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LibertyWatch Online
A Publication of the Pennsylvania Association of Criminal Defense Lawyers
August, 2007
Welcome to LibertyWatch. David R. Crowley covered the Pennsylvania Supreme Court, and the Pennsylvania Superior and Commonwealth Courts for the month of July, 2007. We are necessarily selective in our coverage and no newsletter can substitute for diligent research and innovative analysis. The cases can be found in full at: www.aopc.org.
Pennsylvania Supreme Court Decisions
Sentencing — Discretionary Aspects of Sentence
Cmwlth. v. Walls, No. 57 MAP 2005. Opinion by Cappy, J., 7/17/07.
The Court found that the Superior Court in vacating a sentence in excess of the aggravated range exceeded its standard of review and erred in making certain legal determinations which led it to supplant the sentencing court's discretion. Mr. Justice Baer concurs in the judgment, but expresses concern that the majority's refusal to establish rules as to the unreasonableness inquiry for a sentence falling outside the guidelines will provide near limitless discretion in sentencing courts negating the intended effect of the guidelines.
DUI — Constitutionality
Cmwlth. v. Finchio, No. 48WAP2005. Per Curiam, 7/18/07.
The Court reversed an Erie County Common Pleas Court decision finding the 2004 DUI statute unconstitutional.
Death Penalty — PCRA — Mitigation
Cmwlth. v. Washington, No. 347 Capital Appeal Docket. Opinion by Baer, J., 7/18/07.
Over the well reasoned dissent of Mr. Justice Saylor, the Court affirmed the denial of Post Conviction relief finding that defendant's claims of ineffectiveness were waived.
Death Penalty — PCRA — Mitigation
Cmwlth. v. Rainey, Michael, Nos. 468-469 Capital Appeal Docket. Opinion by Baer, J., 7/18/07.
The Court remanded this matter for an evidentiary hearing on appellant's claim that trial counsel was ineffective for failing to investigate and present background and mental health mitigation as the lower court's denial of the PCRA without such a hearing deprived defendant of the opportunity to develop this claim and challenge the reasonableness of counsel's actions.
Pennsylvania Superior Court Decisions
Sentencing — Anders Brief
Cmwlth. v Nischan, No. 821 MDA 2006. Opinion by Colville, J., 7/5/07.
The Court presents a coherent and concise statement of exactly what an Anders brief must contain and cannot contain.
PCRA — Timeliness — Appellate Procedure
Cmwlth. v. Valentine, No. 3285 EDA 2006. Opinion by Gantman, J., 7/5/07.
Quashing defendant's appeal, the Court held that a PCRA court lacks jurisdiction ab initio to reinstate direct appeal rights nunc pro tunc where PCRA petition was untimely and defendant failed to plead or prove a statutory timeliness exception.
Private Criminal Complaints
Cmwlth. v. Heckman, No. 3410 EDA 2006. Opinion by Panella, J., 7/9/07.
The trial court did not abuse its discretion in affirming the disapproval of Heckman's private criminal complaints against his sentencing judge, the ADA who prosecuted him and the police officer who arrested him for DUI.
Megan's Law — SVP Assessment
Cmwlth. v. Geiter, No. 2031 MDA 2006. Opinion by Panella, J., Concurring Statement by Klein, J., 7/9/07.
Per Dixon, an SVP assessment consists of only two inquiries: (1) whether the defendant had a mental abnormality that involves the predilection to commit sexual offense; and (2) whether a predatory act committed. The Court's subsequent decision in Merolla does not support a third criterion of an independent risk assessment by the expert. Nice try PACDL member James Karl.
Appellate Practice — 1925b — Waiver
Cmwlth. v. Giese, No. 1096 WDA 2006. Opinion by Ford Elliott, P.J., 7/10/07.
We all know that if the sentencing court directs the filing of a 1925(b), the appellate court will deem waived any issue not raised in the 1925(b). The Court extends the waiver provision to situations where the sentencing court did not order a 1925b statement but clearly relied on the one appellant filed without being ordered to do so.
Sentencing — Restitution — DNA Testing
Cmwlth. v. Frederick, No. 1375 MDA 2006. Opinion by Stevens, J., 7/11/07.
Defendant, convicted of the offense of failing to carry workman's compensation insurance on an employee was as a condition of probation directed to pay restitution in the amount of $150,000 to the children of his deceased employee. The Court held that for a variety of reasons he was not entitled to DNA testing of the children to determine whether decedent was their biological father.
Search & Seizure — Implied Consent — Right to Counsel
Cmwlth. v. Homer No. 801 WDA 2006. Popovich, J., 7/11/07.
Defendants successfully argued in the Court below that due process was offended by the failure to afford counsel to DUI defendants at the time chemical testing is sought as the criminal ramifications outlined by the police officer for refusal were inaccurate in that they do not describe all of the criminal ramifications but only those available to a first-time offender. The panel disagreed and reversed.
Sentencing — Sentence Enhancements
Cmwlth. v. Green, No. 56 EDA 2006. Opinion by Todd, J., 7/12/07.
Because a prior record is examined at the time of sentencing for determining an enhancement, a retail theft defendant duplicatively convicted of retail theft at an earlier proceeding does not waive his right to challenge the felony grading of the instant offense by failing to challenge the initial convictions.
Search & Seizure — Prisoner Rights
Cmwlth. v. Moore, No. 1390 EDA 2006. Opinion by Gantman, J., 7/12/07.
An inmate has no state or federal constitutional right to privacy in his non-privileged prison mail. The Court below had suppressed on the basis that the letters were seized not by prison personnel for security reasons, but by detectives working on the inmate's open charges.
Sentencing — Merger
Cmwlth. v. Pitner, No. 1639 EDA 2006. Opinion by Colville, J., 7/12/07.
Offenses of Possession of Marijuana and Possession of Paraphernalia do not merge.
PCRA — Timeliness — Post Sentence Motions
Cmwlth. v. Grafton, No. 1636 WDA 2006. Opinion by Bender, J., 7/13/07.
The Court opines that the restoration of post sentence rights is cognizable under the PCRA, and a sentencing court's failure to apprise a defendant of his right to file post sentence motions within 10 days will not excuse a 10 year delay in filing a motion to modify sentence.
Evidence — Harmless Error
Cmwlth. v. Owens, No. 729 EDA 2005. Opinion by Stevens, J., Concurring Opinion by Colville, J., 7/17/07.
The trial court erred in admitting defendant's rifle and scope into evidence as the evidence clearly showed that these were not used in the commission of the crime. The error however, was harmless.
Parole Revocations — Conditions of Parole
Cmwlth. v. Perreault, No. 1612 MDA 2006. Opinion by Stevens, J, 7/17/07.
Testimony as to parolee's out of court admission to viewing x-rated movies was sufficient to sustain a violation of a probation condition "not to view obscene materials or materials which depict or describe sexual conduct...". Further, this condition is neither vague nor overbroad.
Search & Seizure — Traffic Stops
Cmwlth. v. Pratt, No. 3348 EDA 2005. Opinion by Todd, J., Concurring Opinion by Johnson, J., 7/20/07.
On a matter of first impression the Court found that in addition to ordering passengers out of a car following a traffic stop, the court finds that an officer may similarly order a passenger of a lawfully stopped vehicle to remain inside or get back into the vehicle without violating an individual's Fourth Amendment rights.
Intermediate Punishment — Probation Revocation — Sentence Credit
Cmwlth. v. Fowler, No. 741 WDA 2006. Opinion by McCaffery, J., 7/23/07.
The trial court did not abuse its discretion in declining to credit defendant's sentence following the revocation of his intermediate punishment sentence with time spent in voluntary drug court program or court ordered inpatient treatment.
Search & Seizure — Traffic Stop — Reasonable Suspicion
Cmwlth. v. Hall, No. 1076 EDA 2006. Opinion by McCaffery, J., 7/24/07.
Distinguishing Edwards on the basis that it predated the 2004 legislative reduction in the level of suspicion needed to effectuate a traffic stop, the panel found that the appearance of "fresh damage" to a motor vehicle provided sufficient reasonable suspicion of criminal activity to stop the vehicle.
Sentencing — Discretionary Aspects
Cmwlth. v. Curran, No. 115 EDA 2007. Opinion by Todd, J., 7/31/07.
Sentencing court did not err in imposing statutory maximum for furnishing alcohol to minor to 63 year old woman with no prior record who fully cooperated with police.
PFA — Sufficiency of Evidence
Cmwlth. v. Brumbaugh, No. 1868 WDA 2006. Opinion by Tamilia, J., 7/31/07.
PFA violation was supported by sufficient evidence on showing that defendant, who was prohibited from any contact with petitioner, accepted petitioner's invitation to go with her to the birthday party of a mutual friend.
Appellate Procedure
Cmwlth. v. CMK, No. 1083 MDA 2006. Opinion by Colville, J., 7/31/07.
Filing a single notice of appeal from the separate judgment of sentence of two co-defendants is improper.
Pennsylvania Commonwealth Court Decisions
State Parole — Confinement Credit — Treatment Facility
Meleski v. PA Board of Probation and Parole, 2248 C.D. 2005. Opinion by McGinley, J., Dissenting Opinion by Cohn Jubelirer, J., 7/11/07.
En banc the court held that parolee was confined for purposes of crediting his original sentence for 90 day period he spent on parole at a treatment facility under blackout restrictions which prohibited him from leaving that facility unescorted.
State Parole — Confinement Credit — Federal Sentence Credit
Bowman v. PA Board of Probation and Parole, 112 C.D. 2007. Opinion by McCloskey, S.J., Dissenting Opinion by Friedman, J., 7/17/07.
Over the well reasoned dissent of Judge Friedman, the Court retreats further from the Supreme Court mandate in Martin that the Board should equitably allocate confinement credit between state parole backtime and a new sentence by holding that pre and post sentence confinement credit for time spent in DOC custody as a pending parole violator cannot be applied to state parole backtime where the parolee did not satisfy bail on the criminal charges even though he maxed out on his new federal sentence before he became aware that the Parole Board would not attribute the credit to his original sentence.
Sentencing — Aggregation — Mandamus
Forbes v. PA DOC & PA Board of Probation and Parole, 31 M.D. 2007. Opinion by Friedman, J., 7/19/07.
Mandamus will not lie to compel the Department of Corrections to unaggregate two sentences which were aggregated only after the Parole Board erroneously paroled inmate from the first sentence to the latter and the first sentence expired.
License Suspension - Proof of Conviction
C. Schreyer v. Bureau of Driver Licensing, 66 C.D. 2007. Opinion by Simpson, J., 7/20/07.
The Court rejects Penn DOT's argument that the Common Pleas Court nolle pros of an underlying criminal charge does not constitute a final determination as to eliminate a license suspension for an MDJ conviction on that offense.
