June has been a busy month, yet at the same time a relaxing one with a much-needed vacation. This month, the appellate courts haven’t let up. I haven’t let up either, staying on top of the recent published decisions out of Pennsylvania and the U.S. Supreme Court. However, I just haven’t been able to write my usual blog summaries of each case—the task would be exhaustive. Nevertheless, to keep you informed, I’ve prepared below the summary holdings of each reported decision, and in some instances my commentary on the matter. I hope you enjoy and continue to follow.
U.S. Supreme Court
- Carpenter v. United States: The government’s acquisition of cell-site records is a “search” for purposes of the Fourth Amendment that requires the need for a warrant, or warrant exception, to justify the search. The Court said: “We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information. In light of the deeply revealing nature of CSLI [cell-site location information], its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection. The Government’s acquisition of the cell-site records here was a search under that Amendment.” Personal note: Here, though the government obtained business records that MetroPCS generated and created and which, under prior precedent, the Court would have deemed individuals to have no reasonable expectation of privacy in since the documents are no one’s but MetroPCS’s, the Court made an exception in this case given the revealing nature of the information contained in these documents. Thus, the Court made a narrow ruling related to the sort of documents at issue here: that people have a reasonable expectation of privacy in the sort of information that collects where they are at any given point in time in the preceding five years.
Pa. Supreme Court
- Comm. v. Leed: This appeal was taken to address this issue: whether a seemingly inadvertent date typo in an affidavit of probable, used to support a search-warrant application, renders the supporting information stale and undermines probable cause to search? Despite the usual four-corners analysis undertaken when a challenge is posed to a search warrant, the Supreme Court held as follows:
“[W]e hold that where the subtance of an affidavit, read as a whole, evidences that there is a substantial likelihood that a specific paragraph contains an error, such that any reasonable possibility that the police will act without the requisite probable cause is eliminated, the error will not be viewed in isolation and the warrant will be deemed valid, as long as the probable cause affidavit is otherwise sufficient.”
- Comm. v. Walker: This appeal resolved an issue related to a misstep that the Commonwealth made in its reading of the Rules of Appellate Procedure when it filed a single appeal to a single order, which resolved four separate docket numbers. Under the Rules, how the Commonwealth went about the appeal was improper, so the Superior Court quashed its appeal. However, the Supreme Court reversed, allowing the Commonwealth’s appeal to proceed, but this was a one time thing. The Court said, “[P]rospectively, where a single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each case.”
- Comm. v. Smith: The question up for review was “whether the deadly-weapon-used sentencing enhancement applies to a defendant who is convicted of aggravated assault based on a motor vehicle accident, where the defendant acted recklessly but did not specifically intend to injure the victim?” The Court said it does not. “In reading the [deadly-weapon-used enhancement] as it applies to a motor vehicle . . . we ultimately conclude that criminally reckless use of such a vehicle for its ordinary purpose of transportation does not trigger an enhanced sentence notwithstanding that such recklessness results in serious bodily injury.” In other words, plainly speaking, if a person “employs” a motor vehicle for the conscious object of plowing that vehicle through a crowd to inflict injury on others, then the the vehicle may be treated as deadly weapon and the enhancement may be used for sentencing purpose. Here, where the occasion for the use of the vehicle was for its ordinary purpose, albeit under reckless circumstances of driving under the influence, that will not justify deeming the vehicle a deadly weapon.
- Comm. v. Brown: This case is part of an evolving struggle that courts have with the Confrontation Clause of the Sixth Amendment, which really started with the U.S. Supreme Court’s ruling in Crawford v. Washington. The issue boils down to what sort of out-of-court statements can be introduced at trial without the speaker or author having to take the witness stand. These statements generally are categorized as “testimonial” or “non-testimonial.” Here, specifically, the question on appeal was “whether an autopsy report is testimonial in nature, such that the report’s author must appear as a witness subject to cross-examination at a criminal trial for murder when the report is introduced as evidence substantiating the cause of the victim’s death.” The majority of the Court held that “the primary purpose for preparation of an autopsy report under these circumstances is to establish or prove past events potentially relevant to a later criminal prosecution and that any person creating the report would reasonably believe it would be available for use at a later criminal trial. Thus, [the] autopsy report . . . was testimonial.” Personal note: Notably the language of Court’s holding was carefully worded to ensure that the Court was finding the autopsy report to be testimonial “under these circumstances” and “in this case.” Practitioners should be mindful that that might not always be true in future cases, say for instance when an autopsy report is prepare as a matter of course but not with a specific suspect of wrongdoing in mind. The jurisprudence on this issue of “what is testimonial and what is not” is grey, highly fact specific, and all over the place.
Pa. Superior Court
1. Comm. v. Ward, 2018 PA Super 142 (June 1, 2018): Out of Allegheny County. Held: Removal of evidence outside of the country (specifically a car that was an important piece of evidence in a double murder) was not the product of bad faith on the Commonwealth’s part. This finding was dependent on the facts of record. The Court reasoned: “The record does not reflect that the car was disposed of ‘in a calculated effort to circumvent the disclosure requirement,’ or that there was any ‘official animus towards [Appellant] or . . . conscious effort to suppress exculpatory evidence.’ Appellant had ample opportunity to examine the Lexus. The Commonwealth believed that the car would continue to be available. The most that Appellant can perhaps establish is that the Commonwealth was negligent in failing to obtain an order to return the vehicle to police custody; however, negligence is not bad faith.”
2. Comm. v. Kretchmar, 2018 PA Super 143 (June 1, 2018): Out of Bucks County. Held: The Supreme Court’s holding in Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017), did not announce a new constitutional rule, nor was it a “watershed rule of criminal procedure,” which would justify Appellant to file a new PCRA under one of the exceptions to the 1-year filing rule.
3. Comm. v. Tejada, 2018 PA Super 145 (June 1, 2018): Out of Erie County. (My favorite opinion of the month and an interesting read.) “In this issue of first impression in Pennsylvania, [the court] addressed . . . whether a pro se defendant forfeits his right to representation when his behavior results in the loss of right to be present for trial. Held: A trial court must appoint stand-by counsel for a defendant representing himself who’s removed from the courtroom due to his unruly behavior. Personal note: The Court’s opinion was authored by Judge Bowes who, in my humble opinion, has been hitting all the right notes in her opinions. And this particular excerpt is no exception. She writes: “‘Removing a disruptive defendant from the proceedings is a permissible means for a court to discharge its duty to defend the judicial process. The Commonwealth asks us to find that justice was done because all Appellant had to do was behave. There is little need to defend the right to representation for pro se defendants who show the judicial system the respect it deserves. There is, however, much to be said for defending the integrity of the judicial system from those persons, like Appellant, who actively seek to diminish it. ‘Our system strives to be fair, even to those who . . . work the hardest to undermine it.’ It would demean the institution of this Court to affirm a verdict rendered without any semblance of adversarial proceedings, no matter how distastefully Appellant behaved at this trial and in past proceedings.”
4. Comm. v. Pew, 2018 PA Super 148 (June 4, 2018): Out of Philadelphia. Held: For this serial-PCRA filer, the failure to establish how documents attached to the pro se PCRA were previously unavailable to Appellant, or why he did not ascertain these documents in the previous decades, is fatal to an attempt to come into court under the timeliness exception referred to as the “newly-discovered-facts exception.” (Here, the Superior Court, as is common, refers to this exception as the “after-discovered evidence exception,” which continues to breed confusion in this area of the law and which the Supreme Court has continued to have to provide reminders about.) Additionally, this case reaffirmed the prior holding of the Superior Court that held those who were convicted of first- or second-degree murder for acts they committed when they were 18 or older do not benefit from the U.S. Supreme Court’s rulings in Miller or Montgomery.
5. Comm. v. Golson, 2018 PA Super 149 (June 4, 2018): Out of Montgomery County. Held: Appellant amassed a prior conviction under his birth name (i.e. Anthony Hill), which was conceded to and acknowledged at trial. There was no post-trial, fact-finding function that the trial court had to engage in related to Appellant’s identity and for purposes of calculating his actual convictions. Thus, Appellant’s sentencing did not run afoul of Alleyne principles, and it’s notable that that the mere calculation of prior convictions do not implicate Alleyne.
6. Comm. v. Weber, 2018 PA Super 150 (June 5, 2018): Out of Allegheny County. Held: The trial court deprived Appellant of his constitutional right to present a defense by refusing to allow him to testify at trial regarding his fear when he fled from police, and by denying his request for a personal safety instruction based on the evidence of record. Personal note: The case was one of first impression interpreting one of the two statutory defenses to the fleeing-and-eluding statute, specifically that under 75 Pa.C.S. § 3733(c)(2). Presently, I have an appeal of first impression dealing with the interpretation of the flip side of this defense under § 3733(c)(1).
7. Comm. v. Hewlett, 2018 PA Super 151 (June 5, 2018): Out of Philadelphia. Held: where counsel objects to the Commonwealth’s presentation of evidence but nevertheless, at the court’s request, agrees to and drafts a curative instruction, that acquiescence waives any challenges to the court’s ruling. Personal note: I’m baffled by this holding, and I wholeheartedly agree with the sentiments of Judge Bowes, which she expressed in her concurring opinion. I think it is worth repeating what she wrote: “In context, Appellant[’s counsel] was plainly stating that he respected and understood, but did not agree with, the trial court’s ruling. From now on, litigants would be well-advised never to agree in any fashion with a court’s ruling, lest this Court later mistake courtesy for capitulation. Finding waiver on these terms discourages civility and promotes combativeness. In my view, Appellant preserved his objection, and I would reach the merits of his claim.”
8. Comm. v. Perez, 2018 PA Super 152 (June 5, 2018): Out of Philadelphia. Held: Commonwealth appeal of dismissal of charges after two preliminary hearings is interlocutory, provided that Commonwealth is not prohibited from refiling charges. Personal note: Judge Strassburger filed a dissenting opinion in this case, and I believe his reasoning his sound. The Court should have handled this case on the merits and treated the last dismissal of charges as a final order.
9. Comm. v. Rouse, 2018 PA Super 159 (June 8, 2018): Out of Philadelphia. Held: A void-for-vagueness challenge to the second-degree murder statute in a habeas petition did not implicate a legality-of-sentence claim, thus making it cognizable under the PCRA. It was error for the lower court to treat the habeas petition as a second PCRA. However, habeas relief was not warranted on this issue because Appellant failed to preserve the issue, or “exhaust all available remedies,” before resorting to a habeas petition. Personal note: This opinion signals to me that, perhaps, the Court is looking to make an opening for post-conviction relief outside the confines of the PCRA law, which is supposed to be the exclusive vehicle for all forms of post-conviction relief. This opinion very well could breed confusion in PCRA jurisprudence.
10. Comm. v. Gad, 2018 PA Super 160 (June 11, 2018): Out of Northampton. Held: Although evidence of Appellant’s prior assault and intimidation of a prior girlfriend may have been prejudicial to Appellant, the trial court’s allowance of this prior bad conduct into evidence was not unfairly prejudicial, thus the trial court did not abuse its discretion. The alleged victim in this case did not appear to testify at trial; therefore, the evidence related to Appellant’s prior abusive relationship, and the testimony of his ex-girlfriend in that regard, was admissible to explain the current victim’s absence from trial (i.e. because of his pattern of threats) and to establish any “absence of mistake or accident.” Here, Appellant was making the claim at trial that “a seizure disorder was the culprit for [the current victim’s] injuries.” The testimony of the prior girlfriend negated that possibility. Personal note: This case is a powerful reminder that, when it comes to domestic-violence cases, sometimes the government can make out its case notwithstanding the absence of the actual victim.
11. Comm. v. Arcelay, 2018 PA Super 161 (June 12, 2018): Out of Montgomery County. Held: “To the extent Appellant contends that only a military court had subject-matter jurisdiction to court-martial him, he is incorrect. It is well-settled that military and non-military courts may exercise concurrent subject- matter jurisdiction over criminal offenses.” Personal note: This opinion was an interesting read. The Appellant was facing charges for animal cruelty. He was a reservist attending a picnic on a military instillation, and he had left his two dogs in the car, where they almost died due to heat exhaustion. The matter was prosecuted in a summary trial at the magistrate; Appellant was convicted and appealed to the Court of Common Pleas; then counsel was appointed to take the case up to the Superior Court. The jurisdictional issue was raised for the first time on appeal, and it addressed a Pennsylvania statute that was specific to the particular base this crime occurred. The result of the case may have been different but for how the case was initiated—that is by way of summons instead of an arrest or warrant. Needless to say, the case is a good reminder for the practitioner to be mindful of jurisdictional issues that relate to the defendants who serve in the military.
12. Comm. v. Bond, 2018 PA Super 163 (June 13, 2018): Out of Philadelphia. Held: Because an alleged child-victim’s recorded forensic interview did not pre-date the alleged motive to lie or fabricate, it did not qualify as a prior-consistent statement under Rule of Evidence 613(c)(1). However, the admission of the forensic interview into evidence was harmless because defense counsel referenced the incriminating substance of the interview during cross-examination before the interview was even played.
13. Comm. v. Parrish, 2018 PA Super 167 (June 15, 2018): Out of Luzerne County. Held: Insufficient evidence to establish that Appellant knew about contraband in vehicle, let alone that he exercised dominion and control over it. Reversed conviction of the jury. Personal note: Defense counsel should keep this opinion in their arsenal of cases to refer to in constructive possession cases where their client is located in the back seat. I’m actually pretty astounded by this result because I’ve seen the Superior Court easily uphold a jury verdict under similar facts.
14. Comm. v. Goodmond, 2018 PA Super 168 (June 15, 2018): Out of Philadelphia. Held: Because Appellant failed to demonstrate to the PCRA court or the Superior Court that his counsel was aware of two purported “character witnesses” not called at trial—one of which was his mother—his ineffective-assistance claim fails. Furthermore, counsel cannot be deemed ineffective for failing to investigate whether the alleged victim had gonorrhea at or before the time of trial when Appellant only learned that he had it after he was convicted an incarcerated. (Appellant’s theory was that if he had it, and he’s convicted for having sexual intercourse with the victim, then she too must necessarily have it. And if she doesn’t, then that would increase the chances of acquittal. The PCRA court made the point, however, that perhaps Appellant contracted the disease while in prison, and therefore it’s immaterial as to whether the victim did not have it at the time or trial or prior.)
***More to follow in the next post.