Supreme Decisions (from September)

Supreme Decisions (from September)

Comm. v. Peterson, 192 A.3d 1123 (Pa. 2018)

Out of Crawford County.  The Supreme Court granted allowance to appeal to address one of the time-bar exceptions to the PCRA.  The gist of the case was this. Peterson had pled guilty to two counts of first-degree murder in 1993, and he was given two life sentences to run back-to-back.  Shortly after his plea and sentencing, Peterson’s family retained private counsel to file a post-conviction petition on his behalf, and that petition was filed one-day late.  (This all happened within the context of the General Assembly amending the PCRA law and providing that petitioners whose sentences were finalized beforehand could timely file a PCRA petition on or before January 16, 1997—one year out from the effective date of the amendment.)

The timeliness of Peterson’s petition aside, the petition claimed, among other things, that Peterson was mentally incompetent when he pled guilty.  He had sustained what appeared to be a self-inflicted gunshot wound to the head in connection with the murders.  Post-conviction counsel had had a neuropsychiatrist prepare a report in 1997 to address Peterson’s mental capacity, but for some reason the case sat for the next 15 years.  When litigation on the petition picked back up in 2012, hearings were conducted and Peterson’s expert and his trial counsel testified. The PCRA court denied the petition for post-conviction relief on the merits.  And here’s where things got interesting.

After the PCRA court denied Peterson post-conviction relief he filed an appeal in the Superior Court, which quashed the appeal as untimely, recognizing on its own that Peterson’s petition was untimely by a day—a fact that neither party nor the PCRA court caught.  Accordingly, Peterson turned around and filed a second PCRA claiming that post-conviction counsel was ineffective for making a late filing.  When the matter was back before the PCRA court, that court found as a matter of fact, after an evidentiary hearing, that Peterson had not known the filing deadline date or that it had been missed, nor could he have known that through the exercise of due diligence.  Therefore, when Peterson learned of that missed deadline in the Superior Court’s opinion and then turned around and filed his second petition, that satisfied the time-bar exception in the PCRA that concerns newly discovered facts.  As a result, the PCRA court exercised jurisdiction over the second petition, finding it to be timely filed, but it again denied relief on the same basis as in the first go around.  From this, both Peterson and the Commonwealth cross-appealed with the Commonwealth, of course, taking exception with the timeliness determination.  The Superior Court agreed with the Commonwealth and deemed the petition to be untimely.  On further appeal to the Supreme Court, the issue granted for the Court’s review was whether counsel “abandons” his client by filing one day out of time.

The question of abandonment was important because of two competing lines of cases and how those cases impacted the PCRA’s time-bar exceptions.  These were the parties’ respective arguments:

Before this Court, Peterson argues that the Superior Court improperly focused on whether Counsel “literally or physically” abandoned Mr. Peterson. According to Peterson, the Superior Court also mistakenly focused on cases that apply when counsel’s ineffectiveness merely limits or narrows the issues to be considered on appeal, including, for example, Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d 780 (2000). Peterson insists that this Court’s decision in Bennett should properly be understood to encompass the notion that where, as here, counsel fails to take a procedural step that wholly deprives a PCRA petitioner of the right to substantive review, and the petitioner neither knew of that failure nor could have discovered it through the exercise of reasonable diligence, the subsection 9545(b)(1)(ii) exception to the PCRA’s one-year time bar permits the filing of a new petition beyond the one-year time bar.

The Commonwealth, conversely, argues that Counsel did not abandon Peterson because “abandonment” occurs only when the attorney severs the principal/agent relationship. According to the Commonwealth, absent severance of the attorney/client relationship, a PCRA petitioner is bound by his lawyer’s conduct, “[n]o matter how egregious.” The Commonwealth insists that severance of the attorney/client relationship requires a withdrawal of representation, either expressly, by terminating authority to act on behalf of the client, or by failing to communicate with the client or to respond to inquiries over a period of years. As such, the Commonwealth disputes that “a single negligent act i.e., missing a filing date,” can constitute “abandonment” as this Court used that term in Bennett. 

From these two differing positions, the Supreme Court landed on Peterson’s side and held as follows:

In the present case, Counsel’s untimely filing of Peterson’s first PCRA petition constituted ineffectiveness per se, as it completely deprived Peterson of any consideration of his collateral claims under the PCRA. As a result, pursuant to Bennett, . . . Peterson, when filing his second PCRA petition, had successfully invoked the subsection 9545(b)(1)(ii) exception to the time bar.Counsel’s ineffectiveness per se in connection with Peterson’s first PCRA petition was a newly discovered “fact” and the PCRA court made factual findings that Peterson did not know about the untimely filing and could not have ascertained this fact through the exercise of due diligence. PCRA Peterson filed his second PCRA petition within sixty days after he learned of the untimely-filed petition. 42 Pa.C.S. § 9545(b)(2).

Therefore, considering the above, the Supreme Court remanded the matter to be heard as a timely, second PCRA.

Comm. v. Irland, 193 A.3d 370 (Pa. 2018).

Out of Adams County. This was a forfeiture case that made its way up to the Supreme Court. Irland had been involved in a road-rage incident where he was alleged to have waved his handgun in the air, and the incident resulted in misdemeanor charges that were ultimately resolved with a plea to summary disorderly conduct and a $200 fine.  His handgun, of course, was initially recovered by the police when the incident occurred.

After his summary plea, Irland petitioned the court of common pleas for a return of his handgun, which the court denied.  He appealed that decision to the Commonwealth Court, which has jurisdiction over such issues.  The Commonwealth Court ruled in Irland’s favor, so the Commonwealth took a further appeal to the Supreme Court.  The issue before the High Court was this: “whether a common-law basis for the forfeiture of derivative contraband exists in Pennsylvania?”  (“Derivative contraband” is “property innocent by itself, but used in the perpetration of an unlawful act.”)

After some serious, deep-rooted historical analysis into the origins of forfeiture and laws of attainder—which may be an interesting read for some—the Supreme Court ultimately concluded that “there is no historical foundation establishing common law civil forfeiture in the Commonwealth and that civil forfeiture of derivative contraband requires statutory authorization.”

***Personal note: The Court’s opinion is yet another one (authored by C.J. Saylor) that’s showing the Supreme Court’s willingness to part ways with deep-rooted court practices, or theories (e.g. Pinkerton liability), which have no statutory authorization.  Given this trend, criminal practitioners should not hesitate to challenge time-honored, common-law doctrines given the make-up of this particular Court.

Comm. v. Wilmer, 194 A.3d 564 (Pa. 2018)

Out of Cumberland County.  This discretionary appeal before the Pennsylvania Supreme Court tested the bounds of what is known as the emergency-aid exception to the Fourth Amendment’s warrant requirement.  The critical facts can be summed like this.  State Troopers on foot patrol saw a number of people on the roof of a sorority house, one in particular being a young man who appeared to be “visibility intoxicated and unsteadily stumbling around on the roof.” Seeing this, the Troopers forced entry into the house to assist this young man.  By the time they got to him, however, he had fallen.  Consequently, the troopers went out of the sorority house and then back into to take a report.  They took a report from one of the women (Wilmer) who resided in the house, and while taking the report they noticed in her room marijuana and drug paraphernalia, which they seized.  The question was whether that subsequent re-entry and search and seizure was lawful.  The Supreme Court held that it was not.  The holding of the Court was this: the trooper exceeded the scope of the emergency-aid exception to the warrant requirement by re-entering the sorority house after the initial emergency that had justified warrantless entry had dissipated.

The High Court was not convinced that the re-entry to take a report was either reasonable or justifiable or akin to an inventory of a vehicle.  Justice Donohue writing for the Court said this:

We reject any suggestion that the need for accurate police record-keeping in connection with potential property claims justifies the entry into a private residence. Warrantless inventory searches are permitted because a private citizen’s property is temporarily in the possession of the police, a circumstance that generates legitimate concerns by both parties. No similar concerns arise in the present context, however, as the police did not seize the sorority house. Instead, the Troopers merely temporarily invaded the private dwelling to obviate an emergency situation, and the accuracy of police record-keeping in this circumstance is of no constitutional moment.

Thus, the point is made clear: once the emergency that justifies a warrantless entry dissipates and the police leave, the police cannot re-enter the dwelling without a warrant or some other warrant exception that justifies the re-entry.

Comm. v. Crispell, 193 A.3d 919 (Pa. 2018)

Out of Clearfield County.  This was a capital post-conviction appeal.  In fact, this appeal involved a cross-appeal by the Commonwealth, which appealed the lower court’s grant of a new penalty phase due to trial counsel’s ineffective assistance.  

The Supreme Court addressed several issues in this appeal— none that were particularly groundbreaking, so to speak—and it ultimately affirmed the grant of a new penalty-phrase proceeding.  But the portions of the Court’s opinion that stood out, which may be most helpful to the bench and bar, were these pronouncements.

First, regarding “cumulative prejudice” in the post-conviction context, Justice Wecht wrote this:

This Court has stated that “no number of failed [ineffectiveness] claims may collectively warrant relief if they fail to do so individually.” Commonwealth v. Sepulveda, 618 Pa. 262, 55 A.3d 1108, 1150 (2012) (quoting Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215, 245 (2007) ). However, the Court also has clarified that, if there have been multiple instances of deficient performance, “the assessment of prejudice properly may be premised upon cumulation.” Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 532 (2009).

Second, regarding the admission of “crimes, wrongs, or other bad acts” as res gestae, Justice Wecht opined for the Court in such a way to remind lower courts that the need to “furnish the complete store or context of events surrounding the crime” is not without limitations.  He wrote in this case:

We agree with Crispell . . . . Evidence of the purse snatching was a crime, wrong, or other bad act that was inadmissible against Crispell absent an applicable exception. The PCRA court herein applied the res gestae exception, opining without further analysis that “[t]he jury cannot be left in a vacuum as to how [Crispell] was apprehended.” This explanation might provide an arguable basis for making the jury aware of Crispell’s arrest in Arizona, but it does not address or substantiate the legality of also disclosing to the jury the reason for that arrest.

Contrary to the PCRA court’s holding, the purse snatching in Arizona had nothing to do with [the victim’s] murder and, therefore, was not part of the complete story or natural development of events forming the history of the case. At the time of the attempted purse snatching, [the victim’s] murder was complete, having occurred days earlier and over two thousand miles away. Moreover, the PCRA court’s analysis is not responsive to Crispell’s assertion that trial counsel also was ineffective for failing to request a cautionary jury instruction. Had the evidence been admissible as res gestae, as the PCRA court held, Crispell would have been entitled to a jury instruction regarding the purpose for which the evidence was admitted.

*** Personal note: Overall, the Court’s opinion in Crispell is a thoughtful one, and there are many lessons that could be taken from the opinion (particularly by capital counsel), but, again, these were the most poignant points that stood out to me, which have broad appeal.