Evidence of child’s injuries and mother’s initial minimalization of her role in how they came about insufficient to support charges of EWC and REAP

Commonwealth v .A.R.C., 2016 PA Super 236 (11/1/16)

In a fact sensitive case involving a child who sustained 18 fractures that showed up after an accident with a dog that resulted with the mother falling on her child, the Superior Court vacated her convictions for jury of endangering the welfare of a child (M-1) and recklessly endangering another person (M-2), and discharged her. There was no evidence up to the time of the accident that the other had done anything but responsibly cared for the child, and even though the mother at first minimized her role in the accident which led to her falling on the child, even a doctor who testified about the injuries suffered by the child stated that the mother’s actions after the incident with the dog and her falling on the child she had not done anything wrong. Whoever tried and did the appeal of this case did a great job making sure that the right evidence got in.

Pa. Super. Ct. restates test for using foreign convictions for sentence enhancements

Commonwealth v Hamett Diaz, 2016 PA Super 291 (12/16/16)

In a case involving a mandatory sentence for prior violent crime convictions, the Superior Court struggled again with something the federal courts and the Supreme Court are having a hard time with— how do you shoehorn criminal convictions form other states into the court’s jurisdiction’s definition of a prior conviction for violent crime. First, the Court rejected the application of Alleyne and Commonwealth v. Hopkins to enhancements based on prior convictions, which has been the law. The Court then went on to analyze the federal offense which was at issue—a statute prohibiting robbery and extortion— and held that it fell within 42 Pa.C.S. § 9714(a)(1). I suggest anyone encountering this issue also read Descamps v. United States, ___ U.S. ___, 133 S. Ct. 2276 (2013), which at first 5 readings is thoroughly confusing but once you master it contains a great way to analyze this stuff, as well as this case. I think there are arguments that can come out of Descamps and a case I lost in the 3d Circuit (they granted oral argument I am convinced so they could kick me and my use of Decamps down the stairs) that can be found here. (Shepardizing it you might find some more helpful stuff, i.e. where the defendant won.)

Mandatory sentences for repeat failure to register as sex offenders held unconstitutional

Commonwealth v. Darryl Lamont Blakney, 2016 PA Super 287 (12/16/16)

The Superior Court held unconstitutional the mandatory sentencing provisions of 42 Pa.C.S. §9718.4, which controls mandatory sentences for repeat failure to as register sex offenders. Under the statute proof for the mandatory minimum — having previously been subject to a period of registration for 15 or 25 years or life under section 42 Pa.C.S §9799.15 or a similar statute from another jurisdiction— was not an element of the offense, so the mandatory minimum must fail under Alleyne and Commonwealth v Hopkins. I wonder if this will hold up on an appeal tot he Pa. Supreme Court, because other mandatory sentences than turn on prior convictions fo not fail simply because they are not submitted to the jury.  This just feels like one of those to me, but for the time being, there is no mandatory minimum for repeat convictions for failure to register as a sex offender under §9718.4. If you want to understand might skepticism, read on to the next case.

Right of indigent PCRA litigants to expert services

Commonwealth v. Jack J. Jarosz, Jr., 2016 PA Super 281 (12/13/16)

The Superior Court affirmed the theoretical right of PCRA litigants to expert testimony to prove their claims, but affimed a lower court’s denial of those funds. I am not going to describe the whole discussion, which is depressing, saying things like, “Nor is an expert necessary where the evidence produced at trial clearly negates the theory an appellant wishes that expert to adduce,” but maybe someone who needs an expert appointed might find some useful language.   I will say that the Bucks County Court of Common Pleas has treated me well when I have made requests for experts and investigators in PCRA cases, but I have done it very infrequently and also described in detail what I would be able to prove if my expert goes my way.

Super. Ct. discusses 4th Amendment issues in probation officers’ searches

Commonwealth v. Dayquan E. Parker, 2016 PA Super 280 (12/12/16)

The Superior Court issued a pretty thoughtful opinion on the current status of probation/parole officers’ authority to search the homes of those they supervise. In this case probation officers walked into a house pursuant to a routine residence check and saw in plain view a box of 9mm rounds, a shotgun, prohibited knives, a scale and other drug paraphernalia. Every single one of these items was a violation. They handcuffed the defendant, and by telephone received permission from their supervisor to search the premises. They called narcotics police who came out and decided not to charge the defendant themselves and left, but as the probation officers continued to search the residence, they found cocaine, and the narcotics officers, called back to the scene, decided to pursue charges. The lower court suppressed the cocaine, and the Commonwealth appealed. The Superior Court said that the probation officers’ initial intrusion was not a search under the 4th Amendment— they were just following the probation contract. The fact that police were called and initially decided not to charge did not diminish their right to search the whole place. The search was consistent with the probation agreement and therefore everything was admissible.

Failure to follow Pa.R.CrimPro. time limits for enforcing right to bill of particulars can result in waiver

Commonwealth v. Jeffrey P. Libengood, 2016 PA Super 288 (12/16/16)

If you request a bill of particulars and get nothing or are not satisfied with what you do not get, you have 7 days to file a motion un Pa.R.Crim.Pro 572(C) to get what you want. Izf you don’t, you waive the issue. Because the opinion does not say the trial court denied the motion because it was untimely filed, this looks like another didge the appellate courts come up with to substitute waiver for thoughtful consideration of an issue— there’s no mention that either party briefed it. Be warned then that if you do not file a motion to compel a bill of particulars, or by logical extensions, a pre-trial motion, the Superior Court might now deem it waived if not filed on time, or if leave is not sought and granted to file it untimely.  (By analogy, due to similar rulings in PCRA review, I now automatically include a request for and form order granting leave to file an amended PCRA. Without it your appellate panel is as likely as not to deny your appeal for not having obtained leave to amend.)

Super. Ct. rules 30-day period of time in which to obtain such in-home intercepted communications does not comport with the protections afforded by U.S. Const. Amend. IV & Pa.Const. Art. 1, §8

Commonwealth v. Dennis Andrew Katona, 2016 PA Super 269 (12/2/16)

Noting that its holding might not withstand Pa.S.Ct. review, and if it does, will likely be overruled by new legislation, the Superior Court last week ruled that every recording made by an informant wearing a wire must be supported by a separate search warrant. Blanket warrants extending over a number of days or weeks no longer suffice to authorize an unlimited or even limited number of 1 of such interceptions. The decision is based upon the Pa Supreme eCourt’s decision in Commonwealth v. Brion, 652 A.2d 287 (Pa. 1994). The Court held that “because the General Assembly did not enumerate any time restrictions regarding how long an order authorizing the interception of communication involving a consenting party is to remain in effect, such an order is subject to the same probable cause determinations as a traditional search warrant in order to maintain the level of privacy citizens of this Commonwealth have always come to expect . . . .” This came out the same week that the Fed.R.Crim.Pro. were amended to authorize a single federal magistrate judge to authorize the use of bot nets designed to reach into thousands of computers belonging to unknown persons in the search for illegal activity. 

Private financial gain required for conflict of interest conviction/ government agencies cannot receive receive restitution without specific statutory authority

Commonwealth v. Veon, 69 MAP 2015 (11/22/16)

The Pa Supreme Court, ordered a new trial, and sentencing and restitution hearing for a state representative convicted of several theft crimes and conflict of interest arising from the use of his office. The facts are long and extensive, but suffice it to say that the Court vacated and remanded for retrial the conflict of interest conviction because it held that the statute could not be violated unless the Commonwealth proved some private financial gain, a holding akin to those coming out of the Second Circuit bur rejected by the U.S. Supreme Court in the prosecution of Governor McDonell of Virginia. At a new trial the jury would have to be so charged. It also ruled that under 18 Pa.C.S. §1102, a government agency cannot receive restitution absent certain circumstances specified in the statute— otherwise it is not a “victim” entitled to restitution.

I am resuming posting!

I stopped posting cases after illness forced me to cut back on a lot of activities. Illness is under control, and I want my colleagues to know what the appellate courts are doing in our cases, so I am resuming posting Pennsylvania appellate cases that defendants win and others that might be of interest to attorneys who represent appellants in appeals of criminal convictions.

Once again, this blog does not pretend to be a comprehensive review of Pennsylvania appellate cases on criminal law, but rather comments on cases where either defendants prevail on appeal or that create new rules or doctrines of note.The posts are basically notes I usually keep for myself, in the format I keep them.

If you think I am wrong about anything, please let me know. Heaven knows the appellate courts frequently do not see things my way!

Please let me know if you have any suggestions.

Pa. Sup.Ct. finds attorney who briefed only waived issues was per se ineffective

Commonwealth v. Frankie Rosado, 92 MAP 2015 (11/22/16)

Sub silentio rejecting one of the silliest Superior Court opinions ever (issued last month, and which I reported on) that posited that an attorney fulfills his appellate obligations when he picks the only one of four possible appellate issues to brief on appeal that was waived below, the Supreme Court ruled that an attorney who abandons all preserved issues in favor of unpreserved ones is per se ineffective.
What is also interesting about this case is that for the first time in a long time the Court relied on the U.S. v Cronic, and not the U.S. v. Strickland standard. “[e]rrors which completely foreclose appellate review amount to a constructive denial of counsel and thus ineffective assistance of counsel per se. . .”, which is an invocation of the United States v. Cronic, 466 U.S. 648, 659 (1984) standard, i.e., counsel was so bad he might as well not have been there “[Errors, such as a defective brief] which only partially foreclose such review are subject to the ordinary Strickland [v. Washington, 466 U.S. 668, 692-94 (1984)) ((1) the underlying claim is of arguable merit; (2) counsel’s action or inaction lacked a reasonable strategic basis; and (3) but for counsel’s conduct, there is a reasonable probability that the outcome of the proceedings would have been different] /[Commonwealth v.] Pierce[, 527 A.2d 973 (Pa. 1987)] framework .
The case contains a good discussion about the differences between Strickland and Cronic, the latter being a case the appellate courts rarely invoke. This guy got the case after the trial, filed a 1925(b) statement and asked for, was granted, and then did not take advantage of additional time to supplement it, and then briefed for the Superior Court a single issue no one had ever raised. The appellant got his direct appeal rights reinstated.