Impala
that contained a .40-caliber handgun and 377.73 grams of uncut heroin, some of which
was packaged in rubber condoms for transportation in a human body. Officer Clee
testified that the heroin-filled condoms were “extremely similar" to the empty condoms
that were found in the hotel room trash can. In like fashion, Commonwealth expert,
Detective Timothy Carroll, also testified that the heroin-filled condoms found in the
Chevrolet Impala were "very similar, if not identical" to the used empty condoms that
were found in the hotel room. Further, within the Chevrolet Impala, the police
discovered an "owe sheet" in the vehicle's trunk, as well as an additional ledger that
was sitting on the vehicle's front seat.
Saldana was identified as the person responsible for the Chevrolet Impala.
Although no illegal substances or contraband of any sort were found in the Honda,
when Officer Clee introduced his trained narcotics dog to the Honda, the dog alerted to
the presence of an illegal substance. The K-9 also alerted to the presence of an illegal
substance in the Chevrolet Impala, which was consistent with the findings of the search.
Viewing the evidence in the light most favorable to the Commonwealth, the
evidence in the case at bar was sufficient to prove that defendant constructively
possessed the heroin residue and the drug paraphernalia that was discovered in the
hotel room. Indeed, a review of the totality of the circumstances reveals the following
facts and permissible inferences, which — taken together — are sufficient to prove that
defendant possessed the power to control the contraband in the hotel room and the
intent to exercise that control.
First, defendant was caught in a single, open hotel room, with drug-cutting and
drug-packaging material strewn about the room, in plain view. Taken together, these
circumstances furnished a sound basis for the fact-finder to reject the claim that
defendant was unaware of the substantial heroin-cutting and heroin-packaging
operation that was occurring within his midst, in the confined space of a hotel room.
Second, the Commonwealth introduced expert testimony that the operation in the
hotel room constituted a multi-person "mobile heroin mill" — where raw heroin was cut,
weighed, and then packaged into baggies for sale at the street level. Defendant's
presence in the middle of such an operation is highly probative and supports the
inference that defendant was an active participant in the activity. It is common
knowledge that drug dealers of any size and illegal drug manufacturers probably are
reticent about allowing the unknowing to take view of or assist in the operation.
Third, defendant's "mere presence" claim is further undercut by the fact that he
was caught in a hotel room — rather than in an individual's residence — and that no
luggage was found in the hotel room or in defendant's vehicle. These facts support a
permissible inference that the hotel room was being used for one purpose: a mobile
heroin mill. These facts also support a permissible inference that defendant was not
merely visiting the individuals in the hotel room (as he might if the operation had been
74
conducted in one of the individuals' residences) but that defendant was an active
participant in the only activity that was being conducted in the room: the cutting and
packaging of heroin.
Fourth, there is no evidence that the hotel room was being used as a place for
the illegal sale of heroin. Most tellingly, there was no evidence that the police seized any
money in this case. Defendant possessed no money at the time he was searched and
no money was found in the hotel room. Thus, when combined with the actual evidence
in the case (which demonstrates that the police recovered no money from defendant,
from the co-defendants, or from the hotel room), Officer Clee's testimony further
negates any suggestion that defendant was present in the hotel room merely to
purchase the heroin.
Fifth, the evidence at trial supports the inference that defendant was, at the very
least, complicit in the destruction of evidence. At trial, Officer Clee testified that, when
he was questioning Mr. Torres in the parking lot, he noticed an individual open the door
to Room 161 and look directly at the officer. Officer Clee testified that, right when he
began to walk towards the room, the individual shut the door. In response, Officer Clee
testified that he approached Room 161, knocked on the door several times, and then
made an announcement outside that he was the police and he was inquiring about the
owner or operator of the Chevrolet Impala that was occupied in the parking lot. Officer
Clee testified that it took approximately 45 seconds for Mr. Saldana to open the door to
the small hotel room — and that, when Officer Clee entered the room, the officer
discovered a trail of small rubber bands on the floor, with the trail leading to the toilet,
and then two or three small rubber bands in the toilet.
Viewing this evidence in the light most favorable to the Commonwealth, the
evidence supports the inference that the individuals in the hotel room flushed some of
the contraband down the toilet. Moreover, even if defendant did not actively take part in
flushing the contraband down the toilet, defendant's failure to answer the door when
Officer Clee knocked — while his compatriots flushed the contraband down the toilet —
demonstrates that defendant was, at the very least, complicit in the destruction of
evidence.
Sixth, the evidence at trial supports the inference that defendant brought all of
the drug-cutting and drug-packaging paraphernalia to the hotel room in the Honda
automobile. At trial, Officer Clee testified that a search of the three individuals in the
hotel revealed that the individuals only possessed vehicle keys to two cars: the Honda
vehicle and the Chevrolet Impala. Defendant possessed the vehicle keys to the Honda
and video evidence revealed that Mr. Saldana operated the Chevrolet Impala.
Officer Clee testified that a trained narcotics dog alerted to the presence of
narcotics on both the Honda and the Chevrolet Impala — and, while heroin was
discovered in Mr. Saldana's Chevrolet Impala, no narcotics were discovered in the
vehicle to which defendant possessed the keys. Nevertheless, the narcotics and the
large amounts of paraphernalia in the hotel room needed to get into the room some way
and surveillance video demonstrated that, when Mr. Saldana arrived at the hotel in his
Chevrolet Impala, Mr. Saldana parked his vehicle in the lot and walked empty-handed
into the hotel room.
Viewing this evidence in the light most favorable to the Commonwealth, it was
permissible for the fact-finder to infer that the dog alerted to defendant's vehicle
75
because defendant brought much, if not all, of the drug-cutting and drug-packaging
paraphernalia into the hotel room — and, therefore, that defendant constructively
possessed the contraband found in the hotel room.
From the above, it is apparent that the Commonwealth's case against defendant
was based upon far more than defendant's mere presence in the hotel room. Viewing
the evidence in the light most favorable to the Commonwealth, the evidence is sufficient
to support the trial court's conclusion that defendant was an active participant in the
drug-cutting and drug-packaging operation that was being conducted in the hotel room
— and that defendant possessed both the power to control the contraband in the hotel
room and the intent to exercise that control.
Vargas, 108 A.3d 858 (Pa. Super. 12/31/14) (en banc) (plurality opinion)
Link to: Ford Elliott, J. concurring
Link to: Bender, J. concurring and dissenting
appeal denied, ___ Pa. ___, 121 A.3d 496 (7/27/15)
POSSESSION OF WEAPON ON SCHOOL PROPERTY
18 Pa.C.S. § 912 is not a strict liability crime. The Commonwealth must prove
that defendant acted intentionally, knowingly, or recklessly.
Here, the testimony reflects that defendant knew that he had his sword and knew
that weapons were not permitted in school buildings. He admitted such knowledge
when he stated that he did not take the sword into a building that posted that no
weapons were allowed and when he stated that he did not take the sword into the
district’s elementary and middle schools. Therefore, defendant knew that his conduct
was in the nature of that prohibited by the statute.
Giordano, ___ A.3d ___ (Pa. Super. 8/5/15)
appeal pending, No. 676 MAL 2015 (filed 9/3/15)
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.
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.
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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 pending, No. 588 MAL 2015 (filed 7/31/15)
PRIOR CRIMES
When ruling upon the admissibility of evidence under the common plan
exception, the trial court must first examine the details and surrounding circumstances
of each criminal incident to assure that the evidence reveals criminal conduct which is
distinctive and so nearly identical as to become the signature of the same perpetrator.
Relevant to such a finding will be the habits or patterns of action or conduct undertaken
by the perpetrator to commit crime, as well as the time, place, and types of victims
typically chosen by the perpetrator. Given this initial determination, the court is bound to
engage in a careful balancing test to assure that the common plan evidence is not too
remote in time to be probative. If the evidence reveals that the details of each criminal
incident are nearly identical, the fact that the incidents are separated by a lapse of time
will not likely prevent the offer of the evidence unless the time lapse is excessive.
Finally, the trial court must assure that the probative value of the evidence is not
outweighed by its potential prejudicial impact upon the trier of fact. To do so, the court
must balance the potential prejudicial impact of the evidence with such factors as the
degree of similarity established between the incidents of criminal conduct, the
Commonwealth's need to present evidence under the common plan exception, and the
ability of the trial court to caution the jury concerning the proper use of such evidence by
them in their deliberations.
Although remoteness in time is a factor to be considered in determining the
probative value of other crimes evidence under the theory of common scheme, plan or
design, the importance of the time period is inversely proportional to the similarity of the
crimes in question. Evidence of a prior crime may also be admitted to show a
defendant's actions were not the result of a mistake or accident, where the manner and
circumstances of two crimes are remarkably similar.
Evidence of relevant prior crimes is admissible if the probative value of the
evidence outweighs its potential for unfair prejudice. Unfair prejudice means a tendency
to suggest decision on an improper basis or to divert the jury's attention away from its
duty of weighing the evidence impartially. Evidence will not be prohibited merely
because it is harmful to the defendant. It is not required to sanitize the trial to eliminate
all unpleasant facts from the jury's consideration where those facts are relevant to the
issues at hand and form part of the history and natural development of the events and
offenses for which the defendant is charged. Moreover, we have upheld the admission
of other crimes evidence, when relevant, even where the details of the other crime were
extremely grotesque and highly prejudicial.
On July 31, 2010, G.B. left work because she felt ill after donating plasma. G.B.
asked defendant, whom she knew casually, to bring her some food. Defendant arrived
at G.B.'s apartment and stayed as she fell asleep. During the early morning hours of
August 1, 2010, G.B. claims she awoke to find defendant having vaginal intercourse
77
with her. Defendant told G.B. she had taken her pants off for him. G.B. claims she told
defendant to stop, and he complied. After falling back asleep, G.B. woke again later that
night and went into her kitchen, where she allegedly found defendant naked. G.B.
claims she told defendant she did not want to have sex with him and returned to bed.
Shortly thereafter, G.B. claims, she woke up; and defendant was again having vaginal
intercourse with her. G.B. told defendant to stop and asked him what he was doing.
Defendant told G.B. her eyes were open the whole time. G.B. told defendant to leave
her apartment. G.B. then went to a hospital for treatment.
The record reveals the following factual similarities between the present case
and defendant's prior rape conviction. In each case, defendant was acquainted with the
victim—a black female in her twenties— and he was an invited guest in the victim's
home. Defendant was aware that each victim was in a weakened or compromised state.
Each victim ultimately lost consciousness. In each case, the victim awoke in her
bedroom in the early morning hours to find defendant having vaginal intercourse with
her. The evidence of defendant's prior rape passes the basic relevance threshold, as it
tends to increase the probability that defendant knowingly had non-consensual sex with
G.B. in the present case. The relevant details and surrounding circumstances of each
incident further reveal criminal conduct that is sufficiently distinctive to establish
defendant engaged in a common plan or scheme. The factual overlap between the two
incidents goes beyond the commission of crimes or conduct of the same general class.
The evidence does not merely show defendant sexually assaulted two different women
or that defendant's actions are generically common to many sexual assault cases. To
the contrary, the incidents reflect a clear pattern where defendant was legitimately in
each victim's home; defendant was cognizant of each victim's compromised state; and
defendant had vaginal intercourse with each victim in her bedroom in the middle of the
night while the victim was unconscious.
We further conclude the evidence of defendant's prior rape conviction is not too
remote in time to negate its probative value. The Commonwealth is correct to state that
defendant's time spent in prison must be excluded in the calculation of how much time
has elapsed since the prior crime. Defendant committed the prior offense ten years
before the current incident, but defendant was incarcerated for five of those years for
the prior offense. Therefore, the relevant look-back period is five years for purposes of
the remoteness analysis. This Court has held evidence admissible under the common
scheme exception in the context of even longer time lapses. Additionally, the similarities
of the two incidents render the five-year time gap even less important. The record does
not support a finding of an excessive lapse of time between the incidents, which is, in
any case, only one factor in the common scheme analysis, but not the dispositive factor.
The substantial similarity between the two incidents gives the evidence of
defendant's previous crime considerable probative value. In light of the important
similarities, the nature of defendant's prior crime alone does not render it unduly
prejudicial. Moreover, to alleviate the potential for unfair prejudice, the court can issue a
cautionary instruction to the jury, to advise the jury of the limited purpose of the
evidence and to clarify that the jury cannot treat the prior crime as proof of defendant's
bad character or criminal tendencies.
Importantly, one factor in the "undue prejudice" analysis—the Commonwealth's
need to present evidence under the common plan exception—weighs heavily in favor of
78
the Commonwealth. Identity is not an issue in this case, as defendant acknowledges he
had sexual intercourse with G.B. on the day in question. The only issue is consent. If
evidence of defendant's prior conviction is excluded, the Commonwealth must rely
solely on the uncorroborated testimony of G.B. to counter defendant's defense of
consent to vaginal intercourse. Thus, the Commonwealth has a significant need for the
prior crime evidence to prove defendant had non-consensual sex with G.B.
Given the substantial similarity between the current incident and defendant's prior
crime, and the importance of the common scheme evidence to the Commonwealth's
case, we conclude the trial court abused its discretion when it found defendant's prior
conviction was inadmissible under the common scheme exception to Rule 404.
Tyson, 119 A.3d 353 (Pa. Super. 6/10/15) (en banc)
Link to: Donohue, J. dissenting
appeal pending, No. 537 MAL 2015 (filed 7/10/15)
Defendant and Boyer were co-conspirators in a string of robberies occurring in
July 2012. In August 2012, Defendant assaulted Boyer at the Crawford County
Correctional Facility. Testimony at trial indicated that defendant made statements to
Boyer during the course of the assault that connected the assault with the prior
robberies. Specifically, Boyer testified that defendant stated, “I told you I was going to
effing kill you,” and that the altercation was over Boyer giving a statement to police. Two
corrections officers, Sally Jean Bullis and Joshua James Lintz, also testified that during
the course of the altercation, defendant stated, “Why did you say that[?] Why did you do
that[?]” and “I told you I would get you.” Thus, evidence relating to the robbery charges
would be admissible to establish defendant’s motive for assaulting Boyer. Conversely,
evidence of the assault would be admissible in a trial for the robbery charges to
establish the existence of a conspiracy between defendant and Boyer. Further, all of the
evidence formed part of the “natural development” of the fact and history of this case.
The set of robberies and the assault occurred weeks apart in different locations
and involved different victims. Thus, there was no risk of confusing the jury.
We conclude that defendant was not unduly prejudiced by the trial court’s
decision to allow the jury to hear evidence of the separate, yet interrelated, crimes.
Here, defendant committed a series of robberies with Boyer as a co-conspirator and
later assaulted Boyer at the Crawford County Corrections Facility. This was a series of
crimes committed by the defendant which were all related. He created the sequence of
events and cannot fairly now demand that the matters be severed and tried in separate
trials. Consequently, the trial court did not abuse its discretion in consolidating the
informations in this case.
Ferguson, 107 A.3d 206 (Pa. Super. 1/5/15)
In the prosecution of defendant for the repeated sexual assaults of the victim,
from age 8 to age 16, the trial court admitted evidence of defendant’s threats to the
victim and defendant’s repeated assaults committed upon the victim’s mother.
79
Defendant argues that allowing testimony of prior violent acts he committed
against his wife, who is the mother of the victim and her sister, was an attempt to color
defendant as a violent, jealous, controlling individual who has a propensity to commit
violent crimes against women and was much more prejudicial than probative. The trial
court explained that defendant misconstrued the court's ruling and rejected his claim,
noting the Commonwealth was permitted to elicit the "bad acts" testimony from the
victim and her sister to "explain[ ] the delay in reporting sexual abuse in addition to
establishing the res gestae of the sexual assaults." We agree.
Defendant argues that allowing the jury to hear testimony about the beatings he
inflicted on the victim's mother lacked probative value because the delay in reporting
could be explained by the direct threats defendant made to the victim. We disagree.
Again, in the context of reporting delay and res gestae, testimony relating to the
beatings was probative of the victim's fear of harm if she reported the abuse. Having
witnessed the violent physical attacks on her mother, it was reasonable for the victim,
as well as her sister, to believe defendant's threats were more than empty veiled
threats. Moreover, as the trial court explained, it culled the proffered bad acts to the few
referenced at trial to safeguard against prejudice. As such, the trial court did not abuse
its discretion in admitting the evidence as its probative value outweighed any potential
for prejudice.
Gonzalez, 112 A.3d 1232 (Pa. Super. 3/11/15)
PRIVILEGES
The Mental Health Procedures Act, 50 P.S. § 7111, limits judicial use of mental
health records to mental health commitment proceedings unless the patient consents to
their use in other judicial proceedings.
Dudley, 353 Pa. Super. 615, 510 A.2d 1235 (6/5/86), is distinguishable from the
present case. Unlike Dudley, the record in this case does not reveal whether the facility
in question, BHS, is a mental health facility, or when the complainant, K.M., received
treatment at BHS. In addition, the complainant’s diagnosis in Dudley clearly implicated
her abilities to perceive and recall critical events. Here, despite in-depth review of years
of medical records, Gonzalez’s expert did not opine to a reasonable degree of certainty
that K.M.’s depression and anxiety affected her ability to perceive and recall the events
of March 8, 2011. Simply put, nothing in the present record demonstrates that the
alleged BHS records have any relevance. Moreover, Dudley did not analyze whether
the Mental Health Procedures Act barred disclosure of the complainant’s records.
Gonzalez, 109 A.3d 711 (Pa. Super. 1/21/15)
appeal denied, ___ Pa. ___ , ___ A.3d ___ (9/29/15)
80
PRO SE DEFENDANT
Trial court properly precluded capital defendant from testifying at trial in a
narrative form. Trial court offered defendant the option of asking himself questions,
then answering those questions, or having the questions posed by standby counsel.
Stollar, 624 Pa. 607, 84 A.3d 635 (1/21/14)
Link to: Castille, C. J. concurring
Link to: Saylor, J. concurring
PROBABLE CAUSE – COLLECTIVE KNOWLEDGE
Officer Gibson arrested Yong. Officer Gibson lacked probable cause to do so.
Defendant did not dispute that Officer Gibson’s colleague, Officer McCook, knew that
Yong participated in a narcotics transaction two days earlier, and that the collective
knowledge of the two officers amounted to sufficient probable cause to justify a
warrantless arrest. However, it was Officer Gibson, not Officer McCook, who ultimately
arrested Yong. Yong argues that the trial court erred in imputing Officer McCook's
knowledge to Officer Gibson.
A series of conflicting interpretations of the collective knowledge doctrine has
emerged over the last several decades. Some courts have conceptualized the collective
knowledge cases as falling into two distinct categories, vertical and horizontal. The
"vertical" collective knowledge cases exist where one law enforcement officer who
possesses probable cause instructs a fellow officer to act. Pennsylvania courts have
consistently applied this version of the doctrine for several decades, with little
controversy.
By contrast, the "horizontal" collective knowledge cases arise when individual law
enforcement officers each possess pieces of the probable cause puzzle, but no single
police officer possesses information that amounts to probable cause. Under this
approach, which has never been adopted in Pennsylvania, courts evaluate probable
cause by aggregating the knowledge of two or more police officers who are working
together on an investigation.
The view that a broader, "horizontal," collective knowledge doctrine exists is far
from unanimous. Many courts have declined to enlarge the scope of the doctrine, and
will only impute knowledge among fellow officers where there is evidence that the
arresting officer acted at the direction of another officer. Extending the collective
knowledge doctrine to apply in the absence of a directive or instruction to arrest issued
by an officer who possesses probable cause serves none of the legitimate law
enforcement purposes behind the rule. Many of the courts that have adopted the
horizontal approach to the collective knowledge doctrine have ignored the original aim
of the rule—to allow officers to rely upon succinct directives received from a fellow
officer. Paradoxically, these courts have expanded the rule, which was intended to
encourage communication between police officers while minimizing the volume of
information that officers must transmit, by eliminating the requirement that officers
actually communicate with one another.
81
The Supreme Court has endorsed the view "that effective law enforcement
cannot be conducted unless police officers can act on directions and information
transmitted by one officer to another and that officers, who must often act swiftly, cannot
be expected to cross-examine their fellow officers about the foundation for the
transmitted information." United States v. Hensley, 469 U.S. 221, 231, 105 S.Ct. 675,
___, 83 L.Ed.2d 604, ___ (1/8/85). If there is no “transmitted information,” a different
result obtains. Our law does not permit a police officer to make a warrantless arrest and
then later justify it based upon his colleague's knowledge. To adopt the horizontal
collective knowledge approach would be to sever the doctrine from its constitutional
impetus.
Even if we were willing to adopt the horizontal collective knowledge doctrine, it
would not apply to the facts of the case before us. The courts that have accepted this
formulation impute knowledge among police officers who are functioning as a team. The
horizontal collective knowledge approach requires some degree of communication
between the officer who possesses the incriminating knowledge and the officer who
does not. The suppression hearing transcript lacks any testimony that Officer Gibson
and Officer McCook communicated with each other. Thus, even the expanded collective
knowledge doctrine advocated by the Commonwealth would not preclude suppression
based upon the record before us.
In Gambit, 274 Pa. Super. 571, ___, 418 A.2d 554, 557 (1/25/80), aff'd per
curiam, 501 Pa. 453, 462 A.2d 211 (7/8/83), a panel of this Court stated that a police
officer's knowledge can be imputed to his fellow officer where there "is some
communication or connection" between them. This seems to suggest that the collective
knowledge may apply in the absence of a communication, so long as a particular officer
is "connected to" an arrest. But, read in context, the inclusion of the word "connection"
appears to be an imprecise statement of the law, and not an explicit enlargement of the
doctrine. Indeed, the Court in Gambit rejected the Commonwealth's argument that
relevant information possessed by an officer could be imputed to an arresting officer in
the absence of an instruction or directive to arrest. Moreover, in the thirty-five years
since Gambit was decided, it has never been cited for the proposition that knowledge
can be imputed between officers in the absence of a communication between them.
Instead, our own Supreme Court has explained that the Constitution allows an officer to
make a warrantless arrest "undertaken at the direction of his superior who had sufficient
knowledge of facts and circumstances to constitute probable cause to arrest the
defendant." Queen, 536 Pa. 315, ___, 639 A.2d 443, 446 (3/24/94)
Yong, 120 A.3d 299 (Pa. Super. 7/16/15)
Link to: Lazarus, J. concurring
PROBABLE CAUSE – CONDUCT
On June 13, 2006, G.B., a twelve-year-old girl, was reported missing by her
parents. The girl and her family lived in a rural corner of Pennsylvania, and she was
reported missing on the day of her disappearance. The Pennsylvania State Police
immediately initiated a search that was later joined by the Federal Bureau of
82
Investigation, other agencies, canine units, and civilian searchers. Police interviews with
neighbors and other witnesses revealed that G.B. had been riding her small all-terrain
vehicle ("ATV") on the morning of her disappearance and was last seen heading in the
direction of a neighboring horse and pleasure farm that she had previously visited with
her parents' permission. The owners of the farm were away that morning; however, their
sole hired farmhand, defendant, Jeffrey Robert Martin, was working alone there at the
time. Among defendant's duties was the collection and spreading of manure.
Late in the day on June 17, 2006, and four days after G.B. had been reported
missing, her ATV was found partially buried in a creek bank and under a top layer of
manure near a horse trail on the farm where defendant had very recently spread
manure as part of his duties. Defendant, who was working on the farm at the time, was
immediately placed under arrest for tampering with evidence, giving false information,
and hindering a police investigation.
Here, the relevant facts and circumstances were the disappearance of G.B., the
continuing inability of any of the searchers to find her, and the then-recent discovery
that the vehicle upon which she had been riding on the morning of her disappearance
had been purposely hidden in order to avoid its discovery. Further, G.B.'s ATV was
intentionally hidden under a medium that was under the primary control of defendant,
namely manure.
These facts would lead a person of reasonable caution to conclude that
defendant was probably involved in the felonious disappearance of G.B., where her
disappearance was the result of either her murder or kidnapping. The most reasonable
inference from these facts is that the child had been the victim of foul play and that
defendant was involved. We would add that the most reasonable inference and
possibility from the facts was that G.B.'s disappearance, with which defendant was
involved, was the result of felonious acts of the most egregious kind.
Prior to defendant's arrest, state and federal law enforcement officials were
feverishly investigating the disappearance of a girl who had been missing for several
days, and, therefore, time was of the essence to attempt to forestall any further harm
that might befall the child. The Fourth Amendment permits a warrantless arrest under
exigent circumstances if based upon probable cause. The crucial test is whether there
were facts available which would justify a person of reasonable caution in the belief that
a crime had been committed and that the individual arrested was the probable
perpetrator. When G.B.'s ATV was discovered intentionally buried for purposes of
hiding it, and the child was still missing, the troopers at the farm were presented with
exigent circumstances for making a warrantless arrest upon probable cause that
defendant had committed one of several possible crimes. We will not require police to
temporarily abandon a search for a missing child when evidence of foul play has just
been detected and leave a likely time-sensitive search in order to obtain an arrest
warrant, when there is probable cause to make an arrest of an individual whom the
evidence shows is criminally connected with the child's disappearance.
Martin, ___ Pa. ___, 101 A.3d 706 (9/24/14)
Link to: Saylor, J. dissenting
cert. denied, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (10/5/15)
83
At about 2:00 a.m. on December 22, 2012, Officer Sean Devlin and his partner,
Officer Steven Carter, were on routine patrol near 52nd and Arch Streets in Philadelphia.
Officer Devlin knew that the neighborhood was a high-crime area based on the “100, if
not more” arrests he had made for “every type” of crime, including DUIs, drug arrests,
firearms violations, and physical assaults. Officer Devlin saw two men standing over a
third man, who was lying unconscious in the street. He later found out that one of the
two men was defendant. Unsure of what was happening, Officer Devlin pulled over his
patrol car, turned on the emergency lights, and got out to investigate.
As the officers approached the trio, Officer Devlin noticed that one of the two
men was possibly rummaging through the unconscious man’s pockets. He tried to
speak to the unconscious individual, who was unable to respond. Officer Devlin thought
that the unconscious individual may have been beaten by the other two men, though he
saw no visible injuries. He also noticed that an object was weighing down the right
breast pocket of defendant’s jacket. Officer Devlin approached defendant and began to
pat him down. In response, defendant attempted to swat away Officer Devlin’s hand,
and flailed his arms. Officer Devlin immediately recognized the object in the jacket
pocket as a firearm, and yelled, “Gun!” Officers Devlin and Carter restrained defendant,
and secured the gun, which was a Rossi .357 Magnum. Defendant escaped, but only
briefly. After a short foot chase, the officers recaptured defendant and placed him under
arrest.
Defendant was not subject to an investigative detention when Officer Devlin
stopped his patrol car, turned on the emergency lights, and got out to check on the
condition of the man lying in the street. The interaction at that point was a mere
encounter.
The determination of whether an officer had reasonable suspicion that criminality
was afoot so as to justify an investigatory detention is an objective one, which must be
considered in light of the totality of the circumstances. In assessing the totality of the
circumstances, a court must give weight to the inferences that a police officer may draw
through training and experience. Also, the totality of the circumstances test does not
limit our inquiry to an examination of only those facts that clearly indicate criminal
conduct. Rather, even a combination of innocent facts, when taken together, may
warrant further investigation by the police officer.
At 2:00 a.m. in a high-crime area, Officer Devlin and his partner happened upon
defendant and another individual standing over an unconscious man in the middle of the
street. Officer Devlin was concerned that the two men may have beaten up or robbed
the third man, and they may have been going through his pockets. Officer Devlin
noticed an object weighing down Defendant’s jacket pocket, and began to pat down
defendant for safety. He immediately recognized that the object was a gun, restrained
defendant, and took him into custody.
The trial court failed to consider the totality of the circumstances, and give Officer
Devlin the benefit of the inferences he drew from those circumstances. The record
shows that Officer Devlin reasonably suspected that criminal activity was afoot and that
defendant was armed and potentially dangerous.
The incident ending in defendant’s arrest did not occur in a vacuum, and the
facts of the incident did not occur in isolation. Yet, that is how the suppression court
84
evaluated the incident and facts. Officer Devlin may have been unsure whether
Defendant had assaulted or robbed the unconscious man. It could be, as the trial court
proposed, that defendant was merely a Good Samaritan stopping to render aid. It is
possible that the unconscious man suffered a medical emergency, or had been waylaid
by someone else. Further, the item weighing down defendant’s right breast pocket could
have been a book. Of course, one can conceive of innocent explanations for each one
of these facts. Yet, reasonable suspicion does not require that the activity in question
must be unquestionably criminal before an officer may investigate further. Rather, the
test is what it purports to be—it requires a suspicion of criminal conduct that is
reasonable based upon the facts of the matter. Potential innocent explanations for
defendant’s conduct do not negate the reasonableness of Officer Devlin’s suspicion of
criminal activity, which even the suppression conceded as valid.
Davis, 102 A.3d 996 (Pa. Super. 10/14/14)
appeal denied, ___ Pa. ___, 113 A.3d 278 (4/1/15)
On November 9, 2011, at approximately 9:00 p.m., Officer Matthew Blaszczyk of
the Philadelphia Police Department was patrolling near 700 East Madison Avenue in
Philadelphia, at the corner of Madison Avenue and G Street. Officer Blaszczyk testified
that this is a known drug corner and he personally has made multiple gun and drug
arrests at this corner. At said time, Officer Blaszczyk and his partner were driving
northbound on G Street when they observed defendant standing on the northeast
corner of the intersection.
Officer Blaszczyk observed a bulge in defendant’s left coat pocket. Officer
Blaszczyk believed that it was a heavy object because of “the way it weighed the jacket
down and the way it protruded.” As the officers drove northbound past defendant,
Officer Blaszczyk noted that defendant looked in their direction and began to walk
south. The officers circled around the block and approached the intersection from a
different direction. Upon returning to the intersection, Officer Blaszczyk observed that
defendant was back on the same corner, with the same bulge in his coat. Officer
Blaszczyk noted that he and his partner did this multiple times.
Each time we came down the street, it was a few times, maybe
three or four times, [he] would look in our direction and walk the
opposite way whichever way we were coming from. And the way he
turned his body was so that that bulge, you know, we could see it
initially. And then he’d turn. So he wasn’t in our view.
The officers got out of their vehicle and approached defendant, and again
defendant turned his body away from the officers so they could not see the bulge in his
coat. Officer Blaszczyk further testified that based on the size and shape of the bulge,
the way it weighed defendant’s coat down, and the way it swung, he believed the bulge
to be a firearm. The officers stopped defendant and patted him down. During the patdown, Officer Blaszczyk noticed upon feeling the bulge, that he could “immediately feel
the shape of a firearm.” Officer Blaszczyk recovered from defendant’s person a 22caliber Walther handgun, a Walther P-22 model. The handgun was loaded with eight
live rounds of ammunition.
85
In this case, Officer Blaszczyk testified to the following facts that led to his
decision to stop and pat-down Defendant.
Q: I’d like to direct your attention back to November 9, 2011 at
approximately 9 p.m.[,] were you on duty as a Philadelphia police
officer?
A: Yes, I was.
…
Q: Can you please tell [the suppression court] what, if anything, you
observed [defendant] doing?
…
A: Your Honor, on that date and time, I was working with my
partner Officer White, badge number 7097. We were all on routine
patrol in the area when we drove northbound on “G” Street when
we observed [defendant]. He was standing on the northeast corner.
He was wearing all black clothing. I immediately observed a bulge
in his left coat pocket. I could tell it was something heavy by the
way it weighed the jacket down and the way it protruded.
My partner and I, as we drove northbound on the block, [Defendant]
looked in our direction.
Q: Was he driving or were you? Was he in a vehicle or on the
street?
A: [Defendant]?
Q: Yes.
A: He was standing. He was on foot.
Q: I thought you said when he drove -- [defendant]?
A: No. When my partner and I drove northbound on “G” Street, he
looked in our direction and began to walk south. My partner and I
stopped. And he appeared to have left the area.
My partner and I circled back around. He came from a different
direction this time. And he was back on that corner. I observed the
bulge again and got another look at it.
My partner and I made observations over the course of about 10
minutes. And, eventually, my partner and I, based on our
experience in that area, [knew that] “G” and Madison is a known
drug corner.
It’s a corner where I’ve made multiple gun arrests, multiple drug
arrests. And based on my experience in that area, my partner and I
decided to stop [defendant].
Q: When you were observing [defendant] was he doing anything
other than standing on the corner? Was he looking at you or
anything?
…
A: Each time we came down the street, it was a few times, maybe
three or four times, he would look in our direction and walk the
opposite way whichever way we were coming from.
86
And the way he turned his body was so that that bulge, you know,
we could see it initially. And then he’d turn. So he wasn’t in our
view.
Q: And about how many times did that happen when he turned his
body away from you?
A: About three or four.
…
Q: And how long have you been a Philadelphia police officer?
A: About six years now.
Q: And has it always been in the 25th district?
A: Yes.
Q: How many gun arrests have you made in that area?
A: I’d say approximately 75 or more.
…
Q: Have you made any gun arrests in that particular area of “G” and
Madison?
A: Yes, I’ve made about, I’d say, between 8 and 10 just in that area
alone.
Q: And, in your experience, and during this arrest, where on the
person’s person did you find these guns?
A: Most of the time it’s either in a coat pocket or tucked in a
waistband. But also I’ve seen people have it directly in their pants
pocket. But all of my gun arrests, I don’t think any of them were
carrying a gun in a holster.
…
Q: And what occurred when you and your partner decided to get
out of your vehicle?
A: Well, my partner and I approached [defendant] for investigation.
He turned his body away. That bulge, that we believed was his
firearm, he turned his body so that that item was away from us.
Q: Just one question, what made you believe this was a firearm?
A: Just based on the size, shape of it, weight. It weighed his jacket
down. The way it kind of swung. Just my experience in that area.
My experience in dealing with firearms.
…
Q: And what did you do when you stopped him?
A: Conducted just the pat-down for weapons. And immediately
when I felt that bulge, I could immediately feel the shape of a
firearm.
Q: And what, if anything, did you recover?
A: I recovered a 22-caliber Walther handgun, a Walther P-22
model. It was loaded with eight live rounds.
The suppression court evaluated individual factors, concluded at the end of each
paragraph that they were insufficient to establish reasonable suspicion in some form
and ended its analysis with the conclusion that the Commonwealth had not established
reasonable suspicion as none of the factors testified to by Officer Blaszczyk were
87
sufficient. The suppression court also disregarded Officer Blaszczyk’s observations as
to the bulge in defendant’s coat because nothing was presented to the suppression
court by way of experience of expertise to establish by the preponderance of the
evidence that” the bulge was a gun.
The suppression court engaged in the “divide-and-conquer” analysis. Even in a
case where one could say that the conduct of a person is equally consistent with
innocent activity, the suppression court would not be foreclosed from concluding that
reasonable suspicion nevertheless existed. Even a combination of innocent facts, when
taken together, may warrant further investigation by the police officer.
In this case, Officer Blaszczyk formed his suspicions based in part on his six
years’ experience as a Philadelphia police officer, conducting over 75 gun arrests, eight
to ten of which were specifically located at the corner at which he encountered
defendant. Officer Blaszczyk further testified that in his experience, many people who
carry guns do so in their coat pockets. Officer Blaszczyk was permitted to utilize his
knowledge of the methods used in recent criminal activity in order to form his decision
as to whether to stop defendant. Officer Blaszczyk was not required to receive
specialized training in order to make his decision.
Carter, 105 A.3d 765 (Pa. Super. 12/2/14) (en banc)
Link to: Lazarus, J. dissenting
appeal denied, ___ Pa. ___, 117 A.3d 295 (6/17/15)
RAPE
K.M. was a cerebral palsy patient. Her testimony established that she told
Gonzalez that she did not want premarital intercourse. Gonzalez pretended to agree
with K.M., but one day later, he maneuvered her into a position in which she was
powerless to resist his advances. He took her to his apartment, where she had never
been before. He placed her cell phone out of reach in a living room tray, and when they
adjourned to his bedroom and lay down on his bed, he placed her crutches out of reach.
Without her phone or crutches, she could not escape from the bed or contact an outside
agency for help. He then disrobed her and lay on top of her. She uttered “no, don’t,” but
instead of stopping, he forced her legs apart and cuffed them on his shoulders –
movements she was incapable of performing herself due to her cerebral palsy. He then
penetrated her with his penis and told her to be quiet when she repeatedly called out
“ow”. K.M.’s lack of consent (“no, don’t”), combined with Gonzalez’s use of domination
and physical force, provide sufficient evidence of forcible compulsion to justify his
conviction for rape. Gonzalez’s contention that K.M. initiated sexual intercourse and that
he followed her directions does not undermine the sufficiency of the evidence.
Gonzalez, 109 A.3d 711 (Pa. Super. 1/21/15)
appeal denied, ___ Pa. ___ , ___ A.3d ___ (9/29/15)
88
RAPE SHIELD LAW
A jury convicted K.S.F. of the following sexual crimes against his stepdaughter:
four counts of involuntary deviate sexual intercourse with a child; three counts of
involuntary deviate sexual intercourse—complainant less than 16 years of age; four
counts of statutory sexual assault; five counts of indecent assault—complainant less
than 13 years of age; three counts of indecent assault— complainant less than 16 years
of age; and one count of corruption of a minor.
On one of stepdaughter’s Facebook profiles, she described herself as a “virgin”
who “had never had sex in her life.” At a hearing, Stepdaughter testified that when she
wrote on Facebook that she had never had sex before, she meant she had never had
consensual sex.
The purpose of the Rape Shield Law is to prevent a trial from shifting its focus
from the culpability of the accused toward the virtue and chastity of the victim and to
exclude irrelevant and abusive inquiries regarding prior sexual conduct of sexual assault
complainants. A statement in which a victim claims to be a virgin cannot reasonably be
understood to prejudice her by smearing her reputation for virtue and chastity, nor is it
inflammatory. On the other hand, the potential exculpatory value of the statement is
substantial.
Stepdaughter's statement that she was a virgin could be interpreted to mean that
she had never had consensual sex. This is, in fact, the way Stepdaughter explained the
Facebook posting at the hearing. However, the Facebook posting could also be
interpreted to mean that she had never had any sex, including with K.S.F. Whether
Stepdaughter's narrative was to be believed was a credibility determination that should
properly have been put before a jury.
K. S. F., 102 A.3d 480 (Pa. Super. 10/8/14)
RULE 600
In Solano, 588 Pa. 716, 906 A.2d 1180 (9/27/06), the Pennsylvania Supreme
Court ruled that a thirty-five day delay between the originally scheduled preliminary
hearing and the date of the actual hearing was attributable to the defendant. In doing
so, it relied on Manley, 503 Pa. 482, 469 A.2d 1042 (12/30/83).
Manley held that where proceedings are continued because an indigent
defendant appears without counsel and does not waive counsel, the delay is excludable
time. In Manley, the defendant appeared for trial on May 30, 1978, without counsel.
Manley proffered that he had been represented by private counsel at his preliminary
hearing but could no longer pay his counsel’s fees and was currently unrepresented.
The trial court continued the case and instructed Manley to apply for representation
from the public defender’s office. On September 1, 1978, the public defender’s office
entered its appearance. The Supreme Court concluded that the defendant was
unavailable for the period from May 30, 1978 to August 31, 1978.
The Manley Court found Commonwealth v. Millhouse, 470 Pa. 512, 368 A.2d
1273 (1/28/77), analogous and its rationale persuasive. In Millhouse, the High Court
89
ruled that if an actual delay in the case occurs because the defendant “appears for
proceedings in connection with his case without defense counsel and such defendant is
financially capable of retaining counsel[,]” the delay is excludable time. Id. at 1276.
There, the defendant was unrepresented from February 6, 1974 until May 28, 1974.
Despite the defendant being unrepresented, the court conducted defendant’s
preliminary arraignment and no delay occurred. However, from March 20, 1974 until
May 28, 1974, the case was delayed due to the defendant’s failure to retain counsel.
The Millhouse court, therefore, ruled those days to be excludable.
Here, defendant’s lack of an attorney of record did not cause the case to be
continued or delayed until September 17, 2012. Millhouse plainly stands for the
proposition that the mere absence of counsel is not automatically excludable time or the
court would have held that the entire February 1974 to May 1974 period attributable to
the defendant. Similarly, in both Solano and Manley, actual proceedings were continued
due to the lack of counsel. This case does not present that situation. Thus, Solano,
Manley, and Millhouse are not directly controlling. See also former Rule 600(C)(3)(a)
(setting forth that time is attributable to a defendant if “delay at any stage of the
proceedings . . . . results from: (a) the unavailability of the defendant or the defendant’s
attorney”).
Roles, 116 A.3d 122 (Pa. Super. 5/8/15)
appeal pending, No. 334 WAL 2015 (filed 8/13/15)
SEARCH AND SEIZURE - BLOOD
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 pending, No. 517 EAL 2015 (filed 9/2/15)
90
SEARCH AND SEIZURE – BURDEN OF PROOF
The defendant bears the burden of persuasion with respect to showing an
expectation of privacy in the place searched. However, the defendant’s ability to meet
this burden is not a prerequisite to the Commonwealth’s initial burden of production, a
burden it must satisfy in all cases.
The Commonwealth may concede the privacy interest, choosing to contest only
the legality of police conduct; if it does so, the defendant’s “reasonable expectation of
privacy” need not be established. However, if the evidence of the Commonwealth, the
party with the burden of production, shows the defendant lacked such a privacy interest,
the burden of establishing the contrary is on the defendant.
A criminal defendant with standing to pursue a motion to suppress in this
Commonwealth has a right to compel the prosecution to prove its evidence was not
obtained in violation of his constitutional rights, without having to present evidence of his
own. If the Commonwealth shows he lacks a reasonable expectation of privacy, it need
do no more, absent proof to the contrary from the accused himself. Where the
Commonwealth cannot, or will not, present any evidence at all, the defendant’s motion
must be granted, regardless of whether he could ultimately establish a reasonable
expectation of privacy.
Enimpah, ___ Pa. ___, 106 A.3d 695 (12/29/14)
Link to: Saylor, J. concurring
SEARCH AND SEIZURE – CONSENT
Defendant was a passenger in a vehicle which was lawfully stopped for
speeding. Trooper Jared Bromberg obtained the driver’s license and registration, and
asked the driver to exit the vehicle. Trooper Bromberg observed the driver “moving
around excessively,” “overtalking” and noticed that the driver was “overly apologetic”
during the stop.
When the driver was asked to step to the rear of the vehicle, Trooper Bromberg
then walked to the passenger side of the vehicle and asked the passenger, the
defendant, for his driver’s license. Defendant refused to answer the trooper’s questions
and did not make eye contact. Trooper Bromberg stated that in his experience, this type
of behavior is consistent with narcotics activity discovered during traffic stops.
Defendant eventually provided his information to Trooper Bromberg.
Trooper Bromberg ran both the driver and defendant’s information through both
NCIC and PENNDOT. Defendant came back with “numerous prior drug arrests.”
Trooper Bromberg issued a written warning for speeding and following too closely.
Trooper Bromberg returned the driver’s and the defendant’s paperwork to them.
Trooper Bromberg then told the driver that the traffic stop was complete and that he was
free to go. He told the driver “to be careful pulling away.”
The driver began walking back towards his car and the troopers walked towards
their patrol vehicle. Before Trooper Bromberg entered the patrol car, he turned around
91
and reengaged the driver. The trooper explained that he had approached his door and
the driver had reached the front driver’s side door by this time. He asked the driver if he
could ask him some more questions, and the driver said yes.
Trooper Bromberg asked the driver about his nervousness, and asked where he
had been coming from. He also asked about his relationship with defendant.
I asked him if I can ask him a few questions. He related yes. I
asked him about his nervousness, about him being very apologetic,
about moving around outside of the vehicle, how he knew the
passenger, where they were coming from.
The driver answered all of his questions. Trooper Bromberg then asked the driver for
consent to search the vehicle and all of its contents. The driver gave consent.
Defendant was asked to step out of the vehicle and was told that the driver had
given consent to search the vehicle. Defendant did not make eye contact with Trooper
Bromberg. Defendant exited the vehicle after Trooper Bromberg made a second
request.
When defendant exited the vehicle, he stuck his hands in his pockets. Trooper
Bromberg asked defendant to take his hands out of his pockets and keep his hands
visible, and he complied. Trooper Bromberg asked defendant if he had any weapons on
him, and defendant said no. Trooper Bromberg then asked defendant if he could frisk
him for officer safety. Defendant said yes.
Trooper Bromberg frisked defendant. When Trooper Bromberg felt defendant’s
right rear pocket, he felt a large amount of cash. When he asked defendant what it was
that he felt, defendant replied that it was cash. In defendant’s right front pocket, Trooper
Bromberg felt a “soft package” that based upon his experience and training, he believed
was bagged pills. He asked defendant what the object was and defendant said
“Oxycontin.” Trooper Bromberg ordered defendant to take the package out of his
pocket, and defendant complied. When defendant removed the item from his pocket,
Trooper Bromberg observed “clear, small Ziploc baggies.” He was familiar with these
bags from past arrests for narcotics and acknowledged that they are commonly referred
to as coin bags.
Trooper Bromberg then handcuffed defendant and placed him under arrest. A
search incident to arrest was performed and three bundles of cash held together with a
rubber band, a cell phone, four bags of cocaine, and four jars of crack cocaine were
recovered from defendant’s person. The amount of cash recovered amounted to
$1058.20. Trooper Bromberg immediately recognized the substance in the jars to be
crack cocaine, based upon past arrests.
When asked on cross-examination why he re-engaged the driver after issuing the
warning and walking back to his cruiser, Trooper Bromberg testified: “I took the totality
of the circumstances of the driver’s behavior, the passenger’s behavior, and the
passenger’s rap sheet.” Trooper Bromberg agreed with defendant’s counsel that he
possessed the information regarding defendant’s criminal record after running the
driver’s and defendant’s information and before ending the interaction based on the
initial traffic violation. Thus, when again asked why he re-engaged the driver, Trooper
Bromberg testified that “before I could ask for a consent to search, the driver has to feel
free to leave.” Explaining further, he stated: “Before the driver was – in order to get
consent, I had to turn it into a mere encounter.”
92
[Defendant’s counsel]: But in your mind, they weren’t really free to
leave because you were going to reengage. Weren’t you?
[Trooper Bromberg]: I made the decision, after I told them they
were free to go, that I was going to reengage him and ask him
questions.
[Defendant’s counsel]: And that was premeditated for legal
reasons. Yes?
[Trooper Bromberg]: Yes.
We conclude that the driver and defendant were subject to a second seizure. The
driver and defendant were stopped for a lawful detention resulting from the motor
vehicle code violations. Because the trooper had accomplished the purpose of the stop,
as indicated by his issuance of a warning and stating that the driver and defendant were
free to go, the driver would have been within his rights to drive away at that point.
Nevertheless, the trooper’s subsequent actions were inconsistent with his statement
that they were free to leave. After walking toward his cruiser, the trooper turned around
and returned to the driver’s vehicle, approached the driver, and began to ask the driver
additional questions. Moreover, when the trooper re-engaged the driver, the driver was
still standing outside of his vehicle. When a person is standing outside rather than inside
his vehicle, he is less likely to believe that he can actually leave the area by entering the
car and driving away.
Kemp, 961 A.2d 1247 (Pa. Super. 11/26/08) (en banc); Moyer, 954 A.2d 659 (Pa.
Super. 8/1/08) (en banc); appeal denied, 600 Pa. 754, 966 A.2d 571 (3/2/09).
Thus, even though the trooper advised the driver and defendant that they were
free to leave, the trooper’s actions would suggest to a reasonable person that such
advice was no longer operative. Indeed, the trooper testified that it was his intention to
re-engage the driver after ending the initial traffic violation stop. As such, we cannot
conclude that a reasonable person would feel free to leave the scene. When an
individual has been subjected to a valid detention and the police continue to engage
that person in conversation, the citizen, having been in official detention, is less likely to
understand that he has the right to refuse to answer questions or a search. Thus, we
conclude that the driver and defendant were not involved in a mere encounter with the
troopers at that point, but instead were subjected to a second investigative detention.
We conclude that the driver’s behavior of being overly apologetic or nervous is
insufficient to establish reasonable suspicion. Additionally, Trooper Bromberg
possessed the information regarding defendant’s criminal history prior to ending the
initial stop based on the traffic violation. Accordingly, such information could not serve
as the basis of reasonable suspicion for the subsequent interaction after the initial stop
ended. Moreover, Trooper Bromberg testified to having the intention of re-engaging the
driver after ending the initial traffic violation stop with the hopes of turning that
interaction into a mere encounter. Thus, we cannot conclude that the Trooper had
reasonable suspicion to justify the second investigative detention.
Ngyuen, 116 A.3d 657 (Pa. Super. 4/27/15)
93
SEARCH AND SEIZURE – CONSENT (THIRD PARTY)
Police officers were looking for a shaving kit, belonging to defendant, which
concealed a gun that was used in a robbery. Defendant’s girlfriend gave consent to the
police to search her residence for the shaving kit. The shaving kit was found and
searched. A handgun, ammunition and marijuana were found.
A homeowner who lacks access to, or control over, a guest’s private closed
containers also lacks the authority to consent to a search of them. The Commonwealth
presented no evidence at the suppression hearing that the girlfriend had mutual use of,
joint access to, or control of Perel’s baggage. To the contrary, Captain Jewell testified
that she denied having knowledge of the contents of Perel’s shaving kit.
The facts known to the police at the time of the search were such that an
objectively reasonable officer would have concluded that the girlfriend did not have
authority to consent to the search of Perel’s baggage. It was unreasonable for the
police to believe that she had the authority to consent to a search of a men’s shaving
bag or the two other pieces of luggage lying beside it. There were no markings, tags, or
other inscriptions to suggest that she had joint access to, or co-ownership of, Perel’s
baggage.
Perel, 107 A.3d 185 (Pa. Super. 12/23/14)
Link to: Olson, J. dissenting
appeal denied, ___ Pa. ___, ___ A.3d ___ (9/16/15)
SEARCH AND SEIZURE – CONTAINERS
The shooting deaths of Da'Shawna Gibson, defendant's ex-girlfriend and mother
of his child, and Michael Black, Gibson's supposed new paramour, were brought to the
attention of the Wilkinsburg Police Department by Brandy Clark, who convinced the
officers to enter and search the premises, where they discovered the bodies of Gibson
and Black in an upstairs bedroom. Based upon Clark's observations and identification of
defendant as the shooter, an arrest warrant for defendant was issued. The police
executed the arrest warrant at approximately 2:20 a.m. at defendant's mother's
residence.
Upon arrest, defendant was found in bed wearing only a pair of underwear.
Defendant was then handcuffed, and, given his state of undress, the arresting police
officers assisted him in getting clothed. They chose and placed upon him a pair of khaki
shorts. The two officers testified that they had found defendant's cellular telephone in
the pocket of the shorts after they were placed upon him, and as such, the cellular
telephone was seized incident to arrest. The suppression court did not find as credible
testimony that the officers gave a double homicide suspect an article of clothing to wear
with something as weighty as a cell phone in the pockets. This action would be contrary
to the safety of the officers, as the clothing could have contained a gun or other small
weapon, and contrary to police policy. Defendant's mother, who was present during the
arrest testified that the cellular telephone was located in the front of the television on the
94
left side next to defendant's bed. The suppression court found credible defendant's
mother's testimony. Based upon the testimony presented at the suppression hearing,
the court concluded that the telephone was situated on the nightstand next to the bed,
and not seized incident to arrest or within defendant's immediate control, and as such,
the seizure was impermissible.
On appeal, the Commonwealth argued that the phone was lawfully seized
pursuant to the plain view doctrine.
In Commonwealth v. Ellis, 541 Pa. 285, 662 A.2d 1043 (7/19/95), a police officer
seized a screwdriver from the defendant's vehicle. The officer testified that the
screwdriver was capable of making the pry marks the officer observed at the scene of
the crime. In addition, an eyewitness saw the defendant's vehicle at the scene of the
crime. The Supreme Court concluded that the circumstances were sufficient to lead a
person of reasonable caution to believe that the screwdriver was incriminating evidence.
In Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649 (2/16/10), the Supreme Court
held police properly seized a cell phone because police knew the victim had a cell
phone with him on the night of his murder and because police observed a blood-stained
cell phone in plain view during their search of the defendant's dorm.
The Commonwealth relied upon Commonwealth v. McEnany, 446 Pa. Super.
609, 667 A.2d 1143 (Pa. Super. 11/8/95), in which police found a cell phone during their
execution of a search warrant on the accused's van. Police were aware that the
accused used the van to drive to the victim's residence on the day of the murder. More
importantly, police were aware that the accused made a phone call to the victim's
residence on the day of the murder. Based on these facts, the McEnany court
concluded that police were justified in seizing a cell phone in plain view during their
execution of the search warrant.
In Ellis, Jones, and McEnany, police had specific evidence tying the seized
object to the crime under investigation. We do not believe the analysis in any of these
cases warrants reversal in the instant case. Here, unlike McEnany, police had no
evidence of a specific phone call. This case is unlike Jones in that the physical condition
of the cell phone did not link it to the crime under investigation, as did the blood-stained
phone in Jones.
Detective Perry testified that he was aware that defendant and the female victim
had a prior romantic relationship, and he suspected that he would find communication
between the two shortly prior to the murder. Perry did not articulate any specific basis
for his suspicion.
We disagree with the assertion that the removal of the battery from the cell
phone supports a different result in this case. In his affidavit of probable cause to search
the cell phone, Detective Kenneth Ruckel stated criminal suspects commonly remove
batteries from cell phones in order to avoid GPS detection. The physical condition of
the phone in this case does not justify a conclusion that its contents could be
incriminating.
Finally, the Commonwealth argued that police acted properly in seizing the cell
phone in order to ensure that defendant's mother would not have an opportunity to
delete information. Police did not have probable cause to believe that defendant's cell
phone contained incriminating evidence. The Commonwealth's exigent circumstances
95
argument lacks merit because the Commonwealth lacked probable cause to seize the
cell phone.
Wright, 99 A.3d 565 (Pa. Super. 8/29/14)
appeal denied, ___ Pa. ___, 116 A.3d 605 (5/27/15)
Juvenile was a passenger in a vehicle stopped as a result of an inoperable
driver’s side headlight. Officer Brian Barnes effectuated the traffic stop along with his
partner. After the driver of the car, Jordan Cox, provided several inconsistent answers to
questions regarding his travel, Officer Barnes asked him to exit the vehicle and step to
the rear of the automobile. At that time, Mr. Cox admitted that juvenile had been
smoking marijuana in the car. He also informed the officer that he was unsure if juvenile
had marijuana in a drawstring knapsack juvenile possessed in the vehicle. Officer
Barnes then removed juvenile from the car and questioned him. When he did so, he
noticed marijuana flakes on juvenile’s shirt and pants. He also detected an odor of burnt
marijuana.
Juvenile acknowledged that his bag contained marijuana and paraphernalia.
Officer Barnes then asked Mr. Cox for permission to search the car. Mr. Cox consented
to a search of the vehicle. Officer Barnes, in the process of searching the car, also
searched juvenile’s bag and found marijuana, rolling papers, a grinder, a scale, and a
glass smoking pipe. The bag was not on juvenile’s person, but was located within reach
in the backseat floor area behind the driver’s seat.
Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (4/5/99),
compels affirmance.
Interest of I. M. S., ___ A.3d ___ (Pa. Super. 9/8/15)
SEARCH AND SEIZURE - COURTHOUSE
The Erie County Courthouse had a single point of entry where all visitors were
screened as a security measure, pursuant to an administrative order entered by the
President Judge of the Erie County Court of Common Pleas. The order authorized the
Sheriff's Department to conduct reasonable searches, of persons and property entering
the courthouse, to enforce 18 Pa.C.S. § 913 which prohibits the possession of firearms
or other dangerous weapons in a court facility. The order defined "weapon" to include
"any knife, an explosive or incendiary device (whether real or hoax) or any object that is
designed[,] made or adapted for the purpose of inflicting bodily injury and any `weapon'
defined as such by the Pennsylvania Crimes Code." The order also stated: "All
packages, briefcases and other containers in the immediate possession of persons
entering the Courthouse property shall be subject to inspection." As defendant admits,
the government has a substantial interest in preventing people from bringing weapons
into court facilities. The court's administrative order furthered this interest by authorizing
the search of all visitors for weapons of any kind. This authorization included inspection
of any containers in the possession of a person entering the courthouse. If security
96
officials were unable to inspect containers, which might conceal weapons or other items
capable of causing injury, then the purpose of the search policy would be defeated.
When defendant entered the courthouse, he was required to place any loose items of
personal property in a plastic bin for inspection by a deputy sheriff. Among the items
Defendant placed in the bin was a plastic bottle labeled Anacin. Deputy Welch shook
the bottle and noticed it did not rattle as a normal bottle of pills would rattle, leading him
to believe there was something else inside the bottle. Deputy Welch then opened the
bottle and observed what appeared to be packages of crack cocaine inside. The search
of defendant and his property was consistent with the terms and purpose of the
administrative order.
The intrusiveness of the search was minimal. Defendant voluntarily brought an
Anacin bottle into a public facility where all members of the public were subject to a
routine search. Defendant did not have a reasonable expectation of absolute privacy in
the courthouse. Initially, the deputy sheriff merely shook the bottle. He opened the bottle
and examined its contents only after he shook the bottle, which strongly suggested the
bottle contained something other than Anacin pills. The bottle could have contained a
small weapon or substance used to inflict harm on others. The search was no more
intrusive than necessary to ensure public safety in the courthouse. The search also was
not performed as part of a criminal investigation. After finding the contraband, Deputy
Welch kept the bottle but did not detain defendant. Defendant was free to proceed past
the security area into the building.
Moreover, defendant was on notice he would be searched. A sign posted at the
courthouse entrance informed visitors they must pass through a metal detector, they
may be searched, and, "Any item that has the potential to cause harm will be
confiscated." Despite this warning, defendant decided to enter the courthouse and
placed the Anacin bottle in the bin for inspection.
Based on the foregoing, we conclude the inspection of defendant's bottle
constituted a reasonable search conducted in furtherance of the legitimate
administrative purpose of ensuring public safety in a courthouse.
Gillespie, 103 A.3d 115 (Pa. Super. 10/27/14)
SEARCH AND SEIZURE - CURTILAGE
In July 2009, Pennsylvania State Police Troopers Jeremy Carroll and Brian
Roberts were dispatched to the Carmans' residence to search for a man named Michael
Zita and a car bearing New Jersey license plates. The troopers were told that Zita had
stolen the car, was armed with two loaded handguns, and might have fled to the
Carmans' residence. Neither Roberts nor Carroll had been to the Carmans' property
before, and neither knew what Zita looked like. The troopers did not have a warrant to
search the Carmans' property nor did they have a warrant to arrest Zita.
The Carmans' house sits on a corner lot. The main street runs along the front of
the house and a side street runs along the left of the house, as viewed from the front. A
clearly marked path leads to the front door. There is no other marked path to the
Carmans' house. A stone parking area is located on the left side of the house, and a
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shed and carport, which the parties refer to as a "garage," are located in the Carmans'
backyard.
The Carmans also have a back deck that adjoins their kitchen area. Two sets of
stairs lead up to the deck, and a sliding glass door by the deck leads to the kitchen.
However, the Carmans testified that visitors use the front entrance when they come to
visit.
When the troopers arrived at the Carmans' home, Andrew and Karen Carman
were sitting in their kitchen with Karen Carman's sister; they were the only people
present at the home. Because there was no parking in front of the Carmans' house, the
troopers drove down the side street, passed numerous cars parked along the side of the
Carmans' house, and parked their cars at the first available spot, at "the far rear of the
property." The troopers then got out of their cars, entered the Carmans' backyard, and
headed toward the garage. Carroll purportedly took this route because he saw a light on
in the garage and thought someone might be there. He "poked [his] head in" the garage
"and said, Pennsylvania State Police," but "there was nobody in there."
Carroll thought the sliding door attached to the back deck of the house "looked
like a customary entryway." Thus, after searching the garage and finding no one there,
he and Roberts continued walking through the backyard and proceeded to the back
deck. As the troopers stepped onto the deck, Andrew Carman came out of the house.
Carman was belligerent and aggressively approached the troopers, asking, "Who the
fuck are you?" Given Carman's behavior, Carroll thought the man he was speaking with
might be Zita. Carroll informed him that they were looking for Zita and asked Carman to
identify himself. Carman refused to divulge his identity, made a quick turn away from the
troopers, and appeared to reach for his waist, bringing his hands outside the troopers'
view. Still unsure of Carman's identity, Carroll feared that Carman might be reaching for
a weapon. He, therefore, momentarily grabbed Carman's right arm. Upon seeing that
Carman was unarmed, he let go. Carman twisted and fell off the deck.
Karen Carman subsequently exited her house and came onto the deck with her
sister. The two women were screaming when they approached Roberts. Consequently,
Roberts ordered them to stand back and drew his Taser. Karen Carman asked the
troopers what was going on, and Carroll explained that they were looking for Zita and
asked her if they could search the house for him. She gave her consent and everyone
went into the house.
The troopers searched the Carmans' house and did not find Zita. The stolen
vehicle was not at the Carmans' residence, and the Carmans were not charged with any
crimes.
From the moment that Carroll entered the Carmans' backyard, he was in the
curtilage surrounding their house. It is undisputed that Carroll entered into the Carmans'
curtilage without a warrant, without consent, and without exigent circumstances. Carroll
argues that he nonetheless did not violate the Fourth Amendment because he entered
the Carmans' property while conducting a "knock and talk." As he correctly points out, a
"knock and talk" encounter is a permitted exception to the warrant requirement.
Accordingly, we assess whether this exception applies to this case.
Under the "knock and talk" exception, a police officer not armed with a warrant
may approach a home and knock, precisely because that is no more than any private
citizen might do. Needless to say, government officers cannot benefit from the "knock
98
and talk" exception simply because they knock on a door. For purposes of the Fourth
Amendment, a "knock and talk" is a brief, consensual encounter that begins at the
entrance used by visitors, which in most circumstances is the front door. A "knock and
talk" encounter must satisfy three requirements.
First, a police officer, like any visitor, must "knock promptly, wait briefly to be
received, and then (absent invitation to linger longer) leave." See Jardines, 133 S. Ct. at
1415.
Second, the purpose of a "knock and talk" must be to interview the occupants of
a home, not to conduct a search. See id. at 1416 n.4 ("[I]t is not a Fourth Amendment
search to approach the home in order to speak with the occupant, because all are
invited to do that. . . . But no one is impliedly invited to enter the protected premises of
the home in order to do nothing but conduct a search."). In Jardines, for example, the
officer's entry into the curtilage violated the Fourth Amendment because his "behavior
objectively reveal[ed] a purpose to conduct a search, which is not what anyone would
think he had license to do." 133 S. Ct. at 1417.
Third, a "knock and talk" encounter must begin at the front door because that is
where police officers, like any other visitors, have an implied invitation to go.
Although officers have a right to knock at the front door while executing a "knock
and talk," this right does not necessarily extend to the officers the right to enter
elsewhere into the curtilage.
In this case, Carroll cannot avail himself of the "knock and talk" exception to the
warrant requirement because he entered the back of the Carmans' property without
approaching the front door first. Carroll contends that the layout of the Carmans'
property "made the back door the most expedient and direct access to the house from
where the troopers had to park." While it may have been more convenient for the
troopers to cut through the backyard and knock on the back door, the Fourth
Amendment is not grounded in expediency. The "knock and talk" exception requires
that police officers begin their encounter at the front door, where they have an implied
invitation to go. This exception does not license officers to bypass the front door and
enter other parts of the curtilage based on where they park their cars. Because Carroll
did not knock on the Carmans' front door, but instead proceeded directly through the
back of their property, his intrusion cannot be justified as a "knock and talk."
Accordingly, Carroll's warrantless entry into the Carmans' curtilage violated the Fourth
Amendment as a matter of law.
Carman v. Carroll, 749 F.3d 192 (3rd Cir. 5/15/14)
BUT SEE:
The Third Circuit cited only a single case to support its decision that Carroll was
not entitled to qualified immunity—Estate of Smith v. Marasco, 318 F. 3d 497 (3rd Cir.
1/29/03).
To the extent that Marasco says anything about this case, it arguably supports
Carroll’s view. In Marasco, the Third Circuit noted that “[o]fficers are allowed to knock on
a residence’s door or otherwise approach the residence seeking to speak to the
inhabitants just as any private citizen may.” 318 F.3d, at 519. The court also said that,
“‘when the police come on to private property . . . and restrict their movements to places
visitors could be expected to go (e.g., walkways, driveways, porches), observations
99
made from such vantage points are not covered by the Fourth Amendment.’” Ibid.
(quoting 1 W. LaFave, Search and Seizure §2.3(f) (3d ed. 1996 and Supp. 2003)
(footnotes omitted)). Had Carroll read those statements before going to the Carmans’
house, he may have concluded—quite reasonably—that he was allowed to knock on
any door that was open to visitors.
The Third Circuit’s decision is even more perplexing in comparison to the
decisions of other federal and state courts, which have rejected the rule the Third Circuit
adopted here. For example, in United States v. Titemore, 437 F.3d 251 (2nd Cir. 2/9/06),
a police officer approached a house that had two doors. The first was a traditional door
that opened onto a driveway; the second was a sliding glass door that opened onto a
small porch. The officer chose to knock on the latter. Id., at 253–254. On appeal, the
defendant argued that the officer had unlawfully entered his property without a warrant
in violation of the Fourth Amendment. Id., at 255–256. But the Second Circuit rejected
that argument. As the court explained, the sliding glass door was “a primary entrance
visible to and used by the public.” Id., at 259. Thus, “[b]ecause [the officer] approached
a principal entrance to the home using a route that other visitors could be expected to
take,” the court held that he did not violate the Fourth Amendment. Id., at 252.
The Seventh Circuit’s decision in United States v. James, 40 F.3d 850 (7th Cir.
11/1/94), vacated on other grounds, 516 U.S. 1022, 115 S.Ct. 948 (1995), provides
another example. There, police officers approached a duplex with multiple entrances.
Bypassing the front door, the officers “used a paved walkway along the side of the
duplex leading to the rear side door.” 40 F.3d, at 862. On appeal, the defendant argued
that the officers violated his Fourth Amendment rights when they went to the rear side
door. The Seventh Circuit rejected that argument, explaining that the rear side door was
“accessible to the general public” and “was commonly used for entering the duplex from
the nearby alley.” Ibid. In situations “where the back door of a residence is readily
accessible to the general public,” the court held, “the Fourth Amendment is not
implicated when police officers approach that door in the reasonable belief that it is a
principal means of access to the dwelling.” Ibid. See also, e.g., United States v. Garcia,
997 F.2d 1273, 1279–1280 (9th Cir. 6/10/93) (“If the front and back of a residence are
readily accessible from a public place, like the driveway and parking area here, the
Fourth Amendment is not implicated when officers go to the back door reasonably
believing it is used as a principal entrance to the dwelling”); State v. Domicz, 188 N.J.
285, 302, 907 A.2d 395, 405 (9/20/06) (“when a law enforcement officer walks to a front
or back door for the purpose of making contact with a resident and reasonably believes
that the door is used by visitors, he is not unconstitutionally trespassing on to the
property”).
We do not decide today whether those cases were correctly decided or whether
a police officer may conduct a “knock and talk” at any entrance that is open to visitors
rather than only the front door. “But whether or not the constitutional rule applied by the
court below was correct, it was not ‘beyond debate.’” Stanton v. Sims, 571 U. S. ___,
___ , 134 S.Ct. 3, _, 187 L.Ed.2d 341, ___ (11/4/13) (per curiam) (slip op., at 8). The
Third Circuit therefore erred when it held that Carroll was not entitled to qualified
immunity.
Carroll v. Carman, ___ U.S. ___, 135 S.Ct. 348, 190 L.Ed.2d 311 (11/10/14)
100
SEARCH AND SEIZURE – EXPECTATION OF PRIVACY
A State conducts a search when it attaches a device to a person’s body, without
consent, for the purpose of tracking that individual’s movements. The State’s program
is plainly designed to obtain information. And since it does so by physically intruding on
a subject’s body, it effects a Fourth Amendment search.
That conclusion, however, does not decide the ultimate question of the program’s
constitutionality. The Fourth Amendment prohibits only unreasonable searches. The
reasonableness of a search depends on the totality of the circumstances, including the
nature and purpose of the search and the extent to which the search intrudes upon
reasonable privacy expectations. See, e.g., Samson v. California, 547 U.S. 843, 126
S.Ct. 2193, 165 L. Ed. 2d 250 (6/19/06) (suspicionless search of parolee was
reasonable); Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132
L.Ed.2d 564 (6/26/95) (random drug testing of student athletes was reasonable). The
North Carolina courts did not examine whether the State’s monitoring program is
reasonable—when properly viewed as a search — and we will not do so in the first
instance.
Grady v. North Carolina, ___ U.S. ___, 135 S.Ct. 1368, ___ L.Ed.2d ___ (3/30/15)
SEARCH AND SEIZURE – EXIGENT CIRCUMSTANCES
Police officers saw a revolver in the waistband of Mallory’s pants while Mallory
was standing on a public sidewalk outside a house where he lived on weekends.
Mallory refused the officers’ commands to stop and ran into the house. The officers
entered the house, without a warrant, and ordered all of the occupants outside while the
officers searched the house for Mallory. The officers found Mallory in a bathroom,
handcuffed him and arrested him for unlawful carrying of a firearm on the public streets
of Philadelphia. As the officers escorted Mallory from the house, one of the officers
found a revolver under an umbrella in the foyer behind the front door, which had swung
open into the house. Mallory was subsequently charged with a federal firearms offense.
It is undisputed that the officers had probable cause to believe that Mallory had
committed a crime and that exigent circumstances justified their warrantless entry into
the home and subsequent search for him. We must determine whether, after police had
located and secured Mallory, an exigency remained that justified Officer Hough's search
behind the door, which produced the revolver. The Government argues that two exigent
circumstances justified the search: first, that it was necessary to secure the firearm to
protect the safety of the officers and to prevent escape, and second, that it was
necessary to recover the weapon to prevent it from being moved and hidden while a
warrant was being procured.
The Government primarily contends that the search was justified by a need to
protect officer safety and to prevent Mallory's escape. In support of this argument, it
relies on Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (5/29/67). In
Hayden, police entered a home without a warrant after receiving a report that a man
101
who had just committed an armed robbery had run into the residence. Multiple officers
searched the basement, first, and second floors of the home, finding Hayden feigning
sleep in an upstairs bedroom. At the same time that Hayden was located, the officers
found a shotgun and a pistol in the flush tank of a toilet, ammunition in a bureau drawer
in Hayden's room, and evidence of the robbery in a washing machine. The Supreme
Court upheld the legality of the officers' entry into the home and their search, explaining
that
The Fourth Amendment does not require police officers to delay in
the course of an investigation if to do so would gravely endanger
their lives or the lives of others. Speed here was essential, and only
a thorough search of the house for persons and weapons could
have insured that Hayden was the only man present and that the
police had control of all weapons which could be used against them
or to effect an escape.
Id. at 298-99.
This case differs from Hayden because the gun was not found "prior to or
contemporaneous with" Mallory's arrest, but after the premises had been secured,
Mallory had been located and handcuffed, and as he was being led out the front door by
multiple officers. The suppression judge found that Mallory had already been
apprehended and handcuffed before Hough began looking for the gun, and that his
family members, except for his stepmother, were waiting outside the home. As the court
recognized, by the time Officer Hough decided to check behind the door, he and his
partner had conducted a thorough sweep of the premises and had determined that the
house did not contain any confederates who might aid Mallory in an escape or acts of
aggression.
We consider the First Circuit's decision in United States v. Lopez, 989 F.2d 24
st
(1 Cir. 3/25/93). There, officers responded to a report that a shirtless Hispanic male
wearing camouflage pants had threatened someone with a sawed-off shotgun. Officers
arrived and saw Lopez, who matched the description, outside. Ignoring the officers'
commands to halt, Lopez ran into the building and police followed. Lopez was
apprehended and handcuffed in a small bedroom, after which police began to search for
the shotgun. One officer entered an adjoining bathroom and saw that a ceiling tile was
missing. Standing on top of the toilet, the officer looked into the ceiling and saw a large
bag, which turned out to contain cocaine, as well as the butt of the shotgun. As the
officer climbed down off the toilet, the ceiling tiles collapsed and the shotgun fell to the
floor.
Recognizing that the "facts may press close to the outer limit of the Fourth
Amendment," the First Circuit upheld the legality of the search "[b]y a close margin." Id.
at 26-27. The officers had good reason to believe that a dangerous weapon was
nearby, and although Lopez himself, once handcuffed, did not present a danger, the
police "had no assurance that Lopez was acting alone . . . or that the apartment was
secure." Id. at 26. One of the officers testified to hearing the footsteps of multiple people
in the house, and the fact that the building was a dilapidated, multi-tenant structure
made it reasonable to believe that other people in the vicinity could obtain and use the
shotgun. Furthermore, the search was not particularly intrusive. Id. at 27 (observing that
102
"the officer saw the opening in the bathroom ceiling through an open door, entered the
empty room, and with little effort saw the butt of the weapon").
We can discern factors that will be useful for determining whether the search in
this case was justified by a reasonable belief that it was necessary to protect officer
safety. These factors may include, but are not limited to: how soon after the alleged
offense the search occurred; whether the alleged offense was violent in nature; whether
the search occurred prior to or contemporaneous with Mallory's apprehension; whether
the premises as a whole had been secured, or whether it was possible that unknown
individuals remained in the house; whether Mallory or any of his family members had
acted in an aggressive or threatening manner toward the police; whether other
members of the family were free to move about the house unsupervised by an officer;
how easily Mallory or a family member could have obtained and used the firearm; and
the degree of intrusiveness of the search.
By the time Officer Hough searched behind the door and under an umbrella to
find the gun, the police had secured Mallory, the family, and the home, and were in
control of the situation. Mallory was in handcuffs and was being escorted out of the
house by multiple officers. Although he had earlier fled arrest, there is no indication that
Mallory resisted either physically or orally once he was located in the bathroom. The
house had been thoroughly swept and there were no persons left unaccounted for who
might attack the officers by surprise. There is no evidence that Mallory's family
members posed a threat to the officers, or that they even knew the location of the gun.
Each of the family members except Delaine was outside on the porch, and Delaine, far
from being threatening, had actually attempted to assist the officers in apprehending
Mallory without violence by urging him to come out of the locked bathroom. The
Government makes the generalized assertion that police had not recovered the gun
they saw in Mallory's possession, and the family members were hostile to the police
action, but that hostility consisted primarily of two family members briefly protesting the
warrantless entry of their home in the middle of the night. There is no evidence that this
brief hostility continued, and the family was under police supervision.
The Government makes much of the fact that the gun lay in the path that the
officers took in escorting Mallory out of the house, a fact of which Mallory was aware but
the police were not, and that Mallory could have lunged for the hidden and very nearby
gun. This argument has some merit. But nonetheless, Mallory was handcuffed and
under the control of multiple officers and he had not — since coming under the officers'
control — acted violently or aggressively. Likewise, we recognize that Mallory's alleged
crime had taken place only minutes earlier and that the crime of unlawful possession of
a firearm, while not itself a crime of violence, could certainly lead the officers to
reasonably be concerned that their suspect could be dangerous. However, the officers'
securing of the premises and apprehension of Mallory were intervening events allaying
any imminent need to locate the gun.
The Government also argues that the search was justified by a need to prevent
the gun from being moved and hidden, in order to preserve evidence of the crime. The
exigent circumstances doctrine allows the police to engage in a warrantless search in
order to prevent the imminent destruction of evidence. We reject this argument for many
of the same reasons that we reject the Government's prior argument. The Government
presented no evidence that there was an imminent risk that a family member would
103
move the gun. As we noted above, there is no evidence that the family members even
knew where it was. In fact, the evidence of record suggests that every family member
but Delaine was under supervision outside the house, and Delaine had demonstrated
her compliance by cooperating with the officers. As the District Court noted, once
Mallory was secured speed was not essential and anyone else who could have
destroyed or hidden the gun was under police supervision. At that point, nothing
prevented the officers from continuing to control the residence and prevent the family
from finding and moving the gun until they could obtain a search warrant. See Illinois v.
McArthur, 531 U.S. 326, 331-32, 121 S. Ct. 946, ___,148 L. Ed. 2d 838, ___ (2/20/01)
(allowing police to prevent a man whom they had probable cause to believe had hidden
marijuana in his trailer, and which he would likely destroy if permitted, from reentering
his home for two hours while they obtained a search warrant).
If Lopez "press[ed] close to the outer limit of the Fourth Amendment," 989 F.2d at
27, then this case falls just outside it. We do not mean to underplay the dangers that
police officers may face when pursuing a suspect into an unfamiliar building.
Nonetheless, once the officers had secured the premises and apprehended Mallory, the
exigencies of the moment abated and the warrant requirement reattached.
United States v. Mallory, 765 F.3d 373 (3rd Cir. 9/3/14)
On October 25, 2012, at approximately 2:10 in the morning, Pennsylvania State
Troopers Andrew Mincer and William Ritrosky received information from a burglary
victim that a handgun stolen from her home was located in the shed behind defendant's
residence. The victim stated that her son observed the gun in the shed, and told her it
was traded to pay off a debt. After receiving this information, Troopers Mincer and
Ritrosky went immediately to defendant's residence to investigate, arriving at
approximately 3:15 A.M.
Defendant lived in a mobile home park. His trailer was situated perpendicular to
the road. The door of the home, located on the side of the trailer, was accessible only
by walking half the length of the building, through defendant's yard. Defendant's yard
was surrounded by a chain-link fence and closed gate. "Private Property" and "Beware
of Dog" signs were posted on the fence.
Upon arrival, the troopers observed the glow of lights and a television through a
window immediately to the left of the door. The window had blinds, but was not
completely closed due to the presence of a window fan. While Trooper Ritrosky
knocked on the mobile home's door, Trooper Mincer peered through the window beside
the door and was able to observe defendant and another man sitting on a couch
immediately under the window. Trooper Mincer was able to observe a large knife, what
he believed to be heroin packets on a coffee table, and a rifle in the corner of the room.
Further, Trooper Mincer reported smelling a chemical smell consistent with burnt
synthetic drugs.
After defendant answered the door, Trooper Ritrosky explained why they were
there. Trooper Mincer then asked defendant whether anyone else was in the home.
Defendant responded "no." Based on his earlier observations, Trooper Mincer
performed a protective sweep of the trailer, during which he detained two adult
104
individuals and one child, and observed a large knife, a rifle, and assorted packaged
drugs in plain view. A search warrant was obtained. Following the execution of the
warrant, the state police seized from defendant's home various quantities of narcotics,
various quantities of prescription medication, multiple scales, a number of laptop
computers, three safes, various indicia of drug use and trafficking, as well as other
contraband.
The record establishes that defendant's yard was fenced and gated at the time of
the incident. The fence contained numerous signs which indicated that the area was offlimits to the general public. Based on this evidence, we agree with defendant that the
side yard of his home constituted the curtilage of his property and was subject to a
reasonable expectation of privacy.
It is well established that probable cause alone will not support a warrantless
search or arrest in a residence .unless some exception to the warrant requirement is
also present.. In determining whether exigent circumstances exist, a number of factors
are to be considered, such as (1) the gravity of the offense, (2) whether the suspect is
reasonably believed to be armed, (3) whether there is above and beyond a clear
showing of probable cause, (4) whether there is strong reason to believe that the
suspect is within the premises being entered, (5) whether there is a likelihood that the
suspect will escape if not swiftly apprehended, (6) whether the entry was peaceable,
and (7) the time of the entry, i.e., whether it was made at night. These factors are to be
balanced against one another in determining whether the warrantless intrusion was
justified.
In this case, a balancing of the factors demonstrates a lack of exigency for a
warrantless search of defendant's property. Assuming the gravity of the offense of
possession of a potentially stolen gun is high, the officers had no reason to believe the
occupants of the home were aware of the officers' presence such that destruction of
evidence, escape, or violence was imminent. More importantly, the time of day of the
warrantless search weighs heavily in favor of defendant's contention that the officers
should have obtained a search warrant.
There was no exigency or urgency established by the testimony that would
support the Commonwealth's argument that this search could not wait until morning or
until a warrant was procured. The record does not indicate when the victim's home was
burglarized, or by whom, just that the victim's son reported to her that an allegedly
stolen gun was located in a shed on defendant's property. Though the tip and belief that
defendant was in possession of a firearm arguably provided probable cause to search
the shed, and possibly defendant's home, these factors do not outweigh the reality that
no exigency existed to justify a warrantless nighttime search. The observations of
Trooper Mincer through the window cannot support the original search for the firearm,
nor do they negate the officers' illegal entry onto defendant's property.
Bowmaster, 101 A.3d 789 (Pa. Super. 9/17/14)
Link to: Olson, J. concurring
Two police officers were immediately dispatched to investigate a domestic
situation that involved a man hitting a woman, and were informed on their way that loud
105
screaming had been heard from inside the residence. The officers arrived at the
residence shortly before 8:00 a.m., but all was quiet. They knocked at the front and
back doors, but no one answered. They opened an unsecured window in the front of the
house, announced themselves and listened for any response, but heard nothing. The
officers radioed police dispatch for information regarding the 911 caller or for the phone
number within the residence. The officers were told by dispatch that the 911 call had
come from a pay phone and that no phone number was listed for the address. The
officers heard a phone ringing inside but the call was not answered. Responding to what
the officer described as a "gut feeling" that someone inside might be injured or
otherwise in need of assistance, one officer entered the residence through an
unsecured window, unlocked a deadbolt on the front door, and admitted the other
officer. The officers continued to announce themselves and their reason for being there,
and proceeded to conduct a floor-to-floor, room-to-room search for any injured person
who might have been in need of assistance.
The officers made their way to the rear bedroom on the third floor, where they
discovered the victim, a woman who had been severely beaten and who subsequently
died. The police then secured the scene and obtained a search warrant for the
residence.
It is widely recognized that the potential for imminent physical harm in the
domestic context implicates exigencies that may justify a limited police intrusion into a
dwelling. Commonwealth v. Wright, 560 Pa. 34, __, 742 A.2d 661, 664-65 (12/23/99)
(collecting cases). The exigencies of domestic abuse cases present dangers that, in an
appropriate case, may override considerations of privacy. Moreover, courts have
recognized the combustible nature of domestic disputes, and have accorded great
latitude to an officer's belief that warrantless entry was justified by exigent
circumstances when the officer had substantial reason to believe that one of the parties
to the dispute was in danger.
We do not suggest that domestic abuse cases create a per se exigent need for
warrantless entry; rather, a reviewing court must assess the totality of the
circumstances presented to the officer before the entry in order to determine if exigent
circumstances relieved the officer of the duty to secure a warrant. We do recognize,
however, that the police have a duty to respond seriously to reported domestic conflict
situations, and in doing so, they must be accorded some latitude in making on-the-spot
judgments as to what actions to take and what actions are reasonably necessary to
protect themselves and potential victims of abuse.
The anonymity of a call reporting domestic abuse is not fatal to establishing the
exigency necessary to enter a dwelling without a warrant under the totality of the
circumstances. Here, the 911 call reporting domestic violence contained the fairly
specific details that a man was beating a woman within a specifically identified
residence, and a separate report indicated that screaming could be heard emanating
from within that residence. Yet, when the officers arrived at the scene shortly before
8:00 a.m. on that Sunday morning, approximately three minutes after the 911 call had
been received, no one answered the door, and no sound could be heard except the
unanswered ringing of a telephone within the residence.
One reason courts have recognized that deference to officers' on-the-spot
reasonable judgments is particularly warranted in domestic disputes is that the signs of
106
danger may be masked. In domestic violence situations, the victim often remains silent,
or does not seek police intervention, or lies to protect the abuser for fear of retaliation.
We also recognize, of course, that a domestic abuse victim who has been severely
injured may be unable to communicate in response to an officer's investigatory efforts
outside the home. Thus, the apparent exigencies of a domestic disturbance situation
are not necessarily negated when officers find a quiet residence while promptly
responding to a report of violence. Whether the actions of the police are objectively
reasonable is to be judged by the circumstances known to them.
Here, to be sure, one explanation for the silence that confronted the officers upon
their arrival and their initial attempt to confirm or refute the 911 call could have been
because the 911 call was in error or not genuine. However, the non-responsiveness
also could reasonably have been an indication that the 911 call was legitimate, and the
silence was due to the victim's physical incapacity, intimidation by a still-present abuser,
or fear of seeking police intervention. Because the report of domestic violence was
reasonably specific, and because domestic abuse cases involve inherent exigencies,
we conclude that the officers' entry into the residence without a warrant to search for an
injured or otherwise non-responsive domestic abuse victim was objectively reasonable
under the totality of circumstances. Indeed, the officers would have been remiss in their
duty had they abandoned the scene simply because no one answered the door. We
agree that erring on the side of caution is exactly what we expect of conscientious
police officers where rescue is the objective, rather than a search for crime, and we
should not second-guess the officers' objectively reasonable decision to enter and
search a residence without a warrant in such a case.
We reiterate that we do not recognize a per se exigency in domestic abuse
situations, and we caution that entry and search in the context of a rescue is limited to
proper police attempts to find a person in need of assistance, based on a reasonable
belief that such a person will be inside the area searched. A reasonable belief must be
based on the totality of the circumstances, which may include the exigencies inherent
when a report of domestic violence is being promptly investigated. A rescue search is
not a search for evidence of criminal activity; here, the officers clearly testified that their
only reason for entering the residence was their concern for the safety of a potential
domestic abuse victim. The police did not search for any weapons or other evidence of
criminal activity. The subsequent search for evidence of criminal activity was conducted
only after and pursuant to the issuance of a search warrant after the police discovered
the unresponsive victim and had her transported to a hospital trauma unit.
The officers' entry into the home was justified under the recognized "persons in
immediate need of assistance" exigency exception to the warrant requirement.
Davido, ___ Pa. ___, 106 A.3d 611 (12/15/14)
Link to: Castille, C.J. concurring
Link to: Saylor, J. concurring
Trooper Jeffrey Brautigam was conducting surveillance outside the Hawksworth
Garden Apartments in Greensburg, Westmoreland County. Approximately one and onehalf hour earlier, two other troopers had been surveilling the apartments and witnessed
107
drug sale activity. Those officers followed the buyer and performed a traffic stop. The
driver was found with heroin and indicated that he bought the heroin from a woman at
the Hawksworth apartments.
Trooper Brautigam, as part of his surveillance, observed a woman exit Building B
of the apartments and meet a series of individuals in the parking lot. He indicated that
he had seen hundreds of drug transactions transpire, and he described the woman’s
interactions with these individuals as drug transactions. Trooper Brautigam testified that
the female, later identified as Kristin Weightman, would exit the apartment building and
a car would pull into the parking lot. Weightman would then hand something to the
driver or passenger and the passenger would hand something to her. The car would
then leave, and Weightman would return to the building. This occurred three times.
At the time, Trooper Brautigam also had information that another individual,
Chauncy “Gunner” Bray, was in the area with Weightman. Trooper Brautigam knew
Bray from past encounters and was told that Bray may be in possession of a firearm.
Trooper Edward Malloy witnessed which apartment Weightman entered and relayed
that information to Trooper Brautigam. Trooper Brautigam and Trooper Malloy then
watched Weightman meet a white male, later identified as Kurt McCamley, and return to
the apartment building. Police intended to question Weightman before she entered the
apartment, but were unable to intercept her.
Trooper Brautigam elected to knock on the door to speak with Weightman. As
the two officers approached, Trooper Brautigam smelled burning marijuana emanating
from inside the apartment. Trooper Brautigam knocked on the door and an individual
asked who it was. He responded that he needed to speak to the renter and heard
rumbling inside. He then identified himself as the police and asked that someone open
the door. Those inside would not answer the door, and, according to Trooper
Brautigam, they became quiet. After twenty to thirty seconds, the police kicked open the
door. Entry occurred at approximately
12:30 in the afternoon. Bray attempted to flee and toss money away but was captured.
Four other males were inside, including defendant, as were Weightman and McCamley.
In plain view was a plastic bag with nine bricks of heroin, money on the sofa, and burnt
marijuana blunts on a window sill.
At the time of Pennsylvania’s early constitutions, it was generally recognized by
the people that an unreasonable search and seizure occurred unless a specific warrant
authorized the search or seizure. Hot pursuit after observing a felony was one exception
to the warrant requirement. Further, it was unreasonable to enter a home with or without
a warrant without knocking and announcing. No “destruction of evidence” exception to a
specific warrant requirement before entering a home was regularly claimed at the time
of the founding.
In light of Melendez, 544 Pa. 323, 676 A.2d 226 (5/22/96); Demshock, 854 A.2d
553 (Pa. Super. 7/8/04); and Waddell, 61 A.3d 198 (Pa. Super. 11/21/12), and
notwithstanding Johnson, 68 A.3d 930 (Pa. Super. 4/23/13), we decline to jettison longstanding Pennsylvania constitutional law that prohibits actual police-created exigencies
to justify a warrantless arrest. Nonetheless, we do not find that, under the facts of this
case, the police created an exigency since their actions were consistent with the limited
authority afforded peace officers at the time of the passage of Pennsylvania’s 1776 and
1790 constitutions.
108
Here, police personally observed the drug transactions. They then pursued the
culprit, knocked, asked to speak to the renter, and announced that it was police before
entering. These actions are consistent with allowable, i.e., reasonable, 18th century
common law practice. Police only forcibly entered after the renter refused to open the
door, again a practice not prohibited by the 1776 and 1790 constitutions. Further, police
did not uncover the drugs in question by undertaking an overbroad and prohibited
search of the entire residence on the grounds that it was incident to arrest. Rather, the
drugs were seized in plain view.
Haynes, 116 A.3d 640 (Pa. Super. 4/22/15)
appeal pending, No. 195 WAL 2015 (filed 5/20/15)
On February 16, 2013, at approximately 7:00 a.m. That day, Officer Jonathan
Gallagher, was dispatched to America's Best Value Inn located in Pottstown,
Montgomery County for a report of a domestic assault. When the victim called 911, she
sounded "extremely hysterical." The victim stated she had been assaulted by a black
male named "Flip," and that the assault had occurred at the Inn. The victim also stated
that she could not give her location. The victim stated that the assault occurred in Room
115 of the Inn. The victim also stated on her call that she had been in Rooms 115 and
215 at the Inn.
When officers arrived at Room 115, the victim was not discovered. The
occupants of that room directed officers to Room 210. However, the manager at the Inn
indicated that room 210 was vacant. Since the victim was not located yet, Officer
Gallagher asked the manager to open the door to room 210. It was apparent that room
210 was in fact vacant
The officers also learned that Flip had another room at the Inn: Room 215. At this
point, the victim still had not been located. As a result, the officers proceeded to Room
215.
Officer Gallagher proceeded to room 215 and although the curtains were drawn,
they were open enough that he could see there was a light on. He began to knock very
loudly and announced "police" in his attempt to locate the victim. After doing this several
times, to no avail, Officer Gallagher asked the manager to open the door. He then
located a female in the bathroom. She was not the assault victim, however while he was
in room 215, Officer Gallagher heard through transmission that the victim had been
located.
Officers had a report that the victim was no longer at the Inn, and the officers
also had a report that the victim and "the male" were still in a room at the Inn. The victim
was less than forthcoming with information regarding her whereabouts due to her
concern about an outstanding probation violation warrant. The victim also told the 911
dispatcher that she did not know where she was. Moreover, Officer Gallagher provided
the following explanation on cross-examination as to why he did not discredit the
information that the victim was at the Inn based solely on the victim's statement that she
was no longer at the Inn:
Again, because sometimes people lie to me. I have a victim to find.
I need to make sure she's okay. It's similar to when people have
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911 hang-ups. They say everything is okay. We still go to make
sure that someone is not holding a gun to their head saying you
better tell them everything is okay.
Courts have recognized the combustible nature of domestic disputes, and have
accorded great latitude to an officer's belief that warrantless entry was justified by
exigent circumstances when the officer had substantial reason to believe that one of the
parties to the dispute was in danger. Moreover, courts have recognized that deference
to officers' on-the-spot reasonable judgments is particularly warranted in domestic
disputes. Thus, despite this conflicting testimony, we conclude that under the totality of
the circumstances, the police were justified in their warrantless entry of Room 215.
Caple, 121 A.3d 511 (Pa. Super. 7/24/15)
SEARCH AND SEIZURE – INFORMANT (ANONYMOUS)
Detective Tanye Curry testified that he had been a police officer for 18 years and
an officer for the City of Pittsburgh for approximately seven years. On December 15,
2012, Detective Curry was working an approved off-duty detail for the City of Pittsburgh
at the Serenity Club, an after-hours club located in Zone 5 of the City of Pittsburgh.
Detective Curry described the location of the club as a high-crime area. According to
Detective Curry, security was needed at the Serenity Club as there were prior incidents
at the club, including fights, shootings and homicides. The patrons who went to the club
included parole and probation violators. Detective Curry worked the security detail at the
Serenity Club for almost four years. On the night in question, the club was letting out at
approximately 3:30 a.m. Detective Curry and two other officers assigned to the security
detail stood in different areas around the perimeter of the club “to make sure nothing
occur[ed].” At that time, a patron of the club stopped Detective Curry and told him there
was a male on the corner with a firearm. The patron went on to give Detective Curry a
description and said this person was wearing a black hoodie, black jeans, and had a
long beard. The patron actually pointed the person out to Detective Curry on the corner.
Although Detective Curry did not know the informant’s name, the detective saw him on
a regular basis as the informant was at the club “every single weekend.”
Defendant was the man to whom the informant pointed and, at the time he was
pointed out to Detective Curry, defendant was approximately 75 feet away from where
Detective Curry stood. Defendant was leaning against the corner of a building facing the
front entrance of the club. In light of this information, Detective Curry approached the
other two officers and told him what the informant had said. The three officers, all
dressed in full uniform, began to approach defendant from the side, at which time
defendant put his hands in his hoodie pocket and started to walk away.4 That is when
defendant was given the command to stop. Although the officers were all yelling to
defendant to “stop”, defendant looked back at the officers and continued to walk away.
At that point, Detective Curry pulled his firearm out and held it at the side of his leg.5
Defendant walked approximately 50 feet with the officers walking behind him telling him
to stop. At this point, defendant finally stopped and turned toward the officers. Detective
Curry ordered defendant to remove his hands from the pocket of his hoodie sweatshirt
110
at which time Detective Curry could see the imprint of a gun through the black
sweatshirt. Defendant was searched and an operational, .45 caliber Taurus firearm was
found in the front pocket of his hoodie sweatshirt.
4The record on this fact is contradictory. On direct examination,
Detective Curry testified that as the officers first approached
defendant, “he was facing toward us. As we started walking toward
him, getting closer to him, he turned and began to walk away from
us.” It was on cross-examination that Detective Curry said that the
officers approached defendant from the side as he was staring at
the club.
5The
evidence is unclear as to whether the officers had their
weapons pointed at defendant. Detective Curry testified that he had
his weapon unholstered and out by his side but it was not pointed
at defendant. Detective Fred Wright, one of the other officers on
duty that night, testified that he and Officer Kenny, the third officer,
had their guns “drawn” as they approached defendant.
Similar to the facts in Foglia, 979 A.2d 357 (Pa. Super. 7/21/09) (en banc),
appeal denied, 605 Pa. 694, 990 A.2d 727 (3/3/10). Detective Curry’s decision to
approach and investigate defendant was prompted by a tip. However, unlike the tip in
Foglia which was received over the police radio and completely anonymous, Detective
Curry received his information in person from an individual who frequented the Serenity
Club on a weekly basis and whom Detective Curry saw regularly. We acknowledge that
Detective Curry did not know the tipster’s name; however, that fact does not make the
tip purely anonymous and one that lacked any indicia of reliability.
The facts of this case are more akin to the situation in Williams, 980 A.2d 667
(Pa. Super. 9/4/09), appeal denied, 605 Pa. 700, 990 A.2d 730 (3/9/10). The tip in this
case is even more reliable than the tip in Williams, which this Court deemed sufficient to
support reasonable suspicion. In Williams, the only evidence was that an Hispanic male
told Officer McGinnis that Williams had a gun. There was no further description of the
tipster or any indication that the officer had ever seen him before. In this case, however,
Detective Curry testified that he had seen the tipster on a regular basis as he was a
patron at the club every weekend. Like in Williams, Detective Curry had the opportunity
to observe the tipster’s demeanor and assess his credibility in light of his 18 years of
experience as a police officer. Thus, the tip given to Detective Curry by a regular patron
of the Serenity Club was a legitimate factor upon which the officer could rely in
determining that there was reasonable suspicion to stop defendant.
Moreover, there were additional facts that must be considered in viewing the
totality of the circumstances from the eyes of the officers in this case. The Serenity Club
was in Zone 5 of Pittsburgh – an area known as a high-crime area. More importantly,
the club itself was known to be frequented by parole and probation violators and had
been the site of prior fights, shootings and homicides. Thus, there was a credible basis
from which the officers could infer that the people in and near the club had weapons.
Detective Curry and the other officers were specifically assigned to the task of patrolling
the area around the Serenity Club to make sure things remained calm and peaceful.
The events in this case happened at 3:30 a.m., when the after-hours club was closing
111
and the people were leaving. Additionally, as the officers in full uniform started to
approach defendant from the side (but before the commands to stop were issued),
defendant started to walk away. It is reasonable to infer that defendant saw the officers
approaching and turned and walked away in an effort to evade them. Although each of
these factors, standing alone, may not be sufficient to establish reasonable suspicion,
taken in their totality, they are sufficient to have reasonably led the officers to believe
that criminal activity was afoot so as to justify the investigative detention of defendant.
In denying the suppression motion, the trial court not only relied on the facts of
the high-crime status of the neighborhood and the club, and Detective Curry’s familiarity
with the tipster, but it also relied on the evidence of defendant’s evasiveness in refusing
to stop after being ordered to do so and his unusual hand movements in refusing to
remove his hand from his pocket where the gun could be seen, and then returning his
hand to the pocket with the gun. We do not believe that that evidence should have been
considered in determining whether the officers had reasonable suspicion to detain
defendant. As noted, supra, the officers effectively detained defendant at the moment
that they commanded him to stop. Thus, only the factors apparent to the officers at that
time can be considered in determining whether they had reasonable suspicion to
believe that criminal activity was afoot. As defendant’s action of continuing to walk away
from the officers after being told to stop, and his hand movements with respect to the
gun, occurred after defendant was commanded to stop, that evidence cannot serve as a
basis to support the denial of the suppression motion. However, as there were sufficient
factors to support an investigative detention at the time that defendant was commanded
to stop, it was harmless error on the part of the trial court to refer to those additional
factors.
Ranson, 103 A.3d 73 (Pa. Super. 10/8/14)
Link to: Bender, J. dissenting
appeal denied, ___ Pa. ___, 117 A.3d 296 (5/13/15)
SEARCH AND SEIZURE – PLAIN VIEW, PLAIN FEEL
In the early morning hours of May 1, 2013, Pittsburgh police officers conducted a
traffic stop based upon their observation of an inoperable rear brake light on the vehicle.
The cruiser's dash cam was activated a few moments before the stop took place and it
recorded the entire incident. Officer Nathan Auvil testified that defendant, a passenger
in the vehicle, stepped out of the rear passenger side door and proceeded to walk
toward the police car. When defendant was immediately ordered to get back in the
vehicle, he went back to it but he did not get into the car.
Officer Auvil believed that defendant was armed as he observed defendant
"adjusting his pants" and "looking around". Based upon Officer Auvil's experience and
training [his second drug arrest], along with his observation that defendant was
"generally just moving his clothing more than what would be usual" and "looked
nervous," Officer Auvil conducted a Terry frisk.
Q. And what did you feel inside?
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A. I felt a large baggie with what felt to be a powder like substance
inside and the baggie was knotted at the top.
Q. Okay. And based on your training and education, experience, et
cetera what did you believe you were feeling?
A. I thought it was packaged narcotics.
Q. Okay. Did you have to manipulate it in anyway upon — when
you first felt it, did you have to manipulate it in any way to draw that
conclusion?
A. I knew immediately, however I did manipulate further because
the item was so large I wanted to make sure there was nothing else
behind that item.
Q. Okay. Can you describe the pat down, are you squeezing the
clothing or are you just touching it? How is it that you are doing it as
you go down the body?
A. More so touching but I like to make sure I get a good pat down,
make sure I don't miss anything.
Q. Okay. And this is what you felt?
A. Yes.
Q. What could have been behind the baggie that you thought might
be a weapon?
A. Possibly a small firearm, maybe a knife.
On cross examination, Officer Auvil agreed that he engaged in a "fair amount of
manipulation," but justified this due to his uncertainty of whether or not there was
something else in the pocket. Officer Auvil stated that he knew the object he felt was not
a weapon and that he asked defendant what was in his pocket. At this point, Officer
Auvil did not remove the items from defendant's pocket but turned defendant over to
Officer Cyprowski while Officer Auvil proceeded to pat-down the driver who had come
out of the vehicle. Officer Auvil advised Officer Cyprowski of the item he had felt in
defendant's pocket.
Officer Cyprowski testified that he handcuffed defendant and performed a "pat
down on the immediate area where Officer Auvil had felt the packaged narcotics" and
that it was immediately apparent to Officer Cyprowski that it was controlled substances.
At that time, Officer Cyprowski recovered what was later determined to be 38 knotted
baggie corners of powder cocaine. Following the pat-downs, the officers recovered a
firearm from the vehicle.
Once the initial pat-down dispels the officer's suspicion that the suspect is armed,
any further poking, prodding, squeezing, or other manipulation of any objects
discovered during that pat-down is outside the scope of the search authorized under
Terry. Where an officer needs to conduct some further search to determine the
incriminating character of the contraband, the search and subsequent seizure is not
justified under the plain feel doctrine and is unlawful. An officer's subjective belief that
an item is contraband is not sufficient unless it is objectively reasonable in light of the
facts and circumstances that attended the frisk.
The “plain feel” doctrine permits a police officer to seize contraband detected
through the officer's sense of touch during a frisk if (1) the officer is lawfully in a position
to detect the presence of contraband, (2) the incriminating nature of the contraband is
113
immediately apparent from its tactile impression, and (3) the officer has a lawful right of
access to the object. Immediately apparent means that the officer readily perceives,
without further exploration or searching, that what he is feeling is contraband.
The video clearly depicted the officer repeatedly manipulating defendant's
pocket. This is one of those rare cases where a dash cam video, which was made a
part of the certified record, can contradict a trial court's factual finding often based on its
credibility determinations. While Officer Auvil testified he immediately knew that the
pocket contained narcotics, he explained that he then had to "manipulate further
because the item was so large I wanted to make sure there was nothing else behind it."
The video clearly rebutted this statement. In fact, Officer Auvil asked defendant "What's
this?" while squeezing and tugging the pocket. Further, on cross-examination, the
officer acknowledged that he knew the object he felt was not a weapon and that he
never felt anything apparent to be a weapon during the pat-down.
Given the officer's admitted manipulation, we find that the nature of the objects in
defendant's pocket could not have been immediately apparent. While Officer Auvil
testified that he felt something "soft, granular," that led him to believe defendant's
pocket contained narcotics, he became aware of this from an unconstitutional
squeezing, rubbing, and manipulation. Simply put, we conclude that the officer's tactile
impression of the object was not immediately apparent.
Griffin, 116 A.3d 1139 (Pa. Super. 5/12/15)
SEARCH AND SEIZURE – ROADBLOCK
On November 19, 2009, police in the City of Pittsburgh set up a checkpoint in
conjunction with the Pennsylvania Department of Transportation's “Click It or Ticket”
program designed to ensure compliance with seatbelt and motor vehicle equipment
requirements. The police conducted the checkpoint on the inbound side of Banksville
Road near the intersection with Crane Avenue, a location previously identified by police
as a high traffic volume and high accident location appropriate for a safety checkpoint.
In addition to prior advertising on billboards and in radio advertisements, signs erected
approximately seventy-five yards before the safety checkpoint alerted motorists to the
approaching checkpoint.
Defendant entered the checkpoint at approximately 9:05 p.m. Loud noises
coming from the exhaust system of defendant's white Dodge Caravan immediately drew
police attention. The police directed defendant to pull into a designated contact area to
check the vehicle for violations. During their subsequent interaction with defendant,
police suspected he may have been under the influence of marijuana due to his failure
to respond, his trance-like state, and a particularly pungent odor of marijuana emanating
from defendant's person and his vehicle. Based on these observations, the police asked
defendant to participate in field sobriety testing, which he failed. Ultimately, the police
determined defendant was incapable of safely driving, and placed him under arrest for
DUI. A search incident to the arrest yielded a white porcelain pipe in defendant's right
front jacket pocket, which police believed was used to smoke marijuana. Following his
arrest, defendant submitted to blood testing, which tested positive for marijuana.
114
Substantial compliance with the Tarbert/Blouse guidelines is all that is necessary
to minimize the intrusiveness of a roadblock seizure to a constitutionally acceptable
level. However, where police do not comply with the guidelines in establishing a
checkpoint, the trial court should suppress evidence derived from the stop, including the
results of field sobriety and blood alcohol testing. Like DUI checkpoints, checkpoints
established to inspect vehicle safety and seatbelt usage are lawful in Pennsylvania,
provided that the checkpoint complies with the procedural requirements outlined by the
Tarbert/Blouse guidelines.
Regarding the evidence the Commonwealth must put forth at a suppression
hearing to justify the selection of a DUI checkpoint, this Court has explained that to
ensure that the intrusion upon the travelling public remains minimal, we cannot accept
general testimony elicited at a suppression hearing as proof of “substantial compliance”
with the Tarbert/Blouse guidelines. Rather, at the very least, the Commonwealth must
present information sufficient to specify the number of DUI-related arrests and/or
accidents at the specific location of the sobriety checkpoint. If the Commonwealth fails
to introduce evidence concerning the number of DUI-related arrests and/or accidents in
explaining the choice of a checkpoint's location,7 then the checkpoint will be deemed
unconstitutional.
7We note that, in the past, we required the Commonwealth to put
actual documentation explaining police determinations as to
checkpoint details such as location into evidence. See
Commonwealth v. Trivitt, 437 Pa. Super. 432, 650 A.2d 104
(11/16/94) (holding the introduction of documentary evidence relied
upon in determining location of checkpoint required to satisfy
Tarbert/Blouse guidelines). We have since relaxed that requirement
to allow the Commonwealth to introduce such evidence via
testimony. See Ziegelmeyer. 454 Pa. Super. 330, 685 A.2d 559
(10/31/96) (requiring same specific information as to location of
specific checkpoints to satisfy Tarbert/Blouse guidelines, but
repudiating the documentary evidence requirement of Trivitt).
To satisfy the selection of the checkpoint time and location portion of this burden,
the Commonwealth presented only the testimony of Sergeant Richard Howe of the
Pittsburgh Police. Sergeant Howe testified that he ordered the November 19, 2009,
Banksville Road seatbelt/safety equipment violation checkpoint as part of a "statewide
public safety" campaign. However, Sergeant Howe provided no testimony regarding the
number of prior safety violations and/or accidents at the specific checkpoint location in
question. Instead, Sergeant Howe simply explained the selection of the Banksville Road
location in general terms as follows:
Q. And, lastly, this location of Banksville Road where this was,
where you specified this to have occurred, how did you come to
specify Banksville Road?
A. The State likes us to do these safety check seatbelt checkpoints
on busy roadways within the City of Pittsburgh. They pull that
information from vehicle traffic, the volume of traffic and high
accident locations.
115
Q. Okay. And what are some of the other examples of roads in the
city that you have been told to use as locations[?]
A. We have done West Liberty Avenue. We have done Saw Mill
Run Boulevard, which is Route 51. We have done in the past I
believe on Bigelow Boulevard.
Q. And those locations, as well as Banksville Road, are all
mentioned, I guess, to you by the statewide campaign?
A. Yes. They like to go where we do have high volume vehicle
traffic. That way the message for the seatbelts can get out.
Q. The things you just described, high accident rate, high traffic, did
those things that PennDOT apparently had, did that seem to
comport with your own experience as an officer and being familiar
with Banksville Road?
A. Within the City of Pittsburgh, yes.
Sergeant Howe failed to offer any testimony regarding the selection of the
checkpoint's time/duration. At the conclusion of this testimony, and without further
questioning by defendant, the Commonwealth rested with regard to the motion to
suppress without offering additional testimony or documentary evidence pertaining to
the determination of the checkpoint's location and time/duration.
Sergeant Howe's generalized testimony provided no specifics whatsoever
regarding accidents, arrests, citations, violations, etc., regarding seatbelt usage or nonusage at the specific checkpoint location, nor did it present any insight into the selection
of the checkpoint time and duration. Therefore, the testimony did not satisfy the
requirements of the Tarbert/Blouse guidelines. Because the Commonwealth's only
evidence as to the selection of the location of this checkpoint was Sergeant Howe's
general testimony, the trial court should have suppressed all evidence resulting from the
stop at this seatbelt checkpoint.
Despite the deficiencies in Sergeant Howe's testimony, the Commonwealth
argues the checkpoint was established and conducted in a constitutionally acceptable
manner. Essentially, the Commonwealth argues that, while police must comply with the
Tarbert/Blouse guidelines in setting up DUI checkpoints, a lesser standard exists for
establishing a non-DUI checkpoint. We do not agree.
This court is unwilling to conclude that there exist differing standards for setting
up DUI and non-DUI checkpoints in this Commonwealth.
OTT, J. DISSENTING:
There is no dispute that the Tarbert/Blouse guidelines, announced for application
to DUI roadblocks, also apply to vehicle safety checkpoints. The Tarbert/Blouse
guidelines are not mandatory rules. Rather, there must be "substantial — and not
complete — compliance" to pass Constitutional muster. Worthy, 598 Pa. 470, ___, 957
A.2d 720, 725 (10/27/08). The police are not required to produce any statistics at all to
justify the selection of the roadblock location. Specific statistical information is not
required to prove constitutionality. Specific numbers of DUI-related arrests and/or
accidents are statistics, and Ziegelmeyer. 454 Pa. Super. 330, 685 A.2d 559 (10/31/96),
held that such statistics are not required to prove constitutionality.
Sergeant Howe testified that his experience as a City of Pittsburgh police officer
confirmed the information and suggestions of PennDOT as proper locations for a
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seatbelt checkpoint. This evidence provides ample support for the choice of Banksville
Road as a seatbelt checkpoint, given the stated purpose of the checkpoint. Sergeant
Howe's testimony, presented at the hearing and accepted by the trial court, supports its
finding the location choice was not arbitrary or otherwise unreasonable. Therefore, I
believe this aspect of the Tarbert/Blouse guidelines has been met.
Although the Commonwealth presented no evidence regarding the timing of the
checkpoint, the timing factor is not directly applicable to seatbelt usage as compared
with intoxicated driving. Therefore, because substantial and not total compliance is the
applicable standard, I would agree with the trial court that the evidence presented by the
Commonwealth fulfilled the requirements of substantial compliance. Blee, 695 A.2d 802
(Pa. Super. 5/5/97), was wrongly decided.
Garibay, 106 A.3d 136 (Pa. Super. 12/9/14) (en banc)
appeal denied, ___ Pa. ___, ___ A.3d ___ (10/14/15)
Link to: Eakin, J. dissenting
On June 2, 2012, at about 3:47 p.m., a Saturday, Christian Paetsch walked into a
Wells Fargo Bank in Aurora, Colorado, wearing gloves, a bee-keeper's mask, and dark
clothes that concealed him from head to toe. In one hand Paetsch held an air horn, and
in the other, a handgun. After blasting the air horn, he yelled for everyone to get down
on the floor. He then snatched stacks of money from the teller's drawer, stuffed them
into his coat pockets, and fled.
Unknown to Paetsch, one of the stacks of money contained a Global Positioning
System (GPS) tracking device. Seconds after Paetsch had stolen the money from the
teller drawer, the tracker began transmitting a silent signal to the Aurora Police
Department, which allowed police to follow the tracker's street location on a computer
monitor. Using these tools, police could locate the tracker to about a 60-foot diameter.
At 4:01 p.m., about 14 minutes after the bank robbery, Officer Kristopher
McDowell arrived at the intersection and saw traffic stopped at a red light. Dispatch told
him that the tracker was still stopped there. Before the light turned green, under
pressure to make a quick decision, Officer McDowell blocked the traffic with his patrol
car and signaled with his arms and hands that the cars must remain stopped. Within
minutes, several patrol cars arrived and barricaded the motorists from leaving in either
direction. Using a public-address system, police ordered the motorists to raise their
hands, outside their car windows if possible, and not to move. In all, the officers stopped
a group of 20 cars containing 29 people.
At 4:08 p.m., seven minutes after Officer McDowell had stopped traffic,
Lieutenant Christen Lertch arrived and took charge. He confronted a difficult situation.
First, the police had little information about the bank robber's physical appearance. They
knew only that one of the bank tellers thought the robber was male based on his voice,
guessing that he was a Caucasian in his 20s or 30s. Second, the police had no
information about what kind of car the bank robber was driving. Third, although the
police knew that the bank robber was likely in one of those 20 cars, they could not say
which particular car because the GPS could pinpoint the tracker's location only to a 60foot diameter.
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Lt. Lertch told dispatch to have officers working with "Safe Streets," an FBI task
force, get a homing beacon to the scene as soon as possible. These beacons allow
police to pinpoint a tracker's location to a 10-foot diameter. Dispatch notified Lt. Lertch
that task-force officers were already coming with the beacon and would arrive within 20
to 30 minutes. Thirty minutes later, Lt. Lertch requested an update, and, after checking,
dispatch told him it would be another 20 to 30 minutes. Frustrated, he then demanded
to speak with the FBI Task-Force Officer, T.J. Acierno, a deputy sheriff working on the
FBI's "Safe Streets" program, impressing upon him with strong language the need for
him to arrive as soon as possible.
At about 4:30 p.m., before Acierno arrived with the beacon, police officers
removed occupants from three of the cars toward the back of the group of 20. In two of
those cars, officers had noticed the solo occupants behaving suspiciously. An officer
saw a man in a car (a sports utility vehicle) shifting in his seat, repeatedly looking
around, and failing to keep his hands outside his car as ordered. Officers removed the
man from his car. He was the bank robber, Christian Paetsch.
In City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333
(11/28/00), the Court explained in dictum that "there are circumstances that may justify
a law enforcement checkpoint where the primary purpose would otherwise, but for some
emergency, relate to ordinary crime control." 531 U.S. at 44. As one example, the Court
noted, "the Fourth Amendment would almost certainly permit an appropriately tailored
roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal
who is likely to flee by way of a particular route." Id. The Court distinguished the
exigencies in those scenarios from "the circumstances under which authorities might
simply stop cars as a matter of course to see if there just happens to be a felon leaving
the jurisdiction." Id.
Courts analyzing roadblocks have balanced those interests under three factors:
the gravity of the public concerns served by the seizure, the degree to which the seizure
advances the public interest, and the severity of the interference with individual liberty.
Officers at the roadway intersection knew that Paetsch was fleeing a bank
robbery, and they knew he had brandished a firearm. These circumstances represent a
"substantial" public threat. Officers here detained 20 cars, and one contained a bank
robber. This 5% "hit" rate is higher than the hit rate of other roadblocks that the
Supreme Court has found effective.
Perhaps, as Paetsch suggests, the police could also have advanced the public
interest by continuing to pursue Paetsch rather than barricading traffic at the stoplight.
But "reasonableness under the Fourth Amendment does not require employing the least
intrusive means. Paetsch would likely have noticed the police in hot pursuit. This could
have led to a dangerous high-speed chase, or to Paetsch discarding or disabling the
GPS tracker. Further, because of the moderate-to-heavy traffic conditions, officers
might have been unable to locate the tracker to any particular car had they continued
pursuing the signal. And, finally, police had to consider that the tracker's battery would
last only four hours. In light of these factual circumstances and the Supreme Court's
admonition not to indulge in unrealistic second-guessing, we conclude that the decision
to barricade the 20 cars reasonably advanced the public interest.
Here, police seized 29 people. When officers developed individualized suspicion
of Paetsch, they had detained the innocent people in their cars for 29 minutes. While we
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sympathize with the innocent motorists caught in the barricade resulting from Paetsch's
armed bank robbery, we conclude that these intrusions on individual liberty do not tip
the scale in Paetsch's favor.
First, the law distinguishes between Fourth Amendment rights in cars and those
in the sanctity of private dwellings, ordinarily afforded the most stringent Fourth
Amendment protection. Second, by limiting detention to the 20 cars within the diameter
of the GPS tracker, police took reasonable efforts to reconcile their law enforcement
needs with the demands of personal privacy. Third, the duration of the seizure was no
longer than reasonably necessary for the police, acting with diligence, to identify the
perpetrator. When Lt. Lertch arrived, he learned from dispatch that the handheld beacon
would arrive in 20 to 30 minutes. He reasonably relied on that estimate and detained the
motorists accordingly. Within that time, police developed individualized reasonable
suspicion of Paetsch.
In sum, officers set up the barricade to catch a fleeing, armed bank robber, and
they knew they had access to a handheld beacon that could pinpoint him among the 29
people detained. Within the 30 minutes originally estimated for the beacon to arrive,
police developed individualized reasonable suspicion of Paetsch. For the first 30
minutes of the barricade, until police obtained individualized reasonable suspicion of
Paetsch, we conclude that the first two relevant factors—the gravity of the public
concern and the degree to which the seizure advanced the public interest—outweighed
the third—the severity of the interference with individual liberty. As such, we conclude
that the barricade did not violate Paetsch's Fourth Amendment rights.
United States v. Paetsch, 782 F.3d 1162 (10th Cir. 4/8/15)
SEARCH AND SEIZURE – WARRANT
While the law requires judges to be neutral, the law does not require judges to
pretend they are babes in the woods. In evaluating search warrant applications, judges
may consider what is or should be common knowledge. When the warrants here were
issued in August 2013, it was or should have been common knowledge to judges (like
other members of the public) that images sent via cell phones or Facebook accounts
may be readily transferred to other storage devices, such as those identified in the
warrants ["hard drives," "thumb or flash drives," and "video tapes."]. It may have been
prudent for the agent preparing the search warrant affidavit to have included this fact in
the affidavit itself, in case his application ended up on the desk of a Luddite jurist, but
we do not think it was required. The affidavit also did not specifically assert that an
apparent collector of child pornography likely would have maintained some or all of the
over 300 images he coaxed and coerced from his victim between August 2010 and July
2012, so that the images probably would be found during an August 2013 search.
Again, while such an assertion may have been prudent, we do not think it was
necessary to make the warrants valid. These are examples of an issuing judge being
permitted to draw reasonable inferences concerning where the evidence referred to in
the affidavit is likely to be kept, taking into account the nature of the evidence and the
offense.
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The search warrant affidavit in this case established probable cause to believe
images of the victim (likely constituting child pornography), Facebook messages, and
text messages would be found in Reichling's parents' residence and the adjacent trailer.
Given the large number of images at issue, the duration of Reichling's interest in the
victim, and the way various storage media work together—as well as an understanding
of both the behavior of child pornography collectors and of modern technology, it was
reasonable for the issuing judge to authorize the police to conduct separate acts of
entry or opening, including searching any computers and other storage devices in which
the images might be found. In short, the affidavit was sufficient to show a fair probability
that the storage devices identified in the warrants would contain evidence of child
pornography.
United States v. Reichling, 781 F.3d 883 (7th Cir. 3/27/15)
cert. denied, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (10/5/15)
SENTENCE - CREDIT
If the alleged error is thought to be the result of an erroneous computation of
sentence by the Bureau of Corrections, then the appropriate vehicle for redress would
be an original action in the Commonwealth Court challenging the Bureau's computation.
If, on the other hand, the alleged error is thought to be attributable to ambiguity in the
sentence imposed by the trial court, then a writ of habeas corpus ad subjiciendum lies
to the trial court for clarification and/or correction of the sentence imposed.
It is only when the petitioner challenges the legality of a trial court's alleged
failure to award credit for time served as required by law in imposing sentence, that a
challenge to the sentence is deemed cognizable as a due process claim in PCRA
proceedings. Commonwealth v. Perry, 386 Pa. Super. 534, 563 A.2d 511 (8/17/89)
Likewise, the Commonwealth Court has held that, where an inmate's petition did
not challenge the trial court's sentencing order, and instead challenged only the
governmental actions of the clerk of court and corrections officials in the wake of that
sentencing order (including clerk's generation of commitment form inconsistent with
sentencing order), the trial court lacked jurisdiction over the matter, and the petition was
properly filed in the Commonwealth Court. See Spotz v. Commonwealth, 972 A.2d 125,
134 (Pa. Cmwlth. 5/6/09); see also Powell v. [Dep’t. of Corrections], 14 A.3d 912, 915
(Pa. Cmwlth. 1/12/11) (concluding that, where petitioner does not challenge underlying
sentence and instead seeks to compel the Department of Corrections to carry out
sentence imposed, petition is properly filed in Commonwealth Court).
Here, the record reflects that the trial court, when imposing defendant's sentence,
expressly and unambiguously granted him "credit for any time served." Thus,
defendant's characterization that he challenges the legality of his sentence is
inaccurate. His real allegation of error is that the Department of Corrections (DOC)
failed to follow the court's sentence. Therefore, defendant wishes the DOC to enforce
the trial court's sentencing order as valid, and he is not challenging the propriety of his
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conviction or his sentence. As a result, we conclude that defendant has not raised a
claim that is cognizable under the PCRA.
Heredia, 97 A.3d 392 (Pa. Super. 7/24/14)
Link to: Shogan, J. concurring and dissenting
appeal denied, ___ Pa. ___, 104 A.3d 524 (12/23/14)
Wyatt, 115 A.3d 876 (Pa. Super. 4/24/15)
The duplicative imposition of credit for time served constitutes a patent and
obvious mistake that is amenable to correction after the thirty-day period prescribed in
42 Pa.C.S. § 5505.
Ellsworth, 97 A.3d 1255 (Pa. Super. 8/12/14)
SENTENCE – EXCESSIVE
Defendant was invited into his neighbor’s home. While the room was temporarily
unoccupied, and a purse was left unattended, defendant and his friend stole $2000 from
the purse. When the neighbor’s husband chased the defendant into a crowded street,
defendant fired two gunshots at the husband, wounding a bystander.
The court sentenced defendant to 9½-18 years’ incarceration for aggravated
assault, 9½-18 years’ incarceration for robbery, 3½-7 years’ incarceration for carrying a
firearm without a license, 2½-5 years’ incarceration for PIC, 1-2 years’ incarceration for
REAP, and 5-10 years’ incarceration for persons not to possess firearms. The court
imposed the sentences consecutively, which resulted in an aggregate sentence of 3162 years’ incarceration.
The parties agreed that defendant’s prior record score was a RFEL. The parties
also agreed that the offense gravity scores for aggravated assault, robbery and persons
not to possess firearms were each a ten, the offense gravity score for firearms not to be
carried without a license was a nine, the offense gravity score for PIC was a four, the
offense gravity score for REAP was a three, and the offense gravity score for carrying
firearms on public streets was a five. Further, the parties agreed that, using the Deadly
Weapon Used Matrix, aggravated assault and robbery each warranted 90 to 102
months’ incarceration, plus or minus 12. The parties additionally agreed, using the Basic
Sentencing Matrix, that persons not to possess firearms warranted 72 to 84 months’
incarceration, plus or minus 12, that carrying firearms without a license warranted 60-72
months’ incarceration, plus or minus 12, that PIC warranted 21-30 months’
incarceration, plus or minus three, that REAP warranted 12-18 months’ incarceration,
plus or minus three, and that carrying firearms in public warranted 24-36 months’
incarceration, plus or minus three. Thus, defendant’s sentences of 9½-18 years’
incarceration for aggravated assault and robbery were in the aggravated range, his
sentence of 5-10 years’ incarceration for persons not to possess firearms was in the
mitigated range, and his sentence of 3½-7 years’ incarceration for carrying a firearm
without a license was below the mitigated range. Defendant’s sentences for PIC and
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REAP were both within the standard range, and the court imposed no further penalty for
carrying firearms on a public street.
Defendant had been arrested nine times between the ages of 13 and 23 for
crimes such as burglary, criminal trespass, robbery, and selling drugs. The trial court
specifically considered the fact that defendant continued to make poor decisions after
he spent short periods of time in correctional facilities for previous crimes. Based on
this, and the fact that defendant was still not willing to take responsibility for his actions,
the trial court determined defendant did not want to rehabilitate himself, and that he
would not likely do so during a short period of incarceration.
Defendant’s contention that the trial court sentenced him as if he had killed
someone when he had not killed anyone indicates that defendant does not appreciate
the seriousness of his convictions. Defendant committed numerous serious crimes, and
as the trial court aptly observed, the only reason he did not kill someone was for “the
grace of God.” Defendant stole $2,000 from his neighbor’s apartment, then fired shots
at his neighbor with an illegal gun on a crowded street at 4:30 in the afternoon.
Defendant was not entitled to a volume discount for these numerous and serious
crimes.
Because the trial court did not ignore or misapply the law, exercise its judgment
for reasons of partiality, prejudice, bias or ill will, and did not arrive at a manifestly
unreasonable decision, we hold that the court did not abuse its discretion in imposing
defendant’s aggregate sentence.
Caldwell, 117 A.3d 763 (Pa. Super. 5/29/15) (en banc)
Link to: Wecht, J. concurring
appeal pending, No. 408 EAL 2015 (filed 6/29/15)
SENTENCE – GUIDELINES
Deadly weapon - § 303.10(a)
There shall be no Deadly Weapon Enhancement for any offense for which
possession of a deadly weapon is an element of the crime. 204 Pa. Code
§ 303.10(a)(3)(ix).
Escape is graded as a felony of the third degree when the actor employs force,
threat, deadly weapon or other dangerous instrumentality to effect the escape. 18
Pa.C.S. § 5121(d)(1)(ii). The possession of a deadly weapon is, therefore, an element
of the crime. Section 303.10(a)(3)(ix) forbids the application of the deadly weapon
enhancement to any crime of which possession of a deadly weapon is an element.
Accordingly, the deadly weapon enhancement is not applicable to escape as a felony of
the third degree.
Devries, 112 A.3d 663 (Pa. Super. 3/20/15)
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Youth/School enhancement - § 303.10(b)
Neither a day care facility nor a pre-school operated by a YWCA constitutes a
“public or private elementary or secondary school.”
Ali, 112 A.3d 1210 (Pa. Super. 3/5/15)
appeal pending, No. 454 MAL 2015 (filed 6/8/15)
Enhancement does not apply when distribution to a minor was by defendant’s
accomplice, not the defendant himself.
Ali, 112 A.3d 1210 (Pa. Super. 3/5/15)
appeal pending, No. 454 MAL 2015 (filed 6/8/15)
SENTENCE – INTERMEDIATE PUNISHMENT
A person is statutorily ineligible for a county intermediate punishment sentence
when a mandatory minimum sentence applies under 18 Pa.C.S. § 7508.
Stotelmyer, ___ Pa. ___, 110 A.3d 146 (2/17/15)
Link to: Saylor, C.J. dissenting
[EDITOR’S NOTE: Although 18 Pa.C.S. § 7508 has been declared unconstitutional on
other grounds, see Fennell, 105 A.3d 13 (Pa. Super. 11/21/14), the principle remains
valid that the applicability of a mandatory minimum sentence renders a defendant
ineligible for county intermediate punishment.]
The trial court is required to conduct a revocation hearing under 61 Pa.C.S.
§ 4105(f)(3) and “determine [whether] the participant was expelled from or failed to
complete the [state intermediate punishment] program.” 42 Pa.C.S. § 9774(b)
(emphasis added).
The plain text of Section 9774(b), coupled with the General Assembly’s use of
past tense, reveal that when addressing a revocation under Section 9774(b) the trial
court is limited to the question of whether the Department of Corrections (“DOC”)
expelled the defendant from the program, or whether the defendant failed to complete
the same. Id. The trial court is not required, or even legally permitted, to act in an
appellate capacity and decide for itself de novo whether defendant actually violated the
terms of the State Intermediate Punishment program. Had the General Assembly
wished for the trial court to conduct such an inquiry, it would have used different
language in the text of Section 9774(b), directing or authorizing it to do so. Conversely,
Section 9774(b) in its present form only requires the Commonwealth to prove the fact of
expulsion or non-completion. Once the trial court finds this fact, it is required to revoke
under Section 9774(b). It is legally irrelevant to the issue before the trial court what the
123
reasons for defendant’s expulsion were. Such a determination is the province of the
DOC and was already made internally before the trial court conducted its revocation
hearing.
Schultz, 116 A.3d 1116 (Pa. Super. 5/4/15)
SENTENCE – JUVENILE
18 Pa.C.S. § 1102.1 (pertaining to the sentencing for murders committed by
persons under age 18) is constitutional.
Lawrence, 99 A.3d 116 (Pa. Super. 8/27/14)
Link to Donohue, J. concurring
appeal denied, ___ Pa. ___, 114 A.3d 416 (4/15/15)
Brooker, 103 A.3d 325 (Pa. Super. 9/23/14)
appeal denied, ___ Pa. ___, 118 A.3d 1107 (715/15)
Pa.R.A.P. 1770 provides a vehicle for a juvenile placed in out-of-home overnight
placement to seek expedited review of that decision within ten days of the placement
order. The juvenile may challenge the out of home placement itself, but not the specific
agency or institution. Any challenge to the underlying adjudication of delinquency is
deferred until the time of direct appellate review.
The juvenile court has broad discretion when determining an appropriate
disposition. The record demonstrates that the court heard testimony from a number of
witnesses on behalf of the victim and the defendant, and that it considered the
recommendations of probation and counsel. The juvenile court noted that it had read
the relevant statutes, and that it took its responsibilities under the Juvenile Act seriously
as it weighed its duties to hold the defendant accountable, protect society, and
rehabilitate the defendant. We cannot find that the juvenile court abused its discretion in
fashioning the defendant's disposition. Out-of-home placement under the circumstances
of this case was not unreasonable.
K.M. –F., 117 A.3d 346 (Pa. Super. 5/22/15)
SENTENCE – MANDATORY MINIMUM
Effect of Alleyne v. United States
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.
124
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
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 minimum 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, ___ Pa. ___, 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.
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, ___ Pa. ___, 121 A.3d 494 (8/12/15)
42 Pa.C.S. § 9712 (Visible possession of firearm)
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, ___ Pa. ___, 121 A.3d 496 (8/7/15)
42 Pa.C.S. § 9713 (Crimes committed on public transportation)
42 Pa.C.S. § 9718 (Crimes against children)
ISSUE TO BE DECICDED: Defendant was convicted of violating 18 Pa.C.S.
§ 3123(a)(7) for engaging in deviate sexual intercourse with a complainant who is less
than 16 years of age. Does that jury verdict authorize the imposition of the mandatory
minimum sentence found at 42 Pa.C.S. § 9718 (a)(1) which applies when a victim is
less than 16 years of age.
Commonwealth v. Matthew Wolfe, No. 68 MAP 2015 (argued 11/17/15)
Alleyne not retroactively available to PCRA petitioners.
Miller, 102 A.3d 988 (Pa. Super. 9/26/14)
Riggle, 119 A.3d 1058 (Pa. Super. 7/7/15)
125
42 Pa.C.S. § 9714 (Second and subsequent offenses)
Defendant had two convictions which would qualify as prior strikes. He was
arrested on June 19, 1987 for aggravated assault, for which he was convicted and
sentenced on April 13, 1988. He was arrested on October 18, 1987 and convicted and
sentenced April 12, 1989 for robbery and attempted rape. The current offense was
committed on January 3, 2009.
Defendant had not been convicted or sentenced as a first-strike offender for the
aggravated assault when he was arrested in 1987 for the robbery and rape charges.
Therefore, defendant did not have the "opportunity to reform pursuant to the recidivist
philosophy between his first and second convictions" and must now be considered a
second-strike offender consistent with the recidivist sentencing philosophy
Armstrong, 74 A.3d 228 (Pa. Super. 7/31/13)
aff’d per curiam, ___ Pa. ___, 107 A.3d 735 (12/30/14)
Link to: Eakin, J. dissenting
Defendant was convicted of four different crimes of violence arising from a single
criminal episode. Because 42 Pa.C.S. § 9714(g) defines “crime of violence” to include
each of those four offenses, the court sentenced defendant to mandatory minimum
sentences of 10 to 20 years for each of these four charges, and ordered the sentences
to be served consecutively.
Based on the difference in the statutory language, McClintic, 589 Pa. 465, 909
A.2d 1241 (11/22/06), is not controlling. A straightforward reading of the statutory text
reveals that the sentence enhancement is required so long as the defendant meets two
prerequisites: he previously committed a crime of violence, and his current offense is a
crime of violence. Defendant independently satisfied both of these prerequisites as to all
four crimes of violence he committed, and therefore, subsection (a)(1) requires that “a
minimum sentence” be imposed upon him as to each. Unlike subsection (a)(2),
moreover, subsection (a)(1) does not contain any separate limiting language that may
be read to preclude such an outcome.
Our reading of subsection (a)(1) is not in substantial conflict with the recidivist
philosophy overlay that has been judicially superimposed onto Section 9714(a).
Pursuant to that overlay, progressively harsher punishments are appropriate to one
who, after being reproved and having a chance for reform, continues to engage in
criminal activity. Reform opportunities, in this setting, are periods where the defendant
serves a term of confinement and is then released. The recidivist-philosophy thus
clarifies how many strikes are represented by the defendant’s criminal history, but it
does not directly address the prospect of multiple sentencing enhancements at a
particular level for more than one crime of violence committed as part of a single strike. 5
5The recidivist philosophy applies in the present case to prevent
defendant from being sentenced as a third-strike offender on the
basis that he committed multiple crimes of violence as part of his
first strike, or that he committed multiple crimes of violence in the
present criminal episode. A 25-year minimum sentence under
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subsection (a)(2) would therefore have been impermissible
because defendant had not previously served a period of
incarceration representing the second strike. See Shiffler, 583 Pa.
478, 495, 879 A.2d 185, 195 (7/22/05) (“We see nothing in the
carefully graduated structure of Section 9714 to suggest that the
General Assembly intended to require a sentencing court to simply
skip a defendant’s second strike and proceed to ‘call him out’ by
applying three strikes.”).
Fields, ___ Pa. ___, 107 A.3d 738 (12/31/14)
Link to: Baer, J. dissenting
Akbar, ___ Pa. ___, 111 A.3d 168 (3/4/15) (per curiam)
rev’g, 91 A.3d 227 (Pa. Super. 4/30/14)
Sentencing guidelines remain constitutional
Pennsylvania’s discretionary sentencing guidelines are merely advisory and are
outside the scope of Apprendi and Alleyne.
Yuhasz, 592 Pa. 120, 923 A.2d 1111 (5/31/07)
Saunders, 946 A.2d 776 (Pa. Super. 4/4/08)
appeal denied, 598 Pa. 774, 958 A.2d 1047 (9/30/08)
Ali, 112 A.3d 1210 (Pa. Super. 3/5/15) (Alleyne v. United States inapplicable)
appeal pending, No. 454 MAL 2015 (filed 6/8/15)
SENTENCE – MERGER
Jenkins struck Mr. Caracillo on the side of his face, breaking his jaw. This is
simple assault. Jenkins then forcefully restrained Mr. Caracillo on the ground, and
unlawfully stole possessions off his person. This constitutes robbery. The offenses do
not merge.
This court consistently has applied the above-reproduced standards in
discussing the issue of whether a defendant committed a "single criminal act" pursuant
to merger in the years since the adoption of 42 Pa.C.S. § 9765. See Commonwealth v.
Robinson, 931 A.2d 15, 24 (Pa. Super. 8/2/07) (en banc). Furthermore, we have
continued to apply these precedents in the wake of Baldwin. See Commonwealth v.
Pettersen, 49 A.3d 903, 911-12 (Pa. Super. 7/16/12), appeal denied, 619 Pa. 690, 63
A.3d 776 (3/13/13); Commonwealth v. Ousley, 21 A.3d 1238 (Pa. Super. 5/13/11),
appeal denied, 612 Pa. 698, 30 A.3d 487 (9/27/11). Thus, we conclude that the cases
cited above continue to constitute settled, binding precedent.
Were it the case that Jenkins' had been convicted of both simple assault and
robbery upon the basis of a single criminal act, we would likely order Jenkins'
resentencing because simple assault appears to be a lesser included offense of
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robbery. Specifically, simple assault does not require proof of any statutory element that
robbery does not also require.
Jenkins, 96 A.3d 1055 (Pa. Super. 7/15/14)
Link to: Strassburger, J. concurring
appeal denied, ___ Pa. ___, 104 A.3d 3 (11/25/14)
In a single accident Bell unintentionally crossed over the center line while
operating a motor vehicle and struck another vehicle, causing one's death, and this was
the basis of both homicide by vehicle and homicide by vehicle while DUI convictions.
The Commonwealth Court clearly erred when it found Bell's homicide by vehicle
and homicide by vehicle while DUI convictions properly merged for criminal sentencing
purposes, for in Commonwealth v. Collins, 564 Pa. 144, 764 A.2d 1056 (2001), this
Court specifically held to the contrary.
Even had these crimes properly merged for sentencing purposes, we must next
consider Penn DOT's second contention that the difference between criminal and civil
proceedings and the lack of an explicit provision requiring an application of the merger
doctrine to operating privilege suspensions in the Vehicle Code dictate that the criminal
doctrine of merger is inapposite in the administrative suspension context. This Court
previously has stated that the doctrine of merger is a rule of statutory construction
designed to determine whether the legislature intended for the punishment of one
offense to encompass that for another offense arising from the same criminal act or
transaction. Operating privilege suspensions are collateral civil consequences, not
criminal penalties.
We hold that multiple operating privilege suspensions of listed violations under
75 Pa.C.S. §§ 1532(a), (a.1) of the Vehicle Code are properly imposed following a
conviction of each enumerated offense listed therein, whether or not a listed offense
may have merged for criminal sentencing purposes. To the extent prior decisions of the
Commonwealth Court are inconsistent with this decision, they are overruled.
We do not re-examine the single criminal episode analysis as it has been
employed in the context of Section 1532(c), [see Freundt v. [Dep’t. of Transportation],
584 Pa. 283, 883 A.2d 503 (9/28/05),] because DOT has not questioned herein the
propriety of its application to operating privilege suspensions that arise from convictions
under The Controlled Substance, Drug, Device and Cosmetic Act.
Bell v. [Dep’t of Transportation], 626 Pa. 270, 96 A.3d 1005 (7/21/14)
Link to: Todd, J. concurring
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)
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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.
Raven, 97 A.3d 1244 (Pa. Super. 8/12/14)
appeal denied, ___ Pa. ___, 105 A.3d 736 (12/23/14)
Even though 18 Pa.C.S. § 3502(d) would preclude sentencing for both burglary
and theft, there is no statutory prohibition to the imposition of sentence for both
conspiracy to commit burglary and theft. That discrepancy is not irrational since the
crime of conspiracy does not merge with the substantive offense that is the subject of
the conspiracy. See Miller, 469 Pa. 24, 364 A.2d 886 (10/8/76).
Jacquez, 113 A.3d 834 (Pa. Super. 4/6/15)
SENTENCE – PROBATION AND PAROLE
Conditions which may accompany a sentence of county intermediate punishment
may be imposed pursuant to 42 Pa.C.S. § 9763(b)(15) ("things reasonably related to
rehabilitation"). We conclude that the requirement that former Supreme Court Justice
Orie Melvin send letters of apology to both her former staff and the members of the
judiciary is a permissible condition under subsection 9763(b)(15). Much like the
condition of restitution or reparations for the loss or damage caused by the crime, as
permitted by subsection 9763(b)(10), these letters of apology force Orie Melvin to
acknowledge the harm caused by her crimes. This condition is also is reasonably
tailored to Orie Melvin's rehabilitation, as it may force her to accept responsibility for the
harm she caused and, as such, is consistent with the goals of rehabilitation. See Hall,
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622 Pa. 396, 80 A.3d 1204, 1215 (10/30/13) (identifying the goals of rehabilitation as
"recognition of wrongdoing, deterrence of future criminal conduct, and encouragement
of future law-abiding conduct").
The condition imposed by the trial court that Orie Melvin write the apology letters
to the members of the judiciary on photographs while posed in handcuffs. The certified
record reflects that this condition was not imposed to promote her rehabilitation, but
rather merely to shame and humiliate her in the eyes of her former colleagues in the
judiciary.
The statute does not authorize forms of punishment other than those specifically
enumerated. While a defendant may conceivably (or idiosyncratically) experience some
degree of shame from any of the section 9763(b) conditions, inflicting shame or
humiliation on the defendant is not the primary purpose of any of the specifically defined
conditions. We must conclude that while a sentencing court has wide latitude under
subsection 9763(b)(15) to design conditions to assist in efforts at rehabilitation, no
condition may be imposed for the sole purpose of shaming or humiliating the defendant.
Nothing in section 9763(b), or for that matter, anywhere else in the Sentencing Code,
provides (or even suggests) that shaming or humiliating a defendant is consistent with
either penological policies of this Commonwealth in general or the goals of rehabilitation
in particular.
Because the trial court exceeded its statutory authority in requiring Orie Melvin to
write apology letters to the state's judges on a photograph of herself in handcuffs, this
condition of Orie Melvin's sentence of county intermediate punishment is hereby
stricken as illegal. As ordered by the trial court, Orie Melvin will be required to write
letters of apology both to the members of her judicial staff and to every judge in
Pennsylvania, but such apology letters do not need be written on the photograph of Orie
Melvin in handcuffs.
We are aware of no federal or Pennsylvania state law, and Orie Melvin has not
cited to any, that supports the notion that the right against self-incrimination extends
beyond the pendency of a direct appeal. As a result, we must conclude that Orie Melvin
is not entitled to relief from the apology letters requirement on constitutional grounds
after her direct appeal has been decided.
Orie Melvin, 103 A.3d 1 (Pa. Super. 8/21/14)
42 Pa.C.S. § 9721(b) specifies that in every case following the revocation of
probation, "the court shall make as a part of the record, and disclose in open court at
the time of sentencing, a statement of the reason or reasons for the sentence imposed."
See also Pa.R.Crim.P. 708[(D)](2) (indicating at the time of sentence following the
revocation of probation, "[t]he judge shall state on the record the reasons for the
sentence imposed.").
However, following revocation, a sentencing court need not undertake a lengthy
discourse for its reasons for imposing a sentence or specifically reference the statutes
in question. Simply put, since the defendant has previously appeared before the
sentencing court, the stated reasons for a revocation sentence need not be as elaborate
as that which is required at initial sentencing. The rationale for this is obvious. When
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sentencing is a consequence of the revocation of probation, the trial judge is already
fully informed as to the facts and circumstances of both the crime and the nature of the
defendant, particularly where, as here, the trial judge had the benefit of a PSI during the
initial sentencing proceedings. Contrary to the Superior Court's suggestion in the instant
case, there is no absolute requirement that a trial judge, who has already given the
defendant one sentencing break after having the benefit of a full record, including a PSI,
must order another PSI before fashioning the appropriate revocation sentence.
Pasture, ___ Pa. ___, 107 A.3d 21 (12/29/14)
Link to: Saylor, J. dissenting
Parole may be revoked after the expiration of the parole period for a violation
which occurred within the parole period.
Hackman, 424 Pa. Super. 526, 623 A.2d 350 (4/15/93)
Price v [Parole Board], 117 A.3d 362 (Pa. Cmwlth. 5/20/15)
Notwithstanding any formal or informal policy in York County pursuant to which
there was no supervision of a person on probation while an appeal was pending, that
policy did not act to stay defendant’s sentence. There was no order in the record
staying defendant’s sentence.
Therefore, at the time probation was revoked,
defendant’s term of probation had already expired. Consequently, the trial court lacked
the authority to revoke the probation, and the sentence of imprisonment was illegal.
Mathias, 121 A.3d 558 (Pa. Super. 7/29/15)
Link to: Shogan, J. concurring
SENTENCE – RESTITUTION
Despite the record’s support for the amount of the restitution, however, the
causal connection between the jury’s guilty verdict and the amount of restitution is
missing. While the jury found Veon guilty on the counts regarding the rent of the
legislative offices, the guilty verdict indicated that the jury found Veon guilty of stealing
from either legislative office, both legislative offices, or neither office. In regards to
Counts 1, 3, 7, 11, 15, and 19, the record does not specify which legislative office Veon
stole from, nor can it be assumed or speculated by the trial court that the jury convicted
Veon of stealing from both offices (Midland or Beaver Falls). Therefore, the trial court
could not properly determine which office the jury had in mind when it issued its guilty
verdict. Therefore, the trial court had no basis for determining the causal connection of
the damages that stemmed from his guilty conduct concerning those above-mentioned
guilty counts.
Veon, 109 A.3d 754 (Pa. Super. 2/6/15)
appeal granted, Nos. 69, 70 MAP 2015 (granted 8/20/15)
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Defendant was convicted of one count of the statute prohibiting a conflict of
interest or improper pecuniary gain by a public official. 65 Pa.C.S. § 1103(a).
We conclude that the Commonwealth can be a victim under this statute. As
noted in Brown, 603 Pa. 31, 981 A.2d 893 (10/21/09), the General Assembly intended
to have the restitution statute serve as deterrence for criminals. It would therefore be
contrary to the statute’s purpose and the General Assembly’s intent — not to mention
common sense — to have a defendant directly steal from the Commonwealth,
specifically the Department of Community Economic Development, and not be liable for
restitution. Limiting restitution sentences to instances where the Commonwealth only
reimburses a third party victim would otherwise encourage criminals to steal from the
Commonwealth. As the Court expressed in Brown, to hold otherwise would place form
over substance and ignore the realities and purpose of the statute. Therefore, we must
conclude that the Commonwealth is a victim to which an order of restitution can be paid
when the Commonwealth is the direct victim of a crime.
Veon, 109 A.3d 754 (Pa. Super. 2/6/15)
appeal granted, Nos. 69, 70 MAP 2015 (granted 8/20/15)
Perzel, 116 A.3d 670 (Pa. Super. 5/4/15)
appeal pending, No. 535 MAL 2015 (filed 7/10/15)
SENTENCE - RRRI
61 Pa.C.S. § 4503(1) declares that a person is ineligible for RRRI if he
“demonstrate[s] a history of present or past violent behavior.” The RRRI Act specifies
numerous crimes within Section 4503(2)-(6) that render an offender ineligible to receive
a reduced minimum sentence — including offenses involving a deadly weapon, certain
personal injury crimes, certain sexual offenses, and certain drug offenses. We conclude
that, notwithstanding the offenses enumerated in Section 4503(2)-(6), Section 4503(1)
covers violent behaviors not otherwise identified in the RRRI Act’s definition of “eligible
offender.”
In light of Pennsylvania’s long-standing view of burglary as a violent crime, as
well as the fact that first-degree burglary is treated distinctly, and more severely, under
Pennsylvania law, we have no hesitancy in concluding a conviction for first-degree
burglary constitutes “violent behavior” under Section 4503(1).
The fact that defendant did not actually engage in any violent acts while
committing first-degree burglary does not render that crime “non-violent.” Similarly, we
decline to depart from our well established case law — finding burglaries to be violent
by their very nature — to instead engage in a case-by-case evaluation into whether a
particular burglary conviction constitutes “violent behavior” under Section 4503(1). Thus,
we believe a conviction for first-degree burglary, a crime of violence, constitutes violent
behavior for purposes of Section 4503(1).
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Regardless of whether a single conviction constitutes a “history” under Section
4503(1), we find that defendant’s multiple first-degree burglary convictions are more
than sufficient to form a “history” of “violent behavior” under Section 4503(1).
Chester, ___ Pa. ___, 101 A.3d 56 (9/24/14)
SENTENCE – WORK RELEASE
Defendant was serving a sentence for a violation of parole. During the course of
that sentence, a facility accepted defendant’s application for inpatient drug treatment.
The trial court granted defendant release from prison to attend the drug rehabilitation
program. The release, pursuant to the authority granted to the trial court by 42 Pa.C.S.
§ 9813(a), was described by the trial court as a furlough.
Within 60 days, defendant failed a drug screen and was expelled from the
rehabilitation program. The trial court resentenced defendant to 12 months of
incarceration on the basis that his furlough was a county intermediate punishment
sentence and that by violating the terms of his furlough, the trial court was entitled to
revoke his county intermediate punishment sentence and resentence him.
The fact that 42 Pa.C.S. § 9813 appears in the chapter addressing County
Intermediate Punishment is immaterial. No language in section 9813 suggests that the
grant of a furlough from time currently being served by a defendant after a trial court has
recommitted that defendant for violating his or her parole constitutes a county
intermediate punishment sentence. Likewise, no language in section 9813 suggests that
a trial court may treat the violation of a condition of that furlough as a violation of
probation permitting the imposition of a new sentence. To the contrary, section 9813(a)
provides that upon proper application, a trial court may permit a prisoner serving a
sentence in a county jail a release from jail for any purposes the trial court considers
necessary and appropriate. Additionally, section 9813(c) states that if a prisoner violates
a condition of the furlough, the trial court may recommit the prisoner to the county jail
and revoke or modify the furlough order.
By granting a furlough to defendant the trial court did not impose a county
intermediate punishment sentence. Therefore, the trial court erred in treating his
furlough violation as the revocation of a county intermediate punishment sentence, and
consequently, the revocation of probation. The appropriate recourse under these
circumstances was for the trial court to revoke the furlough and to recommit defendant
to serve the remaining time on his sentence.
Melius, 100 A.3d 682 (Pa. Super. 9/19/14)
[EDITOR’S NOTE: When there is a standard, total confinement sentence, to a county
prison, of less than five years, work release may be authorized by the court. A violation
of the conditions of work release permits the judge to order the defendant to be
terminated from work release and returned to jail. Section 9813(c) permits the county
jail officials to impose this sanction without first awaiting court permission. In this
situation, which was the situation in Melius, no further sentencing sanction is available
to the court. However, work release may be part of the restrictive intermediate
133
punishment (RIP) component of an intermediate punishment sentence. If that is the
structure of the sentence, then breach of the conditions of work release would be a
violation of intermediate punishment. The sanction would be revocation of intermediate
punishment and a resentence to any previously available sentencing alternative.
Nothing in Melius would prohibit that sanction.]
SEXUAL OFFENDER REGISTRATION
The Sex Offender Registration and Notification Act (SORNA) is unconstitutional
as applied to juveniles. Juvenile offenders have a protected right to reputation
encroached by SORNA's presumption of recidivism, where the presumption is not
universally true, and where there is a reasonable alternative means for ascertaining the
likelihood of recidivating.
SORNA provides for individualized assessment for all sexual offenders convicted
of a Tier I, II, or III offense by the SOAB for designation of sexually violent predators.
Moreover, SORNA specifically mandates individualized assessment of juveniles who
have been adjudicated delinquent of specified crimes and who are committed to an
institution nearing their twentieth birthday to determine whether continued involuntary
civil commitment is necessary. A similar process could be utilized to assess which
juvenile offenders are at high risk to recidivate. We, therefore, conclude that
individualized risk assessment, as used in other provisions of SORNA, provides a
reasonable alternative means of determining which juvenile offenders pose a high risk
of recidivating.
Interest of J. B., ___ Pa. ___, 107 A.3d 1 (12/29/14)
Link to: Stevens, J. dissenting
SUMMARY OFFENSES
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
134
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, ___ A.3d ___ (Pa. Super. 8/4/15)
Link to: Shogan, J. concurring
VENUE
Emily Gross and Daniel Autenrieth began a romantic relationship. Autenrieth’s
estranged wife obtained a Protection from Abuse order which prohibited Autenrieth from
possessing firearms. Gross purchased a firearm in Berks County. Autenrieth showed
Gross how to use the gun, offered to clean it for her, then put the gun in its box and
stored it and its ammunition above his washer and dryer. This was the last time Gross
saw the gun, though a few days later she learned Autenrieth had taken the gun, fired it
with a friend, and replaced the ammunition used; Gross made no objection.
On June 7, 2009, Autenrieth took the gun, went to his estranged wife's house,
and kidnapped his nine-year-old son at gunpoint. Police were called, Autenrieth fled,
and the chase went on for 40 miles, ending with a shoot-out in Monroe County in which
Autenrieth killed one Pennsylvania State Trooper and wounded another before being
shot to death.
A criminal complaint was filed in Monroe County charging Gross with criminal
conspiracy, 18 Pa.C.S. § 903(a); firearms not to be carried without a license, 18 Pa.C.S.
§ 6106(a)(1) (co-conspirator); possession of firearm prohibited, 18 Pa.C.S. § 6105(a)(1)
(accomplice); and lending or giving of firearms prohibited, 18 Pa.C.S. § 6115(a)
(accomplice). The trial court dismissed the charges because of a lack of venue in
Monroe County.
The record is sufficient to show a criminal conspiracy between Autenrieth and
Gross, under which Gross would purchase a firearm for the purpose of providing
Autenrieth with access to a gun he was otherwise prohibited from possessing. Because
of this criminal agreement, Autenrieth was able to use the firearm on two occasions,
including the day he took the gun and used it in Monroe County. The trial court
determined the conspiracy agreement ended May 29, 2009, at the time Gross left the
firearm with Autenrieth at his residence in Northampton County. However, the trial court
failed to appreciate that the object of the conspiracy articulated by the charges was to
provide Autenrieth with unlimited possession and unconditional access to a firearm, and
such was not completed or terminated May 29, 2009, but continued as long as Gross
allowed Autenrieth to possess her gun. Accordingly, the trial court erred in dismissing
the conspiracy charges, as the record was sufficient to establish Gross, as co-
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conspirator, could be found vicariously liable for Autenrieth's possession of the firearm,
in Monroe County, and thus, could be prosecuted in that county.
The trial court also erred in finding dismissal was warranted for the counts
charging Gross as an accomplice in the crimes of illegal possession of a firearm and
lending or giving a firearm. The trial court found Gross could not be an accomplice in
Monroe County because Autenrieth, not Gross, possessed the gun there. Also, both the
trial court and the Superior Court concluded Gross could not be charged as an
accomplice because there was no evidence that she intended to aid or promote
Autenrieth's shootout with the police. This factual statement may be true, but it is
irrelevant, reflecting a misapprehension of the charges filed. Gross was never charged
as an accomplice in the shooting; rather, she was charged as an accomplice in the
illegal possession of a firearm, and the evidence offered was sufficient to prove she
could be convicted as an accomplice to such illegal possession in Monroe County.
Because Autenrieth was present with the gun in Monroe County, and Gross
aided Autenrieth's illegal possession of that firearm, Gross could be found liable as an
accomplice for Autenrieth's illegal possession wherever he was, including Monroe
County. Accordingly, we conclude the Commonwealth proved by a preponderance of
the evidence that Gross could be prosecuted under all criminal charges in Monroe
County.
Further, even if venue had been improper in Monroe County, the record does not
warrant dismissal for that reason alone. See Pa.R.Crim.P. 109 ("A defendant shall not
be discharged nor shall a case be dismissed because of a defect in the form or content
of a complaint, citation, summons, or warrant, or a defect in the procedures of these
rules[.]")
As the Commonwealth notes, no provision in our criminal procedural rules
permits dismissal as a remedy for improper venue. As venue is predominantly a
procedural matter, and pertains to the locality most convenient to the proper disposition
of a matter, dismissal is disproportionate and unjust where a court merely finds another
judicial district provides a more appropriate forum. Our rules promote transfer, not
dismissal, and Gross brought not only a motion to dismiss, but "in the alternative" a
motion to transfer for improper venue. The trial court did not transfer the case even
though it expressly determined Northampton or Berks County were proper venues. On
this separate basis, the trial court also erred in dismissing the charges filed.
Gross, ___ Pa. ___, 101 A.3d 28 (9/24/14)
Link to: Castille, C.J. concurring
Terroristic threats made during a telephone conversation may be prosecuted
where the victim was located in Pennsylvania even though the defendant made the
telephone call from New Jersey.
Vergilio, 103 A.3d 831 (Pa. Super. 11/6/14)
appeal denied, ___ Pa. ___, 114 A.3d 416 (5/7/15)
136
WIRETAP
Pursuant to Kean, 382 Pa. Super. 587, 556 A.2d 374 (3/16/89) (plurality opinion),
appeal denied, 525 Pa. 596, 575 A.2d 563 (1990), evidence obtained from a silent video
camera worn by a confidential informant inside the defendant's residence is suppressed
as a warrantless search of defendant’s residence. It is irrelevant that defendant invited
the informant into the home or that the police expected the drug transaction to take
place on a public street and were not intending to film the interior of the residence.
Dunnavant, 63 A.3d 1252 (Pa. Super. 2/27/13)
aff’d by an equally divided court, ___ Pa. ___, 107 A.3d 29 (12/29/14)
Link to: Saylor, J. in support of affirmance
Link to: Todd, J. in support of affirmance
Link to: Castille, C.J. in support of reversal
Link to: Stevens, J. in support of reversal
Following an investigation of stolen guns involving Mr. Gary Still, Detective
James Moyer of the Swatara Police Department went to Mr. Still's father's residence
following Mr. Still's release from the hospital on February 21, 2013. Detective Moyer had
determined that Mr. Still was involved in the theft of approximately twelve (12) firearms
from the residence of 740 High Street. Detective Moyer advised Mr. Still of his Miranda
rights. Mr. Still stated that he took numerous guns over a period of eight (8) weeks, and
told the officers that he purchased heroin from defendant.
Detective Moyer testified that he asked Mr. Still if he would set up a heroin deal
with Diego. Mr. Still was told by the officers that it would be in his best interest to do so.
Mr. Still agreed, telling the officers that he would use the text messaging service on his
iPad. The transaction took place in the basement of the police station and was set up
with Mr. Still communicating directly with Diego on the iPad. Mr. Still relayed to the
detectives each response from Diego.
An iPad is not a telephone or telegraph instrument under a common
understanding of the relevant terms, and no reasonable person familiar with the now
ubiquitous technology of tablet computers would misidentify an iPad as a mere
telephone. The fact that an iPad or any other tablet computer can perform functions
similar or identical to a modern cellular phone is not dispositive. We conclude that an
iPad is an "electronic, mechanical, or other device" that does not fall within the
telephone exception under the Wiretap Act.
We find the reasoning of Proetto, 771 A.2d 823 (Pa. Super. 3/28/01), aff’d per
curiam, 575 Pa. 511; 837 A.2d 1163 (12/4/03), applicable. When Diego engaged in a
text message conversation with Gary Still, he knew, or should have known, that the
conversation was recorded. By the very act of engaging in the means of communication
at-issue, defendant risked that Gary Still would share the contents of that conversation
with a third party. When an individual sends a text message, he or she should know
that the recipient, and not the sender, controls the destiny of the content of that
message once it is received.
137
Because a reasonable expectation of privacy in an electronic communication is
not required to seek relief under the Wiretap Act violations, defendant's lack of a
reasonable expectation of privacy in his text messages with Still does not, by itself,
preclude application of the statutory exclusionary rule provided by the Act. Thus, we
reach the Commonwealth's remaining claim, wherein the Commonwealth contends that
suppression was not warranted because no “intercept” occurred within the meaning of
the definition as set forth in Section 5702 of the Wiretap Act.
Gary Still, and not the police, spoke directly with defendant by text message in
the at-issue communication, and he did so voluntarily. Still was a party to the
conversation, and therefore he could not be said to have intercepted it simply because
he received it. That he subsequently relayed the contents of that conversation to the
police does not render either his or the police's conduct an "interception" under the plain
meaning of the Wiretap Act.
Diego, 119 A.3d 370 (Pa. Super. 6/23/15)
appeal pending, No. 565 MAL 2015 (filed 7/23/15)
WITNESS – CONFRONTATION
Darius Clark sent his girlfriend hundreds of miles away to engage in prostitution
and agreed to care for her two young children while she was out of town. A day later,
teachers discovered red marks on her 3-year-old son, L. P., and the boy identified Clark
as his abuser. The question in this case is whether the Sixth Amendment's
Confrontation Clause prohibited prosecutors from introducing those statements when
the child was not available to be cross-examined. Because neither the child nor his
teachers had the primary purpose of assisting in Clark's prosecution, the child's
statements do not implicate the Confrontation Clause and therefore were admissible at
trial.
Statements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the interrogation
is to enable police assistance to meet an ongoing emergency. They are testimonial
when the circumstances objectively indicate that there is no such ongoing emergency,
and that the primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.
There may be other circumstances, aside from ongoing emergencies, when a
statement is not procured with a primary purpose of creating an out-of-court substitute
for trial testimony. The existence vel non of an ongoing emergency is not the touchstone
of the testimonial inquiry. Instead, whether an ongoing emergency exists is simply one
factor that informs the ultimate inquiry regarding the “primary purpose of an
interrogation.
One additional factor is the informality of the situation and the interrogation. A
"formal station-house interrogation," like the questioning in Crawford, is more likely to
provoke testimonial statements, while less formal questioning is less likely to reflect a
primary purpose aimed at obtaining testimonial evidence against the accused. And in
determining whether a statement is testimonial, standard rules of hearsay, designed to
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identify some statements as reliable, will be relevant. In the end, the question is
whether, in light of all the circumstances, viewed objectively, the "primary purpose" of
the conversation was to create an out-of-court substitute for trial testimony. Applying
these principles in Bryant, we held that the statements made by a dying victim about his
assailant were not testimonial because the circumstances objectively indicated that the
conversation was primarily aimed at quelling an ongoing emergency, not establishing
evidence for the prosecution. Because the relevant statements were made to law
enforcement officers, we again declined to decide whether the same analysis applies to
statements made to individuals other than the police.
A statement cannot fall within the Confrontation Clause unless its primary
purpose was testimonial. "Where no such primary purpose exists, the admissibility of a
statement is the concern of state and federal rules of evidence, not the Confrontation
Clause. But that does not mean that the Confrontation Clause bars every statement that
satisfies the "primary purpose" test. We have recognized that the Confrontation Clause
does not prohibit the introduction of out-of-court statements that would have been
admissible in a criminal case at the time of the founding. See Giles v. California, 554
U.S. 353, 358-359, 128 S.Ct. 2678, 171 L.Ed.2d 488 (6/25/08); Crawford, 541 U.S., at
56, n.6, 62, 124 S.Ct. 1354. Thus, the primary purpose test is a necessary, but not
always sufficient, condition for the exclusion of out-of-court statements under the
Confrontation Clause.
In this case, we consider statements made to preschool teachers, not the police.
We are therefore presented with the question we have repeatedly reserved: whether
statements to persons other than law enforcement officers are subject to the
Confrontation Clause. Because at least some statements to individuals who are not law
enforcement officers could conceivably raise confrontation concerns, we decline to
adopt a categorical rule excluding them from the Sixth Amendment's reach.
Nevertheless, such statements are much less likely to be testimonial than statements to
law enforcement officers. And considering all the relevant circumstances here, L.P.'s
statements clearly were not made with the primary purpose of creating evidence for
Clark's prosecution. Thus, their introduction at trial did not violate the Confrontation
Clause.
There is no indication that the primary purpose of the conversation was to gather
evidence for Clark's prosecution. On the contrary, it is clear that the first objective was
to protect L.P. At no point did the teachers inform L.P. that his answers would be used
to arrest or punish his abuser. L.P. never hinted that he intended his statements to be
used by the police or prosecutors. And the conversation between L.P. and his teachers
was informal and spontaneous. L.P.'s age fortifies our conclusion that the statements in
question were not testimonial. Statements by very young children will rarely, if ever,
implicate the Confrontation Clause.
Mandatory reporting statutes alone cannot convert a conversation between a
concerned teacher and her student into a law enforcement mission aimed primarily at
gathering evidence for a prosecution.
Ohio v. Clark, ___ U.S. ___, 135 S.Ct. 2173, 192 L.Ed.2d 306 (6/18/15)
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The interview with the child at a local child advocacy center took place nineteen
days after the incident. There is no evidence that the interview took place during the
existence of an ongoing emergency. The record reflects no evidence that A.D.’s
statements were obtained for a purpose other than for later use in criminal proceedings.
The statements were not used for treatment purposes. While the interview was
conducted in an informal setting, the record reflects that the interview was conducted as
part of the criminal investigation, and in consultation with law enforcement officials.
Moreover, the interview was the only means by which law enforcement officials
gathered evidence from A.D. for the criminal prosecution of N.C. Based upon the
evidence of record, A.D.’s statements at the interview were testimonial in nature.
Interest of N. C., 74 A.3d 271 (Pa. Super. 8/8/13)
aff’d, ___ Pa. ___, 105 A.3d 1199 (12/15/14)
A.D. was four years of age when she took the witness stand, and the hearing
commenced with questions posed in an effort to discern her competency to testify
regarding the charges brought against N.C. During both direct and cross-examination at
that time, A.D. answered questions concerning various innocuous topics such as her
birthday, school, family, and her ability to differentiate the truth from a lie with nods and
shakes of her head, along with a few verbal responses. Ultimately, the juvenile court
found A.D. was competent to testify, and the prosecutor commenced direct examination
on the merits.
Notwithstanding, A.D. was unable to provide direct examination testimony
regarding any contact N.C. might have had with her. While the Commonwealth
maintains that A.D. "made the statement a number of times that N.C. had not touched
her," and "alternatively said that she didn't like N.C. and that she did[,]" A.D. never
verbalized a response with regard to the behavior leading to the charges N.C. faced. To
the contrary, despite the prosecutor's persistent encouraging of A.D. to speak so the
juvenile court could hear her, she responded to his queries with head movements and
only a few, single-word verbal responses and became totally unresponsive to his
repeated efforts to elicit information regarding inappropriate contact N.C. may have had
with her on November 5, 2011. Her ultimate recoiling into a fetal position prompted the
juvenile court to acknowledge on the record that A.D. was not going to participate any
further and to suggest she should be removed from the witness stand. Yet, despite
A.D.'s courtroom behavior at this juncture and the fact that two recesses had already
been taken and several changes in caregivers had been made in an effort to make A.D.
more comfortable, all to no avail, the Commonwealth suggests that had defense
counsel requested another break A.D.'s cooperation would have been [imminent]. We
do not agree.
A.D.'s inability to speak and physical recoiling simply is not of the ilk of the
witnesses who either could not remember certain details or refused to cooperate with
counsel. As such, the Superior Court correctly determined that the juvenile court
improperly deemed A.D. to have been available for cross-examination and that N.C.'s
right to confront her guaranteed under the Confrontation Clause of the Sixth
Amendment to the United States Constitution had been violated when it admitted her
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recorded statements, which were testimonial in nature, into evidence during N.C.'s
adjudicatory hearing without N.C.'s having had a prior opportunity to cross-examine her.
Interest of N. C., ___ Pa. ___, 105 A.3d 1199 (12/15/14)
The Commonwealth offered Serrano's hearsay statements through several
sources, including a recording of her 911 phone call and the testimony of neighbors,
police officers, and paramedics. At the beginning of the phone call, Serrano informs a
Berks County 911 operator that her ex-boyfriend, Donald Williams, burned her. Serrano
also informs the operator that her house is on fire. Serrano's voice is frantic, her
breathing is labored, and she repeatedly states that she is burned all over and needs
help. Several times, Serrano states that she feels ready to pass out. The operator asks
what Williams burned her with, and Serrano states that he used gasoline and lighter
fluid to start a fire. The operator asks where Williams is, and Serrano states that he ran
out of the house.
After a short conversation (the run time on the compact disc is two minute and
fifty seconds), the Berks Count operator transfers Serrano to the Reading City police
department. Serrano immediately informs the Reading City operator that her house is
on fire and that defendant, her ex-boyfriend, burned her. The Reading City operator
asks what happened, and Serrano states that her ex-boyfriend came in when she was
in the shower, forced her to "make love" to him, hit her, and attacked her with a
screwdriver. The operator asks where defendant is and if he is armed. Serrano states
that she does not think defendant is armed and that he fled the house. She also
identifies the halfway house where defendant had been living. Serrano's conversation
with the Reading City operator lasted one minute and twelve seconds.
Defendant was not in Serrano's immediate presence during the 911
conversation. Nonetheless, we believe other factors present here indicate an ongoing
emergency. For instance, Serrano was severely and mortally wounded at the time of the
911 call. The record indicates that she sustained first and second degree burns over 49
percent of her body, and a Commonwealth expert testified that Serrano had only a 2
percent chance of survival. Serrano repeatedly and frantically pled for help during the
911 call, and repeatedly stated she felt ready to pass out. Serrano's demeanor, her
repeated pleas for immediate help, and her severe injuries plainly indicate the presence
of an ongoing emergency.
In addition, Serrano's account of the fire's origin was necessary to aid firefighters
in containing the fire. Serrano lived in a row house with adjoining homes on either side,
and the zone of potential victims of defendant's arson therefore included Serrano's
neighbors. Here, defendant used gasoline and lighter fluid to start a fire in a row house.
This posed risks to Serrano's neighbors, and we believe her account of the fire's
location and means of origin pertained to an ongoing emergency.
The ongoing emergency in this case is highly indicative of Serrano's primary
purpose in making her statements. In addition, Serrano's conversation with the 911
operators was highly informal. Serrano was in severe pain, frantic, and repeatedly
asking for help. Neither operator engaged in any formal questioning, nor could they,
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given Serrano's circumstances. Both operators asked how the fire started, which
garnered information necessary to help firefighters do their job.
Serrano did not offer an account of the sexual assault until more than three
minutes into the 911 call, after the Berks County operator transferred her to Reading
City police. Even so, we are not persuaded that the primary purpose of the conversation
changed at that point. Prior to Serrano's account of the rape, the Reading City operator
simply asked, "What happened?" Simply asking a victim "what happened" allows the
police to assess the nature of the threat posed by the perpetrator. Without Serrano's
account of defendant's identity and the nature of the assault, law enforcement would be
unaware of whether defendant knew Serrano or committed a random act of violence.
For all of the foregoing reasons, we conclude the primary purpose of Serrano's
statements during the 911 call was to seek medical assistance and assist first
responders in addressing an ongoing emergency. Her statements were not testimonial,
and their admission at trial did not violate defendant's rights under the Confrontation
Clause.
Williams, 103 A.3d 354 (Pa. Super. 10/30/14)
appeal denied, ___ Pa. ___, 116 A.3d 605 (6/2/15)
WITNESS – EXPERT
[42 Pa.C.S.] § 5920. Expert testimony in certain criminal proceedings
(a) Scope.--This section applies to all of the following:
(1) A criminal proceeding for an offense for which registration is
required under Subchapter H of Chapter 97 (relating to registration
of sexual offenders).
(2) A criminal proceeding for an offense under 18 Pa.C.S. Ch. 31
(relating to sexual offenses).
(b) Qualifications and use of experts.-(1) In a criminal proceeding subject to this section, a witness may
be qualified by the court as an expert if the witness has specialized
knowledge beyond that possessed by the average layperson based
on the witness’s experience with, or specialized training or
education in, criminal justice, behavioral sciences or victim services
issues, related to sexual violence, that will assist the trier of fact in
understanding the dynamics of sexual violence, victim responses to
sexual violence and the impact of sexual violence on victims during
and after being assaulted.
(2) If qualified as an expert, the witness may testify to facts and
opinions regarding specific types of victim responses and victim
behaviors.
(3) The witness’s opinion regarding the credibility of any other
witness, including the victim, shall not be admissible.
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(4) A witness qualified by the court as an expert under this section
may be called by the attorney for the Commonwealth or the
defendant to provide the expert testimony.
The Commonwealth’s expert witness, Carol Haupt, testified that it is common for
child sexual abuse victims to delay in reporting. Ms. Haupt expounded upon some of the
reasons why a child sexual abuse victim may delay in reporting. However, she did not
testify regarding this victim specifically or whether or not the alleged incidents actually
occurred. Ms. Haupt did not offer any opinion regarding the victim’s credibility. Under
Title 42, Section 5920, her testimony was clearly admissible.
Section 5920 is a rule regarding the admissibility of evidence, not a procedural
rule. Furthermore, it is not in direct conflict with any existing rule of the Pennsylvania
Supreme Court. Defendant also argues that our supreme court has ruled on precisely
this issue, in an area specifically consigned to its authority. However, Dunkle, 529 Pa.
168, 602 A.2d 830 (1/22/92), predates Section 5920 and was not based on
constitutional grounds but on existing case law and rules of evidence. As such, we
determine that Section 5920 does not violate separation of powers.
Carter, 111 A.3d 1221 (Pa. Super. 3/19/15)
Dr. Lieberman was called at trial as an expert in forensic pathology. He was
called as a witness due to the fact that Dr. Hunt, the medical examiner who performed
the autopsy was no longer employed by the Medical Examiner's Office in Philadelphia
and it was claimed that Dr. Hunt was not available to testify. Dr. Lieberman testified that
he reviewed the file. Dr. Lieberman apparently agreed with the findings contained in Dr.
Hunt's report.
Dr. Lieberman, who at the time of trial was a Philadelphia Medical Examiner for
22 years, testified that prior to his testimony he reviewed Dr. Hunt's complete report, the
photographs taken during the autopsy, the actual clothing worn by the decedent and
other documents contained in the Medical Examiner's file. Contrary to defendant's
assertion, the record is clear that Dr. Lieberman did not simply recite the opinion of Dr.
Hunt. His testimony was based upon his own conclusions after his own independent
review of the file. This was demonstrated beyond any dispute as he found an error in
Dr. Hunt's initial report. Dr. Hunt's report indicated that one of the bullet wounds traveled
right to left. Dr. Lieberman testified that it was an error and that bullet traveled left to
right.
A medical expert who did not perform the autopsy may testify as to cause of
death as long as the testifying expert is qualified and sufficiently informed.
Buford, 101 A.3d 1182 (Pa. Super. 10/8/14)
appeal denied, ___ Pa. ___, 114 A.3d 415 (5/1/15)
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WITNESS – IMPEACHMENT
Under settled law, evidence that a witness has been convicted of crimen falsi is
generally admissible, unless the conviction (or release from confinement, whichever is
later) is more than ten years old. Pa.R.E. 609(a), (b). It is only when the crimen falsi
conviction is more than ten years old, as it is here, that evidence of the conviction
becomes conditioned on the probative value of the evidence substantially outweighing
its potential prejudicial effect. Pa.R.E. 609(b)(1). The five Randall, 515 Pa. 410, 528
A.2d 1326 (7/9/87), factors then guide that discretionary determination.
Hoover, ___ Pa. ___, 107 A.3d 723 (12/30/14)
Link to: Saylor, J. dissenting
The defendant’s expert grounded her report on mere possibilities instead of a
reasonable degree of certainty. She stated only that the rape victim’s diagnoses of
depression and anxiety in the medical records “may affect [her] perception and
recollection.” She failed to opine that the victim’s alleged depression or anxiety impaired
her perception or recall of the critical events at the heart of this case. Because her
report was nothing more than conjecture or surmise, the trial court acted within its
discretion by excluding impeachment evidence of in the nature of diagnoses of the
victim’s mental health.
Gonzalez, 109 A.3d 711 (Pa. Super. 1/21/15)
appeal denied, ___ Pa. ___ , ___ A.3d ___ (9/29/15)
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