Criminal Law Update Shane Scanlon, Esq. Deputy District Attorney Office of the District Attorney Lackawanna County Andrew J. Jarbola III, Esq. District Attorney
Double Jeopardy- PFA Violations • Hill v. Randolph, 24 A.3d 866 (Pa. Super. 2011) The Court affirmed the defendant's consecutive jail sentences on two counts indirect criminal contempt for violating two provisions (entry into the marital residence and assault of wife/protected party) of a protection from abuse ("PFA") order. • The Court found that a multiple counts of indirect criminal contempt are permitted for multiple violations of a single PFA order, even if it is a single criminal episode. • The Court noted that double jeopardy analysis would be required if the defendant were subsequently charged/convicted for other criminal offenses related to same conduct.
Custodial Detention - Custodial Interrogation • Com, v. Charleston, 16 A.3d 505 (Pa. Super. 2011) (rearg. denied 4/14/2011)The Court affirmed the defendant's conviction for first-degree murder. Addressing the admissibility of the defendant's statements, the Court ruled that although questioned by police while sitting in the back of a police car, the defendant was not in custodial detention until handcuffed. • The Court upheld the admission of the statements made after Miranda warnings were given even though the interrogation began without Miranda because there was no evidence of police coercion.
Post-sentence Motion to Withdraw Plea • Com, v. Yeomans, 24 A.3d 1044 (Pa. Super. 2011) The Court affirmed the denial of the defendant's post-sentence motions. • The Court upheld the denial of his motion to withdraw his guilty plea because he acknowledged the facts leading to the criminal charges against him at the time of his guilty plea.
Confrontation Clause - Calibration Logs for a Breathalyzer • Com, v. Dyarman._ A3d. _ (Pa. Super. 11/16/2011) The Court affirmed the defendant's DUI conviction and rejected his confrontation clause challenge to a breathalyzer's calibration logs. • Distinguishing the holding in Com, v. Barton-Martin. 5 A.3d 363 (Pa. Super. 2010), the Court held that the calibration logs were not testimonial evidence under Melendez-Diaz. and thus were admissible (as business records under the hearsay rules or under 75Pa.C.S. § 1547).
Cruelty to Animals -18 Pa. C.S. § 5511(a)(2.1)(i)(A) • Com, v. Crawford. 24 A.3d 396 (Pa. Super. 2011) The Court affirmed the defendant's conviction for cruelty to animals for her efforts to create "gothic" kittens. Describing the detailed expert testimony on the cruel effects of piercing kittens' ears and docking their tails, the Court found sufficient evidence to convict and rejected her constitutional vagueness argument.
Robbery - Retail Theft • Com, v. Hansley. 24 A.3d 410 (Pa. Super. 2011) The Court affirmed the defendant's conviction for first-degree robbery where he was confronted by loss prevention associates for stealing DVD's, struggled with them, and then pulled a knife on them. • These facts were sufficient to show that in the course of committing a theft, he threatened another with or intentionally put him in fear of immediate serious bodily injury. See 18 Pa.C.S. § 3701(a)(1)(h).
Fleeing & Eluding Police - 75 Pa. C.S. § 3733(a.2)(2)(iii) - High Speed Chase • In the Interest of; R.C.Y..27 A.3d 227 (Pa. Super. 2011) (rearg. Den. 9/16/11) The Court affirmed the juvenile defendant's adjudication of delinquency for violating 75 Pa.C.S. §3733(a.2)(2)(iii) (fleeing and eluding police by engaging in a "high-speed chase"), even though he did not exceed 35 mph. • Rejecting literal statutory construction, the Court found that the term "high-speed chase" includes any chase which creates "extraordinary danger to the public at large or to police officers."
Third Degree Murder - Malice • Com, v. Devine. 26 A.3d 1139 (Pa. Super. 2011) The Court affirmed the defendant's conviction for third degree murder and other charges. The Court found sufficient evidence to convict where the defendant had "initiated a gun battle in the midst of numerous innocent bystanders."
DUI- Prior Offenses in Other Jurisdictions • Com, v. Pombo. 26 A.3d 1155 (Pa. Super. 2011) The Court vacated the defendant's sentence as illegal for failure to consider a prior "driving while ability impaired" conviction in New York as a prior offense for sentencing purposes. • Noting the 2008 changes to the DUI statutes which changed the "equivalency" test to a "substantially similar" test, the Court found that the NY statute was substantially similar to the PA statute.
Robbery of a Motor Vehicle -18 Pa. C.S. § 3 702(a) • Com, v. Bonner.27 A.3d255 (Pa. Super. 8/17/2011) The Court affirmed the defendant's conviction for robbery of a motor vehicle where the defendant had taken the keys from the victim at knifepoint inside her home. • The Court ruled that the evidence was sufficient to find that the defendant deprived the victim of the car while in the victim's presence, even though she remained inside the home after relinquishing the keys.
Dog Law - Failure to Confine One's Dog • Com, v. Raban. 31 A.3d 699 (Pa. Super. 10/05/2011) (rearg denied 12/12/2011)The Court affirmed the defendant's conviction under the Dog Law, ruling that section 305(a)(1)(failing to confine one's dog) does not contain a mens rea requirement.
Non-testimonial Hearsay under Crawford-Authentication of Video • Com, v. McKellick. 24 A.3d 982 (Pa. Super. 2011) The Court affirmed the defendant's sentence for DUI where the arresting officer (State Trooper Joshua Miller) died in the line of duty prior to the trial. • The Court ruled that the video of the traffic stop was admissible non-testimonial hearsay and that it was sufficiently authenticated by other officers. • The video, the testimony of medical personnel, and the BAC were sufficient to convict despite the absence of the arresting officer.
Destruction of Evidence • Com, v. Allen. 24 A.3d 1058 (Pa. Super. 2011) The Court affirmed the defendant's sentence for DUI, Involuntary Manslaughter, and related charges. The Court upheld the admissibility of the BAC despite the blood sample being destroyed by the hospital in accord with its standard procedures before it could be independently tested. • The defendant failed to show that it would be materially exculpatory or that its destruction was due to bad faith by the Commonwealth. See Com, v. Snvder. 963 A.2d 396 (Pa. 2009).
Photographs of Murder Victim, Prior Bad Acts - Arguments between Victim and Defendant • Com, v. Funk,29 A.3d 28 (Pa. Super. 08/26/2011) (en banc) The Court affirmed the defendant's first degree murder conviction. The Court ruled that photographs of the victim's body were properly admitted where the bruises and puncture wounds demonstrated a specific intent to kill. • Further, the evidence of blood splatter in the photographs contradicted the defendant's version of events. • The Court also ruled that evidence that police had been called to the victim's residence on prior occasions because of fights with the defendant was properly admitted.
Alibi • Com, v. Sileo. 32 A.3d 753 (Pa. Super. 09/01/2011) The Court affirmed the denial of the defendant's PCRA petition seeking relief from his first-degree murder conviction. • The Court ruled that the defendant was not prejudiced by trial counsel's failure to request an alibi jury instruction. • The Court found that alibi evidence was not presented where the defendant, by his own admission, was alone across the street from the murder scene during the time of the killing.
Competency - Young Witnesses • Com, v. Pena._ A.3d__(Pa. Super. 10/31/2011) The Court reversed a trial court's order precluding two juvenile sexual assault victims (ages fourteen and fifteen) from testifying following a "taint" hearing pursuant to Com, v. Delbridge. 855 A.2d 27 (Pa. 2003). • The Court found that Delbridge was intended to apply only for young children, and that the witnesses here (a fourteen- and a fifteen-year-old) were entitled to the standard presumption of competence. • The concerns raised by the defendant were credibility issues to be considered by the fact-finder, not legal issues to be determined by the trial court.
SEARCH & SEIZURE • Warrantless Seizures — Limited Auto Exception Search & Seizure - Search Warrants - Staleness Challenges • Com, v. Griffin, 24 A.3d 1037 (Pa. Super. 2011) The Court affirmed the denial of the defendant's motion to suppress evidence found in his vehicle following his arrest for impersonating an officer. The Court ruled that Pennsylvania's limited auto exception to the warrant requirement permitted the defendant's vehicle to be seized and impounded pending application of a search warrant. The Court also ruled that the facts contained within the four corners of the affidavit of probable cause submitted with the search warrant application were not impermissible stale as they occurred within a week prior to the application.
Warrantless Arrest • Com, v. Galendez, 27 A.3d 1042 (Pa. Super. 08/24/2011) The Court affirmed the denial of the defendant's motion to suppress the a gun found on him after his warrantless arrest, where the officer had prior knowledge of the defendant, knew he was wanted on an outstanding scofflaw warrant, and knew he was wanted for questioning about a carjacking.
Requests for Identification - Passenger in Vehicle • Com, v. Durr. 32 A.3d 781 (Pa. Super. 10/12/2011) The Court reversed the trial court's ruling that a police officer's questioning of the defendant, a passenger in a vehicle, regarding his identity was unconstitutional. • The Court noted that while a request for identification is constitutionally permissible, it was deciding the issue whether the passenger has the right to not respond to such a request.
Probable Cause - Informants • Com, v. Goldsborough._ A.3d_(Pa. Super. 10/28/2011) The Court reversed the granting of the defendant's motion to suppress where police observations corroborated information provided by known, reliable confidential informants.
Warrantless Searches - Parolees • Com, v. Colon._ A.3d_(Pa. Super. 10/28/2011) The Court affirmed the denial of the defendant's motion to suppress where a parole agent found contraband on the defendant/parolee's person and in his vehicle. • The Court found the searches justified based on the parole agent's reasonable suspicion that he was in violation of parole conditions (namely, not residing at an approved residence and possessing contraband). See 61 Pa.C.S. § 6153 (relating to searches and seizures involving parolees).
Search Warrants - Specificity Requirement Applied to Persons • Com, v. Johnson. _ A3d. _ (Pa. Super. 11/29/2011)Pa. Super. The Court affirmed the defendant's convictions for drug-related offenses. The Court held that the specificity requirement for search warrants applies to descriptions of persons to be searched as well as places. • The Court found that the warrant at issue included a sufficient description of the defendant to justify his search pursuant to the warrant.
Voluntary Abandonment • Com, v. Taylor._ A3d. _ (Pa. Super. 12/14/2011) The Court affirmed the denial of the defendant's suppression motion where he voluntarily abandoned a potato chip bag used to hold drugs when he saw police watching him from a passing vehicle.
Pre-sentence Withdrawal of Plea - Second or Subsequent Motions • Com, v. Walker. 26 A.3d 525 (Pa. Super. 2011) The Court affirmed the denial of the defendant's presentence motion to withdraw his plea of guilty but mentally ill. The defendant had withdrawn his plea once already, and the Court ruled that an assertion of innocence does not constitute a "fair and just reason" to withdraw a second or subsequent plea to the same charges. See Com, v. Iselelv. 615 A.2d 408 (Pa. Super. 1992). • Because the defendant was represented by counsel in his appeals, the Court refused to consider the defendant's pro se filings citing ineffective assistance of appellate counsel, citing the recent Pennsylvania Supreme Court decision in Com, v. Jette. 2011 WL 2464780 (Pa. Jun. 2011) (forcing litigants to choose between a counseled appeal or self-representation, and rejecting the procedures set forth in Com, v. Battle. 879 A.2d 266 (Pa. Super. 2005)).
Probation & Parole - "Constructive Probation " • Com, v. Allshouse._ A.3d_(Pa. Super. 09/01/2011) The Court affirmed the revocation of the defendant's probation in Clearfield County. The Court ruled the Department of Corrections properly aggregated the defendant's Clearfield County sentence with a consecutive sentence from Jefferson County, and that his probation sentence began upon his release from state prison at the expiration of the aggregated maximum. • In this case of first impression, the Court rejected the defendant's claim of "constructive probation" and held that a term of probation and a term of state incarceration cannot be served simultaneously.
Probation & Parole - Adjusting Maximum Dates for Absconders • Com v. Stafford, 29 A.3d 800 (Pa. Super. 09/26/2011 The Court reversed the order granting the defendant's habeas corpus motion and remanded for further proceedings. The Court ruled that an absconder from house arrest is not entitled to credit for his sentence running for the period he was not under supervision and that the maximum date should have been recomputed/adjusted.
Unreasonableness Review - Below Standard Range Sentences • Com, v. Daniel. 30 A.3d494 (Pa. Super. 10/11/2011) The Court reversed the defendant's sentence for nearly killing an unarmed man by stabbing him in the stomach. • Citing the sentencing factors in 42 Pa.C.S. § 9781(d), the Court found the sentence, which was well below the minimum standard range, unreasonably lenient.
Sentencing - Merger - Robbery by Threat of SBI & Robbery of a Motor Vehicle • Com, v. Wade._ A3d. _ (Pa. Super. 11/18/2011) The Court affirmed the defendant's conviction for robbery and related offenses. The Court rejected a constitutional challenge to the merger statute and found that robbery by threat of serious bodily injury and robbery of a motor vehicle do not merge.
Sentencing Enhancements • Com, v. Stokes. _ A3d. _ (Pa. Super. 12/01/2011) The Court affirmed the defendant's sentences for conspiracy to commit murder and aggravated assault (and related offenses) where the defendant was acquitted on charges (e.g., murder, firearms and PIC) indicating that the jury did not believe he was the shooter. • The Court held that a sentencing court must consider but is not bound by a jury's acquittal in determining whether a defendant possessed or used a firearm under Pa.C.S. § 9712 or whether the deadly weapon used sentencing guidelines enhancement applied. • The Court found that Sixth Amendment concerns under Apprendi were not triggered where facts determined at sentencing did not raise the defendant's exposure beyond the statutory maximum.
PCRA - Prejudice due to Delay • Com, v. Weatherill. 24 A.3d435 (Pa. Super. 2011) The Court affirmed the dismissal of his PCRA petition due to the prejudice to the Commonwealth: twenty years had passed since the crime rendering most Commonwealth witnesses unavailable, the first responder had died, crucial documents gone missing, the defendant had allowed his PCRA petition to languish for years without being addressed, and the defendant refused not to present a novel defense. See Com, v. Rencheski. 988 A.2d 699 (Pa. Super. 2010).
SORNA • Sex Offender Registration and Notification Act • 42 Pa. C.S. § 9799.14, effective 12/20/2012
15 YEAR • Unlawful Restraint18 Pa. C.S. § 2902(b)(minor complainant, offender notparent/guardian) • False Imprisonment18 Pa. C.S. § 2903(b)(minor complainant, offender notparent/guardian) • Interference with Custody of Children18 Pa. C.S. §2904 • Luring Child Into a Motor Vehicle18 Pa. C.S. §2910