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.
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.)
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.
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.
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.
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.)
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 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.