Materials for December 19, 2012 BCBA Federal Court CLE

Keynote (Powerpoint) presentation

National Federation of Independent Business v. Sibelius, 132 S.Ct. 2566 (2102)


Don’t call it a mandate — it’s a tax, Lyle Denniston, SCOTUSblog 6/28/2012

Wikipedia: National Federation of Independent Business v. Sebelius

Summary of the U.S. Supreme Court decision in the case of National Federation of Independent Businesses et al. v. Sebelius, Secretary of Health and Human Services, et al., HealthReformGPS (George Washington University)


United States v. Jones, 132 S.Ct. 945 (2012)


Reviewing the Fourth Amendment cases of OT2011, Orin Kerr, SCOTUSblog, August 10, 2012

Why Jones is still less of a pro-privacy decision than most thought, Tom Goldstein, SCOTUSblog, 1/30/2010

United States v. Jones: GPS Monitoring, Property, and Privacy, Richard Thompson, Congressional Research Service


Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, 132 S.Ct. 694 (2012)


A solid “ministerial exception”,Hosa Lyle Denniston, SCOTUSblog, 1/11/12

Wikipedia: Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission

What Comes After Hosanna-Tabor, Matthew Franck, First Things, 1/12/2012

Hosanna-Tabor: U.S. Supreme Court Church-State Decision Protects the Church, Keith Fournier, Catholic Online, 1/14/2012

The Elephant in Hosanna-Tabor, B. Murray, Georgetown Journal of Law and Public Policy (2012)


Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S.Ct. 1289 (2012)


Court’s biotech case sends stern warning to Federal Circuit and software designers, Ronald Mann, SCOTUSblog, 3/21/2012

Mayo v. Prometheus: Natural Process + Known Elements = Normally No Patent, Dennis Croach, Patentlyo, 5/20/2012

Wikipedia: Mayo Collaborative Services v. Prometheus Laboratories, Inc.



Arizona v. United States, 132 S.Ct. 2492 (2012)


Academic highlight: Young on the Roberts Court and preemption,Amanda Frost,  SCOTUSblog, 8/1/2012

Online symposium: A defeat for the Obama Administration, Richard Samp, SCOTUSblog, 6/25/12

Online symposium: A win for the government and for the SG, Andrew Pincus, SCOTUSblog, 6/26/2012


Minneci et al. v. Pollard, 132 S.Ct. 945 (2012)


New curb on Bivens remedy? Lyle Denniston, SCOTUSblog, 5/6/2012



United States v. Alvarez, 132 S.Ct. 2537 (2012)


Wikipedia: United States v. Alvarez


United States v. Windsor

Hollingsworth v. Perry


Commentary on marriage grants: Marriage equality’s Cinderella moment, William Eskridge and Hans Johnson, Scotusblog, 12/9/2012

Commentary on marriage grants: Article III & same-sex marriage, Neal Devins and Tara Grove, SCOTUSblog, 12/8/2012

Commentary on marriage grants: Opportunity for the Court to right some wrongs, William Duncan, SCOTUSblog, 12/7/2012




Superior Court directs that 18 Pa.C.S. §1101.2’s sentencing procedures to juveniles whose convictions for first or second degree murder predate the June 24, 2012 effective date of the law

Commonwealth v. Loftun, 2012 PA Super 267, December 7, 2012

On June 24, 2012, the United States Supreme Court, in two cases, one a direct appeal and another seeking collateral relief, held that the Eighth and Fourteenth Amendments bar the application of mandatory life sentences to any juvenile, including one convicted of murder. Miller a. Alabama, 132 S.Ct. 2455 (2012). It prescribed no procedures to deal with resentencing juveniles whose cases were on direct appeal or seeking collateral relief. (Justice Kagan’s opinion did not address the ruling’s retroactivity to cases not currently pending in any court, but if the sentence is deemed illegal, it should be subject to collateral attack.)  In response, the Pennsylvania Legislature passed, and the governor signed, 18 Pa.C.S. §1101.2, which limits sentences for crimes that previously carried a life sentence, to a mandatory minimum sentence of thirty-five years to life. The Act sets forth several considerations a court must take into account, including the juvenile’s development and psychiatric or psychological status. (The constitutionality of a minimum sentence of thirty-five years is sure to be attacked, but it is not expressly prohibited by Miller.)

Kevin Loftun was committed in 2011 of committing second degree murder in 2007, when he was a juvenile, and sentenced to life. Throughout the case, his lawyers preserved a challenge to the constitutionality of the imposition of a life sentence due to his age.  Because his crime predated the effective date of the act (a date which allowed the Legislature and the Governor to abdicate any responsibility for and ownership of the problem of dealing with the scores of persons in jail for murder committed while they were juveniles, dumping that issue on the Courts they so often decry for taking lawmaking away from them), the Superior Court decreed that the act’s sentencing provisions would apply to anyone with a pending direct appeal whose crime occurred before the Act’s effective date.  It declined to rule on whether the same procedures would apply to cases seeking collateral relief.

The opinion may be found here.

Image from Juvenile Justice Blog.

42 Pa.C.S. §8933, Limiting Issuing Authorities’ Power To Dismiss Felonies When Victims or Commonwealth Attorney Fail to Appear, Declared Unconstitutional/ Parts of Legislative Enactments Not Germane To The Enactments Main Purpose are Unconstitutional

Sernovitz, et al. v. Dershaw, et al., 2012 PA Super. 248, November 14, 2012 (29 pages)

This is a medical malpractice case wherein a statute that barred Pennsylvania courts from hearing the cause of action was declared unconstitutional because it was not germane to the main purpose of the legislation that enacted the statute. As a result of the Court’s ruling in this case, several statutes enacted as part of the legislation that had nothing to do with what the Superior Court deemed the primary purpose of the legislation— post-trial matters in criminal cases— were declared unconstitutional.


The plaintiffs were parents who were expecting a baby. Suspecting that their ethnic heritage made it reasonably likely that any child the couple conceived might suffer from certain genetic disorders, their doctor recommended, and the couple agreed, that they should undergo testing to determine if they carried the suspect genes. Although the testing revealed that the mother carried a gene mutation that causes familial dysautonomia, none of the doctors who met with the plaintiffs and knew the results of the testing informed them: to the contrary, they told the couple there were not problems. Later that year the mother gave birth to a child who had familial dysautonomia.  They sued their doctors and anyone else who could and should have informed them of the results for expenses related to the birth and care of their son, and for emotional distress and related claims.  Since 42 Pa.C.S. §8305 bars lawsuits for wrongful birth, they also challenged its constitutionality, alleging that in violation of Article III, Sections 1, 3, and 4 of the Pennsylvania Constitution.

Article III contains most of the Pennsylvania Constitutions rules regarding the creation and passage of legislation. § 1 states, “No law shall be passed except by bill, and no bill shall be so altered or amended, on its passage through either House, as to change its original purpose.”  §4 provides, “Every bill shall be considered on three different days in each House,” and goes on to set forth other measures that help ensure that legislators have ample opportunity to learn what legislation is being considered and the publics knows how members voted on it. This case, however, turned only on §3,  which provides, “No bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compiling the law or a part thereof.”  In short— outside of appropriations bills and legislative “housekeeping” bills—all provisions of a bill passed by the Legislature must be germane to the bill’s main purpose.


§3 restrains the legislative process in a way to encourage open, deliberative and accountable government.  It prevents the attachments or riders to bills that would not pass on their own, provides for meaningful consideration of legislation before it is passed, and protect the integrity of the governor’s veto by allowing its use to be targeted only at legislation the governor does not want to sign.


Acknowledging that determining what is and is not germane to a piece of legislation can trample on the Legislature’s power to craft and pass legislation, the Court applied tests developed over the last ninety years by the Pennsylvania Supreme Court. Its review of this particular legislation’s history led it to conclude that its main focus was changes in the handling of post-trial matters in criminal cases. The description of what happened is beyond the scope of what needs discussing here, but it is comprehensive and is yet another illustration of American poet John Godfrey Saxe’s oft quoted (and nearly always misattributed to Otto von Bismark) observation, “Laws, like sausages, cease to inspire respect in proportion as we know how they are made.”  The Court found the other provisions of the law not germane, and therefore unconstitutional. These included the wrongful death statute, and 42 Pa.C.S. §8933, barring issuing authorities from dismissing felony cases where the victim of Commonwealth attorney fails to appear in the absence of reasonable attempts to ascertain why they did not come. Because the parts of the legislation concerning post-trial matters in criminal cases were severable, they survived.


It being unlikely that the Legislature last acted in haste in crafting and passing a bill, this situation is bound to occur again.  Therefore before acquiescing in the application of a new criminal aw a brief examination of its provenance.


The case may be found here.



PCRA Proceedings Do Not Go Away Due To Inaction While Time Passes

Commonwealth v. Swartzfager, 2012 PA Super 249, November 20, 2012 (9 pages)

Swartzfager pled guilty to attempted rape, was sentenced, and appealed to the Superior Court, which affirmed the judgment of conviction on October 11, 2000.  The Supreme Court was not asked to hear the appeal, and on October 19, 2001, Swartzfager filed a PCRA petition. Appointed counsel, forgetting that a Superior Court judgment does no become final for thirty days after its filing, filed a petition with the court of common pleas asking to be removed because the petition was untimely.  The common pleas court issues a notice of intent to dismiss the petition pursuant to 907 on April 2, 2003, and not waiting for the actual dismissal to occur, Swartzfager filed an appeal tot the Superior Court. Predictably, that court dismissed the appeal as interlocutory and premature, as the PCRA petition had not yet been dismissed. The common pleas court, which even went to the trouble of writing an opinion, still did not bother to enter an order dismissing the PCRA petition.


On December 11, 2011, the Defendant filed yet another PCRA petition, and once again, the common pleas court issued a Rule 907 notice of intention to dismiss, followed by yet another notice of appeal by Swartzfager.  This time though the common pleas court entered an order dismissing the second PCRA petition. The Superior Court however found that that because the first PCRA petition was both timely and had never been dismissed, the matter should be remanded to the common pleas court for a hearing on the original PCRA petition, which was both timely and had never been properly disposed of.


(This is not an uncommon occurrence. I have been appointed to represent defendants who, upon examination by either myself or the court, have been found to have years old active PCRA petitions that were never properly dismissed.  Litigating those old petitions has proven impossible though, as counsels’ files disappear and memories fade. Counsel seeking dismissal of PCRA petitions— whatever side of the courtroom they may be on— should not close their files until they are sure the petitions have been dismissed and their clients have an opportunity to file timely appeals.)


The case may be found here.

Evidence from Nighttime Search Constituted Misconduct in Violation of Fourth Amendment Principles and Privacy Concerns in Article I, §8 of the Pennsylvania Constitution Suppressed

Commonwealth v. Berkheimer, 2012 PA Super 253, November 21, 2012 (37 pages)


Looking to execute a probation detainer on one Ryan Lecroy, two inexperienced state troopers sought the help of some more experienced colleagues. Those colleagues in turn spoke to Lecroy’s stepfather, who opined he was staying at an address that had two residences, one of which was a mobile home rented by the defendants.  Approaching the darkened mobile home at 11:30 p.m., and lacking any indicia that the tip about Lecroy’s whereabouts was reliable, the troopers determined it was necessary to talk to the occupants of the mobile home. One of them knocked and, three seconds later, pushed it open, allowing the smell of burned marijuana to waft outside. The trooper who entered first saw, with his flashlight, Brady Berkheimer and her sister, Lecory’s wife Natasha Lighter, asleep on separate sofas. The trooper announced himself. Berhkheimer explained her sister was in the home because she was terrified of Lecroy, who was abusive.  The trooper announced his purpose and said he was going to search the house on account of the smell of marijuana. In response to his question, Berkheiner told the trooper her husband Kent Berkheimer was also in the house, whereupon the trooper went out and found him in the bedroom standing next to two of the Berkheimers’ sleeping four year old daughter. He also saw several marijuana pipes, and vessels containing marijuana. Escorting Kent to the living room, the trooper said that they were not free to leave while he applied for a search warrant. In the meantime two troopers went to the other residence on the property in search of Lecroy. The four occupants of the house were taken to a neighbor’s home to await the arrival of the search warrants a few hours later, as well as the subsequent search of both properties. The troopers did not wait for the warrants to arrive to go into the other house, where they found marijuana too. When the warrants arrived, a more thorough search ensued.   In addition to the aforementioned pipes and marijuana, the troopers seized a box from a basement with evidence of marijuana cultivation and a scale from a car whose door they jimmied. The total amount of the marijuana seized totaled less than 30 grams— a small amount under 35 P.S. §780-113(a)(31).


At the suppression hearing, no one could explain why the quest for Lecroy and the ensuing search of the Berkheimers’ home had to occur in the middle of the night. The suppression court found the troopers’ actions illegal, but did not suppress the evidence because the smell of the marijuana provided probable cause for the search, and therefore the marijuana would have been discovered anyway. The Berkheimers were convicted and appealed. A Superior Court panel affirmed, by the Court grated reargument en banc. The question the Court considered on reargument was:


[Whether] [t]he Trial Court committed an error of law by holding that the independent source doctrine is applicable to a situation where a police team a) illegally obtained evidence through a warrantless, nighttime, non-peaceful entry into a private home in the absence of exigent circumstances, and b) this police team is the very same police team claiming to have legally obtained sufficient evidence to form the basis of a search warrant, through an independent source, prior to conducting a warrantless home invasion[?]


The Court first expressed its concern about the warrantless entry and the nighttime search, both in the absence of any exigent circumstances. Both criticisms were based on United States Supreme Court decisions grounded in the Fourth Amendment. The Court also noted the absence of any justification for a nighttime search.


To save the search, the Commonwealth invoked the “inevitable discovery ”exception to the exclusionary rule. The Court though found this use of the exception inconsistent with Article I, §8 of the Pennsylvania Constitution. The Court set forth a lengthy exigesis on Article I, §8 and its history of protecting Pennsylvania’s citizens from unwarranted government intrusions, those protections being more extensive than those afforded by the Fourth Amendment as interpreter by the United State Supreme Court. While the Pennsylvania Supreme Court at first adopted the inevitable discovery exception to the Fourth Amendment’s warrant requirement, it later retreated, holding that the exclusionary rule that enforces Article I, §8 not only exists to deter police misconduct, but to protect the privacy rights of citizens. Nor did the recent case of Commonwealth v Henderson, 47 A.3d 797 (Pa. 2012) aid the Commonwealth. In that case the use of illegally obtained evidence by police officers was unwitting: they had no way of knowing that the information used to obtain their warrant was illegally obtained from other officers— a distinction the Supreme Court relied upon in ruling the evidence admissible. In this case, the police officers who obtained the warrant knew their conduct was illegal.


The Court in the end reversed the decision of the panel and ordered the appellants discharged.


The case may be found here.



Sorry to have been away so long

I have not posted for several months because illness slowed me down. My obligations to my clients had to come first, and after fulfilling those and doing what I had to do to get better I did not have the time necessary to concentrate on getting out the news of Pennsylvania cases that seemed important to me about criminal law. I am somewhat better now and hopefully can fulfill my own expectations of myself and help anyone who takes the time and effort to read what I write.


Thanks for your patience.