Variance Between Crime Charged and Conviction/ 3° Robbery is not a Lesser Included Crime of 2° Robbery



Commonwealth v. Brandon, 2103 PA Super 285, 11/6/13 (7 pages)

In the very, very early morning hours one late Fall in Philadelphia, Mr. Brandon got into a cab in Center City Philadelphia, and asked to be taken to Lansdale, The cabdriver, after ascertaining the distance, said the ride would cost over $70.00, and asked for payment in advance. When Mr. Brandon, claiming lack of funds, asked to be driven there with assurance of payment upon arrival at his destination, the cabdriver demurred. Mr. Brandon then told the Defendant to drive, and put his left hand in his pocket, telling the cabdriver not to call police, and threatened him bodily harm.   Believing Brandon armed, the cabdriver drove. Mr. Brandon then told the cabdriver to put his phone in a box on the seat.  A few blocks away the cabdriver saw two police cars, drove up to them, jumped out and told the police what was happening. After hearing the account the officers saw Mr. Brandon running away. When caught after a chase Mr, Brandon said he did not know why the cabdriver thought there was a robbery, and that he was not serious about having a gun, He did not have one when caught. Mr. Brandon said he was intoxicated, and the police did not argue with that claim.

At trial the Defendant essentially repeated his story. He was charged with 2° robbery and terroristic threats, but due to the trial court’s charging the jury on what it believed to be a lesser included offense, he was convicted of 3° robbery and terroristic threats. On appeal, Mr, Brandon claimed that if he could not be convicted of 3° robbery because it is not a lesser included crime of 2° robbery. 3° robbery requires proof that a defendant in the ccourse of a theft “physically takes or removes property from the person of another by force however slight.” 18 Pa.C.S. §3701(a)(1)(v).  2° robbery requires that a defendant, in the course of a theft, “inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury. “18 Pa.C.S. § 3701(a)(1)(iv). Because the taking of property is not required for 2° robbery,  3° robbery could not be a lesser included. The robbery conviction was vacated.


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Post-Trial Review of Suppression Rulings Cannot Take Into Account Evidence Presented at Trial But Not at the Suppression Hearing/ Definitions of Scope of Review and Standard of Review/ Footnotes Are Not Binding Precedent When Not Crucial to the Outcome of A Decision/ Retroactive Effect




In re: L.J., 28 EAP 2010, 10/30/13 (24 pages)

Police conducting narcotics surveillance observed one Glover  engage in a hand to hand drug transaction with a male who left the scene. Thereafter L.J. and one Turner approached Glover. They spoke with one another, Turner gave Glover money, who then gave Turner some items he removed from a baggie. Turner and L.J. left the area. One of the surveilling officers radioed for back-up to stop Turner. One of the officers who did so removed from L.J.’s purse what turned out to be 29 grams of crack.

L.J., tried as a juvenile, moved to suppress. The officer who seized the crack from L.J. did not appear for the suppression hearing.  The suppression court did not accept L.J.’s argument that a warrant was needed to search the purse or that there was no probable cause or reasonable suspicion to do so.  At trial, the officer who seized the purse testified that he asked to look at the purse so he could see if it contained weapons. When L.J.’s lawyer tried to ask the officer whether he obtained written consent to search, the court sustained an objection based on the question being relevant to suppression, but not L.J.’s guilt or innocence. L.J. was convicted of possession with intent to deliver. In L.J.’s Pa.R.App.Pro. 1925(b) statement, she raised the suppression issue. In its opinion finding no error, the trial court cited the trial testimony of the officer who searched the purse. The Superior Court relied on a footnote in Commonwealth v. Chacko,  459 A.2d 311 (Pa. 1983), for the proposition that a reviewing court can look beyond the suppression hearing to determine whether a search was justified, and affirmed on appeal.

The Pennsylvania Supreme Court granted allocator on the issue of whether evidence from trial could be used to justify a pre-trial suppression ruling. The Court first discussed and accurately noted how many Pennsylvania appellate decisions improperly conflate standard and scope of review. Then, it resolved any confusion. “Scope of review,” the Court said, “’refers to the confines within which an appellate court must conduct its examination. In other words, it refers to the matters (or ‘what’) the appellate court is allowed to examine’” (citation omitted).” It continued, “In contrast, standard of review is the ‘degree of deference given by the reviewing court to the decision under review’” (citation omitted). It further stated:

Scope of review (or the “what”) may be divided into two components: the subject matter of the review, and the extent of the record that the appellate court consults when conducting that review. As for the subject matter, our scope of review is limited to the factual findings and legal conclusions of the suppression court. As for the record, we are limited to considering only the evidence of the prevailing party, and so much of the evidence of the non-prevailing party as remains when read in the context of the record as a whole.

(Citations omitted.) The Court then went on to consider whether an appellate court could consider whether a suppression ruling can be based upon evidence presented at trial, but not the suppression hearing.

The Court first found that the footnote in Chacko underlying the Superior Courr decision was not binding precedent, as by the footnote’s own terms (it qualified itself with the term “we note parenthetically”) it was not crucial to the decision, and therefore not binding precedent, but rather dicta. It also found no binding precedent from the United States Supreme Court allowing the use of trial testimony to bolster the pre-trial findings of a suppression court. Finally, relying on Pa.R.Crim.Pro. 581(J) and Pa.R.Juv.Pro. 350(D). that state that with one exception, suppression court rulings are final (these rules do allow a defendant to relitigate a suppression motion based upon previously unavailable evidence is revealed at trial.) Therefore, the appellate scope of review of a suppression ruling is the evidentiary record from the suppression hearing. The post-trial suppression ruling was therehore reversed.

However, in a portion of the opinion joined by only three Justices and with one more concurring in the result, the Court decided to give its ruling only prospective effect to this decision. Because the  Commonwealth may have relied upon Chacko, it remanded the matter for a new suppression hearing.

Image from Elite Daily, 8/12/13



Child Support to the Children of a Homicide Victim Cannot Be Ordered as Restitution



Commonwealth v. Andre Hall. No. 55 EAP 2010, October 30, 2013 (23 pages)

The Defendant was having an affair with a woman who was also still romantically involved with her former husband.  The former husband supported the children he had with his former wife, even in the absence of a formal agreement or court order. Very early one morning, while she was sleeping with the defendant, the woman received a phone call form the former husband asking to see his children. She said no, but after a few more calls she relented. The Defendant got dressed to leave, but outside the woman’s house, the two men got into an argument and the defendant killed the visiting father. He was arrested, tried, and convicted of voluntary manslaughter.  He was sentenced to five to ten years  and directed, upon release, to pay child support for the victim’s children. The court initially did not say how much he was going to pay for the support, or how it would be calculated, but it later clarified it by setting, “based on ability to pay, at a rate of not less tha[n] $100 per child, a month.” The probation department could determine a lower amount if the defendant could not afford the ordered amount.

On appeal. the Superior Court remanded to the sentencing court for a determination about whether the child support was a condition of probation or a sentence of restitution. On remand, the sentencing court called the child support a condition of restitution for rehabilitative purposes, and directed its payment be supervised by the probation department. Back on appeal, the Superior Court reversed, holding that restitution was improper to order restitution to third parties who were not victims of crime, and that the true purpose of the restitution in this case was not to rehabilitate the defendant, but to support his children.

The Commonwealth sought and obtained permission to appeal. The Supreme Court affirmed, but for different reasons. Construing the probation statute, 42 Pa.C.S. §9754, in the light most favorable to the defendant under the rule of lenity, it found that under the statute, restitution could be imposed to make “reparations,” and that the final, catchall provision of the statute, which allows unspecified terms of probation for rehabilitative purposes, does not exclude restitution. (The Commonwealth did not argue that the restitution was allowed under the restitution statute, 18 Pa.C.S. §1106, as that allows restitution only to crime victims.) The problem the Court had with the child support sentence though was that the amount was too speculative, not confirming to any standard for computing such support, and that the factors that go into computing child support are not easily transferable to the probationary realm. Child support orders are issued pursuant to very specific standards. Until legislation is passed specifically allowing this type of sentence, the Court said this type of term could not be imposed as a condition of probation.

Image from The Pocono Record, 10/29/13


Defendant’s Claim of Innocence, Regardless of its Fanciful Nature or Strength of Commonwealth’s Case, is Fair and Just Reason for Pre-Sentence Withdrawal of Guilt Plea




Commonwealth v. Jose Carrasquillo, 2013 PA Super 270, 10/8/13 (23 pages)

The Defendant was charged with violently raping two adolescent girls within one hour. He pled guilty, and answered appropriately all questions during the colloquy, but at his sentencing on a later date, when allocuting, proclaimed his innocence. In response to a question from the court the defendant said he wanted to withdraw his guilty plea. The  Commonwealth objected because it had promised one of the victims that she would not have to testify. The court denied the oral motion to withdraw, and sentenced him to an aggregate term of 66 years. On appeal, the Superior Court reversed. In doing so, it reiterated holdings from prior cases that an assertion of innocence is a fair and just reason— the pre-sentence standard for withdrawal of guilty pleas— for seeking pre-sentence withdrawal of a guilty plea. A claim of actual innocence is enough, even if, as in this defendant’s case, based upon the available evidence which seems outlandish and fantastical. A defendant does not have to supply evidence for his innocence claim to withdraw his plea before sentencing.

The Court did not find that the Commonwealth established substantial prejudice requiring denial of the motion to withdraw the guilty plea. The defendant did not engage in illegal conduct delaying the case. It was not in a worse situation than it would have been in had it had to try the case in the first place. While sympathetic to the plight of the victims, that was not enough to deny the motion to withdraw, so the case was remanded for trial.

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Proof Beyond a Reasonable Doubt of Elements Required for Imposition of Mandatory Minimum Sentences

Commonwealth v. Munday, 3020 EDA 2010, October 10, 2013 (10 pages)jury duty serve service

The Superior Court unremarkably decided that state courts have to follow the  United States Supreme Court decision in Alleyne v. United States, 133 S.Ct. 2151 (2013). Thus, when a mandatory minimum sentence is under consideration based upon judicial factfinding of a ‘sentencing factor,’ that ‘sentencing factor’ is, in reality, “an element of a distinct and aggravated crime” and, thus, requires it must be proven beyond a reasonable doubt, notwithstanding Pennsylvania statutes requiring less proof to the contrary. This issue goes to the legality of the sentence, allowing Mr. Munday to raise it for the first time on appeal, even though it did not appear in his Pa.R.App.Pro 1925(b) statement. Mr. Munday, who, following trial, received a five year sentence pursuant to 42 Pa.C.S. §9712.1 for visibly possessing a gun while in possession of drugs with intent to deliver, had his case remanded for resentencing because the factfinder had not determined at trial that a violation of §9712.1 was proven beyond a reasonable doubt, in violation of the 6th and 14th Amendments to the United States Constitution.


Image from, 7/18/11