Separate sentences for 18 Pa.C.S.§§3121(c) and 3123(b) not allowed

Commonwealth v. Brown, 2017 PA Super. 79 (3/28/17)

A jury convicted Mr. Brown of rape of a child, involuntary deviate sexual intercourse (“IDSI”) with a child, unlawful contact with minor, indecent assault of person less than 13, and corruption of minors. Although the victim testified about multiple incidents of oral sex, the Commonwealth only filed one count each for 18 Pa.C.S.§§3121(c) and 3123(b) for one date.  He received lengthy consecutive sentences for both counts.

Claims that crimes merged for sentencing purposes implicate the legality of the sentence. The merger statute, 42 Pa.C.S. § 9765, which codifies the Pennsylvania’s merger jurisprudence, reads:

No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.

Citing earlier case law, the Court held that imposing two sentences for one act of penetration is illegal under the double jeopardy clause of the United States Constitution. It concluded that the offenses of rape of a child and IDSI with a child are identical where the sexual act at issue is oral sex. Thus, the separate sentences were illegal, and the matter was remanded for resentencing.


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

Superior Court says Commonwealth v. Carrasquillo does not mean it is nearly impossible to withdraw a guilty plea before sentencing, and provides a potential road map for successful motions to withdraw

Commonwealth v Islas, 2017 PA Super 43 (2/24/17)

Two and a half years ago the Pennsylvania Supreme Court, in Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015) seemed to make it impossible to withdraw a guilty plea before sentencing unless it was supported by  a credible claim of innocence,. The Superior Court, in a decision that must be read by anyone drafting a pre-sentence motion to withdraw guilty plea or litigating a PCRA motion about failure to file one, has pared that interpretation of Carrasquillo. The case provides a road map for anyone filing a pre-sentence motion to withdraw a guilty plea

Ms. Islas pled guilty in return for the dropping of some charges and sentencing was deferred. Guilty plea counsel withdrew and new counsel entered an appearance and filed a motion to withdraw guilty plea, based on claimed innocence, six weeks before the scheduled sentencing.   At the hearing on the motion, Ms. Islas stated he did not commit the crime, if he had there would have been witnesses, the victim had a motive to fabricate the charges, there was a delay in reporting the first criminal episode, he had never been accused of similar acts and he had a clean record. He also stated prior counsel did not tell him he could call character witnesses, and other available defenses. The sentencing court denied the motion, in part because of prejudice to the Commonwealth— something the Commonwealth did not present evidence on at the hearing on the motion— and sentenced him.

The Superior Court opined that courts have overreacted to Carrasquillo. It delved into the facts of Carrasquillo, indicating how unusual they were, including the fact that the defendant therein had made “bizarre” claims of innocence and only sought to withdraw his plea after all the sentencing evidence had been received and sentence was about to be pronounced. Mr. Islas, however, had made a detailed claim of innocence and proffered a good explanation about why he changed his mind about pleading guilty. The lower court also erred in finding prejudice to the Commonwealth when no supporting evidence or claim was presented at the time the motion to withdraw was tendered. The opinion tightens and clarifies what the Commonwealth must prove to show that it was prejudiced by having to bring the case to trial after the tendering and acceptance of the plea, i.e., in a worse situation trying to prove a case than it would have been if the case had already been tried. The panel opinion further stated, “That Islas’ claim of innocence may fail at trial is not a valid ground for denying his motion.”

The Court concluded the sentencing court erred in denying the motion to withdraw guilty plea. This is an important case for anyone contemplating filing a pre-sentence motion to withdraw guilty plea or litigating a failure to file one in a PCRA proceeding.

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Pa. Supreme Court remands capital PCRA case for failure to hold evidentiary hearing on disputed factual issues/ requirement for affidavit from trial counsel to be attached to amended PCRA petition explaining reason for course of action/ failure to cross-examine eyewitness on prior failure to identify the defendant

Commonwealth v Cousar,  ____ A.3d ____, No. 704 CAP (Pa. 2/22/2017)

Mr. Cousar was tried, convicted and sentenced to death for two homicides and a robbery that occurred on three separate days within one month.  Following affirmance of his convictions he filed for PCRA relief. The parties and the PCRA court agreed he was entitled to a new penalty hearing, but the court dismissed the guilt phase claims without a hearing. The Supreme Court reversed and remanded for a hearing on two of the several issues he raised concerning trial counsel’s ineffectiveness.

The first issue he prevailed on was his counsel’s failure to impeach a police firearms expert who testified the guns used in one of the homicides and the robbery were the same, which was the basis for the consolidation of the homicide charges with the robbery charge. A ballistics report from a police firearms expert stated the guns were not the same, but at trial, another firearms expert testified that they were. Counsel had some idea the issue would arise because of the consolidation motion, although he did not know, nor ever raise, the report contradicting the Commonwealth’s claim that the same gun was used in one of the homicides and the robbery. At trial, he did not cross-examine the police ballistics expert or in any other way raise the contradictory report. The Court considered whether the issue was waived for failure to submit an affidavit from counsel as to why he chose not to raise the contradictory report, stating:

Particularly when PCRA claims require examination of trial strategy, it is not enough to take a cold record, state alternative choices counsel could have made, and then declare an entitlement to relief. Id. Mere conclusory allegations, without some proffer as to what counsel would say in response to the allegations are insufficient to establish entitlement to relief. Id. Thus a supporting document from counsel stating his reasons for the course chosen is generally necessary to establish potential entitlement to a hearing. Id. See, e.g., Pa.R.Crim.P. 902(A)(12)(b) [[1]] (PCRA petition shall contain facts supporting each ground for relief; if supporting facts do not appear of record “affidavits, documents and other evidence showing such facts” to be identified).

The Court however accepted PCRA counsel’s explanation that he received an “affidavit” from opposing counsel that stated he would testify, but not what he would say. The effort to obtain one and the response he got were enough to excuse the omission. The Court found the failure to bring up the conflicting report to have arguable merit, and remanded for a hearing on the issue.

The other issue remanded for a hearing concerned counsel’s failure to cross-examine a Commonwealth witness’ identification of Mr. Cousar at trial with her failure to do so at the preliminary hearing. An otherwise vigorous cross-examination of her, absent some explanation by counsel should have included that prior failure. On remand, a  hearing is required on this issue too.

The Court dismissed several remaining issues Mr. Cousar raised.

Statement to police during plea negotiations was inadmissible, but admission was nevertheless harmless.

[[1]] [The rule reads:

(A)  A petition for post-conviction collateral relief shall bear the caption, number, and court term of the case or cases in which relief is requested and shall contain substantially the following information:

(12)  the facts supporting each such ground that:

(a)   appear in the record, and the place in the record where they appear; and

(b)   do not appear in the record, and an identification of any affidavits, documents, and other evidence showing such facts;]


Statement to police during plea negotiations was inadmissible, but admission was nevertheless harmless

Commonwealth v Burno, ___ A.3d ___, No 716 CPA (Pa. 2/22/17)

Mr. Burno appealed his conviction for homicide and death penalty, and both were affirmed by the Supreme Court. This case has a long procedural history, having made two visits to the appellate courts before the merits of his direct appeal were considered in this opinion.

Of note is the discussion of the applicability of Pa.R.Crim.Pro 410 barring admission of plea discussions.  Mr. Burno and his lawyer wanted to cooperate against his codefendant, and as a consequence they met with the prosecutor and two detectives. This led to an agreement that in return for a truthful statement, guilty plea, and truthful testimony against the co-defendant, he would not receive the death penalty. The Commonwealth though did not believe the statement, denying that he participated in the murders, and demanded a polygraph. He took it a few days later, his attorney not attending, and was told he was lying. He broke down, apologized, and was told by the prosecutor f he was truthful he might get a second chance. He then confessed, and with his attorney finally present encouraging him to talk, described how the murders occurred. On the day before his co-defendant’s preliminary hearing however, he said he did not want to testify and would take his chances at trial. The Commonwealth then sought to introduce the post-polygraph statements, made in the attorney’s presence, at trial. The trial court refused to exclude them.

Because these statements were made during the course of active negotiations, they should not have been admitted at trial. “There is no question that the Commonwealth was participating in plea discussions with Burno at the time that he confessed. This is the relevant inquiry. . .” Nevertheless, the error was deemed harmless in light of all of the other evidence adduced at trial, including several admissions in recorded jailhouse recordings.