Death row inmate whose lawyers’ abandonment of him resulted in the filing of a late appeal allowed to file appeal nunc pro tunc

Maples v. Thomas, ____U.S.____, No. 10-63 (1/18/12) (22 pages) 

I did not post about this case, wherein the Supreme Court allowed a death row inmate, whose attorneys abandoned him before the trial court rendered a decision on his petition for post-conviction relief, to file a late appeal of the decision, when it was announced last week because the result was unremarkable in terms of Pennsylvania criminal law and practice.  However this New York Times Opinionator post by former New York Times Supreme Court correspondent and current Yale Law School faculty member Linda Greenhouse gives some of the inside baseball about the decision, based upon her years of observation of and reporting on the Court and its members.  Greenhouse’s post, in addition to being a wonderful read, reminds all criminal practitioners that it is always worth considering challenging precedent when that precedent feels wrong.

Remand after failure to file timely Pa.R.App.Pro. 1925(b) statement to allow trial court to address issues in the untimely filed statement/ suggestions for trial courts in the future faced with no or untimely filing of 1925(b) statement

Commonwealth v. Thompson, 2012 PA Super 15, 1/24/12 (12 pages)

Following Ms. Thompson’s attorney’s failure to file an appeal after her sentencing for theft and related offenses, she successfully used the PCRA to have her appellate rights reinstated. The court dismissed her motion for reconsideration of sentence and her new attorney filed a direct appeal. However, her attorney missed the deadline for filing the Pa.R.App.Pro. 1925(b) statement of matters complained of as ordered by the court. The court then issued an opinion stating she had waived her issues on appeal. After the filing of the opinion, the attorney filed a nunc pro tunc motion for extension of time claiming she had not received the 1925(b) order until the opinion was filed. After a hearing, the motion was denied.  Ms. Thompson filed an appeal, her issues consisting of various challenges to the sufficiency of the evidence to convict her.

The Superior Court declined to review her issues, given the failure to file the 1925(b) statement on time. The Court then reviewed the evolution of Rule 1925 into its current form in 2007.  Rule 1925(c)(3) allows an appellate court to remand a criminal matter for the appointment of new counsel and the filing of a 1925(b) statement and Rule1925(a) opinion if convinced counsel was per se ineffective for failure to file a statement. The Superior Court has also ruled that it will consider issues raised in an untimely 1925(b) statement that are addressed in the trial court’s opinion. In Ms. Thompson’s case though, the trial court failed to address the issues.  The Court therefore utilized a procedure it announced in Commonwealth v. Burton, 973 A.2d428 (Pa. Super. 2009), and applied Rule 1925(c)(3) to situations where the statement was filed untimely, as doing so is the equivalent of failing to file one at all.

In a footnote, the Court asks trial courts in the future confronted with the untimely filing of a 1925(b) statement to note the per se ineffectiveness of counsel in its opinion, and if deemed necessary, appoint new counsel and address the issues in the untimely filed 1925(b) motion.  The footnote goes on to further suggest, “Similarly, where, as here, counsel fails to file a Rule 1925(b) statement before the trial court files a Rule 1925(a) opinion, the opinion should note the ineffectiveness of counsel, permit counsel to file a statement nunc pro tunc and address the issues raised in a subsequent Rule 1925(a) opinion. The trial court may appoint new counsel if original counsel fails to comply with the order because a failure to comply with the order would prohibit appellate review.” All of this is in the interest of avoiding unnecessary delay.

In another footnote, the Court noted that the 1925(c) procedure would not necessarily apply to PCRA appeals.

The case can be found by following the links from here.





Government placement and use of GPS tracker on vehicle is a search within the meaning of the Fourth Amendment, requiring a search warrant

United States v.  Jones,  ___ US. ___, No. 10-1259, 1/23/12 (12 pages)

The Supreme Court unanimously ruled that the government violated Mr. Jones’  Fourth Amendment rights when, after the expiration of a warrant authorizing the placement of a GPS tracking device on his Jeep Cherokee, it placed the device on the vehicle and tracked it for another 28 days. Mr. Jones was subsequently charged with several drug offenses.

Four Justices joined Justice Scalia’s majority opinion, which held that the placement of the GPS tracking device was a physical intrusion that would have been considered a search when the Fourth Amendment was adopted. In support of this proposition Justice Scalia cited an English case from 1765.

Justice Sotomayor, who joined Justice Scalia’s opinion, wrote a concurring opinion positing that in a future case it might be unwise to measure the legality of the government’s tracking an individual’s movements or other acts merely by asking whether there was a physical intrusion. Justice Alito, writing for the remaining Justices who concurred in the judgment, prefers determining whether a particular surveillance technique runs afoul of the Fourth Amendment by measuring how or if it impinges on a person’s reasonable expectation of privacy. For example, Justice Alito asked whether Justice Scalia’s physical intrusion test is sufficient to protect the interests of a suspect followed by the police who have activated a stolen car radio beacon the suspect installed when buying the car, or systems that come with cars today that track a car’s location for safety purposes. He concludes that since United States v. Katz, 389 U. S. 347 (1967), which involved a surveillance device attached to the outside of a phone booth, the focus in cases involving technological means of surveillance has as much to do about expectations of privacy as a physical intrusion. Justice Scalia’s opinion acknowledges these concerns, but concludes that under the facts of this case, there is no need to go there to resolve the question before the Court.

The opinion can be found here.


Prosecution may not exploit a non-testifying defendant’s pre-arrest or pre-Miranda warning silence/ burglary merges with second degree murder for sentencing purposes

Commonwealth v. Adams, 2012 PA Super 11, 1/20/12 (30 pages)

 Mr. Adams received some, but not much, relief from the Superior Court in this appeal, the Court vacating his sentence for burglary because it merged with his conviction for second degree murder.  His other arguments, wherein he sought a new trial (for reasons described below) and challenged the sufficiency of the evidence proving his guilt of one of the crimes he was convicted of, were rejected.  The case though does contain a reminder that the Superior Court recently ruled, in Commonwealth v. Molina, 2011 PA Super 237, that the Commonwealth may not use evidence of a defendant’s pre-arrest or pre-Miranda warning silence as evidence of his guilt.

In Mr. Adams’ case the Commonwealth adduced testimony from a detective that when approached during the investigation and before his arrest, Mr. Adams said he had nothing to say to them. Defense counsel objected and was overruled. Mr. Adams did not testify. During closing, defense counsel tried to explain his client’s silence in the face of police questioning, saying he had a right to remain silent. In its closing, the Commonwealth responded that there were other things he could have said if he was innocent. Defense counsel did not object to the closing argument. Mr. Adams asserted on appeal that the mention of his silence at trial coupled with the remarks in the Commonwealth’s closing unfairly prejudiced him. Noting that this argument was waived because there was no objection to the closing argument, the Court went on state that the detective’s reference to Mr. Adams’ silence in itself was not unfairly prejudicial, and that the prosecutor’s comments on his silence were fair response to the defense closing.  I submit that the discussion on the closing argument needs to be taken with a grain of salt before citing it to support one proposition or another in that due to the failure to object to the closing, the Superior Court was not going to grant relief due to the closing alone. That being said, the reference to the holding in Molina, which dates to November, 2011, is useful.

The holding in question states:

We find it of no moment whether the silence occurred before or after the arrest or before or after Miranda warnings were administered. The Fifth Amendment was enacted to protect against self-incrimination, whether they are in custody or not, charged with a crime, or merely being questioned during the investigation of a crime. We clarify that our finding does not impose a prima facie bar against any mention of a defendant’s silence; rather, we guard against the exploitation of appellant’s right to remain silent by the prosecution. We conclude that the government may not use such silence as substantive evidence of guilt when a defendant chooses not to testify, and such use should not be limited to “persons in custody or charged with a crime”; rather, it may also not be used against a defendant who remained silent during the investigation of a crime.

Commonwealth v. Molina, 2011 PA Super 237, *3031 (citations omitted). The holding in Molina itself occurs after a discussion of how other states and federal circuit courts of appeals deal with the issue. It also notes that Article I, §9 of the Pennsylvania Constitution may be interpreted to afford a defendant more rights than the Fifth, Sixth or Fourteenth Amendments. Thus, any objection to references to a defendant’s pre-arrest, pre-Miranda silence should be based on both the Pennsylvania and United States Constitutions.

The case can be found by following the links from here.



Withheld Brady material required new trial when it comprised contradictory statements by the sole eyewitness who identified the defendant at a murder trial

Smith v. Cain, No. 10–8145, ____U.S. ____ (1/9/12) (4 pages)

The only thing remarkable about this succinct opinion from Chief Justice Roberts was that the United States Supreme Court was the first court to order a new trial, and that even one Justice dissented from the opinion. Juan Smith was convicted of a murder that occurred when two men broke in on a card game, demanded drugs and money, and started shooting, resulting in five deaths. Smith’s conviction was affirmed on direct appeal, after which he initiated state collateral relief proceedings. His attorneys then discovered notes of two interviews with the sole eyewitness who identified Mr. Smith at the murder trial wherein the witness stated he could not identify any of the shooters beyond their race, and that the shooters were wearing masks. None of the state courts saw fit to grant Mr. Smith a new trial based on the discovery of the interview notes, but the United States Supreme Court did.

The state, conceding that the statements should have been disclosed, contended that Smith was not entitled to a new trial the witness’s statements were not material to Smith’s guilt.  Reiterating maxims from past Brady cases, the Court stated that evidence is material within the ambit of Brady when there is a reasonable probability that had the evidence been disclosed, the result of the proceeding would have been different. A “reasonable probability” does not mean that the defendant would more likely than not have received a different verdict with the evidence, but only that the likelihood of a different result is great enough to undermine confidence in the outcome of the trial. Despite all of the reasons the state gave that the jury might have disregarded the undisclosed statement, it did not overcome the fact that there was one eyewitness who identified Mr. Smith as one of the murderers at trial, and one and five days after the murders he said he could not identify him. The judgment of the state court was reversed.

The case can be found here. A great National Public Radio story about this case with interviews with participants can be found here.

Proximity to weapon insufficient to warrant application for mandatory minimum penalty in drug case/ challenges to mandatory sentences are non-waiveable challenges to the legality of a sentence/ burden of proof for application of mandatory sentence

Commonwealth of Pennsylvania v. Person, 2012 PA Super 6 (1/9/2011) (9 pages)

Some observations of Mr. Person by a Philadelphia police office led to controlled buys of marijuana from him. All of the transactions took place near a particular house from which Mr. Person was seen entering with buy money and leaving carrying drugs.   Police obtained a warrant to search the residence and after one last controlled buy a police officer approached the house to execute the warrant but hearing motion inside opened the door and saw Mr. Person running upstairs. He was pursued and seen throwing something into a closet in a bedroom in which there was also a woman and two children. He was apprehended and a search of the bedroom found marijuana packaged in the same way as that he sold in the controlled buys. Crack cocaine and the money used in a controlled buy were also found.  In the kitchen police found a digital scale and a partially covered sawed-off shotgun, which turned out to be inoperable.

At trial Mr. Person was convicted of the drug crimes as well as possession of an offensive weapon based on the shotgun, but that conviction was vacated because of the inoperability.  At sentencing the Commonwealth moved for the imposition of a five year mandatory penalty under 42 Pa.C.S. §9712.1(a), which requires the penalty when a person convicted of 35 P.S. §780-113(a)(30) was, at the time of the crime, in possession, control or within reach of a firearm, or the weapon was in close proximity to the controlled substance.

The Court first noted that challenges to mandatory sentences are non-waiveable challenges to the legality of a sentence. In this case the Commonwealth had to prove by a preponderance of the evidence that he both possessed the gun and he did so within close proximity to illegal drugs. Because there was no proof that Mr. Person resided in the house, he was not the only adult present at the time, the gun was in an area accessible to everyone in the house, and there was no testimony that he ever entered the kitchen, the Commonwealth did not sustain its burden. As vacating the five year mandatory disrupted the lower court’s sentencing scheme, the matter was remanded for resentencing.

The case can be found by following the links from here.

Second Amendment challenge to charges of aiding and abetting possession of a firearm by a felon

United States v. Huet, No. 10-4729 (3d Cir. 1/5/2012) (26 pages)

 The United States District Court for the Western District of Pennsylvania dismissed an indictment against Ms. Huet because it failed to state an offense for aiding and abetting possession of a firearm by a felon, and even if it did state an offense, the charge violated Ms. Huet’s Second Amendment rights. The Court of appeal reinstated the indictment.

Following an investigation, law enforcement officials raided Ms. Huet’s apartment where she lived with one Mr. Hall.  A search pursuant to a warrant yielded a rifle. Mr. Hall, a convicted felon, could not own a gun pursuant to 18 U.S.C. §922(g)(1) (possession of a firearm by a felon). Ms. Hall had no such disability, and said the guns were hers and she had the right to own them. She was charged with 18 U.S.C. §2 (aiding and abetting).

On appeal, the Court found the allegations sufficient to allow the matter to go to trial. It also disagreed with the District Court on the Second Amendment issue. However, it noted that there is a split in the Circuits on the meaning of the holding in the plurality opinion of McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (2010) that longstanding prohibitions such as on the possession of firearms by certain classes of persons, laws forbidding their possession at certain places, laws imposing conditions on their sale, and laws prohibiting certain dangerous firearms were “presumptively lawful regulatory measures.” Some Circuits belief that the “presumptively lawful” language is dicta, others do not, and the Third Circuit is in the latter group. Applying the Third Circuit standard for measuring the validity of firearms laws under the Second Amendment— whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment— the Court decided it did not.

There are challenges all over the county, in state and federal courts, to the validity of all sorts of prohibitions on firearm possession and use.  They are easily discoverable by looking at the cases discussed in opinions such as Huet.

The case can be found here.




Remand for new trial in honest services fraud case because of faulty jury instructions/ “Prejudicial spillover” required retrial on all remaining charges too

United States v. Wright, et al., 09-3467. 3731 & 3965 (3d Cir. 1/4/05) (29 pages)

This case is one of many rising through the federal courts since last year’s decision in Skilling v. United States, 130 S. Ct. 2896 (2010), limiting the scope of 18 U.S.C. §1836 prohibiting honest services fraud. Mr. Wright, an aid to a Philadelphia city councilman, was accused of accepting several favors from a realtor and his lawyer, including rent free apartments from the realtor’s company and free legal help from the lawyer.  In return Mr. Wright was accused of aiding the passage of legislation that could help the title agent and his company and securing favors from other city departments for the title company. The three were indicted for honest services fraud, traditional fraud, and bribery in connection with a federal program. Before Skilling was handed down, all were convicted of, among other crimes, conspiracy to commit honest services fraud on the apartment arrangement, and the realtor was further convicted of honest services fraud for offering the legislative aid some private work (which did not result in the aide receiving any compensation). (The realtor’s brother was also charged, but was acquitted of all charges.)

While the Court found the evidence sufficient to sustain the verdicts for honest services fraud, the jury instructions for honest services fraud were flawed in that they permitted the jury to convict the defendants even if the actions of the public officials were done for good faith and honestly motivated reasons. The Court further determined, after sifting through a number of scenarios the jury might have found had it heard the proper instructions, that the error was not harmless. Finally, the Court determined that even though the evidence was sufficient to prove the underlying fraud charges, “prejudicial spillover” from the mistaken honest services fraud instructions might have tainted the other convictions. “When two charges are closely linked and we vacate a conviction on one of them, we must ensure that the error on the vacated charge has not affected the remaining charge,” said the Court. It then described and applied a two step test (the second prong of the test involving the weight of four factors) for determining whether prejudicial spillover occurred requiring a new trial on remaining charges (the Court’s description of the test is succinct and is best read in the original) and determined that the traditional fraud charges had to be retried too.

The case can be found here.

Altering and then cashing a check received from an insurance company is not insurance fraud if the unaltered check was not issued and delivered as a result of some fraudulent activity

Commonwealth v. Goodson, 28 WAP 2010 (Pa. 12/21/2011) (6 pages)

In a bit of amusing doggerel, Justice Eakin made the point that an insurance claimant does not commit insurance fraud in violation of 18 Pa.C.S. §4117 (a)(2) when, after making a lawful demand for payment of an insurance claim, and receiving a check in an amount far less than the claimant hoped, the claimant forged a check and then cashed it against the insurer’s account for what the claimant deemed a far more acceptable amount. On de novo, plenary review of sufficiency of the evidence to sustain the conviction, the Court found the law punished fraud in making a claim against an insurance company, and not in forging its checks. Mr. Goodson’s convictions for theft and forgery stood, unchallenged.

The case can be found here.

After discovered evidence of attorney abandonment extends deadline to file PCRA claims/ exceptions to law of the case doctrine

Commonwealth of Pennsylvania v. Smith, 2011 PA Super 260 (12/1/11) (12 pages)

Mr. Smith, convicted of murder, did not prevail in his first PCRA petition. His attorney filed a direct appeal, but the appeal was dismissed in 2001 for the attorney’s failure to file a brief. Smith filed a second PCRA within sixty days of the dismissal, but after the common pleas court reinstated the direct appeal of the first PCRA petition’s dismissal, the Superior Court, again in 2001, dismissed it because it was not filed within a year of Smith’s conviction becoming final. In 2007 though, the Pennsylvania Supreme Court, in Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264 (2007), held that counsel’s failure to perfect an appeal and his abandonment of his client could be a newly discovered fact, especially in light of an inmates lack of access to public records, under 42 Pa.C.S. §9545(b)(1)(ii). (Citing Commonwealth v. Starr, the Court held that the law of the case doctrine did not foreclose this petition because it fell within one of the exceptions to the application of the law of the case doctrine, which are (1) an intervening change in the law, (2) a substantial change in the facts, and (3) a clearly erroneous prior ruling which would create manifest injustice if followed.) Bennett, the panel concluded, provided a new theory of obtaining relief and thus helped Smith get around the time limits in 42Pa.C.S. §9545.  This petition was filed within sixty days of Bennett’s publication, and therefore met the requirement of filing the new PCRA petition within sixty days of discovering the new fact or circumstance justifying PCRA relief.  The opinion was careful to note the distinction between an appellate case being a newly discovered fact and a set of circumstances discussed in a new opinion being the newly discovered fact.

Shepardize this case before you use it as it is the type of case— one  expanding the availability of PCRA relief— surely to receive further scrutiny.

(This case can be accessed by following the links through the Pennsylvania Superior Court web site.)