ACCESS DEVICE FRAUD ...... 1 ALIBI ...... 2 ARREST ...... 3 Is it a stop/seizure or only a mere encounter? ...... 3 Was there sufficient justification for the stop? ...... 6 Domestic violence cases ...... 11 Was the stop unduly prolonged? ...... 12 Entry into home ...... 19 Warrantless arrest ...... 20 ASSAULT ...... 20 ATTORNEY ...... 21 CAUTIONARY INSTRUCTION ...... 23 COMPULSORY JOINDER, SECTION 110, CAMPANA ...... 24 CONFESSIONS ...... 27 CONSPIRACY ...... 27 CORRUPTION OF MINORS ...... 29 DISCOVERY ...... 29 DISORDERLY CONDUCT ...... 31 DOUBLE JEOPARDY ...... 34 DRIVING UNDER THE INFLUENCE ...... 35 EX POST FACTO...... 39 EVIDENCE ...... 40 After-discovered ...... 40 Character ...... 41 Frye ...... 41 Inflammatory ...... 42 FIREARMS ...... 42 FRUIT OF THE POISONOUS TREE ...... 43 HABEAS CORPUS ...... 45 HEARSAY ...... 46 Declarations by homicide victim ...... 46 Excited utterance ...... 51 Is it hearsay? ...... 51 INEFFECTIVENESS: STANDARD OF REVIEW ...... 52 INTERFERENCE WITH CUSTODY OF CHILD ...... 55 JUDGE ...... 56 Bench trial...... 56 Dismissal of charges as sanction against Commonwealth’s attorney ...... 56

JURY ...... 58 Charge ...... 58 Deliberations...... 59 External contact or influences ...... 60 Selection ...... 60 Inconsistent Verdicts ...... 61 JUVENILE ...... 64 LEGISLATIVE UPDATE ...... 64 PCRA ...... 65 Newly-discovered facts ...... 65 PLEA AGREEMENTS ...... 69 POSSESSION ...... 69 PRELIMINARY HEARING ...... 71 PRIOR CRIMES ...... 72 PRIVATE CRIMINAL COMPLAINT ...... 77 PRIVILEGES ...... 79 PROBABLE CAUSE ...... 81 Anonymous tip ...... 81 Conduct ...... 82 Probable Cause/Reasonable Suspicion: Definition ...... 83 RECKLESSLY ENDANGERING ...... 84 RESISTING ARREST ...... 85 RULE 600 ...... 85 SEARCH AND SEIZURE ...... 89 Breath/Blood ...... 89 Consent ...... 90 Exigent circumstances ...... 90 Knock and announce ...... 94 Plain view, plain smell ...... 98 Vehicle ...... 102 Warrant ...... 103

SENTENCE ...... 107 Ability to pay ...... 107 Claim of excessive sentence ...... 107 Collateral consequences ...... 110 Court costs ...... 110 Equivalent offense ...... 111 Guidelines ...... 111 Juvenile murderers ...... 112 Legislation and guidelines amendments ...... 114 Merger ...... 115 Inchoate offenses...... 115 Miscellaneous offenses ...... 115 Multiple conspiracy convictions ...... 116 Multiple victims ...... 116 Convictions for multiple subsections within a single statute ...... 117 Remedy for a merger violation ...... 120 Minimum/Maximum sentence ...... 121 Modification of sentence ...... 122 Probation and parole ...... 122 Restitution...... 125 RRRI ...... 130 SORNA ...... 130 SUBPOENA ...... 132 SUMMARY OFFENSES ...... 134 TERRORISTIC THREATS ...... 139 THEFT, IDENTITY ...... 140 VENUE ...... 141 WIRETAP ...... 143 WITNESS ...... 150 Competency ...... 150 Confrontation ...... 150 Expert ...... 151 Intimidation ...... 159

iii

ACCESS DEVICE FRAUD

Defendant first challenges the sufficiency of the evidence to sustain his conviction for access device fraud under Section 4106(a)(3), which states: Offense defined.--A person commits an offense if he: *** (3) possesses an access device knowing that it is counterfeit, altered, incomplete or belongs to another person who has not authorized its possession. 18 Pa.C.S. § 4106(a)(3). “An actor is presumed to know an access device is counterfeit, altered or incomplete if he has in his possession or under his control two or more counterfeit, altered or incomplete access devices.” 18 Pa.C.S. § 4106(a.1)(1). Pertinent to defendant’s argument herein, the statute defines “access device” as: “Any card, including, but not limited to, a credit card, debit card and automated teller machine card, plate, code, account number, personal identification number or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services or anything else of value or that can be used to transfer funds.” 18 Pa.C.S. § 4106(d). Defendant argues that the statute’s phrase, “can be used,” required the Commonwealth to establish that the cards he possessed could have actually been used by him to acquire money, make a purchase, or transfer funds. Defendant contends that the Commonwealth failed to meet this burden because no witness saw him use a card to pump gas or make any purchase. Additionally, he argues that the Commonwealth did not present any evidence that the cards he possessed “were associated with an actual account for accessing money or a line of credit[,]” or that they even “had the technological capacity to work [at] an ATM machine, a checkout register, a gas pump, or any other location.” Section 4106(d) does not contain a provision requiring the device to be actually or technologically capable of working, and the plain meaning of “can be used” does not imply such a requirement. “Can” means [citing Merriam Webster] “be inherently able or designed to” and is “used to indicate possibility.” Thus, a credit card is an access device because it is a card designed “to obtain money, good, services, or anything else of value” and/or designed “to transfer funds.” 18 Pa.C.S. § 4106(d). We discern no ambiguity or absurdity in application that would require us to look beyond the plain meaning of the statute. Indeed, to interpret Section 4106(d) to require the prosecution to prove a card is capable of working at an ATM or cash register, for example, would produce the absurd result of penalizing individuals who cancel stolen or missing credit cards and absolving defendants who happen to have stolen from a prudent card-holder. Accordingly, because the Commonwealth has proven that defendant possessed credit cards that either did not bear his name or had names and numbers printed on the cards that did not correspond with the data embedded in the magnetic strip of the card, there was sufficient evidence to support defendant’s conviction for access device fraud. BENDER, J. DISSENTING: I would conclude that, to sustain defendant’s conviction under 18 Pa.C.S. § 4106(a)(3), the Commonwealth was required to prove that he possessed a credit card that was able to be employed to “obtain money, goods, services or anything else of value or . . . to transfer funds.” 18 Pa.C.S. § 4106(d). The

Commonwealth failed to meet this burden. No witness observed defendant (or anyone else) use, or attempt to use, any of the cards found in his possession. Moreover, while testimony established that there were account numbers linked to four of the cards, the officer did not testify that he verified the authenticity of those account numbers, or that the return of account numbers on the scanner proved — or even circumstantially suggested — that the cards could be used to obtain cash, make a purchase, or transfer funds. Therefore, I would hold that the Commonwealth did not present sufficient evidence to establish that any credit card possessed by defendant was an “access device,” and I would reverse his conviction for that offense.

Ballard, 244 A.3d 815 (Pa. Super. 12/22/20) Link to: Bender, P.J.E. concurring and dissenting

ALIBI

Trial counsel failed to request an alibi instruction. Trial counsel testified at the PCRA hearing that he viewed defendant’s alibi as weak since it was uncorroborated, and he thought a better strategy was to argue that another person was the perpetrator. This explanation lacks substantial force. One of the main objectives of an alibi instruction is to explain that even a weak alibi can form a basis for acquittal so long as it raises a reasonable doubt in the minds of the jurors. Further, as counsel’s third-party-perpetrator theory was consistent with the defense claim that defendant was at home when the killings took place, it would not have been undermined by an alibi charge. Moreover, and as noted, counsel conceded during his PCRA testimony that he lacked a reasonable basis for failing to ask the trial court to provide the jury with an alibi instruction or object to its absence from the jury charge. We therefore conclude that defendant has demonstrated that counsel lacked a reasonable basis for his omission. Here, the trial court defined the concept of reasonable doubt and then explained the government had the burden of proving guilt beyond that threshold. The court continued by emphasizing that the defendant is presumed innocent and “has no duty to prove anything.” Although the judge did not specifically say defendant had no duty to prove his alibi, it seems likely his alibi would have been understood by the jury as encompassed by the term “anything.” Although the Commonwealth’s evidence of guilt was circumstantial, it was, nonetheless, substantial. The verdicts in the present matter establish that the jury found the Commonwealth’s witnesses credible and was convinced of its version of events. In light of the above, we hold that defendant has not demonstrated by a preponderance of the evidence that there is a reasonable probability the outcome of the proceeding would have been different had an alibi instruction been given to the jury. Thus, counsel’s failure to request such an instruction or to object to the lack of one does not undermine our confidence in the jury’s verdicts.

Jones. 653 Pa. 443, 210 A.3d 1014 (7/17/19) Link to: Todd, J. concurring

ARREST

Is it a stop/seizure or only a mere encounter?

Federal constitutional standard: Police officers, attempting to arrest Roxanne Torres, shot at her as she was driving away from the police. She was struck by two bullets, but she continued to drive. Torres subsequently sued the police, claiming that the officers applied excessive force, making the shooting an unreasonable seizure under the Fourth Amendment. The 10th Circuit affirmed the denial of civil relief, holding that “no seizure can occur unless there is physical touch or a show of authority,” and that “such physical touch (or force) must terminate the suspect’s movement” or otherwise give rise to physical control over the suspect. In California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (4/23/91), we noted that the common law treated the mere grasping or application of physical force with lawful authority as an arrest, whether or not it succeeded in subduing the arrestee. The common law distinguished the application of force from a show of authority, such as an order for a suspect to halt. The latter does not become an arrest unless and until the arrestee complies with the demand. As the Court explained in Hodari D., an arrest requires either physical force or, where that is absent, submission to the assertion of authority. We stress, however, that the application of the common law rule does not transform every physical contact between a government employee and a member of the public into a Fourth Amendment seizure. A seizure requires the use of force with intent to restrain. Accidental force will not qualify. Nor will force intentionally applied for some other purpose satisfy this rule. In this opinion, we consider only force used to apprehend. We do not accept the dissent’s invitation to opine on matters not presented here — pepper spray, flash-bang grenades, lasers, and more. Moreover, the appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain, for we rarely probe the subjective motivations of police officers in the Fourth Amendment context. While a mere touch can be enough for a seizure, the amount of force remains pertinent in assessing the objective intent to restrain. A tap on the shoulder to get one’s attention will rarely exhibit such an intent. The rule we announce today is narrow. In addition to the requirement of intent to restrain, a seizure by force — absent submission — lasts only as long as the application of force. That is to say that the Fourth Amendment does not recognize any continuing arrest during the period of fugitivity. We therefore conclude that the officers seized Torres for the instant that the bullets struck her. We hold that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued. Of course, a seizure is just the first step in the analysis. The Fourth Amendment does not forbid all or even most seizures — only unreasonable ones. All we decide today is that the officers seized Torres by shooting her with intent to restrain her movement. We leave open on remand any questions regarding the reasonableness of the seizure, the damages caused by the seizure, and the officers’ entitlement to qualified immunity.

Torres v. Madrid, ___ U.S. ___, 141 S.Ct. 989, 209 L.Ed.2d 190 (3/25/21)

State constitutional standard: Where a police officer chases a person without probable cause or reasonable suspicion, a “seizure” occurs. Property which the person discards while fleeing under such circumstances is the fruit of an unlawful seizure and is subject to suppression. California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (4/23/91), rejected pursuant to Pennsylvania Constitution.

Matos, 543 Pa. 449, 672 A.2d 769 (2/26/96)

On October 26, 2018, at approximately 2:50 p.m., officers from the Cheltenham Township Police Department were conducting surveillance at an apartment complex located at 46 Township Line Road, Cheltenham, Montgomery County. Officer Chad Smith was stationed in the parking lot of the apartment complex as part of a team conducting surveillance for an arranged undercover drug transaction on a separate and unrelated matter. He was working undercover walking his K9 partner around the parking lot as part of the surveillance team for the planned event. Sergeant Joseph O'Neill was also working in plain clothes as part of the surveillance for the unrelated matter in the area of 46 Township Line Road on October 26, 2018, at approximately 2:50 p.m.. He was positioned across the street from the parking lot of the apartment complex in an unmarked police vehicle equipped with lights and sirens. Both Officer Smith and Sergeant O'Neill, separately and independently of one another, observed a silver Dodge minivan drive into the parking lot at 46 Township Line Road and reverse into a parking spot at the rear of the parking lot, far away from the entrance to the apartment building. The man driving the minivan was identified as defendant. Defendant was the sole occupant of the vehicle. After he parked his vehicle, he remained inside. Both officers noted that this behavior was of interest to them and something they found unusual based on the fact that there were available parking spaces closer to the entrance of the building. After several minutes, defendant pulled out of the parking spot and moved his vehicle straight ahead into a different spot, which was no closer to the front entrance. Defendant remained in his vehicle. Both officers testified that this behavior was unusual and suspicious. A few moments later, Officer Smith and Sergeant O'Neill each observed a second vehicle, driven by a female, pull into the parking space directly adjacent to defendant's vehicle and on the vehicle's passenger side. Officer Smith observed that the passenger side window of defendant's vehicle was down, and the driver's side window of the female's vehicle was down. Both Officer Smith and Sergeant O'Neill observed defendant throw a knotted plastic bag out of his passenger side window into the female's vehicle through her driver's side window. Officer Smith then observed the female driver throw loosely balled-up United States currency into defendant's vehicle. The female immediately drove out of the parking lot. The officers observed that there was no conversation between defendant and the female, and neither individual ever exited their vehicle or approached

4 the apartment building. Their entire interaction was very short, lasting approximately twenty seconds, which short duration is consistent with typical drug transactions. Officer Smith and Sergeant O'Neill each ran the registration on both vehicles. Defendant's vehicle was registered to a North Philadelphia address, and the female's vehicle was registered to a Bucks County address. This is consistent with the officers' prior knowledge that drug deals that take place at this location or in the general Cheltenham area often involve dealers from Philadelphia meeting with buyers from the surrounding counties, specifically Bucks County, because of pricing and convenience of the meeting location. Officer Smith approached defendant's vehicle. He was on foot, in plain clothes, and accompanied by his K9 partner on a leash. When he encountered defendant, who was seated in the driver's seat of his vehicle, Officer Smith announced in a casual, non- confrontational tone that he was a police officer and displayed his badge. Defendant responded, “huh?” Officer Smith again responded in a casual tone that he was a police officer. Defendant then quickly reversed his vehicle out of the parking spot and travelled at a high rate of speed away from Officer Smith and toward the exit to the parking lot. Officer Smith never brandished or reached for his firearm, which was concealed under his clothing. Officer Smith never instructed defendant to get out of his vehicle, never told him he could not leave, nor did he block his ability to exit in any way. Officer Smith did not verbally communicate to defendant that he was in custody or under arrest. At the moment when defendant quickly pulled out of the parking spot, police vehicles with lights and sirens activated entered the parking lot in response to the other, unrelated drug investigation. Multiple marked and unmarked police vehicles, some with lights and sirens activated, pursued defendant around the apartment complex's parking lot. Defendant did not immediately stop for the police, and a brief pursuit ensued. During the pursuit, defendant was finally forced to stop his vehicle after nearly colliding head-on with a police vehicle and was boxed in by police vehicles. Sergeant O'Neill approached defendant's vehicle and observed knotted up plastic bags with pills in them inside the vehicle. Defendant was taken into custody and placed under arrest. Police obtained a search warrant for his vehicle, and recovered approximately 235 pills later identified as oxycodone. In reaching its conclusion that the initial encounter was a mere encounter, the suppression court failed to consider the unfolding events of the unrelated undercover drug operation, substantiated by Sergeant O'Neill's testimony, and the effect those events had on defendant's perception of his ability to end his encounter with Officer Smith, based upon a reasonable person standard. Officer Smith's recollection of the events was not entirely consistent as to precisely when the police vehicles, with their lights and sirens activated, entered the parking lot. See N.T., 9/12/19, at 26 (stating the police vehicles responded to the unrelated undercover drug operation at the same time the female driver exited her parking space); see also id. at 36-38 (stating Officer Smith talked with Sergeant O'Neill before approaching defendant and before any police cars were in the vicinity of defendant's vehicle); id. at 59 (stating the police vehicles entered the parking lot and Officer Smith spoke with Sergeant O'Neill before approaching defendant). Sergeant O'Neill, however, testified in support of Officer Smith's recollection that the police officers, in marked and

5 unmarked police vehicles, entered the apartment complex parking lot in response to the go-signal for the unrelated undercover drug operation at the moment when the female driver exited her parking space and before Officer Smith approached defendant's vehicle. Id. at 79-80. The lights and sirens of the marked and unmarked police vehicles were activated as the police vehicles entered the apartment complex parking lot. Specifically, Sergeant O'Neill observed defendant reverse his vehicle from the parking space as Sergeant O'Neill entered the parking lot with his vehicle lights and siren activated. In viewing the totality of the circumstances surrounding the incident, a reasonable person, innocent of any crime, would not believe that he or she was free to leave. The initial encounter between Officer Smith and defendant commenced when Officer Smith approached defendant, displayed his police badge, and twice identified himself as a police officer. Almost simultaneously, police vehicles, with lights and sirens activated, entered the apartment complex parking lot in which defendant and his vehicle were located. The arrival of the police vehicles, albeit connected to an unrelated undercover drug operation unfolding in the same parking lot as defendant's alleged drug transaction, conveyed to defendant that he was not at liberty to ignore Officer Smith and go about his business at the time Officer Smith approached defendant's vehicle, displayed a police badge, and identified himself as a police officer. While we acknowledge that the display of a police badge and an announcement by an individual that he is a police officer, standing alone, do not amount to more than a mere encounter, we nevertheless conclude that Officer Smith's initial encounter with defendant, as viewed by a reasonable person and based upon the totality of the circumstances, including the simultaneous arrival of multiple police vehicles with lights and sirens activated, was transformed from a mere encounter into an investigative detention, for which reasonable suspicion was required.

Brame, 239 A.3d 1119 (Pa. Super. 9/15/20) appeal denied, ___ Pa. ___, 251 A.3d 771 (3/30/21)

Was there sufficient justification for the stop?

MAJORITY OPINION: Before initiating a traffic stop, Douglas County, Kansas, Deputy Sheriff Mark Mehrer observed an individual operating a 1995 Chevrolet 1500 pickup truck with Kansas plate 295ATJ. He learned that the registered owner of the truck had a revoked license and that the model of the truck matched the observed vehicle. From these three facts, Deputy Mehrer drew the commonsense inference that Glover was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop. The fact that the registered owner of a vehicle is not always the driver of the vehicle does not negate the reasonableness of Deputy Mehrer’s inference. Such is the case with all reasonable inferences. The reasonable suspicion inquiry falls considerably short of 51% accuracy, for, as we have explained, to be reasonable is not to be perfect. The Fourth Amendment permits an officer to initiate a brief investigative traffic stop when he has a particularized and objective basis for suspecting the particular person stopped of criminal activity. Although a mere “hunch” does not create reasonable

6 suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause. Because it is a less demanding standard, reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause. The standard depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Courts cannot reasonably demand scientific certainty where none exists. Rather, they must permit officers to make commonsense judgments and inferences about human behavior. An officer need not rule out the possibility of innocent conduct. Empirical studies demonstrate what common experience readily reveals: Drivers with revoked licenses frequently continue to drive and therefore to pose safety risks to other motorists and pedestrians. Although common sense suffices to justify this inference, Kansas law reinforces that it is reasonable to infer that an individual with a revoked license may continue driving. The State’s license-revocation scheme covers drivers who have already demonstrated a disregard for the law or are categorically unfit to drive. The Division of Vehicles of the Kansas Department of Revenue (Division) “shall” revoke a driver’s license upon certain convictions for involuntary manslaughter, vehicular homicide, battery, reckless driving, fleeing or attempting to elude a police officer, or conviction of a felony in which a motor vehicle is used. The Division also has discretion to revoke a license if a driver has been convicted with such frequency of serious offenses against traffic regulations governing the movement of vehicles as to indicate a disrespect for traffic laws and a disregard for the safety of other persons on the highways, has been convicted of three or more moving traffic violations committed on separate occasions within a 12-month period, is incompetent to drive a motor vehicle, or has been convicted of a moving traffic violation, committed at a time when the person’s driving privileges were restricted, suspended or revoked. Under the totality of the circumstances of this case, Deputy Mehrer drew an entirely reasonable inference that Glover was driving while his license was revoked. We emphasize the narrow scope of our holding. Like all seizures, the officer’s action must be justified at its inception. The presence of additional facts might dispel reasonable suspicion. For example, if an officer knows that the registered owner of the vehicle is in his mid-sixties but observes that the driver is in her mid-twenties, then the totality of the circumstances would not raise a suspicion that the particular individual being stopped is engaged in wrongdoing. Here, Deputy Mehrer possessed no exculpatory information — let alone sufficient information to rebut the reasonable inference that Glover was driving his own truck — and thus the stop was justified. KAGAN, J. CONCURRING JOINED BY GINSBURG, J.: Deputy Mark Mehrer had reasonable suspicion to stop the truck in this case, and I join the Court’s opinion holding as much. Crucially for me, Mehrer knew yet one more thing about the vehicle’s registered owner, and it related to his proclivity for breaking driving laws. As the Court recounts, Mehrer learned from a state database that Charles Glover, the truck’s owner, had had his license revoked under Kansas law. And Kansas almost never revokes a license except for serious or repeated driving offenses.

I would find this a different case if Kansas had barred Glover from driving on a ground that provided no similar evidence of his penchant for ignoring driving laws. Consider, for example, if Kansas had suspended rather than revoked Glover’s license. Along with many other states, Kansas suspends licenses for matters having nothing to do with road safety, such as failing to pay parking tickets, court fees, or child support. Indeed, several studies have found that most license suspensions do not relate to driving at all; what they most relate to is being poor.

Kansas v. Glover, ___ U.S. ___, 140 S.Ct. 1183, 206 L.Ed.2d 412 (4/6/20)

On April 25, 2017, around 11:00 p.m., Officers Alexandria Taylor and Nathan Detting with the Pittsburgh Bureau of Police were patrolling the Homewood area of Pittsburgh. As part of their routine patrol, the officers ran license plate numbers of various vehicles through their computer system to check for stolen vehicles and any Vehicle Code violations. When the officers ran the license plate of a vehicle that was being driven by defendant, the officers learned that there was a “full extradition warrant out of Pennsylvania” for an individual named Taylor Jefferson. The officers also learned that Taylor Jefferson was the registered owner of the vehicle. The National Crime Information Center (“NCIC”) system that the officers used to run the license plate did not provide the officers with a picture of Mr. Jefferson, and the officers were not otherwise familiar with him or his name. During the vehicle stop defendant was found to be in possession of a concealed firearm for which he did not possess a license. Kansas v. Glover, ___ U.S. ___, 140 S.Ct. 1183, 206 L.Ed.2d 412 (4/6/20), held that when the officer lacks information negating an inference that the owner is the driver of the vehicle, the stop is reasonable. Glover clearly dictates that the inference that the owner is the driver of a vehicle by itself provides reasonable suspicion to permit a Terry stop under the Fourth Amendment, assuming, of course, that the police have reason to believe that the registered owner is involved in criminal conduct. Moreover, we observe that the suspicion of criminal activity in this case stemmed from a warrant, and was not contingent upon the discovery of defendant’s driving the vehicle. In Glover, the police only knew that the registered owner was not legally permitted to drive. Here, the only necessary inference was that defendant would be found in the vehicle registered in his name, not the less-likely assumption that he would be discovered driving it. Thus, we conclude that the quantum of evidence supporting a finding of reasonable suspicion was at least nominally greater than the facts considered in Glover. The deputy in Glover did not confirm the registered owner’s revoked license to any greater degree than Officer Taylor confirmed the arrest warrant in this case, as both officers merely ran computer checks. There is no indication in the Glover decision that the issue of reasonable suspicion turned on whether the computer check [showing that Glover’s license was revoked] had been “verified” through some other source. Moreover, certainty about individual factors has never been a prerequisite for reasonable suspicion. Here, there were no additional circumstances known to police tending to dispel the reasonableness of the inference that the owner of a vehicle was likely to be the driver.

Consequently, we conclude that Glover controls and, therefore, defendant is not entitled to relief under the Fourth Amendment.7 7We note that inconsistent prior cases of this court, such as Andersen, 753 A.2d 1289 (Pa. Super. 5/17/00), have been effectively overruled by Glover, insofar as they held that it is not reasonable under the Fourth Amendment for an officer to assume that a registered owner will likely be driving the registered vehicle, unless other facts are known to the officer that tend to undermine that inference. The en banc court went on to conclude that defendant was not entitled to relief based on the state constitution.

Jefferson, ___ A.3d ___ (Pa. Super. 6/7/21) (en banc) Link to: Bowes, J. concurring appeal pending, No. 205 WAL 2021 (filed 7/7/21)

SEE ALSO (decided prior to Kansas v. Glover):

The knowledge a vehicle is owned by an individual whose driving privileges are suspended coupled with the mere assumption that the owner is driving the vehicle, does not give rise to articulable and reasonable grounds to suspect that a violation of the Vehicle Code is occurring every time this vehicle is operated during the owner’s suspension.

Andersen, 753 A.2d 1289 (Pa. Super. 5/17/00)

The arresting police officer's attention was called to the defendant's vehicle as he proceeded east on Market Street in West York Borough. The police officer ran the defendant's license plate, and determined that the owner of the vehicle's license was under suspension. The officer also discovered the owner's age and that he was a male. From his observation of the driver the officer believed that the defendant was male, and was about the same age as the owner. Based on the officer's conclusion that it was likely that the person operating the vehicle was the owner because he was a male of the same age as the owner and had possession of the owner's vehicle, the police officer decided to stop the vehicle for suspicion of driving on a suspended license. Defendant’s reliance on Commonwealth v. Andersen, 753 A.2d 1289 (Pa. Super. 5/17/00), is misplaced for two reasons. First, in Andersen, we concluded that the officer lacked “articulable and reasonable grounds” to stop the vehicle when the driver was suspected of driving under suspension. However, the articulable and reasonable grounds standard, which our Supreme Court equated with probable cause, see Commonwealth v. Whitmyer, 542 Pa. 545, 668 A.2d 1113 (12/29/95), emanated from the prior version of Section 6308(b), which was revised in 2003 when the legislature replaced it with the less stringent standard of “reasonable suspicion.” Second, in Andersen, there is no mention of the police officer making any observation of the physical characteristics of the driver.

Hilliar, 943 A.2d 984 (Pa. Super. 2/21/08) appeal denied, 598 Pa. 763, 956 A.2d 432 (8/6/08)

Trooper Shane Murarik was traveling eastbound on Route 322 in Centre County while on patrol duties on April 1, 2018 around approximately 9:30 p.m. when he observed a White Chevy Impala driving westbound on 322. Trooper Murarik had previous experience with defendant and defendant was known to drive a White Chevy Impala. Trooper Murarik [relying on N.C.I.C. information] believed there was an outstanding warrant for defendant’s arrest. Trooper Murarik knew defendant was a suspected drug user. Trooper Murarik looked up defendant in his mobile computer system which returned a warrant out of Colorado saying “full extradition.” Prior to the date of the incident, Trooper Murarik was familiar with defendant and his vehicle. Further, when Trooper Murarik observed the white Chevy Impala, the driver of the vehicle matched defendant’s description, and the driver was operating the vehicle registered to defendant. Finally, Trooper Murarik was able to confirm defendant was driving the vehicle prior to his arrest. Thus, Trooper Murarik possessed the requisite level of suspicion that defendant was the driver of the vehicle.

Bumbarger, 231 A.3d 10 (Pa. Super. 3/16/20) appeal denied, ___ Pa. ___, 239 A.3d 20 (9/22/20)

GLOVER AND JEFFERSON IMPLICITLY CAST DOUBT UPON:

Defendant initially contends that Officer Walls' belief that the TransAm was being operated by an unlicensed driver was insufficient to establish reasonable suspicion to justify the investigatory stop, citing Commonwealth v. Andersen, 753 A.2d 1289 (Pa. Super. 5/17/00). In Andersen, a panel of this court concluded that “the knowledge a vehicle is owned by an individual whose driving privileges are suspended coupled with the mere assumption that the owner is driving the vehicle, does not give rise to articulable and reasonable grounds to suspect that a violation of the Vehicle Code is occurring every time this vehicle is operated during the owner's suspension.” Id. at 1294. The Commonwealth concedes that “under [Andersen] . . . observation of the operation of a motor vehicle owned or registered by a person with a suspended license does not rise to the level of reasonable suspicion of a vehicle code violation.” In the instant matter, Officer Rice's testimony establishes he merely assumed the unlicensed driver was operating the TransAm. Andersen was decided under the precursor to current Section 6308(b), which provided that an officer had to have probable cause that a provision of the Motor Vehicle Code was being violated before initiating a traffic stop. 2003 Pa. Laws 24, No. 8 (9/30/03, effective 2/01/04). The current version of Section 6308(b), promulgated in 2003, requires only reasonable suspicion of a violation. The distinction is of no moment to our analysis, however, as it is well-settled that a mere assumption is not synonymous with reasonable suspicion. See Commonwealth v. Zook, 851 A.2d 178, 181 (Pa. Super. 5/19/04) (stating, “In determining whether an officer acted according to reasonable suspicion, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to specific inferences he is entitled to draw from the facts in light of his experience.”) (citation omitted). Accordingly, Officer Wall's hunch that the TransAm's driver may have been

10 operating the vehicle with a suspended license was insufficient to establish a reasonable suspicion that would have justified stopping the vehicle.

Bailey, 947 A.2d 808 (Pa. Super. 4/25/08) appeal denied, 598 Pa. 785, 959 A.2d 927 (10/16/08)

Domestic violence cases

18 Pa.C.S. § 2711 declares: § 2711. Probable cause arrests in domestic violence cases (a) General rule.--A police officer shall have the same right of arrest without a warrant as in a felony whenever he has probable cause to believe the defendant has violated Section . . . 2701 (relating to simple assault) . . . against a family or household member although the offense did not take place in the presence of the police officer. A police officer may not arrest a person pursuant to this section without first observing recent physical injury to the victim or other corroborative evidence. For the purposes of this subsection, the term "family or household member" has the meaning given that term in 23 Pa.C.S. § 6102 (relating to definitions). 18 Pa.C.S. § 2711(a). Defendant’s claim on appeal is limited: he argues only that his warrantless arrest under Section 2711(a) was illegal because the police did not observe a “recent” physical injury on M.H. According to defendant, since his arrest occurred between two to three days after M.H. said she was assaulted, the potential for imminent violence had dissipated and exigent circumstances did not justify his warrantless arrest. The legislature did not specifically define the phrase “recent physical injury” in 18 Pa.C.S. § 2711(a). Moreover, the term “recent” is, by general definition, a vague and imprecise word, whose meaning is highly dependent upon the context in which it is being used. Nevertheless, we conclude that Section 2711(a)’s statutory requirement of a “recent physical injury” is undoubtedly satisfied in this case. Officer Abel testified that the complainant, M.H., told him that defendant gave her the black eye a day or two before Officer Abel talked to her. At approximately 5:00 p.m. the next day, he went to defendant’s residence and arrested defendant for domestic violence. This is not a case where the police observed a scar, with the initial injury having been inflicted years ago. Rather, in this case, Officer Abel observed bruising, which is temporary in nature, from an attack that occurred one or two days prior. Allowing for the one day of delay between the report and the arrest, we conclude that a lapse of two to three days after the injurious event – while the temporary bruising from the injurious event is still observable – unquestionably qualifies as a “recent” physical injury under Section 2711(a). To be sure, Section 2711(a) specifically authorizes the warrantless arrest of perpetrators of domestic violence. By using such a vague term as “recent” in Section 2711(a), the legislature apparently realized that victims of domestic violence might delay reporting abuse because they might believe it is a private matter or for fear that the

11 violence would intensify and that there might be some delay between the report and the police action. In such context, a delay of two to three days from the injurious event undoubtedly qualifies as “recent.”

Hawkins, ___ A.3d ___ (Pa. Super. 12/10/20) appeal denied, ___ Pa. ___, ___ A.3d ___ (7/27/21)

Was the stop unduly prolonged?

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. 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, 575 U.S. 348, 135 S.Ct. 1609, 191 L.Ed.2d 492 (4/21/15)

On May 7, 2018, while conducting traffic enforcement on SR 1119 northbound in the area of the North Gallatin entrance ramp, Trooper Spangler observed a gray colored Volkswagen Sedan enter the trooper's field of vision traveling [according to radar] at a speed of 76 mph in a posted 55 mph zone. Trooper Spangler caught up to the vehicle and identified it as a gray Volkswagen Jetta. Trooper Spangler then activated his emergency lights and initiated a traffic stop on that same vehicle near the Connellsville St., exit ramp. After speaking with the operator of the vehicle, Trooper Spangler could identify him by his valid PA operator license number and driver's license as defendant. Trooper Spangler observed the operator of the vehicle to be extraordinarily nervous and fidgeting constantly. Trooper Spangler then requested defendant to exit his vehicle. Trooper Spangler asked defendant for consent to search his vehicle and defendant granted permission. Trooper Spangler then advised defendant that he did not have to let Trooper Spangler search if defendant did not want Trooper Spangler to search. Defendant again granted Trooper Spangler permission to search his vehicle. During the search of the vehicle, controlled substances and paraphernalia were seized. Where the purpose of an initial traffic stop has ended and a reasonable person would not have believed that he was free to leave, the law characterizes a subsequent round of questioning by the police as an investigative detention or arrest. In the absence of either reasonable suspicion to support the investigative detention or probable cause to support the arrest, the citizen is considered unlawfully detained. An officer conducting a valid traffic stop may order the occupants of a vehicle to alight to assure his own safety. Once the primary traffic stop has concluded, however, the officer's authority to order either the driver or occupant from the car is extinguished. Thus, if the officer directs or requests the occupants to exit the vehicle after resolution of the reason for the initial stop, the officer's show of authority may constitute an investigatory detention subject to a renewed showing of reasonable suspicion. Significantly, absent more, a police officer's assessment that the occupants of a vehicle appear nervous does not provide reasonable suspicion for an investigative detention. At the suppression hearing, the trooper testified that after stopping defendant's vehicle for speeding, he made contact with defendant and noticed he was “extraordinarily nervous,” and “seemed to be fidgeting around a lot inside the vehicle.” The trooper explained that “extraordinary” meant that defendant was “shaking and kind of like, when [I am] trying to make contact with somebody and speak to somebody, they typically look you in the eye constantly and speak to you strongly and firmly, and it seemed as if [he] was not speaking to [me] in a typical manner.” The trooper requested defendant's license and registration to confirm that defendant did not have any active warrants for his arrest. After confirming that no warrants existed, the trooper observed defendant acting “continually nervous.” Because of defendant's nervous behavior, the trooper asked defendant to exit and proceed to the rear of his vehicle, “to figure out why [he] was so nervous at the time of the stop.” Once outside of his vehicle, the trooper asked defendant if he had anything illegal inside the vehicle. While retaining possession of defendant's license and registration, the trooper asked defendant for consent to search his vehicle, and defendant gave consent. After receiving consent, the trooper informed defendant that he did not have to give consent if

14 he did not want to do so. Once again, the trooper asked defendant for consent, and defendant consented. Importantly, the trooper acknowledged that when he requested defendant's consent to search his vehicle both times, the trooper retained possession of defendant's driver's license and registration. Further, the trooper admitted that at the time he requested defendant's consent to search, defendant was not free to leave. Under these circumstances, we cannot agree with the suppression court's decision that defendant's consent was lawful. The trooper testified that he asked defendant to exit his vehicle in an attempt to discover the cause of defendant's nervous behavior. The trooper did not make this request in furtherance of his investigation for the speeding violation. Rather, the trooper sought to obtain additional information unrelated to the initial traffic stop. Significantly, once the primary purpose of the initial stop for the speeding violation ended, the trooper's authority to order defendant to exit his car had extinguished. Thus, the trooper's request for defendant to exit his vehicle constituted an investigatory detention, requiring reasonable suspicion. Defendant's nervous behavior alone did not provide a sufficient basis to warrant an investigatory detention. Further, the trooper acknowledged that once defendant exited his vehicle, he was not free to leave. The fact that the trooper retained possession of defendant's driver's license and registration during each request for consent confirms that defendant was actually not free to leave. Therefore, defendant's consent to search was not constitutionally valid on these facts.

Mattis, 252 A.3d 650 (Pa. Super. 4/30/21)

During the early morning of February 28, 2019, Officer Stephen Henry was on routine patrol near the 1100 block of Olney Avenue in Philadelphia. At approximately 3:00 a.m., after noticing that a passing car appeared not to have a license plate, Officer Henry activated his patrol car's lights and sirens and pulled over the vehicle. As he walked towards it, Officer Henry saw a license tag on the car's rear windshield. He noticed that the tag was not properly displayed and secured, which he knew to be a violation of Pennsylvania's Motor Vehicle Code. Officer Henry also observed several occupants within the car, including defendant, who was seated in the rear behind the driver. Officer Henry approached the driver and told him that the car did not have a license plate on the back. The driver responded that he had obtained the car just two days prior and still needed to get screws for the license plate. Continuing his investigation, Officer Henry asked [defendant, a passenger] to roll down the passenger window on the driver's side. He then asked defendant for identification, and defendant responded by moving to pull a lanyard out from his hooded sweatshirt. When Officer Henry saw the lanyard, he immediately asked defendant if he had a firearm on him. Officer Henry asked the question because, in his experience, it was common for people who worked in armed security positions at local bars to keep their identification badges in lanyards. Defendant answered that he did have a firearm and further explained that he had it because he worked in a security position at a bar named Bananas, where he and the other occupants of the car had just finished working for the day. Officer Henry was familiar with the bar and knew it to be a legitimate establishment that employed security guards. When Officer Henry asked where the firearm was located, defendant responded that it was on his right hip. At that point, for his own safety and for

15 the safety of the vehicle's other occupants, Officer Henry asked defendant to exit the vehicle so that he could secure the firearm before continuing with his investigation. Officer Henry testified that it was routine for police officers to remove someone from a vehicle upon learning that the person was in possession of a weapon. At the time Officer Henry secured the weapon, he again asked defendant for his identification documents. defendant responded by giving Officer Henry an “Act 235” card [which authorizes private security guards to carry lethal weapons]. However, when Officer Henry reviewed the card, he noticed that the card had expired in September of 2013. Defendant claimed that he had another Act 235 card at home. Over the next 15 to 20 minutes, Officer Henry proceeded to run checks on defendant to determine whether he had a valid Act 235 card or a license to carry a firearm, including by contacting local detectives and the Pennsylvania State Police. The checks run by Officer Henry revealed that [defendant's] Act 235 certification had expired. Officer Henry arrested defendant on charges related to the unlawful possession of a firearm but did not issue a citation to the driver of the vehicle, who had provided documentation establishing that he had just recently purchased the vehicle, consistent with his prior statements. Within the context of a lawful traffic stop, Rodriguez v. United States, 575 U.S. 348, 135 S.Ct. 1609, 191 L.Ed.2d 492 (4/21/15), permits “mission related” inquiries addressed to the traffic violations which originally prompted the detention, as well as incidental inquiries aimed at ensuring the safe and responsible operation of vehicles on the highway. This latter category includes such things as checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance. Out of concern for officer safety, Pennsylvania search and seizure jurisprudence also permits certain limited intrusions upon the liberty of passengers in lawfully detained vehicles. Officers may order passengers to remain in a car for the duration of a lawful stop. Law enforcement officials may also inquire about the presence of weapons. Lastly, police officials may compel passengers to exit a lawfully stopped vehicle. The authority to carry out these actions do not, in and of themselves, expand the grounds for detaining or investigating passengers who are merely present in a lawfully stopped vehicle [citation omitted]. While on patrol on the night in question, Officer Henry summoned the vehicle occupied by defendant to stop after he immediately recognized that the vehicle was in violation of the Motor Vehicle Code because its license plate was not properly displayed. On approach, Officer Henry discovered that the license plate was affixed to the car's rear windshield, suggesting that a recent vehicle transfer had occurred. From these circumstances, we infer that the “mission-related” inquiries Officer Henry needed or intended to undertake focused not on whether a traffic violation had occurred, as his observations had already established, but on whether any circumstances (such as a recent vehicle acquisition) were present which would permit the officer, in his discretion, to issue a warning instead of a traffic citation. Neither the trial court nor the Commonwealth cite legal authority which equates an investigation of a passenger's documented authority to carry a firearm to the incidental inquiries permitted during a lawful traffic stop under Rodriguez and which promote safe and financially responsible operation of motor vehicles. More tellingly, neither the trial

16 court nor the Commonwealth offer any explanation as to how or why a passenger's firearms licensure status relates to these incidental inquiries or, more broadly, to the safe and financially responsible operation of a motor vehicle in general. We are convinced that a passenger's legal authority to own or possess a firearm is simply unrelated to a driver's authority to operate a motor vehicle, the existence of outstanding warrants against the driver, and whether a lawfully detained vehicle is properly registered or insured. As such, we reject the trial court's conclusion that Officer Henry's request for defendant's documented firearms authorization could be pursued as incidental to the traffic stop. We also reject the suggestion that Officer Henry's request fell within the limited class of minimally intrusive and permitted demands police officers may make, out of concern for officer safety and without independent justification, during the course of a lawful traffic stop. Defendant [makes] no claim that Officer Henry lacked authority (1) to ask for identification, (2) to inquire about the presence of weapons, (3) to request that defendant exit the vehicle, or (4) to demand that defendant surrender his firearm for the duration of the stop. Moreover, our reading of the transcript reveals that Officer Henry secured defendant's firearm without incident before requesting that defendant produce documentation that the firearm was lawfully in his possession. Officer Henry's seizure of the firearm essentially eliminated any immediate risk the weapon posed to law enforcement personnel, bystanders, and occupants of the vehicle for the duration of the stop and transformed the officer's pursuit of defendant's firearms credentials into an inquiry exclusively aimed at collecting evidence of collateral wrongdoing. Once Officer Henry secured the firearm, defendant's legal authority to own or possess a gun clearly bore no discernible relationship to individual safety or security within the context of the traffic stop. Under these circumstances, where seizure of a firearm has substantially diminished the risk to officers and others who may be present during a lawful vehicle detention, we see no reason why the Fourth Amendment, in the absence of independent justification, suspicion, or cause, should tolerate even a 10 to 15-minute extension of a routine traffic stop for the investigation of a secondary criminal matter. Hence, the request challenged in this case does not fall within the category of actions the police may undertake during a lawful traffic stop based solely on concerns for safety and security and without independent justification or cause. We have rejected Officer Henry's investigation into defendant's authority to carry a firearm as an inquiry incidental to the traffic stop and we have excluded his efforts as a permissible precaution the police may take during a lawful traffic stop without independent cause. Despite these determinations, the trial court nonetheless concludes that suppression should be denied because Officer Henry possessed reasonable suspicion to conduct an investigative detention. Hicks, 652 Pa. 353, 208 A.3d 916 (5/31/19), held that the possession of a concealed firearm by an individual in public is not sufficient, in and of itself, to create a reasonable suspicion that the individual may be dangerous, such that an officer can approach the individual and briefly detain him in order to investigate whether the person is properly licensed to carry a firearm. The trial court concluded that Hicks was distinguishable for two reasons. First, the trial court noted that Officer Henry was already in the midst of conducting a lawful stop during the time he engaged with defendant. Next, the trial court noted that Officer Henry's investigation was not based solely upon defendant's possession of a firearm but, instead, commenced after defendant produced

17 an expired Act 235 card. The trial court reasoned that, in view of these circumstances, Officer Henry had reasonable suspicion to investigate whether defendant lawfully possessed a firearm. Upon learning that defendant possessed a firearm, Officer Henry asked defendant to exit the vehicle and to surrender his weapon. Defendant complied without incident. Immediately after securing defendant's firearm, Officer Henry asked defendant to produce documentation confirming his legal right to carry a gun. Before issuing this request, Officer Henry possessed no evidence showing that defendant was involved in criminal activity, that defendant had engaged in furtive movements, that recent gun-related criminal activity had occurred in the vicinity of the stop, or that criminal activity (apart from an improperly displayed license plate) had taken place in the vehicle in which defendant was traveling as a passenger. In addition, neither the trial court nor the Commonwealth points to evidence linking defendant to criminal activity or furtive movements prior to Officer Henry's request that defendant produce documentary proof that he was authorized to carry a firearm. In short, defendant's possession of a firearm was the only fact offered by the Commonwealth to support the investigative detention that occurred when Officer Henry restrained defendant's movement to pursue an investigation of defendant's legal authority to carry a firearm. The trial court concluded that Hicks was distinguishable, and that Officer Henry could treat defendant's possession of a firearm as per se authorization to pursue an investigation, because the officer already had commenced a lawful stop. Assuming the trial court refers here to the traffic stop, this view is mistaken. Although Officer Henry's observations established probable cause to support the traffic stop, they did not link defendant to criminal activity and, more importantly, they did not set in motion the investigative detention challenged herein. Officer Henry did not investigate defendant's firearms licensure status because he was a passenger in a lawfully stopped vehicle; instead, Officer Henry commenced the challenged detention and investigation when he learned that defendant was carrying a firearm. Contrary to the trial court's conclusion that Officer Henry was “in the midst of” a lawful investigative detention when he asked for defendant's firearms credentials, defendant's removal from the vehicle was not “investigative” in nature but permitted, without cause, as a precautionary measure to ensure safety during a valid vehicle stop. The relevant, investigative detention of defendant (and the one challenged in the context of this appeal) is the detention which commenced when Officer Henry restrained defendant's liberty to ascertain his authority to carry a firearm. Finally, we reject the trial court's conclusion that reasonable suspicion supported the challenged investigative detention because Officer Henry commenced his inquiry based upon defendant's possession of a firearm and defendant's expired Act 235 card. The record squarely refutes this conclusion. Officer Henry commenced an investigative detention when he asked for documentation establishing defendant's right to carry a firearm. At that time, the only information within Officer Henry's possession was that defendant had a firearm holstered on his right hip. Under Hicks, that information was insufficient as a matter of law to establish reasonable suspicion. Moreover, Officer Henry's receipt of the expired Act 235 card after the start of the detention cannot be used to justify the seizure.

Because Officer Henry lacked reasonable suspicion to detain defendant and investigate his legal authority to carry a firearm, the detention challenged on appeal violated defendant's Fourth Amendment rights and all evidence seized as a result of the investigation is subject to exclusion at trial.

Malloy, ___ A.3d ___ (Pa. Super. 5/7/21)

Entry into home

Arthur Lange drove past a California highway patrol officer in Sonoma. Lange, it is fair to say, was asking for attention: He was listening to loud music with his windows down and repeatedly honking his horn. The officer began to tail Lange, and soon afterward turned on his overhead lights to signal that Lange should pull over. By that time, though, Lange was only about a hundred feet (some four-seconds drive) from his home. Rather than stopping, Lange continued to his driveway and entered his attached garage. The officer followed Lange in and began questioning him. Observing signs of intoxication, the officer put Lange through field sobriety tests. Lange did not do well, and a later blood test showed that his blood-alcohol content was more than three times the legal limit. Assuming United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (6/24/76), treated fleeing-felon cases categorically (that is, as always presenting exigent circumstances allowing warrantless entry), it still said nothing about fleeing misdemeanants. Misdemeanors vary widely, but they may be (in a word) “minor.” When a minor offense alone is involved, police officers do not usually face the kind of emergency that can justify a warrantless home entry. Add a suspect’s flight and the calculus changes — but not enough to justify [a] categorical rule [which would permit a warrantless entry into a home in every case involving pursuit for a misdemeanor]. We have no doubt that in a great many cases flight creates a need for police to act swiftly. A suspect may flee, for example, because he is intent on discarding evidence. Or his flight may show a willingness to flee yet again, while the police await a warrant. But no evidence suggests that every case of misdemeanor flight poses such dangers. Our Fourth Amendment precedents thus point toward assessing case by case the exigencies arising from misdemeanants’ flight. That approach will in many, if not most, cases allow a warrantless home entry. When the totality of circumstances shows an emergency — such as imminent harm to others, a threat to the officer himself, destruction of evidence, or escape from the home — the police may act without waiting. And those circumstances, as described just above, include the flight itself.3 But the need to pursue a misdemeanant does not trigger a categorical rule allowing home entry, even absent a law enforcement emergency. When the nature of the crime, the nature of the flight, and surrounding facts present no such exigency, officers must respect the sanctity of the home — which means that they must get a warrant. 3Given that our rule allows warrantless home entry when emergencies like these exist, we think the concurrence’s alarmism misplaced. . . . The concurrence spends most of its time worrying about cases in which there are exigencies above and beyond the

flight itself: when, for example, the fleeing misdemeanant will “get a gun and take aim from inside” or “flush drugs down the toilet.” But again: When an officer reasonably believes those exigencies exist, he does not need a categorical misdemeanor-pursuit rule to justify a warrantless home entry. (And contrary to the concurrence’s under- explained suggestion, assessing exigencies is no harder in this context than in any other.) The only cases in which we and the concurrence reach a different result are cases involving flight alone, without exigencies like the destruction of evidence, violence to others, or escape from the home. It is telling that — although they are our sole disagreement — the concurrence hardly talks about those “flight alone” cases. Apparently, it taxes even the concurrence to justify as an “exigency” a warrantless entry based only on a misdemeanant’s prior retreat into his home — when the police officers do not reasonably believe anything harmful will happen in the time it takes to get a warrant. The flight of a suspected misdemeanant does not always justify a warrantless entry into a home. An officer must consider all the circumstances in a pursuit case to determine whether there is a law enforcement emergency. On many occasions, the officer will have good reason to enter — to prevent imminent harms of violence, destruction of evidence, or escape from the home. But when the officer has time to get a warrant, he must do so — even though the misdemeanant fled.

Lange v California, ___ U.S. ___, 141 S.Ct. 2011, ___ L.Ed.2d ___ (6/23/21)

Warrantless arrest

The evidence established probable cause for the officers to arrest defendant for disorderly conduct. Further, defendant's violent and non-compliant conduct demonstrated his intent to flee police apprehension; accordingly, the requirements for a lawful warrantless arrest under Pa.R.Crim.P. 440 were met. See also 42 Pa.C.S. § 8902(a)(1) (authorizing warrantless arrest for disorderly conduct where, as here, “there is ongoing conduct that imperils the personal security of any person or endangers public or private property”).

Goldman, 252 A.3d 668 (Pa. Super. 5/14/21) appeal pending, No. 339 MAL 2021 (filed 6/9/21)

ASSAULT

Pennsylvania State Police Corporal Daniel R. Nilon testified that at approximately 6:30 p.m. on June 11, 2018, he was patrolling in a marked police cruiser when he observed a white BMW that did not have the required Pennsylvania inspection sticker on the windshield. The corporal began following the vehicle and activated his lights. The

20 vehicle pulled over, and as soon as Corporal Nilon went up to the driver’s door, he immediately detected a strong odor of marijuana coming out of the driver’s window. Corporal Nilon identified defendant as the individual who was driving the car, and he testified that defendant’s girlfriend and their three-month-old baby were also in the vehicle. Defendant was convicted of Endangering the welfare of a child (EWOC). Based on Mastromatteo, 719 A.2d 1081 (Pa. Super. 11/9/98), and Hutchins, 42 A.3d 302 (Pa. Super. 2/27/12), it is clear we must reverse defendant’s EWOC conviction. As in this case, there was evidence establishing that Mastromatteo and Hutchins were impaired when they drove their vehicles. While both Mastromatteo and Hutchins exhibited some form of unsafe driving — with Mastromatteo’s swerving over the middle line three times, and Hutchins’ causing a serious accident with another vehicle — our court held that additional evidence of reckless driving or conduct was necessary for the Commonwealth to establish that Mastromatteo or Hutchins had recklessly endangered the lives of the young children in their vehicles. Here, Corporal Nilon did not observe any unsafe driving by defendant, or any other conduct that would constitute a tangible indicia of unsafe driving to a degree that creates a substantial risk of injury which was consciously disregarded. Accordingly, the evidence was insufficient to demonstrate that defendant acted recklessly. Because we cannot conclude that defendant even recklessly endangered his child, we certainly cannot conclude that he knowingly did so, as his conviction for EWOC requires. It is clear that EWOC’s mens rea of “knowingly” involves a higher level of culpability than Recklessly Endangering Another Person’s mens rea of “recklessly.” Therefore, because defendant’s conduct did not amount to recklessness under the reasoning of Mastromatteo and Hutchins, it is clear that the Commonwealth failed to prove that he knowingly endangered the welfare of his child. Consequently, we reverse his conviction for EWOC.

Vela-Garrett, 251 A.3d 811 (Pa. Super. 4/23/21)

ATTORNEY

We recognize that defendant filed timely pro se post-sentence motions at a time when counsel was still designated as counsel of record in his case. As noted, pro se filings submitted by counseled defendants are generally treated as legal nullities. However, this court has recognized that a counseled defendant may act on his own to protect important rights where counsel remains technically attached to the case but is no longer serving the client's interest. Thus, where counsel has effectively discontinued working on a defendant’s behalf, a pro se filing does not offend considerations of hybrid representation. At the PCRA hearing, privately retained sentencing counsel confirmed that defendant was effectively unrepresented when he filed the pro se post-sentence motions in question. Specifically, counsel’s undisputed testimony stated: (1) counsel informed defendant he required payment prior to preparing a post-sentence motion; (2) both defendant and his wife indicated they could no longer afford counsel fees; (3) counsel advised that it was therefore up to defendant to secure a means by which to file a timely

21 post-sentence motion; and (4) defendant made several pro se filings in the nature of a post-sentence motion within the allotted 10-day filing period to preserve his rights. Under these circumstances, we find principles prohibiting hybrid representation were not implicated. While the trial court reasonably followed the dictates of Pa.R.Crim.P. 576(A)(4), as it was not informed that defendant was filing post-sentence motions in an essentially unrepresented capacity, it became clear during the PCRA hearing that defendant’s motions were not deserving of Rule 576 nullification. The trial court, shall accept for review defendant’s timely pro se post-sentence motions previously filed with the court.

Williams, 241 A.3d 353 (Pa. Super. 9/25/20)

During a hearing in May 2018, the PCRA court concluded that Friedland’s waiver of counsel was knowing, intelligent and voluntary. The court permitted Friedland to proceed pro se. Following his hearing in May 2018, Friedland requested numerous extensions to file an amended PCRA petition, a supplemental petition, and a response to the Commonwealth’s Motion to Dismiss, all of which the PCRA court granted. He requested another extension on June 7, 2019, to amend his previously submitted petition in order to cure defects, eliminate meritless claims, provide witness certifications, and add new claims. That request was granted, as was another request for more time filed in August 2019. Friedland then filed another amended petition and supplemental petition in September 2019. At the direction of the PCRA court, the Commonwealth responded to all of Friedland’s numerous claims. Finally, in November 2019, after considering all of Friedland’s claims and the Commonwealth’s responses thereto, the PCRA court issued its Pa.R.Crim.P. 907 Notice, rejecting Friedland’s arguments. Only then did Friedland, seeking to start the process anew, ask for a lawyer in response to the PCRA court’s Rule 907 Notice. Accordingly, not until after the PCRA court determined that the claims alleged in Friedland’s petition were without merit, did he request that counsel be appointed. The PCRA court did not abuse its discretion in denying this untimely request for PCRA counsel.

Friedland, 243 A.3d 740 (Pa. Super. 12/11/20) appeal pending, No. 502 EAL 2020 (filed 12/15/20)

The trial judge permitted the public defender to withdraw as counsel based upon defendant’s obtaining a job. Rule 120(B) further requires that “[u]pon granting leave to withdraw, the court shall determine whether new counsel is entering an appearance, new counsel is being appointed to represent the defendant, or the defendant is proceeding without counsel.” Pa.R.Crim.P. 120(B)(3) (emphasis added). If in determining the status of counsel under Rule 120(B), the trial court finds a defendant is without sufficient financial resources to hire one, the court must appoint counsel. To the extent the trial court assessed defendant’s right to appointed counsel based principally upon the singular representation that defendant was earning a living wage, the trial court

22 erred. The test under Rule 122(A)(2) is not whether a defendant earns a living wage, but rather, whether he or she is without financial resources or is otherwise unable to employ counsel. While certainly consideration of a person’s income is a weighty factor, the test under Rule 122(A)(2) is more encompassing than the single criteria of a person’s wages. Instantly, the trial court failed to conduct any hearings for purposes of creating a record on defendant’s eligibility for appointed counsel under the criteria of Rule 122(A)(2). The trial court did not hold any hearings to inquire into defendant’s financial situation, i.e., to determine the nature of defendant’s employment, his income and liabilities, or whether he had the financial means to afford counsel. Among other things, defendant attributed his inability to hire counsel to the curtailment of employment due to an injury, the inability to save sufficient funds to retain counsel, and as important, his child support obligations. The trial court failed to consider these and other reasons in denying appointed counsel. Even though Rule 121(b)(3) does not contain an express requirement that a trial court hold a hearing prior to permitting counsel to withdraw from a case, we find that one was warranted where, as here, an objection was lodged to a withdrawal motion and factual issues exist as to defendant’s ability to afford counsel. We are troubled by the trial court’s lack of inquiry into how defendant’s short term of employment, his physical injury, and his existing child support obligations may have affected his ability to retain counsel. Put differently, because of the trial court’s failure to inquire into defendant’s financial position, the record is bereft of any evidence of (1) the nature of defendant’s employment, (2) his monthly income, (3) his outstanding liabilities, and (4) other reasons that could have affected his ability to secure counsel. Moreover, where a defendant is entitled to counsel, a colloquy is required to ensure that any waiver of the right or entitlement is voluntary, knowing and intelligent. See Pa.R.Crim.P. 121. Here, at no point prior to or during trial did the trial court conduct an on-the-record colloquy under Rule 121 to determine whether defendant knowingly, voluntarily or intelligently waived his right to counsel or otherwise was prepared to proceed pro se. This too was in error.

Carlson, 244 A.3d 18 (Pa. Super. 12/21/20)

CAUTIONARY INSTRUCTION

A Commonwealth witness expressed an opinion as to the credibility of other victims who had come forward with accusations against the defendant. The trial judge denied a request for a mistrial and issued a cautionary instruction to the jury. Defendant may not challenge the adequacy of the trial court's cautionary instruction where defense counsel agreed to it and never objected. Where an objection is made, then a curative instruction issued, defendant's only challenge is to the adequacy of the curative instruction. Because defendant did not object to the instruction, any claim in relation to its adequacy is waived. Also, defendant's counsel never requested that the witness’s statement be stricken from the record.

Gilliam, 249 A.3d 257 (Pa. Super. 3/12/21) appeal denied, No. 369 MAL 2021 (filed 6/17/21)

COMPULSORY JOINDER, SECTION 110, CAMPANA

On September 21, 2019, officers with the City of Pittsburgh Police Department charged defendant by criminal complaint with one count of fleeing or attempting to elude a police officer (fleeing or eluding), a third-degree felony, and six related summary traffic offenses. A preliminary hearing was held on October 3, 2019 in the Pittsburgh Municipal Court. During the hearing, the charging officer testified. At or near the conclusion of the hearing, Magisterial District Judge (“MDJ”) Thomas Caulfield dismissed the charge of fleeing or eluding, after finding a lack of prima facie evidence, but subsequently stated that he would “take jurisdiction [of the remaining summary offenses].” Thereafter, MDJ Caulfield convicted defendant of the six summary offenses and imposed fines. MDJ Caulfield did so even though the prosecutor did not request him to exercise jurisdiction and in fact, attempted to withdraw the six summary offenses. MDJ Caulfield lacked jurisdiction under Pa.R.Crim.P. 542(F) and 543(F) to transform the October 3, 2019 preliminary hearing into a summary trial. In fact, one of defendant's overarching arguments is that, because the Commonwealth failed to challenge MDJ Caulfield's exercise of jurisdiction over the six summary offenses, Defendant's October 3, 2019 convictions remain in effect and Sections 109(3) and 110(1)(ii) bar subsequent prosecution. Upon review, we conclude that because MDJ Caulfield lacked competent jurisdiction, his guilty verdicts cannot support a judgment. Rule 542(F) of Pennsylvania's Rules of Criminal Procedure mandates that, in “any case in which a summary offense is joined with a misdemeanor, felony or murder charge, the issuing authority shall not proceed on the summary offense except as provided in Rule 543(F).” Pa.R.Crim.P. 542(F). The Comment to Rule 542 similarly states that “cases in which summary offenses are joined with misdemeanor, felony, or murder charges, pursuant to paragraph (F), during the preliminary hearing, the issuing authority is prohibited from proceeding on the summary offenses, or adjudicating or disposing of the summary offenses except as provided in Rule 543(F).” Pa.R.Crim.P. 543(F) states: (1) If the Commonwealth establishes a prima facie case pursuant to paragraph (B), the issuing authority shall not adjudicate or dispose of the summary offenses, but shall forward the summary offenses to the court of common pleas with the charges held for court. (2) If the Commonwealth does not establish a prima facie case pursuant to paragraph (B), upon the request of the Commonwealth, the issuing authority shall dispose of the summary offense as provided in Rule 454 (Trial In Summary Cases). (3) If the Commonwealth withdraws all the misdemeanor, felony, and murder charges, the issuing authority shall dispose of the summary offense as provided in Rule 454 (Trial In Summary Cases). The comment to Pa.R.Crim.P. 543 explains: Rule 542(F) specifically prohibits an issuing authority at a preliminary hearing from proceeding on any summary offenses that are joined with misdemeanor, felony, or murder charges, except as

provided in paragraph (F) of [Rule 543]. Paragraph (F) sets forth the procedures for the issuing authority to handle these summary offenses at the preliminary hearing. These procedures include the issuing authority (1) forwarding the summary offenses together with the misdemeanor, felony, or murder charges held for court to the court of common pleas, or (2) disposing of the summary offenses as provided in Rule 454 by accepting a guilty plea or conducting a trial whenever (a) the misdemeanor, felony, and murder charges are withdrawn, or (b) a prima facie case is not established at the preliminary hearing and the Commonwealth requests that the issuing authority proceed on the summary offenses. Under paragraph (F)(2), in those cases in which the Commonwealth does not intend to refile the misdemeanor, felony, or murder charges, the Commonwealth may request that the issuing authority dispose of the summary offenses. In these cases, if all the parties are ready to proceed, the issuing authority should conduct the summary trial at that time. If the parties are not prepared to proceed with the summary trial, the issuing authority should grant a continuance and set the summary trial for a date and time certain. In those cases in which a prima facie case is not established at the preliminary hearing, and the Commonwealth does not request that the issuing authority proceed on the summary offenses, the issuing authority should dismiss the complaint, and discharge the defendant unless there are outstanding detainers against the defendant that would prevent the defendant's release. In this case, the Commonwealth did not request MDJ Caulfield to adjudicate the six summary offenses leveled against defendant. Instead, during the preliminary hearing on October 3, 2019, after MDJ Caulfield dismissed the charge of fleeing or eluding, the prosecutor for the Commonwealth stated: “That's fine, the fleeing can be dismissed. The summaries are withdrawn.” Without the Commonwealth's acquiescence, MDJ Caulfield lacked jurisdiction to transform the preliminary hearing into a summary trial and convict defendant of the six summary offenses. Therefore, the guilty verdicts returned by MDJ Caulfield are not capable of supporting a judgment. Under these circumstances, Sections 109(3) and 110(1)(ii) do not bar the Commonwealth from re-filing the criminal complaint against defendant. See 18 Pa.C.S. § 112(a). Rather, defendant's convictions constitute a legal nullity and, as such, are unworthy of preclusive effect under the compulsory joinder rule and the principles of double jeopardy.

Davis, 242 A.3d 923 (Pa. Super. 11/19/20) [EDITOR’S NOTE: The Superior Court panel held that Pa.R.Crim.P. 544 obligated the Commonwealth to refile all charges before MDJ Caulfield, and not anywhere else in the Pittsburgh Municipal Court. However, the violation of Rule 544 by the Commonwealth did not prejudice the defendant.]

On February 5, 2019, Bennett was stopped by police for driving with an illegal window tint. During the stop, it was determined that Bennett was driving with a suspended license, and a search of his vehicle yielded an illegal firearm under the floor pad. Bennett was cited for the traffic violations, and arrested for/charged with Persons Not to Possess Firearms, Firearms Not to Be Carried without a License, and Carrying Firearms on Public Streets in Philadelphia. On May 24, 2019, counsel for Bennett appeared in traffic court (Philadelphia Municipal Court) on behalf of Bennett, to satisfy the two citations. The Municipal Court had not scheduled a hearing for Bennett, who remained in the county jail, and defense counsel provided no notice to the Commonwealth that he intended to appear and plead that Bennett was guilty of the summary offense. Counsel paid the citation for the window tint, but was told that he could not pay the citation for the suspended license, because Bennett was not physically present. Several days later, the Commonwealth withdrew the charges on the suspended license. On June 24, 2019, Bennett filed a Motion to Dismiss the [firearms] charges in common pleas court. Like the defendant in Gimbara, Bennett did not stand trial before the minor judiciary. The Commonwealth never subjected Bennett to successive trials for offenses stemming from the same criminal episode, and his firearm-related charges are not barred under Section 110 by filing a guilty plea with court staff and paying a fine for his tinted windows.

Bennett, 246 A.3d 875 (Pa. Super. 1/21/21) appeal pending, No. 190 EAL 2021 (filed 5/3/21)

In June of 2015, as a result of a traffic stop, defendant was arrested and charged with driving with a suspended license, possession with intent to deliver heroin (“PWID”), and knowing and intentional possession of heroin (“K&I”). Before the Traffic Division of the Municipal Court of Philadelphia, he was found guilty, in absentia, of the summary traffic offense. The Municipal Court's jurisdiction is capped at criminal offenses punishable by imprisonment for a term of not more than five years. the Commonwealth pursued the drug offenses in the common pleas court. Defendant filed a motion to dismiss, contending that the prosecution was required to try all of the offenses simultaneously, per the compulsory joinder requirements of Section 110 of the Crimes Code, 18 Pa.C.S. § 110. As noted, Section 110 generally requires the government to bring all known charges against a defendant arising out of a single criminal episode occurring within the same judicial district in a single proceeding. The present case concerns the exception set forth in Section 112 of the Crimes Code, pertaining to instances in which, “[t]he former prosecution was before a court which lacked jurisdiction over the defendant or the offense.” 18 Pa.C.S. § 112(1). Both parties agree that the term “the offense,” as employed in Section 112(1), is ambiguous. Accordingly, they maintain their competing positions regarding whether “the offense” relates to the crime that was the subject of the previous prosecution [the summary traffic offense] or the ones that are the subject of subsequent prosecution [the PWID, which could not be tried in Municipal Court].

We hold that “the offense,” Section 112(1), means the offense that was the subject of an initial prosecution resulting in a conviction or acquittal. The ultimate purport, with respect to the summary-and-greater-offenses paradigm, is that the Commonwealth must generally assure that known offenses are consolidated at the common pleas level, when they arise out of a single criminal episode and occur in the same judicial district. While this approach would seem to be the opposite of that which was applied in the Beatty line of decisions, in our considered judgment, some of the complexity and disharmony that has arisen in the compulsory joinder arena stems from the elevation of policy judgments over clearer indications of legislative design and intention. Of course, the General Assembly remains free to amend the joinder requirements to align with its current intentions, subject to constitutional limitations.

Johnson, ___ Pa. ___, 247 A.3d 981 (3/25/21) Link to: Baer, J. dissenting Atkinson, ___ Pa. ___, 252 A.3d 1078 (4/23/21) vacating, 245 A.3d 1140 (Pa. Super. 2/8/21) (en banc)

CONFESSIONS ISSUE TO BE DECIDED:

Whether police, to protect a person’s sixth amendment rights, must do more than administer Miranda warnings when the person is subject to police custodial interrogation and police deliberately fail to disclose that criminal charges have already been filed?

Commonwealth v. Jordan Rawls, No. 49 MAP 2020 (argued 3/10/21)

CONSPIRACY

The evidence established that Wallace and his coconspirator Clary were together for several hours leading up to the shooting, as they were captured on video surveillance leaving and returning numerous times. The surveillance footage showed that, prior to the unprovoked assault against Dutton, Wallace armed himself and Clary helped him conceal the illegal firearm by alerting him to the fact that it was visible on his person. Wallace and Clary, together, then went to C.S’s home, and the trio encountered Dutton near the intersection of Spruce and Willow Streets. The three men, acting in concert, surrounded Dutton, and when Wallace pointed his gun at Dutton’s head, C.S. and Clary waited for Wallace to act. As Dutton attempted to flee, the three men, together, chased him. After Wallace fired four shots at Dutton’s head, the trio turned and ran together for approximately one block before dispersing from each other and reconvening elsewhere on Willow Street. None of the co-conspirators tried to render aid to Dutton after Wallace shot him. The evidence was sufficient.

Wallace, 244 A.3d 1261 (Pa. Super. 1/8/21) appeal pending, No. 183 MAL 2021 (filed 4/9/21)

Defendant and Richard Lacks clearly engaged in a criminal conspiracy to commit homicide, aggravated assault, and kidnapping. The evidence demonstrates that, upon initially sighting [the victim,] Mr. Stancik, Mr. Lacks phoned defendant and informed him he had just seen Mr. Stancik. Defendant then met Mr. Lacks and Mr. King and the parties began to search for Mr. Stancik in the silver Honda Pilot, with defendant driving the vehicle. When they found Mr. Stancik, Mr. Lacks actively participated in the kidnapping of Mr. Stancik when he aided defendant in assaulting him and forcing him into the vehicle. Mr. Lacks also aided defendant during the commission of the crime in several other ways. First, upon defendant's request, he drove to the residence at 449 Ewing Street so that defendant could obtain the .22 caliber handgun, and personally retrieved the handgun from the residence and gave it to defendant. Defendant held this handgun against Mr. Stancik while in the vehicle and then later used it to shoot him. Furthermore, he complied with defendant's request to drive towards any nearby body of water. Additionally, Mr. Lacks was able to hear defendant's verbal threats of violence against Mr. Stancik in the vehicle: “Shut the fuck up. You're getting what you deserve, you piece of shit[,]” and “Shut the fuck up. I'll leave you on the side of the road.” According to Mr. Stancik, Mr. Lacks was in possession of a .40 caliber handgun while in the vehicle. Finally, Mr. Lacks was present at the body of water near 400 Cove Road where defendant shot Mr. Stancik and testified that he heard a gunshot after defendant forced Mr. Stancik into the woods. The foregoing facts indicate that defendant and Mr. Lacks were engaged in a conspiratorial agreement to kidnap, assault, and murder Mr. Stancik. Defendant and Mr. Lacks were associated with one another; furthermore, they each had knowledge of the crime, were present at the scene of the crime, and participated in the object of the conspiracy.

Rosario, 248 A.3d 599 (Pa. Super. 3/23/21) appeal pending, No. 137 WAL 2021 (filed 4/22/21)

Pursuant to the rulings in Fisher, 622 Pa. 366, 80 A.3d 1186 (10/30/13), cert. denied sub nom. Best v. Pennsylvania, 572 U.S. 1125, 134 S.Ct. 2314, 189 L.Ed.2d 192 (5/19/14), and in Carr, 227 A.3d 11 (Pa. Super. 1/21/20), when a defendant acts with another to intentionally commit an unlawful act characterized by the conscious disregard of a substantial and unjustifiable risk (i.e. a reckless act), that results in a death that was a natural and probable result of that act [the delivery of heroin, laced with fentanyl], the defendant is guilty of Conspiracy to Commit Involuntary Manslaughter. It does not matter that the conspirators did not intend to cause the death. The intent to commit a reckless act binds the conspirators to the foreseeable consequences of their actions. The crime of Conspiracy to Commit Involuntary Manslaughter is, therefore, cognizable in Pennsylvania.

Arrington, 247 A.3d 456 (Pa. Super. 3/8/21)

CORRUPTION OF MINORS

Defendant claimed that the Commonwealth's evidence was insufficient to convict him of corruption of minors, graded as a felony, because the jury acquitted him of Rape, Sexual Assault, Aggravated Indecent Assault, and Indecent Assault. In order to convict a defendant of corruption of minors, graded as a felony, the jury must find the following: Whoever, being of the age of 18 years and upwards, by any course of conduct in violation of Chapter 31 (relating to sexual offenses) corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of an offense under Chapter 31 commits a felony of the third degree. 18 Pa.C.S. § 6301(a)(1)(ii) (emphasis added). The dispositive language in the statute is not, as the Commonwealth posits, the phrase “any course of conduct”; instead, this case is properly resolved by interpreting the language that directly follows, i.e., the phrase “in violation of Chapter 31.” The key word in this phrase is “violation.” The phrase “in violation of” is not all that different from the phrase “commits an offense” as interpreted in Magliocco, 584 Pa. 244, 883 A.2d 479 (9/28/05); both are aimed at some act that amounts to illegal conduct under the law. Thus, the most natural understanding of the phrase “in violation of Chapter 31,” as used in Subsection (a)(1)(ii) of the Corruption of minors statute, is that it operates to create — as an element of the offense — a requirement that the Commonwealth prove beyond a reasonable doubt that the accused engaged in a course of conduct involving a breach of some law or laws contained in Chapter 31 of the Crimes Code. However, this is not to say the Commonwealth must formally charge or obtain a conviction on the Chapter 31 offense or offenses serving as the predicate for the felony corruption of minors charge in order to sustain a conviction for corruption of minors. It is on this limited point that our precedents provide more useful guidance. Where an indictment alleges and the jury is specifically charged on the underlying predicate offense, an acquittal of that underlying predicate offense renders the evidence insufficient as a matter of law with respect to the primary offense. But there is no similar evidentiary sufficiency problem when the Commonwealth elects to forego charging one or more predicate offenses, as long as it makes clear which offense it is pursuing as the predicate offense for purposes of the felony corruption of minors charge, and the factfinder is so made aware and, in the case of a jury, so charged.

Baker-Myers, ___ Pa. ___, ___ A.3d ___ (7/21/21) Link to: Mundy, J. dissenting

DISCOVERY

Defendant filed a motion to compel discovery of a child sexual assault victim’s mental health records.

The Horsham Clinic is a “facility” within the meaning of the Mental Health Procedures Act (MHPA). Next, Child Advocate stated at the September 20, 2018 hearing that the victim received inpatient treatment at the Horsham Clinic. Thus, the MHPA applies. None of the enumerated exceptions set forth in 50 P.S. § 7111(a) applies, and there is no question that the victim did not give written consent for the disclosure of her mental health records. The unambiguous language of Section 7111(a)(3) leads us to conclude that a patient's inpatient mental health treatment records may be used by a court only when the legal proceedings being conducted are within the framework of the MHPA, that is, involuntary and voluntary mental health commitment proceedings. We can find no language within the act itself which includes criminal proceedings within the framework of the act, nor can we find any caselaw in the Commonwealth which supports such a proposition. Accordingly, the trial court's order requiring Child Advocate to review the victim's mental health records and disclose any impeachment evidence to the trial court, and possibly to Segarra and the Commonwealth, was erroneous. Likewise, it was error for the trial court to leave the door open to a possible in camera review by the trial judge, as the MHPA prohibits the release of the victim's mental health records to anyone without her written consent. Because the MHPA protects all documents from disclosure, a detailed discussion of whether the psychiatrist/psychologist-patient privilege, codified in Section 5944 of the Judicial Code, 42 Pa.C.S. § 5944, applies to the victim's treatment at the Horsham Clinic is not necessary. We point out, however, that the psychiatrist/psychologist-patient privilege is absolute and the statute contains no exceptions for disclosure. The privilege applies not only to psychiatrists and psychologists, but to any member of a patient's treatment team. Moreover, in cases where the Section 5944 privilege has been found to apply, case law has precluded material from being subjected to even in camera review by the trial courts. Accordingly, any oral communication by the victim in private to any member of her treatment team at the Horsham Clinic and used by the team for the purpose of psychotherapeutic evaluation is privileged, as well as any reference to such a communication in Horsham Clinic's files.11 Thus, the trial court erred in ordering Child Advocate to review the victim's mental health records and disclose any impeachment evidence to the trial court and possibly to Segarra and the Commonwealth. Equally, the trial court erred when it left the door open to a possible in camera review by the trial judge, as the Section 5944 privilege is absolute and contains no exceptions for disclosure. 11To the extent the trial court determined that Section 5944 only protects communications made to a licensed psychiatrist or psychologist, this was error. The Horsham Clinic's mistake in disclosing the victim's privileged mental health records to the Commonwealth is not an implied waiver of her privilege. Segarra's right to access is dependent upon whether the information is protected by statutory privilege. Our research has not uncovered any published opinions which address whether a criminal defendant's constitutional rights of confrontation and due process are violated by a denial of access to records under the MHPA, but courts of this state have examined whether a criminal defendant accused of sexual offenses is entitled

30 to access to the alleged victim's records, and they have held repeatedly that such constitutional rights are not violated when the records are statutorily privileged.[citations omitted].

Segarra, 228 A.3d 943 (Pa. Super. 2/10/20) appeal denied, ___ Pa. ___, 237 A.3d 975 (8/17/20)

DISORDERLY CONDUCT

On the evening of May 31, 2019, defendant turned on eight construction grade floodlights in the backyard of his home in Manheim Township directed towards the home of his neighbor, Gregory Meglic, whose own backyard lights were a source of disturbance to defendant. Mr. Meglic described the lights as causing annoyance and alarm, stating that they penetrated every window on the backside of the house. In addition, the lights confused his son’s friend who was playing in the pool at the time that the lights were turned on. Another of defendant’s neighbors, Jennifer Kane, described the lights as being so bright that they lit up her entire house and that they were visible “nine houses down.” Ms. Kane stated that the lights caused her annoyance and alarm as she was pregnant at that time and was unable to relax in her own home after a strenuous shift as a nurse. Lieutenant Charles Melhorn, the patrol commander of the Manheim Township Police Department described Mr. Meglic’s backyard as being “lit up like Wrigley Field,” and he could not determine how many individual lights were present “because it was just a sea of light.” Lieutenant Melhorn further stated that with the naked eye, you couldn’t even look in the direction of the lighting arrangement. The Manheim Township Police Department received seven or eight complaints in total regarding the lights, one from a house at least a hundred yards away from the offending lights. Defendant testified that he had previously hired an attorney to file a complaint with Manheim Township regarding his objection to the “totality of the lighting” in Mr. Meglic’s backyard, including the string lights, a “green glow from the swimming pool,” tiki torches, a motion-detecting security light, and the light from a fire pit on the property. Defendant also asked his attorney to address the fire pit with the Township as his wife was a recent cancer survivor and the smoke was entering their house. The Township agreed with defendant’s attorney that the fire pit violated the local burn ban but informed him that the local ordinance did not address lighting. Defendant stated that he “put up the lights to make a statement” and he thought that if he was cited and fined for his conduct, he would later be able to go in front of a judge to explain why he did what he did and the judge would also be able to address Mr. Meglic’s lighting at the same hearing. The evidence at trial established that defendant created a physically offensive condition by shining eight construction-grade floodlights towards his neighbors. The “blinding light” from defendant’s floodlights was a direct assault on the physical senses of members of the public, which was confirmed by the testimony of defendant’s neighbors. The evidence further established that the harmful effect of the floodlights was not solely felt by Mr. Meglic, the neighbor with whom defendant had a grievance; the police received at least seven complaints, including from a house approximately 100 yards away.

Unlike other cases where this court has reversed disorderly conduct convictions based on the fact that the public disturbance was brief and confined in scope, defendant here refused to turn off the floodlights when first requested by the police and let the light permeate the neighborhood for approximately two hours in total. The mens rea requirement of the disorderly conduct statute demands proof that defendant by his actions intentionally caused or recklessly created a risk of causing a public inconvenience, annoyance or alarm. Defendant admitted that he specifically intended to create a public disturbance that would lead to him being cited for an offense so that he could have his proverbial day in court. Moreover, defendant intentionally kept the offensive condition in place for several minutes after requests by the police to turn off the lights, including after being informed by Lieutenant Melhorn that he would be arrested and charged with a misdemeanor if he persisted in his refusal. The evidence at trial therefore established that defendant intentionally caused public inconvenience, annoyance, or alarm as required by the disorderly conduct statute. Even to the extent defendant could claim to have been exercising his right to free speech by turning on the floodlights as a “protest,” his attempt to evade liability for disorderly conduct fails because he did not exercise his rights in a reasonable manner.

McConnell, 244 A.3d 44 (Pa. Super. 12/30/20)

Shortly before midnight on January 11, 2019, Sergeant Robert Bennett of the Upper Darby Police responded to a report of an intoxicated man causing a disturbance at an Exxon convenience store. Upon entering the store, Officer Bennett first encountered the store clerk, who was also calling 911 at that time based on defendant's behavior. The clerk pointed Officer Bennett toward the rear of the store, where Officer Bennett found defendant standing and staring at the wall with his hands in his pockets. Defendant appeared dazed, unsteady on his feet, and smelled of alcohol. Officer Bennett approached defendant and asked him to turn around and remove his hands from his pockets. Though defendant eventually complied, Officer Bennett stated that defendant became agitated and combative, and told Officer Bennett, “get the fuck away from me” and “you don't have to talk to me, fuck you.” Defendant walked away from Officer Bennett, who stated he was not finished questioning defendant. Defendant ignored Officer Bennett and continued walking to the store's exit. Officer Bennett repeatedly asked defendant to stop and followed defendant to the door. Defendant continued to ignore Officer Bennett and slammed the door on him while exiting the store. Several backup officers responded to the scene and encountered defendant in the parking lot. These officers also ordered defendant to stop; he refused to comply. The officers then informed defendant he was under arrest. Defendant resisted and became physically aggressive; he kicked at the officers and swung his elbows to evade arrest. The officers employed a taser and canine unit to subdue defendant and eventually placed him in handcuffs. Trial court’s reasoning: Defendant fails to acknowledge that it was public calls for police assistance and interdiction that brought the Upper Darby Police to the scene. It is a plain inconvenience to the public to have the Defendant acting in the manner he so behaved.

The defendant, while exhibiting behavior consistent with being under the influence of drugs and/or alcohol, became agitated and physically demonstrative, shouting curses and acted dissociative [sic] of [Officer Bennett's] instructions and turned away from the officer when commanded to stop and turn around, thereby quickly escalating both the danger to himself, the officer, the store clerk and the public. The defendant's conduct was sufficiently extreme[, such that] the store clerk ... call[ed] 9-1-1 for police assistance due to the likely futility and threat of harm of engaging the defendant directly. The clerk's decision to seek police interdiction was well advised versus the risk of engaging the defendant; the defendant demonstrated he was not going to leave the premises peaceably. Instead, the defendant shouted obscenities at Officer Bennett and slammed the entry/exit door into the officer. Defendant fought officers and wouldn't walk or stand once cuffed. This escalated into the melee that ensued wherein the defendant's attempt to fend off arrest precipitated the involvement of multiple officers and the deployment of a taser. Defendant acted in an aberrant, threatening, violent and belligerent and non-reassuring manner, plainly escalating the requisite quantum of police interdiction due to his own behavior. The obscenities shouted at the responding officer were part of a course of escalating conduct designed to and recklessly creating public alarm, annoyance and inconvenience. The disorderly conduct statute must not be used as a catchall or dragnet for prosecution of conduct that is uncivil, annoying or irritating. Section 5503 was not unconstitutionally applied to defendant, who was not exercising any constitutionally protected right, but was rather hurling epithets at Sergeant Bennett in a disorderly fashion. When a person's protected First Amendment right of free speech is implicated, it is necessary that the actor intend to breach public peace by making unreasonable noise prohibited by Section 5503; mere annoyance to the public will not suffice. The cardinal feature of the crime of disorderly conduct is public unruliness which can or does lead to tumult and disorder. The defendant was no longer a legitimate business invitee on the premises of the Exxon convenience mart when police arrived. The Exxon store clerk was dialing 9-1-1 because of the defendant's behavior. The defendant was loitering around the store [and] staring into the wall, plainly intoxicated. The defendant became defiant to Sgt. Bennett's instruction to cease and leave the premises. The defendant turned away from Sgt. Bennett and began his obscenity-laced tirade. Such an escalating confrontation creates an annoying disturbance to the public, such that a member of the public would experience a sense of danger, risk or threat in the presence of the escalating confrontation between the Defendant and the police. Of course, the confrontation sub judice did escalate and the Defendant had to be subdued with the assistance of multiple officers, a police dog and multiple taser deployments. Such sharply escalating confrontation poses the dangers to the public that did, in fact, occur; that is, the confrontation devolved into a physical melee. The escalating confrontation and physical melee between the defendant and the police created the very tumult, public danger, inconvenience and annoyance that the disorderly conduct offense was created to deter. The defendant was not engaging in any constitutionally protected speech when he hurled his obscenity laced tirade at Sergeant Bennett. Variously yelling “fuck you” and

“fuck you, don't talk to me” at Sgt. Bennett in a small service station convenience store, while having no legitimate business on the premises and being intoxicated to a degree exhibited by the defendant, strikes at the very heart of the meaning of public unruliness contemplated by the statute. The act element of the crime of disorderly conduct may be established by a showing that the defendant engaged “in fighting or threatening, or in violent or tumultuous behavior” or that he made “unreasonable noise” or used “obscene language” or gestures. 18 Pa.C.S. § 5503(a)(1)-(3). The act element of the crime is also met where the actor creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor. Superior Court’s ruling: The record supports the trial court's determination that the Commonwealth presented sufficient evidence for the court, as factfinder, to conclude beyond a reasonable doubt that defendant violated Section 5503(a)(1).

Goldman, 252 A.3d 668 (Pa. Super. 5/14/21) appeal pending, No. 339 MAL 2021 (filed 6/9/21)

DOUBLE JEOPARDY

34 not to possess was held on January 15, 2020. In attempting to prove this charge, the Commonwealth opted to present only the testimony of the two officers, the physical evidence seized from defendant's vehicle, and the parties’ stipulation that defendant had pled guilty to robbery, which was an enumerated offense precluding his lawful possession of a firearm. While the Commonwealth did not offer the Nearys as witnesses, both officers testified that the Nearys had claimed that someone had shot at them. However, the trial court refused to allow the hearsay to be used as substantive evidence as an excited utterance, ruling that it could only be considered to explain the officers’ course of conduct. The jury returned a verdict of not guilty. When the parties appeared for the trial of the remaining charges, defendant moved to dismiss the counts for carrying a firearm without a license, carrying a loaded weapon, and REAP as to the Nearys. Defendant argued that, since the first jury found him not guilty of possession by person prohibited, allowing the other charges based upon defendant's possession of a firearm to go forward would be prohibited under principles of collateral estoppel. The double jeopardy protections afforded by our state constitution are coextensive with those federal in origin; essentially, both prohibit successive prosecutions and multiple punishments for the same offense. Thus, to the extent that Wallace purported to espouse federal constitutional principles, it appears to have been overruled by Currier v Virginia, ___ U.S. ___, 138 S.Ct. 2144, 201 L.Ed.2d 650 (6/22/18). Given the coextensive nature of the two constitutions acknowledged by the Commonwealth v. States, 595 Pa. 453, 938 A.2d 1016 (12/27/07), and Currier, it would appear that it is now the law under both the U.S. and Pennsylvania constitutions that a criminal defendant's voluntary severance of charges results in a blanket inability to successfully invoke double jeopardy to bar the subsequent trial if he is acquitted in the first, regardless of the results of the Ashe test. Therefore, because Defendant requested to have his person not to possess charge tried separately, his acquittal in that trial had no impact upon the Commonwealth's ability to pursue the subsequent charges in the second trial. His double jeopardy claim must fail.

Banks, ___ A.3d ___ (Pa. Super. 5/13/21) appeal pending, No. 350 MAL 2021 (filed 6/14/21)

DRIVING UNDER THE INFLUENCE

For Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed.2d 560 (6/23/16), see Search and Seizure/Blood.

In December 2017, Tina Dobson, an employee of a truck stop, learned that someone had driven into a light pole outside the truck stop. She went outside and spoke to the driver of the vehicle, which was Clemens. Clemens told her he struck the light pole about 10 to 15 minutes before she came out. Dobson stated that she smelled alcohol on Clemens, he was repeating himself, and he “wasn't real steady on his feet and he had claimed that he was going to wait about an hour and then he was going to continue to

35 drive to Cleveland.” Dobson testified that she observed the light pole and damage to the front end and headlight of Clemens’ vehicle. Dobson called the Pennsylvania State Police and explained what happened. Trooper Dylan Weaver testified that he arrived at the truck stop in a marked police vehicle and in uniform. He approached Clemens and his vehicle, which had front-end damage. He said the light pole was clearly marked, as the base was a bright yellow, and Clemens’ keys were on the dashboard, not in the ignition. The Trooper said he detected a “very, very strong odor of alcohol beverage emanating off [Clemens’] person.” Clemens repeated himself multiple times, stating he had made a left turn into the truck stop and crashed into “that yellow thing,” and he had gotten off the interstate because his defrosters were not working. Trooper Weaver stated Clemens was hesitant to tell him what happened. According to the Trooper, after Clemens admitted to being behind the wheel and in physical control of the vehicle, Trooper Weaver confronted him about the smell of alcohol. Clemens stated he had not been drinking. Trooper Weaver saw on the passenger seat a cooler with the lid partially off, and the top of a blue and red aluminum can. The can was a 25 ounce can of Natty Daddy, which is an eight percent by volume alcoholic beverage. The can was a little less than a quarter full. Trooper Weaver offered Clemens the opportunity to perform field sobriety tests. Clemens “hum[med]-and-haw[ed] around about it, telling [Trooper] Weaver that [he] didn't have cause to request him to leave his car.” Trooper Weaver stated that Clemens took quite a while to find the insurance card and later forgot that he had handed Trooper Weaver his identification. Trooper Weaver testified that in his opinion, Clemens “was too impaired to drive.” Trooper Weaver asked Clemens to get out of the vehicle, but Clemens did not comply. Trooper Weaver provided multiple opportunities to exit, but Clemens told Trooper Weaver that he did not “have cause to pull [him] out of the vehicle.” Trooper Weaver called for assistance, and Corporal Todd Koebley arrived. Trooper Weaver again asked Clemens if he would perform field sobriety tests, and Clemens said he would not. Trooper Weaver and Corporal Koebley then gave Clemens several commands to exit the vehicle, but Clemens remained inside. Trooper Weaver stated, “We continued to interact with him and it was clear that he wasn't going to come out of the vehicle based on our verbal commands. At that point I grabbed his arm and began to try to physically remove him from the vehicle. He grabbed the steering wheel and resisted me. . . .” It took both Trooper Weaver and Corporal Koebley pulling on Clemens to get him out of the vehicle. After Trooper Weaver warned Clemens that if he did not get out, they would tase him, Clemens remained in the vehicle and Corporal Koebley tased him in the right thigh. Clemens then finally got out of the vehicle, and Trooper Weaver put Clemens’ arm behind his back. He gave commands for Clemens to put his hands behind his neck, but Clemens did not cooperate. Trooper Weaver and Corporal Koebley eventually were able to take Clemens into custody. Clemens claims the Commonwealth failed to present sufficient evidence to sustain the DUI conviction. He argues that no witness saw him driving. Further, he notes that although the troopers smelled alcohol, Trooper Weaver acknowledged Clemens did not exhibit slurred speech or have glassy, bloodshot eyes. He argues that he was driving a

36 new vehicle in which the defroster was not working, and that the odor of alcohol and a single can of an alcoholic beverage do not support the conviction. Clemens relies on Gause, 164 A.3d 532 (Pa. Super. 5/24/17) (en banc), in support of his sufficiency claim. In Gause, a police officer initiated a stop of the car Gause was driving because it lacked illuminated taillights. Gause provided his license and registration without any fumbling. The officer smelled alcohol, and Gause stated he had consumed one 12-ounce can of beer. Gause also completed some field sobriety tests, with varying levels of success, but informed the officers that he had been shot in the leg ten years before the stop. We concluded the evidence did not support a conviction under Section 3802(a)(1), noting that Gause had “readily acknowledged” he had a beer about a half hour before the stop, was cooperative, did not exhibit typical indicators of alcohol impairment, and there was no evidence of erratic driving, slurred speech, or difficulty in handing over required documents or with standing. Id. at 541. We further noted that although the field sobriety tests yielded inconsistent results, the officer recognized the reliability of the tests could have been affected by the Gause's leg injury. Here, the Commonwealth presented sufficient evidence to support the conviction. Clemens told both Dobson and Trooper Weaver that he had driven his vehicle into the light pole. Unlike the defendant in Gause, Clemens had difficulty retrieving the requested paperwork, was not cooperative, and refused to perform field sobriety tests, and Dobson, who spoke with Clemens 10 to 15 minutes after the accident, detected the smell of alcohol. Trooper Weaver also detected a strong odor of alcohol. Moreover, there were indicia of intoxication to a degree that rendered Clemens unfit to drive safely. Trooper Weaver testified that Clemens was repeating himself, had trouble finding his documents, and refused to undergo field sobriety tests or a breath test. Trooper Weaver further found a 25-ounce can of 8% alcohol in the passenger seat that was only 25% full. Such evidence supports a finding, beyond a reasonable doubt, that Clemens was operating a motor vehicle after imbibing an amount of alcohol that made it unsafe for him to do so.

Clemens, 242 A.3d 659 (Pa. Super. 10/28/20)

Sergeant Binken believed that he saw a gun in defendant's hand and directed him to drop it. Officer Lepore did not see a gun. Defendant responded by backing up his car, nearly hitting one of the officers, and speeding away. The officers pursued defendant in what became a high-speed chase over approximately sixty miles and three counties, ending when defendant eventually stopped four or five miles after driving over spike strips which had been placed across the highway. The officers found defendant with slurred speech, dilated eyes, and smelling of alcohol. Defendant refused to take a blood test. Defendant was arrested and his car impounded. A subsequent search of the vehicle produced a bullet fragment, an empty shell casing, a handgun magazine, and markings consistent with bullet damage to the driver's door, but no firearm. Defendant argued that the evidence was insufficient to demonstrate that he was incapable of safe driving because he led the police on a high speed chase, at speeds up to 130 m.p.h., from Wilkes-Barre to Mt. Pocono Township, without striking any other vehicles or driving off the road. Defendant’s claim is absurd. Defendant, in his intoxicated state, engaged in highly unsafe driving. Defendant followed the Nearys in a close and aggressive manner and that he sped through residential areas at speeds of over 100 miles per hour. defendant drove in an erratic manner all over the roadway at speeds in excess of 130 miles per hour for over sixty miles. He tried to pass a semi-truck on the shoulder of the road, almost hitting a large interstate sign. Even after running over the spike strips that were laid down flattening his tires, defendant continued to drive for three or four miles. Based upon their common sense and the evidence viewed in the light most favorable to the Commonwealth, the members of the jury were free to conclude that defendant was operating his vehicle while under the influence of alcohol, and that his outrageous driving maneuvers manifested an alcohol-induced diminution or enfeeblement in the ability to exercise judgment, to deliberate, or to react prudently to changing circumstances and conditions.

Banks, ___ A.3d ___ (Pa. Super. 5/13/21) appeal pending, No. 350 MAL 2021 (filed 6/14/21)

Court may impose a jail sentence in excess of the mandatory minimum sentence of 6 months’ probation, 75 Pa.C.S. § 3804(a)(1) particularly where, as here, the applicable range under the sentencing guidelines exceeds the mandatory minimum sentence. The offense was an ungraded misdemeanor.

Brown, 240 A.3d 970 (Pa. Super. 9/28/20)

Pursuant to Alleyne v. United States, 570 U.S. 1, 133 S.Ct. 2151, 186 L.Ed.2d 314 (6/17/13), a defendant’s prior acceptance of ARD must be proven to the trier of fact. Acceptance of ARD is not the equivalent of a prior conviction which need not be proven to the trier of fact pursuant to Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (3/26/98).

The treatment of an ARD acceptance conclusively as a prior offense, resulting in enhanced punishment with a mandatory minimum sentence, offends both substantive and procedural due process. The Commonwealth seeks to label defendants as recidivist drunk drivers based solely on their prior acceptances of ARD. Due process considerations protect those accused of committing a crime from conviction except upon proof beyond a reasonable doubt. Accordingly, if the Commonwealth seeks to enhance a defendant’s DUI sentence based upon that defendant’s prior acceptance of ARD, it must prove, beyond a reasonable doubt, that the defendant actually committed the prior DUI offense.

Chichkin, 232 A.3d 959 (Pa. Super. 5/20/20)

ISSUE TO BE DECIDED:

May a non-conviction disposition from another state count as a prior conviction for DUI purposes or is the underlying statute unconstitutional?

Commonwealth v. Garrett Hayes, No. 54 MAP 2021 (transferred 7/19/21)

75 Pa.C.S. § 3806, designates a prior adjudication of delinquency as a “prior offense” triggering the mandatory sentencing enhancements. An adjudication of delinquency does not, like acceptance of ARD, involve the suspension of the Commonwealth's obligation to present charges before a court and prove each and every element thereof beyond a reasonable doubt. We reject the inference appellant claims to draw from Apprendi and Alleyne that use of a prior offense to increase punishment is constitutional only if the prior offense was first proven to a finder of fact's satisfaction in a proceeding — either the prior or present one -- where the accused had the right to a jury. Instead, we agree with the prevailing view that constitutional due process considerations, as interpreted by Apprendi and Alleyne, do not preclude sentence enhancement of an adult offender based on a prior adjudication of delinquency reached in a proceeding that conformed with the process due and conferred to the juvenile the catalog of rights described above, even in the absence of the right to a jury. Notwithstanding Chichkin, 232 A.3d 959 (Pa. Super. 5/20/20), Section 3806 is constitutional in its designation of an adjudication of delinquency as a prior offense.

Lee, ___ A.3d ___ (Pa. Super. 7/27/21)

EX POST FACTO

61 Pa.C.S. § 6137.2, requires a trial court to impose a mandatory 12-month period of reentry supervision “in addition to” any aggregate sentence of four or more years’

39 imprisonment. See 61 Pa.C.S. § 6137.2(e). Furthermore, it applies to any defendant “sentenced after the effective date.” 61 Pa.C.S. § 6137.2(f). The court’s imposition of a 12-month period of reentry supervision based upon Section 6137.2 constitutes an additional punishment for acts he committed before the December 2019 enactment of the statute. Thus, as applied to defendant, the sentencing provision constitutes an unconstitutional ex post facto punishment.

Carey, 249 A.3d 1217 (Pa. Super. 4/19/21) appeal pending, No. 263 MAL 2021 (filed 5/18/21)

EVIDENCE

After-discovered

At trial, Philadelphia Police Officer Michael Schmidt and his partner, Officer Marc Marchetti testified that they observed Felder remove something from his waistband and both of them heard a metal object hit the ground. Officer Marchetti also heard Felder confess to dropping the gun. “While we were seated in the vehicle, [Felder] stated as a blurt – utterance – he said, ‘There’s no way you could’ve heard that; it hit the sidewalk; there’s snow on there.’ ” The trial court found Felder guilty of three firearms offenses. After the trial, the Commonwealth disclosed evidence that, in two separate proceedings, a judge of the Court of Common Pleas and a United States District Court judge had found that Officer Schmidt had given non-credible testimony. Defendant sought a new trial based upon after discovered evidence, and the Commonwealth agreed that defendant was entitled to relief. However, the trial court acted within its discretion when it denied the new-trial request. A criminal defendant seeking to assail a guilty verdict and retry a case with after- discovered evidence must clear four hurdles. He must convince the trial court “that the evidence (1) could not have been obtained prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely to impeach the credibility of a witness; and (4) would likely result in a different verdict if a new trial were granted. Here, two witnesses testified to Felder’s unlawful possession of the firearm. Neither has recanted. Thus, the facts supporting the limited exception to the third prong were not present in this case. Moreover, nothing in the Commonwealth’s brief indicates that the trial court abused its discretion by applying the general rule, rather than the limited exception to the prohibition on after-discovered evidence being used for impeachment. This court has no authority to second guess a ruling committed to the sound discretion of the trial court. After-discovered evidence is peculiarly a question in the trial court’s discretion, because that court is uniquely positioned and qualified to appraise the reliability of the original trial and the proposed evidence’s impact upon it. Because Felder has not raised the issues of whether the Commonwealth violated Brady or the Pennsylvania Rules of Criminal Procedure in this Court, we may not reach them during this direct appeal.

The four-prong test is conjunctive; the defendant must show by a preponderance of the evidence that each of these factors has been met in order for a new trial to be warranted. If the trial court did not abuse its discretion regarding any of the three prongs upon which it relied to deny Felder a new trial, we must affirm. We need only address the trial court’s analysis of the third prong of the test, as it is dispositive. The trial court found that the 2018 court records, upon which Felder based his motion for a new trial, would only impeach the credibility of Officer Schmidt. Thus, we may not usurp the trial court’s discretional ruling that Felder does not deserve a new trial based on after-discovered evidence.

Felder, 247 A.3d 14 (Pa. Super. 2/17/21) appeal pending, No. 68 EAL 2021 (filed 2/23/21)

Character

Truthfulness is not relevant to the offenses of recklessly endangering another person or possession of an instrument of crime. Additionally, Gboko testified on his own behalf at trial, and the Commonwealth did not attack Gboko’s general reputation for truthfulness. Where the prosecution has merely introduced evidence denying or contradicting the facts to which the defendant testified, but has not assailed the defendant’s community reputation for truthfulness generally, evidence of the defendant’s alleged reputation for truthfulness is not admissible. Accordingly, Gboko was not entitled to a stipulation regarding his character for truthfulness, nor was he entitled to introduce such evidence under either Rule [of Evidence] 404 or Rule 608.

Gboko, 243 A.3d 247 (Pa. Super. 12/10/20)

Frye

An April 2015, press release acknowledged that that FBI microscopic hair analysts had committed “widespread, systematic error, grossly exaggerating the significance of their data under oath with the consequence of unfairly bolstering the prosecution's case[.]” A November 2012, FBI statement had identified the following three types of errors associated with microscopic hair comparison analysis testimony: Error Type 1: The examiner stated or implied that the evidentiary hair could be associated with a specific individual to the exclusion of all others. This type of testimony exceeds the limits of the science. Error Type 2: The examiner assigned to the positive association a statistical weight or probability or provided a likelihood that the questioned hair originated from a particular source, or an opinion as to the likelihood or rareness of the positive association that could lead the jury to believe that valid statistical weight can be assigned

to a microscopic hair association. This type of testimony exceeds the limits of the science. Error Type 3: The examiner cites the number of cases or hair analyses worked in the lab and the number of samples from different individuals that could not be distinguished from one another as a predictive value to bolster the conclusion that a hair belongs to a specific individual. This type of testimony exceeds the limits of the science. This Court has substantial concerns about the appropriate use of microscopic hair comparison analysis in the courtroom, and we take this opportunity to admonish that testifying examiners must acknowledge the inherent limitations and assiduously avoid the forms of over-claiming and overstatement [acknowledged in 2012]. We decline, however, to use this case as a vehicle to categorically disapprove microscopic hair comparison analysis and bar it from the courtroom. Ultimately, we agree with the PCRA court that defendant has failed to demonstrate a reasonable probability that the verdict against him would be different in a trial in which [the expert’s] testimony would be excluded.

Chmiel, ___ Pa. ___, 240 A.3d 564 (10/21/20)

Inflammatory

The photos had essential evidentiary value which was not outweighed by their inflammatory nature. The victim was subjected to a lengthy period of torture before she was killed, and the photos demonstrate the restraint and humiliation that was inflicted upon her in this regard. Additionally, the photos illustrate the steps that defendant and his co-defendants took to hide the victim’s body. Thus, we find that the photographs assisted the jury in understanding the facts of the victim’s death and the nature of the offenses. Further, while clearly disturbing, we would not characterize the photos as “gruesome,” as they were not close-ups of the victim’s wounds or injuries. The trial court carefully exercised its discretion both in determining which photos to admit at trial and which to send out with the jury during its deliberations. In fact, the trial court provided a cautionary instruction regarding consideration of the photos.

Knight, ___ Pa. ___, 241 A.3d 620 (11/18/20)

FIREARMS

Section 2707.1 of the Crimes Code, 18 Pa.C.S. § 2707.1, entitled “Discharge of a firearm into an occupied structure,” does not encompass a situation where an individual discharges a firearm while already inside an occupied structure (a restaurant). The offense requires proof that defendant fired into the structure from a location outside of the structure.

McCoy, 599 Pa. 599, 962 A.2d 1160 (1/23/09) Link to: Eakin, J. dissenting

Defendant was arguing with his paramour inside a multi-unit apartment building. During this argument, defendant discharged a nine millimeter handgun through the floor of his apartment. The bullet passed through defendant’s apartment floor and through the ceiling of the apartment below. The apartment below defendant’s was occupied by 91 year old, Marie Ilg. The bullet progressed through Ms. Ilg’s home within three or four feet of her. The projectile then penetrated a wall inside of Ms. Ilg’s apartment. Defendant contends that because he and Ms. Ilg lived in the same apartment building, they were inside the same occupied structure pursuant to McCoy, 599 Pa. 599, 962 A.2d 1160 (1/23/09). Defendant cites to the arson statute for the proposition that the legislature could have defined individual apartments in a single structure as separate occupied structures, but it did not. The arson statute, 18 Pa.C.S. § 3301, defines occupied structure in the same manner as Section 2707.1. However, it adds an additional sentence that we conclude is irrelevant to Section 2707.1. Section 3301 defines occupied structure as “any structure, vehicle or place adapted for overnight accommodation of persons or for carrying on business therein, whether or not a person is actually present. If a building or structure is divided into separately occupied units, any unit not occupied by the actor is an occupied structure of another.” 18 Pa.C.S. § 3301(j) (emphasis added). Although this language contemplates separate units in a structure, it does not prevent the conclusion that an apartment is itself an occupied structure under Section 2707.1. Rather, the arson statute describes who occupies the units of a structure, but it defines “occupied structure” using the same language as Section 2707.1. Apartments are separate places of abode, and the autonomy provided an apartment is distinct from areas of a restaurant or rooms within the same home. Separate apartments within one building are distinguishable from separate areas of a restaurant, or even separate rooms within a single dwelling. Defendant was inside his apartment at 425 Crest Lane, an occupied structure, when he discharged a round from his firearm into Ms. Ilg’s apartment, which is located one level below his at 415 Crest Lane, another occupied structure. There is no dispute that these are separate apartments or that defendant fired into Ms. Ilg’s apartment. Accordingly, the evidence established that defendant discharged a firearm into Ms. Ilg’s apartment, an occupied structure, and we find that these facts satisfy all of the elements of Section 2707.1 pursuant to McCoy.

Headley, 242 A.3d 940 (Pa. Super. 11/19/20) appeal denied, ___ Pa. ___, ___ A.3d ___ (5/18/21)

FRUIT OF THE POISONOUS TREE

Investigators obtained Cell Site Location Information (CSLI) pursuant to an application and common pleas court order pursuant to the Wiretap Act. Subsequent to the decision in Carpenter v. United States, __ U.S. __, 138 S.Ct. 2206, 201 L.Ed.2d 507

(6/22/18), Detective James Lavin was contacted by the DA’s office and was asked to obtain a search warrant for defendant’s cell phone records. Detective Lavin reviewed various records and a surveillance video, but he did not review the call detail records obtained under the Wiretap Act. He did review the affidavit supporting the application under the Wiretap Act but did not speak with the affiant officer. No information obtained from the call detailed records, as obtained pursuant to the Wiretap Act, was included in the subsequent affidavit of probable cause prepared by Detective Lavin. The search warrant was not tainted by the prior acquisition of CSLI pursuant to the procedures in the Wiretap Act.

Burton, 234 A.3d 824 (Pa. Super. 7/6/20) appeal denied, ___ Pa. ___, 252 A.3d 234 (4/6/21) Davis, 241 A.3d 1160 (Pa. Super. 10/23/20) (subsequent search warrant for CSLI) appeal denied, ___ Pa. ___, 253 A.3d 211 (5/4/21)

Based on information from a confidential informant (“CI”) that defendant was selling drugs from his home, the authorities applied for an order authorizing a consensual wiretap of conversations occurring inside defendant's residence pursuant to 18 Pa.C.S. § 5704(2)(iv), with the CI agreeing to wear a recording device. Pursuant to that single court order, multiple conversations were recorded between the CI and the defendant, inside the CI’s home. A search warrant was obtained based upon the conversations as reported by the informant to the police. Henderson, 616 Pa. 277, 47 A.3d 797 (4/25/12), confirms the continued viability of the Melendez, 544 Pa. 323, 676 A.2d 226 (5/22/96), requirements but limits their application to cases of “willful misconduct” or “malfeasance”; absent such circumstances, the Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (6/27/88), standard strikes the appropriate balance between privacy and law enforcement. The only “misconduct” defendant alleges in this case is that six separate seizures or intercepts were made at his home on six separate dates over a period of six weeks on the basis of one showing of probable cause. These recordings were made pursuant to a judicially-authorized order following a probable cause determination. From defendant’s perspective, this order was invalid because Section 5704(2)(iv) of the Wiretap Act supposedly only authorizes one intercept per showing of probable cause. Thus, defendant reasons, the six recordings made after the initial recording were unauthorized, and it was these several constitutionally and statutorily improperly recorded events that provided essentially all of any relevant probable cause contained in the search warrant affidavit for his home. Defendant challenged the final six interceptions, not the first of the interceptions. Plainly, the “misconduct” alleged in this case is not remotely within striking distance of the egregious misconduct at issue in Mason, 535 Pa. 560, 637 A.2d 251 (12/30/93), and Melendez. In fact, even assuming arguendo that defendant’s interpretation of Section 5704(2)(iv) is the correct one, it is still hard to see precisely how the police engaged in any misconduct whatsoever when they were operating pursuant to a court order; if anything, as in Henderson, the “error” here was judicial, insofar as a court order explicitly permitted unlimited interceptions of defendant’s communications for a period of thirty

44 days. But regardless of whether the alleged error here falls at the feet of the judiciary or law enforcement, the fact remains that this case does not involve any “willful misconduct” or “malfeasance” at all. Consequently, since this matter does not fall into the narrow subset of cases involving police conduct which amounts to “willful misconduct” or “malfeasance,” the Melendez requirements are inapplicable. Trooper Baumgard explicitly stated he was seeking the warrant based on, inter alia, interviews with the CI and the results of multiple controlled buys that he and his team had conducted over the course of more than a month. Even more pointedly, the CI “advised” Trooper Baumgard, i.e., personally told him, that defendant had made statements indicating he was going to have drugs at his house on June 29, 2011. Trooper Baumgard’s own attestations therefore prove the decision to obtain a search warrant for defendant’s home on June 29, 2011, was prompted not by any recording made by the CI, but instead by the totality of the evidence he and his team collected over the course of their long-running investigation. At times the affidavit did reveal to the magistrate that the CI recorded certain conversations with defendant. But, it seems obvious from the underlined passages that such references merely relayed the factual progression of the investigation from the vantage point of Trooper Baumgard, and the affidavit did not otherwise purport to set forth the contents of any of those recorded conversations. Indeed, the only conversations detailed in the affidavit are those that the CI personally relayed to Trooper Baumgard or other members of his investigative team. As the two-part inquiry established in Murray has been satisfied, we agree with the Superior Court that the Independent Source Doctrine may provide a basis for affirming the trial court’s denial of defendant’s motion to suppress the evidence recovered from his house. The only question that remains is whether the affidavit, when stripped of all references to the allegedly improper recordings, provided the magistrate with probable cause to issue the warrant. We have little hesitation in agreeing with the OAG that the affidavit, even absent all references to the recordings, provided ample probable cause supporting issuance of the search warrant.

Katona, ___ Pa. ___, 240 A.3d 463 (10/21/20) Link to: Mundy, J. concurring Link to: Donohue, J. dissenting

HABEAS CORPUS

The Commonwealth argues that it was not obligated to establish its prima facie case anew at the habeas corpus hearing. While the Commonwealth concedes that no record of the preliminary hearing exists, it nonetheless argues that it met its burden of proof through reliance on the result of the preliminary hearing. Therefore, it avers that the trial court erred when it granted defendant’s habeas corpus motion after the Commonwealth failed to put forth any evidence at the habeas corpus proceeding. We disagree.

At the habeas corpus hearing, the Commonwealth was required to present evidence with regard to each material element of the crimes charged in order to establish sufficient probable cause to proceed to trial. Depending on the particular circumstances of the case at issue, the Commonwealth may meet this burden by introducing the preliminary hearing record and/or by presenting evidence at the habeas corpus hearing. In other words, only when the Commonwealth can prove every material element of each crime charged through the preliminary hearing record alone is no additional testimony or evidence at the later habeas corpus proceeding necessary. Although the Commonwealth contends that it is not required to establish a “prima facie case anew” at the habeas corpus hearing, it is nonetheless required to establish a prima facie case by introducing some manner of evidentiary support. Here, no transcript of the preliminary hearing exists. Therefore, the Commonwealth had no preliminary hearing record upon which to rely in order to prove a prima facie case of the elements of aggravated assault, harassment, and recklessly endangering another person. Consequently, the Commonwealth needed to produce evidence at the habeas corpus hearing in order to satisfy its burden. When it failed to do so, the trial court properly granted the habeas corpus motion.

Lambert, 244 A.3d 38 (Pa. Super. 12/24/20) appeal denied, ___ Pa. ___, ___ A.3d ___ (8/2/21)

HEARSAY

Declarations by homicide victim

On June 6, 2012, Fitzpatrick (defendant) and Annemarie (his wife) were riding on an all-terrain vehicle (“ATV”) through a deep part of Muddy Creek, a tributary of the Susquehanna River that runs near their home in Chanceford Township, York County, Pennsylvania. According to Fitzpatrick, at some point during their trek, the vehicle flipped backwards and tossed both riders into the creek. Although Fitzpatrick managed to climb out of the water relatively unscathed, in his version of events, Annemarie could not. Fitzpatrick claimed that he called 911 after he initially was unable to locate Annemarie in the water. While on the line with a dispatcher, Fitzpatrick allegedly saw Annemarie's body floating nearby on the side of the creek opposite from where he was standing. The issue at trial was whether Annemarie’s death was an intentional murder or an accidental death. Two days later, Annemarie’s co-workers had found a day planner on Annemarie's desk. Annemarie had left a note in the day planner that read, “06/05/12. If something happens to me—JOE.” Annemarie had personally signed the note. After reviewing the note, PSP personnel obtained access to Annemarie's password-protected work email account. The troopers discovered that, at 10:30 a.m. on June 6, 2012, the day she died, Annemarie sent an email from her work email account to her personal email account. In the subject line of the email, Annemarie wrote, “if something happens to me.” In the body of the message, Annemarie stated, “Joe and I are having marital problems. Last night we almost had an accident where a huge log fell on me. Joe was on the pile with the log and had me untying a tarp directly below.”

In her opening statement, the prosecutor stated: Joe Fitzpatrick didn't count on a couple of things. He couldn't foresee the fact that his wife Annemarie, she was suspicious, she suspected what he was capable of. She suspected that her own husband could harm her[, that] her own husband could do something to her. She was suspicious of it. So fearful in fact, that she left a note. She left a note at her work. A note that was dated on the very day that she died. She left it in a day planner on her desk. And the note said, if something happens to me, Joe. Signed. A. Fitzpatrick. See, the problem was for him, he couldn't see that his wife was on to him. Then, during summation, the prosecutor argued the following: Anne Marie's voice is here to tell you something else. On the day of her death, June 6, 2012, if something happens to me, Joe. Annemarie Fitzpatrick. If her voice is in this room, ladies and gentlemen, it's on this side of the courtroom. And that's what she wanted you to know. * * * June 6th is critical. It is absolutely critical. On June 6, 2012, what do we know. If something happens to me, Joe. Annemarie worked that day. And while she was at work, she took out her journal and she wrote on it, if something happens to me Joe. * * * She sent a second e-mail. That second e-mail said, if something happens to me, Joe and I are having marital problems. Last night we almost had an accident where a huge log fell on me. Joe was on the pile with the log and had me untying a tarp directly below. * * * I will reemphasize just like the defense said he said Annemarie is telling you what to do. He's right, ladies and gentlemen. Annemarie told you if something happens to her, Joe. The statement at issue sub judice is not a routine state of mind expression. Rather, it is a compound statement that both demonstrates the speaker's then-existing state of mind and, when offered for the truth of the matter asserted, proves a fact that, if considered on its own, would be inadmissible hearsay. Annemarie's note, written the day before Annemarie died and signed by her, stated, “If something happens to me—JOE.” On one hand, the statement reflects Annemarie's state of mind at the time she wrote it. Annemarie clearly was distressed and troubled over the nature of her then-existing relationship with Fitzpatrick, to the point that she appeared to be apprehensive of him. Such feelings and emotions, assuming they are expressed in an out-of-court statement without any other facts or assertions tethered to the statement, generally are admissible under the state of mind hearsay exception. For instance, had Annemarie written that she was “afraid of Joe,” the statement (subject to other rules of evidence) would have been admissible to prove the truth of that assertion, that she was in fact afraid of Joe, so long as that fear was relevant to a contested issue in the case. On the other hand, Annemarie's statement also contained a factual assertion: that Fitzpatrick would be the perpetrator if something untoward or violent happened to her.

The fact-based aspect of the statement, when offered for the truth of the matter asserted, is inadmissible hearsay. Thus, the question for this Court is whether compound statements such as the note written by Annemarie nonetheless are admissible in their entirety as state of mind evidence under Rule of Evidence 803(3). In criminal cases: the courts have developed three rather well-defined categories in which the need for such statements overcomes almost any possible prejudice. The most common of these involves defendant's claim of self-defense as justification for the killing. When such a defense is asserted, a defendant's assertion that the deceased first attacked him may be rebutted by the extrajudicial declarations of the victim that he feared the defendant, thus rendering it unlikely that the deceased was in fact the ag[g]ressor in the first instance. Second, where defendant seeks to defend on the ground that the deceased committed suicide, evidence that the victim had made statements inconsistent with a suicidal bent are highly relevant. A third situation involves a claim of accidental death, where, for example, defendant's version of the facts is that the victim picked up defendant's gun and was accidentally killed while toying with it. In such cases the deceased's statements of fear as to guns or of defendant himself (showing he would never go near defendant under any circumstances) are relevant in that they tend to rebut this defense. Of course, even in these cases, where the evidence is of a highly prejudicial nature, it has been held that it must be excluded in spite of a significant degree of relevance. United States v. Brown, 490 F.2d 758, 767 (D.C. Cir. 12/28/73). Because the central dispute in this case was whether Annemarie died in an ATV accident or whether she was murdered by Fitzpatrick, Annemarie's note clearly was relevant under the third category identified by the Brown court: to dispute a claim of accident. However, relevance is only one factor in the analysis. The evidence remains subject to other rules of evidence, including the hearsay rule. Annemarie's statement was not merely an expression of her state of mind. The note also implicated Fitzpatrick's state of mind and contained a factual assertion expressing Annemarie's belief that, if something violent were to happen to her, Fitzpatrick would be the perpetrator. Even when relevant to a contested issue in the case, a declarant's “fact-bound” statement, when offered as substantive evidence, is inadmissible to prove someone else's state of mind or to prove the fact, memory, or belief expressed in the statement. To ensure clarity going forward, we set forth the general inquiry courts must undertake when contemplating the admissibility of out-of-court statements proffered to the court for admission as state of mind evidence. First, the court must ascertain the reason that the moving party is offering the evidence. If it is not being offered for the truth of the matter asserted, it is not hearsay, and can be admitted to demonstrate the non-truth purpose. In a jury trial, the evidence should be admitted in conjunction with a limiting jury instruction to ensure that the jury considers the evidence solely to demonstrate the speaker's mindset at the time of the

48 utterance, and not for the truth of the words spoken. For instance, if a declarant says “I had butterflies in my stomach,” when offered for the non-truth purpose, the jury can consider the statement as evidence that the declarant was anxious, but not that she actually had flying insects in her stomach. If the statement is offered as substantive evidence for the truth of the matter asserted, the court must examine the statement more closely and make a number of preliminary rulings. First, like all evidence, the statement must be relevant. In the context of state of mind evidence, the speaker's mindset must be pertinent to some contested issue in the legal proceeding. In criminal cases, the prosecution must prove the defendant's mens rea beyond a reasonable doubt. Thus, in the typical prosecution, a victim's state of mind simply is not relevant. There are exceptions to this general rule, including cases where the defendant has alleged self-defense, or where the defendant has challenged the manner of death, as here. Prototypically, the latter exception occurs when the defendant argues that the victim died by accident or by suicide. If the statement is relevant, then the court must examine the character of the statement being proffered. If the statement is a singular expression of the declarant's state of mind, i.e., “I was sad,” the court need only apply Rule 803(3). So long as the expression refers to the declarant's state of mind (or physical condition), and not to a third-party's state of mind, and so long as the statement refers to the speaker's mindset as it existed at the time the statement was made, facially it is admissible. Of course, a final ruling on the admissibility of the statement is subject to the final proviso of Rule 803(3) (excluding from admissibility “a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will”), as well as the traditional probative value versus prejudicial impact rubric by which all evidence is assessed. See Pa.R.E. 403. On the other hand, if the statement is not a singular purpose statement, but instead contains both a state of mind component and a “fact-bound” component, it generally is inadmissible. The reasons rendering such statements inadmissible are patent, and compelling. As we noted in Moore, such two-part statements are only relevant if they are taken for their truth. The problem is that there are two parts to these statements, only one of which facially is admissible: the state of mind component. The factual component is not. That part, which is uttered out-of-court and also offered for the truth of the matter asserted, does not satisfy this exception to the hearsay rule, nor does it possess the same hallmarks of reliability imputed to state of mind evidence. That one aspect of a statement is admissible does not render all of a multi-part statement admissible. Quite to the contrary, both components must independently be admissible. Each aspect of the statement must satisfy a hearsay exception In Moore, we explained the problem with admitting a statement into evidence where only a part of it is admissible. Doing so allows the proponent of the evidence to bootstrap inadmissible hearsay into competent evidence. This permits a party to use the state of mind exception as a mechanism to circumvent the rules of evidence, repurposing state of mind evidence into a “conduit” to obtain admission of otherwise inadmissible facts. Moore, 937 A.2d at 1072-73. In addition to enabling a party to prove facts that it otherwise could not, such evidence poses a considerable “risk of severely prejudicing the defendant.” Stallworth,

781 A.2d at 128 (Saylor, J., concurring and dissenting). Even when the statement is offered to establish the victim's state of mind and is accompanied by a limiting instruction, such statements can directly or “inferentially implicate[ ] the defendant,” id., and likely will improperly divert the jury's attention. Additionally, “[t]he possibility of over-persuasion, the prejudicial character of the evidence, and the relative weakness and speculative nature of the inference,” all militate against the admitting the evidence. 2 McCormick on Evidence § 276 (8th ed.). Finally, this conclusion is consistent with the text of the exception. Rule 803(3) permits only statements establishing the declarant's state of mind, but no one else's. Nevertheless, it also forbids the admission of “a statement of memory or belief to prove the fact remembered or believed” unless it relates to a will. Pa.R.E. 803(3). Thus, the exception provides for very limited uses of state of mind evidence. Proving substantively a fact contained in a statement, i.e., something other than the declarant's state of mind, is not one of those uses. With this analytical framework in place, we turn now to Annemarie's note. As previously observed, the content of the note undeniably was relevant in this case. Fitzpatrick contended at trial (and still does) that Annemarie was not murdered, but instead died from an ATV accident. Annemarie's note was directly relevant to countering this assertion. See Brown, supra. Having established that the note was relevant, we next assess the purpose for which the Commonwealth offered the evidence. The Commonwealth conceded before trial that the note was hearsay, but argued that it nonetheless was admissible for the truth of the matter asserted under Rule 803(3). The trial judge agreed, ruling that the note could be admitted at trial as substantive evidence. The Commonwealth did just that. And then, during opening statements and closing arguments, the Commonwealth repeatedly emphasized the truth of the note to the jury. There is no question that the note was offered into evidence — and repeatedly highlighted by the prosecutor — to establish the truth of the matters asserted therein. This, too, is not disputable. The note fairly can be construed both as an expression of Annemarie's then- existing impression of the state of her relationship with Fitzpatrick and as an expression of her fear of him. Had the statement simply reflected that mindset, it would be admissible under Rule 803(3). However, the statement identifies Fitzpatrick as her assailant and tangentially implicates his state of mind. This portion of the note is not admissible as state of mind evidence, but instead is an inadmissible factual averment. Simply put, it is hearsay. Neither the implication of Fitzpatrick's mens rea nor Annemarie's identification of him as her possible assailant constitutes a statement of Annemarie's then-existing state of mind, which is all that is permitted by Rule 803(3). Moreover, the assertion fails to satisfy any other hearsay exception. For all the reasons outlined above, the fact-bound aspect of Annemarie's note cannot be bootstrapped into admissibility merely because the statement contemporaneously contains some expression of Annemarie's state of mind. If we held otherwise in this case, the resultant prejudice and potential for misuse by the jury would be apparent. The error was not harmless.

Fitzpatrick, ___ Pa. ___, ___ A.3d ___ (7/23/21 ) Link to: Mundy, J. dissenting

Excited utterance

It is beyond peradventure that witnessing one’s father being shot to death by intruders is a startling event, and likely more so for a child. However, as the trial court noted and the record confirms, the victim’s daughter spoke with multiple individuals after the shooting, including the victim’s girlfriend, who found the victim, and police officers. The proffered videotaped statements were taken hours after the startling event, in a different location (the police station), and were given in response to police questioning. Contrary to the requirement that “the nervous excitement continues to dominate while the reflective processes remain in abeyance[,]” Pa.R.E. 803(2) Comment, defendant’s counsel argued at trial that the victim’s daughter was “incredibly composed” and “responsive” during the interview. The trial court ruled that the interview did not qualify as an excited utterance. We cannot conclude that the trial court abused its discretion. The victim’s 10-year-old daughter was interviewed by police a few hours after the shooting. Accordingly, the trial court concluded in its opinion that “the videotaped statement was not a present sense impression” because it “was not made by [her] while or immediately after she perceived the murder of her father.” We agree with the trial court, and conclude that it did not abuse its discretion in denying admission of the statement on this basis.

Rivera, 238 A.3d 482 (Pa. Super. 8/25/20)

Is it hearsay?

At the time of the shooting, the codefendant, Clary, wore a Global Positioning System (GPS) monitoring device on his ankle. Based upon data recovered from the GPS device, Clary was identified as being present at the Pub Deli with Wallace before the assault, and leaving the Pub Deli approximately twenty minutes before the attack. The GPS data also identified Clary near the home of the juvenile participant immediately before the crime, at the location of the crime, and then tracked back to the area near his and the juvenile’s homes after the crime. The Pennsylvania Rules of Evidence expressly define a “statement” for purposes of hearsay as the written or oral assertion of a person. Pa.R.E. 801. We conclude that, as it stands, GPS data automatically generated by a computer, free from interference by any person, does not constitute a “statement,” and therefore, cannot qualify as hearsay.

Wallace, 244 A.3d 1261 (Pa. Super. 1/8/21) appeal pending, No. 183 MAL 2021 (filed 4/9/21)

City of Pittsburgh Police Department Detective Richard Baumgart testified regarding the department's use of a gun detection program called ShotSpotter technology in its investigations. Detective Baumgart explained that this program uses scientific

51 algorithms and sensors to pinpoint the location of possible gunshots. The system detects gunfire within a 30-foot radius and automatically generates a report that gives the date, time and location of the shots. Once the report is generated, trained operators immediately listen to the audio recordings to verify the report before sending it to the police department. Police officers are typically dispatched to the area very quickly after a gunshot is detected, within one to two minutes. All officers in the department, including Baumgart who trained colleagues, are taught to understand how the ShotSpotter system operates and how to use it as a resource when shots are fired. The operators and police have also been trained to differentiate between the sound of gunshots and other similarly loud sounds, such as a firecracker pattern. The Commonwealth marked the ShotSpotter report generated in the instant case, titled “ShotSpotter Investigative Lead Summary” as Exhibit 4. This document was generated by the ShotSpotter computer system and was not amended by any individual. Detective Baumgart testified to the substance of the report, specifically, that two shots were detected by the ShotSpotter system on December 15, 2018, at 7:43 p.m. in the area of 3400 Shadeland Avenue. The detective opined that although the system was not 100 percent precise in detecting the presence of gunfire, it was, in his experience, “very accurate.” In Wallace, 244 A.3d 1261 (Pa. Super. 1/8/21), this court considered whether data recovered from a Global Positioning System (GPS) monitoring device constituted hearsay. We held that GPS records are not hearsay, reasoning: “the Pennsylvania Rules of Evidence expressly define a ‘statement’ for purposes of hearsay as the written or oral assertion of a person.” Id. at 1272 (quoting Pa.R.E. 801) (emphasis original). Ascribing the plain and ordinary meaning to the words in the Rule, we concluded that GPS data automatically generated by a computer does not constitute a statement asserted by a person and, therefore, cannot qualify as hearsay. Similarly, the ShotSpotter report here was automatically generated by the ShotSpotter system and was not an assertion made by a person. Although the report was subject to human review, the document in this case was not amended by anyone. Like the GPS data in Wallace, the ShotSpotter document is not hearsay. The report is not testimonial and does not raise Confrontation Clause concerns.

Weeden, 253 A.3d 329 (Pa. Super. 5/26/21) appeal pending, No. 196 WAL 2021 (filed 6/25/21)

INEFFECTIVENESS: STANDARD OF REVIEW

Johnson and others collaborated to rob Johnson's grandmother. Two of the conspirators broke into the residence in the middle of the night, placed a pillow over her face, stole about $35,000 from a safe, and fled. The victim, who suffered from coronary artery disease, atrial fibrillation, and interstitial lung disease, had a minor heart attack during or shortly after the robbery. Approximately two months later, she died. On PCRA review the issue was whether counsel was ineffective for failing to present expert testimony which would have challenged the causation link between the

52 robbery and the victim’s death. The PCRA court erroneously denied relief without making the necessary findings. The PCRA court should have made its own credibility determinations on Dr. Abouzgheib's testimony and the testimony of the other two physicians who, but for the failure of Johnson's trial counsel to call them, would have testified before Johnson's jury. Then, the court should have found what facts, if any, it believed from Drs. Meshkov, Viner, and Abouzgheib's testimony. Next, the PCRA court needed to reweigh the Commonwealth's evidence of guilt from Johnson's trial in light of the erroneously omitted, expert testimony relating to cause of death and decide what impact, if any, the absence of the three doctors’ testimony had upon the evidentiary picture the Commonwealth developed in Johnson's trial. The PCRA court failed to decide whether the evidence of causation that the Commonwealth presented at Johnson's trial was relatively weak in comparison to the testimony of the three physicians Johnson's counsel should have called. We must remand for the PCRA court to evaluate the factual record under the correct framework so that it may apply the prejudicial-impact test in the first instance.

Johnson, 236 A.3d 63 (Pa. Super. 7/23/20) (en banc)

Defendant alleged that trial counsel was ineffective for failing to file a suppression motion alleging the lack of authority of the police to enter his residence. At the hearing, the police officer testified that defendant’s girlfriend consented to the entry by the police. Defendant did not present his girlfriend as a witness at the evidentiary hearing. In the absence of such evidence, we are unable to conclude that defendant met his burden of establishing that his girlfriend’s consent was anything other than voluntary.

Hawkins, ___ A.3d ___ (Pa. Super. 12/10/20) appeal denied, ___ Pa. ___, ___ A.3d ___ (7/27/21)

Counsel at a violation of probation (VOP) proceeding failed to request a statement of reasons for the sentence and failed to raise the absence of that statement of reasons either in a motion for reconsideration or on appeal from the revocation of probation. The Commonwealth argues that the Superior Court's prejudice analysis misses the mark because the panel improperly focused on the effect of counsel's inaction upon the VOP appeal, rather than looking to the outcome of the underlying VOP proceeding itself. The Commonwealth is correct. Although contemporaneous objections operate to preserve issues for appellate review, they serve an equally important function in obviating appeals by affording the trial court a timely opportunity to correct mistakes and/or to reconsider decisions. Whether VOP counsel can be deemed ineffective, then, depends upon whether [defendant] has proven that a motion to reconsider sentence, if filed (or more properly, a Rule 708 objection forwarded at the hearing itself), would have led to a different and more favorable outcome at VOP sentencing. In this context, the only way the proceeding would have been more favorable would be if counsel's objection

53 secured a reduction in the sentence. The Superior Court panel erred as a matter of law in failing to appreciate the actual focus of the Strickland prejudice inquiry. Proceeding to the appropriate prejudice inquiry, the Commonwealth asserts that the outcome is not debatable at this point because the PCRA judge, who, as noted previously, was the same judge who initially sentenced defendant and then revoked probation and imposed the VOP sentence, made clear in the PCRA proceedings that he would have imposed the same sentence, particularly given defendant's “horrendous reporting record.” We agree that defendant has failed to prove actual prejudice. On this record, there is no reason to believe that, if only counsel had asked for a statement of reasons for the sentence at the VOP proceeding, that statement of explanation alone would have led the court to reduce the sentence as well. Accordingly, we hold that the Superior Court erred in granting sentencing relief in this case, where defendant failed to prove Strickland/Pierce prejudice arising from counsel's failure to object.

Reaves, 592 Pa. 134, 923 A.2d 1119 (5/31/07) Link to: Baldwin, J. dissenting

BUT SEE: Little was charged with shooting and killing Adams. Defense counsel for Little presented one witness, Alston, who testified that he alone shot Adams. Defense counsel attempted to ask Alston on direct examination if he was aware that he could potentially face the death penalty for killing Adams but the trial court sustained the Commonwealth’s objection to the question. The first question the Commonwealth asked Alston on cross examination was whether he was serving two consecutive life sentences. Alston answered that he was. The Commonwealth’s second question was, “So as you sit here in court, you are never getting out of jail; correct?” Alston again answered affirmatively. Defense counsel proffered that since the Commonwealth was allowed to elicit on cross-examination that Alston was serving two life sentences, then he would seek to ask Alston on re-direct if he understood that “he could be subject to being arrested and charged with first-degree murder and facing a possible sentence of death.” The trial court ordered defense counsel not to ask such a question because “whether he could be subject to death, that’s too much speculation as between now and then[.]” Defense counsel failed to preserve this issue for review on direct appeal. During PCRA review it was alleged that trial counsel was ineffective for failing to preserve this issue. As the Commonwealth has emphasized as its grounds for affirmance, a PCRA petitioner alleging an ineffectiveness claim generally must show there was a reasonable probability that counsel’s error resulted in a different outcome of the proceedings at the stage where the alleged ineffectiveness took place. Under a “mechanical” application of the Strickland test, Little cannot show prejudice because counsel’s deficient performance at trial – waiving an appellate issue – had no immediate effect on the verdict. Had counsel properly preserved Little’s evidentiary issue for direct appeal, the trial would have proceeded in the exact same fashion as it did. The trial court would have still rejected the defense’s arguments and disallowed questions to Alston about whether he knew if he faced the death penalty.

In light of these circumstances, a conclusion of no prejudice would be inconsistent with Strickland’s mandate to focus on the overall integrity of the proceedings and to avoid mechanical application of the rules. Notwithstanding the appellate waiver, the trial court’s error could have influenced the jury to assign less weight to evidence of exoneration than what might have otherwise been due. A further error by counsel stymied Little’s ability to seek recourse on appeal. We find no Pennsylvania authority that precludes a finding that these unique facts can constitute prejudice. In cases where the fact-finder must necessarily make a credibility determination as to a pivotal witness, the erroneous exclusion of evidence pertaining to the witness’ credibility may be found prejudicial and not harmless beyond a reasonable doubt. As our analysis is limited to whether defense counsel’s error was reasonably likely to affect the outcome of Little’s appellate proceedings, we stress that we have not held that Little would have necessarily prevailed on direct appeal had his evidentiary issued been preserved. Indeed, such a holding would be beyond our authority because on review of the denial of PCRA relief, this Court has no jurisdiction to rule on the merits of a pure claim of trial court error. Having found that defense counsel was ineffective, we must reverse in part the PCRA court’s order as to Little’s claim of ineffectiveness. On remand, Little is granted leave to file a notice of appeal, nunc pro tunc, with this Court within 30 days from the date of this opinion’s publication. In this prospective appeal, Little may only raise and brief the single appellate claim he had previously lost – that the trial court abused its discretion in restricting Alston’s examination. This remedial measure restores Little to the position he was in at the time of defense counsel’s ineffectiveness.

Little, 246 A.3d 312 (Pa. Super. 1/15/21) appeal pending, No. 179 EAL 2021 (filed 4/23/21)

INTERFERENCE WITH CUSTODY OF CHILD

It is a defense to the crime of interference with the custody of a child if “the actor believed that his action was necessary to preserve the child from danger to its welfare.” 18 Pa.C.S. § 2904(b)(1). While the Commonwealth correctly highlights that the Legislature has explicitly required a reasonable belief to support justification defenses under Chapter 5 of the Crimes Code, see 18 Pa.C.S. §§ 501-510, this in no way supports a rule that all justification defenses should be predicated upon reasonable belief. Instead, Chapter 5 illustrates that the General Assembly knows how to insert a reasonable-belief element into a defense when that is its intention. The trial court incorrectly instructed the jury that the defendant’s belief should be evaluated pursuant to the standard of a reasonable person.

H.D., ___ Pa. ___, 247 A.3d 1062 (3/25/21) Link to: Mundy, J. dissenting

JUDGE

Bench trial

A trial judge has no more authority over a verdict in a non-jury trial than the judge does over a jury verdict. In either situation, the authority of a trial judge following the recording of a verdict is limited to consideration of post-trial motions in arrest of judgment or the granting of a new trial. Thus, once the verdict was recorded, the trial court could not on its own reconsider or reweigh the evidence to change its verdict. The tenor of the trial court's opinion suggests that what prompted the trial court to re-evaluate the evidence was its disapproval of C.J.'s [the victim’s] decision not to appear for the final PFA [Protection from Abuse] hearing. Despite an assumption by the trial judge that C.J. did not appear at the final PFA hearing because she had acted manipulatively in obtaining the emergency PFA order, there is absolutely no evidence in the record supporting the trial court's assumption. Nor is there evidence in the record explaining why C.J. did not appear at the final hearing. The only information in the record about the current relations of Wilson and C.J. is a bald unsworn assertion by Wilson that C.J. and Wilson had resumed their relationship and C.J. wished to drop the matter. Even if that were true, there is no support in the record for the trial court's proclamation that Wilson and C.J. “reside in harmony.” In fact, to the extent the record indicates anything at all, it suggests that the opposite might be true, considering that C.J.'s PFA petition details a history of abuse, and, according to the Commonwealth, Wilson had pending charges of conspiracy for obstruction of justice and witness intimidation based upon an alleged attempt to prevent C.J. and their son from testifying in the assault matter. It is not uncommon for victims of intimate partner violence to remain with or return to their abusers for a myriad of complicated reasons, such as a dire financial situation; a need for housing, help with co- parenting their children, or assistance with a disability; fear of escalating violence or losing their children; religious or cultural beliefs; and/or distorted thinking and unhealthy reliance upon the abuser created by past abuse. See e.g., Why Do Victims Stay?, National Coalition Against Domestic Violence, https://ncadv.org/why-do-victims-stay. Ultimately, even if C.J. and Wilson had resumed their relationship, whether harmoniously or otherwise, their relationship at the time of the sentencing hearing has no bearing upon Wilson's plain intent to violate the emergency PFA order months before. Accordingly, based upon the trial court's impermissible sua sponte re-evaluation of the evidence, we reverse the September 20, 2018 order, and remand for reinstatement of the original guilty judgment and for sentencing.

Wilson, 227 A.3d 928 (Pa. Super. 1/31/20)

Dismissal of charges as sanction against Commonwealth’s attorney

Police arrested Ligon in March 2012 and charged him with a large number of crimes, including charges of robbery, burglary, and aggravated assault, as well as violations of the Uniform Firearms Act.

After five continuances of the preliminary hearing, Ligon was held for trial. The court then granted copious continuances of the trial; Ligon requested most of the continuances. He was subject to unrelated charges in federal court and told the Commonwealth that he wanted to resolve those charges before pleading guilty in this matter. Ligon ultimately elected to go to trial in this case and, after additional continuances, the case was reassigned to a new trial judge. The new judge granted two more continuances, one due to a court conflict and one because the prosecutor had another trial. The trial in this case finally began on Monday, December 5, 2016, and on that day, the parties picked a jury. The following morning, before the jury came into the courtroom, the assistant district attorney (“ADA”) told the trial court that the complaining witnesses had not arrived. The ADA stated that, although she had arranged a ride for the complaining witnesses, when the ride arrived, they did not answer the door. The ADA said she had been in “constant contact” with them, having spoken with both the day before trial and having met with one of them on the Friday preceding trial. The ADA asked for “a little bit more time” for the witnesses to arrive. The court said it could “probably give [the Commonwealth] till 11.” When the court reconvened at 11:00 a.m., a second ADA explained that the probation officer of complaining witness Carl Brady was attempting to contact him, and the Commonwealth had arranged “for transportation to go to his house, since he is in a wheelchair to get him into that vehicle and come down to court.” The ADA stated she “should have confirmation that all of that is happening in about 20 to 30 minutes.” The court said it would recess the proceedings until 11:45 a.m. The Court reconvened at 12:00 p.m., and the first ADA said the witnesses were “on their way,” said she was ready to proceed with trial, and asked if she could begin with her opening statement. The trial court replied that the witnesses were supposed to be there at 9:30 a.m. The ADA again advised the court that the witnesses were on their way. She said she was ready to begin with her opening statement and could put on another witness, by the end of which she was “absolutely certain” the complaining witnesses would arrive. The trial court declined to allow the prosecution to begin. It instead dismissed the charges, stating, “Okay. Well, the case is discharged.” In criminal cases, any sanction the trial court imposes must be visited upon the offender and not upon the interests of public justice. In other words, courts must take into account the effect the sanction will have on public interests. The court must calibrate the penalty in a criminal case to the nature of the violation, while taking into account other relevant circumstances, such as the running of the statute of limitations. The court certainly has the power to vindicate its authority, but must do so without unfairly harming the public’s interest. We do not think the trial court struck an appropriate balance in this instance. At the time of dismissal, the Commonwealth was not in violation of any court order specifically regulating witnesses’ attendance. At most, it had failed to ensure that its complaining witnesses were in court at the proper time to comply with the court’s schedule. To that end, it had arranged for the witnesses’ attendance ahead of time, albeit ineffectually. When the witnesses failed to show up, it promptly informed the court and asked for an extension. The court, in its discretion, gave the prosecution the leeway it requested and allowed a recess for the Commonwealth to procure the witnesses’ attendance.

Yet when the Commonwealth later informed the court that it was ready to proceed, the court dismissed the charges. This was an abuse of discretion. The prosecution had assured the court that the witnesses were on their way, and proposed a solution that would allow the case to begin and give time for the witnesses to get to the courtroom. Despite having given the Commonwealth time to make such arrangements, the court refused to allow the Commonwealth to go forward with them. It instead dismissed the case. The trial court went too far, under these circumstances, in refusing to allow the Commonwealth to give its opening statement and put on another witness. Having allowed the Commonwealth time to bring the witnesses to the courtroom, the court could not dismiss the case immediately after the ADA stated she was ready. The court’s actions amounted to undue interference with the Commonwealth’s presentation of its case and prevented the proper presentation of the cause, or the ascertainment of the truth. The court’s dismissal order was an abuse of discretion, and we reverse it.

Ligon, 219 A.3d 1181 (Pa. Super. 9/24/19) (en banc)

JURY

Charge

Courts generally are not wed to the suggested instructions. See Commonwealth v. Eichinger, 631 Pa. 138, 178, 108 A.3d 821, 845 (12/31/14) (“The Suggested Standard Jury Instructions themselves are not binding and do not alter the discretion afforded trial courts in crafting jury instructions; rather, as their title suggests, the instructions are guides only.”). 1Of course, a court would be bound by language included in the suggested instructions that is made mandatory by a precedential judicial decision.

H.D., ___ Pa. ___, 247 A.3d 1062 (3/25/21) Link to: Mundy, J. dissenting

An instruction that mere presence is insufficient to convict is not required in every case. The trial court accurately instructed the jury concerning the elements of the charged crimes, making clear that a conviction could only be based upon defendant’s illegal conduct, not his mere presence at the crime scene. The trial court’s instructions informed the jury of the elements of each crime with which he was charged. The instructions made clear that any conviction must be based on defendant’s illegal actions. He was not entitled to a separate instruction that mere presence was insufficient to find him guilty.

Prater, ___ A.3d ___ (Pa. Super. 7/9/21)

Deliberations

At trial, the jury was shown the surveillance footage [from the convenience store robbery] three times. During defendant's testimony, the video was paused in multiple places while defendant highlighted differences he perceived between himself and the person in the video. During deliberations, the jury asked to review surveillance footage of the robbery “up close,” and to be able to “freeze frame it at certain points.” When the trial court asked for clarification as to where the jury wished to “freeze frame,” one juror responded “where it was paused earlier.” The trial court agreed to allow the jury to review the video in its entirety, but in open court and with both sides present. In open court, the Commonwealth operated the video footage. When it was apparent to the trial court that the jurors were having difficulty viewing the screen, the projector was moved closer to the group. The trial court then instructed the jury foreman to signal when the points were reached in the video where they wished to “freeze frame.” Also before the playback began, the trial court instructed the jurors to not make any comments or engage in any deliberations until they returned to the deliberation room. The Commonwealth stopped the video twice based on the jury foreman's signal. Defendant objected to the entire procedure, citing Pa.R.Crim.P. 646 and arguing that by replaying the video the court was improperly assisting the Commonwealth with its burden of proof. From the trial court’s opinion: The prosecutor presented the video and stopped it only at the direction of the jury foreman. Identification was a material issue in this case and after seeing the video three times in open court it asked to review pertinent portions from a closer vantage point and with two frames “frozen” as they were, without objection, during trial.

[T]he jury did not hear new or different testimony in private, out of the presence of [defendant]. Instead, the jury merely heard a verbatim recording of exactly what transpired in open court . . . . As such, the jury did not hear any accusations or testimony that did not take place in open court – and [defendant] was not accused of anything in secret. Similarly, in this case the jurors re-viewed the video-tape in open court having viewed it three times during the evidentiary portion of the trial. The jury asked that the frame be “frozen” twice. This followed [defendant's] narration of the video where he stopped and started the video to show inter alia, differences that he suggested existed between the tattoos that were displayed on the individual in the video and his own. Under these circumstances no prejudice existed. The jury saw a verbatim repeat of the video as it was presented by [defendant] at trial. We discern no abuse of discretion in the well-reasoned explanation of the trial court as to why it did not violate Pa.R.Crim.P. 646. Even assuming, arguendo, that the trial court's treatment of the video replay did violate the Pennsylvania Rules of Criminal Procedure, defendant's scant analysis does not suffice to establish prejudice.

Johnson, 241 A.3d 398 (Pa. Super. 10/9/20)

External contact or influences

During a recess on the first day of trial, defendant's counsel reported to the court that he observed a Commonwealth witness, police Officer Neil Kemmer, having a conversation with Juror No. 4. Defendant moved to have Juror No. 4 removed from the jury. The court held a hearing on Defendant's Motion. It questioned Juror No. 4 about the substance of the conversation. The juror said that he talked to Officer Kemmer for approximately three to four minutes about hunting. He and Officer Kemmer grew up together but had no association for more than a decade. He assured the court that neither his conversation nor acquaintance with Officer Kemmer would prevent him from being a fair juror. Officer Kemmer's testimony was just factual and his testimony and credibility were not contested by defendant. Officer Kemmer's role was limited to collecting evidence at the decedent's home and taking a statement from decedent’s girlfriend. He had no role in investigating defendant's drug dealing. Based on Juror No. 4's testimony, the court found that he “was not biased or prejudiced in favor or against either party[, and] his acquaintance with Officer Kemmer [did] not affect his ability to be a fair juror.” Finally, Officer Kemmer's conversation with Juror No. 4 was “casual” and not for the purpose of influencing the jury. We discern no abuse of discretion in the trial court's decision to retain Juror No. 4.

Arrington, 247 A.3d 456 (Pa. Super. 3/8/21)

Selection

The purpose of voir dire is solely to ensure the empaneling of a competent, fair, impartial, and unprejudiced jury capable of following the instructions of the trial court. Neither counsel for the defendant nor the Commonwealth should be permitted to ask direct or hypothetical questions designed to disclose what a juror's present impression or opinion as to what his decision will likely be under certain facts which may be developed in the trial of the case. “Voir dire is not to be utilized as a tool for the attorneys to ascertain the effectiveness of potential trial strategies.” Commonwealth v. Paolello, 542 Pa. 47, 70, 665 A.2d 439, 451 (9/22/95). The foregoing questions disallowed by the trial court were intended to elicit what the jurors' reactions might be when and if defendant presented certain specific types of mitigating evidence. The questions were simply not relevant in seeking to determine whether the jurors would be competent, fair, impartial and unprejudiced. Rather, the queries at issue sought to gauge the efficacy of potential mitigation strategies. Moreover, in the face of these inappropriate questions, the trial court asked appropriate general questions which revealed that the jurors in question would consider all the evidence, both aggravating and mitigating, and follow the court's instructions. Defendant had no objection to that appropriate course of questioning. On this record, there was no trial court error.

Bomar, 573 Pa. 426, 826 A.2d 831 (5/30/03) Link to: Nigro, J. concurring cert. denied, 540 U.S. 1115, 124 S.Ct. 1053, 157 L.Ed.2d 906 (1/12/04) Knight, ___ Pa. ___, 241 A.3d 620 (11/18/20)

The trial court did not arbitrarily require the prospective jurors to wear masks and socially distance during voir dire. Rather, faced with the COVID-19 pandemic, the trial court reasonably imposed these requirements and complied with governing safety measures employed by federal and state agencies, as well as our Supreme Court's emergency judicial orders. Simply put, we agree with the trial court that the masking and social distancing of the prospective jurors did not interfere with the sole purpose of voir dire: the empaneling of a competent, fair, impartial, and unprejudiced jury capable of following the instructions of the trial court.

Delmonico, 251 A.3d 829 (Pa. Super. 5/4/21) appeal pending, No. 319 MAL 2021 (filed 6/1/21)

Inconsistent Verdicts

61 corruption of minors charge in order to sustain a conviction for corruption of minors. It is on this limited point that our precedents provide more useful guidance. Where an indictment alleges and the jury is specifically charged on the underlying predicate offense, an acquittal of that underlying predicate offense renders the evidence insufficient as a matter of law with respect to the primary offense. But there is no similar evidentiary sufficiency problem when the Commonwealth elects to forego charging one or more predicate offenses, as long as it makes clear which offense it is pursuing as the predicate offense for purposes of the felony corruption of minors charge, and the factfinder is so made aware and, in the case of a jury, so charged.

Baker-Myers, ___ Pa. ___, ___ A.3d ___ (7/21/21) Link to: Mundy, J. dissenting

ISSUE TO BE DECIDED: Did the Superior Court panel err as a matter of law in concluding that inconsistent verdicts are always permissible in consolidated jury/bench trials pursuant to Yachymiak, 351 Pa. Super. 361, 505 A.2d 1024 (3/10/86), and Wharton, 406 Pa. Super. 430, 594 A.2d 696 (7/25/91), particularly where a different panel of the Superior Court reached the exact opposite conclusion in Rankin, 235 A.3d 373 (Pa. Super. 7/10/20)? [Trial court found defendant guilty of disorderly conduct after jury acquitted on all other charges.]

Commonwealth v. Gregory Jordan, No. 31 WAP 2020 (argued 5/18/21)

Acquittal on recklessly endangering another person did not preclude a conviction for drug delivery resulting in death.

Burton, 234 A.3d 824 (Pa. Super. 7/6/20) appeal denied, ___ Pa. ___, 252 A.3d 234 (4/6/21)

Inconsistent verdicts are generally not reviewable. There is an exception to the non-reviewability rule when the conviction of one crime requires, as an element of that crime, the completion of a predicate crime [e.g., Ethnic Intimidation]. The jury convicted defendant of aggravated indecent assault, but did not convict him of indecent assault. Aggravated indecent assault includes an element that is not required to commit indecent assault. That element is penetration of the genitals or anus of the victim. Indecent assault includes an element that is not required to commit aggravated indecent assault. That element is proof of arousing or gratifying sexual desire. Since the crimes of aggravated indecent assault of a child less than 13 years of age and indecent assault of a child less than 13 years of age each have an additional element not included in the other crime, inconsistency of the verdict is not reviewable.

Widger, 237 A.3d 1151 (Pa. Super. 8/13/20) appeal denied, ___ Pa. ___, 249 A.3d 505 (2/26/21)

The charges against defendant stemmed from events in the early morning of April 27, 2018. At 2:15 a.m., defendant, in his vehicle with two passengers, encountered the vehicle of Krystle and Jack Neary on the streets of Wilkes-Barre, Pennsylvania. Defendant tailgated the Nearys so closely that Mrs. Neary, who was driving, was unable to see defendant's headlights in her rearview mirror. She took evasive action to try to lose defendant, but he continued to follow her, driving fast and aggressively. Defendant then began firing a gun at the Nearys from his driver's window, discharging five or six shots in total. Defendant's vehicle later spun out as the parties approached railroad tracks, enabling Mrs. Neary to get a good look at defendant and the gun in his hand. Mrs. Neary then fled, with defendant still chasing her. The Nearys soon encountered two police vehicles, occupied by Sergeant Dale Binker and Officer Thomas Lepore. Mrs. Neary, with defendant again behind her, stopped her vehicle in front of the officers and solicited the officers’ help, yelling that someone was shooting at her. Sergeant Binken believed that he saw a gun in defendant's hand and directed him to drop it. Officer Lepore did not see a gun. Defendant responded by backing up his car, nearly hitting one of the officers, and speeding away. The officers pursued defendant in what became a high-speed chase over approximately sixty miles and three counties, ending when defendant eventually stopped four or five miles after driving over spike strips which had been placed across the highway. The officers found defendant with slurred speech, dilated eyes, and smelling of alcohol. Defendant refused to take a blood test. Defendant was arrested and his car impounded. A subsequent search of the vehicle produced a bullet fragment, an empty shell casing, a handgun magazine, and markings consistent with bullet damage to the driver's door, but no firearm. Defendant first suggests that a factual finding of the jury in connection with the fleeing or eluding charge renders the evidence insufficient to sustain his DUI conviction. By way of background, the offense of fleeing or attempting to elude a police officer is generally graded as a second-degree misdemeanor. See [75] Pa.C.S. § 3733(a.2)(1). However, it constitutes a third-degree felony if, while fleeing, the driver, inter alia, is DUI or engages in a high-speed chase that endangers law enforcement or a member of the general public. See [75] Pa.C.S. § 3733(a.2)(2)(i), (iii). Accordingly, on the verdict slip defendant's jury was asked, for the fleeing or attempting to elude charge, to first indicate whether defendant was guilty or not guilty. It was then queried, if the finding was guilty, whether the Commonwealth had proved beyond a reasonable doubt that defendant, while fleeing, (A) committed a violation of the DUI statute, and (B) endangered law enforcement or others by engaging in a high speed chase. The jury checked “no” for A and “yes” for B. Defendant maintains that the “no” finding for this charge impacts the sufficiency analysis of his DUI charge. However, the fact that the jury simultaneously convicted defendant of DUI and found that defendant was not DUI in connection with the fleeing/eluding charge is of no moment. It is well-settled that inconsistent verdicts are permissible in this Commonwealth.

Banks, ___ A.3d ___ (Pa. Super. 5/13/21) appeal pending, No. 350 MAL 2021 (filed 6/14/21)

JUVENILE

C.B., a 17½-year-old male diagnosed with autism, was found to have possessed and viewed over 100 photographs and videos depicting child pornography, involving children as young as four years of age. At the beginning of treatment, C.B. was candid with his therapist that he did not understand why viewing such material was inappropriate, let alone illegal. While his therapist testified that C.B. completed the course of therapy set out for him and was cooperative and amenable to treatment, the fact remains that he also is very much obsessed with computers, spending an inordinate amount of time at the screen. The experts who testified opined that C.B. was no longer in need of sex offender treatment or rehabilitation, recommendations that the trial court accepted. Our review of the juvenile court record does not indicate any expert opinion specifically with regard to the need for or efficacy of supervision for this young man. The trial court made it clear that it wanted C.B. to fully understand the seriousness of his behavior; to accomplish this goal, the court limited his access to unfettered computer trolling for at least a few months. Further, we note that the juvenile court had the opportunity to observe C.B.'s demeanor and his reaction to his situation. The court's decision to monitor C.B. until his majority is intended to impress upon him the dire need for maintaining correct behavior in the future, specifically into his adulthood. We are loathe to second-guess the juvenile court judge, especially when his actions appear to be consonant with the purpose behind the Juvenile Act.

Interest of C.B., 241 A.3d 677 (Pa. Super. 11/6/20) [EDITOR’S NOTE: Issues surrounding the burden of proof and standard of proof were noted, but not raised by defendant or decided by the appellate panel]

LEGISLATIVE UPDATE See also: SENTENCE: LEGISLATION AND GUIDELINES AMENDMENTS, infra

Act 29 of 2021 (6/30/21), HB 156, PN 121 (eff. 8/29/21) Age for tender years hearsay increased from 12 to 16

Act 53 of 2021 (6/30/21), SB 87, PN 64 (eff. 8/29/21) Increased grade for sexual abuse of children (under age 10) Sentencing guidelines enhancement (victim known to defendant or under age 10)

Act 48 of 2021 (6/30/21), HB 1429, PN 1902 (eff. 8/29/21) New offense: Financial exploitation of older adult or care-dependent person

Act 49 of 2021 (6/30/21), HB 1431, PN 1547 (eff. 8/29/21) New subsection: Abuse of care-dependent person, intent to ridicule or demean M3

Act 59 of 2021 (6/30/2021), SB 411, PN 967 (eff. immediately) Merger of Parole Board agents and Department of Corrections

PCRA

Newly-discovered facts

On April 20, 2015, the FBI issued a press release admitting, for the first time, that testimony by FBI analysts regarding microscopic hair analysis in criminal trials was erroneous in the vast majority of cases. On September 10, 2015, Cruz filed the instant, pro se, PCRA petition, alleging that he had received a letter from the Department of Justice (DOJ), advising him that Agent Blythe's testimony at his [Cruz’s] trial contained erroneous statements. Here, Cruz's newly-discovered fact is the DOJ and FBI's specific admission that Agent Blythe's testimony, in particular, contains erroneous statements, not the DOJ and FBI's general admission that Cruz's case might be one of the thousands of cases that was based on bad science. Thus, the July 27, 2015 DOJ letter, and not the FBI press release, triggered the sixty-day time limit. Therefore, Cruz filed his PCRA Petition within sixty days of discovering these new facts, on September 10, 2015.

Cruz, 223 A.3d 274 (Pa. Super. 11/15/19) appeal denied, ___ Pa. ___, 236 A.3d 1039 (6/16/20)

The newly discovered fact exception, by its express terms, requires only that the petitioner plead and prove that “the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence.” 42 Pa.C.S. § 9545(b)(1)(ii). The statute itself contains no exception, express or constructive, regarding information that is of public record. The exception in Burton, 638 Pa. 687, 158 A.3d 618 (3/28/17), for pro se prisoners reflected a sensible understanding that incarcerated individuals enjoy only limited access to public records. The public record presumption exists only because this Court engrafted it upon the statutory language in Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585 (2/23/00), and then perpetuated our extra-statutory innovation in later cases such as Chester, 586 Pa. 468, 895 A.2d 520 (3/21/06), and Whitney, 572 Pa. 468, 817 A.2d 473 (3/5/03), without meaningful discussion. In any circumstance in which a PCRA petitioner can establish the facial requirements of the newly discovered fact exception, but the court rejects the claim merely due to the earlier public availability of the information, the court is overriding the language of the PCRA. Accordingly, we disavow the public record presumption. To the extent that earlier decisions, including our own, relied upon and applied that presumption to reject a petitioner’s claim, they now are overruled.12 12These decisions include Gamboa-Taylor, 620 Pa. 429, 67 A.3d 1245 (5/29/13); Edmiston, 619 Pa. 549, 65 A.3d 339 (4/24/13); Lopez, 616 Pa. 570, 51 A.3d 195 (8/20/12) (per curiam); Hawkins, 598 Pa. 85, 953 A.2d 1248 (8/19/08) (plurality opinion); Chester, 586 Pa. 468, 895 A.2d 520 (3/21/06); Whitney, 572 Pa. 468, 817 A.2d 473 (3/5/03); and Lark, 560 Pa. 487, 746 A.2d 585 (2/23/00).

Small, ___ Pa. ___, 238 A.3d 1267 (10/1/20) Link to: Saylor, C.J. concurring and dissenting Link to: Dougherty, J. concurring and dissenting

Upon remand, the PCRA court shall first determine whether the facts about [the witness’s] criminal history and pattern of involvement in Commonwealth prosecutions were “unknown” to Williams. If the court concludes that the facts were unknown, then the court must examine the extent to which Williams exercised due diligence in uncovering the newly-discovered information A petitioner is still required to prove that the facts upon which his claim is based were unknown to him and not ascertainable by the exercise of due diligence. [The Small decision] merely eliminates an unjustifiable presumption.

Williams, 244 A.3d 1281 (Pa. Super. 1/25/21)

A 2018 Joint State Government Commission Report on Capital Punishment (“JSGC Report”) declared that that racial disparities in jury selection pervasively and persistently infected the Commonwealth’s capital prosecution system and that Pennsylvania should adopt structural and procedural reforms to address such defects. The conclusions of the Commission lacked any relation or nexus to defendant’s own case. It was not an admission of factual error comparable to the admission made by the Federal Bureau of Investigation that its hair analysis was flawed in the vast majority of cases, and that its own experts, and the experts trained by the FBI, had given fatally flawed scientific opinion testimony concerning the strength of that evidence in virtually every case in which hair analysis was presented. See generally, Chmiel, 643 Pa. 216, 173 A.3d 617 (11/22/17). The report of the Commission was not a newly discovered fact permitting an otherwise untimely PCRA petition.

Howard, 249 A.3d 1229 (Pa. Super. 4/20/21) appeal pending, No. 223 EAL 2021 (filed 5/20/21)

ARE THE FOLLOWING TWO CASES STILL GOOD LAW IN LIGHT OF THE SMALL DECISION?

The [9th PCRA] petition contained numerous allegations concerning drug use by defendant’s plea counsel, Richard Michaelson, Esquire. The petition alleged that “At the time of trial/guilty plea . . . my counsel suffered from the effects of cocaine abuse. He was ingesting, [c]ocaine, and because of counsel's [c]ocaine addiction, ‘his mind was befog[ged], disordered by paranoid thoughts and the belief that he was in control when he was not.’ ” The petition alleged that this drug use “impaired his ability to represent [me] in a Constitutionally sufficient manner.”

The petition included sworn affidavits prepared by defendant and Bruce Quarles, a fellow prisoner, which related the following. Mr. Quarles overheard defendant complaining about trial counsel. Mr. Quarles informed defendant that he knew of trial counsel and supplied documentation regarding Attorney Michaelson's purchase of cocaine in the Caribbean Islands during May of 1982, around the time of defendant's plea. Additionally, Mr. Quarles stated that he knew Attorney Michaelson had been convicted of drug offenses in federal court, and told defendant “he would bring the transcripts and newspaper articles to the law library and I could make photo copies of the newspaper articles and the transcripts. This is how I obtained the after [d]iscovered [e]vidence on April 28, 2015.” Recognizing that defendant's claim challenges counsel's mental state on the day of defendant's plea, we find that defendant failed to act with due diligence in uncovering the facts upon which his underlying claim is predicated. Any deficiency in plea counsel's representation must necessarily have existed (if it existed at all) at the time of the plea. In essence, defendant argues that he had no due diligence obligations prior to speaking to Mr. Quarles in 2014, as defendant was unaware of plea counsel's subsequent federal prosecution. According to defendant, that was the first time he learned that “Mr. Michaelson [was] using cocaine at a time period relevant to [my] case.” This conclusion fails to account for the fact that due diligence demands that the petitioner take reasonable steps to protect his own interests. Defendant always “knew” that his counsel supplied ineffective advice, and he has failed to show why he could not have learned these newly- discovered facts at an earlier time. Consequently, we reject defendant's attempt to tailor his newly-discovered fact analysis to Mr. Quarles's information. There are situations in which a petitioner may passively rely on learning information as opposed to actively seeking out those facts. See Medina, 92 A.3d 1210 (Pa. Super. 5/28/14) (en banc) (PCRA petition based on newly- discovered facts was timely where witnesses contacted the defendant and recanted their testimony, claiming that police detective coerced their statements; Medina was not required to contact the witnesses because he had no reason to suspect the coercion and no duty to engage in a fishing expedition as to why witnesses lied). In contrast to Medina, counsel's ineffectiveness would have been obvious to defendant back in 1983. Therefore, he bore the duty to seek out the facts that would support any such claim. Having established that defendant failed to exercise due diligence, we find that Burton, 638 Pa. 687, 158 A.3d 618 (3/28/17), does not compel a different result. Burton holds only that material in the public record is not presumptively known to an incarcerated pro se PCRA petitioner just because that information is publicly available. Pre–Burton, defendant was presumably constructively charged with the knowledge of counsel's plea when the record became available in 1994, therefore requiring him to file for relief within sixty days of its publication. However, it does not follow from Burton that defendant is relieved of his duty to seek out facts as a matter of due diligence. Burton modifies the “unknown” nature of public facts as applied to incarcerated pro se PCRA petitioners, but the case did not modify the due diligence inquiry.

Robinson, 185 A.3d 1055 (Pa. Super. 5/2/18) (en banc) appeal denied, 648 Pa. 278, 192 A.3d 1105 (8/28/18)

In Edmiston, 619 Pa. 549, 65 A.3d 339 (4/24/13), Edmiston, argued that a National Academy of Sciences report concerning the imprecision of microscopic hair analysis constituted his “newly discovered fact” for the purposes of this exception. As Edmiston filed his petition within 60 days of the publication of this report, he asserted he proved this exception to the PCRA's time-bar. However, the Court found Edmiston was unable to prove this exception because the scientific principles on which the report relied had been in the public domain for years prior to the publication of the report. A few years later in Chmiel, 643 Pa. 216, 173 A.3d 617 (11/22/17), the Supreme Court was confronted with another case involving the inaccuracy of microscopic hair analysis. Chmiel argued he met the newly discovered evidence exception to the PCRA's time-bar because he filed his PCRA petition within 60 days of an FBI press release and a Washington Post article about the inaccuracy of this type of science. The Supreme Court concluded that Chmiel's petition relied upon two facts in the FBI Press Release that were not previously part of the public domain - the FBI's public admission that testimony provided by its analysts relating to microscopic hair comparison analysis was largely erroneous and its admission that it trained many state and local analysts with the same scientifically flawed techniques. Despite Brensinger's contention, this holding does not alter Edmiston's proclamation ruling that a petitioner cannot rely on newly willing sources, including expert opinions, for previously known scientific principles in order to satisfy the 60-day filing requirement.13 13. . . Our review of Chmiel leads us to conclude that Chmiel distinguished Edmiston, but did not overrule it. The PCRA court neglected to analyze which scientific principles constitute the “facts” for the purposes of Section 9545(b)(1)(ii). Furthermore, it failed to determine if these “facts” existed in the public domain prior to the experts' use of the principles in forming their opinions, and, if so, when these principles entered into the public domain. Each of Brensinger's four experts relied upon multiple scientific principles from various studies, papers and statements published between 1934 and 2013 to form their expert opinion. Resolution of these questions requires further fact-finding. The PCRA court, sitting as fact-finder, is the proper forum to resolve these questions and to ultimately determine whether Brensinger met the proof requirement under Section 9545(b)(1)(ii). We vacate the PCRA court's order dismissing Brensinger's petition and remand this matter to the PCRA court for an evidentiary hearing to determine which scientific principles constitute the facts upon which Brensinger's petition was based and if, or when, these facts entered the public domain. In determining when these principles entered the public domain, the PCRA court's focus should be on the date this information became [publicly] available to Brensinger and his experts.

Brensinger, 218 A.3d 440 (Pa. Super. 8/30/19) (en banc) Link to: Bowes, J. dissenting

PLEA AGREEMENTS

When a prosecutor makes an unconditional promise of non-prosecution, and when the defendant relies upon that guarantee to the detriment of his constitutional right not to testify [by providing testimony in civil depositions], the principle of fundamental fairness that undergirds due process of law in our criminal justice system demands that the promise be enforced. Here, only full enforcement of the decision not to prosecute can satisfy the fundamental demands of due process. In light of the extent and duration of Cosby’s reliance, induced as intended by then-District Attorney Castor, no other remedy will do. Anything less under these circumstances would permit the Commonwealth to extract incriminating evidence from a defendant who relies upon the elected prosecutor’s words, actions, and intent, and then use that evidence against that defendant with impunity.

Cosby, ___ Pa. ___, 252 A.3d 1092 (6/30/21) Link to: Dougherty, J. concurring and dissenting Link to: Saylor, J. dissenting

POSSESSION

The police observed a confidential informant enter defendant’s vehicle and then observed the informant leave the vehicle with bags which subsequently tested positive for fentanyl and methamphetamine. The informant did not testify at defendant’s trial. Trial court’s ruling: When Officer Breslin met with the confidential informant, who was known to him and had been previously used for controlled buys by the Pottstown Borough Police Department, he asked the informant to make a drug purchase. The confidential informant called a phone number, which was registered to a female individual with the same last name as the defendant and the same address as the defendant. A male picked up the call and spoke with the confidential informant arranging to meet right away at a nearby Rite Aid parking lot. After the confidential informant was searched and found to be free and clear of any drugs, paraphernalia, and currency, Officer Breslin gave him/her $20.00 of prerecorded currency to effectuate the drug purchase, and took him/her to the predetermined meeting spot in the area of the Rite Aid. The confidential informant entered the defendant's red Chevy Cobalt with $20.00 and came out with no currency and two bags of narcotics. There is no question that a drug transaction occurred inside the vehicle that defendant was driving, which vehicle was registered to the defendant, at his address. The address of the vehicle registration was the same address as the phone number registration. The officers at the scene saw the confidential informant speaking with only the defendant, both inside and outside of his vehicle. During the controlled buy, there were four officers conducting visual surveillance of the area where the transaction occurred, and the officers were in radio contact with each other throughout the entire time, which was approximately three minutes. Between the four officers, there was never a time when the defendant was not in view. The only thing not viewed by the police in this case was the hand to hand transfer of the drugs that

69 occurred inside defendant's vehicle. Although there was a female in the passenger seat of the car while the drug transaction occurred, her identity was unknown to the Pottstown Police Officers who investigated this case and there was no evidence presented that she was the individual who handed the drugs to the confidential informant or played any part in the drug transaction. During the course of the investigation as the information was collected and the evidence was collected and processed, not one piece of evidence or information received or reviewed showed that the female in the vehicle had dealt drugs or provided drugs to the confidential informant. To the contrary, the information and evidence collected pertaining to this case showed that it was only the defendant who was involved in the narcotics sale. There was abundant circumstantial evidence presented in this case that could reasonably lead a jury to determine that it was the defendant who transferred the drugs to the confidential informant. There was no evidence presented at trial that the female passenger in the vehicle was involved in any way with the drug transaction. Based on the totality of the circumstances, the evidence was sufficient to sustain the defendant's convictions of possession of drugs and drug paraphernalia, and possession with intent to distribute. Superior Court’s ruling: We agree with the trial court that, when viewed in its totality, the circumstantial evidence reveals defendant had the power and intent to control the drugs, as well as the necessary intent for PWID.

Rojas-Rolon, ___ A.3d ___ (Pa. Super. 5/18/21) appeal pending, No. 359 MAL 2021 (filed 6/17/21)

On the evening of October 4, 2018, State Parole Agent Shipley and Harrisburg Police Officer Foose and he visited 1720 North Street, Harrisburg, the approved parole residence of Marquis Emery, defendant’s brother, who had been under Agent Shipley’s active supervision as a high-risk offender. As they drove toward the address — from which authorities had recently confiscated 120 bundles of heroin and a firearm, and which is otherwise situated in a high-crime, high-drug neighborhood — they noticed four males sitting on the porch. As they exited the vehicle, both the agent and officer detected the smell of freshly burnt marijuana. Agent Shipley addressed the group and recognized defendant once he began talking with him. Specifically, the agent knew defendant was Emery’s brother and that he was also on state parole. When Agent Shipley asked defendant to stand for a consented- to pat-down, he observed a bag of marijuana on defendant’s chair. The agent also noticed defendant was making a subtle attempt to pass a set of keys and a single key to his aunt, Angela Murray, but he ordered the group to leave the keys where they were. At this point, Agent Shipley told defendant that he was addressing him as state parole agent to state parolee. When asked what the set of keys were for, defendant said the set belonged to his father’s van, which he had just driven to the present location. Agent Shipley used the keys to perform a consent search of the van, which yielded no contraband. The agent returned to the porch and asked defendant what the single key was for, and defendant claimed it

70 was for his work locker. The agent deemed this a lie, he testified, as he knew from its distinctive shape and size that it was a vehicle key. With key in hand, Agent Shipley walked directly to a white Chevrolet Impala and used the key to unlock and open a door. He entered the vehicle and observed a semiautomatic firearm in the center console. He alerted Officer Foose and other [police] officers now on the scene of his finding and allowed them to complete the search, which uncovered additional marijuana, heroin, and fentanyl. Multiple text message references to the Impala (the location of the drugs) were read at trial, including one from September 21, 2018, just thirteen days before defendant’s arrest, asking if he is driving the Impala that day. From October 4th , 2018, the day of defendant’s arrest, an outgoing text message indicates he is at his father’s “hanging out” with his brother “out front”, and he needs to check inside the Impala for the keys. These messages were offered to authenticate numerous texts from defendant’s phone, made during the same time frame, in which drug sales were arranged. Here, the circumstantial evidence admitted at trial showed the contraband found in the Impala was within defendant’s knowledge, control, and dominion on October 4, 2018, the day of his arrest. Despite defendant’s lack of ownership interest in the Impala, his text messages admitted into evidence showed he was a frequent driver of the vehicle. Both his claim of owning the car’s key as it lay by his side and his attempt to mislead Agent Shipley about the nature of the key to prevent a vehicle search of the Impala were additional actions consistent with someone who had both control over the vehicle and concern that the agent would discover contraband if he gained access to it. Finally, evidence of the drug deals arranged on defendant’s cell phone corroborated defendant’s role in selling to calling customers the very same illicit drugs — marijuana, heroin, and fentanyl — found in the trunk of the Impala. We conclude that there was sufficient circumstantial evidence for the jury as finder of fact to conclude that defendant constructively possessed the contraband inside the Impala. The fact that defendant was not the owner of the vehicle, or the possibility that the firearm and narcotics may have been primarily possessed by someone else, did not render the evidence insufficient to prove defendant’s constructive possession, because more than one person may have constructive possession of an item at the same time.

Wright, ___ A.3d ___ (Pa. Super. 6/9/21) appeal pending, No. 398 MAL 2021 (filed 7/7/21)

PRELIMINARY HEARING

The preliminary hearing is not a trial. The principal function of a preliminary hearing is to protect an individual's right against an unlawful arrest and detention. At this hearing the Commonwealth bears the burden of establishing at least a prima facie case that a crime has been committed and that the accused is probably the one who committed it. A prima facie case exists when the Commonwealth produces evidence of each of the material elements of the crime charged and establishes probable cause to warrant the belief that the accused committed the offense. Furthermore, the evidence need only be such that, if presented at trial and accepted as true, the judge would be warranted in

71 permitting the case to be decided by the jury. A judge at a preliminary hearing is not required, nor is he authorized to determine the guilt or innocence of an accused; his sole function is to determine whether probable cause exists to require an accused to stand trial on the charges contained in the complaint. The weight and credibility of the evidence are not factors at the preliminary hearing stage, and the Commonwealth need only demonstrate sufficient probable cause to believe the person charged has committed the offense. Inferences reasonably drawn from the evidence of record which would support a verdict of guilty are to be given effect, and the evidence must be read in the light most favorable to the Commonwealth's case

Perez, ___ Pa. ___, 249 A.3d 1092 (4/29/21) Link to: Saylor, J. concurring

PRIOR CRIMES

In any criminal or delinquency matter, evidence of a party’s or a witness’s immigration status shall not be admissible unless immigration status is an essential fact to prove an element of, or a defense to, the offense, to show motive, or to show bias or prejudice of a witness. The trial court may admit such evidence, after an in camera hearing, if the proponent of such evidence filed under seal and served a written pretrial motion containing an offer of proof of the relevancy of the proposed evidence supported by an affidavit.

Pa.R.Crim.P. 413 (effective October 1, 2021)

Generally, evidence of prior bad acts or unrelated criminal activity is inadmissible to show that a defendant acted in conformity with those past acts or to show criminal propensity. Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be admissible when offered to prove some other relevant fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. Pa.R.E. 404(b)(2). In determining whether evidence of other prior bad acts is admissible, the trial court is obliged to balance the probative value of such evidence against its prejudicial impact. The purpose of Rule 404(b)(1) is to prohibit the admission of prior bad acts to prove “the character of a person in order to show action in conformity therewith.” Pa.R.E. 404(b)(1). While Rule 404(b)(1) gives way to recognized exceptions, the exceptions cannot be stretched in ways that effectively eradicate the rule. With a modicum of effort, in most cases it is possible to note some similarities between the accused's prior bad act conduct and that alleged in a current case. To preserve the purpose of Rule 404(b)(1), more must be required to establish an exception to the rule — namely a close factual nexus sufficient to demonstrate the connective relevance of the prior bad acts to the crime in question. The prior bad acts may not be admitted for the purposes of inviting the jury

72 to conclude that a defendant is a person “of unsavory character” and thus inclined to have committed the crimes with which he/she is charged.

Sitler, 144 A.3d 156 (Pa. Super. 7/26/16) (en banc) Link to: Lazarus, J. dissenting Sami, 243 A.3d 991 (Pa. Super. 12/22/20)

Pa.R.E. 404(b) is not limited to evidence of crimes that have been proven beyond a reasonable doubt in court. It encompasses both prior crimes and prior wrongs and acts, the latter of which, by their nature, often lack definitive proof.

Lockcuff, 813 A.2d 857 (Pa. Super. 12/12/02) appeal denied, 573 Pa. 689, 825 A.2d 638 (6/4/03) Saez, 225 A.3d 169 (Pa. Super. 12/20/19) appeal denied, ___ Pa. ___, 234 A.3d 407 (5/27/20)

A common scheme may be relevant to establish any element of a crime, where intent may be shown through a pattern of similar acts. The degree of similarity is an important factor in determining the admissibility of other crimes or bad acts under this exception. Furthermore, the importance of the intervening time period is inversely proportional to the similarity of the crimes in question. The longer the time between the crimes, the more similar the crimes need to be. Despite the slight difference in victim age, the similarities between the incidents of abuse merited inclusion under Pa.R.E. 404(b)(2). Both girls [step-sisters] were young, away from protective family members, in their bedrooms and vulnerable at the time defendant abused them. Indeed, these attacks appear to overlap in time, further demonstrating a lack of accident. The probative value of this evidence far outweighed the potential unfair prejudice. The assault on defendant's biological daughter demonstrated the natural course of events in defendant's life and that of his family. In both instances, the victims defendant abused were young children in a filial relationship with defendant. Further, the instances of abuse toward both children took place close in time with one another. In balancing the probative value of the evidence against its prejudicial impact, a trial court is not required to sanitize the trial to eliminate all unpleasant facts from the jury's consideration. We conclude the trial court did not abuse its discretion in permitting A.O.'s testimony concerning her abuse by defendant.

Saez, 225 A.3d 169 (Pa. Super. 12/20/19) appeal denied, ___ Pa. ___, 234 A.3d 407 (5/27/20)

Defendant was arrested and charged with the murder of his wife based on evidence that he took her out to Lake Erie on his boat, shot her in the head, and then disposed of her body in the lake by weighing it down with an anchor. Defendant then

73 contacted the United States Coast Guard (USCG) to falsely report that his wife had fallen overboard. Alexandra Schuler testified that in approximately 2004, during a social gathering at a local boating club, defendant volunteered to Ms. Schuler: “[I]’m going to put her on a boat, I'm going to drive out into the middle of the lake to the deepest part of the lake, she's going to fall off the boat and no one will ever find her body.” When Ms. Schuler tried to uncomfortably laugh the statement off as a joke, defendant said he was not joking and repeated the statement. Despite hearing the statement thirteen years ago, when the news media reported a woman falling overboard on a boat in the middle of Lake Erie, Ms. Schuler immediately called the Pennsylvania State Police to report defendant. Thomas Foye, a local fisherman and acquaintance of defendant, testified about a statement defendant made in 2011 during a conversation about a news story about a man who had killed his wife. Defendant told Mr. Foye how he would kill his wife; specifically, Mr. Foye testified that defendant stated “that what he would do was he would take and raise the life insurance policies, take out a loan and put her on the policies, and then he would take and wait a year, year and a half, take her out to the lake, wrap her up in a fishing net or rope, and they would never find her.” Defendant said this with a straight face and Mr. Foye did not get the impression it was a joke. Keith Love testified regarding conversations with defendant that occurred in the months prior to June 2017. Defendant advised Mr. Love that his wife was dying from cancer, and one day when Mr. Love asked how defendant's wife was doing, defendant responded: “Once the bitch is dead, I'll be set for life.” The statements made multiple times over the years about Defendant's plans to kill his wife prior to actually killing his wife were absolutely relevant because of their haunting factual similarity to the murder of her. While it is clear the remoteness of the statements can be considered in determining whether prejudice occurred, in the present case the manner in which defendant spoke, although remote in time, became highly relevant and the probative value of the statements outweighed any prejudicial effect. Evidence concerning the nature of the marital relationship is admissible for the purpose of proving ill will, motive or malice. It is generally true that remoteness of the prior instances of hostility and strained relations affects the weight of that evidence and not its admissibility. Evidence of prior occurrences (e.g., previous threats) and prior offenses, if they are related to the offense for which the defendant is on trial, may be admitted to show malice, motive, or intent. Additionally, defendant's extrajudicial statements to the witnesses that he would take his wife out on his boat, drive out to the deepest part of Lake Erie, wrap her in fishing net or rope, and dump her body so they would never find her and he would be set for life were not evidence of a particular crime, wrong, or act. Rather, they were mere statements demonstrating defendant's longstanding desire to get rid of his wife. The statements merely advanced the inference that defendant's plans to kill his wife and dispose of her body finally came to fruition on June 10, 2017, and were thus admissible.

Leclair, 236 A.3d 71 (Pa. Super. 7/24/20) appeal denied, ___ Pa. ___, 244 A.3d 1222 (2/8/21)

Defendant was charged with two murders. Prior to trial, the Commonwealth’s expert, Dr. O’Brien, submitted a report in which he offered the following opinion: It is my opinion that the most appropriate diagnosis for Ms. Sami’s array of symptoms at the time of the offense and preceding it is Substance Intoxication/Substance Induced Psychotic Disorder. It is my opinion that those symptoms were the result of voluntary intoxication utilizing marijuana and very possibly other drugs.

Regardless of how one diagnoses Ms. Sami, it is clear to me that at the time of the offense, she was able to appreciate the nature and quality of her acts in connection with the physical altercations that she had on March 7, 2019 with [the two victims] which resulted in their deaths. My evaluation of Ms. Sami indicates that throughout the period of time that she was symptomatic she maintained sensitivity to and awareness of potential illegal or wrongful behaviors. It is my opinion that at the time of the offense she was able to appreciate the wrongfulness of her acts under generally accepted societal standards, even if she felt justified in killing [the victims] in self- defense arising out of their behavior toward her and the paranoid symptoms she was experiencing during that period of time. While Ms. Sami’s ability to conform her conduct to the requirements of the law may have been compromised at the time of the offense, it is my opinion that it was compromised by her voluntary use of drugs. We acknowledge that evidence of a defendant’s prior drug use is relevant to rebut an insanity defense to murder charges by showing that the defendant’s mental illness was a drug-induced psychosis. Nevertheless, in this case, the Commonwealth has not shown that the disputed evidence of Sami’s alleged use of methamphetamine and cocaine is relevant. The prosecution has not presented any evidence to show that Sami ingested these drugs on or around the date of the crimes. Upon her arrest, no drug evidence or paraphernalia was found on Sami’s person or her vehicle. Shortly after her arrest, Sami gave a statement to police in which she indicated that she was not under the influence of a controlled substance. Moreover, the lead detective testified that officers did not suspect Sami was intoxicated and would not have taken Sami’s statement if they felt she was under the influence of a controlled substance. As there was no suspicion that Sami was intoxicated at the time of her arrest, the police did not request toxicology testing upon Sami’s entry into prison. We find that the probative value of this evidence is outweighed by the potential for prejudice to the defense. Allowing the prosecution to admit speculative evidence of Sami’s possible use of cocaine and methamphetamine that lacked a factual nexus to the murder charges would have the potential to confuse the jury or to result in unfair prejudice. Accordingly, we conclude that the trial court properly exercised its discretion in denying the Commonwealth’s motion in limine seeking to admit evidence suggesting Sami possessed and used drugs other than marijuana (cocaine and methamphetamine).

Given this conclusion, we agree with the trial court’s decision to prohibit prosecution expert Dr. O’Brien from testifying about Sami’s possession or use of drugs other than marijuana.

Sami, 243 A.3d 991 (Pa. Super. 12/22/20)

Ruling by the trial court: After considering the totality of the circumstances of each alleged incident, the court finds that the incidents involving S.S. and E.G. are substantially similar to the events alleged in the two dockets at bar. In the case of S.S. and E.G., and [both of the] victims at the underlying dockets, the complaints were made by defendant's female massage clients. It is alleged that defendant massaged S.S. and E.G. and the two victims in the case at bar previously and was appropriate and professional on those prior occasions. Then, with each client, defendant eventually deviated from the usual professional massages and worked his way further up the leg until he touched their vaginas. Although the complaints were made by women of different ages and races, all complaints were filed by female clients and they all involved at least one professional and appropriate massage before defendant worked his way up the leg too far. The court finds these situations are substantially similar such that they may indicate a common plan and/or lack of mistake. The court must also consider the remoteness of the prior bad acts. The incident involving S.S. is alleged to have occurred in 2013 and the incident involving E.G. is alleged to have occurred in 2012. The charges at these two dockets are the result of incidents occurring in December of 2016 and January of 2017. The court does not find that the incidents occurring four (4) and five (5) years prior to the events at issue are too remote to be probative. Finally, the court must decide if the probative value is outweighed by the potential prejudicial effect of this evidence. The Commonwealth asserts these incidents were substantially similar, that this evidence is crucial due to the lack of witnesses to the events at issue, and that a curative instruction is sufficient to prevent the jury from considering the testimony for an inappropriate purpose. The court agrees that the allegations involving S.S. and E.G. are substantially similar to the allegations at the two underlying dockets. The similarities between these four (4) allegations indicate a common plan in which defendant earned the trust of clients before moving his massages higher up their legs and touching their vaginas. At each docket, there are only two (2) witnesses who were present at the time of the massages. Therefore, the jury will be forced to choose between two versions of the events, and this evidence of a common plan will be relevant to determining whether there is a common scheme, and also to proving that defendant had the requisite intent for the alleged acts. The court additionally finds that a curative instruction would be sufficient to guide the jury in the appropriate use of this evidence, as it is presumed that jurors will follow the instructions provided by the court. Ruling by the Superior Court: The standard for admission of evidence under the “absence of mistake” exception is virtually the same as the common plan or scheme exception; namely, the evidence “must be distinctive and so nearly identical as to become the signature of the same

76 perpetrator, and its probative value must not be undermined by the lapse in time between incidents. Our review discloses that the trial court's analysis is amply supported by the record and the law, and we discern no abuse of discretion.

Gilliam, 249 A.3d 257 (Pa. Super. 3/12/21) appeal denied, No. 369 MAL 2021 (filed 6/17/21)

PRIVATE CRIMINAL COMPLAINT

ISSUE TO BE DECIDED:

Mother was accused of hiding the children in Iraq after the father had been awarded sole legal and physical custody. When the district attorney disapproves a private criminal complaint solely on the basis of legal conclusions, the trial court undertakes de novo review of the matter. Thereafter, the appellate court will review the trial court’s decision for an error of law. As with all questions of law, the appellate standard of review is de novo and the appellate scope of review is plenary. When the district attorney disapproves a private criminal complaint on wholly policy considerations, or on a hybrid of legal and policy considerations, the trial court’s standard of review of the district attorney's decision is abuse of discretion. This deferential standard recognizes the limitations on judicial power to interfere with the district attorney’s discretion in these kinds of decisions. The trial court dismissed the Commonwealth's “evidentiary issues” relating to custody, noting that Ajaj [father] was the best source of evidence concerning mother's conduct. As for mother's actions in possibly preserving the children from danger or fleeing domestic or child abuse, any such issues could have been raised before the court in the custody proceedings. Despite mother's assurances she would return to Montgomery County with the children, she never did so. Ultimately, the judge handling the custody proceedings not only awarded sole legal and physical custody to Ajaj — grounding her ruling firmly in the “best interests of the children” — but also issued bench warrants for mother and directed law enforcement to cooperate in securing the children's return. Having reviewed the evidentiary concerns relating to custody, the trial court concluded that Ajaj's complaint made out a prima facie case that mother concealed the whereabouts of the children in violation of 18 Pa.C.S. § 2909(a). The trial court's analysis and conclusion apply equally to a finding that the complaint made out a prima facie case of interference with the custody of the children in violation of 18 Pa.C.S. § 2904(a). For the Commonwealth to put forward the possibility of evidence of abuse as grounds for refusing prosecution in these circumstances is an affront to the court that found no such credible evidence after counselled proceedings at which [mother] had several opportunities, indeed was compelled by the court, to appear and testify. With respect to witnesses and documents being in Iraq, the trial court similarly dismissed those concerns. The court noted that mother failed to comply with the directive in the custody proceedings to provide documents relating to any parallel proceedings in

Iraq. Further, the [trial] court rejected the Commonwealth's contention that it lacked resources to investigate evidentiary matters, noting that federal authorities were “blinking red” with signals to the [Commonwealth] to file charges and have a warrant issued so that the federal government would have the requisite basis upon which to pursue the matter and assist the [Commonwealth] with the only means possible of securing capture of [mother] and, hopefully by extension, rescue the children. The [trial] court noted the Commonwealth's awareness of the FBI and State Department's indications to Ajaj that “he would have little chance of getting their best efforts to secure the capture of the mother and the return of the children” if charges were not filed and a warrant issued. Based on its de novo review of the disapproval based on evidentiary issues, the trial court found the Commonwealth's claims lacked merit. Having undertaken a plenary review of that decision, we find no error of law in the trial court's ruling. Therefore, we shall not disturb it. While we might be inclined to find the Commonwealth limited its basis for disapproval when it noted only evidentiary issues in its disapproval, our review of the trial court's disposition under an abuse of discretion standard would not yield a different result. The trial court considered the Commonwealth's contention that it did not approve private complaints alleging a felony. After suggesting that such a policy could have been easily stated when it first disapproved the complaint, the court noted that the Commonwealth did not present any evidence of such guidance to its prosecuting attorneys. Moreover, such a policy struck the court as an especially bad one which wipes from the books for consideration in the private-complaint setting the most serious of classic crimes spelled out in the Crimes Code. The trial court next considered the policy assertion that caution should be exercised in criminalizing actions of estranged parents involved in a custody dispute. While acknowledging such a policy might be laudable when one parent is attempting to tilt the playing field in what should be strictly a domestic-relations rather than criminal case, that is not what happened here. Instead, despite the best efforts of the judge in the custody case to apply civil remedies, the judge nevertheless was compelled to call upon law enforcement agencies to cooperate in mother's capture and the return of the minor children. The extraordinary circumstances of this case should not be overcome by the Commonwealth's ordinary reluctance to intervene in civil suits. While recognizing that the existence of civil remedies can serve as a legitimate policy reason for disapproving a complaint, here that policy reason does not apply. The civil remedies Ajaj had pursued to the hilt and been granted would still be inadequate, and that [mother's] criminal actions in defiance of the court's orders required the intervention of all the organs of criminal law enforcement to have any force and effect. In the instant case, not only did the Commonwealth raise policy considerations in an untimely manner, but also it raised policy considerations that deviate from moral rectitude and sound thinking under the facts as developed in the custody proceedings and as summarized in Ajaj's complaint and exhibits. Therefore, we find the trial court did not abuse its discretion when it found the Commonwealth failed to advance sufficient policy reasons to support disapproval of the complaint. As explained above, we also find that the trial court did not commit error of law in rejecting the Commonwealth's disapproval based on evidentiary issues. Therefore, we affirm the trial court's order directing the

Commonwealth to accept and transmit the complaint for prosecution in accordance with Pa.R.Crim.P. 506(B)(1).

In re Private Comp Filed By Ajaj, ___ A.3d ___ (Pa. Super. 2/25/21) appeal granted, No. 55 MAP 2021 (granted 7/26/21)

PRIVILEGES

The PCRA petition alleged that trial counsel rendered ineffective assistance by failing to seek a cautionary instruction related to prior bad acts evidence that the Commonwealth presented to the jury at trial. Defendant filed in the PCRA court the motion germane to this appeal, which he entitled “Motion to Preclude the Commonwealth from Conducting an Out-of-Court Interview of Trial Counsel in Advance of the Evidentiary Hearing” (“Motion to Preclude”). The PCRA court entered an order granting the Motion to Preclude. In support of its order, the court cited, inter alia, trial counsel's alleged refusal to communicate with PCRA counsel and the narrowness of the issue to be explored during the evidentiary hearing, i.e., whether trial counsel rendered ineffective assistance by failing to seek a cautionary instruction regarding the prior bad acts evidence that the Commonwealth presented at trial. Defendant has waived his attorney-client privilege as it relates to his specific claim of ineffective assistance of counsel. See 42 Pa.C.S. § 9545(d)(3) (“When a claim for relief is based on an allegation of ineffective assistance of counsel as a ground for relief, any privilege concerning counsel's representation as to that issue shall be automatically terminated.”). We hold that, when a PCRA court is presented with a request to limit the Commonwealth's access to trial counsel, it is incumbent upon the court to consider the totality of the circumstances and carefully exercise its discretion to craft an order that balances the interests of the parties. The PCRA court was faced with allegations that trial counsel refused to cooperate with defendant in preparation for an evidentiary hearing but, at the same time, counsel purportedly was cooperating with the Commonwealth's preparation for the same hearing. Faced with these allegations, the PCRA court, learned in the law, entered an order crafted to the specific arguments presented by the parties and the particular circumstances of this case, placing both parties in a similar posture regarding their interests in being prepared to litigate a discrete claim of ineffective assistance of counsel. Simply put, the Commonwealth has failed to persuade both the Superior Court and this Court that such an order constitutes an abuse of discretion.

King, 654 Pa. 108, 212 A.3d 507 (7/17/19) Link to: Donohue, J. concurring Link to: Mundy, J. concurring Link to: Dougherty, J. dissenting

Defendant filed a motion to compel discovery of a child sexual assault victim’s mental health records. The Horsham Clinic is a “facility” within the meaning of the Mental Health Procedures Act (MHPA). Next, Child Advocate stated at the September 20, 2018 hearing that the victim received inpatient treatment at the Horsham Clinic. Thus, the MHPA applies. None of the enumerated exceptions set forth in 50 P.S. § 7111(a) applies, and there is no question that the victim did not give written consent for the disclosure of her mental health records. The unambiguous language of Section 7111(a)(3) leads us to conclude that a patient's inpatient mental health treatment records may be used by a court only when the legal proceedings being conducted are within the framework of the MHPA, that is, involuntary and voluntary mental health commitment proceedings. We can find no language within the act itself which includes criminal proceedings within the framework of the act, nor can we find any caselaw in the Commonwealth which supports such a proposition. Accordingly, the trial court's order requiring Child Advocate to review the victim's mental health records and disclose any impeachment evidence to the trial court, and possibly to Segarra and the Commonwealth, was erroneous. Likewise, it was error for the trial court to leave the door open to a possible in camera review by the trial judge, as the MHPA prohibits the release of the victim's mental health records to anyone without her written consent. Because the MHPA protects all documents from disclosure, a detailed discussion of whether the psychiatrist/psychologist-patient privilege, codified in Section 5944 of the Judicial Code, 42 Pa.C.S. § 5944, applies to the victim's treatment at the Horsham Clinic is not necessary. We point out, however, that the psychiatrist/psychologist-patient privilege is absolute and the statute contains no exceptions for disclosure. The privilege applies not only to psychiatrists and psychologists, but to any member of a patient's treatment team. Moreover, in cases where the Section 5944 privilege has been found to apply, case law has precluded material from being subjected to even in camera review by the trial courts. Accordingly, any oral communication by the victim in private to any member of her treatment team at the Horsham Clinic and used by the team for the purpose of psychotherapeutic evaluation is privileged, as well as any reference to such a communication in Horsham Clinic's files.11 Thus, the trial court erred in ordering Child Advocate to review the victim's mental health records and disclose any impeachment evidence to the trial court and possibly to Segarra and the Commonwealth. Equally, the trial court erred when it left the door open to a possible in camera review by the trial judge, as the Section 5944 privilege is absolute and contains no exceptions for disclosure. 11To the extent the trial court determined that Section 5944 only protects communications made to a licensed psychiatrist or psychologist, this was error. The Horsham Clinic's mistake in disclosing the victim's privileged mental health records to the Commonwealth is not an implied waiver of her privilege. Segarra's right to access is dependent upon whether the information is protected by statutory privilege. Our research has not uncovered any published opinions which address whether a criminal defendant's constitutional rights of confrontation and due

80 process are violated by a denial of access to records under the MHPA, but courts of this state have examined whether a criminal defendant accused of sexual offenses is entitled to access to the alleged victim's records, and they have held repeatedly that such constitutional rights are not violated when the records are statutorily privileged.[citations omitted].

Segarra, 228 A.3d 943 (Pa. Super. 2/10/20) appeal denied, ___ Pa. ___, 237 A.3d 975 (8/17/20)

PROBABLE CAUSE

Anonymous tip

Defendant fled in his car from a traffic stop. He successfully evaded capture, and a warrant was issued for his arrest. He was also wanted for a parole violation with the original charges being related to felony firearms possession. His lengthy criminal history included charges of robbery, carrying a firearm without a license, and delivery of narcotics. 3 ½ months later, the Carlisle Police Department received an anonymous tip through “Crimewatch” that defendant was “staying at 1820 Heishman Gardens in North Middleton Township with Lanajah Hodge, and that he was driving a white Nissan SUV. That same day, the Carlisle Police Department conducted surveillance of the Heishman Gardens residence at approximately 7:30 p.m. Officers observed a dark colored Honda Civic registered to Lanajah Hodge parked in the driveway of 1820 Heishman Gardens. Ms. Hodge’s driver’s license lists the Heishman Gardens residence as her address. Carlisle Police Sergeant Joshua Bucher returned the next day at about 2:30 p.m., at which time he observed a white Nissan Rogue sitting in the driveway at 1820 Heishman Gardens. Sergeant Bucher then applied for a warrant to search 1820 Heishman Gardens for defendant. Drugs and a loaded firearm were seized during the subsequent searches of that residence. Although defendant’s purported location was based on an anonymous tip, that same day, the officers corroborated some of the information by confirming that Lanajah Hodge did indeed live at the address provided by the tipster, and that a car registered to Hodge was parked in the driveway. Less than 24 hours later, the affiant observed a white Nissan SUV — the same color and type of vehicle the tipster stated defendant was driving — parked in the driveway of 1820 Heishman Gardens. This information was sufficient for the magistrate to make a common-sense determination that defendant would be found at that address.

Carey, 249 A.3d 1217 (Pa. Super. 4/19/21) appeal pending, No. 263 MAL 2021 (filed 5/18/21)

Conduct

82 was seated in the driver's seat of his vehicle, Officer Smith announced in a casual, non- confrontational tone that he was a police officer and displayed his badge. Defendant responded, “huh?” Officer Smith again responded in a casual tone that he was a police officer. Defendant then quickly reversed his vehicle out of the parking spot and travelled at a high rate of speed away from Officer Smith and toward the exit to the parking lot. Officer Smith never brandished or reached for his firearm, which was concealed under his clothing. Officer Smith never instructed defendant to get out of his vehicle, never told him he could not leave, nor did he block his ability to exit in any way. Officer Smith did not verbally communicate to defendant that he was in custody or under arrest. At the moment when defendant quickly pulled out of the parking spot, police vehicles with lights and sirens activated entered the parking lot in response to the unrelated drug investigation. Multiple marked and unmarked police vehicles, some with lights and sirens activated, pursued defendant around the apartment complex's parking lot. Defendant did not immediately stop for the police, and a brief pursuit ensued. During the pursuit, defendant was finally forced to stop his vehicle after nearly colliding head-on with a police vehicle and was boxed in by police vehicles. Sergeant O'Neill approached defendant's vehicle and observed knotted up plastic bags with pills in them inside the vehicle. Defendant was taken into custody and placed under arrest. Police obtained a search warrant for his vehicle, and recovered approximately 235 pills later identified as oxycodone. In viewing the totality of the circumstances involving appellant's interaction with the female driver through the eyes of Officer Smith, we are persuaded that Officer Smith articulated specific observations that showed appellant's involvement in criminal activity prior to Officer Smith's initial encounter with appellant. Specifically, Officer Smith observed the exchange of suspected drugs and money in a practice common to other drug transactions he previously observed. The alleged drug transaction occurred in a high drug trafficking area, took only a short amount of time, occurred in a portion of the parking lot away from the building entrance, and involved two individuals who did not communicate to each other. Finally, the transaction involved two individuals whose automobile registration profiles fit parameters of previously known drug dealers and buyers. Therefore, Officer Smith, having reasonable suspicion that criminal activity was afoot prior to the initial encounter, lawfully engaged appellant in an investigative detention.

Brame, 239 A.3d 1119 (Pa. Super. 9/15/20) appeal denied, ___ Pa. ___, 251 A.3d 771 (3/30/21)

Probable Cause/Reasonable Suspicion: Definition

Probable cause exists when criminality is one reasonable inference; it need not be the only, or even the most likely, inference.

Evans, 443 Pa. Super. 351, 661 A.2d 881 (6/27/95) aff'd by an equally divided court, 546 Pa. 417, 685 A.2d 535 (11/21/96) Brogdon, 220 A.3d 592 (Pa. Super. 10/3/19) appeal denied, ___ Pa. ___, 226 A.3d 967 (3/9/20)

The Fourth Amendment permits an officer to initiate a brief investigative traffic stop when he has a particularized and objective basis for suspecting the particular person stopped of criminal activity. Although a mere “hunch” does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause. Because it is a less demanding standard, reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause. The standard depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Courts cannot reasonably demand scientific certainty where none exists. Rather, they must permit officers to make commonsense judgments and inferences about human behavior. An officer need not rule out the possibility of innocent conduct.

Kansas v. Glover, ___ U.S. ___, 140 S.Ct. 1183, 206 L.Ed.2d 412 (4/6/20)

RECKLESSLY ENDANGERING

Headley, 242 A.3d 940 (Pa. Super. 11/19/20) appeal denied, ___ Pa. ___, ___ A.3d ___ (5/18/21)

RESISTING ARREST

Trooper Weaver had probable cause to arrest defendant for DUI. Trooper Weaver asked Clemens to get out of the vehicle, but Clemens did not comply. Trooper Weaver provided multiple opportunities to exit, but Clemens told Trooper Weaver that he did not “have cause to pull [him] out of the vehicle.” Trooper Weaver called for assistance, and Corporal Todd Koebley arrived. Trooper Weaver again asked Clemens if he would perform field sobriety tests, and Clemens said he would not. Trooper Weaver and Corporal Koebley then gave Clemens several commands to exit the vehicle, but Clemens remained inside. Trooper Weaver stated, “We continued to interact with him and it was clear that he wasn't going to come out of the vehicle based on our verbal commands. At that point I grabbed his arm and began to try to physically remove him from the vehicle. He grabbed the steering wheel and resisted me. . . .” It took both Trooper Weaver and Corporal Koebley pulling on Clemens to get him out of the vehicle. After Trooper Weaver warned Clemens that if he did not get out, they would tase him, Clemens remained in the vehicle and Corporal Koebley tased him in the right thigh. Clemens then finally got out of the vehicle, and Trooper Weaver put Clemens’ arm behind his back. He gave commands for Clemens to put his hands behind his neck, but Clemens did not cooperate. Trooper Weaver and Corporal Koebley eventually were able to take Clemens into custody. Here, the officers had probable cause to arrest Clemens for DUI, as, among other things, he smelled of alcohol, there was an open container in his passenger seat, and he had struck a light pole. Regardless of whether the officers used the word “arrest,” it would have been clear to a reasonable person that they ordered Clemens to get out of the vehicle, and attempted to extricate him from it, in an effort to effectuate an arrest. Further, both Trooper Weaver and Corporal Koebley testified to the extreme efforts required to remove Clemens from the vehicle, including the use of a taser. The evidence was sufficient to support the Resisting Arrest conviction.

Clemens, 242 A.3d 659 (Pa. Super. 10/28/20)

RULE 600

Since the origin of the rule, this Court has applied the intuitive precept that, where a defendant voluntarily fails to appear for a required court proceeding, the resulting delay is attributable to him alone, and shall be excluded from the time chargeable to the Commonwealth. When performing the Rule 600 computation, the general rule is that, where a period of delay is caused by the defendant's willful failure to appear at a court proceeding of which he has notice, exclusion is warranted. This Court in Steltz, 522 Pa. 233, 560 A.2d 1390 (6/30/89), and in Brock, 619 Pa. 278, 61 A.3d 1015 (1/23/13), addressed the consequence of a defendant's failure to appear for a trial that was timely under Rule 600. In contrast, the instant case presents a circumstance where the trial court found a Rule 600 violation that predated Barbour's failure to appear—a violation wholly independent from and in no way caused by Barbour's

85 later absence from trial. We conclude that this distinction is significant and, indeed, dispositive. Where the Commonwealth violates Rule 600 before a defendant causes additional delay, concerns relating to the possibility that a defendant may seek to benefit from his own wrongdoing are not implicated. In this regard, we approve of the reasoning that the Superior Court applied in Commonwealth v. Colon, 87 A.3d 352 (Pa. Super. 3/7/14), to the extent that the court concluded that defense-caused delays occurring after the expiration of the Rule 600 time period were irrelevant to the prompt-trial analysis. In this case, by the time that Barbour failed to appear for trial, the dictates of Rule 600 already had been transgressed, and Barbour's right to relief had vested. The rule unambiguously provides that, when a defendant has not been brought to trial within the time period set forth therein, “at any time before trial, the defendant's attorney, or the defendant if unrepresented, may file a written motion requesting that the charges be dismissed with prejudice on the ground that this rule has been violated.” Pa.R.Crim.P. 600(D)(1) (emphasis added).

Barbour, 647 Pa. 394, 189 A.3d 944 (7/18/18)

At issue in this matter is a 24-day period of delay caused by a continuance of Moore's preliminary hearing, ordered sua sponte by the magisterial district justice (“MDJ”). The Commonwealth argues, and the trial court found, that this period constituted excusable delay, as it was beyond the Commonwealth's control. Moore, however, argues that the inquiry must not end with the fact that the delay was ostensibly attributable to the court. Rather, Moore asserts the Commonwealth must also demonstrate that it exercised due diligence in bringing Moore to trial. Moore claims that the Commonwealth failed to exercise the necessary due diligence and that his case should have, accordingly, been dismissed. Here, we can find no reason to disturb the trial court's finding that the Commonwealth acted with sufficient due diligence in bringing Moore to trial and, thus, the sua sponte continuance by the MDJ constituted excusable delay. As was testified to at the Rule 600 hearing, the Commonwealth was faced with significant uncertainty throughout much of the pendency of this matter, which was exacerbated by the every- other-month availability of the court for jury trials in York County. Early on, Moore was unavailable for pre-trial proceedings due to the fact that he was in federal custody while the federal government considered bringing charges against him. The Commonwealth presented testimony that both the assistant district attorney and Detective Pitts were in regular contact with federal prosecutors regarding the status of that matter. In addition, Teresa Jauregui, Esquire, the prosecutor who was originally handling the case, was responsible for trying numerous cases with more pressing Rule 600 issues that took priority over Moore's case during the November, January and May trial terms. When it became clear that Moore's case would need to be tried during the July term, Attorney Jauregui arranged for current counsel to take over due to her caseload. Moreover, the Commonwealth's witnesses in this matter, Detective Pitts, the affiant, and Jeff Ziegler, National Guard Phone Analyst, both had issues with unavailability. Beginning in January 2018, Detective Pitts had substantial periods of

86 unavailability due to both personal and professional circumstances, as well as military reserve obligations. Specifically, Detective Pitts' husband, also a police officer, was shot in the line of duty on January 18, 2018, resulting in her frequent absence from work to care for him. Detective Pitts was also scheduled for military deployment in May, which prevented Attorney Jauregui from listing the case on the May trial calendar. By the time Detective Pitts learned in early May that she would not be deployed, it was too late to list the case for that month. Detective Pitts also attended police department trainings in May. In light of all the foregoing, we can discern no abuse of discretion in the trial court's finding that the Commonwealth exercised due diligence throughout the pendency of this matter. The testimony demonstrated that both Attorney Jauregui and Detective Pitts made diligent efforts to maintain regular contact with each other and to monitor and address any issues potentially impacting Moore's speedy trial rights under Rule 600.

Moore, 214 A.3d 244 (Pa. Super. 7/1/19) appeal denied, ___ Pa. ___, 224 A.3d 360 (2/4/20)

In October 2008, defendant had not yet been convicted or sentenced in Georgia. Thus, the Bucks County Sheriff’s Office (BCSO) could only have been aware that: (1) defendant's extradition would have to wait until the adjudication of his pending charges in Georgia; and (2) if defendant was convicted, BCSO would have to file an additional detainer with the Georgia Department of Corrections (GA DOC) assuming defendant received a state sentence of incarceration. Yet, BCSO took no action and made no further inquiries concerning defendant for more than four years. For fully two of those years, defendant had already been transferred to the custody of GA DOC. BCSO finally followed up in September 2012, and was again informed of the necessity of lodging a detainer with GA DOC. BCSO may have faxed a detainer, but it obtained no response or acknowledgement that it had been received. Critically, GA DOC never advised Bucks County that defendant would be unavailable for extradition to Pennsylvania while he was serving his sentence until 2018. There is simply no indication in the certified record that GA DOC was unwilling or unable to extradite defendant to Pennsylvania for trial prior to that time. The certified record confirms two troubling chronological gaps in defendant's case that evince a lack of due diligence by the Commonwealth: (1) the two-year period of delay from defendant beginning to serve his sentence in GA DOC's custody until BCSO attempted to submit a detainer to GA DOC; and (2) the six-year period delay from BCSO's submission of an unanswered detainer to GA DOC in 2012 until BCSO sent another communication concerning his extradition in 2018. BCSO waited approximately two years after defendant began serving his sentence in GA DOC custody before even attempting to lodge a detainer with the proper authorities, or initiate extradition proceedings.11 Even after BCSO faxed a detainer to GA DOC in September 2012, it received no response or confirmation. Rather than following up in a timely fashion, BCSO elected to wait six additional years before inquiring about the status of defendant's detainer and extradition. This period of time further evinces a lack of due diligence because BCSO did not receive any communications from Georgia officials confirming that a detainer had been lodged and the extradition process had been

87 successfully initiated. While we recognize that the Commonwealth cannot force another jurisdiction to act, inaction on the Commonwealth's part, without some reliance on the assurances of the other state, does not constitute due diligence. 11We recognize that the Richmond County Sheriff's Office represented that it would inform BCSO if defendant was convicted and sentenced. Pennsylvania law enforcement officials are entitled to rely upon such representations in the context of Rule 600. However, such reliance must still be reasonable in scope and duration. Even with valid assurances from the Richmond County Sheriff's Office, four years of inaction with no new information regarding defendant's case (i.e., from October 2008 until September 2012) evinces a lack of due diligence by BCSO. Even in the absence of any obvious impediments to defendant's extradition, BCSO failed to take any further action on its detainer and extradition request with GA DOC for nearly six years.

Morgan, 239 A.3d 1132 (Pa. Super. 9/17/20)

A trial court may invoke “judicial delay” in order to deny a defendant's Rule 600 motion to dismiss only after the Commonwealth has demonstrated that it complied with the due diligence requirements of Rule 600 at all relevant periods throughout the life of the case. Justice Wecht’s concurring opinion from Mills, 640 Pa. 118, 162 A.3d 323 (6/20/17), is adopted as the law of this Commonwealth. Requiring the Commonwealth to demonstrate that it acted with due diligence before a trial court excludes time from its Rule 600 time computation on the basis of “judicial delay” comports with the language of Rule 600(C)(1) and its commentary, the purpose behind the rule, and our prior jurisprudence interpreting Rule 600 and its predecessor. Accordingly, we hold that, in ruling on a defendant's Rule 600 motion to dismiss, a trial court must first determine whether the Commonwealth has met its obligation to act with due diligence throughout the life of the case; if the Commonwealth meets its burden of proving due diligence, only then may the trial court rely upon its own congested calendar or other scheduling problems as justification for denying the defendant's motion. Otherwise, the due diligence component of Rule 600 “would have little, if any, meaningful import.” Mills, 162 A.3d at 327 (Wecht, J., concurring).15 15The hypothetical scenario posited by the dissent — in which a 100- day period of delay attributable to the judiciary remains excludable if the Commonwealth was not prepared to proceed to trial on day one of the judicial delay — is misleading. Specifically, the dissent overlooks the fact that, under Rule 600, the Commonwealth has 365 days from the initiation of a criminal case in which to bring a defendant to trial. We do not suggest that the Commonwealth must be prepared to proceed to trial the moment that a criminal case is initiated; rather, the Commonwealth must utilize that year to prepare itself for trial, as is required under Rule 600(A). We have not altered that timeline, but, instead, seek merely to ensure that the

Commonwealth does not summarily rely upon the judiciary as an excuse to forego preparation for pending criminal cases, consistent with the language and purpose of Rule 600. Indeed, under the dissent's approach, were the judiciary unable to proceed with a trial within the first year after a case was initiated, the Commonwealth could do nothing during that delay, and then take another year to prepare its case. Our review of the record reflects that: the Commonwealth filed a complaint against defendant on January 22, 2015; the trial court initially directed the Commonwealth to complete its disclosure of discovery by June 22, 2015, the Commonwealth was not prepared to fulfill its discovery obligations, the Commonwealth requested a continuance on July 28, 2015 related to its discovery obligations, and the trial court granted a continuance until July 30, 2015, and the trial court granted the Commonwealth an additional continuance on August 21, 2015, noting that “IGJ [investigative grand jury] discovery [needed] to be [provided].” Further, the record demonstrates that on May 23 and 24, 2016, “[a]dditional [d]iscovery [was] outstanding,” while the Commonwealth disclosed “[a]udio discovery . . . at the bar of the [c]ourt” on May 25, 2016. Finally, the record establishes that on November 28, 2016, the morning on which defendant's trial was to begin, the Commonwealth presented a discovery packet, which included 15 previously undisclosed exhibits, to the defense, prompting defendant to lodge a second Rule 600 motion to dismiss. The record thoroughly establishes that the Commonwealth neglected to fulfill its discovery obligations, a failure which constitutes a lack of due diligence.

Harth, ___ Pa. ___, 252 A.3d 600 (6/22/21)

SEARCH AND SEIZURE Breath/Blood

The notes of testimony from Eid's first trial, which were introduced at his subsequent prosecution, confirm that he refused both blood and breath testing roughly half a dozen times between 1:40 a.m. and 2:03 a.m. on February 26, 2015, shortly after being transferred to [the Accident Investigation Division]. As the late Officer Harrison recounted, upon entering the room where the officer waited to process him, Eid — unprompted — initially refused all testing. Eid refused again after Officer Harrison read him the O'Connell warnings and 75-439 Report for Chemical Testing. He refused once more after being read the DL-26 form, on which the words “breath” and “blood” were handwritten on a blank line next to a prompt indicating the specific tests requested by the officer. And then he refused twice at the nurses’ station. Although Officer Harrison indicated that he offered Eid a blood test after noticing marijuana debris in Eid's mouth, significantly — and fatal to Eid's presumption — the signed DL-26 form corroborates Officer Harrison's testimony that Eid also specifically refused breath testing. Eid thus was provided with an opportunity to make a knowing and conscious choice between providing voluntary consent to a chemical test — pertinently, of his breath — or accepting the consequences that will follow from the refusal to do so.

That evidence was sufficient to sustain Eid's conviction pursuant to 75 Pa.C.S. § 1543(b)(1.1)(i) for refusing a breath test. To the extent that the Superior Court affirmed Eid's conviction because he refused blood testing, that court erred in overlooking Birchfield’s prohibitions.

Eid, ___ Pa. ___, 249 A.3d 1030 (4/29/21) Link to: Saylor, J. concurring and dissenting

Consent

Police were searching for defendant who was a suspect in a shooting. The officers arrived at his residence. Three individuals were outside the residence at that time directly in front of the residence, on the front stoop or sidewalk. Other police were already on the scene and stated that these three people were the only people, to their knowledge, inside the residence. Two of the individuals were younger white females and the third was Tyree King, “a younger black male [who] indicated he was house-sitting for [defendant] and that he was watching his dog as well. He gave the impression [defendant] was out of town. Tyree King consented to a search of the residence. A .40 caliber handgun found in the home. The police acted reasonably in their belief that King controlled access to the premises and had apparent authority to consent to search.

Rosario, 248 A.3d 599 (Pa. Super. 3/23/21) appeal pending, No. 137 WAL 2021 (filed 4/22/21)

Exigent circumstances

During an argument with his wife at their Rhode Island home, Edward Caniglia retrieved a handgun from the bedroom, put it on the dining room table, and asked his wife to “shoot [him] now and get it over with.” She declined, and instead left to spend the night at a hotel. The next morning, when Caniglia’s wife discovered that she could not reach him by telephone, she called the police to request a welfare check. The police accompanied Caniglia’s wife to the home, where they encountered Caniglia on the porch. Caniglia spoke with the police and confirmed his wife’s account of the argument, but denied that he was suicidal. The police, however, thought that Caniglia posed a risk to himself or others. They called an ambulance, and Caniglia agreed to go to the hospital for a psychiatric evaluation — but only after the police allegedly promised not to confiscate his firearms. Once the ambulance had taken Caniglia away, however, the police seized the weapons. Guided by Caniglia’s wife — whom they allegedly misinformed about his wishes —the police entered the home and took two handguns. Caniglia sued, claiming that the police violated the Fourth Amendment when they entered his home and seized him and his firearms without a warrant. The District Court granted summary judgment to the police, and the First Circuit affirmed solely on the

90 ground that the decision to remove Caniglia and his firearms from the premises fell within a “community caretaking exception” to the warrant requirement. The First Circuit’s “community caretaking” rule, however, goes beyond anything this Court has recognized. The decision below assumed that the police lacked a warrant or consent, and it expressly disclaimed the possibility that they were reacting to a crime. The court also declined to consider whether any recognized exigent circumstances were present because the police had forfeited the point. Nor did it find that the police’ actions were akin to what a private citizen might have had authority to do if Caniglia’s wife had approached a neighbor for assistance instead of the police. Neither the holding nor logic of Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (6/21/73), justified that approach. What is reasonable for vehicles is different from what is reasonable for homes. Cady acknowledged as much, and this Court has repeatedly declined to expand the scope of exceptions to the warrant requirement to permit warrantless entry into the home. ROBERTS, C.J. CONCURRING, JOINED BY BREYER, J.: This Court [has] unanimously recognized that the role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties. A warrant to enter a home is not required, we explained, when there is a need to assist persons who are seriously injured or threatened with such injury. Nothing in today’s opinion is to the contrary, and I join it on that basis. ALITO, J. CONCURRING: The Court holds — and I entirely agree — that there is no special Fourth Amendment rule for a broad category of cases involving “community caretaking.” While there is no overarching “community caretaking” doctrine, it does not follow that all searches and seizures conducted for non-law-enforcement purposes must be analyzed under precisely the same Fourth Amendment rules developed in criminal cases. Those rules may or may not be appropriate for use in various non-criminal-law- enforcement contexts. We do not decide that issue today. This case falls within one important category of cases that could be viewed as involving community caretaking: conducting a search or seizure for the purpose of preventing a person from committing suicide. We have addressed the standards required by due process for involuntary commitment to a mental treatment facility, but we have not addressed Fourth Amendment restrictions on seizures like the one that we must assume occurred here, i.e., a short-term seizure conducted for the purpose of ascertaining whether a person presents an imminent risk of suicide. Every State has laws allowing emergency seizures for psychiatric treatment, observation, or stabilization, but these laws vary in many respects, including the categories of persons who may request the emergency action, the reasons that can justify the action, the necessity of a judicial proceeding, and the nature of the proceeding. Caniglia asked us to render a decision that could call features of these laws into question. The Court appropriately refrains from doing so. This case also implicates another body of law that Caniglia glossed over: the so- called “red flag” laws that some states are now enacting. These laws enable the police to seize guns pursuant to a court order to prevent their use for suicide or the infliction of harm on innocent persons. They typically specify the standard that must be met and the procedures that must be followed before firearms may be seized. Provisions of red flag

91 laws may be challenged under the Fourth Amendment, and those cases may come before us. Our decision today does not address those issues. One additional category of cases should be noted: those involving warrantless, nonconsensual searches of a home for the purpose of ascertaining whether a resident is in urgent need of medical attention and cannot summon help. THE CHIEF JUSTICE posed a question that highlighted this problem. He imagined a situation in which neighbors of an elderly woman call the police and express concern because the woman had agreed to come over for dinner at 6 p.m., but by 8 p.m., had not appeared or called even though she was never late for anything. The woman had not been seen leaving her home, and she was not answering the phone. Nor could the neighbors reach her relatives by phone. [I]n THE CHIEF JUSTICE’s imaginary case, if the elderly woman was seriously hurt or sick and the police heeded Caniglia’s suggestion about what the Fourth Amendment demands, there is a fair chance she would not be found alive. This imaginary woman may have regarded her house as her castle, but it is doubtful that she would have wanted it to be the place where she died alone and in agony. The three categories of cases discussed above are simply illustrative. Searches and seizures conducted for other non-law-enforcement purposes may arise and may present their own Fourth Amendment issues. Today’s decision does not settle those questions. In sum, the Court properly rejects the broad “community caretaking” theory on which the decision below was based. The Court’s decision goes no further, and on that understanding, I join the opinion in full. KAVANAUGH, J. CONCURRING: This case does not require us to explore all the contours of the exigent circumstances doctrine as applied to emergency-aid situations because the officers here disclaimed reliance on that doctrine. But to avoid any confusion going forward, I think it important to briefly describe how the doctrine applies to some heartland emergency-aid situations. The Court’s exigency precedents, as I read them, permit warrantless entries when police officers have an objectively reasonable basis to believe that there is a current, ongoing crisis for which it is reasonable to act now. The officers do not need to show that the harm has already occurred or is mere moments away, because knowing that will often be difficult if not impossible in cases involving, for example, a person who is currently suicidal or an elderly person who has been out of contact and may have fallen. If someone is at risk of serious harm and it is reasonable for officers to intervene now, that is enough for the officers to enter. Suppose that a woman calls a healthcare hotline or 911 and says that she is contemplating suicide, that she has firearms in her home, and that she might as well die. The operator alerts the police, and two officers respond by driving to the woman’s home. They knock on the door but do not receive a response. May the officers enter the home? Of course. Suppose that an elderly man is uncharacteristically absent from Sunday church services and repeatedly fails to answer his phone throughout the day and night. A concerned relative calls the police and asks the officers to perform a wellness check. Two officers drive to the man’s home. They knock but receive no response. May the officers enter the home? Of course.

To be sure, courts, police departments, and police officers alike must take care that officers’ actions in those kinds of cases are reasonable under the circumstances. But both of those examples and others as well, such as cases involving unattended young children inside a home, illustrate the kinds of warrantless entries that are perfectly constitutional under the exigent circumstances doctrine, in my view. With those observations, I join the Court’s opinion in full.

Caniglia v. Strom, ___ U.S. ___, 141 S.Ct. 1596, 209 L.Ed.2d 604 (5/17/21)

Around 4:00 p.m. on January 24, 2017, Oil City Police Department Lieutenant Jonathan Love was approached by Jake Poindexter, a Protective, Intake, and Crisis Unit (“PICS”) worker in Venango County, about accompanying him as a safety precaution in conducting a mental welfare check of an individual. That individual was later identified as defendant in the instant matter, who was located at 19 Colbert Avenue in Oil City, Pennsylvania. Mr. Poindexter shared with Lieutenant Love a written report that documented mental health concerns about defendant. Specifically, the report stated that defendant believed he was “Jesus Christ,” “Thor,” and “Jim Carrey.” Lieutenant Love testified at the November 22, 2017 hearing that the PICS Unit has made countless requests such as this, which they refer to as “standbys,” in which police officers go with mental health workers to ensure the scene is safe. Lieutenant Love, along with Officer Regina Deloe, accompanied Mr. Poindexter to the 19 Colbert Avenue address. Once there, Lieutenant Love knocked on the front door and defendant answered. Lieutenant Love, having previously interacted with defendant in an unrelated matter, attempted to introduce Mr. Poindexter to defendant. Both Lieutenant Love and Officer Deloe testified that defendant seemed friendly at first, but his demeanor quickly changed. While staring at Mr. Poindexter, defendant stated that Mr. Poindexter's “eyes were fading away and turning black.” He then turned to Lieutenant Love and told him to “take off his peashooter,” that guns kill people, and that the gun “needs to return to earth from which it came and return to dust.” defendant then immediately tried to shut the door. However, Lieutenant Love positioned his foot in between the door and the frame to prevent its closure. Hearing these statements, Lieutenant Love testified that, coupled with the allegations he read in the mental health report given to him by Mr. Poindexter, he was concerned that there was a mental health issue with defendant and that they definitely needed to investigate further. After putting his foot in the doorway, Lieutenant Love proceeded to open the door and stepped inside the living room of the residence. Once there, he attempted to have defendant take a seat in a chair so that he could have a conversation with Mr. Poindexter. While requesting this of defendant, Lieutenant Love testified that defendant was chanting incoherent chatter and he was blinking his eyes rapidly. Then, unprovoked, defendant struck Lieutenant Love in the chest with his left hand. Lieutenant Love then proceeded in attempting to physically put defendant in the chair, whereupon a struggle ensued. Lieutenant Love ended up wrestling with defendant for several minutes. During the course of the struggle, Officer Deloe used her radio to request another officer to respond. defendant was subsequently tasered twice and pepper sprayed once.

The facts known to Lieutenant Love when he entered defendant's home without a warrant were not sufficient for the lieutenant to reasonably believe that defendant required immediate assistance. Certainly, defendant's statements in the mental health report, and to the officers on the porch of his residence, were odd. However, none of his remarks were threatening, combative, or violent, and Officer Deloe testified that defendant made no threatening gestures during the 20 to 30 second interaction the officers had with him on his porch. Furthermore, defendant's statements did not indicate an intent to hurt himself or anyone else, and there was no indication that he had a weapon or that anyone else was inside his residence. Moreover, both officers testified that defendant was dressed, he did not look hurt or malnourished, and nothing indicated that he was suicidal or inclined to harm himself. Nothing in defendant's demeanor, statements, outward appearance, or condition of his residence indicated that he needed police assistance, or that he posed a danger to himself or others. Thus, Lieutenant Love's entering his home without a warrant to further investigate whether assistance was required was not lawful. We also agree with defendant that Lieutenant Love did not validly enter his home to involuntarily commit him pursuant to the Mental Health Procedures Act (MHPA). Under 50 P.S. § 7302(a)(2), a person may be seized without a warrant and taken to a facility for an emergency examination if an officer personally observes “conduct of a person constituting reasonable grounds to believe that he is severely mentally disabled and in need of immediate treatment . . . .” Defendant's statements did not reasonably indicate that he had inflicted or attempted to inflict harm upon himself or anyone else, or that he posed a suicide risk. Additionally, there were no reports that defendant possessed a gun. We conclude that Lieutenant Love's and Officer Deloe's warrantless entry into defendant's home was not justified under either the public servant exception of the community caretaking doctrine, or the involuntary commitment procedures of the MHPA.

Schneider, 239 A.3d 161 (Pa. Super. 9/9/20)

Knock and announce

Gardens. Sergeant Bucher then applied for a warrant to search 1820 Heishman Gardens for defendant. At approximately 6:20 a.m. the next morning, the Cumberland County Special Response Team executed a search warrant at 1820 Heishman Gardens. Hampden Township Police Officer Jason Wayne Julseth was the team leader for the Special Response Team. Officer Julseth testified that the team was briefed that it was going to be a high risk search warrant involving possible drugs and a gun. He explained that he had members of the team stationed at the front and back of the residence, and a “full coverage around the sides.” Officer Julseth testified the team could not see inside the residence because the windows were draped. Therefore, they did a “knock-and-announce” where they banged on the door, “waited about 10 seconds, and then . . . manually breached the door open[.]” Officer Julseth stated the team did not “make entry” at that time, but rather “h[e]ld the threshold.” He explained that about ten seconds later, defendant “appeared out of the back” and the officers “called him out.” Officer Julseth stated defendant was not handcuffed until he was “outside the threshold of his residence.” The team then “called out” Hodge as well before entering the residence to check for “other persons.” In the absence of exigent circumstances, the Pennsylvania Supreme Court has held that a five to ten-second delay is not a reasonable time for an occupant to respond to police officers’ knocking and announcing their purpose. However, Officer Julseth testified at the suppression hearing that the windows to the residence were “draped” such that the officers “couldn’t see inside anywhere.” He explained they did a “knock-and announce” by banging on the door, and waiting “about 10 seconds” before “manually breach[ing] the door open” so that they had “a window . . . to look inside.” Officer Julseth emphasized that the officers remained “outside the threshold” of the residence, and “call[ed]-out” defendant when he appeared. He explained they waited ten seconds “based on the fact that [they] had no vantage point to look inside.” While the ten second delay was brief, we must evaluate the officers’ actions based upon the facts and circumstances they faced at the time they made their decisions. Although the previous incident involved defendant fleeing and eluding police officers, the probable cause affidavit for the body warrant also stated defendant was “wanted by the State Board of Probation and Parole for a parole violation with the original charges being related to firearms possession (felony).” Further, it indicated defendant had a “lengthy criminal history [which] include[d] charges of robbery, resisting arrest, fleeing and eluding, firearms not to be carried without a license and delivery of a controlled substance.” Officer Julseth testified that his team was “briefed that it was going to be a high risk search warrant involving possible drugs and a gun.” Thus, based on all the information available to the officers at the time of the execution of the warrant, we agree with the conclusion of the suppression court that the officers “waited a reasonable period before the door was broken down.”

Carey, 249 A.3d 1217 (Pa. Super. 4/19/21) appeal pending, No. 263 MAL 2021 (filed 5/18/21)

On April 5, 2016, at approximately 9:10 pm, members of the Dunmore Police Department, Lackawanna County District Attorney's Office Detectives and members of the Lackawanna County Drug Task Force executed a search warrant at the Econo Lodge 1175 Kane Street Scranton PA (Room # 229). Detective Corey Condrad testified that at 7:00 pm he and his colleagues met with a confidential informant who identified Arthur Bellamy as the person selling heroin from Room 229 of the Econo Lodge. Pursuant to Wiretap Act procedures, the confidential informant placed an intercepted and recorded phone call to defendant who agreed to meet with the informant at Room 229 to sell a quantity of heroin. The informant made a purchase of 10 bags of heroin from inside Room 229. The investigators then sought and obtained a search warrant for Room 229. Detective Condrad testified that as they approached Room 229, they observed a white male, later identified as John Bell, exit Room 229. Mr. Bell was detained. The officers then made entry into that room where they encountered defendant and a woman inside the room near the bed. Detective Condrad clarified that, as they were approaching and the door opened, they “could see there was [(sic)] additional occupants beside Mr. Bell inside the room.” Detective Condrad testified that the occupants inside were able to see him and he was wearing a tactical police vest, i.e., a “bullet proof vest that says Police on the front of it.” Detective Condrad further testified that when they entered the room, the police officers said “search warrant.” They, however, did not knock on the door, because it opened. Detective Condrad stated that “[o]nce defendant and Mr. Bell observed us, we were in fear that they might destroy evidence or for officer safety that they might have a weapon, therefore, we entered the room without knocking.” On cross-examination, Detective Condrad clarified that when Mr. Bell exited Room 229, he did not close the door and that the door was open. He explained that Mr. Bell was detained and Mirandized in the “doorway portion” of the room. Detective Condrad stated that Mr. Bell “was brought out of the room and then to make way for the detectives to enter the room.” According to Detective Condrad, defendant and the woman observed the police taking Mr. Bell and putting him in handcuffs. When asked how much was the door open, Detective Condrad replied “[e]nough for me to see into the room.” Detective John Munley recalled that “[a]s [Mr. Bell] was exiting the room, we were entering. It was happening simultaneously. We were approaching the room as he exited.” Explaining the reason for the officers’ failure to knock, Detective Munley stated: Well, here's what happened. Again, we were about to go up, knock on the door, announce, but as we were approaching [Mr. Bell] exited. He saw us. We were right next to the door, so the occupants in the room also saw us. We yelled, “Police. Get on the ground.” And we took them into custody along with Mr. Bell. Detective Munley recalled that Mr. Bell was not taken into custody and Mirandized prior to their entry into Room 229, because “[w]e wouldn't have had time for that.” He explained that “[i]t happened so fast. He's coming out of the room. He's grabbed, taken into custody as others enter.” Detective Harold Zech testified, “[B]eing that the door was open, we could clearly see persons inside. We announced our presence and entered the room. We were compromised at that point.” Detective Zech recalled that, because he was one of the first

96 officers approaching the door, he personally announced their presence. When asked whether he indicated to any occupants his purpose for being there, Detective Zech replied that “[i]t was pretty obvious after they were placed in handcuffs and they were notified that this was a search warrant.” He testified that he did not observe any attempts by the occupants of Room 229 to destroy evidence. Defendant testified. Describing what happened that night, he stated: As Mr. Bell was leaving, he was opening the door. And when he was opening the door, the officers was [(sic)] waiting outside the door. When they seen [sic] he was opening the door they busted in the door. They yelled, “Police”, and they ran straight to me. They took Mr. Bell. They ran straight to me, took me down, and put me in cuffs. Defendant testified that the police did not give him any type of opportunity to surrender peacefully. He further testified that the police did not knock and announce their presence. “As [Bell is] opening the door they were squatted [sic] by the door. And that's when they seen [sic] him opening the door they seen me, they ran in. They bust right through the door and came in.” Pa.R.Crim.P. 207 requires that police officers announce their identity, purpose and authority and then wait a reasonable amount of time for the occupants to respond prior to entering any private premises. This requirement, however, will be relaxed only in the presence of exigent circumstances. Our Supreme Court has recognized only four exigent circumstances: 1. the occupants remain silent after repeated knocking and announcing; 2. the police are virtually certain that the occupants of the premises already know their purpose; 3. the police have reason to believe that an announcement prior to entry would imperil their safety; [or13] 4. the police have reason to believe that evidence is about to be destroyed.

13Even though the exigencies are enumerated with the conjunctive “and,” courts have held that “any one of the instances justifies noncompliance with the knock and announce rule. To invoke an exception, police must possess only “a reasonable suspicion that one of these grounds is present,” [Commonwealth v. Sanchez, 589 Pa. 43, 63, 907 A.2d 477, 489 (9/27/06); Commonwealth v. Kane, 940 A.2d 483, 489 (Pa. Super. 12/31/07), appeal denied, 597 Pa. 713, 951 A.2d 1161 (2008), and “this showing is not high.” Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 1422, 137 L.Ed.2d 615 (4/28/97).] The Commonwealth established an exception to the knock and announce rule. Under the totality of the circumstances of this case, the Commonwealth demonstrated that the officers possessed reasonable suspicion to believe that knock and announce would be futile. The officers were virtually certain that defendant already knew their purpose when he observed them outside of Room 229.14 As the trial court found, the officers executed the search warrant shortly after the informant engaged in a controlled buy of heroin from defendant, and defendant obviously knew he was in possession of a large quantity of illegal drugs. When the officers were approaching Room 229, they

97 encountered Mr. Bell who was exiting that room. The trial court found that the officers were not given the chance to knock because of Mr. Bell's opening the door and exiting the room. Thus, as Mr. Bell was exiting the room, the door to Room 229 was sufficiently ajar for defendant to observe the officers, who were attired in tactical vests displaying the word “police,” squatting outside the room. Defendant further observed the officers detain Mr. Bell, announce their presence by shouting police, and enter the room. Again, given the circumstances of this case, we cannot disagree with the trial court's conclusion that the officers were virtually certain that defendant already knew of the officers’ purpose when he observed them outside of Room 229. 14The Commonwealth correctly points out that the second exigency to justify the noncompliance with the knock and announce rule requires that the police and not defendant be virtually certain that defendant already knew the purpose of the police presence.

Bellamy, 252 A.3d 656 (Pa. Super. 5/14/21)

Plain view, plain smell

ISSUE TO BE DECIDED:

Trooper Edward Prentice approached the vehicle on the driver’s side. Upon approach, Trooper Prentice could smell the odor of both burnt and raw marijuana through the open window of the vehicle.10 10[Factual finding by suppression court:] Trooper Prentice testified that he could smell the odor of raw and burnt marijuana through the open window when he was at the rear of the vehicle. This [c]ourt takes issue with this testimony of Trooper Prentice and finds it not to be credible. Indeed, it is only reasonable to conclude that one (1) odor would trump the other odor, and that Trooper Prentice was not able to detect both raw and burnt marijuana. Also, this [c]ourt notes that the amount of raw marijuana located in the vehicle in a sealed Ziploc bag was only .79 grams. It is unfathomable to this [c]ourt that Trooper Prentice was able to detect the odor of both raw and burnt marijuana. Defendant presented Trooper Prentice with a medical marijuana identification card that allowed him to possess and ingest medical marijuana pursuant to this license. Trooper Prentice admitted that while he knew that green leafy marijuana was legal for medical purposes, he was not familiar with how a person ingests green leafy medical marijuana. Also, Trooper Prentice was under the misconception that medical marijuana, when ingested through a vaping pen, has no odor. Trooper Heimbach and Trooper Prentice then conducted a probable cause search of the vehicle based on the odor of marijuana that they detected therein. The search of the vehicle yielded marijuana “shake” [residue] throughout the cabin area, as well as a sealed Ziploc plastic bag containing marijuana between the front passenger seat and the center console. The marijuana weighed .79 grams. The Ziploc plastic bag did not have

98 any markings or barcodes on it that would be indicative of coming from a medical marijuana dispensary. Trooper Prentice indicated that the odor of burnt marijuana got stronger in the area of the center console of the vehicle. A handgun was seized from under the driver’s seat. Dr. David Gordon testified as an expert witness on behalf of defendant. Dr. Gordon testified that (1) there is no distinguishable physical difference between the green leafy medical marijuana and regular marijuana purchased on the streets, and (2) there is no difference in odor arising from the preparation of medical marijuana when utilizing a vaping pen and the odor of smoking regular marijuana from an unlawful source. The suppression court also made a factual finding that more than 143,000 patients in Pennsylvania may legally possess medical marijuana. There is no preexisting, per se rule that the odor of marijuana is always sufficient to establish probable cause to believe a crime is being committed. Rather, the existing rule, properly stated, is that the odor of marijuana may alone be sufficient to establish probable cause to search in particular factual contexts. In practical terms, historically, the circumstances wherein the odor of marijuana would not alone be sufficient to establish probable cause were necessarily rare or even nonexistent when marijuana was, in all or virtually all circumstances, illegal to possess. The plain smell doctrine is a specific application of the totality-of-the-circumstances test for probable cause, crafted in light of the previously universal fact of marijuana’s illegality and its distinctive odor. The Medical Marijuana Act [MMA] has clearly altered the underlying factual context in which that probable cause test applies. A substantial number of Pennsylvania citizens may now possess and consume marijuana legally pursuant to the MMA.5 Previously, every instance in which marijuana was detected by smell indicated the commission of a crime. Soon, hundreds of thousands of Pennsylvanians will become potential lawful sources of that same odor. Thus, the strength of the inference of illegality stemming from the odor of marijuana has necessarily been diminished by the MMA in Pennsylvania. 5As noted by Amici Curiae, nearly 163,000 Pennsylvania have active medical marijuana cards in Pennsylvania, and some 70,000 more are pending approval. The Commonwealth does not dispute these statistics. Contrary to the Commonwealth’s claim that a per se, plain-smell rule exists, the Batista, 219 A.3d 1199 (Pa. Super. 9/27/19), Court did not apply such a rule, instead characterizing the prior precedents as establishing the rule that the odor of marijuana may contribute to a finding of probable cause. The Court considered whether the odor of marijuana, in conjunction with other circumstances, contributed to a finding of probable cause, and concluded that it did — a wholly unnecessary task if the odor of marijuana was alone sufficient to establish probable cause to search Batista’s home. The additional circumstances considered were both specific to the case and universal; specific in that the odor of marijuana, and its location, had directly corroborated a tip that marijuana was being illegally grown there, and universal in the sense that the court deliberated on the likelihood that the detected marijuana might have complied in some sense with the MMA. Because the odor corroborated the tip, in addition to the fact that it was extremely unlikely that Batista had been granted one of a handful of licenses

99 to grow marijuana under the MMA, the Batista court concluded that the search warrant was supported by probable cause to believe that the marijuana detected was illegal. Here, there was no tip suggesting that defendant or the other passengers in the vehicle were illegally using marijuana, and defendant presented the officers with his MMA card prior to the search at issue. Moreover, while licenses to grow marijuana under the MMA are extremely limited — on the order a few dozen statewide — hundreds of thousands of Pennsylvania citizens will soon legally possess and consume marijuana pursuant to the MMA. Thus, the likelihood that police will encounter the lawful possession and use of marijuana through its odor pursuant to the MMA is exponentially greater than the likelihood that they will discover a lawful grow house, and no facts known to police before the search was conducted supported the belief that marijuana was being manufactured or sold in or from defendant’s vehicle. Thus, Batista does not control here. Lawful users of medical marijuana do not surrender their 4th Amendment rights merely because other citizens will continue to possess contraband marijuana in contravention of the law. The MMA has altered the fact of marijuana’s previously universal illegality, and probable cause is a fact-driven standard not readily, or even usefully, reduced to a neat set of legal rules. Thus, we conclude that the trial court did not err in merely considering the passage of the MMA as a relevant fact in its probable cause analysis. We cannot sustain the trial court’s conclusion, based on Hicks, 652 Pa. 353, 208 A.3d 916 (5/31/19), that because “marijuana has been legalized in Pennsylvania for medical purposes, the plain smell of burnt or raw marijuana is no longer indicative of an illegal or criminal act.” The odor of marijuana may still be indicative of an illegal or criminal act, because the possession of marijuana remains generally illegal. This is especially true when other circumstances suggest that the detected marijuana cannot be in compliance with the MMA, such as was the case in Batista. However, it remains a fact that police cannot distinguish between contraband marijuana and medical marijuana legally consumed by a substantial number of Pennsylvanians based on odor alone10, just as police cannot determine from a person’s possession of a concealed firearm that he or she is unlicensed to carry it concealed. 10The Commonwealth contests this point, arguing that the smell of burnt marijuana indicates that the substance had been smoked, which is illegal under the MMA. However, the trial court credited the expert witness’s testimony that vaporizing medical marijuana, which is a legal method of consumption under the MMA, produces an identical odor to burning marijuana. Here, many people are licensed to consume marijuana under the MMA, and violate no law by doing so. The odor of marijuana alone, absent any other circumstances, cannot provide individualized suspicion of criminal activity when hundreds of thousands of Pennsylvanians can lawfully produce that odor. What it does provide to police is a general, probabilistic suspicion of criminal activity based on the fact that most citizens cannot legally consume marijuana. Thus, it is a factor that can contribute to a finding of probable cause, consistent with prior precedent discussed above, assuming some other circumstances supply more individualized suspicion that the activity is criminal. This does not imply a change in the probable cause test, because, previously, the possession of marijuana was universally illegal. That universal factual circumstance established

100 particularized suspicion of criminal activity, because every instance of possession of marijuana was previously a crime. However, here, the trial court afforded the odor of marijuana no weight in its determination that police lacked probable cause to search defendant’s vehicle. That extreme view is not justified by the Hicks decision. The general illegality of marijuana cannot simply be ignored merely because it is lawfully used in limited circumstances under the MMA and, thus, we must reject the trial court’s conclusion that the odor of marijuana provides no indication of criminal activity. At the same time, those who act in compliance with the MMA should not be subjected to searches based solely on a generalized suspicion that is provided by that odor when the 4th Amendment also requires particularized suspicion. We conclude that we must vacate the order granting suppression and remand for reconsideration of that motion by the trial court given the deficiencies in the court’s opinion identified herein. We instruct the court that while it is not compelled by case law to find that probable cause exists solely on the basis of the odor of marijuana, that fact may, in the totality of the circumstances, still contribute to a finding of probable cause to believe the marijuana detected by the odor was possessed illegally. The court may consider defendant’s presentation of an MMA card as a factor that weighs against a finding of probable cause, as it provides at least some evidence tending to suggest the marijuana in question was possessed legally. However, the court must also consider (or explain why it need not consider) the other factors suggested by the Commonwealth as contributing to a finding of probable cause, such as defendant’s statements and demeanor during the stop, as well as the nature of the location of the stop. STRASSBURGER, J. CONCURRING, JOINED BY BENDER, LAZARUS JJ.: I write separately to note my discontent with the Commonwealth’s reliance on the “high- crime area” factor in support of a finding of probable cause. I believe that the status of the neighborhood at issue as a “high-crime area” should not be relevant to the probable cause determination. People who live in poor areas that are riddled with crime do not have fewer constitutional rights than people who have the means to live in “nice” neighborhoods.

Barr, 240 A.3d 1263 (Pa. Super. 9/25/20) Link to: Strassburger, J. concurring appeal granted, No. 28 MAP 2021 (granted 4/28/21)

In Barr, 240 A.3d 1263 (Pa. Super. 9/25/20), we held that the odor of marijuana emanating from a vehicle during a police traffic stop, alone, is not sufficient to establish probable cause. Case remanded to the suppression court for further factual determinations.

Shaw, 246 A.3d 879 (Pa. Super. 2/17/21) Grooms, 247 A.3d 31 (Pa. Super. 2/24/21) (legally parked vehicle in mall lot)

101

COMPARE:

Defendant argued that the two syringes found in the vehicle did not possess an incriminating character that was immediately apparent, as they could have been used for legitimate purposes. Hypodermic syringes are specifically included in the definition of “drug paraphernalia.” 35 P.S. § 780-102(b)(11). Moreover, the circumstantial evidence in this case regarding the syringes supports the conclusion that they were drug paraphernalia. Trooper Murarik testified that based on his knowledge and experience, the appearance of these syringes was consistent with those used as drug paraphernalia. Furthermore, the location and unsecured nature of the syringes on the floor of the vehicle were not consistent with use of the syringes for medical purposes. Moreover, a passenger appeared to be under the influence of drugs, and the syringes were in close proximity to her person in the vehicle. Upon having her attention directed to the syringes, the passenger did not indicate that the syringes were for medical use. Also, the passenger was known by Trooper Murarik to use and sell drugs. Given the totality of circumstances, it was reasonable for Trooper Murarik to believe that these syringes were being used for a criminal purpose. Thus, discovery of these syringes in connection with the other relevant factors suggesting illegal drug use constituted probable cause to search the vehicle.

Bumbarger, 231 A.3d 10 (Pa. Super. 3/16/20) appeal denied, ___ Pa. ___, 239 A.3d 20 (9/22/20)

Vehicle

We hold that Article I, Section 8 affords greater protection to our citizens than the Fourth Amendment, and reaffirm our prior decisions: the Pennsylvania Constitution requires both a showing of probable cause and exigent circumstances to justify a warrantless search of an automobile. Commonwealth v. Gary, 625 Pa. 183, 91 A.3d 102 (4/29/14) (plurality opinion) is disapproved. The automobile exception was first recognized in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (3/2/1925), and the justification for upholding the search was largely based on the impracticability of securing a warrant given that the vehicle could be quickly moved out of the locality or jurisdiction. While Carroll noted that in cases where the securing of a warrant is reasonably practicable an officer must do so, over time that limitation gradually disappeared. In Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.2d 419, 90 S.Ct. 1975 (6/22/70), the Court upheld a search under the automobile exception where the officers transported the vehicle to the police station and searched it there without a warrant. The Court concluded that if the officers could immediately search the car under Carroll, then they may also search it later. That holding is at odds with Carroll’s observation that officers must obtain a warrant when feasible. We return to the pre-Gary application of our limited automobile exception under Article I, Section 8 of our Constitution, pursuant to which warrantless vehicle searches require both probable cause and exigent circumstances; one without the other is insufficient. This dual requirement of probable cause and exigency is an established part of our state constitutional jurisprudence.

102

Alexander, ___ Pa. ___, 243 A.3d 177 (12/22/20) Link to: Saylor, C.J. dissenting Link to: Dougherty, J. dissenting Link to: Mundy, J. dissenting

Warrant

ISSUE TO BE DECIDED: Pa.R.Crim.P. 205(A)(4) provides that the authority issuing the search warrant must direct that the search be conducted “within a specified period of time, not to exceed 2 days from the time of issuance.”

The parties are DIRECTED to ensure argument is included, in any original, substituted or supplemental brief, on the following issues: (1) Whether the trial court erred in denying suppression of data that was copied and reviewed from a seized cell phone more than two days after expiration of the relevant warrant? and (2) If the data should be suppressed, whether the proper remedy is acquittal of the offenses due to insufficiency of evidence, or remand for a new trial?

Commonwealth v. Bowens, No. 341 MDA 2018 (argued en banc 12/3/20)

Summary of contents of search warrant: Beginning in 2009, the Pennsylvania State Police (“PSP”) utilized a confidential informant (“CI”) who was a member of the Pagan Motorcycle Club, and who had previously provided reliable information. On April 28, 2011, the CI informed the lead investigator, Pennsylvania State Police Trooper Matthew Baumgard, that defendant, whom the CI identified as a member of the Pagan Motorcycle Club, unexpectedly arrived at his home and offered to sell him three one-half ounce packages of cocaine for $650 per package. The CI declined, stating that he had just purchased cocaine from “Tony” and was dissatisfied with the quality. The CI contacted the authorities to report this development.

On May 16, 2011, the CI informed Trooper Baumgard that defendant had invited him to defendant's home. Upon arrival, defendant showed the CI one-half pounds of cocaine. Defendant said he obtained the package due to the CI's dissatisfaction with Tony's product, and offered him the entire package in exchange for $5,000 paid over time. The CI agreed and took the cocaine, which he then turned over to the authorities.

103

Based on this information, the authorities applied for an order authorizing a consensual wiretap of conversations occurring inside defendant's residence, with the CI agreeing to wear a recording device. The order was granted later that day, and, significant to defendant's challenges on appeal, authorized continuous interception of all in-home conversations for a period of thirty days. The Commonwealth also obtained an extension of the order after the thirty days expired.

Thereafter, the CI made several visits to defendant's home and recorded the ensuing conversations. On May 16, 20, 25, and 31, 2011, the CI went to defendant's home and delivered cash provided by the authorities to defendant in installments. Officers surveilled defendant's home during each meeting, and met with the CI afterwards to discuss what occurred and retrieve the recordings.

Next, on June 9, 2011, defendant gave the CI two more ounces of cocaine in exchange for his agreement to deliver payment over time. Additionally, Defendant offered to sell the CI methamphetamine for $1,300 per ounce. Later that evening, defendant arrived at the CI's doorstep and delivered the methamphetamine.

On June 13, 2011, the CI paid cash to defendant for the cocaine that was supplied on June 9, 2011. Additionally, on June 15, 2011, defendant supplied more cocaine, which the CI then paid for on June 20, 2011. Similarly, on June 22, 2011, defendant gave the CI more cocaine at defendant's residence.

On June 27, 2011, the CI visited defendant's home and paid for the cocaine received five days prior. During this meeting, defendant indicated that he would once again have a quantity of cocaine and methamphetamine available for pickup on June 29, 2011. On the basis of the foregoing information, Trooper Baumgard requested an anticipatory search warrant for defendant's home, which was to be executed upon defendant's contact with the CI on the 29th. On June 29, 2011, defendant called the CI and informed him that he was at home. Trooper Baumgard authorized the execution of the search warrant. In contrast to Wallace, 615 Pa. 395, 42 A.3d 1040 (4/26/12), the affidavit for the anticipatory search warrant in this case supplied a wealth of information regarding the recent presence of narcotics in defendant's residence, as well as defendant's prior deliveries to the CI. The application sets forth the details of four prior occasions where defendant supplied drugs to the CI, two of which occurred at defendant's residence. Each time, defendant would supply more drugs when the CI paid for the prior deliveries. The last three deliveries all occurred within weeks of each other. Thus, the application established a pattern whereby defendant would provide a fresh delivery of drugs upon payment for the previous deliveries.

104

Most significantly, the June 27, 2011 incident concluded with defendant telling the CI that additional drugs would be available on June 29, a statement that was made after the CI provided payment for the last delivery. We find that a reviewing magistrate could determine that (1) there was probable cause to believe the triggering condition will occur; and (2) if the triggering condition occurred there was a fair probability that contraband or evidence of a crime would be found in a particular place. While the triggering condition largely overlaps with the second requirement, as defendant's contact to the CI provided the basis to believe defendant's residence contained the contraband, this is not a case, as in Wallace, where the affidavit did little more than indicate that a drug sale could be arranged. The search warrant application provided sufficiently specific information to conclude there was probable cause to believe that defendant would call the CI on June 29, 2011, to supply more drugs.

Katona, 191 A.3d 8 (Pa. Super. 6/14/18) (en banc) Link to: Lazarus, J. dissenting aff’d, ___ Pa. ___, 240 A.3d 463 (10/21/20) Link to: Mundy, J. concurring Link to: Donohue, J. dissenting

As indicated in the affidavit of probable cause, during the home invasion the victims observed three perpetrators who used their cell phones to communicate with each other. After the police determined Marlon Burton had used credit cards stolen from the Nadav residence, Burton admitted to the police that Daniels gave her the credit cards during the early morning hours shortly after the home invasion had occurred. An examination of Daniels’ cell phone records revealed that, during the home invasion, Daniels used his cell phone to communicate with Jones, who in turn used his cell phone to communicate with (***)***-4478. A common sense reading of the affidavit reveals there was a fair probability that the owner of cell phone (***)***-4478 participated in the home invasion and/or would have information in connection with the identity of the perpetrators or recovery of the stolen items. To the extent defendant contends probable cause was lacking because the police did not identify him by name in the affidavit, we disagree. The identification of the specific cell phone number, i.e., (***)***-4478, and the request for the cell phone records from T- Mobile/Metro PCS for a specific time with regard thereto, sufficiently described with particularity the item to be seized and searched.

Davis, 241 A.3d 1160 (Pa. Super. 10/23/20) (subsequent search warrant for CSLI) appeal denied, ___ Pa. ___, 253 A.3d 211 (5/4/21)

Defendant was present in an apartment where two bricks of heroin were discovered on a shelf, and where three stolen firearms were discovered, hidden together, above the apartment’s hot water tank. Defendant was in possession of two phones. Police sought a search warrant for both phones defendant possessed “as well as any and all electronic and/or digital data contained within the cellular telephone or its storage

105 medias/memory cards, such as incoming/outgoing calls, call logs, emails, personal calendars, cellular internet usage, wireless internet usage, GPS data, contact information, text messages, voice mails, notes, photographic images, IP addresses, contact information, and voice recordings whether or not the electronic and/or digital data has been erased, hidden, password protected or encrypted.” Text messages recovered from one of defendant’s phones referenced stamp bags of heroin which had the same stamp as stamp bags recovered from the apartment. We reject the notion that, simply because there was probable cause to arrest defendant for constructively possessing the drugs and guns found in another’s apartment, there was necessarily probable cause to search his cell phone for evidence of those same offenses. Where law enforcement seeks to search a person’s cell phone based on the person’s mere proximity to illegal contraband, some link sufficient to connect the two must be provided in the affidavit of probable cause. Defendant’s cell phones were discovered on his person, and the affidavit does not otherwise allege he was personally in possession of (or even aware of) the drugs, guns, or anything else related to criminal activity found in the apartment. There is also no indication whatsoever regarding who leased the apartment or defendant’s relationship to that individual, and there is no information about the frequency with which defendant visited the apartment or the duration of time he was present on the night in question. As well, since the circumstances that led police to the apartment in the first place were emergency-related, the affidavit lacked the type of more extensive information that frequently attends search warrants in longer-term drug trafficking investigations, such as evidence regarding controlled purchases. Whereas those cases commonly include evidence demonstrating that the target dealers use cell phone functions — particularly text messages — to conduct their illegal operations, there is no information of this sort contained in the instant affidavit. Simply put, the affidavit of probable cause in this case provides little more than the bare fact that defendant was present in a place where illegal contraband happened to be found. That fact, in and of itself, cannot supply probable cause for a search of defendant’s cell phone. We ascribe no value, under the particular facts of this case, to the affiants’ specialized knowledge that drug traffickers often use cell phones to conduct their business. While we do not foreclose the possibility that such information may be relevant to probable cause analyses in other circumstances, the affidavit in this case is entirely bereft of any facts tying the affiants’ expert opinion to defendant specifically. On this front, we credit the argument defendant raised before the suppression court, i.e., that there is nothing in the affidavit of probable cause remotely establishing that he was a drug trafficker instead of merely a guest in a place where drugs were located, particularly since four other individuals were also present in the apartment and the owner was not. At most, the affidavit tells us only that defendant was present in someone else’s apartment when police entered in response to an emergency call and that a protective sweep revealed drugs and guns from somewhere inside. Given the complete absence of any information connecting defendant to the illegal contraband, beyond his general presence in the same apartment where it was found, the affiants’ experience and knowledge “that persons involved in the trafficking of controlled substances regularly use [cell phones] to accomplish their trafficking activities[,]” adds nothing to the probable cause calculus in this particular case.

106

All that remains is the Commonwealth’s argument that defendant’s possession of two cell phones, when considered alongside his presence in an apartment where a large quantity of drugs was found, is enough to establish probable cause to search the phones for evidence of illegal narcotics activity. We are not convinced. As the Commonwealth itself acknowledges, the presence of multiple cell phones has been found to be indicative of drug trafficking only when considered with other evidence. But that is precisely what is missing here: some “other evidence” suggesting defendant was engaged in drug dealing, or otherwise linking his cell phone to anything criminal. And while we again do not mean to discount the possibility that the presence of multiple cell phones might, in certain cases, prove significant to a probable cause analysis, this is not one of them.

Johnson, ___ Pa. ___, 240 A.3d 575 (10/21/20) (plurality opinion) Link to: Saylor, C.J. dissenting Link to: Mundy, J. dissenting

SENTENCE

Ability to pay

Defendant’s judgment of sentence included the imposition of mandatory court costs. Defendant maintained that Rule 706(C), along with Sections 9721(c.1) and 9728(b.2) of the Sentencing Code, mandated that the court hold an ability-to-pay hearing before imposing court costs at sentencing. We disagree. Instead, we hold that while a trial court has the discretion to hold an ability-to-pay hearing at sentencing, Rule 706(C) only requires the court to hold such a hearing when a defendant faces incarceration for failure to pay court costs previously imposed on him.

Lopez, 248 A.3d 589 (Pa. Super. 3/23/21) (en banc) Link to: Dubow, J. dissenting appeal pending, No. 178 EAL 2021 (filed 4/22/21) Snyder, 251 A.3d 782 (Pa. Super. 4/9/21) appeal pending, No. 236 MAL 2021 (filed 5/10/21) White, 251 A.3d 1274 (Pa. Super. 5/5/21) (probation supervision fees) appeal pending, No. 245 EAL 2021 (filed 6/2/21)

Claim of excessive sentence

$167,871.20 embezzled from trusts established for special needs victims. Reasons for sentence: THE COURT: All right. [Mr. Bradley], you violated your oath of office as an attorney, your professional and fiduciary duties then you used your position to commit crimes against your clients. You were in a position of trust to these individuals and took advantage of that trust by misappropriating their funds for your own personal use.

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This betrayal of trust is abhorrent. Lawyers are expected to advocate for and protect their clients’ rights to the best of their ability. Unfortunately, due to your actions, these individuals had no one looking out for their best interests at critical junctures in their lives. Instead, they became innocent victims of your illicit schemes. You were required to safeguard against any harm to your clients, but instead, you used your position of power, trust, and as a fiduciary for your own benefit to fill your own pockets and harm your clients. You violated the sanctity of the attorney-client relationship, an association which our legal system critically depends upon. Your actions caused people to question whether or not they can trust attorneys. If people have doubts about the attorney client relationship and the value of attorneys, our system cannot function. You had a greater fiduciary duty since many of your clients had special needs and were in perhaps in need of an even higher level of protection than other clients. You took advantage of those people. You used their money in their bank accounts like it was your own ATM. Taking from people who needed special needs trusts and/or from their trusts demonstrates a level of depravity not even seen with hardened criminals. You lied and deceived your clients. They retained you believing you were licensed to practice law. In many instances, you were not. You were suspended from practicing law, and despite an order to notify your clients of your suspension, you did the opposite and lied and deceived potential clients into retaining you as an attorney. You were disloyal to your clients and failed to protect their interests. You stole from them for your own personal gain. You had 17 separate victims and their families. To you, the money you stole may not have been significant. However, to many of them, even a small amount was their life savings. They needed that money to survive. In addition to stealing money from them, you stole their sense of security, their trust, and you caused them unnecessary stress and hardships. You changed their lives forever. Obviously[,] it was not for the better. You are no different [from] a hardened thief, robber or burglar. Actually, I think you’re worse. Because of your position of trust, your lying and deception, they handed you their money never expecting you to steal it from them. Each of your 17 victims warrants a punishment for your conduct. If I were to do otherwise, then you would get a [volume] discount for multiple crimes. They are all victims. As a result of you - as a result, you should be sentenced for all the crimes against them. Your conduct warrants consecutive sentences. There is nothing redeeming about how you conducted yourself. You are a convicted felon and warrant the lengthy period of incarceration in a state correctional facility. You will have many years in a state

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correctional facility to gain remorse. Hopefully[,] you will start by writing letters of apology to your victims. It is clear that the court considered defendant’s needs and weighed them against the gravity of his crimes and the impact on his victims. The court imposed standard-range sentences and ran them consecutively to punish defendant for each of the seventeen individuals he victimized. It provided a lengthy explanation for this sentencing decision. Therefore, even had defendant preserved his sentencing claims, we would conclude that his sentence of 17 to 34 years’ imprisonment is not clearly unreasonable, excessive, or an abuse of the court’s discretion.

Bradley, 237 A.3d 1131 (Pa. Super. 8/7/20) appeal denied, ___ Pa. ___, ___ A.3d ___ (6/9/21)

40-80 years’ imprisonment for home invasion robbery not an abuse of discretion. The trial court considered all the factors set forth in Section 9721(b) in imposing sentence. As to the protection of the public and the gravity of the offense as it relates to the impact on the victim and the community, the trial court noted that this home invasion robbery was highly organized, efficient, and sophisticated. The conspirators first scouted the location and then conducted a commando-style raid of a private residence occupied by three generations of one family in the middle of the night. the trial court also noted that the force utilized was extreme. Defendant and his co-conspirators, outfitted with dark clothing, gloves, and masks and brandishing handguns, threatened each of the victims with the loss of their own life as well as the death of the other family members, including a member of the family that was away at college. Finally, the trial court considered the apparent and undeniable impact these vicious and violent offenses had on the victims. The fact that defendant had engaged in violent offenses in the past and chose to once again engage in extremely violent conduct with other violent offenders, convinced the trial court that the protection of the public required a substantial period of incarceration. The trial court also discussed how the nature of the offenses reflected on defendant's character and his amenability to rehabilitation. The trial court specifically noted that, despite the extreme violence and apparent raw fear and emotional trauma inflicted, defendant showed no emotional response and demonstrated no empathy or remorse. the trial court found that there was no demonstrable economic need, explanation or justification for these crimes and therefore concluded that defendant was motivated by greed. The court also considered the character of the individuals with whom defendant chose to conspire, noting that defendant was aware of their violent character and still made a conscious decision to participate. Given the number of conspirators, their violent tendencies, the fact that they were all armed, and the unpredictability of victims’ responses to their physical incursion, defendant knew or should have known that there was a substantial risk that the situation could have gotten out of control and that someone could have been seriously injured or killed. In considering defendant's history, character, condition, and rehabilitative needs, the trial court also considered defendant's prior record. In 2005, defendant was adjudicated delinquent of Burglary, in 2008 he was adjudicated delinquent of Robbery and Burglary, and in 2011 he was convicted of Robbery, the same offenses of which he

109 was convicted in the instant case. The trial court found that the intervention of both the juvenile and adult criminal justice systems had no deterrent effect on defendant's criminally violent behavior. The trial court also found that the support of defendant's family and friends and the impact of his criminal behavior has had on them also had no deterrent effect on his criminally violent behavior. The trial court therefore concluded that the sentence imposed was necessary to prevent defendant from engaging in further acts of violence. In imposing sentence, the trial court considered all of the factors set forth in the Sentencing Code including the protection of the public, the gravity of the offense, the history, character, condition and rehabilitative needs of defendant and the sentencing guidelines. The fact that the trial court did not weigh the factors as defendant might have wished is not sufficient to support a claim for appellate relief. The fact that the sentences for the Robbery of [each child victim in the house] were run consecutive to one another and consecutive to the concurrent sentences imposed for the Robbery of [the adults] does not alter the conclusion that the sentences imposed were reasonable. In imposing sentence, a court has discretion to run the sentence concurrently with or consecutively to other sentences being imposed. Moreover, separate felony offenses committed against separate victims appropriately calls for consecutive sentences. Defendant is not entitled to a volume discount for his crimes. Where, as here, separate violent felony offenses were committed against multiple individuals, a separate sentence is warranted in recognition of the fact that separate and distinct harms were intended and separate and distinct harms were caused by the commission of each criminal act committed by defendant and his accomplices.

Davis, 241 A.3d 1160 (Pa. Super. 10/23/20) appeal denied, ___ Pa. ___, 253 A.3d 211 (5/4/21)

Collateral consequences

For sexual offender registration, see SORNA

Court costs

Defendants Lehman and Davis were resentenced pursuant to decisions by the Supreme Court of the United States which decisions required the resentencing of juveniles who had received mandatory sentences to life imprisonment without parole. At the resentencing hearings, each defendant introduced expert testimony that he was ready for immediate parole. The Commonwealth introduced competing expert testimony. Lehman was ordered to pay costs related to resentencing in the amount of $15,478.38, and Davis was ordered to pay costs in the amount of $20,674.73. For the most part, these amounts reflected the cost of expert testimony presented by the Commonwealth. Costs assessed against a criminal defendant include the necessary expenses incurred by the district attorney in connection with the prosecution. 16 P.S. § 1403

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(applicable to counties of the third class). This is a penal statute which must be specifically construed, and interpreted in the light most favorable to the accused. In this case, the original sentencing hearings for defendants were indeed necessitated by their actions of committing first-degree murder that resulted in their convictions, and those expenses would have been properly chargeable to them under Section 1403. In direct contrast, however, their resentencing hearings were not necessitated by defendants’ own actions, but by a change in the law: the resentencing was necessary only because the original proceedings took place pursuant to unconstitutional legislation. The costs may not be collected.

Lehman, ___ Pa. ___, 243 A.3d 7 (12/22/20)

Equivalent offense

A New Jersey aggravated assault is not equivalent to a Pennsylvania aggravated assault for purposes of the three strikes law found at 42 Pa.C.S. § 9714. A review of § 9714 reveals that the Pennsylvania legislature carefully crafted the definition section of a crime of violence so that its reach would be targeted and specific. Specifically, § 9714(g) lists single subsections of particular crimes, most of which are first- degree felonies. For example, with aggravated assault, the legislature chose to include only two of the seven subsections. The remaining five subsections were excluded. This deliberate distinction makes it clear that the legislature intended to directly limit this statute's application to only the most serious aggravated assault crimes, those which require the Commonwealth to show that the actor either attempted to cause, or did cause, “serious bodily injury.” 42 Pa.C.S. § 9714(g). In contrast, defendant's New Jersey aggravated assault statute plainly proscribes a lesser degree of bodily injury than the qualifying Pennsylvania crimes. Specifically, a “significant bodily injury” [in New Jersey] targets temporary losses of bodily function, whereas a “serious bodily injury” [in Pennsylvania] pertains to permanent or protracted losses of bodily function. Since we [conclude] that defendant's 2010 New Jersey aggravated assault conviction was not a “crime of violence” as defined in Pennsylvania, he did not qualify for an enhanced sentence under § 9714.

Johnson, 241 A.3d 398 (Pa. Super. 10/9/20)

Guidelines

The trial court stated on the record its awareness that Wallace’s sentence exceeds the sentencing guidelines, and articulated its reasons for deviating from those guidelines as follows: 1. Wallace shot a stranger in the head and left him on the street. The victim had no connection to Wallace and his coconspirators. The victim did not provoke the attack in any way. The crime

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reflects a cold-blooded attempt by Wallace to maliciously commit murder for sport. 2. Wallace’s lengthy criminal history and prior significant periods of state incarceration have been ineffective to accomplish rehabilitation, and have not deterred future criminal conduct. This crime occurred a mere eight months after Wallace’s release from serving a parole violation for prior firearms and drug-dealing offenses. 3. Wallace poses a clear danger to the community and this sentence is necessary to protect the community from his violent propensities. 4. The court has a responsibility to impose confinement that is necessary to protect the public from acts of violence and terror. Based on Wallace’s prior criminal history and the callous, dangerous, and menacing actions surrounding this crime, there is an undue risk that Wallace would commit another violent crime and harm another innocent person unless he is separated from the community. 5. Any lesser sentence would depreciate the seriousness of this crime. It is impermissible for a trial court to consider factors already included within the sentencing guidelines as the sole reason for increasing or decreasing a sentence to the aggravated or mitigated range. However, trial courts are permitted to use prior conviction history and other factors included in the guidelines if they are used to supplement other extraneous sentencing information. These reasons included, in addition to Wallace’s prior criminal history, the need to protect the community and the nature of the aggravated assault offense — i.e., the fact that Wallace’s acts reflect a “cold-blooded attempt” to “murder for sport.”

Wallace, 244 A.3d 1261 (Pa. Super. 1/8/21) appeal pending, No. 183 MAL 2021 (filed 4/9/21)

Juvenile murderers

When there is no mandatory life sentence required by law, Miller v. Alabama and Montgomery v. Louisiana, do not require the sentencer to make a separate factual finding of permanent incorrigibility before sentencing a defendant, who committed a murder as a juvenile, to life without parole.

Jones v. Mississippi, ___ U.S. ___, 141 S.Ct. 1307, ___ L.Ed.2d ___ (4/22/21)

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ISSUE TO BE DECIDED:

Does not a sentence of 50 years to life imposed upon a juvenile constitute a de facto life sentence requiring the sentencing court, as mandated by this Court in Commonwealth v. Batts, 640 Pa. 401, 163 A.3d 410 (6/2617) (“Batts II”), first find permanent incorrigibility, irreparable corruption or irretrievable depravity beyond a reasonable doubt?

Commonwealth v. Michael Felder, No. 18 EAP 2018 (granted 6/19/18) (argued 5/16/19) Appeal held pending Jones v. Mississippi (order dated 3/31/20)

Lekka, 210 A.3d 343 (Pa. Super. 5/10/19) appeal pending, No. 327 MAL 2019 (filed 6/10/19) (petition held pending Felder 8/12/19)

ISSUE TO BE DECIDED:

Defendant was sentenced subsequent to the decision in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (6/25/12). The trial court imposed a life sentence upon the juvenile defendant as a matter of sentencing discretion, not pursuant to a statutory mandate. The procedural protections of Batts, 640 Pa. 401, 163 A.3d 410 (6/26/17) (Batts II), were promulgated after defendant’s sentence was pronounced. The Batts decision does not apply retroactively and defendant is not entitled to PCRA relief.

Stahley, 201 A.3d 200 (Pa. Super. 12/19/18) Link to: Strassburger, J. concurring and dissenting appeal granted, No. 54 MAP 2019 (granted 7/24/19) (submitted 5/29/20) Appeal held pending Jones v. Mississippi

Was evidence sufficient to rebut presumption against imposing life sentence without parole for juvenile defendant?

Moye, 224 A.3d 48 (Pa. Super. 11/27/19) (not permanently incorrigible) Commonwealth v. DeJesus, No. 883 EDA 2018 (reargued en banc 3/2/21)

ISSUE TO BE DECIDED: Only the defendant’s sentence status at the time of the assault is relevant to a conviction for assault by a life prisoner and that a later reversal of the life sentence or determination that the life sentence is unconstitutional has no effect on the validity of a

113 conviction under Section 2704 (assault by life prisoner). The fact that defendant’s underlying life without parole sentence has now been set aside as unconstitutional does not change the fact that he was serving such a sentence at the time that he committed the assault. It therefore cannot provide grounds for PCRA relief from his assault by a life prisoner conviction.

Cobbs, 230 A.3d 388 (Pa. Super. 2/24/20) appeal granted, No. 56 MAP 2020 (granted 9/15/20)

Defendant was convicted of second degree murder committed at age 17. 18 Pa.C.S. § 1102.1(c)(1) provides that “[a] person who at the time of the commission of [second degree murder] was 15 years of age or older [but under the age of 18] shall be sentenced to a term of imprisonment the minimum of which shall be at least 30 years to life.” Trial court ruled that this provision was a mandatory minimum sentence that did not otherwise forbid a sentence to life imprisonment without parole. References to “life imprisonment without parole” appear in the portion of the statute pertaining to first degree murder, but are absent from the portion of the statute pertaining to second degree murder. As the Legislature explicitly authorized trial courts to sentence juvenile offenders to “life imprisonment without parole” for first-degree murder convictions under Section 1102.1(a) and excluded this specific language from Section 1102.1(c) which relates to second-degree murder convictions, we decline to add language which the Legislature did not see fit to include.

Sanchez-Frometa, ___ A.3d ___ (Pa. Super. 5/25/21)

Legislation and guidelines amendments

Sentencing Guidelines Amendments

Link to: 7th Edition, including Amendment 6

Amendment 6 to 7th Edition, effective for offenses committed on or after January 1, 2021 Language changes pursuant to Act 115 of 2019 Omnibus offense gravity score (OGS) of 10 for F1 offenses with > 20 year sentences 303.3(f): Standards for use of omnibus offense gravity scores Guidelines enhancements consolidated at 303.10 Length of probation (P1 or P2) and length of community service included in matrix Recommended caps on length of probation 303.9(e)(5)(iii): 10 years from a single judicial proceeding 303.9(f)(1)(iii): 5 years for restorative sanctions

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Amendment 1 to Resentencing Guidelines “Consideration” given to any service of the original sentence

Merger

Inchoate offenses The criminal complaint described aggravated assault as being the shooting of Stancik in the neck, not the beating in the alleyway or the pistol whipping in the car. The shooting was the same act referenced in the attempted murder charge. In the criminal information the Commonwealth likewise based the aggravated assault charges on defendant shooting Stancik in the neck. The Commonwealth did not name King as a participant in the conspiracy; they only identified Richard Lacks as a co-conspirator, and stated the conspiracy as being “and/or” with respect to homicide, kidnapping and aggravated assault. At no point did the Commonwealth suggest there were multiple conspiracies; to the contrary, the Commonwealth described a single, continuous criminal episode. Defendant may not be sentenced for both criminal conspiracy and criminal attempt.

Rosario, 248 A.3d 599 (Pa. Super. 3/23/21) appeal pending, No. 137 WAL 2021 (filed 4/22/21)

Miscellaneous offenses In each case, the theft by taking and theft by receiving stolen property arose from a single criminal act and his intent was the same. As we recently explained, “[o]ur cases have consistently held that convictions for theft by unlawful taking and receiving stolen property merge for sentencing purposes.

Crawford, ___ A.3d ___ (Pa. Super. 5/18/21) appeal pending, No. 356 MAL 2021 (filed 6/16/21)

ISSUE TO BE DECIDED: It is clear that defendant's aggravated assault and recklessly endangering another person (REAP) convictions arose from a single criminal act, namely, his striking the girl with his vehicle. Thus, merger hinges on whether all of the statutory elements of REAP are included in the statutory elements of aggravated assault. Because there are ways an individual could commit aggravated assault under Section 2702(a)(1) without committing REAP and vice versa, the elements of the two offenses are different and do not merge. That defendant committed aggravated assault causing serious bodily injury while also committing REAP is inapposite to the merger analysis. Accordingly, we conclude that these offenses do not merge.

Edwards, 229 A.3d 298 (Pa. Super. 2/12/20) appeal granted, No. 26 EAP 2020 (granted 8/17/20) (argued 3/10/21) 115

Multiple conspiracy convictions

18 Pa.C.S. § 903(c) provides that “[i]f a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.” The courts have said that the issue of whether there was a single conspiracy or multiple conspiracies is to be treated as one of evidentiary sufficiency, not sentencing merger. Accordingly, a detailed summary of the relevant cases is beyond the scope of this treatise. The lead case, with recommended jury charge language, is Andrews, 564 Pa. 321, 768 A.2d 309 (3/26/01). Other cases to consider include: Richbourg, 260 Pa. Super. 438, 394 A.2d 1007 (11/22/78) Perez, 381 Pa. Super. 149, 553 A.2d 79 (12/27/88) appeal dismissed, 525 Pa. 132, 577 A.2d 1340 (8/1/90) Troop, 391 Pa. Super. 613, 571 A.2d 1084 (3/9/90) appeal denied, 526 Pa. 634, 584 A.2d 317 (12/31/90) Rippy, 732 A.2d 1216 (Pa. Super. 4/8/99) Barnes, 871 A.2d 812 (Pa. Super. 2/22/05) Sanchez, 623 Pa. 253, 82 A.3d 943 (12/17/13) Link to: Castille, C.J. concurring Link to: Saylor, J. concurring cert. denied, 574 U.S. 860, 135 S.Ct. 154, 190 L.Ed.2d 113 (10/6/14) Rivera, 238 A.3d 482 (Pa. Super. 8/25/20) Lynch, 242 A.3d 339 (Pa. Super. 10/28/20) appeal pending, No. 675 MAL 2020 (filed 11/30/20)

[EDITOR’S NOTE: If there is an error (sentencing for multiple conspiracies instead of for a single conspiracy), the remedy is set forth by statute. A single conspiracy with multiple objects is to be “of the same grade and degree as the most serious offense which . . . is an object of the conspiracy.” See 18 Pa.C.S. § 905(a). See generally, Barnes, 592 Pa. 301, 924 A.2d 1202 (6/25/07), which disapproves, in dicta, the remedy imposed by the Superior Court at Barnes, 871 A.2d 812 (Pa. Super. 2/22/05). Additionally, the panel in Rivera, 238 A.3d 482 (Pa. Super. 8/25/20), let stand the conviction for conspiracy to commit robbery on the basis that it was the “underlying foundation” for the single conspiratorial agreement. That remedy also appears to be in conflict with the language from the Supreme Court opinion in Barnes, 592 Pa. 301, 924 A.2d 1202 (6/25/07), which disapproved any focus upon the determination of an “overarching conspiratorial object” when the focus should be on the most serious offense which is an object of the conspiracy.]

Multiple victims

The unit of prosecution for a Section 3742(a) conviction does not depend upon the results of the accident, including the number of victims or the severity of their injuries. 116

Section 3742(a) makes it a criminal offense for the “driver of any vehicle involved in an accident resulting in injury or death of any person” to remain at the scene until the duties set forth in Section 3744 are fulfilled. 75 Pa.C.S. § 3742(a) (emphasis added). Although the penalties for not remaining at the scene increase depending upon the severity of the results of the accident, the statutory language unambiguously provides that the obligation to stop and remain at the scene results solely from the driver's involvement in the accident, regardless of the number of victims or the severity of their injuries. There was only one accident scene at which Satterfield had a legal duty to remain, and he left that scene before being statutorily excused (pursuant to the dictates of Section 3744). Upon leaving that scene, Satterfield violated Section 3742 one time and thus may only be sentenced for that single violation. To the extent (if any) that Kinney, 863 A.2d 581 (Pa. Super. 12/3/04), may be understood to stand for the position that multiple sentences may be imposed under Section 3742 based upon the number of victims resulting from the accident in question, it is expressly disapproved on this basis.

Satterfield, ___ Pa. ___, ___ A.3d ___ (7/22/21)

Convictions for multiple subsections within a single statute

COMPARE: § 2709.1, Stalking (a) Offense defined.--A person commits the crime of stalking when the person either: (1) engages in a course of conduct or repeatedly commits acts toward another person, including following the person without proper authority, under circumstances which demonstrate either an intent to place such other person in reasonable fear of bodily injury or to cause substantial emotional distress to such other person; or (2) engages in a course of conduct or repeatedly communicates to another person under circumstances which demonstrate or communicate either an intent to place such other person in reasonable fear of bodily injury or to cause substantial emotional distress to such other person. 18 Pa.C.S. §§ 2709.1(a)(1) and (a)(2) (emphasis added). As the plain language of 18 Pa.C.S. § 2709.1(a)(1) makes clear, an individual may be found guilty of stalking under § 2709.1(a)(1) where he or she “engages in a course of conduct or repeatedly commits acts toward another person, including following the person without proper authority, under circumstances which demonstrate either an intent to place such other person in reasonable fear of bodily injury or to cause substantial emotional distress.” 18 Pa.C.S. § 2709.1(a)(1) (emphasis added). The Commonwealth asserts that the following conduct on the part of defendant met the criteria set forth in § 2709.1(a)(1): (1) Defendant observed Ms. Nesbitt at a Friendly’s restaurant without her consent on June 2, 2017, as evidenced by his text message to that effect, Ms. Nesbitt’s testimony confirming her presence at the restaurant on that date, and forensic evidence

117 showing that defendant installed an application on Ms. Nesbitt’s cellular telephone which shared, without her consent, the location of her mobile telephone with defendant; (2) observations made by Ms. Nesbitt’s neighbor of defendant in his truck in the vicinity of Ms. Nesbitt’s parent’s home between 11:30 p.m. and midnight on the evening of June 19, 2017 when a bullet was fired into Ms. Nesbitt’s vehicle; and, (3) forensic evidence which showed that defendant accessed, without Ms. Nesbitt’s consent, an online schedule used by Ms. Nesbitt in her employment. In addition, the plain text of 18 Pa.C.S. § 2709.1(a)(2) states that an individual may be held criminally liable for stalking under § 2709.1(a)(2) if he or she “engages in a course of conduct or repeatedly communicates to another person under circumstances which demonstrate or communicate either an intent to place such other person in reasonable fear of bodily injury or to cause substantial emotional distress.” 18 Pa.C.S. § 2709.1(a)(2) (emphasis added). The Commonwealth argues that repeated instances in which defendant sent harassing text messages to Ms. Nesbitt satisfied this subsection. We are satisfied that defendant’s convictions for stalking under § 2709.1(a)(1) and § 2709.1(a)(2) did not arise from a single criminal act. Moreover, since § 2709.1(a)(1) proscribes “courses of conduct or the repeated commission of acts” and § 2709.1(a)(2) prohibits “courses of conduct or repeated communications,” we are convinced that not all of the elements of one subsection of § 2709.1 are included in the other, or vice versa. As such, defendant’s stalking convictions under § 2709.1(a)(1) and § 2709.1(a)(2) do not merge under 42 Pa.C.S. § 9765 and the trial court did not err in imposing separate punishments for those convictions.

Talley, 236 A.3d 42 (Pa. Super. 7/17/20) appeal granted [on other grounds], No. 14 MAP 2021 (granted 3/9/21)

WITH: Section 3802(d)(1) makes it a crime for a person to drive after using a Schedule I controlled substance. 75 Pa.C.S. § 3802(d)(1). The Commonwealth can establish the offense in two different ways. It can prove that the defendant had, in his blood at the time of driving, either (1) the active compound of a Schedule I drug, 75 Pa.C.S. § 3802(d)(1)(i), or (2) a metabolite of a Schedule I drug, 75 Pa.C.S. § 3802(d)(1)(iii). Thus, Subsections 3802(d)(1)(i) and (iii) provide the Commonwealth alternate means of establishing the offense of DUI-Controlled Substance. The trial court should have merged defendant’s DUI-Controlled Substance convictions for purposes of sentencing. BOWES, J. DISSENTING: I do not dispute that defendant’s DUI convictions stemmed from a single criminal act of driving. Nonetheless, there is insufficient statutory parity between the statutory language of the separate DUI subsections to permit merger under 42 Pa.C.S. § 9765. The General Assembly’s drafting of 75 Pa.C.S. §§ 3802(d)(1)(i) and 3802(d)(1)(iii) manifests an intent to cast a wide net in separately criminalizing driving with either a controlled substance, or a metabolite thereof, in one’s blood stream. Each subsection contains an element that the other does not and the Commonwealth can prove a violation of one subsection without proving a violation of the other.

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Additionally, the majority’s analysis ignores the precedent of this Court establishing that a single course of conduct can subject a defendant to multiple sentences under subsections of the same criminal statute. See Rhoades, 8 A.3d 912 (Pa. Super. 11/12/10) (holding multiple convictions for aggravated assault stemming from a single course of conduct but charged at separate subsections of the same statute did not merge due to lack of similarity in the respective statutory elements); see also, e.g., Talley, 236 A.3d 42 (Pa. Super. 7/17/20) (holding that multiple convictions for stalking charged at different subsections of the same statute did not merge under Section 9765), [appeal granted [on other grounds], No. 14 MAP 2021 (granted 3/9/21). . Given, 244 A.3d 508 (Pa. Super. 12/23/20)

Count 1 charged defendant with indecent assault, as a course of conduct, between 2015 and 2017, committed against a victim less than 13 years old. Count 4 charged a single, specific act of indecent assault committed against the same victim. The convictions, with distinct factual predicates, did not arise from a single criminal act. Separate sentences are permitted.

Reslink, ___ A.3d ___ (Pa. Super. 12/18/20)

We read 18 Pa.C.S. § 3301(a)(1) (i) and (ii) to mean that any person who either "recklessly places another person in danger of death or bodily injury" or "commits the act with the purpose of destroying or damaging an inhabited building or occupied structure of another" may be prosecuted for and convicted of committing arson endangering persons. However, it simply does not follow from this reading that a person who commits both of the above acts may be sentenced twice for arson endangering persons when only one criminal offense, i.e., starting one fire, has been committed.

Lopez, 444 Pa. Super. 206, 663 A.2d 746 (8/15/95)

We see no meaningful distinction between the statutory interpretation of the arson statute in Lopez and the kidnapping statute at issue here. A person commits the single crime of kidnapping if he or she satisfies, “any” of the intentions expressed in 18 Pa.C.S. § 2901(a)(1)-(4). Therefore, 18 Pa.C.S. § 2901(a)(2) [(to facilitate commission of a felony)] and 18 Pa.C.S. § 2901(a)(3) [(to inflict bodily injury)] are not themselves separate offenses, but rather are alternative means for satisfying 18 Pa.C.S. § 2901(a). If a defendant is proven to have more than one of the expressed intentions, he can be convicted under two sections of the statute, but he cannot be sentenced under both, when only one criminal offense, i.e., a single kidnapping, has been committed.

Rosario, 248 A.3d 599 (Pa. Super. 3/23/21) appeal pending, No. 137 WAL 2021 (filed 4/22/21)

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Remedy for a merger violation

In the federal system:

Receipt of a firearm by a felon and the possession of a firearm by the felon are greater and lesser included offenses. Where a single act establishes the receipt and the possession, the defendant may not suffer two convictions or sentences on that indictment. If the jury returns guilty verdicts for each count, the trial court should enter judgment on only one count. The remedy of ordering one of the sentences to be served concurrently with the other cannot be squared with Congress' intention.

Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (3/26/85)

In Pennsylvania:

Defendant is not entitled to relief as against the individual convictions, only against the sentences.

McCoy, 895 A.2d 18 (Pa. Super. 2/21/06) (Ball not discussed) aff’d, 601 Pa. 540, 975 A.2d 586 (7/21/09)

Given that Pennsylvania’s double jeopardy jurisprudence prohibits multiple punishments, but not convictions, for the same offense, we are reluctant to incorporate and apply the holding in Ball as a component of Pennsylvania law.

Farrow, 168 A.3d 207 (Pa. Super. 7/27/17) disapproved on other grounds, Hill, ___ Pa. ___, 238 A.3d 399 (9/30/20)

Defendant maintains that the mere fact of a conviction alone qualifies as punishment for constitutional purposes under Ball v. United States, 470 U.S. 856, 865, 105 S.Ct. 1668, 1673, 84 L.Ed.2d 740, ___ (3/26/85) (noting that convictions have adverse collateral consequences and are “punishment” even if no greater sentence is imposed). However, because we have found that defendant waived his attack on his conviction, we will not address this argument further. Farrow is disapproved for reaching this issue when the claim was not properly preserved for appellate review.

Hill, ___ Pa. ___, 238 A.3d 399 (9/30/20) Link to: Wecht, J. concurring

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Minimum/Maximum sentence

Defendant was convicted of driving while under suspension (DUS) and having refused a breath test. He was sentenced to the mandatory minimum sentence of 90 days’ imprisonment pursuant to 75 Pa.C.S. § 1543(b)(1.1)(i). The court imposed a maximum sentence of six months. The statute is silent as far as the available maximum sentence is concerned. We have not applied the holdings in Bell, 537 Pa. 558, 645 A.2d 211 (7/25/94), cert. denied, 513 U.S. 1153, 115 S.Ct. 1106, 130 L.Ed.2d 1072 (2/21/95), and Ramos, 623 Pa. 420, 83 A.3d 86 (12/27/13), beyond the particular circumstances of the Drug Act's mandatory sentencing scheme. We must assume that the Sentencing Code's general rule of minimum-maximum sentencing applies to the pertinent section of the Vehicle Code at issue. Contrary to the Commonwealth's suggestion, we do not read Section 9756(c.1) of the Sentencing Code as expressly sanctioning the imposition of flat sentences for violations of the Vehicle Code. That provision merely permits the imposition of a sentence of imprisonment without parole where, among other things, “the maximum sentence of total confinement imposed on one or more indictments to run consecutively or concurrently total 90 days or less.” 42 Pa.C.S. § 9756(c.1)(2). Notwithstanding its applicability in certain circumstances where the Vehicle Code (and other statutes) expressly provides for sentences of incarceration of ninety days or less — which is not the case under Subsection 1543(b)(1.1)(i)’s mandatory minimum sentencing requirement — Section 9756(c.1) does not constitute a standalone exception to the general rule of minimum-maximum sentencing specifically applicable here. And even though the Commonwealth is correct that this Court affirmed a ninety-day flat sentence for DUS in Koskey, 517 Pa. 241, 812 A.2d 509 (12/18/02), we note that no challenge was raised to the legality of that sentence or to the portion of the sentencing statute providing for it. As such, Koskey does not resolve the question now before us. Nor would resolution of that question be helpful here, where no flat sentence was imposed.12 12Although we have not been asked to review the legality of flat sentencing under these circumstances, we are cognizant of the conflicting Superior Court precedents on this matter, the resolution of which must await an appropriate case or controversy. Compare Klingensmith, 437 Pa. Super. 453, 650 A.2d 444 (10/26/94) (holding that a prior version of Section 1543(b) of the Vehicle Code “implicitly creates an exception to” the minimum-maximum sentence rule “by specifically authorizing a trial court to impose a flat minimum mandatory sentence of ninety days for driving with a suspended license when the license was suspended as a result of a prior DUI conviction”), with Postie, 110 A.3d 1034 (Pa. Super. 2/17/15) (holding that a flat sentence of four months’ imprisonment for a conviction under Section 1543(a) of the Vehicle Code violated the minimum-maximum sentencing rule). We hold that the absence of a maximum term renders the pertinent DUS sentencing provision unconstitutionally vague and inoperable for the time being. We leave it to the General Assembly to remedy this impediment, if it so chooses, either by amending

121 the statute to provide for a maximum term of imprisonment or by expressly permitting flat sentencing within a range not to exceed that maximum sentence. We vacate Eid’s sentence of imprisonment for DUS. Because the only punishment that lawfully may be imposed at this time for a violation of DUS pursuant to Subsection 1543(b)(1.1)(i) is the mandatory $1,000 fine, we affirm that portion of Eid's sentence.

Eid, ___ Pa. ___, 249 A.3d 1030 (4/29/21) Link to: Saylor, J. concurring and dissenting

Modification of sentence

The record, particularly the transcript from the sentencing hearing, confirms the court sentenced defendant for only conspiracy to commit aggravated assault, rather than conspiracy to commit homicide, aggravated assault, and kidnapping. Here, the record reflects the clerical error involving the wording of the court's sentence at Count 6, which had no impact on the mathematical calculation of defendant's 35½ – 90 year sentence. Because the typographical error made by the court reporter was patent and obvious, the trial court retained the power to correct it although the 30-day period has expired.

Rosario, 248 A.3d 599 (Pa. Super. 3/23/21) appeal pending, No. 137 WAL 2021 (filed 4/22/21)

Probation and parole

The Commonwealth charged Giliam with a violation of probation because he allegedly committed new crimes. In its motion to proceed with a probation violation hearing, the Commonwealth asserted only that Giliam was arrested and charged with new crimes. The Commonwealth did not allege that Giliam violated any condition of his probation. As such, Giliam’s new charges were the sole basis for seeking revocation of his probation. Giliam was subsequently acquitted at the trial on the new charges. Because Giliam’s violation of probation was based solely on allegations of new criminal charges for which he was later acquitted, ultimately, no violation of probation occurred. Consequently, Giliam’s probation revocation sentence is void. The trial court contended that it did not rely solely on Giliam’s new charges to revoke his probation. Rather, the trial court concluded that the three-year probation sentence for Giliam’s original charges was not serving the desired outcome, to rehabilitate Giliam, because he was still acting erratically and violently. A violation of probation [VOP] court may not consider whether the probation was an effective deterrent when deciding whether a defendant violated probation. In Foster, 654 Pa. 266, 214 A.3d 1240 (8/20/19), the Supreme Court of Pennsylvania clarified the process a court must undertake when considering whether to revoke probation. First, a VOP court must determine whether a probation violation actually occurred. If it did, only then the court may consider the rehabilitative effectiveness of the probation in deciding whether to revoke the probation.

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Although a VOP court may conduct a revocation of probation hearing prior to trial on the underlying charges, more recently our Supreme Court has cautioned against proceeding in this manner. Infante, 585 Pa. 408, 888 A.2d 783 (12/29/05). This court has also observed that in many cases it may be preferable to defer hearing until after the trial, thus avoiding the possibly unjust result of revoking probation, only to find later that the probationer has been acquitted of the charges that prompted the revocation hearing.

Giliam, 233 A.3d 863 (Pa. Super. 6/3/20)

The provisions of the Prisons and Parole Code mandate the [Parole] Board and its agents to establish uniform standards for the supervision of probationers under its authority, and further to implement those standards and conditions. 61 Pa.C.S. §§ 6131(a)(5)(ii), 6151. Put differently, courts shall levy “conditions of probation,” and the Board and its agents may impose “conditions of supervision,” consistent with the legislative mandates. The General Assembly has specifically enumerated fourteen conditions that a court may place upon a probationer. These conditions, found in [former] 42 Pa.C.S. § 9754(c), “shall” be imposed by a sentencing court “to insure or assist the defendant in leading a law-abiding life.” [Former] 42 Pa.C.S. § 9754(b). Moreover, these conditions are inherently non-inclusive, because [former] clause (13) of Section 9754(c) permits a court to impose any condition necessary to ensure the “rehabilitation of the defendant.” Id. [Former] § 9754(c). Consistent, then, with a court's constitutional and statutory authority to impose a sentence, these fourteen conditions must be the starting point in any analysis of a probation violation. 61 Pa.C.S. §§ 6131(a)(5)(ii) and 6151 direct the Board and its agents to establish and impose “conditions of supervision,” distinct from “conditions of probation.” We thus conclude that the Board and its agents may impose conditions of supervision that are germane to, elaborate on, or interpret any conditions of probation that are imposed by the trial court. This interpretation gives meaning to all of the statutory provisions relevant to this case and thus: (1) maintains the sentencing authority solely with a trial court; (2) permits the Board and its agents to evaluate probationers on a one-on-one basis to effectuate supervision; (3) sustains the ability of the Board to impose conditions of supervision; and (4) authorizes that a probationer may be detained, arrested, and “violated” for failing to comply with either a condition of probation or a condition of supervision. In summary, a trial court may impose conditions of probation in a generalized manner, and the Board or its agents may impose more specific conditions of supervision pertaining to that probation, so long as those supervision conditions are in furtherance of the trial court's conditions of probation. Supervision Condition 19, that defendant should not “enter or loiter within 1,000 feet of areas where the primary activity at such locations involve persons under the age of 18,” is a permissible condition of supervision imposed by the Board and is derivative of the trial court's condition of probation that defendant not have unsupervised contact with minors. What apparently occurred here is that the Board felt it necessary to expound upon the trial court's no contact order, by prohibiting defendant from placing himself into situations where he could easily violate his terms and conditions of probation.

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Accordingly, legal authority exists for revocation of defendant's probation for a violation of Supervision Condition 19. To the extent the Superior Court held otherwise, it erred.

Elliott, 616 Pa. 524, 50 A.3d 1284 (9/7/12) [EDITOR’S NOTE: The conditions of probation permitted by statute are now found at 42 Pa.C.S. § 9763(b).]

Three supervision conditions, [imposed by the Parole Board] which require defendant to obtain [sexual offender] treatment and [to] restrict his residence and his contact with minors, plainly are not germane to the sole court-imposed condition of probation, which merely required defendant to pay costs, fines, and restitution. Nor could one say they elaborate on or interpret this condition of probation. Accordingly, the Board exceeded its authority in imposing these conditions, and the trial court erred in revoking defendant's probation based upon his violations of these conditions.

Shires, 240 A.3d 974 (Pa. Super. 9/28/20) [EDITOR’S NOTE: Both Elliott and Shires involved orders revoking county supervised probation which was being served after both a sentence to state prison and a period of state supervised parole. These cases do not appear to address the powers of the Parole Board to enforce its conditions during periods of state supervised supervision. When a parolee is under state supervision, 37 Pa. Code § 63.4 sets forth general conditions of parole and 37 Pa. Code § 65.4 sets forth general conditions of special probation or parole. 37 Pa. Code § 63.5 directs the parolee to “comply with special conditions which are imposed by the Board or which are subsequently imposed by the parole agent” and 37 Pa. Code § 65.5 directs the special probationer or parolee to comply with “special conditions which will be subsequently imposed by his parole agent.” These provisions do not require approval of those conditions by the sentencing judge.]

Conditions of probation are provided for by statute, [former] 42 Pa.C.S. § 9754(c), and must be ordered by the sentencing court, not by a probation officer.

Vilsaint, 893 A.2d 753 (Pa. Super. 2/13/06) (drinking alcohol) MacGregor, 912 A.2d 315 (Pa. Super. 11/21/06) (no contact with minors) Koger, ___ A.3d ___ (Pa. Super. 6/4/21) (general county conditions of supervision)

Recidivist

ISSUE TO BE DECIDED:

Should the mandatory sentencing provision of 42 Pa.C.S. § 9715(a) apply to a case where the offenses and the deaths were simultaneous?

Commonwealth v. Demetrius Coleman, No. 19 WAP 2021 (granted 8/11/21)

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Restitution

We hold that in ARD determinations, the district attorney and the court must inquire into the reasons for the applicant's inability to pay restitution. If the applicant shows a willingness to make a bona fide effort to pay whole or partial restitution, the State may not deny entrance to the ARD program. If the applicant has no ability to make restitution despite sufficient bona fide efforts to do so, the State must consider alternative conditions for admittance to and completion of the ARD program. To do otherwise would deprive the applicant her interest in repaying her debt to society without receiving a criminal record simply because, through no fault of her own, she could not pay restitution. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment. Returning to the fact of this case, the Commonwealth concedes that but for her inability to make full restitution within the two year ARD period, defendant would be considered for the ARD program. Defendant asserts that she was willing and able to pay court costs and that she was willing to make a good faith effort to pay restitution. Based on this scenario, we conclude that the State's refusal to place defendant in the ARD program was fundamentally unfair and invidiously discriminated against defendant because of her economic status. Accordingly, defendant's conviction and judgment of sentence are vacated. Case remanded to the trial court (with directions that defendant be admitted to the ARD program subject to such conditions as are not inconsistent with this Opinion).

Melnyk, 378 Pa. Super. 42, 548 A.2d 266 (9/12/88)

ISSUE TO BE DECIDED: Defendant tendered an open guilty plea to theft as a condition of enrolling in the Montgomery County Veterans’ Treatment Court [VTC] Program. The trial court determined that defendant should pay restitution in the amount of $34,857.24. Defendant successfully completed the Veterans’ Treatment Court Program. Since defendant had not paid the restitution, charges were not dismissed and defendant was sentenced to two years’ probation. Chapter 3 of the Rules of Criminal Procedure governs ARD programs, but it does not control problem solving courts such as the Montgomery County Veterans’ Treatment Court Program. We distinguish Melnyk, 378 Pa. Super. 42, 548 A.2d 266 (9/12/88). First, Melnyk challenged her exclusion from ARD. As discussed above, Veterans Treatment Court, absent authority to the contrary, is not ARD. Further, unlike Melnyk, defendant was not denied admission into a diversionary program. Rather, defendant sought and was granted admission into Veteran’s Treatment Court. As part of the VTC program, defendant — as well as the presiding judge and the court coordinator — signed the “Agreement to Participate in Veteran’s Treatment Court, Montgomery County PA” [Agreement], in which defendant agreed to numerous conditions. Among the conditions, the Agreement provided that restitution should be paid in full. Defendant signed and initialed the

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Agreement. Under these circumstances, which include defendant’s affirmative acts, we cannot conclude that defendant was deprived of fundamental fairness. Restitution was imposed as a condition of defendant’s sentence pursuant to 18 Pa.C.S. § 1106 which specifies that restitution is mandatory and the defendant’s financial resources, i.e., his ability to pay, is irrelevant unless and until he defaults on the restitution order. The trial court did not violate defendant’s rights or impose an illegal sentence.

McCabe, 230 A.3d 1199 (Pa. Super. 3/27/20) appeal granted, No. 50 MAP 2020 (granted 8/25/20) (argued 3/10/21)

18 Pa.C.S. § 1106(c)(2) mandates that “at the time of sentencing the court shall specify the amount and method of restitution” (emphasis added). This must be read in conjunction with Subsection (c)(4) requiring the Commonwealth to make a recommendation to the Court “at or prior to the time of sentencing.”

Ortiz, 854 A.2d 1280 (Pa. Super. 7/22/04) (en banc) appeal denied, 581 Pa. 674, 863 A.2d 1145 (11/12/04) Mariani, 869 A.2d 484 (Pa. Super. 1/21/05) Mulkin , 228 A.3d 913 (Pa. Super. 2/10/20) (restitution determination may not be deferred)

BUT SEE: On June 29, 2017, at the plea hearing, both counsel informed the trial court that the total restitution claimed exceeded $65,000.00, but that defendant disputed whether he was responsible for that total amount because some of the destroyed or damaged property had belonged to him [not to the victims]. Defense counsel requested a hearing be scheduled to determine the proper restitution amount. The trial court granted the request and proceeded with the guilty plea colloquy. Following the entry of the plea, the trial court proceeded to the non-restitution aspects of sentencing and imposed a time-served [207 day] sentence. Defense counsel then specifically requested defendant remain in the York County Prison, and not be released on a detainer to Maryland, until after the restitution hearing had occurred. The trial court granted counsel’s request, and its June 29, 2017 order included a provision scheduling the requested restitution hearing for August 28. On August 28, 2017, at the restitution hearing, the Commonwealth presented its witnesses and documentation supporting its proposed restitution amount. Defendant objected to the court’s jurisdiction, but the trial court overruled the objection and heard the evidence. The court was unable to complete the hearing in the time allotted, and the matter was continued to September 15, 2017 for defendant to present his case for a lower restitution amount. At the September hearing, defendant’s new counsel again argued the court lacked jurisdiction to enter a restitution order or amend the sentencing order because more than 30 days had passed since the June 29, 2017 order, which defendant deemed to be a final sentencing order. At the completion of the proceedings on

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September 15, the trial court entered an order directing defendant to pay $70,951.59 restitution. The circumstances of this particular case are unique in that defense counsel at the time of sentencing agreed to proceed with sentencing but disputed the restitution amount and requested an additional hearing. There is nothing in the Rules of Criminal Procedure or the Judicial Code that precludes a sentencing court from conducting a sentencing proceeding over multiple days as the needs of the parties and the court’s schedule may necessitate.9 Accordingly, the trial court announced the incarceration portion of the sentence with other conditions in an order dated June 29, 2017. In response to defendant’s request, the order included setting a date for a further hearing on August 28, 2017 to address certain factual issues about the ownership of the damaged property included in the Commonwealth’s valuation of restitution. 9This is of course subject to the Rule of Criminal Procedure requiring that sentencing be held within 90 days of a conviction or plea, unless a delay is granted for good cause. Pa.R.Crim.P. 704(A). On this record, it is apparent the sentencing court proceeded with a segmented or bifurcated sentencing hearing, resulting in a complete and final order only on September 15, 2017. Viewed in this manner, the sentence is compliant with Section 1106. SAYLOR, C.J. CONCURRING JOINED BY TODD, DOUGHERTY, JJ.: It was clear to all that the “Sentence Order” of June 29, 2017, was intended to be interlocutory, since a restitution hearing was contemplated at the initial sentencing hearing and was scheduled on the face of the order itself. Moreover, part of the sentencing court’s concern with proceeding with the incarceration portion of the sentence was to account for the fact that defendant had already served 207 days in prison, which was far greater than the minimum sentence contemplated by the court. Although the sentencing court’s reasoning was understandable, decoupling components of a sentencing scheme in such a fashion should only be undertaken in extraordinary circumstances, where the court has good and articulable reasons to support the proposition that one component will not affect the others. And I would be hard pressed to say that this could occur lawfully in a scenario in which the defendant did not overtly consent to this unusual procedure.

Cochran, ___ Pa. ___, 244 A.3d 413 (1/20/21) Link to: Saylor, C.J. concurring Link to: Wecht, J. dissenting [EDITOR’S NOTE: By this resolution, the Supreme Court did not find it necessary to decide the remedy for improperly ordered restitution, either vacating the entire sentence and remanding for complete resentencing or vacating only the restitution portion of the sentence.]

Collectible coins were stolen. The original cost of the property defendant stole was $86,974.93, while its “current value [based upon testimony at the restitution hearing regarding recent sales on Ebay]” was $58,600. The victim’s loss is not of past medical bills or future earnings, or of fungible, depreciating property that may readily be replaced, such as an automobile or a television. Nor is defendant capable of returning the coins to the victim, which defendant pawned for

127 far less than their value. Rather, defendant has forever deprived the victim of rare collectibles that he acquired, piece by piece, over many years, searching for those in perfect condition, with zero flaws under a certain power of magnification. Nowhere can the victim go to reacquire the whole of what defendant stole. In light of our legislature's demand for restitution to constitute the fullest compensation for a victim's loss, and the sentencing court's freedom to consider any matters it deems appropriate in determining the proper amount, we cannot agree with defendant that the value of the coin collection at the time he wrongfully acquired it was necessarily the proper measure. The limitation simply is not supported by the language of the statute or by the cases applying it. Defendant acknowledges that awarding the replacement costs of the property taken “makes the victim whole by creating the opportunity to repurchase that property and restore the pre-theft state of affairs.” However, defendant conflates replacement costs at the time of the restitution order with market value at the time of the theft, something that simply is not true where the stolen property fluctuates in value. Indeed, the record reflects that the replacement value of the whole collection at the time of the restitution hearing was substantially greater than the market value of the sum of its parts at the time it was unlawfully taken by defendant. In electing to set the victim’s acquisition costs as the full value of his loss, rather than the market values at the time of the theft of the individual coins and sets that comprised the collection, the sentencing court offered the following explanation: Though the coins themselves are tangible personal property, the actions of defendant are more analogous to the situation where someone steals a victim's stock portfolio and sells the stocks on a day when the market is down. Instead of the rightful owner getting to sell the stocks at their maximum value on a day of their choosing, a third party that caused them harm gets to set their deflated value and the victim must live with the injurious economic consequences of this bad actor.

A more just outcome is to award the victim what it initially cost that person to acquire the items, as that sets the real economic damage of what was taken from the bona fide owner. . . . In a situation such as this, the loss suffered by the victim to the collectibles was not only the market value of the coins on the date of the theft, but the opportunity to set the timing of the sale for a more beneficial day in the fluctuating market. The record supports the amount ordered, as the victim was very thorough in calculating the purchase price for the coins. As such, the amount of restitution the [c]ourt ordered . . . makes the victim whole, rather than making him suffer a loss artificially initiated in the down market by defendant’s malfeasance, a loss the owner would not have suffered but for the defendant’s untimely misconduct. This thoughtful consideration of the extent of the victim's loss in light of the atypical property involved evinces an utterly reasonable exercise of the sentencing court's considerable sentencing discretion. It entered a restitution order providing compensation

128 for a loss that the victim would not have sustained but for defendant's crime, and the amount chosen by the sentencing court representing that loss that is supported by the record. DUBOW, J. DISSENTING, JOINED BY LAZARUS, J.: The trial court used the purchase price because it found that the use of eBay sales did not reflect the fact that if defendant had not stolen the coins, defendant could have sold the coins at a more financially advantageous time and received more for the coins. In other words, the trial court acknowledged that the use of the eBay sales for an involuntary transfer did not fully compensate the victim because the involuntariness of the transfer deprived the victim of selling the coins at the most financially advantageous time. The Majority Opinion echoes this concern. I agree with this concern.1 I disagree, however, with using the purchase price of the coins as the appropriate methodology to determine the victim's loss. 1This is the reason I reject defendant's position that the trial court should have determined the restitution amount to be $55,600. I would instead use the methodology that courts have been using to value property in eminent domain proceedings. In an eminent domain proceeding, the court awards the property owner compensation for the involuntary loss of the property by determining the fair market value of the property on the date of the taking. The determination of the value of the coins and, thus, the amount of restitution that defendant should pay, should be based on the fair market value on the date of the theft. Included in this determination is the price for which a reasonable seller would have been willing to sell the coins on the day of the theft. The victim's testimony about sales on eBay does not reflect the concept of a “willing buyer” and a “willing seller.” Rather, it represented an average of sales, which is merely one factor that an appraiser uses and extrapolates from to determine the fair market value of property. Without expert testimony from an appraiser who can calculate the price at which a willing seller would sell and a willing buyer would purchase the coins, the trial court cannot determine the amount that will fully compensate the victim. The purchase price is not a reliable measure of the victim's actual loss on the date of the theft. At a minimum, the victim will not be compensated for those coins that appreciated in value. The practical implications of the majority's holding is that a victim will never be fully compensated if the defendant has stolen an item that appreciates in value. If a victim may only recover the purchase price of the item stolen and the item appreciates in value, the victim will only be partially compensated for his loss. Since the trial court must value a victim's loss at the time of the crime and the trial court in this case valued the loss based on the purchase price that reflects a value at a much earlier time, I would find that the trial court abused its discretion by valuing the coins according to their purchase price. I would reverse the decision of the trial court. At a new hearing, the parties should present expert testimony that reflects the involuntary nature of the theft of the coins and the value of the coins based upon the victim being a “willing seller” transacting with a “willing buyer” on the date of the theft.

Solomon, 247 A.3d 1163 (Pa. Super. 3/16/21) (en banc) Link to: Dubow, J. dissenting appeal pending, No. 193 MAL 2021 (filed 4/15/21)

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RRRI

A single first degree burglary conviction does not make a defendant ineligible for RRRI. The single, present, conviction does not constitute a history of violent behavior.

Cullen-Doyle, 640 Pa. 783, 164 A.3d 1239 (7/20/17) Link to: Todd, J. dissenting

Defendant and the Commonwealth agree that resisting arrest qualifies as a crime demonstrating violent behavior for the purposes of 61 Pa.C.S. § 4503(1). The only question in this case is therefore whether a single prior conviction for a crime demonstrating violent behavior, such as resisting arrest, constitutes a history of such behavior which is disqualifying for RRRI. While the present circumstances are slightly different than those in Cullen-Doyle in that this defendant's ineligibility for a sentence under the RRRI Act was based on a single prior conviction for a crime demonstrating violent behavior as opposed to Cullen- Doyle’s single present conviction for a crime demonstrating violent behavior, we nonetheless find its reasoning determinative.

Finnecy, ___ Pa. ___, 249 A.3d 903 (4/29/21) Link to: Saylor, J. concurring Link to: Wecht, J. dissenting

When a defendant is being sentenced for a non-violent crime, his or her single prior conviction for a non-enumerated crime of violence does not alone constitute a “history of past violent behavior” so as to trigger ineligibility for the RRRI program. Applying that holding in the present case, we conclude that, even if disorderly conduct under Section 18 Pa.C.S. § 5503(a)(1) is a crime of violence, defendant’s single prior conviction for that non-enumerated offense does not disqualify him from participating in the RRRI program while serving his present sentence for non-violent crimes.

Bradley, 237 A.3d 1131 (Pa. Super. 8/7/20) appeal denied, ___ Pa. ___, ___ A.3d ___ (6/9/21)

SORNA

ISSUE TO BE DECIDED:

Mr. Santana committed his underlying, sexual offense [in New York State] prior to SORNA’s 2011 enactment and effective date of December 20, 2012. When Mr. Santana

130 acted in 1983, he had no notice that Pennsylvania would impose the punitive, registration requirements of SORNA or otherwise punish him for failing to comply. Nevertheless, 28 years later, Pennsylvania imposed SORNA’s punitive, registration requirements upon him. SORNA’s registration requirements constitute after- the-fact punishment for crimes committed before December 20, 2012. By increasing Pennsylvania’s penalty for Mr. Santana’s 1983 crime from nothing to something, the Commonwealth disadvantaged Mr. Santana in this Commonwealth on December 20, 2012, when SORNA took effect. Because Mr. Santana’s crime occurred before that date, applying SORNA to him violates the Ex Post Facto Clauses. Defendant was permitted to withdraw his guilty plea to the criminal offense of failure to register. STABILE, J. DISSENTING, JOINED BY DUBOW, J.: The ex post facto analysis we must engage in requires only that we determine whether defendant’s registration failures supporting his conviction disadvantage him more than the registration obligations he already is subject to under New York law. I conclude the relevant provisions of SORNA do not, and therefore would affirm the trial court’s denial of defendant’s motion to withdraw his guilty plea.

Santana, 241 A.3d 660 (Pa. Super. 10/20/20) (en banc) Link to Stabile, J. dissenting appeal granted, No. 23 MAP 2021 (granted 4/12/21)

A petitioner’s negotiated guilty plea precludes subsequent application of a punitive registration scheme because it would effectively alter the petitioner’s agreed-upon sentence. This is so even where a negotiated plea agreement is silent regarding sex offender registration. Moreover, where a petitioner pleads guilty in exchange for a specific sentence, he is entitled to the benefit of that bargain. When a registration requirement is punitive, it effectively increases a defendant’s agreed-upon criminal sentence. Such an increase would not only violate ex post facto principles, but would alter a fundamental term of the bargain as to the sentence. However, when a registration scheme is not punitive, it constitutes a collateral consequence of a guilty plea. Further, because non-punitive registration requirements are not criminal punishment, they would not materially alter a negotiated term establishing a petitioner’s criminal sentence. Under these circumstances, a petitioner must demonstrate that non-registration, or a specific term of registration, was part of the negotiated plea. Here, to the extent defendant challenged his obligation to register under SORNA I, we agree that he is entitled to relief. We recognize that defendant’s plea agreement did not contain any terms related to sex offender registration. Moreover, at the time defendant pled guilty, Pennsylvania had not yet enacted laws requiring sex offender registration. Therefore, as noted by the trial court, non-registration could not have been a consideration in defendant’s decision to plead guilty. Nonetheless, defendant’s plea agreement set forth an agreed-upon sentence of fifteen to thirty years’ incarceration. Given our Supreme Court’s decision in Muniz, retroactive application of SORNA I’s punitive registration scheme would effectively increase defendant’s sentence. Therefore, although defendant’s plea agreement did not specifically preclude or limit sex offender

131 registration, we nonetheless conclude that defendant cannot be ordered to comply with registration requirements that would impose additional criminal punishment beyond what was stated in the plea agreement.

Moose, ___ A.3d ___ (Pa. Super. 1/4/21) (en banc) appeal pending, No. 53 MAL 2021 (2/3/21)

SUBPOENA

Defendant was charged with murder and related offenses. Prior to the preliminary hearing, defendant served a subpoena duces tecum on the Records Custodian of the Allegheny County Medical Examiner’s Office (“MEO”) pursuant to Pa.R.Crim.P. 107 seeking “the autopsy report for Vera Renee Williams Butler and all reports, documents and photographs associated with this investigation, including, but not limited to, the toxicology report, the mobile unit report, and any [MEO] section reports.” The MEO neither complied with the subpoena nor filed a motion to quash. Upon motion of the district attorney, the trial court quashed the subpoena. The Commonwealth asserts that defendant’s subpoena duces tecum constitutes an attempt to subvert the discovery process of criminal cases, in violation of Pa.R.Crim.P. 573. Specifically, the Commonwealth avers that defendant is trying to access pretrial discovery that is generally not available to an accused at the preliminary-hearing stage of a criminal proceeding. The Commonwealth further argues that the purpose of a subpoena duces tecum is the production of documents to be used before the court; it is not the object of the subpoena duces tecum to require the production of books and papers merely for the party’s inspection, and the subpoena should not be used as a fishing expedition. Our case law gives the Commonwealth significant control over the release of discovery as defined in Pa.R.Crim.P. 573. Although defendant argues that the requested materials are not discoverable under the rule, the autopsy report and arguably at least some of the other requested materials do constitute discovery to be disclosed by the Commonwealth under Pa.R.Crim.P. 573(B)(1)(e)(f). Also, the Commonwealth is correct in that the parties shall make a good faith effort to resolve discovery issues informally before filing a motion pursuant to Pa.R.Crim.P. 573(A), and that discovery is generally not available to an accused during the preliminary hearing stage. Indeed, our Court has interpreted Pa.R.Crim.P. 573(A)’s provision that a motion for discovery from a party “shall be made within 14 days after arraignment” as mandating that discovery motions must be filed after the formal arraignment. Commonwealth v. Jackson, 785 A.2d 117, 119 (Pa. Super. 10/17/01). As explained in Jackson, “[b]y waiting until after the formal arraignment, the parties and the trial court are better able to ascertain the parameters of appropriate discovery.” Id. at 120 n.4. Thus, we cannot conclude that it was an abuse of discretion for the trial court to require a showing of reasonableness by defendant in order to receive the information prior to the preliminary hearing. However, this case does not involve a motion for discovery served upon the Commonwealth; it involves a subpoena duces tecum served upon a third party. A subpoena duces tecum is presumed valid in criminal cases, and a criminal defendant is entitled to request any potentially exculpatory, non-privileged information. Furthermore,

132 the comment to Pa.R.Crim.P. 107 states that “a subpoena shall be used not only for trial but also for any other stage of the proceedings when a subpoena is issuable, including preliminary hearings. Thus, we discern some tension between Pa.R.Crim.P. 573 and Pa.R.Crim.P. 107. Nonetheless, we find Pa.R.Crim.P. 573 controlling. Pursuant to Pa.R.Crim.P. 573(F), the Commonwealth may seek a protective order and bears the burden of making a sufficient showing of the need for said order if it believes the discovery sought is improper or beyond the scope of Rule 573. However, we reiterate that discovery is generally not available to a criminal defendant during the preliminary hearing stage. Furthermore, it is unclear exactly what discovery defendant was seeking in this case, aside from the autopsy report. Some of the requested discovery may be considered discretionary, for which the defendant bears the burden of showing materiality and reasonableness under Pa.R.Crim.P.573(B)(2), or outside the scope of discovery. A defendant may not search untrammeled through Commonwealth files in order to argue the relevance of the materials found therein. Under Pa.R.Crim.P. 573 and case law interpreting the rule, and giving full consideration to a criminal defendant’s rights, we conclude that the burden shifts to the defendant to show that any discovery sought prior to the preliminary hearing is material to the preliminary hearing, and that the request is reasonable. Thus, if the order had been directed solely to defendant in this case, we would conclude that the trial court did not abuse its discretion in requiring a showing of reasonableness. However, to issue a blanket quashal order without a hearing or giving defendant an opportunity to respond and meet his burden was an abuse of discretion

Alston, 233 A.3d 795 (Pa. Super. 5/26/20) appeal denied, ___ Pa. ___, 240 A.3d 106 (10/14/20)

BUT SEE: After being arrested for DUI, defendant served a subpoena upon the Norristown Police Department’s police chief. Therein, she directed him (or the custodian of records) to appear at defendant’s pre-trial hearing and bring with him: A copy of: Any documents relating to the conduct of [defendant] or restraining officers, any records related to any investigation or use of force against [defendant], all policies, guidelines, and training materials promulgated by the department regarding witness interviews, DUI arrest, the use of force, custody and care of prisoners, use of force reporting requirements, restraint procedures for combative prisoners, and persons in custody with health issues. The police department filed a motion to quash the subpoena. Therein, the police department asserted the subpoena should be quashed on the basis it is overly broad, unduly burdensome, and “on its face … a fishing expedition.” Following a hearing, the trial court filed an order summarily granting the police department’s motion to quash the subpoena. Defendant filed a pre-trial discovery motion. Therein, defendant indicated she was seeking discovery of the material described in the exhibit attached to her motion. The exhibit was the subpoena, which defendant had served upon the police department and the trial court had quashed. Following a hearing, on April 26, 2019, the trial court filed an

133 order indicating defendant’s request was overbroad. The trial court gave defendant permission to narrow and refine her discovery request. Defendant filed a pre-trial discovery motion. Therein, defendant relevantly indicated: [Defendant] refines her request to include those documents, policies, guidelines, or training material, currently in effect and in possession of the Norristown police department, promulgated within the last ten years, used for training in the use of force, documenting use of force, for determining when use of force is appropriate and not appropriate, and any policies, guidelines, and materials related to internal investigations, and possible penalties for officer misconduct. The trial court denied defendant’s May 1, 2019, discovery request on the basis it was overly broad and the requested documents were not material. We agree with defendant that a subpoena may properly be issued in a criminal case directing a witness to appear before the court, as well as bring “any items identified or described.” Pa.R.Crim.P. 107. See Commonwealth v. Mejia-Arias, 734 A.2d 870 (Pa. Super. 6/14/99) (holding subpoena duces tecum is the proper means to secure information in personnel files of arresting officers); Commonwealth v. McElroy, 445 Pa. Super. 336, 665 A.2d 813 (9/1/95) (declining to hold Commonwealth responsible for tape recordings that were not in possession of prosecution and suggesting proper procedure for defendant was service of subpoena duces tecum upon proper custodian of record). With regard to obtaining records such as those requested by defendant, she must articulate a reasonable basis for her request; a criminal defendant is not entitled to a wholesale inspection of investigatory files. The strong public interest in protecting the privacy and safety of law enforcement officers, requires a narrowly targeted and supported request for relevant documents. A defendant has no right to obtain or review personnel records in the mere hope that she might uncover some collateral information with which to challenge the credibility of a police officer. We conclude the subpoena was overly broad. Given the broad scope of the subpoena, and defendant’s failure to articulate a reasonable basis for her request, we conclude the trial court did not abuse its discretion in quashing the subpoena. Defendant may not engage in a “fishing expedition” hoping to find something in the police personnel files, disciplinary files, policies, guidelines, or training materials, which might impeach the credibility of the officers involved in her case. She simply did not articulate a reasonable basis for her request which was likely to produce admissible evidence. Thus, we find defendant is not entitled to relief on this basis.

McFalls, 251 A.3d 1286 (Pa. Super. 5/10/21) appeal pending, No. 332 MAL 2021 (filed 6/8/21)

SUMMARY OFFENSES

The Motor Vehicle Code defines the offense of restrictions on use of limited access highways as follows:

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§ 3313. Restrictions on use of limited access highways *** (d) Driving in right lane.-- (1) Except as provided in paragraph (2) and unless otherwise posted, upon all limited access highways having two or more lanes for traffic moving in the same direction, all vehicles shall be driven in the right-hand lanes when available for traffic except when any of the following conditions exist: (i) When overtaking and passing another vehicle proceeding in the same direction. (ii) When traveling at a speed greater than the traffic flow. (iii) When moving left to allow traffic to merge. (iv) When preparing for a left turn at an intersection, exit or into a private road or driveway when such left turn is legally permitted. Although Wilson was travelling in the left lane, the record shows he was passing another vehicle travelling in the same direction and was going faster than the flow of traffic in the right lane, both permissible acts under the statute. Therefore, we find the evidence was insufficient to convict Wilson under Section 3313(d)(1).

Wilson, 237 A.3d 572 (Pa. Super. 8/21/20)

Trooper Hartless stopped Gurung’s vehicle when he observed Gurung twice fail to activate his turn signal when changing lanes on an off-ramp. First, Trooper Hartless saw Gurung move from the left lane to the right without a turn signal and then the trooper observed Gurung move from the center lane to the right lane without a signal when the ramp widened. The trooper did acknowledge that Gurung activated his turn signal when he made a right-hand turn at the end of the exit ramp. The rules of statutory construction lead us to conclude that 75 Pa.C.S. § 3334 requires drivers to use a turn signal when moving from one lane of traffic to another. Subsection 3334(a) provides that “no person shall . . . move from one traffic lane to another . . . unless and until the movement can be made with reasonable safety nor without giving an appropriate signal in the manner provided in this section.” This plain language indicates that drivers may only move from one lane of traffic to another if the driver both can make the movement safely and has given an appropriate signal. The suppression court and Gurung contend that the final phrase in the quoted portion, “in the manner provided in this section,” undermines our conclusion. They contend that Subsection 3334(b) is the portion of “this section” (i.e., Section 3334) where “the manner” of using a signal is “provided.” They point out that Subsection 3334(b) does not mention using a turn signal when changing lanes, but rather only sets the timing for signaling before making a turn and requires a signal when moving “from a parked position.” This line of reasoning violates the Statutory Construction Act and is untenable. Perhaps the most significant flaw is that it reads the phrase, “move from one traffic lane to another” out of Subsection 3334(a). That we cannot do. Rather, we must give effect to

135 all provisions of the statute. We therefore read the portion of Subsection 3334(a) requiring signals “in the manner provided in this section” merely indicates that other portions of Section 3334, such as Subsection 3334(b), set forth additional specifics regarding the use of the signal, where appropriate. Otherwise, we are left with the absurd conclusion that the General Assembly placed the words “moving from one traffic lane to another” in Subsection 3334(a) for no reason at all. Gurang's citation to this Court's decision in Slattery, 139 A.3d 221 (Pa. Super. 5/13/16), is inapposite. There, this court concluded that the police officer in question did not have probable cause to stop a defendant's car when the defendant had activated his turn signal less than 100 feet before changing lanes. The court emphasized that while Subsection 3334(b) requires a driver to use a signal 100 feet before turning, it does not set forth any distance that a driver must signal before changing lanes. That conclusion in no way contradicts our holding in this case. Here, the officer did not stop Gurung because he turned on his signal less than 100 feet before turning. Rather, Gurung did not activate his turn signal at all prior to changing traffic lanes. Accordingly, the suppression court thus erred in determining that Trooper Hartless did not have probable cause to stop Gurung's vehicle

Gurung, 239 A.3d 187 (Pa. Super. 9/17/20)

Philadelphia Police Officer Abdel Kanan observed defendant stop his car in a parking spot outside a grocery store on the 6400 block of Woodland Avenue in Philadelphia, a block from the police station. Officer Kanan, a two-year veteran of the department, stated he stopped defendant’s car and initiated an investigation because defendant pulled the car into the parking spot right in front of Cousin's Supermarket without using a turn signal. Officer Kanan admitted that upon approaching the car, he did not observe any furtive movements, did not detect any odor of marijuana or alcohol, and did not see any contraband or bulges in anyone's clothes. Officer Kanan searched the car and recovered a gun from the center console of the car. Here, the suppression court stated: [T]he court did not find the testimony of the Commonwealth's lone witness to be credible. In addition to assessing his demeanor on the witness stand, the court found Officer Kanan's testimony itself to be vague and conclusory (stating that he stopped defendant for pulling into an “illegal parking spot” without elaboration), and internally inconsistent (flip-flopping repeatedly on whether defendant made the alleged statement about the gun before or after it was recovered, as well as the number of times he made such a statement). In sum, Officer Kanan's testimony, in conjunction with his overall demeanor on the witness stand, rendered his testimony incredible. The Commonwealth presents two issues for our consideration: I. Did the [suppression] court err in suppressing a gun police found in the center console of the car [defendant] was driving, with his brother as a passenger, where the police stopped the car for a traffic violation at 1:30 in the morning, [Defendant] acted nervously and

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declined to respond to the officer's inquiries about whether there was a weapon in the car, the officer told him to exit the car and he was slow to respond, when he finally got out he immediately ran away, and when police apprehended him he blurted out that [ ] “the gun” was his and not his brother's? II. Did the [suppression] court err in suppressing [defendant’s] blurted statement as poisonous fruit of a supposedly illegal stop? The statute governing use of signals provides, in relevant part, as follows: § 3334. Turning movements and required signals (a) General rule.—Upon a roadway no person shall turn a vehicle or move from one traffic lane to another or enter the traffic stream from a parked position unless and until the movement can be made with reasonable safety nor without giving an appropriate signal in the manner provided in this section. 75 Pa.C.S. § 3334(a). Because the “violation” required no additional investigation, the officers were required to have probable cause to initiate the stop. Neither party cites any binding authority holding that a driver must use a turn signal before pulling into a parking spot. Our research has similarly failed to unearth any such authority. Simply stated, the terms of the statute require that a person shall not “turn a vehicle or move from one traffic lane to another or enter the traffic stream from a parked position” without giving a signal. 75 Pa.C.S. § 3334(a). The statute does not address moving out of the flow of traffic, or require the use of a turn signal to pull into a parking place. Defendant was not required under Section 3334(a) to use his turn signal, nor did he violate the Vehicle Code by pulling into a parking spot in front of a supermarket. Therefore, there was no probable cause to justify the stop of defendant's vehicle.

Tillery, 249 A.3d 278 (Pa. Super. 3/26/21)

Pennsylvania State Trooper Jared S. Mowen testified that at 1:30 a.m. he was driving on patrol on the New Berlin Highway. He described the road as “a country two- lane highway, [with] lots of intersections. It’s windy, curvy, hilly, your typical country road out in the middle of nowhere.” Trooper Mowen testified that there were houses alongside the road, but no sidewalks. There was no rain or snow on the ground. Trooper Mowen stated he saw Smith’s SUV drive past him, going in the opposite direction, “at a high rate of speed.” He saw the vehicle “for maybe a second or two.” There was no other traffic in sight. Trooper Mowen testified that the speed limit was 45 or 50 miles per hour, and he estimated Smith’s speed to have been 70 to 75 miles per hour. When asked how he was able to estimate the speed of Smith’s vehicle, Trooper Mowen stated he based this estimate on his “training and experience running radar and doing several other patrols.” Trooper Mowen testified that in his five years as a Trooper, there had been approximately a thousand times that he has sat in a location and “run radar” for an hour or more. After the stop of Smith’s vehicle, Mowen observed clear signs of intoxication and Smith was arrested. Smith argued that there was an absence of probable cause because

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Trooper Mowen did not articulate surrounding conditions or circumstances that would have made Smith’s speed unreasonable or unsafe. Smith contends that there were no adverse weather conditions, the area was rural and scarcely populated, there were no traffic, no pedestrians, no intersections, and no stop signs in the area, and no testimony regarding any specific sharp curves or hill crests. Smith also argued that Trooper Mowen should have followed Smith for a while, in order to gauge Smith’s speed more accurately, and that Trooper Mowen’s estimate of Smith’s speed when passing by him was unreliable. Smith relied on McCandless, 538 Pa. 286, 648 A.2d 309 (10/3/94), which Smith argued held that an officer’s observation of high speed in relation to other vehicles, alone, does not supply probable cause of unsafe driving. Smith’s reliance on McCandless is misplaced. In that case, the question was whether a police officer had probable cause of a violation of Section 3361 in order to support the officer’s pursuit of the defendant into a different jurisdiction. Our Supreme Court held that probable cause was lacking where the police officer based his belief only upon on his observation that the defendant’s vehicle was moving faster than other vehicles he had observed that night. Moreover, the officer was unable to estimate the defendant’s speed, and testified that he initially had only a reasonable suspicion that the vehicle was speeding, and that he decided to follow it to determine whether, in fact, it was speeding. Here, Trooper Mowen testified as to an estimate of Smith’s speed, his basis for that estimate, and the conditions of the road that made driving at such a speed unreasonable and unsafe. These facts supplied probable cause.

Smith, 237 A.3d 580 (Pa. Super. 8/27/20)

Pa.R.Crim.P. 720(D) provides: There shall be no post-sentence motion in summary case appeals following a trial de novo in the court of common pleas. The imposition of sentence immediately following a determination of guilt at the conclusion of the trial de novo shall constitute a final order for purposes of appeal. The official comment to Rule 720(D), which provides that, although post-sentence motions are not permitted in summary case appeals, a defendant may file a motion for reconsideration in a summary appeal case, and that such motion is governed by Section 5505 of the Judicial Code, 42 Pa.C.S. §5505 (governing Modification of Orders).

Clementi, 235 A.3d 473 (Pa. Cmwlth. 7/6/20)

Hughestown Borough Police Officer Drew Malvizzi testified that on October 28, 2017, at approximately 8:20 p.m., he observed a Toyota SUV pass in the opposite direction. Malvizzi looked in his patrol vehicle’s rearview mirror, and noticed that “no lights [were] illuminated on the rear of [defendant’s] vehicle, which made it seem as though a registration plate did not exist.” Based on this observation, Malvizzi turned his vehicle around and began following the defendant.

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While traveling approximately 20 feet behind defendant’s vehicle, Malvizzi saw that although the vehicle had a license plate, it lacked required lighting. Malvizzi then turned on his overhead lights to stop the vehicle based on a violation of Section 4303(b) of the Vehicle Code, which requires that “every 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.” Officer Malvizzi possessed probable cause to lawfully stop defendant for violating Section 4303(b) of the Motor Vehicle Code.

Shaw, 246 A.3d 879 (Pa. Super. 2/17/21)

Prior to trial, the Commonwealth withdrew all charges except for a summary offense. A judge of the Court of Common Pleas may hear a summary case. Further, the Pennsylvania Rules of Criminal Procedure provide that “[i]n any case in which all the misdemeanor, felony, and murder charges are withdrawn pursuant to this rule, any remaining summary offenses shall be disposed of in the court of common pleas.” Pa.R.Crim.P. 561(C) (emphasis added); see also Pa.R.Crim.P. 589(B) (“In any case in which all the misdemeanor, felony, and murder charges are withdrawn pursuant to Rule 561, any remaining summary offenses shall be disposed of in the court of common pleas.”). We do not agree with defendant that he is entitled to a trial de novo. The trial court in this case was not acting as an issuing authority.

Goldman, 252 A.3d 668 (Pa. Super. 5/14/21) appeal pending, No. 339 MAL 2021 (filed 6/9/21)

TERRORISTIC THREATS

Campbell was painting the floor of Saccko’s house in South Philadelphia. Campbell asked Saccko to give him $500 for more materials, and Saccko responded that he would only give Campbell $300. Campbell became angry and started yelling and cursing at Saccko, which caused Saccko to become scared of Campbell. Saccko picked up his phone to call the police, but Campbell slapped it out of his hand. Campbell went to his van, which was parked outside, and Saccko called the police. Campbell then returned to Saccko’s house. While the two men were on Saccko’s front porch, Campbell punched Saccko in the mouth. The punch knocked out two of Saccko’s teeth. Campbell then warned Saccko that “if you don’t give me money, I’m going to finish you.” Campbell drove away in his van. Saccko retreated to his car to wait for the police. A few minutes later, Campbell again returned to Saccko’s house, this time with his four children. Campbell walked up to Saccko in his car. Campbell removed a tire iron from a jacket he was now wearing and struck Saccko in the back of his head.

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When the police arrived, Saccko refused to take an ambulance to the hospital. He insisted on waiting for a locksmith to change the locks on his house because Campbell had a key to his house. After the locksmith changed the locks, Saccko did go to the hospital for treatment. Unlike other cases held to involve “transitory anger,” this case involved a threat of physical violence that was sandwiched between actual acts of physical violence by the declarant. Here, Campbell punched Saccko, told him he was going to “finish him” if he didn’t give him his money, and then returned to Saccko’s house and carried out his threat by assaulting Saccko with a concealed weapon. These circumstances clearly provided a sufficient basis from which the trial court as fact-finder could infer that Campbell threatened Saccko with the intent to terrorize him.

Campbell, ___ A.3d ___ (Pa. Super. 6/15/21)

ISSUE TO BE DECIDED:

Did the Superior Court misapprehend controlling facts, in a case of first impression in this Commonwealth, when concluding that the terroristic threats statute, requiring only a conviction based upon recklessness, did not violate [Petitioner’s] First Amendment right under the United States Constitution to free speech? [School student stated he “wanted to beat the record of 19.”]

Interest of J.J.M., 219 A.3d 174 (Pa. Super. 9/10/19) appeal granted, No. 23 MAP 2020 (granted 4/1/20) (argued 10/20/20)

THEFT, IDENTITY

The Crimes Code defines identity theft as follows:

§ 4120. Identity theft

(a) Offense defined. A person commits the offense of identity theft if he possesses or uses, through any means, identifying information of another person without the consent of that person to further any unlawful purpose.

…

(f) ["Identifying information" means] any document, photographic, pictorial, or computer image of another person, or any fact used to establish identity, including, but not limited to, a name, birth date, Social Security number, driver's license number, nondriver governmental identification number, telephone number, checking

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account number, savings account number, student identification number, employee or payroll number or electronic signature.

18 Pa.C.S. § 4120(a), (f) (emphasis added). Use of a false name to acquire goods is not Identity Theft. The Commonwealth must establish that the name used is the identity of a real person. It appears from the record that the name used was merely a fictitious name, not a specific person with real identifying information.

Newton, 994 A.2d 1127 (Pa. Super. 4/30/10) appeal denied, 608 Pa. 630, 8 A.3d 898 (10/14/10)

It was not defendant’s burden to disprove that the names associated with the credit cards he possessed were actual people; rather, it was the Commonwealth’s burden to prove that those names belonged to real human beings. The prosecution presented no evidence — direct or circumstantial — to suggest the names on the police scanner are real, living people with actual bank or credit card accounts. Rather, it is at least as likely that someone artificially generated the names and account numbers. The evidence was insufficient to prove that he stole the identity of “another person.” Accordingly, we reverse his conviction for identity theft.

Ballard, 244 A.3d 815 (Pa. Super. 12/22/20) Link to: Bender, P.J.E. concurring and dissenting

VENUE

The Commonwealth alleges that on February 13, 2016, Graham, along with Maria Gilligan and Corinne Pena, traveled from State Collage, in Centre County, to Lock Haven, in Clinton County. The purpose of this trip was for Graham to obtain heroin to sell to Gilligan and Pena. Graham met with a man named “Jay” in the Lock Haven area and obtained twenty-two bags of what Graham believed to be heroin. Graham then gave fourteen of those bags to Pena before Graham, Gilligan, and Pena drove back to State College. When Pena returned to State College, her friend, Robert Moir, picked her up from the parking lot near Walmart on North Atherton Street and drove her to his home. Later that evening, Pena ingested eight bags of what she believed was heroin. The bags actually contained fentanyl, and Pena subsequently died of a fentanyl overdose in Moir's home in State College, Centre County. ISSUE: Is venue proper in Centre County where the plan was formed and where the victim died or in Clinton County, where the drug delivery which resulted in death occurred? Our courts frequently look to 18 Pa.C.S. § 102 in determining the proper county in which a criminal trial should take place. Looking to this provision, § 102 provides, in relevant part, that an individual may be convicted in a county if, among other things, his “conduct which is an element of the offense or the result of which is such an element

141 occurs within the [county].” 18 Pa.C.S. § 102(a)(1) (emphasis added). Under § 102, then, venue is proper in a county where either an element of an offense or a required result occurs. An “element of an offense” consists of conduct which is “included in the description of the forbidden conduct in the definition of the offense.” See 18 Pa.C.S. § 103. Section 102 further provides that in the case of a homicide, “either the death of the victim . . . or the bodily impact causing death constitutes a result within the meaning of paragraph (a)(1) of this section[.]” 18 Pa.C.S. 102(c) (internal citations omitted). In the present case, the Commonwealth charged the defendant with drug delivery resulting in death, which involves two principal elements: (1) an intentional conveyance of any controlled substance or counterfeit controlled substance, and (2) death resulting from the use of the conveyed substance. The trial court concluded that while the victim died in Centre County, and while the death of an individual is an element of the instant offense, it would be inappropriate for Centre County to exercise venue since the only overt act was the defendant's conveyance of drugs to the victim, which occurred in Clinton County. In resolving the venue question presented in this case, the trial court relied solely on the defendant's overt act of conveying a controlled substance to the victim without regard to the resulting death that occurred in Centre County. The trial court misconstrued the plain language of § 102. The court seems to conclude that venue is proper only where an overt act occurred, regardless of the location where an elemental result transpires. Under the plain terms of § 102, however, venue is proper where either an element of the offense occurred or a required result took place. Here, the defendant conveyed a controlled substance to the victim in Clinton County and, thereafter, the victim ingested the drugs and died in Centre County. Under § 102, the statutory requirements for venue exist in both Clinton and Centre Counties. Since venue would be proper in either county under § 102, it was incumbent upon the trial court to assess the convenience of the parties in going forward with the proceedings in either Clinton County or Centre County. Because it was error for the trial court to exclude Centre County as a viable venue option, we vacate the court's transfer order and remand this matter for further proceedings in which the convenience of the parties can be assessed.

Graham, 196 A.3d 661 (Pa. Super. 9/24/18) Link to: Musmanno, J. dissenting

In the present case, the trial court correctly determined that venue was proper in Allegheny County where defendant sold decedent narcotics, and Clarion County where decedent died. Finding that venue was proper in both counties, the trial court balanced each county's convenience to the parties before concluding that Clarion County was more the appropriate venue for trial. It considered defendant's argument that all of the drug transactions at issue took place in Allegheny County and the controlled buys occurred in Allegheny County. It concluded, however, that the majority of evidence and witnesses related to this case are located in Clarion County. The court explained that, (1) the victim resided in Clarion County and died there; (2) the victim's autopsy was conducted by Dr. Vey, who performs autopsies for Clarion County; (3) the lead investigator and coordinator

142 of the controlled buys for this case is Chief Peck, who is the Chief Detective for Clarion County; and (4) most if not all of the witnesses for the Commonwealth, including Matthew McDerm[id] and Officer Roger Wright, reside in Clarion County. The trial court, thus, considered and balanced all of the relevant facts of the case. It properly applied controlling case law to determine that venue was proper in both Allegheny County and Clarion County and exercised its discretion in concluding that Clarion County was more convenient based on the location of the witnesses and other evidence. As a result, we discern no error of law or abuse of discretion.

Arrington, 247 A.3d 456 (Pa. Super. 3/8/21)

BUT SEE: Section 102 only provides a basis for the Commonwealth to exercise jurisdiction to prosecute crimes that occur in part outside of Pennsylvania. It does not eliminate the Commonwealth’s burden to produce sufficient evidence to prove every element of the crime charged beyond a reasonable doubt. It is undisputed that [although the death occurred in Pennsylvania,] the drug delivery here occurred in Maryland and therefore the conclusion must follow that the evidence was insufficient to establish a violation of the Drug Act. Because the Drug Act [35 P.S. § 780-113(a)], by its express terms, is violated only by a drug delivery that occurs [“within this Commonwealth”], and because the Commonwealth does not dispute that the drug delivery in this case took place in Maryland, the Commonwealth failed to meet its evidentiary burden.

Peck, ___ Pa. ___, 242 A.3d 1274 (12/22/20) Link to: Wecht, J. concurring

WIRETAP

143 we note that we too share in the Superior Court’s observation that there is a certain lack of statutory direction on this point, and that additional legislative guidance in this area would be beneficial.

Katona, ___ Pa. ___, 240 A.3d 463 (10/21/20) Link to: Mundy, J. concurring Link to: Donohue, J. dissenting

Father placed a hidden camera in the bedroom after he suspected defendant, a nanny, of physically assaulting his children who had been committed to her care. To establish a violation of the Wiretap Act, the claimant carries the burden to demonstrate, inter alia, that he possessed an expectation that the communication would not be intercepted and that her expectation was justifiable under the circumstances. To establish a prima facie case under the Wiretap Act for interception of an oral communication, a claimant must demonstrate: (1) that he engaged in a communication; (2) that he possessed an expectation that the communication would not be intercepted; (3) that his expectation was justifiable under the circumstances; and (4) that the [interceptor] attempted to, or successfully intercepted the communication, or encouraged another to do so. Placing this burden on defendants is consistent with the plain language of the Wiretap Act and comports with common sense, as the Commonwealth would have no incentive to demonstrate that a defendant has a justifiable expectation that her oral communication would not be intercepted, and the Wiretap Act does not require the Commonwealth or any other party to prove a negative, i.e., that the claimant did not have a justified expectation that his oral communication would not be intercepted under the circumstances of the case. For defendant's motion to exclude to succeed, she carried the burden of presenting evidence to establish that, under the circumstances of this case, she possessed a justifiable expectation that the oral communications, which were captured by the nanny cam in the children's bedroom, would not be intercepted. Defendant failed to meet this burden. Indeed, the only evidence defendant submitted at the suppression hearing was her brief testimony recounting her version of the conversation that took place between her and the children’s father regarding the lip injury suffered by one of his daughters. Defendant's testimony is woefully insufficient to demonstrate that she had a justifiable expectation that her oral communications would not be intercepted under the circumstances presented in this case. Further, absent demonstrable circumstances to the contrary, we believe it is objectively reasonable to conclude that persons in defendant's position do not have a justifiable expectation that their oral communications will not be subject to interception while they are in a child's bedroom. Notably, the use of recording devices in homes as a means for parents to monitor people hired to care for their children have become so commonplace that these devices are often referred to as “nanny cams.” That is to say that the expectation that a childcare worker is going to be recorded in their employer's home is so ubiquitous in our society that we have a name for it. Indeed, as observed above, defendant used this term throughout her motion to suppress to describe the recording device used by the father.

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For these reasons, we hold that: (1) defendant failed to establish that the audio recordings captured by the nanny cam constitute an “oral communication” as defined by the Wiretap Act, insomuch as defendant did not demonstrate that she had a justifiable expectation that her oral communications would not be intercepted by a device located in the children's bedroom, see 18 Pa.C.S. § 5702 (defining “oral communication” as “Any oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation.”); and (2) a nanny does not have a justifiable expectation that her oral communications will not be intercepted in the bedroom of a child in her care simply because the nanny is an employee and guest of the homeowner.

Mason, ___ Pa. ___, 247 A.3d 1070 (3/25/21) Link to: Dougherty, J. concurring Link to: Donohue, J. dissenting Link to: Wecht, J. dissenting

ISSUE TO BE DECIDED:

On February 2, 2017, at approximately 2:00 a.m., on the Moravian College campus in Bethlehem, Pennsylvania, two men wearing ski masks pretended to be campus police to gain access to the dorm room shared by Greg Farina and William Reilley, a Moravian student known to sell marijuana on campus. When Farina opened the dorm door, one of the masked men punched Farina, causing him to fall. The masked men held the students at gunpoint and demanded marijuana and the key to Reilley's footlocker. The masked men accessed the footlocker and took approximately $1,000 in cash as well as a jar of marijuana. Before leaving the dorm, the perpetrators hit Reilley and Farina on the sides of their heads. Several hours later, around 11 a.m., Reilley reported the robbery to campus officials. Campus Police Officer Thomas Appleman requested that Moravian's Director of Systems Engineering, Christopher Laird, analyze its wireless network (WiFi) data to compile a list of the students logged on to the network near the wireless access point in the dormitory building where Reilley and Farina resided. Campus officials discovered, at the time of the robbery, there were only three individuals logged onto the campus WiFi at that location that did not reside in that building. Two of the three WiFi users were female. The male user was defendant, who was also a Moravian student. After defendant was arrested and charged with the aforementioned offenses, he filed a suppression motion, arguing that the campus police conducted an illegal search in obtaining the campus WiFi log-on data without first obtaining a warrant. At one of the suppression hearings held by the trial court, Moravian Systems Engineering Director Laird explained that, in order to utilize Moravian campus WiFi, each student must log on to the network with their individual username and password. However, at their initial log-on, students may choose to have their devices automatically log on to the campus WiFi without entering their credentials again.

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The parties also noted that defendant had signed the Moravian Student Handbook when enrolling at the college, indicating that he accepted and understood Moravian's policies, including the following technology rules: Logging in to or otherwise connecting to the campus network implies acceptance of this Moravian College . . . Policy. . . . *** The institution's computing equipment and network resources are dedicated to Moravian business to enhance and support the educational mission of Moravian College. These resources include all computers, workstations, and multi-user computer systems along with local area networks and wireless networks via the Internet. *** [A]ny data transmitted over institutional assets or connections made through institutional assets are included. The institution has the right to inspect information stored on its system at any time, for any reason, and users cannot and should not have any expectation of privacy with regard to any data, documents, electronic mail messages, or other computer files created or stored on computers within or connected to the institution's network. All Internet data composed, transmitted, or received through the Internet's computer system is considered part of the institution's records and, as such, subject at any time to disclosure to institutional officials, law enforcement, or third parties. . . Defendant claims this case is controlled by Carpenter v. United States, __ U.S. __, 138 S.Ct. 2206, 201 L.Ed.2d 507 (6/22/18). While the Supreme Court held that “an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI,” the Supreme Court pointed out that the holding in Carpenter was not simply about “using a phone” or “a person's movement at a particular time.” Id. at ___, ___, 138 S.Ct. at 2217, 2220, 201 L.Ed.2d at ___, ___. Further, the Supreme Court emphasized that its decision was “narrow” and indicated that it was not expressing a view on real-time CSLI or “tower dumps” (“a download of information on all the devices that connected to a particular cell site during a particular interval”). Id. at ___, 138 S.Ct. at 2220, 201 L.Ed.2d at ___. The Supreme Court added that its decision was not calling in to question “conventional surveillance techniques and tools, such as security cameras . . . or business records that might incidentally reveal location information.” Id. at ___, 138 S.Ct. at 2220, 201 L.Ed.2d at ___. The Carpenter decision did not invalidate “tower dump” requests by law enforcement to identify all of the devices that were connected to one particular cell site during a particular interval. This action by campus police in this case is akin to a “tower dump” request as campus security sought general network connection information from one of Moravian's wireless access points near the location of the robbery at the time it occurred. The campus police did not target a specific individual or attempt to track an individual's movements but instead merely sought to compile a list of all the devices signed on to the WiFi in the Hassler dorm at the time of the robbery. Using the process of elimination, campus officials were able to determine that, at the time of the robbery,

146 defendant was the only male student logged on to campus WiFi at the Hassler dorm who did not reside in that location. Defendant also does not appreciate the difference between the CSLI obtained in Carpenter and the WiFi data obtained in this case. Whereas CSLI tracks an individual's movements at all times of the day regardless of where he travels, the WiFi data in this case is only collected when an individual logs onto the campus wireless network and is present on the Moravian campus. We agree with the trial court's observation that the Moravian WiFi network is confined to the college campus and offered as an available option to students and faculty. When college officials seek to determine which students are logged on to the network near a particular wireless access point at a particular time, the private wireless network functions similarly to a security camera that may exist at the college. As such, the decision in Carpenter does not invalidate the warrantless search in this case. Moreover, defendant cannot reasonably argue that he was subjected to an illegal warrantless search under the Fourth Amendment when he specifically consented to Moravian's internet use policy, which clearly stated that individuals who choose to utilize the campus computer system and wireless network provide authorization for the college to collect and disclose all internet data composed, transmitted, or received through the campus computer system and its network connections.

Dunkins, 229 A.3d 622 (Pa. Super. 2/12/20) appeal granted, No. 45 MAP 2020 (granted 8/4/20) (argued 3/9/21)

ISSUE TO BE DECIDED:

In 2015, the Montgomery County District Attorney's Office, Narcotics Enforcement Team, working with the DEA, uncovered a large criminal conspiracy as part of a heroin- trafficking investigation. The District Attorney's Office learned that a Mexican drug cartel was smuggling heroin into the United States for distribution. They believed that Pacheco, a Norristown, Pennsylvania, resident, played a significant role in this operation by transporting drugs from Georgia to New York. At various times throughout their nearly year-long investigation, Montgomery County prosecutors sought and obtained orders pursuant to the Wiretap Act. Some of those orders, issued on August 28 and October 15, 2015, also included "ping" requests that specifically authorized the cell phone company to send signals to Pacheco's phone at intervals and times as directed by law enforcement. These signals gave investigators real-time CSLI so they would know Pacheco's location. The Montgomery County Court of Common Pleas issued those orders under Subchapter E of the Wiretap Act, which authorizes the collection of mobile communication tracking information in limited circumstances. These orders generated both historical CSLI and real-time CSLI. Prosecutors and detectives analyzed the information they obtained through the various orders issued under the Wiretap Act. They identified multiple occasions between September 2015 and January 2016 when Pacheco traveled to Georgia and New York. On each trip, Pacheco obtained a car battery containing three kilograms of heroin in

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Atlanta, Georgia, returned briefly to Norristown, Pennsylvania, and then transported the heroin to the Bronx, New York, using his cell phone to facilitate the transactions. By monitoring intercepted telephone calls from orders not challenged on appeal, detectives learned that, on January 10, 2016, Pacheco would be driving back from Atlanta, through Norristown, with a retrofitted car battery containing three kilograms of heroin. Police assembled a surveillance team along Pacheco's anticipated route and apprehended him in Montgomery County. A search of his vehicle revealed three kilograms of heroin hidden in the car's battery.4 4The amount of heroin seized from one car battery was equivalent to approximately one hundred thousand single-dose bags. The total amount of heroin Pacheco transported and possessed, 27 kilograms, was worth $8.9 million on the street. In the wake of Carpenter v. United States, __ U.S. __, 138 S.Ct. 2206, 201 L.Ed.2d 507 (6/22/18), other courts addressing this question have determined that real-time CSLI is subject to the same privacy concerns as historical CSLI [collecting cases]. Indeed, even before Carpenter, several courts determined that when law enforcement obtained real- time CSLI in the context of a criminal investigation, it was a search under the Fourth Amendment [collecting cases]. We find no meaningful distinction between the privacy issues related to historical and real-time CSLI. In our view, the High Court's rationale in Carpenter extends to real-time CSLI tracking. There are three requirements for a search warrant. First, warrants must be issued by neutral, disinterested magistrates. Second, those seeking the warrant must demonstrate to the magistrate their probable cause to believe that the evidence sought will aid in a particular apprehension or conviction for a particular offense. Finally, warrants must particularly describe the things to be seized, as well as the place to be searched. The court orders in question were obtained by Montgomery County District Attorney's Office pursuant to Subchapter E of the Wiretap Act. We find that these "orders" met the requirements for a search warrant. First, the orders were issued by a judge of the Court of Common Pleas of Montgomery County, a neutral, disinterested, judicial officer authorized to issue such orders under the Pennsylvania Wiretap Act. Second, the orders specifically state that the court found "probable cause" that the information sought would aid in the apprehension of a particular individual for a particular offense. They identify the individual, "David Pacheco . . . a source for heroin." And, they identify the criminal offenses “including but not limited to the Manufacture, Delivery and or Possession with Intent to Deliver a Controlled Substance; Criminal Conspiracy; and Criminal Use of a Communication Facility.” Third, the orders described the place to be searched (Pacheco's cell phone) and the items to be seized (the real-time CSLI for that phone). Because the orders met the three requirements, they were in fact warrants under the Fourth Amendment.17 Therefore, the search in this case was legal. 17We note that this court previously ruled that orders issued under the Pennsylvania Wiretap Act may serve as "the functional equivalent of traditional search warrants," provided the orders were issued by the court upon a showing of the requisite level of suspicion. See Burgos, 64 A.3d 641, 655 (Pa. Super. 2/20/13), appeal denied, 621 Pa. 686, 77 A.3d 635 (10/10/13) (emphasis added). We clarify that ruling today by holding, pursuant to Dalia v.

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United States, 441 U.S. 238, 99 S.Ct. 1682, 60 L.Ed.2d 177 (4/18/79), that orders duly issued by the court under the Pennsylvania Wiretap Act, supported by probable cause, and particularly describing the place to be searched and the items to be seized, are "warrants" under the Fourth Amendment. The nomenclature of the statute is irrelevant. Furthermore, the instant orders were obtained pursuant to affidavits of probable cause, each more than thirty pages long, detailing the specifics of the criminal investigation into this Mexican drug cartel's activities in the United States, and Pacheco's suspected role in that operation. The affidavits attested to the personal observation of the affiant, information provided by other investigators and law enforcement agencies, several confidential and reliable informants, and information from other electronic and physical surveillance. Finally, and most importantly, these orders, when read in their totality, indicate that the court found probable cause that the information obtained would lead to evidence that Pacheco was violating specific provisions of the Crimes Code and would enable law enforcement to track and locate him through his cell phone.

Pacheco, 227 A.3d 358 (Pa. Super. 1/24/20) appeal granted, No. 42 MAP 2020 (granted 7/28/20) (argued 3/9/21)

SEE ALSO: Investigators obtained Cell Site Location Information (CSLI) pursuant to an application and common pleas court order pursuant to the Wiretap Act. Subsequent to the decision in Carpenter v. United States, __ U.S. __, 138 S.Ct. 2206, 201 L.Ed.2d 507 (6/22/18), Detective James Lavin was contacted by the DA’s office and was asked to obtain a search warrant for defendant’s cell phone records. Detective Lavin reviewed various records and a surveillance video, but he did not review the call detail records obtained under the Wiretap Act. He did review the affidavit supporting the application under the Wiretap Act but did not speak with the affiant officer. No information obtained from the call detailed records, as obtained pursuant to the Wiretap Act, was included in the subsequent affidavit of probable cause prepared by Detective Lavin. The search warrant was not tainted by the prior acquisition of CSLI pursuant to the procedures in the Wiretap Act.

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WITNESS

Competency

The general rule is that every person is presumed to be a competent witness. Before a witness under the age of fourteen may testify, Pennsylvania requires the examination of the witness for competency. Our standard of review recognizes that a child's competency to testify is a threshold legal issue that a trial court must decide, and an appellate court will not disturb its determination absent an abuse of discretion. Our scope of review is plenary. A party who challenges the competency of a minor witness must prove by clear and convincing evidence that the witness lacks ‘the minimal capacity (1) to communicate, (2) to observe an event and accurately recall that observation, and (3) to understand the necessity to speak the truth. Defendant was given ample latitude to cross-examine A.O. with respect to her ability to understand the difference between the truth and a lie. At the initial hearing on June 14, 2018, defense counsel asked no questions. On the first day of trial, A.O. demonstrated, through questioning by the trial court and cross-examination by Defendant in chambers, that she understood those concepts, as she had at the prior competency hearing. Defendant's emphasis on the definition of “oath” is not an age-appropriate concept, but A.O. clearly was able to demonstrate she understood the duty to tell the truth. When A.O. took the stand on the second day of trial, she revealed the ability to perceive and remember the abuse events and understood and communicated candid, intelligent answers about the abuse. The trial court did not abuse its discretion in finding A.O. competent to testify as a witness in this case.

Saez, 225 A.3d 169 (Pa. Super. 12/20/19) appeal denied, ___ Pa. ___, 234 A.3d 407 (5/27/20)

Confrontation

The victim testified via closed circuit television. Defendant posits the Commonwealth failed to establish that the victim would have suffered severe emotional distress or an inability to communicate were she required to testify in the presence of defendant. Defendant reasons that the testimony of the victim's adoptive mother, J.W., did not defeat defendant's constitutional right to confront her witnesses in a criminal proceeding. Defendant stresses J.W. admitted the victim had not been under the care of a psychiatrist or other medical provider, was not having difficulty sleeping or eating, was happy at home and at school and did not take any medication as a result of this incident OR perhaps most importantly, having to do with the prospect of testifying. In the instant matter, the Commonwealth presented the testimony of [J.W.] who, as mentioned above, is the adoptive mother of the child victim. [J.W.] testified that her family stopped going to many community events in a certain area after the child victim came to live with them because the child victim has expressed a fear of encountering [defendant] and her co-defendant. [J.W.] testified that she was with the child victim at a

150 community event in 2018 where the child saw [defendant] in this matter and that upon seeing her, the child victim became pale, sweaty and started to shake. According to [J.W.], it took some time for the child victim to physically calm down after seeing [defendant] and she continued to act in a reserved manner and repeatedly look over her shoulder while at the event. [J.W.] also testified that despite the child victim never having testified in a courtroom where [defendant] and/or the co-defendant were physically present, that her grades have suffered, she has lost sleep and has displayed nervous behavior in the past when she knew a day was approaching where she would need to testify. When the child victim was brought to the courtroom for an explanation of how her testimony at trial would be conducted, [J.W.] observed the child state that she could not do it, did not want to see [defendant] or the co-defendant and was afraid. The [trial judge] also personally observed and questioned the child outside of the courtroom. It was observed that when the child began discussing the possibility of seeing [defendant] and the co-defendant in the courtroom, that she began to physically tremble and was noticeably and repeatedly squeezing some kind of stress ball. Her hand was trembling so bad at one point that the undersigned judge asked to see it. Later, when discussing how the child would feel seeing [defendant] and co-defendant in the courtroom with the sheriffs present, her leg began shaking particularly bad and it was noted on the record. The [trial judge] found the physical demeanor of the child, including the trembling and repeated squeezing of the stress ball, to be to an extent that it was distracting. Furthermore, the child stated that the prospect of seeing [defendant] and the co- defendant face-to-face scares her and makes her nervous because she is afraid they will do something to her again. She stated that she feels this despite being reassured by her adoptive mother that it will not happen and that she is not going to reside with them again. The child's fear was strong enough that she thought about and found relief from the fact that there would be sheriffs present in the courtroom with her. The trial court based its decision on what it heard from the victim and her adoptive mother along with its own observations of the child as it was required to do under Section 5985. Such testimony, coupled with the trial court's stated observations, clearly supports a finding that defendant's presence would have caused serious emotional distress and impaired the victim's ability to communicate in the courtroom.

Hudson-Greenly, 247 A.3d 21 (Pa. Super. 2/22/21)

Expert

Defendant was charged with repeated sexual assaults upon a young girl, starting when she was age 13 and continuing for many years. Throughout the trial, defense counsel focused on discrepancies in the victim's recounting of events in an attempt to undermine her credibility. These discrepancies related to the timing and location of certain sexual assaults. At one point, the Commonwealth called as a witness Detective Scott Holzwarth, who interviewed the victim during the course of the investigation. The following exchange occurred.

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[The Commonwealth]: Did [the victim] indicate whether or not this had been going on multiple times? [Detective Holzwarth]: Yes. [The Commonwealth]: And in your training and experience, Detective, do kids often have trouble remembering each and every time when this is an ongoing incident? [Detective Holzwarth]: Yes, they do. As a matter of fact, in our criminal complaints we normally put a little blurb in there that explains that victims [Defense Counsel]: Your Honor, I would object to this as expert testimony. This is an opinion. The Court: I'm going to overrule. [The Commonwealth]: Please continue, Detective. [Detective Holzwarth]: that explains that victims sometimes have trouble remembering exact dates when events have happened. [The Commonwealth]: And have you also found in your training and experience with your specific cases whether or not victims will have trouble recalling in each incident that they're assaulted every single detail of the assault? [Detective Holzwarth]: Yes. [The Commonwealth]: And do they often times get the times that those things happened confused with other times that they discuss with you? [Detective Holzwarth]: Yes. Very often.

On cross examination, defense counsel asked Detective Holzwarth if it was possible that a victim's delay in reporting or inability to provide details about sexual assault incidents could mean that no abuse occurred in the first instance, to which the detective agreed. Whether Detective Holzwarth's testimony, predicated on his knowledge and experience as a police officer, was properly admitted as lay opinion testimony requires an examination of two relevant Pennsylvania Rules of Evidence. Rule 701 permits lay witnesses to provide opinion testimony only if such testimony meets three limiting criteria: Pa.R.E. 701. Opinion Testimony by Lay Witnesses If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Pa.R.E. 701. The first and second criteria outlined in the rule are self-explanatory, in that they simply require that a witness's opinion testimony be based upon personal knowledge and be helpful to the jury in understanding the witness's testimony or a fact at issue. The final limiting criteria precludes lay witness opinion testimony based upon scientific, technical, or other specialized knowledge that falls within the realm of expert opinion testimony as outlined by Rule 702, which provides as follows:

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Pa.R.E. 702. Testimony by Expert Witnesses A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson; (b) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and (c) the expert's methodology is generally accepted in the relevant field. Pa.R.E. 702. We have explained that expert testimony is permitted only as an aid to the jury when the subject matter is distinctly related to a science, skill, or occupation beyond the knowledge or experience of the average layman. We conclude that the opinion testimony by Detective Holzwarth on the inability of child victims of sexual abuse to recall specific dates and details was based upon scientific, technical, or other specialized knowledge within the scope of Rule 702. Specifically, Detective Holzwarth based his testimony on his training and experience investigating sexual assaults. Nevertheless, this did not require Detective Holzwarth to testify solely as an expert. In Huggins, 68 A.3d 962 (Pa. Super. 5/7/13), appeal denied, 622 Pa. 756, 80 A.3d 775 (11/19/13), the Superior Court held that the plain language of these rules do not preclude a single witness from testifying, or offering opinions, in the capacity as both a lay and expert witness on matters that may embrace the ultimate issues to be decided by the fact-finder, so long as the jury is properly instructed to avoid confusion. In light of Huggins, the Superior Court erred in concluding that the instant testimony was admissible as lay opinion because it did not involve specialized knowledge within the realm of expert testimony. Here, Detective Holzwarth primarily functioned as a fact witness but was also called upon to offer general opinion testimony concerning whether or not it was common for child victims of sexual assault to have trouble remembering dates and details of ongoing sexual assaults. Detective Holzwarth was asked to provide insights gained through specialized occupational training and experience not within the average layperson's knowledge base as required by the plain language of Rule 702(a). Detective Holzwarth called upon the wealth of his knowledge and training as a detective with extensive experience investigating sexual assaults and made connections for the jury based on that specialized knowledge. While some laypersons may be aware of common behaviors and responses to sexual abuse, it would be a generalization to assume that the average juror is privy to the complex psychological dynamics surrounding sexual abuse. Accordingly, we hold that testimony from a law enforcement officer concerning child victims’ typical behaviors and responses to sexual abuse, when based on that officer's training and experience, falls within the realm of expert testimony. Moreover, Title 42, Section 5920 specifically provides that such testimony is an appropriate topic for expert analysis. We further emphasize that whether expert testimony on this topic is admissible is subject to all other admissibility concerns, such as proper qualification as an expert.4

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4The Commonwealth's framing of its questions in terms of training and experience significantly impacts our decision in this case. By doing so, the Commonwealth signaled the imprimatur of the detective to provide generalized expert testimony regarding behavior patterns of child victims of sexual abuse. We note, however, that testimony from the detective based solely on factual observations, without extrapolation to victim behavior generally, would arguably be admissible as lay opinion testimony, as it does not signal any type of specialized knowledge. The detective was not qualified as an expert witness. His expert testimony was improperly admitted by the trial court. The trial court’s error was not harmless. Whether the legislature's enactment of Section 5920, which allows for expert testimony concerning victim behavior in response to sexual abuse in certain criminal proceedings involving sexual offenses, effectively overruled our decision in Dunkle, 529 Pa. 168, 602 A.2d 830 (1/22/92), poses a question of law, for which our standard of review is de novo and our scope of review is plenary. The parties touch upon two aspects of our holding in Dunkle. The first being the conclusion that testimony concerning the reasons why child victims of sexual assault delay reporting sexual assaults, omit reporting details of sexual assaults, or are unable to recall details of sexual assaults was easily understood by laypersons and did not require expert analysis. With respect to this holding, defendant agrees that Section 5920 is a proper exercise of legislative authority insofar as it deems admissible certain expert testimony involving facts and opinions regarding specific types of victim responses and victim behaviors to sexual abuse. The Commonwealth similarly does not take issue with the legislature's authority to statutorily allow such testimony, but maintains the provision merely creates a means for admission of expert testimony on this topic when appropriate and does not necessarily preclude lay witnesses from also commenting on this topic. We agree with defendant that Section 5920 effectively overruled Dunkle in this regard. In Olivo, 633 Pa. 617, 127 A.3d 769 (11/18/15), this Court found that Section 5920 did not violate our exclusive control over judicial procedures pursuant to Article V, Section 10(c) of the Pennsylvania Constitution. We concluded that the statute constituted a rule of evidence governable by statute, and also deemed it substantive rather than procedural as it permits both parties to present experts to testify to facts and opinions regarding specific types of victim responses and victim behaviors. Olivo did not provide us with an opportunity to comment on the continued validity of Dunkle in light of the provision. However, based on Olivo, which found Section 5920 to be a proper exercise of legislative authority, as well as our above analysis recognizing that such testimony falls within the realm of expert testimony under our rules of evidence and Huggins, we now necessarily hold that Section 5920 effectively overruled Dunkle to the extent that case can be read as categorically prohibiting expert testimony concerning victim behavior in response to sexual abuse due to it being within the ken of laypeople and not requiring expert analysis. We disagree with the Commonwealth's assertion that Section 5920 does not preclude lay opinion testimony on this topic, but merely created an avenue for expert testimony when appropriate. To conclude that some lay testimony on this subject matter is permissible would undermine our conclusion that the behavior of child sexual assault victims is beyond that generally understood by the average layperson.

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It is well-settled that expert testimony on the issue of a witness's credibility is impermissible, as it encroaches on the province of the jury to make such determinations. Notwithstanding, we decline to read Dunkle so broadly as to preclude all expert testimony concerning victim responses and behaviors to sexual assaults. While some testimony on this topic may be prohibited for impermissibly invading the jury's province of determining credibility, we disagree that all testimony will. Whether or not this prohibition has been violated must instead be assessed on a case by case basis. We additionally note that Section 5920 complies with this notion on its face, as it explicitly provides that a properly qualified expert may testify to facts and opinions regarding specific types of victim responses and behaviors in certain criminal proceedings involving sexual assaults, provided experts do not offer opinions regarding the credibility of any witness, including the victim. See 42 Pa.C.S. § 5920(b)(3) (“The witness's opinion regarding the credibility of any other witness, including the victim, shall not be admissible.”). For these reasons, we hold that Dunkle remains valid insofar as it precludes expert testimony concerning victim responses and behaviors that touch upon witness credibility, but decline to find that the case categorically precludes expert testimony concerning victim behavior in response to sexual abuse. This said, whether Detective Holzwarth's testimony complies with the foregoing admissibility considerations is a question for the trial court upon remand.

Jones, ___ Pa. ___, 240 A.3d 881 (10/30/20)

COMPARE: Here, with the aid of a crime scene photograph, Officer Ananea testified that he saw blood droplets on a wall, seven to eight feet from the ground. The evidentiary rules permit him to offer an opinion as to how blood droplets were transferred to the site of their discovery based upon his personal perceptions. We discern no abuse of discretion in allowing Officer Ananea's testimony. Furthermore, his blood spatter analogy of “flailing around” a “wet paint brush” did not require expert knowledge. We also note that defendant had the opportunity to cross-examine Officer Ananea and did so by testing his theory using a different hypothetical example of blood “cast-off.” Moreover, we would conclude that any error in admitting the evidence was harmless.

Williams, 241 A.3d 1094 (Pa. Super. 10/8/20)

In a child sexual assault prosecution, a Commonwealth witness, Carolyn Castano, conducted a forensic interview with the child, L.B. At trial, on direct examination, Castano testified about the significance of “sensory detail” during the interview. “A child’s ability to describe a situation, including details of how something sounded or something tasted or something felt, speaks to an experience having occurred.” Defendant’s objection was overruled. We do not find that the trial court abused its discretion in admitting Castano’s testimony. She appropriately explained that sensory detail speaks to an experience

155 having occurred. She did not offer any opinion testimony, and in particular, any opinion that based upon L.B.’s report of sensory detail that L.B. was the victim of sexual abuse by the defendant.

T.B., 232 A.3d 915 (Pa. Super. 5/18/20) appeal denied, ___ Pa. ___, 240 A.3d 98 (10/5/20)

Dr. Scotilla was permitted to testify about defendant's history of physical and sexual abuse and neglect, as well as testing which led him to a diagnosis of Post- Traumatic Stress Disorder (PTSD). He described symptoms of PTSD, including hypervigilance, overreaction and dissociation. The trial court precluded Dr. Scotilla from testifying to a degree of psychological certainty that defendant's behavior during the stabbing was consistent with his examination and diagnosis. Dr. Cox, a forensic pathologist/toxicologist, was called to testify regarding the effect of the various substances found in the decedent's system, and their combined effect on an individual's behavior. The defense proffered that Dr. Cox would testify that due to the multiple drugs used, the decedent would have acted in an aggressive way and could have been suffering from hallucinations, as had been stated within the expert report. Generally, the court permitted Dr. Cox to testify that the controlled substances in the victim's system were consistent with certain conduct such as bizarre behaviors and aggression, but Dr. Cox could not testify that was the way the victim acted on the night in question. With regard to Dr. Scotilla, the trial court noted that while his report delved into defendant's mental health history and diagnosis, it did not relate that information to the alleged facts of this incident, even in hypothetical form. Dr. Scotilla's report contained no discussion of the facts that allegedly caused defendant to act in the heat of passion. Regarding Dr. Cox, the trial court generally permitted Dr. Cox to testify that the controlled substances in the victim's system were consistent with certain conduct such as bizarre behaviors and aggression, but Dr. Cox could not testify that was the way the victim acted on the night in question as his report repeatedly indicated that the effects were dependent on the individual's experience with drugs. The trial court concluded that Dr. Cox's report did not include any facts regarding the victim's experience or drug use history. “If an expert states an opinion the expert must state the facts or data on which the opinion is based.” Pa.R.E. 705. If a defendant intends to call an expert at trial, the trial court may require pretrial disclosure of a “report stating the subject matter on which the expert is expected to testify; the substance of the facts to which the expert is expected to testify; and a summary of the expert's opinions and the grounds for each opinion.” Pa.R.Crim.P. 573(C)(2). Failure to comply allows the trial court “to prohibit [a] party from introducing evidence not disclosed, other than testimony of the defendant.” Pa.R.Crim.P. 573(E). In this case, we discern no error in limiting the testimony of Dr. Scotilla or Dr. Cox. The trial court limited the scope of each experts' trial testimony to the substance of the facts contained in their reports. Defendant does not dispute that Dr. Scotilla's report lacked a factual foundation of the events of the incident or that Dr. Cox's report did not rely upon information of the victim's drug use and experience. Instead, defendant

156 contends the trial court should have permitted the experts to assume facts heard at trial were true or to answer hypothetical questions. However, such actions would permit the experts to testify outside of the scope of their reports, which our procedural rules and relevant jurisprudence prohibit. Accordingly, for all of the foregoing reasons, we conclude the trial court did not err in limiting expert testimony.

Williams, 241 A.3d 1094 (Pa. Super. 10/8/20)

Police investigators obtained multiple surveillance videos from Double D’s Bar from the night of the shooting. The Commonwealth hired Grant Fredericks, an expert in forensic video analysis, to identify an individual involved in the shooting, and to track that individual’s location throughout the video recordings. Fredericks identified three individuals as Male #1, Male #2, and Male #3. Fredericks identified Male #1 as the “shooter,” and utilized a process called “pixel tracking,”4 as well as an “arrow” [placed over Male #1’s head] to track Male #1 throughout the videos. Fredericks observed that Males #1, #2, and #3, entered Double D’s Bar together, but Male #1 later separated from Males #2 and #3. The video depicted Male #1 exiting Double D’s Bar and pacing back and forth between two vehicles. Male #1 was then shown holding a firearm, raising his arm, and firing multiple rounds into one of the vehicles. Fredericks explained that when he analyzed Double D’s Bar’s videos, he utilized a technique called pixel tracking, which allowed him to accurately track Male #1 throughout the videos. However, Fredericks stated that in order to accurately track an individual via pixel tracking, he must first consider several technical variables. Fredericks explained the first of these technical variables, Moving Pictures Experts Group (“MPEG”), as having “hundreds of different partitions and levels that all change the way video is encoded,” which can result in repeated data. According to Fredericks, there are a number of features that I’ve articulated in my report that I considered – there’s quite a few of them that I considered that in my experience and training are not something that a layperson would understand without assistance and may, in fact, misinterpret the images based solely on the misunderstanding of how MPEG video works.

MPEG video’s not intended to accurately reproduce everything perfectly. It’s intended to encode images in a surveillance environment to the best of its ability given the limitations of light and motion. Fredericks further explained that MPEGs “reuse[] information, and sometimes that has the effect of making it look like the individual did not move when, in fact, there might have been some movement, but it didn’t meet the threshold for movement[,] so it was predicted.” Next, Fredericks explained that the cameras at Double D’s Bar employ a “charged- coupled device [(“CCD”)], which is a source of light.” Fredericks explained that CCDs can lead to two technical variables, clipping and oversaturation, which cause bright objects to appear larger. Fredericks testified that the camera’s sensor alters how an object is

157 depicted in the video, so that “dark objects next to light objects will be quite different in their reality.” Fredericks then explained that the Double D’s Bar surveillance system utilized infrared illumination, and explained the issues relating to color values affected by infrared illumination, stating that, “when we’re watching video of somebody walking from one camera viewed under infrared influence into another camera without that influence, it will look like a completely different individual based on the clothing appearance alone.” Fredericks then utilized examples from the surveillance footage to demonstrate how an individual may appear differently in an infrared influenced camera, versus a non-infrared influenced camera. Further, Fredericks utilized “control examples” in order to demonstrate the influence infrared can have on an object. Fredericks explained that Double D’s Bar’s surveillance video switched between color to infrared influencing due to the built-in sensors in both the interior and exterior cameras. This resulted in the above-described color-swapping between cameras. Next, Fredericks explained that lens distortion is caused by fisheye lenses, which are lenses designed to capture a wider view. Fisheye lenses present two distinct drawbacks relating to an object’s location as well as the object’s shape. As Fredericks explained, the curvature of a fisheye lens distorts the outer edges of the view, “which may make an individual look like their arm is moving in a way that it’s not moving or [that] their body is shaped differently.” Next, Fredericks also explained that different cameras had different “image capture rates.” That meant that one camera would capture more images than another, which could lead to an object appearing in one camera that did not appear in another until several frames later. Additionally, Fredericks testified about the aspect ratio issues, [t]he result is that objects depicted within the images of the original data will appear stretched. So[,] an individual will appear stockier, shorter, heavier than they are in reality. A vehicle will appear longer. And that may cause individuals to look at an object, a questioned object and a known object, and see that distortion and go, “[] they can’t be the same,” if they don’t understand the distortion. Finally, Fredericks stated that after all of the above technical variables had been considered, he utilized the technique called pixel tracking. Fredericks explained that pixel tracking is the process he uses when tracking an object or an individual throughout synchronized, or compiled, surveillance videos. Our review of the record reveals that the trial court did not abuse its discretion in admitting Fredericks’s expert testimony. Here, Fredericks testified that an untrained person would have difficulty tracking the pixels from the video with the naked eye. Our review confirms that Fredericks described the technical terminology, demonstrated how it was applied, and described how he was able to utilize pixel tracking to track the individual designated as Male #1. Moreover, Fredericks did not identify Williams as Male #1. Indeed, Fredericks did not identify Male #1 at all. Instead, the record confirms that Fredericks included the arrow and designated Male #1 simply to allow the fact-finder to track the same individual throughout different surveillance videos. Fredericks explained the technical limitations of the video and demonstrated how Male #1’s appearance would change through various

158 cameras, but did not offer any opinion as to the identity of the shooter. Thus, Fredericks’s testimony did not “invade” the realm of the jury, but rather, Fredericks aided the jury in understanding the surveillance video in order for the jury to determine the identification of the shooter.

Williams, ___ A.3d ___ (Pa. Super. 6/15/21)

Intimidation

18 Pa.C.S. § 4953(a) provides as follows: (a) Offense defined. - A person commits an offense if he harms another by any unlawful act or engages in a course of conduct or repeatedly commits acts which threaten another in retaliation for anything lawfully done in the capacity of witness, victim, or a party in a civil matter. The terms “victim” and “witness” are to be understood within the context of criminal proceedings, “unless the context clearly indicates otherwise. Witnesses in criminal matters are sometimes themselves victimized by persons unhappy with their cooperation with the authorities, and the statute in the pre-2000 timeframe protected those individuals from retaliation. It is counterintuitive to think the Legislature would have sought to eliminate such safeguards by adding text to the statute which protects civil parties.

Nevels, ___ Pa. ___, 235 A.3d 1101 (8/18/20)

159

CRIMINAL LAW UPDATE

Berks County Bench Bar Conference Stuart Suss August 25, 2021

https://www.berksbar.org (Follow the links to the Criminal Law Update outline) Vehicle search

Back to the future Commonwealth v. Gary, 625 Pa. 183, 91 A.3d 102 (4/29/14) (plurality opinion) is disapproved. We return to the pre-Gary application of our limited automobile exception under Article I, Section 8 of our Constitution. Warrantless vehicle searches require both probable cause and exigent circumstances; one without the other is insufficient. Alexander, ___ Pa. ___, 243 A.3d 177 (12/22/20) Link to: Saylor, C.J. dissenting Link to: Dougherty, J. dissenting Link to: Mundy, J. dissenting

Decision applies retroactively if state constitutional claim is properly preserved. Grooms, 247 A.3d 31 (Pa. Super. 2/24/21)

Cases currently on appeal may be remanded for further factual findings. 2 Vehicle search

ISSUE TO BE DECIDED:

Odor of marijuana, by itself, insufficient to justify vehicle search. Other factors, may contribute to the totality of the circumstances. Barr, 240 A.3d 1263 (Pa. Super. 9/25/20) Link to: Strassburger, J. concurring appeal granted, No. 28 MAP 2021 (granted 4/28/21) Shaw, 246 A.3d 879 (Pa. Super. 2/17/21) Grooms, 247 A.3d 31 (Pa. Super. 2/24/21) (legally parked vehicle in mall lot)

Compare to: Bumbarger, 231 A.3d 10 (Pa. Super. 3/16/20) (hypodermic syringe) appeal denied, ___ Pa. ___, 239 A.3d 20 (9/22/20)

3 DUI

Prior acceptance of ARD must be proven to the trier of fact. Commonwealth must prove that defendant actually committed the prior DUI. Chichkin, 232 A.3d 959 (Pa. Super. 5/20/20)

Notwithstanding Chichkin, 232 A.3d 959 (Pa. Super. 5/20/20), Section 3806 is constitutional in its designation of an adjudication of delinquency as a prior offense. Lee, ___ A.3d ___ (Pa. Super. 7/27/21)

Chichkin does not apply retroactively, on a PCRA petition. Gill, ___ A.3d ___ (Pa. Super. 8/17/21) 4 DUI

ISSUE TO BE DECIDED: May a non-conviction disposition from another state count as a prior conviction for DUI purposes or is the underlying statute unconstitutional? Commonwealth v. Garrett Hayes, No. 54 MAP 2021 (transferred 7/19/21)

5 Endangering child while driving

Stop for expired inspection sticker – strong odor of marijuana 3 month old baby in vehicle. Is this EWOC?

This conduct would be insufficient evidence for Recklessly Endangering . . . Mastromatteo, 719 A.2d 1081 (Pa. Super. 11/9/98) Hutchins, 42 A.3d 302 (Pa. Super. 2/27/12) (Reckless driving required, not merely unsafe driving)

EWOC’s mens rea of “knowingly” involves a higher level of culpability than Recklessly Endangering Another Person’s mens rea of “recklessly.” Defendant did not “knowingly” endanger the welfare of the child.

Vela-Garrett, 251 A.3d 811 (Pa. Super. 4/23/21)

6 Who is driving the vehicle?

The registered owner had a revoked license.

The common sense inference that Glover was likely the driver of the vehicle provided more than reasonable suspicion to initiate the stop.

Kansas law reinforces that it is reasonable to infer that an individual with a revoked license may continue driving. Licenses are revoked in Kansas for serious offenses committed with a vehicle or for repeat violators of less serious vehicle offenses.

The presence of additional facts might dispel reasonable suspicion, such as when the driver of the car does not match the age or gender of the registered owner. The right to detain ends immediately.

Kansas v. Glover, ___ U.S. ___, 140 S.Ct. 1183, 206 L.Ed.2d 412 (4/6/20)

7 Who is driving the vehicle?

When the officers ran the license plate of a vehicle that was being driven by defendant, the officers learned that there was a “full extradition warrant out of Pennsylvania” for an individual named Taylor Jefferson. Here, there were no additional circumstances known to police tending to dispel the reasonableness of the inference that the owner of a vehicle was likely to be the driver. Consequently, we conclude that Glover controls and, therefore, defendant is not entitled to relief under the Fourth Amendment or pursuant to the state constitution. Prior cases of this court, such as Andersen, 753 A.2d 1289 (Pa. Super. 5/17/00), have been effectively overruled by Glover.

Jefferson, ___ A.3d ___ (Pa. Super. 6/7/21) (en banc) Link to: Bowes, J. concurring appeal pending, No. 205 WAL 2021 (filed 7/7/21)

8 Duration of a vehicle stop

The tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s “mission” (license, registration, insurance, warrants) Rodriguez v. United States, 575 U.S. 348, 135 S.Ct. 1609, 191 L.Ed.2d 492 (4/21/15)

The trooper testified that he asked defendant to exit his vehicle in an attempt to discover the cause of defendant's nervous behavior. The trooper did not make this request in furtherance of his investigation for the speeding violation. Mattis, 252 A.3d 650 (Pa. Super. 4/30/21)

Passenger in lawfully stopped vehicle was security guard. Passenger admitted to possessing a weapon, but Act 235 card had expired. Passenger (falsely) claimed to have non-expired Act 235 card at home. No evidence of unlawful possession which justified 15-20 minute detention. Length of detention was unrelated to reason for traffic stop.

Malloy, ___ A.3d ___ (Pa. Super. 5/7/21) 9 Community caretaking function

Fear of possible suicide by Mr. Caniglia Community caretaking function does not apply to searches of homes. Remand for reconsideration. Were there exigent circumstances? Caniglia v. Strom, ___ U.S. ___, 141 S.Ct. 1596, 209 L.Ed.2d 604 (5/17/21)

Caniglia v. Strom implicitly approves: Certainly, defendant's statements in the mental health report, and to the officers on the porch of his residence, were odd. However, none of his remarks were threatening, combative, or violent, and Officer Deloe testified that defendant made no threatening gestures during the 20 to 30 second interaction the officers had with him on his porch. Furthermore, defendant's statements did not indicate an intent to hurt himself or anyone else, and there was no indication that he had a weapon or that anyone else was inside his residence. Moreover, both officers testified that defendant was dressed, he did not look hurt or malnourished, and nothing indicated that he was suicidal or inclined to harm himself. Schneider, 239 A.3d 161 (Pa. Super. 9/9/20) 10 Warrantless entry into home

Loud music, honking horn: 100 foot – 4 second pursuit into garage United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (6/24/76), is the law only regarding fleeing felons. Misdemeanors must be evaluated on a case by case basis. Factors are: Imminent harm to others A threat to the officer Destruction of evidence, or Escape from the home Remand for consideration of these factors Uncertain whether the categorical rule of United States v. Santana remains.

Lange v California, ___ U.S. ___, 141 S.Ct. 2011, ___ L.Ed.2d ___ (6/23/21)

11 Confessions

Defendant, in custody, was read proper Miranda warnings. He was not informed that charges had already been filed. Non-disclosure did not undermine waiver of Miranda rights.

Court did not decide whether 6th Amendment had attached. Court ruling premised upon federal constitution. Rawls, ___ Pa. ___, ___ A.3d ___ (8/17/21) Link to: Dougherty, J. dissenting Link to: Wecht, J. dissenting

See also: No different result was required under the Pennsylvania Constitution since, except for certain additional protection afforded to reputation, the Pennsylvania and Federal Constitutional protections against self-incrimination are identical. Arroyo, 555 Pa. 125, 723 A.2d 162 (1/21/99) 12 Fruit of the poisonous tree

One court order was used for multiple separate one-party consensual interception of conversations inside defendant’s residence. Evidence was obtained pursuant to search warrant based upon content of conversations. Was one court order sufficient or were multiple orders needed? If multiple orders were needed, was the search warrant tainted?

Even if multiple court orders were required, the recordings are suppressible, not the informant’s memory of the conversations with defendant. The informant’s memory provides an independent source for the allegations within the search warrant. Henderson, 616 Pa. 277, 47 A.3d 797 (4/25/12), remains the law. There was no willful misconduct on the part of the police. How many court orders were needed? - Issue not decided.

Katona, ___ Pa. ___, 240 A.3d 463 (10/21/20) Link to: Mundy, J. concurring Link to: Donohue, J. dissenting 13 Preliminary Hearings

MDJ lacks jurisdiction under Pa.R.Crim.P. 542(F) and 543(F) to transform a preliminary hearing into a summary trial, over the objection of the Commonwealth, after having found no prima facie case on the court cases. If there is to be a rearrest, the Commonwealth must refile the charges before the same MDJ who dismissed the case. Davis, 242 A.3d 923 (Pa. Super. 11/19/20)

Although the Commonwealth contends that it is not required to establish a “prima facie case anew” at the habeas corpus hearing, it is nonetheless required to establish a prima facie case by introducing some manner of evidentiary support when there is no transcript of the preliminary hearing. Lambert, ___ A.3d ___ (Pa. Super. 12/24/20)

14 Expert witness Child sexual assault trial

Issue #1 Detective was asked whether children have trouble remembering details. Question called for a type of expert testimony. Detective had not been qualified as an expert witness.

Issue #2 Act 75 of 2012 enacted, Title 42, Section 5920. Statute constitutional: Olivo, 633 Pa. 617, 127 A.3d 769 (11/18/15). Statute overruled Dunkle, 529 Pa. 168, 602 A.2d 830 (1/22/92). Expert testimony permitted concerning victim responses and behaviors. Expert testimony regarding witness credibility remains inadmissible. Trial court, on remand, to consider admissibility of detective’s testimony.

Jones, ___ Pa. ___, 240 A.3d 881 (10/30/20)

15 Inconsistent verdicts

General rule: Inconsistent verdicts permitted.

Acquittal of recklessly endangering another person did not preclude a conviction for drug delivery resulting in death. Burton, 234 A.3d 824 (Pa. Super. 7/6/20) appeal denied, ___ Pa. ___, 252 A.3d 234 (4/6/21)

Acquittal of indecent assault – Conviction for aggravated indecent assault. Widger, 237 A.3d 1151 (Pa. Super. 8/13/20) appeal denied, ___ Pa. ___, 249 A.3d 505 (2/26/21)

Acquittal of Fleeing or Eluding (while DUI) – Conviction for DUI. Banks, ___ A.3d ___ (Pa. Super. 5/13/21) appeal pending, No. 350 MAL 2021 (filed 6/14/21)

16 Inconsistent verdicts

Exception to general rule: One offense is an element of the other offense. Conviction for Corruption of Minors, Acquittal for all underlying offenses. Elements of Corruption of Minors: Whoever, being of the age of 18 years and upwards, by any course of conduct in violation of Chapter 31 (relating to sexual offenses) corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of an offense under Chapter 31 commits a felony of the third degree. 18 Pa.C.S. § 6301(a)(1)(ii) (emphasis added). Where an indictment alleges and the jury is specifically charged on the underlying predicate offense, an acquittal of that underlying predicate offense renders the evidence insufficient as a matter of law with respect to the primary offense. But, the underlying offenses need not be charged. Baker-Myers, ___ Pa. ___, ___ A.3d ___ (7/21/21) Link to: Mundy, J. dissenting 17 Inconsistent verdicts

Acquittal by jury of armed robbery. Conviction by judge for firearms offense and disorderly conduct. Severance of jury and judge trials was at the request of the defendant. This was a simultaneous jury and bench trial. Issue is one of inconsistent verdicts (permitted), not double jeopardy.

Jordan, ___ Pa. ___, ___ A.3d ___ (8/17/21) CITING WITH APPROVAL: Yachymiak, 351 Pa. Super. 361, 505 A.2d 1024 (3/10/86) Wharton, 406 Pa. Super. 430, 594 A.2d 696 (7/25/91) DISAPPROVING: Rankin, 235 A.3d 373 (Pa. Super. 7/10/20)

18 Collateral estoppel

Acquittal on principal charges precluded subsequent prosecution on severed firearms charges. Request for severance did not waive collateral estoppel claim. Wallace, 411 Pa. Super. 576, 602 A.2d 345 (1/15/92)

Hung jury on principal charges, acquittal by judge on vehicle code offense. Retrial was forbidden on principal charges. States, 595 Pa. 453, 938 A.2d 1016 (12/27/07) Link to: Saylor, J. concurring Link to: Castille, J. dissenting Link to: Eakin, J. dissenting

19 Collateral estoppel

Acquittal by jury on residential burglary and theft charges. Defendant may be tried on subsequent firearms charge involving a gun stolen during the burglary. Defendant’s request for a severance waives collateral estoppel claim. Currier v Virginia, ___ U.S. ___, 138 S.Ct. 2144, 201 L.Ed.2d 650 (6/22/18)

Jordan was acquitted by a jury of armed robbery, but convicted by a judge of a firearms offense and a summary vehicle offense. Even if considered two proceedings, defendant, by electing to have a nonjury trial for his persons not to possess a firearms charge, effectively waived his estoppel claim under the federal Double Jeopardy clause. Currier v Virginia. Defendant did not preserve a double jeopardy challenge pursuant to the Pennsylvania Constitution, and we therefore do not opine on such a claim.

Jordan, ___ Pa. ___, ___ A.3d ___ (8/17/21)

20 Collateral estoppel Double Jeopardy protections afforded by the United States and Pennsylvania constitutions are coextensive. States, 595 Pa. 453, 938 A.2d 1016 (12/27/07) Link to: Saylor, J. concurring Link to: Castille, J. dissenting Link to: Eakin, J. dissenting except for certain prosecutorial misconduct claims. Johnson, ___ Pa. ___, 231 A.3d 807 (5/19/20) Link to: Dougherty, J. concurring Link to: Mundy, J. dissenting Smith, 532 Pa. 177, 615 A.2d 321 (9/18/92)

Acquittal by jury of firearms charge did not preclude subsequent trial for other charges severed at the request of the defendant. Defendant’s voluntary severance precludes collateral estoppel claim. Wallace, 411 Pa. Super. 576, 602 A.2d 345 (1/15/92), has been overruled. Banks, ___ A.3d ___ (Pa. Super. 5/13/21) appeal pending, No. 350 MAL 2021 (filed 6/14/21) 21 Compulsory joinder

MDJ lacks jurisdiction under Pa.R.Crim.P. 542(F) and 543(F) to transform a preliminary hearing into a summary trial, over the objection of the Commonwealth, after having found no prima facie case on the felony charge. “Guilty verdicts” on summary offenses did not preclude rearrest for felony. Davis, 242 A.3d 923 (Pa. Super. 11/19/20)

Defendant charged with firearms charges, a window tint offense and driving under suspension. Counsel appears before Municipal Court of Philadelphia staff to tender a guilty plea, on behalf of his client, to the window tint charge only. Guilty plea tendered to court staff does not preclude trial for firearms charges. Bennett, 246 A.3d 875 (Pa. Super. 1/21/21) appeal pending, No. 190 EAL 2021 (filed 5/3/21)

22 Sentencing Guidelines

Amendment 6 to 7th Edition effective for offenses committed on or after January 1, 2021 Language changes pursuant to Act 115 of 2019 Offense gravity scores for recently enacted offenses Omnibus offense gravity score (OGS) of 10 for F1 offenses with > 20 year sentences 303.3(f): Standards for use of omnibus offense gravity scores Guidelines enhancements consolidated at 303.10 Length of probation (P1 or P2) and amount of community service hours (in lieu of fines) included in matrix Recommended caps on length of probation 303.9(e)(5)(iii): 10 years from a single judicial proceeding 303.9(f)(1)(iii): 5 years for restorative sanctions

Amendment 1 to Resentencing Guidelines (violations of probation) “Consideration” given to any service of the original sentence

23 Sentencing Guidelines

Factors justifying a deviation from the sentencing guidelines (32-65 years): 1. Wallace shot a stranger in the head and left him on the street. The victim had no connection to Wallace and his coconspirators. The victim did not provoke the attack in any way. The crime reflects a cold-blooded attempt by Wallace to maliciously commit murder for sport. 2. Wallace’s lengthy criminal history and prior significant periods of state incarceration have been ineffective to accomplish rehabilitation, and have not deterred future criminal conduct. This crime occurred a mere eight months after Wallace’s release from serving a parole violation for prior firearms and drug-dealing offenses. 3. Wallace poses a clear danger to the community and this sentence is necessary to protect the community from his violent propensities. 4. The court has a responsibility to impose confinement that is necessary to protect the public from acts of violence and terror. Based on Wallace’s prior criminal history and the callous, dangerous, and menacing actions surrounding this crime, there is an undue risk that Wallace would commit another violent crime and harm another innocent person unless he is separated from the community. 5. Any lesser sentence would depreciate the seriousness of this crime.

Wallace, 244 A.3d 1261 (Pa. Super. 1/8/21) appeal pending, No. 183 MAL 2021 (filed 4/9/21) 24 Conditions of probation / supervision

61 Pa.C.S. § 6133(a) (special probation – supervised by state, not county) Sentencing court imposes sanctions for violation of special probation.

Only the court imposes conditions of probation. The Parole Board or the county probation office may impose conditions of supervision. The Parole Board and its agents may impose conditions of supervision that are germane to, elaborate on, or interpret any conditions of probation that are imposed by the trial court. Elliott, 616 Pa. 524, 50 A.3d 1284 (9/7/12)

Conditions imposed by Parole Board upon sex offender did not relate to the sole condition of probation imposed by the court (pay fines, costs, restitution). Shires, 240 A.3d 974 (Pa. Super. 9/28/20)

Parole Board is requesting “standard special conditions” for sex offenders and “optional special conditions” when there is a juvenile victim of a sex offender.

25 Conditions of probation / supervision

Conditions of probation are provided for by statute, [now found at 42 Pa.C.S. § 9763(b)], and must be ordered by the sentencing court, not by a probation officer.

Does the standard sentencing order direct the defendant to comply with all conditions of supervision imposed by [county and/or state] probation/parole?

Some courts are reading the entire text of county conditions into the record.

26 Probation Revocation

Because Giliam’s violation of probation was based solely on allegations of new criminal charges for which he was later acquitted, ultimately, no violation of probation occurred. Consequently, Giliam’s probation revocation sentence is void. Giliam, 233 A.3d 863 (Pa. Super. 6/3/20)

Revocation hearing preceded the disposition of the new, pending charges. At a pretrial hearing on the new charges, the Commonwealth’s evidence was suppressed. The VOP court erred by declining to consider defendant's challenge to the probation violation in light of the trial court's suppression ruling. Further, because it appears that the VOP court relied, at least in part, on evidence that was later suppressed, the violation cannot stand. Parson, ___ A.3d ___ (Pa. Super. 7/28/21)

27 Restitution

18 Pa.C.S. § 1106(c)(2) mandates that “at the time of sentencing the court shall specify the amount and method of restitution.” Trial court pronounced a time-served minimum sentence and deferred the contested hearing on restitution beyond 30 days from sentencing. Defense counsel acquiesced in the bifurcated procedure. SAYLOR, C.J. CONCURRING JOINED BY TODD, DOUGHERTY, JJ.: Procedure should only be undertaken in extraordinary circumstances. In this case defendant “overtly” consented. Remedy for untimely restitution not decided. Cochran, ___ Pa. ___, 244 A.3d 413 (1/20/21) Link to: Saylor, C.J. concurring Link to: Wecht, J. dissenting

28 Restitution

Defendant convicted of theft of rare coins from the victim’s coin collection. Coins had depreciated in value since the time of purchase.

Trial court: Restitution in the amount of the original purchase price. Victim was denied the right to sell on the date of his own choosing.

En banc majority: Valuation for purposes of grading a theft offense is not controlling. No abuse of sentencing discretion on the part of the sentencing court.

Solomon, 247 A.3d 1163 (Pa. Super. 3/16/21) (en banc) Link to: Dubow, J. dissenting appeal pending, No. 193 MAL 2021 (filed 4/15/21)

29 RRRI: “History” of violent behavior

A single first degree burglary conviction does not make a defendant ineligible for RRRI. The single, present, conviction does not constitute a history of violent behavior. Cullen-Doyle, 640 Pa. 783, 164 A.3d 1239 (7/20/17) Link to: Todd, J. dissenting

Defendant and the Commonwealth agree that resisting arrest qualifies as a crime demonstrating violent behavior for the purposes of 61 Pa.C.S. § 4503(1). While the present circumstances are slightly different than those in Cullen- Doyle in that defendant's ineligibility for a sentence under the RRRI Act was based on a single prior conviction for a crime demonstrating violent behavior as opposed to Cullen Doyle’s single present conviction for a crime demonstrating violent behavior, we nonetheless find its reasoning determinative. Finnecy, ___ Pa. ___, 249 A.3d 903 (4/29/21) Link to: Saylor, J. concurring Link to: Wecht, J. dissenting Bradley, 237 A.3d 1131 (Pa. Super. 8/7/20) (single prior disorderly conduct) appeal denied, ___ Pa. ___, ___ A.3d ___ (6/9/21) 30 “Flat” sentence

Flat sentence = no maximum term 42 Pa.C.S. § 9756(c.1)(2) permits a sentence “without parole” when “the maximum sentence of total confinement imposed on one or more indictments to run consecutively or concurrently total 90 days or less.” 75 Pa.C.S. § 1543(b)(1.1)(i): Driving while under a DUI related suspension and has a BAC of 0.2% or greater or any amount of certain controlled substances or who refuses testing of blood or breath “shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.”

Defendant refused both blood and breath testing, so no Birchfield relief. Section 9756(c.1) does not constitute a standalone exception to the general rule of minimum-maximum sentencing. Conflicting Superior Court decisions not before us. The absence of a maximum term renders the DUS sentencing provision unconstitutionally vague and inoperable for the time being. We leave it to the General Assembly to remedy this impediment. Sentence vacated; fine affirmed. Eid, ___ Pa. ___, 249 A.3d 1030 (4/29/21) Link to: Saylor, J. concurring and dissenting 31 Indigency, Ability to Pay We hold that while a trial court has the discretion to hold an ability-to-pay hearing at sentencing, Rule 706(C) only requires the court to hold such a hearing when a defendant faces incarceration for failure to pay court costs previously imposed on him. Lopez, 248 A.3d 589 (Pa. Super. 3/23/21) (en banc) Link to: Dubow, J. dissenting appeal pending, No. 178 EAL 2021 (filed 4/22/21) Snyder, 251 A.3d 782 (Pa. Super. 4/9/21) appeal pending, No. 236 MAL 2021 (filed 5/10/21) White, 251 A.3d 1274 (Pa. Super. 5/5/21) (probation supervision fees) appeal pending, No. 245 EAL 2021 (filed 6/2/21)

Costs of prosecution may not be assessed against juvenile defendants who obtain resentencing after mandatory life sentences were vacated. Lehman, ___ Pa. ___, 243 A.3d 7 (12/22/20)

Public defender should not be permitted to withdraw merely because client has obtained a job. Other financial obligations relevant. Colloquy is necessary.

Carlson, 244 A.3d 18 (Pa. Super. 12/21/20) 32 Legislative Update

Act 29 of 2021 (6/30/21), HB 156, PN 121 (eff. 8/29/21) Age for tender years hearsay increased from 12 to 16

Act 53 of 2021 (6/30/21), SB 87, PN 64 (eff. 8/29/21) Increased grade for sexual abuse of children (under age 10) Sentencing guidelines enhancement (victim known to defendant or under age 10)

Act 48 of 2021 (6/30/21), HB 1429, PN 1902 (eff. 8/29/21) New offense: Financial exploitation of older adult or care-dependent person

Act 49 of 2021 (6/30/21), HB 1431, PN 1547 (eff. 8/29/21) New subsection: Abuse of care-dependent person, intent to ridicule or demean M3

Act 59 of 2021 (6/30/2021), SB 411, PN 967 (eff. immediately) Merger of Parole Board agents and Department of Corrections 33 New rule of criminal procedure

The trial court may admit such evidence, after an in camera hearing, if the proponent of such evidence filed under seal and served a written pretrial motion containing an offer of proof of the relevancy of the proposed evidence supported by an affidavit.

Pa.R.Crim.P. 413 (effective October 1, 2021)

34 Hearsay

“If something happens to me, JOE.” Adoption of standard from United States v. Brown, 490 F.2d 758, 767 (D.C. Cir. 12/28/73), as to bases for admissibility: Fear of defendant rebuts suggestion that victim was aggressor Statements inconsistent with a suicidal bent In certain circumstances, rebuttal of claim of accident Victim’s state of mind not relevant as proof of defendant’s mens rea. Statement improperly exploited as to defendant’s state of mind. Fitzpatrick, ___ Pa. ___, ___ A.3d ___ (7/23/21) Link to: Mundy, J. dissenting

10 year old witnesses her father being shot to death. Time lapse of several hours; child was “incredibly composed.” Trial court’s ruling (not an excited utterance or present sense impression) was not an abuse of discretion.

Rivera, 238 A.3d 482 (Pa. Super. 8/25/20) 35 Firearms

McCoy, 599 Pa. 599, 962 A.2d 1160 (1/23/09) Link to: Eakin, J. dissenting

Defendant discharged a nine millimeter handgun through the floor of his apartment. The bullet passed through defendant’s apartment floor and through the ceiling of the apartment below. The evidence established that defendant discharged a firearm into the victim’s apartment, an occupied structure, and we find that these facts satisfy all of the elements of Section 2707.1 pursuant to McCoy. Headley, 242 A.3d 940 (Pa. Super. 11/19/20) 36 appeal denied, ___ Pa. ___, 253 A.3d 675 (5/18/21) Necessary factual findings

Was any ineffective assistance of counsel prejudicial? Was there a reasonable probability that the result would have been different?

Necessity of a credibility finding.

Elderly victim smothered by pillow during a robbery. Victim has heart attack and dies two months later. Was defendant prejudiced by failure to present three medical experts? PCRA court must decide on remand: What portion of experts’ testimony was credible? What was the impact of the absent testimony? Comparison of absent testimony to Commonwealth’s causation evidence. Johnson, 236 A.3d 63 (Pa. Super. 7/23/20) (en banc)

Make necessary factual findings as part of suppression rulings.

37 Other issues

Discovery A child sexual assault victim’s mental health records are protected by the psychiatrist/psychologist-patient privilege, 42 Pa.C.S. § 5944. The records are absolutely shielded from pretrial discovery. Segarra, 228 A.3d 943 (Pa. Super. 2/10/20) appeal denied, ___ Pa. ___, 237 A.3d 975 (8/17/20)

Rule 600 The record thoroughly establishes that the Commonwealth neglected to fulfill its discovery obligations, a failure which constitutes a lack of due diligence. Harth, ___ Pa. ___, 252 A.3d 600 (6/22/21)

38 Other issues

Drug delivery resulting in death Applicable mens rea for drug delivery resulting in death Delivery must be intentional Reckless disregard of death Need not intend to cause death Carr, 227 A.3d 11 (Pa. Super. 1/21/20)

Reputation for truthfulness Where the prosecution has merely introduced evidence denying or contradicting the facts to which the defendant testified, but has not assailed the defendant’s community reputation for truthfulness generally, evidence of defendant’s alleged reputation for truthfulness is not admissible. Gboko, 243 A.3d 247 (Pa. Super. 12/10/20) (recklessly endangering, possessing instrument of crime) 39 Victim/Witness/Juror Intimidation

Nevels, ___ Pa. ___, 235 A.3d 1101 (8/18/20)

40 PCRA: Timeliness

41 Juvenile murderers

Because the Commonwealth here did not seek, and the sentencing court did not impose, a life-without-parole sentence, there was no error by the sentencing court in failing to consider the Miller factors. Derrickson, 242 A.3d 667 (Pa. Super. 10/30/20) (second degree murder) appeal denied, ___ Pa. ___, ___ A.3d ___ (5/5/21)

Awaiting decisions held pending Jones v. Mississippi. Awaiting decisions regarding “de facto” life sentences.

42 Juvenile murderers

Defendant was convicted of second degree murder committed when the was age 17. 18 Pa.C.S. § 1102.1(c)(1) provides that “[a] person who at the time of the commission of [second degree murder] was 15 years of age or older [but under the age of 18] shall be sentenced to a term of imprisonment the minimum of which shall be at least 30 years to life.” Trial court ruled that this provision was a mandatory minimum sentence that did not otherwise forbid a sentence to life imprisonment without parole. References to “life imprisonment without parole” appear in the portion of the statute pertaining to first degree murder, but are absent from the portion of the statute pertaining to second degree murder. As the Legislature explicitly authorized trial courts to sentence juvenile offenders to “life imprisonment without parole” for first-degree murder convictions under Section 1102.1(a) and excluded this specific language from Section 1102.1(c) which relates to second-degree murder convictions, we decline to add language which the Legislature did not see fit to include.

Sanchez-Frometa, ___ A.3d ___ (Pa. Super. 5/25/21) 43 Issues to be decided

Pa.R.Crim.P. 205(A)(4) provides that the authority issuing the search warrant must direct that the search be conducted “within a specified period of time, not to exceed 2 days from the time of issuance.” Did the trial court err in denying suppression of data that was copied and reviewed from a seized cell phone more than two days after expiration of the relevant warrant? Commonwealth v. Bowens, No. 341 MDA 2018 (argued en banc 12/3/20)

When may police conduct an additional more intrusive search of a pocket following a pat–down for weapons? (scope of the “plain feel” doctrine) In the Interest of T.W., No. 22 EAP 2020 (granted 8/4/20) (argued 3/9/21)

44 Issues to be decided

Should the Commonwealth's disapproval of a private criminal complaint filed by Luay Ajaj against the mother of his children be overturned despite the Numerous evidentiary and policy concerns cited by the Commonwealth, including the lack of a prima facie case, An inability to thoroughly investigate the matter because all possible witnesses and evidence (with the exception of Ajaj) are in Iraq, The Commonwealth's policy of not accepting criminal complaints alleging felonies, and its general policy of exercising caution when it comes to criminalizing actions taken during custody disputes which are better handled through civil proceedings, and Despite the complainant's failure to overcome the presumption of good faith and soundness attached to the Commonwealth's decision to not prosecute? In re Private Comp Filed By Ajaj, ___ A.3d ___ (Pa. Super. 2/25/21) appeal granted, No. 55 MAP 2021 (granted 7/26/21) 45