Court erred in ordering restitution beyond loss presented to jury when extent of loss was known at time of trial

Commonwealth v. Poplawski, 2017 PA Super 78 (March 24, 2017)

Mr. Poplawski was convicted under 73 P.S. § 517.8(a)(2), (c)(2) (“A violation of subsection (a)(2) constitutes: … (ii) a misdemeanor of the first degree if the amount of the payment retained is $2,000 or less…”) arising from a home improvement dispute where he failed to complete work he started. He was acquitted of charges of theft by deception, deceptive or fraudulent business practices, 18 Pa.C.S. §§ 3922(a)(1), 4107(a)(2). He was later sentenced to 18 months probation and ordered to pay restitution in the amount of $41,637.00. The restitution bill was based on the victim’s claim that he had to pay a second contractor $41.637.00 to complete the home improvement project after advancing payments to Mr. Poplawski, who did not complete the work. He appealed, challenging the legality of the restitution sentence.

While there are circumstances where restitution can exceed the amount proven at trial, in this case, all repairs necessary to correct and damage done by Mr. Poplawski’s were known and told by the jury. In these circumstances, the sentence could not exceed the amount of loss reflected by the jury’s verdict. The matter was remanded for imposition of a restitution sentence not exceeding $2000.

Waiver of counsel at Magisterial Court level did not carry over to Common Pleas proceedings

Commonwealth v Johnson 2017 PA Super 71 (March 21, 2017)

Mr. Johnson was arrested after a high speed chase in Philadelphia that ended up with him crashing into a house and being stuck more than once by police who claimed it was necessary to subdue him. He was charged with various offenses relating to a car chase in a center city Philadelphia neighborhood. He was appointed a public defender, but told her that he did not want her, and he appeared pro se at his preliminary hearing after waiving his right to counsel pursuant to Pa.R.Crim.Pro. 121(B). Charges were held for court and he filed a pro se omnibus pre-trial motion including motions to suppress and dismiss. The motions were denied, and the Defendant then hired counsel who represented the Mr. Johnson at his trial, where he was found guilty. He was sentenced to an aggregate sentence of 186 to 384 months, and he appealed.

On appeal, the Superior Court remanded the matter to ascertain whether the Defendant was entitled to a public defender before the suppression hearing or any other indications that he waived his right to counsel. The Common Pleas Court responded that there was no indication the Defendant had waived his right to counsel pursuant to Pa.R.Crim.Pro. 121(C).

Even though Mr. Johnson never raised the issue, the Court quoted from another case that “where an indigent, first-time PCRA petitioner was denied his right to counsel –or failed to properly waive that right – this Court is required to raise this error sua sponte and remand for the PCRA court to correct that mistake.” Even though this was not a PCRA matter, the Court found it applied to non-waiver of counsel in a suppression hearing and consideration of that issue on direct appeal. The waiver of counsel before the magisterial court did not apply to proceedings in the Common Pleas court. Because Mr. Johnson never properly waived his right to counsel before the suppression hearing, the conviction was vacated and the matter remanded for a new suppression hearing and trial.

Sentencing court erred when believing it had to impose a mandatory 5 year sentence for a defendant, convicted of 75 Pa.C.S. § 3802(a)(1), (c)

Commonwealth v Watson, 2017 PA Super 59 (March 8, 2017)

Mr. Watson entered an nolo contendere plea to Driving Under the Influence (DUI) (Second Offense- [Within] Ten Years), 75 Pa.C.S. § 3802(a)(1) and (c) and some other traffic offences, and a PSI and D&A assessment was ordered.  The assessment recommended outpatient treatment, which Mr. Watson received before sentencing. None months later, Mr. Watson was sentenced to the sentenicng court thought was mandatory 5 years sentence under 75 Pa.C.S.A. § 3804(d) , to be served as County Intermediate Punishment (CIP) supervision. The sentence was vacated because allocution had not been granted, but two months later, the court reimposed the same sentence. Before the resentencing, Mr. Watson had completed his Repeat Offenders Program and all other recommended treatment. No further treatment was recommended.

Mr. Watson appealed, arguing that, because he completed counseling and assessment pursuant to 75 Pa.C.S.A. § 3814, and no further treatment was recommended, the court was not bound by statute to impose a mandatory sentence of five years’ CIP supervision, because the mandatory five years is applicable only if further treatment is necessary, and that, otherwise, the court has discretion with respect to the term of CIP supervision. The Court  reviewed the statute and prior decision, and vacated the sentence and remanded for resentencing, ruling the DUI statute and the Sentencing Code can be read together to permit a sentencing court to avoid a mandatory minimum sentence in favor of a sentence of CIP for certain eligible offenders. In other words, even if found in need of further treatment, the court may sentence under the Sentencing Code and avoid the mandatory maximum under the Vehicle Code, provided, of course, the defendant is eligible. The sentencing court was under a misapprehension that it was bound to impose a five-year maximum in Mr. Watson’s case.

Court erred in raising grade of retail theft charges based on New York prior conviction

Commonwealth v Vandyke, 2017 PA Super 54 (3/1/2017)

Ms. Vandyke pled guilty to retail theft of $15.40 in merchandise form a store.  At sentencing, the Commonwealth introduced, over objection, evidence of two petit larceny convictions for thefts from store in New York. As a result, the sentencing court considered her to be a three time offender, and thus guilty of 3° felony retail theft. To the Superior Court she argued that 18 Pa.c.s.§3928(b.1)’s allowance of out of state convictions  (“a similar offense under the statutes of any other state or of the United States”) for increasing the grading required equivalency, and not, as the Commonwealth urged. The statute says similarity, the Court noted, and that was all that was required, but at that, the New York petit larceny statutes were not similar, and thus could not be used to increase the grading. The Court discussed, but ultimately declined to use, prior caselaw that assessed whether Pennsylvania and other jurisdictions’ statutes were equivalent, as only similarity was required. The underlying facts of the New York convictions could not be considered either— only their statutory elements. Using this test, the states were not similar, as the petit larceny statute covered theft form several types of victims, whereas the retail theft statute concerned only theft from retail establishments. Therefore the case was remanded for resentencing.

The Court also made note of the problems raised in Mathis v. United States, 136 S.Ct. 2243, 2252 (2016), which dealt with the way federal courts can consider certain prior convictions for state crimes when imposing federal sentences. The 6th Amendment ordinarily prohibits using the facts underlying those convictions to determine whether they can enhance the sentence.

Federal conviction on gun charges precluded state firearms prosecution under 18 Pa.C.S. §111

Federal conviction on gun charges precluded state firearms prosecution under 18 Pa.C.S. §111

Commonwealth v Gross, 2017 PA Super  51 (2/28/2017)

Ms. Gross was charged with violating 18 Pa.C.S. § 903(a); firearms not to be carried without a license, 18 Pa.C.S. § 6106(a)(1) (co- conspirator); possession of firearm prohibited, 18 Pa.C.S. § 6105(a)(1) (accomplice); and lending or giving of firearms prohibited, 18 Pa.C.S. §  6115(a) (accomplice). The underlying facts concerned her obtaining papers enabling her to buy a handgun using her boyfriend’s address. The boyfriend could not have a gun due to a PFA order. She allowed him to use the gun to teach her how to use it, stored it in his residence, and the boyfriend used it himself without objection from her. The boyfriend, after kidnapping his son from his estranged wife’s home, used the gun to kill a state trooper. After the Pennsylvania charges were filed against Ms. Gross, but before her conviction, she was charged, convicted and sentenced by the federal government for violating 18 U.S.C. § 924(a)(1) 18 U.S.C. §§2 and 922(g)(8) (making false statements to a federal firearms licensee and aiding and abetting a prohibited person to possess a firearm). After the federal conviction and before the state trial, she filed a motion to dismiss on double jeopardy grounds, and when her motion was denied, she was permitted to take an interlocutory appeal because her motion was considered non-frivolous.

Because the Sixth Amendment does not prohibit prosecution for the same acts by different sovereigns, United States v. Lanza, 260 US. 377(1922) and Fox v. State of Ohio, 46 U.S. 410 (1847), the court looked to 18 Pa.C.S. §111. Under that section, “first inquiry is whether or not the prosecution which the Commonwealth proposes to undertake involves the same conduct for which the individual was prosecuted by the other jurisdiction. Commonwealth v. Traitz, 597 A.2d 1129, 1132-33 (Pa. 1991); Commonwealth v. Scarfo, 611 A.2d 242, 256 (Pa. Super. 1992). If the answer to this question is yes, then we must determine whether each prosecution requires proof of a fact not required by the other, and whether the law defining the state offense is designed to prevent a substantially different harm or evil from the law defining the other jurisdiction’s offense. Scarfo, 611 A.2d at 257. If the Commonwealth cannot satisfy both of these requisites, then the prosecution may not proceed. Id.

The Commonwealth agreed that the conduct underlying the two prosecutions was the same. The Court saw that the interests protected by the Commonwealth’s and federal statutes were the same: “to regulate the possession and distribution of firearms, which are highly dangerous and are frequently used in the commission of crimes.” Therefore, the prosecution was prohibited under §111, and Ms. Gross was discharged.


Pictures of different sovereigns from Kate Tattersall Adventures, British Secret Service Clandestine Operative