Evidence of driving under the influence alone insufficient for conviction of REAP/ Lab results regarding metabolites from marijuana use without expert testimony sufficient to convict of 75 Pa.C.S. §3802(d)(2) when coupled with defendant’s admissions and arresting officer’s observations

Commonwealth v. Hutchins, 2012 PA Super 44, 2/27/2012 (19 pages)

Mr. Hutchins was driving his vehicle when, suddenly turning in front of another vehicle on a dry and sunny day, it struck his. A state trooper responding to the scene smelled marijuana coming from Mr. Hutchins’ car. While searching for insurance and registration information, found a Camel cigarette pack that contained marijuana.  To another trooper Mr. Hutchins demonstrated a flat and calm manner, unusual under the circumstances (which included his daughters being covered with glass and crying after the accident), and he admitted smoking marijuana and being distracted when he drove. The calm demeanor, the admission of marijuana use, and the absence of any other reason for the accident led that trooper to opine at trial that there was no other reason for the accident other than the marijuana. No sobriety tests were performed because Mr. Hutchins’ daughters had to go to the hospital. Mr. Hutchins’ blood, drawn later, showed a level of 43 ng/ml of carboxy acid, a metabolite of marijuana.

The Court first dismissed the contention that the evidence was insufficient to convict Mr. Hutchins of 75 Pa.C.S. §3802(d)(2) because there was no expert testimony to show that the level of marijuana in his blood was the cause of the way he drove during the accident. The Court agreed that standing alone, without expert testimony, the test results did not prove that the marijuana he ingested affected his driving. However, the Commonwealth had more than just the blood test: it had the above described observations of the state troopers at the scene of the accident and Mr. Hutchins’ admissions.

The Court also dismissed Mr. Hutchins’ contention that because the test results were not conducted on whole blood, the absence of expert testimony was fatal to his DUI convictions. Because 75 Pa.C.S. §2802(d)(1) prohibits any amount of marijuana metabolites in the blood, a conversion of non-whole blood to whole blood results was unnecessary.  In light of its earlier finding that the evidence was sufficient to convict under §3802(d)(2), the Court did not address this contention with regard to that section.

The Court did though find insufficient the evidence underlying the conviction for recklessly endangering the life of another person, 18 Pa.C.S. §2705.  That statute provides that driving under the influence alone is not enough for conviction: there must be tangible indicia of unsafe driving to a degree that creates a substantial risk of injury that is consciously disregarded. All the Commonwealth proved was that Mr. Hutchins was driving under the influence, distracted, and had turned his car into another vehicle. That turn alone, unaccompanied by, say, weaving in and out of traffic and violating other traffic laws, did not amount to such recklessness. Because vacating the REAP sentence disrupted the trial court’s sentencing scheme, the case was remanded for resentencing.


The opinion may be found here.

Photo from U of T News.

Conviction for providing false information to law enforcement authorities requires that the authorities identify themselves and advise that the person is the subject of official investigation for violation of the law/ sufficiency of the evidence in delinquency cases can be raised in the first instance on appeal

In re: D.S., No. 17 WAP 2011, 2/21/12 (11 pages)

Investigating a report of a holdup by a young boy that yielded $10, the police, based on the victim’s description, developed a description of suspect and compiled a list of individuals they thought fit. Two plainclothes detectives then sought out one of the youths on the list, D.S.  Traveling in an unmarked car, they found D.S. at a park with two friends, and approached the three, instructing them to get their hands in the air and against a gate at a school adjoining the park. A third officer then arrived at the scene ( a footnote in the opinion notes ambiguity  in the record regarding whether any or all of the officers were wearing uniforms, but like the lower courts that heard and reviewed the case, assumed that the officers were in plainclothes) in a separate vehicle. D.S. and his companions were patted down and asked their names, ages and addresses. One of D.S.’s friends asked the officers what they had done and why they were being searched, but the officers never identified themselves nor why they were detaining and searching the boys. That same boy also claimed he heard one of the officers say he knew that D.S. had given him a false name, and then saw one of them throw D.S. onto the ground and kick him after he was handcuffed. By this time about 15 people were watching the incident.  The officers called for back-up, and D.S. was arrested and charged with disorderly conduct and providing false information to law enforcement authorities pursuant to 18 Pa.C.S. §4914. At a delinquency hearing, D.S. was adjudicated delinquent of the false information charge only and committed to a juvenile treatment facility.

D.S. appealed. In its opinion sustaining the adjudication, the juvenile court opined that the issue of the sufficiency of the evidence to convict was waived for failure to raise it at trial. The Superior Court, showing no concern for the alleged waiver, said that the totality of the circumstances supported the adjudication. The Pennsylvania Supreme Court accepted D.S.’s petition for allowance of appeal.

The Court first deal with the waiver issue.  Noting that if this were a criminal case the sufficiency of the evidence could be challenged for the first time on appeal, concluded that that rule, though not expressly stated in the Pa.R.J.C.P., should be applied to juvenile cases as well. The Court’s reasons included the inapplicability of the PCRA to juvenile proceedings, the optional nature of post-verdict motions in juvenile court, and that review of challenges to the sufficiency of the evidence is a pure question of law over which review is de novo.

On the sufficiency issue, the Court had little trouble. §4914 requires that a police officer identify himself or herself and state that the person is the subject of an official investigation for a violation of the law. The statute is clear of ambiguity. The Court rejected the Commonwealth’s contention that “circumstances” might satisfy the identification and purpose elements of the statutes. D.S., who was adjudicated delinquent and committed to a juvenile facility nearly 19 months to the day of the opinion, is no longer a delinquent.

(This case brings to mind a story told me by my law school criminal law professor who was in the United States Attorney’s office for the District of Columbia at the time the late and fondly remembered knock and announce rule of Sabbath v. United States, 391 U.S. 585 (1963) (hollowed out by Hudson v. Michigan, 547 U.S. 586 (2006)) was announced. He recalled that FBI agents who opened Mr. Sabbath’s door had in truth announced their purpose and identity, but in those Arcadian days were reluctant to tell the suppression judge the language they used to do so.  It is hard for me to read D.S. without wondering how many facts the juvenile court did not hear, given the ambiguities that arise upon a full reading of the opinion. Never mind though— the law marches on.)

The opinion may be found here.

Photograph of Mort Mills as a highway patrolman from Alfred Hitchcock’s “Psycho” and found at Visual Sociology.



The Juvenile Act requires that a juvenile court can enter an adjudication of delinquency only when it finds both (1) that the juvenile has committed a delinquent act; and (2) that the juvenile is in need of treatment, supervision, or rehabilitation

In re: M.W., No. 68 EAP 2010, 2/21/2012 (14 pages)

A delinquency  petition was filed against M.W., alleging that along with another youth, he robbed an individual who had just left a local bar. The juvenile court, following an adjudicatory hearing, found that M.W. had committed the delinquent acts of robbery, conspiracy and related charges, but deferred adjudication to a later date. On the same date as the scheduled adjudication, another juvenile court judge adjudicated M.W. delinquent of a misdemeanor theft from a motor vehicle, and placed him in a facility for treatment, rehabilitation and supervision.   At the adjudication hearing on the robbery later the same day, the first juvenile court judge found that M.W. was adjudicated on the theft from a motor vehicle petition, and as a result would receive treatment and supervision. It therefore discharged the delinquency petition on the robbery.

The Commonwealth appealed to the Superior Court, which reversed, holding that a finding that a juvenile committed a delinquent act requires a finding of delinquency. An en banc panel of the Superior Court affirmed the panel decision. The Supreme Court then agreed to hear M.W.’s appeal. Because the Court was reviewing the Juvenile Act, its review was plenary and non-deferential.

Both M.W. and the Commonwealth agreed that 42 Pa.C.S. §§ 6302 and 6341(b) required that two conditions have to be satisfied before a juvenile court enters an adjudication of delinquency: (1) proof beyond a reasonable doubt that the child committed a delinquent act; and (2) the child must be in need of treatment, supervision or rehabilitation.  The Commonwealth’s problem with M.W.’s robbery case was that the juvenile court discharged the petition because M.W. was receiving treatment as a result of another case, and not because M.W. was not in need of any treatment. After observing that, “Regrettably, the Juvenile Act is not a model of clarity,” using time worn principles of statutory construction, the Court sided with M.W.

§6341(b) requires that both findings be made before a child is adjudicated delinquent, and §6302 defines a delinquent child as one who is ten years or older who has committed a delinquent act and is in need of treatment. Pa.R.J.C.P. 101(C), 408 and 409 compel a similar result. This result applies even when the delinquent act is a felony, which presumptively supports a finding that a juvenile is in need of treatment and supervision under §6341(b). Even in a felony case juvenile court cannot make a finding of delinquency without allowing for other evidence.

The Court remanded with instructions to the juvenile court to determine whether M.W. was in need of treatment, supervision or rehabilitation, and if not, to discharge the petition.

The opinion can be found here.

Picture from “Angels with Dirty Faces” (James Cagney, Pat O’Brien and the Dead End Kids) from moviesovermatter.com.





. . . and now a break for news from the criminal bar of France

From Henri Leclerc, the lawyer for fallen French Socialist politician and former leading candidate for President of France Dominique Strauss-Kahn, who is now defending against charges of consorting with prostitutes at what the French press has dubbed “libertine soirées”:

“At these kinds of parties, you are not always clothed. I challenge you to tell the difference between a naked prostitute and a naked worldly woman.”

Courtesy of the Financial Times for February 21, 2012.

Corrupt organization prosecution barred by prior conviction for acts included in the new charges


Commonwealth v. George, 2012 PA Super 32, 2/15/2012 (11 pages)

To Mr. George, it must have seemed like déjà-vu all over again.

In 2007, Mr. George was arrested for delivery of a controlled substance and conspiracy.  Following his arrest he gave investigators an account describing his participation in a drug distribution ring, identifying persons, places and events that were part and parcel of of the ring during the previous eight months. He cooperated with the investigators in the expectation that there would be no further criminal charges against him. After his arrest a state wide investigating grand jury was convened to investigate drug activity in the same area where Mr. George operated, and Mr. George testified before it, describing, among other things, his criminal activities with one Mr. Rafferty, who was part of the conspiracy which underlay the 2007 charges. In 2008 Mr. George pled guilty to the drug delivery and conspiracy charges. In 2010 a state wide investigating grand jury handed down a presentment charging the defendant with two counts of corrupt organization and a count of conspiracy to deliver cocaine arising from activity which predated Mr. George’s 2007 arrest. The presentment referenced persons (including Mr. Rafferty) and activity that Mr, George told the grand jury about before he pled guilty.

Mr. George filed a petition for writ of habeas corpus challenging his arrest pursuant to 18 Pa.C.S. §110, which bars prosecutions for any offense based on the same conduct or arising from the same criminal episode if the offense was known to the prosecuting officer at the time of the commencement of the first trial and occurred within the same judicial district. The common pleas court agreed, dismissing the charges with prejudice, and the Commonwealth appealed. The Superior Court affirmed.  The new charges were part and parcel of the events Mr. George participated in, was prosecuted for, and the Commonwealth knew about when it prosecuted him in 2007. Since the 2007 charges were part and parcel of the criminal episode underlying the new charges, and the prosecuting officer knew of them before Mr. George pled guilty, the common pleas court’s dismissal was affirmed.

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

No “collusive marriage” exception to privilege against testifying against a spouse

Commonwealth v. Lewis, 2012 PA Super 17 (1/30/12) (25 pages)

Ms. Lewis was convicted of tampering with public records or information. The Commonwealth alleged Ms. Lewis falsified records regarding her supervision of one Mr. Gardner’s probation.  Ms. Lewis fell in love with Mr. Gardner while supervising him, and among other things, noted in his file that he was going to Atlantic City to visit his family one weekend when in fact he was traveling with her. Ms. Lewis left her job after that, and her successor learned of the romantic relationship and investigated how it might have affected the supervision of Mr. Gardner. During the course of the investigation Mr. Gardner admitted the details of the relationship. Ms. Lewis, when interviewed by the investigators, confirmed Mr., Gardner’s statements. The criminal charges were then filed against Ms. Lewis.

After the charges were filed Ms. Lewis and Mr. Gardner married. From that point on, Mr. Gardner asserted his privilege against testifying against his spouse pursuant to 42 Pa.C.S. § 5913. In the face of Mr. Gardner’s assertion of the privilege, the Commonwealth filed a motion in limine asking that he be compelled to testify on the grounds that his marriage was collusive. The lower court granted the motion, finding that even though Ms. Lewis and Mr. Gardner loved one another, the timing of their marriage demonstrated that it was collusive and occurred to allow Mr. Gardner to assert the privilege.

The Superior Court concluded that the plain meaning of §5913 excludes any exception for “collusive marriages.” Only the Legislature can create such an exception, and it had not. Therefore, the lower court erred in compelling Mr. Gardner’s testimony at trial. The conviction was affirmed though, as the Court found the rest of the evidence of Ms. Lewis’ guilt was overwhelming.

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