Commonwealth v Tejada, 2017 PA Super 123 (4/26/2017)

Mr. Tejada was convicted of aggravated harassment of a prisoner following a jury trial he was not allowed to attend. He was not allowed to attend because at the first attempt of having a trial he engaged in disruptive behavior culminating in his hitting his lawyer during his opening statement. At sentencing he objected to the absence of a pre-sentence report, and the judge, before sentencing him, refused to explain why he had done so.

Pa.R.Crim.Pro. 702(A)(2)(a) requires a judge to explain the reasons for forgoing a PSI when a sentence of one year or more is possible, but the Superior Court has said the explanation is not necessary if the court demonstrates it has sufficient information to allow it to dispense with the report. Because the sentencing court immediately sentenced the defendant after denying the objection and did not otherwise indicate it had sufficient information to dispense with the report, a new sentencing is required.

Note to persons who might from time to time practice in Bucks County— a Common Pleas judge, faced with such an issue at a PCRA hearing, accurately opined that anyone who asks for a PSI before a Bucks County sentencing is ineffective.

Commonwealth v. Santiago, 2017 PA Super 116 (4/20/17)

A police officer encountered Mr. Santiago’s car and deeming the circumstances questionable, walked up the vehicle and asked for identification. Mr. Santiago said he did not have any, and when the officer asked him to get out, he reached for his consol. The officer grabbed him to prevent him from reaching it, and Mr. Santiago began to speed off, causing the officer to fall off the car and his foot to be run over. After receiving medical treatment the officer with other officers returned to the scene where they found a cell phone on the ground. The injured officer picked it up and accessed it without a warrant to ascertain the identity of who owned the phone.  This led to a search of the NCIC data base of one of the names in the phone, and upon retrieval of the picture of Mr. Santiago form NCIC, the officer’s identification of him. Mr. Santiago was arrested and charged with assaulting the officer.

The lower court granted a motion to suppress all evidence found as a result of the search of the cell phone, and the Commonwealth appealed, arguing that even if the search was illegal, the scope of the remedy was too broad. The Court rejected the Commonwealth’s argument that identity evidence is never completely suppressable, but if found that the lower court’s conclusion that an in court identification was irrevocably tainted by the officer’s observation of the phone was not justified by the evidence.  Just because Mr. Sanchez was discovered because of the search of the phone did not mean that absent that search the officer could not otherwise have had the ability to identify the defendant. So while the suppression of the fruits of the search of the phone was upheld, an in court identification of the Defendant by the officer was not.

Commonwealth v. Kashamara Green, 2017 PA Super 140 (5/9/2016)

Ms. Green was convicted of failure to make required disposition of funds received. The evidence against her included testimony describing a surveillance video purportedly not showing either Mr. Green or his car at the bank on the day he claimed to have made a deposit of the money in question Counsel’s timely best evidence objection to the testimony about the tape in lieu of producing it was overruled. R, Green testified, claiming he made the deposit and the documentation he provided of the deposit was authentic. He was convicted, and appealed to the Superior Court where a split panel ordered he receive a new trial. The Commonwealth’s application for rehearing was granted, and a seven judge panel reversed. While the testimony violated the best evidence rule, it was harmless in light of the overwhelming (in the eyes of the en banc panel) evidence against Mr. Green.

Hively v. Ivy Tech Community College of Indiana, ___ F.3d ___ No. 15-1720, (7th Cir. Aril 4, 2017)

Judge Posner is the most prolific author on the federal bench, having written hundreds or articles in general circulation publication across the political spectrum and legal journals, as well as enough books to fill up 6 web pages on Amazon’s web site on subjects legal, political, and social. He is not afraid to speak his mind, and is always provocative. In last week’s 7^th Circuit en banc decision finding that Title VII of the Civil Rights Act of 1964 barred discrimination on the basis of sexual orientation* rather than the a person’s sex at birth, he wrote a wonderful concurring opinion that begins with a few paragraphs on the different methods of interpreting a statute. Judge Posner’s language is so concise and precise I will not degrade it by summarizing it, but just quote it at length. I know I will find it useful going forward as I encounter interpretation of statutes and the precedential on older cases in light of the evolution of things like juvenile brain science and advances in forensic evidentiary methods. Here is what he wrote:

I agree that we should reverse, and I join the majority opinion, but I wish to explore an alternative approach that may be more straightforward.

It is helpful to note at the outset that the interpretation of statutes comes in three flavors. The first and most conventional is the extraction of the original meaning of the statute—the meaning intended by the legislators—and corresponds to interpretation in ordinary discourse. Knowing English I can usually determine swiftly and straightforward- ly the meaning of a statement, oral or written, made to me in English (not always, because the statement may be garbled, grammatically intricate or inaccurate, obtuse, or complex beyond my ability to understand).

The second form of interpretation, illustrated by the commonplace local ordinance which commands “no vehicles in the park,” is interpretation by unexpressed intent, where- by we understand that although an ambulance is a vehicle, the ordinance was not intended to include ambulances among the “vehicles” forbidden to enter the park. This mode of interpretation received its definitive statement in Black- stone’s analysis of the medieval law of Bologna which stated that “whoever drew blood in the streets should be punished with the utmost severity.” William Blackstone, Commentaries on the Laws of England *60 (1765). Blackstone asked whether the law should have been interpreted to make punishable a surgeon “who opened the vein of a person that fell down in the street with a fit.” (Bleeding a sick or injured person was a common form of medical treatment in those days.) Blackstone thought not, remarking that as to “the effects and con- sequence, or the spirit and reason of the law … the rule is, where words bear either none, or a very absurd signification, literally understood, we must a little deviate from the received sense of them.” Id. *59–60. The law didn’t mention surgeons, but Blackstone thought it obvious that the legisla- tors, who must have known something about the medical activities of surgeons, had not intended the law to apply to them. And so it is with ambulances in parks that prohibit vehicles.

Finally and most controversially, interpretation can mean giving a fresh meaning to a statement (which can be a statement found in a constitutional or statutory text)—a meaning that infuses the statement with vitality and significance to- day. An example of this last form of interpretation—the form that in my mind is most clearly applicable to the pre- sent case—is the Sherman Antitrust Act, enacted in 1890, long before there was a sophisticated understanding of the economics of monopoly and competition. Times have changed; and for more than thirty years the Act has been interpreted in conformity to the modern, not the nineteenth- century, understanding of the relevant economics. The Act has thus been updated by, or in the name of, judicial interpretation—the form of interpretation that consists of making old law satisfy modern needs and understandings. And a common form of interpretation it is, despite its flouting “original meaning.” Statutes and constitutional provisions frequently are interpreted on the basis of present need and present understanding rather than original meaning— constitutional provisions even more frequently, because most of them are older than most statutes.

Title VII of the Civil Rights Act of 1964, now more than half a century old, invites an interpretation that will update it to the present, a present that differs markedly from the era in which the Act was enacted. But I need to emphasize that this third form of interpretation—call it judicial interpretive updating—presupposes a lengthy interval between enactment and (re)interpretation. A statute when passed has an understood meaning; it takes years, often many years, for a shift in the political and cultural environment to change the understanding of the statute.

* The legislative history of the prohibition has been problematic since the first emoloyment cases on sex discrimination. The provision was inserted at the last minute following a last ditch attempt to defeat the Civil Rights Act by adding protections for women, something opponents of the act thought would kill it. Instead, the acts supporters embraced it with no debate. See R. Bird, More an a Congressional Joke: A Fresh Look at the Legislative History of Sex Discrimination of the 1964 Civil Rights Act, Wm. & Mary Journal of Women and the Law, 137 (1997).I am fairly certain that sexual orientation was on no mind of anyone voting on the act in 1964. This is what makes Judge Posner’s concurrence so compelling.

Picture of Judge Posner & his cat from The New Yorker by way of abovethelaw.com

Nelson v. Colorado, ___U.S.___, No. 15–1256 (April 1, 2017)

In two cases from Colorado, petitioners/defendants who had their convictions overturned and did not face retrial, the state refused to return monies extracted from the petitioners’ inmate accounts for fees and costs, and in one case, restitution. The Colorado Supreme Court reversed a lower court ruling ordering return of the funds, saying there was no statutory authority to do so. (Colorado did have statutes authorizing return of funds to some inmates whose convictions were overturned on proof of actual innocence, but it did not apply to these cases.) Six members of the Supreme Court found authority to do so in the Due Process Clause. Justice Ginsberg wrote, “Colorado has no interest in withholding from Nelson and Madden money to which the State currently has zero claim of right.” The case was remanded for further proceedings. Justice Alito reached the same result by a different route, arguing with what he saw as reasoning that every conviction that is overturned is equivalent to a finding of innocence. Still, he agreed that under the circumstances of this case and the manner which Colorado restricted the return of funds to inmates whose convictions were overturned, the petitioners were entitled to their money back.

Commonwealth v Andrews, 2017 PA Super. 91 (April 7, 2017)

Mr. Andrews was tried and convicted of stabbing his neighbor to death after a verbal confrontation with her. He thought she looked down on him, and the confrontation inflamed his feelings towards her. He was found at the scene and immediately confessed. He proceeded to trial, and offered a diminished capacity defense, which was rejected, and convicted of first degree murder and burglary. His conviction was affirmed on appeal.

Mr. Andrews thereafter filed a PCRA petition alleging that he received ineffective assistance of counsel because his lawyer did not advise him to plead guilty but mentally ill, which if successful (he alleged), would have entitled him to psychiatric treatment while serving his life sentence. Following the procedures set forth in Pa.R,Crim.Pro 907, the Commonwealth obtained dismissal of the petition without a hearing because Mr. Andrews did not allege that he could prove he was insane. The Superior Court reversed, because acceptance of a plea of guilty but mentally ill, governed by 18 Pa.C.S. §314(b), does not require an allegation or proof of insanity. The case was remanded for further proceedings.

Commonwealth v. Lukach, 2018 PA Super 100 (April 11, 2017)

Following a murder, suspicion focused on Mr. Lukach. He was questioned on the day of the murder, and arrested the next day. When administered his Miranda rights and asked if he wanted to answer questions, he replied, “I don’t know, just, I’m done talking. I don’t have nothing to talk about.” The police chief speaking to him said, “You don’t have to say anything, I told you that you could stop,” and then continued to question him until nine minutes later Mr. Lukach asked for a lawyer. The suppression court suppressed the statement and all evidence recovered as a result of its exploitation, and the Commonwealth appealed. In the face of the Commonwealth’s argument that a defendant had to clearly and unambiguously evoke his right to remain silent, the Superior Court declined to adopt such a bright line test, and found that Mr. Lukach’s words were enough to evoke the right. It also rejected the Commonwealth’s contention that Mr. Lukach nevertheless made a full and free statement. The police chief’s questioning immediately after Mr. Lukach said he was “done talking” was enough to undercut any argument that the right to silence was waived. The circumstances were coercive, the time not attenuated, so the confession was coerced.

Commonwealth v. Evans, 2017 PA Super 90 (April 6, 2017)

Mr. Evans, after being convicted of rape and related offenses, was tried for solicitation to intimidate (18 Pa.C.S. § 902(a); 18 Pa.C.S. § 4952(a)(6)) one of the witnesses at his trial The Commonwealth’s evidence, from a stipulated waiver trial, was that on multiple occasions he called, and during prison visits, spoke to, an acquaintance to encourage her to call the victim not to testify in exchange for money. The acquaintance also received from Mr. Evan’s family about the victim’s family and the victim’s social media account. The Superior Court deemed this evidence insufficient to convict Mr. Evans of witness intimidation. Because one cannot confer “intimidation” merely from an offer to pay someone not to testify, the Commonwealth’s evidence of intimidation fell short. The conviction was vacated.

U.S. v. Apple Macpro Computer, No. 15-3537 (3d Cir, 3/20/2017)

The Third Circuit affirmed a magistrate judge’s order under the All Writs Act compelling the owner of computers and accessory hard drives to provide passwords to enable the government to view child pornography images analysis of the devices indicated were present. The ubiquitous John Doe’s computers, hard drives, and 2 iPhones were seized by state authorities investigating child pornography. Forensic investigation revealed the existence of filenames indicative of the presence of child pornography. Doe’s sister also told investigators that Doe had shown her hundreds of images of child pornography on his computer and hard drives. Doe provided the password to an iPhone that had no offending images, but not to the other devices. The government applied for and received from the magistrate judge an order pursuant to the All Writs Act requiring Doe to provide the passwords. Doe’s motion to quash the order was denied, and he did not appeal. (No explanation is given for that failure. Judging from who very experienced and competent counsel was, the likely explanation that occurs to me is a client who did not tell his lawyer how to contact him.) Doe showed up to comply with the order, and provided the passwords to the other iPhone which yielded a number of illegal images, but claimed to forget the passwords to the hard drives, making several failed attempts to open them. The government thought Doe was lying, so it sought a contempt order form the District Court. Doe offered no evidence at the hearing, and he was held in contempt, and appealed.

The Court overruled Doe’s procedural objections to the order. On his claim that the order violated his privilege against self-incrimination, which, because of Doe’s failure to preserve it by not appealing the magistrate judge’s refusal to quash the order to provide the passwords, was reviewed under a standard of review more deferential to the district court than would have been the case had the objection been preserved, the Court found that while passwords to electronic devices can be protected by the 5^th Amendment, this case was subject to the “foregone conclusion” exception to the right against self-incrimination. “Under this rule, the Fifth Amendment does not protect an act of production when any potentially testimonial component of the act of production—such as the existence, custody, and authenticity of evidence—is a “foregone conclusion” that “adds little or nothing to the sum total of the Government’s information.” Id. For the rule to apply, the Government must be able to “describe with reasonable particularity” the documents or evidence it seeks to compel.” (Citations omitted.) In this case it could. Moreover, Doe, when the police initially took his devices, said that he would not give the police his password because he did not want them looking at his computer— he did not say that he forgot his passwords.

Moore v. Texas, ___U.S. ___, No 15-797 (3/28/17)

I will follow the example of Douglas Berman’s excellent Sentencing Law and Policy blog and simply quote the first 3 paragraphs from Justice Ginsberg’s opinion to tell you all you need to know about this case.

Bobby James Moore fatally shot a store clerk during a botched robbery. He was convicted of capital murder and sentenced to death. Moore challenged his death sentence on the ground that he was intellectually disabled and therefore exempt from execution. A state habeas court made detailed factfindings and determined that, under this Court’s decisions in Atkins v. Virginia, 536 U. S. 304 (2002), and Hall v. Florida, 572 U. S. ___ (2014), Moore qualified as intellectually disabled. For that reason, the court concluded, Moore’s death sentence violated the Eighth Amendment’s proscription of “cruel and unusual punishments.” The habeas court therefore recommended that Moore be granted relief.

The Texas Court of Criminal Appeals (CCA) declined to adopt the judgment recommended by the state habeas court. In the CCA’s view, the habeas court erroneously employed intellectual-disability guides currently used in the medical community rather than the 1992 guides adopted by the CCA in Ex parte Briseno, 135 S. W. 3d 1 (2004). See Ex parte Moore, 470 S. W. 3d 481, 486–487 (2015). The appeals court further determined that the evidentiary factors announced in Briseno “weigh[ed] heavily” against upsetting Moore’s death sentence. 470 S. W. 3d, at 526.

We vacate the CCA’s judgment. As we instructed in Hall, adjudications of intellectual disability should be “informed by the views of medical experts.” 572 U. S., at ___ (slip op., at 19); see id., at ___ (slip op., at 7). That instruction cannot sensibly be read to give courts leave to diminish the force of the medical community’s consensus. Moreover, the several factors Briseno set out as indicators of intellectual disability are an invention of the CCA untied to any acknowledged source. Not aligned with the medical community’s information, and drawing no strength from our precedent, the Briseno factors “creat[e] an unacceptable risk that persons with intellectual dis- ability will be executed,” 572 U. S., at ___ (slip op., at 1). Accordingly, they may not be used, as the CCA used them, to restrict qualification of an individual as intellectually disabled.

It is refreshing in this day when many legislators and government officials think science is merely another point of view to have at least 5 members of our highest court to remind us it isn’t. I suggest reading Chief Justice Roberts’ dissent so you know what this opinion tells lower courts what they cannot do— always substitute societal (I guess in this case, that means Texans’) standards of decency for a medical assessment of clinical practice when psychological issues are at issue.