A blog of the Philadelphia Bar Association’s Criminal Justice Section

From wired.com

Illustration: mattjeacock/Getty Images

American law enforcement has long advocated for universal “kill switches” in cellphones to cut down on mobile device thefts. Now the Department of Justice argues that the same remote locking and data-wiping technology represents a threat to police investigations–one that means they should be free to search phones without a warrant.

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PaCapitol

Session schedule

The House and Senate return to session on April 28.

Governor signs four bills on child abuse

Child Protection Training: House Bill 431 (Gingrich-R-Lebanon)  further providing for child protection education and training.  A summary and House Fiscal Note are available. The bill was signed into law as Act 31.

Child Abuse Reporting: House Bill 436 (Stephens-R-Montgomery) further providing for the reporting of suspected child abuse.  A summary and House Fiscal Note are available. The bill was signed into law as Act 32.

Child Abuse Reporting: Senate Bill 21 (Ward-R-Westmoreland) further providing for child abuse reporting.  A summary and House Fiscal Note are available.  The bill was signed into law as Act 33.

Child Abuse: Senate Bill 33 (Mensch-R-Lehigh) further providing for persons required to report suspected child abuse.  A summary and House Fiscal Note are available. The bill was signed into law as Act 34.

Public hearings

April 24– Senate Judiciary Committee holds a hearing on Senate Bill 1095 (Farnese-D- Philadelphia) amending the anti-SLAPP lawsuit provisions– sponsor summary.  Philadelphia Bar Association Office, 1101 Market-Frankford Line, Philadelphia.  9:30.

April 29– Senate Judiciary Committee holds a hearing on Senate Bill 1215 (White-R- Indiana) transferring Clerks of Court and Prothonotaries to the Judicial System– sponsor summary.  Hearing Room 1, North Office Building. 10:30.

May 5– House Judiciary Committee holds a hearing on a presentation on the Restitution Task Force.  Room 205 Ryan Building.  10:00.

Attorney General issues report for 2013

In an effort to provide taxpayers and the General Assembly with a firsthand look at the Office of Attorney General’s efforts over the previous year, Attorney General Kathleen G. Kane Thursday released a detailed “Year in Review” report for 2013.  Click Here to read a copy.

Source for legislative news:  Crisci Associates PA Capitol Digest

Supreme Court eliminates for parallel citations in appellate briefs

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Click for Amended Rule

seal_colorBy Burt Rose

Click for Opinion

I just read a decision of the Superior Court of Pennsylvania issued on Feb. 13, 2014,   in the case of COMMONWEALTH of Pennsylvania v. Eric LIPPERT, Appellant, 739 WDA 2013, 85 A.3d 1095, 2014 PA Super 25The Judges were FORD ELLIOTT,  WECHT, andSTRASSBURGER, who wrote the Opinion.

Following his conviction on plea of nolo contendere of indecent assault, petitioner sought relief under the Post Conviction Relief Act. The Court of Common Pleas of Allegheny County, Criminal Division, CP–02–CR–0005996–2011, per Judge Rangos, summarily dismissed the petition and the Petitioner appealed.

Appellant had pled nolo contendere to indecent assault, 18 Pa.C.S. § 3126(a)(1), on May 3, 2012. On December 20, 2011, Pennsylvania enacted SORNA which characterizes Subsection 3126(a)(1) as a Tier I sexual offense and that requires individuals convicted of a Tier I sexual offense to register with the Pennsylvania State Police for 15 years. While this law was not in effect when Appellant entered his plea, the law had been enacted several months prior to the plea.

 

Appellant’s sole claim was that plea counsel was ineffective for misleading and misinforming him that he would not have to register as a sexual offender if he entered his plea of nolo contendere. If Appellant can prove that counsel misinformed him about the consequences of his plea, this claim would have arguable merit. As clear as the law is that counsel’s omission to mention a collateral consequence of a guilty plea does not constitute ineffective assistance of counsel, it is equally clear that counsel’s assistance is constitutionally ineffective when counsel misapprehends the consequences of a given plea and misleads his client accordingly about those consequences, without regard to whether the consequences in question are “direct” or “collateral.”

Therefore, the Appellant was entitled to an evidentiary hearing in order to attempt to prove his claim. The Superior Court vacated the order dismissing Appellant’s PCRA petition and remanded the matter to the PCRA court.

 

Lee T. Bickerton of Pittsburgh represented the Appellant.

On Tuesday, May 6, from 6:00 to 9:00 pm, at the Kimmel Center, the Pennsylvania Innocence Project will be celebrating its 5th Anniversary. The celebration will begin at 6:00 p.m. with a cocktail party catered by Jose Garces in the Second Floor Lounge, featuring music by Standard Time Jazz.The program, beginning at 7:00 p.m. in the Perelman Theater, will feature the premier of a short documentary film focusing on the cost of eyewitness misidentification as illustrated by the case of Eugene Gilyard. The film is being produced by the Penn Program on Documentaries & the Law, and a showing of the rough cut of the film will be followed by remarks by Eugene, who was freed in November 2013 after 15 years of imprisonment. 

 

For more information and to register, go to http://innocenceprojectpa.org/, or go directly to the Kimmel Center box office at https://tickets.kimmelcenter.org/Cart/Cart.aspx?perf_no=22569

 

PaCapitolMay 30 is deadline to comment on proposed new rule on Restitution and revisions on rules on sentencing procedures

The Criminal Procedural Rules Committee is considering recommending that the Supreme Court of Pennsylvania adopt new Rule 705.1 (Restitution), amend Rule 454 (Trial in Summary Cases), and revise the Comments to Rules 455 (Trial in Defendant’s Absence) and 704 (Procedure at Time of Sentencing) to standardize the procedures by which restitution is awarded in criminal cases.  This proposal has not been submitted for review by the Supreme Court of Pennsylvania.  Deadline for submission of comments is May 30.

Click for Report

Session schedule

The House and Senate return to session on April 28.

One child abuse bill signed by Governor, four others await his signature

Child Abuse Reporting:  Senate Bill 24 (Vulakovich-R-Beaver) providing for child abuse reporting was signed into law by the Governor as Act 29.  See House Fiscal Note.

The following bills await signature by the Governor:

Child Abuse: Senate Bill 33 (Mensch-R-Lehigh) further providing for persons required to report suspected child abuse.  A summary and House Fiscal Note are available.

Child Protection Training: House Bill 431 (Gingrich-R-Lebanon)  further providing for child protection education and training.  A summary and House Fiscal Note are available.

Child Abuse Reporting: House Bill 436 (Stephens-R-Montgomery) further providing for the reporting of suspected child abuse.  A summary and House Fiscal Note are available.

Child Abuse Reporting: Senate Bill 21 (Ward-R-Westmoreland) further providing for child abuse reporting.  A summary and House Fiscal Note are available.

Bills moving

House

Lawyer Criminal Checks: Senate Bill 894 (Alloway-R-Franklin) requiring criminal background checks for lawyers was reported out of the House Judiciary Committee and is now on the House Calendar for action. Click for Memorandum by sponsor.

Senate

Wireless Device Location: Senate Bill 1290 (Vulakovich-R-Beaver) requiring the disclosure of wireless device location information was passed by the Senate and now goes to the House for consideration.

The bill would require wireless providers to “ping” the cell phone of a missing person at the request of law enforcement officials when there is sufficient information to believe there is a risk or threat of death or serious physical harm.

The measure, also known as the “Kelsey Smith Act,” is named after an 18-year old Kansas woman who was abducted, sexually assaulted and murdered in 2007.  The tragedy resulted in a movement by her parents to ensure that law enforcement authorities can receive assistance from cell phone providers to help find missing persons.

Indigent Legal Defense: Senate Bill 979 (Greenleaf-R- Montgomery) establishing the PA Center for Effective Indigent Defense Legal Representation was amended and reported out of the Senate Judiciary Committee and is now on the Senate Calendar for action.

Juvenile Justice: Senate Resolution 304 (Greenleaf-R-Montgomery) directing the Joint State Government Commission to establish an advisory committee to study the Juvenile Act and related issues- sponsor summary– was reported from the Senate Judiciary Committee and is now on the Senate Calendar for action.

Public hearings

April 24– Senate Judiciary Committee holds a hearing on Senate Bill 1095 (Farnese-D- Philadelphia) amending the anti-SLAPP lawsuit provisions– sponsor summary.  Philadelphia Bar Association Office, 1101 Market-Frankford Line, Philadelphia.  9:30.

May 5– House Judiciary Committee holds a hearing on a presentation on the Restitution Task Force.  Room 205

Source for legislative information:  Crisci Associates’ PA Capitol Digest

 

PA FlagBy Burt Rose

Click for Opinion

The Superior Court of Pennsylvania has issued a decision in the case of COMMONWEALTH of Pennsylvania v. Daniel Eugene LANDIS, II, Appellant, 2108 MDA 2012 (April 8, 2014), an appeal from the Court of Common Pleas of Juniata County, Judge Kenneth A. Mummah, Criminal Division, CP–34–CR–0000167–2010. The Panel was composed of Judges BENDERWECHT, and FITZGERALD, who wrote the Opinion. There was no dissent.

 

The Appellant appealed from a judgment of sentence entered in the Juniata County Court of Common Pleas after a jury found him guilty of, inter alia, DUI-highest rate of alcohol. Appellant claimed that he was entitled to a new trial because the finding that his blood-alcohol level was over .16% within two hours of driving was against the weight of the evidence. The Panel agreed and ruled that the Appellant was entitled to a new trial on the count of DUI—highest rate of alcohol because the blood-alcohol test result of .164%, which was relied on by the Commonwealth, was subject to a 10% margin of error and there was no further evidence to sustain the jury’s finding that his blood alcohol level was .16% or above within two hours of driving.

 

Section 3802(c) of the Motor Vehicle Code provides that: An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual’s blood or breath is 0.16% or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

 

The Superior Court agreed that the jury’s verdict on the count of DUI-highest rate of alcohol was against the weight of the evidence. The evidence that his blood-alcohol level was .164% was unreliable because the medical technician only took one sample of blood and ran only one test. Moreover, the result from an Avid Axsym machine was less accurate than a gaschromatography test, and the evidence at trial established a 10% margin of error in the results from the Avid Axsym machine.

 

The trial record did not contain a reasoned basis for accepting the specific reading of .164% as either accurate or precise. There was no support for a finding that the reading registered by the Avid Axsym machine was any more reliable than the possible blood-alcohol levels within the 10% margin of error. Moreover, since there was no direct or circumstantial evidence regarding the possible applications of the 10% margin of error, the trial evidence required the jury to speculate that Appellant’s actual blood alcohol content was .16% or higher within two hours of driving. Therefore, the Panel held that the Appellant was entitled to a new trial on the count of DUI—highest rate of alcohol.

 

The attorney for the Appellant was Shawn Michael Dorward, of the McShane Firm, Harrisburg, PA.

seal_colorBy Burt Rose

Click for Opinion

The Superior Court of Pennsylvania has ruled in the case of COMMONWEALTH of Pennsylvania, Pennsylvania, Appellant v. Stacey A. MARTORANO, Appellee, 2014 WL 1345618, 2014 PA Super 64, 1357 EDA 2013 (April 4, 2014), an appeal from the order of Judge Roger Gordon of the Court of Common Pleas of Philadelphia County, Criminal Division, MC–51–CR–0035051–2010. The judges were PANELLAMUNDY and FITZGERALD, who wrote the Opinion. There was no dissent. Joseph Kevin Kelly, Esq., represented the Appellee.

 

The Commonwealth appealed from an order denying its petition for a writ of certiorari which requested that the Court of Common Pleas vacate an order by Judge Joseph J. O’Neill of the Philadelphia Municipal Court granting the Post Conviction Relief Act  petition of Appellee Stacey A. Martorano. The Commonwealth contended that the Philadelphia Municipal Court had no subject matter jurisdiction over a PCRA petition. The Panel of the Superior Court agreed and held that the Philadelphia Municipal Court lacks subject matter jurisdiction to entertain PCRA petitions and that a defendant sentenced by the Philadelphia Municipal Court must file a PCRA petition with the Court of Common Pleas. The courts of common pleas have exclusive jurisdiction to entertain PCRA petitions.

 

Therefore, the Superior Court Panel reversed the order by the Court of Common Pleas denying the Commonwealth’s petition for a writ of certiorari, and vacated the Philadelphia Municipal Court’s order granting PCRA relief to the Appellee.

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