42 Pa.C.S. §9545(b)(1)(ii) exception to PCRA timeliness rule if not the same as the after discovered evidence rule of 42 Pa.C.S. § 9543(a)(2); Presumption that information of public record cannot be considered “unknown” for purposes of proving the newly-discovered facts exception to the time requirements of the PCRA does not apply to pro se prisoner petitioners

Commonwealth v. Burton, 9 WAP 2016 (Pa. 3/28/2017)

Corrections officer interviewed several inmates after finding an inmate dead under his cot with a ligature around his neck at the Allegheny County jail in 1993. Information form one of the interviewees implicated Mr. Burton, but when he was interviewed he denied even being in the deceased’s cell, although another inmate said he had been then. Other inmates reported that Mr Burton and another inmate were struggling with the deceased’s in his cell right before his death. And yet another reported that Mr. Burton had said he need to “fix” the deceased. Mr. Burton was tried for and convicted of murder in 1993. A co-defendant was convicted only of conspiracy. Mr. Burton’s conviction affirmed on appeal. Two subsequent PCRA petitions were unsuccessful.

In 2013, Mr. Burton received a letter form the Pennsylvania Innocence Project that had a 2009 expungement motion from the co-defendant wherein he claimed he murdered the vicim in self-defense. Within 60 days of receiving the letter, Mr. Burton filed a PCRA petition citing the expungement petition, claiming constituted newly-discovered exculpatory evidence that was unavailable at the time of his trial and which would have changed the outcome of his trial if the evidence had been introduced. Supporting his claim that the timeliness exception of 42 Pa.C.S. §9545(b)(1)(ii) he cited Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007) (an incarcerated PCRA litigant is not automatically deemed to have notice of dismissal of his case due to his lawyer failing to file a brief when counsel did not tell him of the dismissal”; §9545(b)(i)(ii) is not an “after discovered evidence exception”). The PCRA court dismissed the petition on timeliness grounds, but the Superior Court (in both panel and en banc divided opinions) reversed and reinstated the petition.

A thoughtful opinion by Justice Todd affirmed the Superior Court, she first went to lengths to state that 42 Pa.C.S. §9545(b)(i)(ii) is not the traditional “after discovered evidence” rule. To qualify for it, a petition needs to show “a petitioner need only establish that the facts upon which the claim is based were unknown to him and could not have been ascertained by the exercise of due diligence.” Using the Statutory Construction Act, 1 Pa.C.S. §§ 1501 et seq., Justice Todd wrote, “In requiring that the facts be unknown to the petitioner, the statute itself contains no exception, express or constructive, regarding information that is of public record.” In so doing, the Court rejected holdings in Commonwealth v. Lark, 746 A.2d 585, 588 n.4 (Pa. 2000) and cases citing it that matters of public record for more than sixty days prior to filing a petition cannot be unknown to a petition under §9545(b)(1)(ii) as pronouncements underwritten by little analysis. Also, answering the dissenters arguments, Justice Todd discussed the inadequacies of prison law libraries, and prisoners lack of access to up to date court dockets. (This part of the opinion was based on an amicus brief filed by a group call “Pennsylvania Exonorees.” I have not been able to find this brief anywhere online. If someone does and says me the link I will post it here. From Justice Todd’s description it is a wonderful “Brandeis brief” about the difficulty inmates have getting access to information about their cases.) The final holding: “[I]n determining whether a petitioner qualifies for the exception to the PCRA’s time requirements pursuant to subsection 9545(b)(1)(ii), the PCRA court must first determine whether “the facts upon which the claim is predicated were unknown to the petitioner.” In some cases, this may require a hearing. 23 After the PCRA court makes a determination as to the petitioner’s knowledge, it should then proceed to consider whether, if the facts were unknown to the petitioner, the facts could have been ascertained by the exercise of due diligence, including an assessment of the petitioner’s access to public records.”

Evidence of subsequent residential burglary to show defendant did not commit crime inadmissible under Pa.R.E. 402.

Commonwealth v Gill, 2017 PA Super 80 (March 28, 2017)

Mr. Gill was charged burglary, theft, and related charges concerning the 2013 theft of several hundred dollars from a lockbox located in the house of an acquaintance who had given Mr. Gill the combination to the strongbox. The evidence included that of a witness who claimed he gave Mr. Gill a ride to the victim’s house during the period in which the theft occurred, and the victim returned form the house with hundreds of dollars in cash. There was no evidence of forced entry of the victim’s house, the victim not able to pinpoint when the burglary occurred.

Before trial Mr. Gill filed a motion in limine to introduce evidence of a 2016 report by the victim of what Mr. Gill alleged was a similar (as to amount stolen, means, extended time over which theft occurred, lack of forced entry, etc.) burglary. He filed an amended motion in limine asking to introduce testimony from the victim’s daughter that in 1995 he accuSed her of stealing $30,000 from him. The trial court ruled that it would allow evidence of the 2016 burglary to be admitted, and the Commonwealth appealed, and the Superior Court reversed. The discussion is fact specific, but may prove useful to anyone contemplating the use or having to defend against the introduction of prior crimes evidence under the relevancy rule in Pa.R.E. 402.

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.

Image from updatetia.com.