A Circumstantial DUI, A Case of Be-Careful-What-You-Ask-For, and the Kathleen Kane Case

A Circumstantial DUI, A Case of Be-Careful-What-You-Ask-For, and the Kathleen Kane Case

Comm. v. Gooseby-Byrd, 2018 PA Super 134 (May 23, 2018)

This was an appeal out of Delaware County.  This was a DUI case charged under 75 Pa.C.S. § 3802(a)(2), which indicates Appellant’s blood-alcohol level (BAC) was relatively low—here, 0.88% (just over the legal limit).

The facts are relatively straightforward, and this case was resolved due to a credibility determination by the trial court.  In this case, specifically in August of 2016 at 1:38 a.m., police responded to a call to investigate a disturbance of people arguing in a vehicle.  Upon arrival at the scene within two minutes of the call, the officer came upon a running, parked vehicle that was occupied by three women who were arguing loudly.  The Appellant was in the driver seat.

Smelling an odor of alcohol coming from the car and observing the Appellant exhibited signs of drinking, the officer asked of the Appellant if she had been drinking.  She denied that she was.  She indicated that her and the others (one being her sister) were coming from a club in West Philadelphia, and the others had been drinking.  However, when asked to step from the car, she failed three standard field sobriety tests.  Notably, this evidence notwithstanding, the officer never saw the vehicle in motion, nor could the officer say that Appellant had drove the vehicle to the location where he found it.

This was a purely circumstantial case.  Appellant didn’t contest her BAC, rather she emphasized at trial that police “never saw her operating the vehicle,” thus there was insufficient evidence to convict her of DUI.  In support, she had her sister testify at trial that she, in fact, was the driver, but she did not reveal this fact at the scene, or after Appellant’s arrest at the scene, because “she was reluctant to admit to driving [since] she did not have a license.”

In all, this story didn’t fly for the trial court.  The Superior Court noted, “In rejecting Appellant’s sufficiency claim, the court expressly found the testimony of [Appellant and her sister] to be ‘completely lack in credibility as it was riddled with inconsistencies throughout.’  The [trial] court concluded that ‘their self-serving testimony was incredulous.’”  Therefore, the Superior Court said, in light of this credibility determination, “the evidence was sufficient for the trial court to establish beyond a reasonable doubt that Appellant drove a vehicle under the influence of alcohol.”

***Personal note: This case is an important lesson for practitioners and clients alike that a circumstantial case coupled with credibility concerns can turn a weak case into a strong one.

 

Comm. v. Knoble, 2018 PA Super 135 (May 24, 2018)

This was an appeal out of Northampton County.  Two issues were raised on appeal regarding (1) the joinder of Knoble’s three separate criminal dockets for trial, and (2) the search of Knoble’s phone well after the initial search under a stale search warrant.

The suppression issue is the more likely reason for the publication of this decision. The joinder issue was more or less a straightforward application of the law.  All three criminal dockets were properly consolidated, the Superior Court said, because they “were part of a chain or sequence of events which formed the history of the case and were part of its natural development.”  Thus, it was logical to try all three cases to one jury.

The suppression issue, while also affirmed in favor of the Commonwealth, was what proved to be more interesting.  The Court’s analysis of that issue follows, but here are some of the background facts.

Knoble had taken pictures and a video on his cell phone of his victim shot in the head, lying in a pool of blood, inside of a hotel room.  (Knoble had originally showed the video to his mother, who reported it to the police.)  When Knoble was arrested and the phone was retrieved, it was searched pursuant to a search warrant, but only a still-frame photo of his victim, lying facedown with an apparent bullet-wound to his head, was recovered. With no video turning up, Knoble’s defense team had requested months later that his own expert be able to do a data extraction on the phone.  Before that occurred, the Commonwealth took another pass at the phone, using more advanced software, and lo and behold more incriminating datas (including the video) surfaced.  Naturally, Knoble moved to suppress this stuff.  The Superior Court had this to say, however.

Appellant claims that the “Commonwealth’s warrantless search of the [c]ell [p]hone and extraction of the raw data therefrom . . . violated [Appellant’s] privacy rights[.]” Analogizing the second search of his cell phone to the search of a home, Appellant argues that the second search, which took place nine months after police conducted the initial search, was “well outside the ‘outer limit’ of any ‘reasonable delay’ between the issuance and execution” of the authorizing warrant. Appellant argues in the alternative that he did not consent to the second search of his phone using updated software that enhanced the Commonwealth’s ability to extract data. He posits that he may not have wanted his expert to review the extracted data had he known that, in order to do so, the Commonwealth would extract additional and extremely prejudicial evidence. Last, Appellant disputes that the introduction of the two videos was harmless error. Appellant, therefore, concludes that the court erred in not suppressing the seized video files.

The Commonwealth avers that the April 2015 search warrant authorized the subsequent January 2016 search and extraction of data from Appellant’s cell phone. In the alternative, the Commonwealth asserts that Appellant consented to the search because the EPD conducted the search pursuant to Appellant’s request for information.

It is well-settled that the extraction of data from a cell phone constitutes a search that requires police to obtain a search warrant prior to extraction. Riley v. California, 134 S.Ct. 2473 (2014).

It is generally the case that police must speedily execute searches conducted pursuant to a warrant because the decision to issue a warrant “must be based on facts which are closely related in time to the date the warrant is issued.” Commonwealth v. Shaw, 281 A.2d 897, 899 (Pa. 1971). However, our Supreme Court has recognized that “[t]here are times when the facts and circumstance[s] presented to the magistrate [in support of the warrant] remain unchanged long after the warrant is issued.” Commonwealth v. McCants, 299 A.2d 283, 286 (Pa. 1973). In instances where the facts and circumstances upon which the search warrant was based remain unchanged with the passing of time, probable cause still exists.

On April 13, 2015, after demonstrating the existence of probable cause, the Commonwealth obtained a warrant to extract data from Appellant’s cell phone. That same day, Langton extracted data from Appellant’s cell phone pursuant to that valid warrant. Nine months later, Langton conducted a second extraction in order to fulfill Appellant’s expert’s request to review the raw data.

Here, this Court’s review of the record reveals that the facts and circumstances supporting the issuance of the April 13, 2015 search warrant

remained unchanged at the time of the second extraction. EPD had legally seized Appellant’s cell phone from Ms. Knoble’s residence with her consent in March 2015. EPD then secured the phone to ensure that it remained in its

original condition and that no one could alter its contents. Appellant’s cell phone was in police custody during the entirety of the relevant period and remained unalterable. It is, thus, evident that the facts and circumstances presented to the magistrate who issued the initial search warrant did not change. Accordingly, we conclude that the April 13, 2015 search warrant authorized the subsequent search and obviated the need for the

Commonwealth to obtain another warrant. Appellant is, therefore, not entitled to relief on this issue.

 

Comm. v. Kane, 2018 PA Super 137 (May 25, 2018)

This was the appeal taken by former-Attorney General Kathleen Granahan Kane, following her convictions in Montgomery County.  The underlying facts are convoluted, so the issues raised on appeal are presented below (rephrased for clarity), and the pertinent excerpts from the Superior Court’s opinion follows.  (It should be noted that in deciding this case, the Superior Court “disposed of all five of Kane’s claims based on the [trial court’s] opinion,” which is seemingly odd given the public profile of this case.)

  1. Kane sought to have all judges of the Montgomery County Court of Common Pleas recused from participating in her case.  Was the lower court wrong in failing to disqualify itself and Montgomery County bench?

Kane first claims that the trial court erred in denying her motion to recuse all judges of the Montgomery Court of Common Pleas. Specifically, Kane argues that three judges of the Montgomery County Court of Common Pleas12 had significant connections with the investigation and prosecution of her case, which constituted conflicts, and that the trial court should have imputed said conflicts to all of the judges sitting on the Montgomery County Court of Common Pleas. (Kane identifies Judge Carpenter, the Honorable Risa Vetri Ferman (formerly the Montgomery County District Attorney), and the Honorable Carolyn T. Carluccio (spouse of Special Prosecutor Carluccio) as the judges she claims have connections to the investigation and prosecution of the instant case.)

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The mere fact that some judges of a particular court may have some familiarity with a particular case has not been held to be a basis for recusal of an entire bench of judges. There is no evidence of record that the majority of judges of the Montgomery Court of Common Pleas have a relationship with Judge Demchik-Alloy or Special Prosecutor Carluccio. Nor is there any evidence that Judges Carluccio or Ferman were involved in this matter or that Judge Carpenter wielded special influence over Special Prosecutor Carluccio. Without some evidentiary showing of an interest, Kane’s allegations merit no relief.

  1. Kane soughy to suppress evidence presented against her in the Thirty-Fifth Statewide Investigating Grand Jury claiming the evidence was unconstitutionally obtained.  Was it error for the lower court to deny that request?

Kane first avers that the trial court erred in not suppressing evidence gathered during the course of Special Prosecutor Carluccio’s investigation. In support of Kane’s claim, she cites In re The Thirty-Fifth Statewide Investigating Grand Jury, supra, in which five of our Supreme Court’s Justices filed four opinions in the disposition of her aforementioned quo warranto action.

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Our Supreme Court’s holding In re The Thirty-Fifth Statewide Investigative Grand Jury contradicts Kane’s position that Special Prosecutor Carluccio’s use of the grand jury was unauthorized by judicial precedent. Accordingly, Kane’s claim is meritless.

In In re The Thirty-Fifth Statewide Investigative Grand Jury, our Supreme Court specifically determined that Judge Carpenter did not exceed the powers lawfully vested in his judicial office to grant Special Prosecutor Carluccio the authority to compel testimony and production of documents and to issue a report on his findings based on that evidence. This is the law of the case, and as such, our Supreme Court’s finding in In re The Thirty-Fifth Statewide Investigative Grand Jury is final and binding on this Court. Therefore, Kane’s argument is meritless. Furthermore, Kane’s citation to In re The Thirty-Fifth Statewide Investigative Grand Jury is inapposite to the argument presented in her motion to suppress evidence and is of no support to her position.

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Again, our Supreme Court’s decision in In re The Thirty-Fifth Statewide Investigative Grand Jury belies Kane’s claim that Special Prosecutor Carluccio’s investigation was unlawful and violated Kane’s constitutional rights. The basis for Kane’s motion for quashal is that Mr. Carluccio lacked lawful authority to obtain the presentment that led the district attorney to file the charges in these actions. However, to warrant quashal, appellant would have to demonstrate that no other alternative would be adequate to vindicate her rights. The matter of In re Thirty-fifth Statewide Investigating Grand Jury is again instructive. Despite there being various opinions by the various Justices of the Court, collectively, they do not establish that Kane has a right to any form of relief, assuming arguendo that Mr. Carluccio lacked lawful authority to draft and issue a presentment. The Chief Justice and Justice Eakin expressly concluded that the judiciary has an implied power to authorize an appointee to issue a presentment. Justices Todd and Stevens were somewhat less authoritative on this issue. Justice Baer was willing to assume, without deciding, that such proceedings violated appellant’s due process of law rights but he concurred in the judgment denying relief because he concluded that any infringements of appellant’s rights would be “rendered harmless” as long as appellant’s right to due process of law was honored in the proceedings following the filing of charges. Therefore, a majority of the justices deciding this issue determined that no relief was due appellant since either there was authority to draft and issue a presentment or at worst, the lack of authority was rendered harmless by the factual circumstances in this specific case, by the proceedings which followed the presentment and charges. Judge Demchick-Alloy did not abuse her discretion in denying Kane’s motion to quash all charges. This argument is meritless.

  1. When the lower court granted the Commonwealth’s request to exclude Kane’s reference at trial to pornography found in e-mails of former OAG attorneys, and further sustained the Commonwealth’s objection to the defense’s opening address to the jury about “other issues involving other cases,” did those ruling improperly limit Kane’s right to present a defense?

Kane argues, for a plethora of specious reasons, that the trial court erred in not permitting her to introduce evidence of pornographic emails and the Jerry Sandusky case. Kane claims that the trial court erred when it granted the Commonwealth’s motions in limine to prohibit any reference at trial to pornography discovered in the OAG emails of Former Assistant Attorney Generals Frank Fina, Esquire, and Marc Costanzo, Esquire. Kane also argues that the trial court prohibited her from introducing evidence material to her defense when it sustained the Commonwealth’s objection to her discussion of Attorney Fina’s investigation of crimes related to child abuse by Jerry Sandusky.

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The trial court properly concluded that: (1) the probative value of evidence of pornographic materials discovered in Attorney Fina’s and Attorney Costanzo’s OAG email accounts was speculative and inadmissible, and thus, the trial court properly barred Kane from discussing it during her opening argument; and (2) evidence of the Sandusky investigation was irrelevant to Kane’s defense. Accordingly, Kane’s fourth claim on appeal is meritless.

  1. Kane moved to quash the indictment against her on grounds of it being a selective and vindictive prosecution.  Was the lower court wrong to deny that motion?

A vindictive prosecution claim is not a defense on the merits and not a matter for presentation to the jury. Commonwealth v. Stetler, 95 A.3d 864, 892 (Pa. 2014). A presumption of prosecutorial vindictiveness arises if a defendant establishes facts that demonstrate a probability that an adverse action by the prosecution or court has been motivated by vindictiveness in retaliation for successful exercise of a defendant’s legal rights rather than for some other legitimate cause. Commonwealth v. Rocco, 544 A.2d 496, 498 (Pa. Super. 1988). The key to whether a presumption of vindictiveness arises in a given case would be the factual circumstance in which the challenged action occurred. Id. However, “due process does not forbid enhanced sentence or charges; rather, only enhancement motivated by actual vindictiveness toward the defendant for having exercised his [or her] legal rights is forbidden.” Id. at 499. A pre-trial decision to enhance sentence or charges “is less likely to be improperly motivated than a decision made after trial.” Commonwealth v. Chamberlain, 30 A.3d 381, 419 (Pa. 2011).

On the other hand, selective prosecution is a complete defense to a charge of criminal conduct, in which the accused bears the burden of pleading the existence of the elements of the events. See Goodman v. Kennedy, 329 A.2d 224, 232 (Pa. 1974) (“A purposeful discrimination must be shown [by the defendant] and we cannot presume such discrimination.”).

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Instantly, the facts of record do not support Kane’s claim of vindictive prosecution. The prosecutors in Kane’s case made no changes to the charges initially filed against her until after the execution of a search warrant unveiled new facts that warranted the filling of additional charges. Nor has Kane pled facts proving either of the elements necessary to establish a claim of selective prosecution. Kane has not shown that others similarly situated were not prosecuted for similar conduct, nor has she provided evidence of impermissible conduct by the Montgomery County District Attorney’s Office. Therefore, Kane’s claim that the Commonwealth vindictively and/or selectively prosecuted her for the foregoing charges is meritless and no relief is due.

  1. Was the lower court wrong to deny Kane’s request that her jury be instructed that grand-jury secrecy applies only to matters actually occurring before the grand jury?

Instantly, the trial court correctly determined that Kane’s proposed jury instruction implied that she could have legally disclosed grand jury information that the law forbade her from publishing. Therefore, the trial court properly concluded that “[i]nstructions to the jury are to be fair and accurate; they are not required to embody points that a party more properly should make in argument.” Trial Court Opinion, 3/2/17, at 102, quoting Commonwealth v. Lesko, 15 A.3d 345, 397 (Pa. 2011). We discern no abuse of discretion or error of law in the trial court’s decision to refuse a legally incorrect charge to the jury.