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

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.

PaCapitol

Proposed changes to Sentencing Guidelines

The Pennsylvania Commission on Sentencing has published proposed new Guidelines in the Pennsylvania Bulletin.  The proposal begins at page 1967.  Click for April 5 edition of the Pennsylvania Bulletin.

Chief Justice asks lawyers to support access to justice for all

Click for news release

Session schedule

The House and Senate will be in session on Monday, Tuesday and Wednesday, and then recess until April 28.

Child abuse bills are on the Governor’s desk after approval by the House and Senate

The following bills passed the House and Senate and were sent to the Governor for final action.

Child Abuse: Senate Bill 24 (Vulakovich-R-Beaver).  This 54 page bill deals with the reporting and investigation of allegations of child abuse and expungement of records of the reports.  See House Fiscal Note.

Child Protection Training: House Bill 431 (Gingrich-R-Lebanon).  This bill deals with the training an education of mandated reporters of suspected child abuse.  See House Fiscal Note.

Bills moving

House

Child Abuse: Senate Bill 33 (Mensch-R-Lehigh) further providing for persons required to report suspected child abuse was referred into and out of the House Appropriations Committee and passed by the House.  A summary and House Fiscal Note are available.  The bill returns to the Senate for a concurrence vote.

Child Abuse: Senate Bill 21 (Ward-R-Westmoreland) further providing for child abuse reporting was amended on the House Floor, referred into and out of the House Appropriations Committee, amended again on the House Floor and remains on the House Calendar for action.

Firearms: House Bill 1498 (Stephens-R-Montgomery) relating to the sentences for offenses relating to felons using firearms was amended on the Floor and referred into and out of House Appropriations Committee and is now on the House Calendar for action.  House Bill 1091 (Taylor-R-Philadelphia) relating to the offense of carrying firearms on public streets in Philadelphia was referred into and out of the House Appropriations Committee and is now on the House Calendar for action.

Senate

Child Abuse: House Bill 436 (Stephens-R-Montgomery) further providing for penalties for failure to report child abuse was removed from the Table, amended on the Senate Floor and remains on the Senate Calendar for action.

Public hearings

April 7– Senate Rules Committee meets to consider Senate Bill 33 (Mensch-R-Lehigh) further providing for persons required to report suspected child abuse on concurrence.  Rules Room.  Off the Floor.

April 7– House Appropriations Committee meets to consider House Bill 1778 (Petri-R-Bucks) providing for abolishment of jury commissioners– sponsor summary.  Room 140.  Off the Floor.

April 8– House Judiciary Committee meets to consider House Bill 2088 (Hackett-R- Delaware) providing for the offense of dealing in infant children- sponsor summarySenate Bill 894 (Alloway-R-Franklin) requiring criminal background checks for lawyers.  Room 205 Ryan Building.  10:00.

April 8– Senate Judiciary Committee meets to consider Senate Bill 979 (Greenleaf-R- Montgomery) establishing the PA Center for Effective Indigent Defense Legal Representation- sponsor summarySenate 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.  Room 8E-B East Wing Capitol Building.  11:30.

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.

Source:  Crisci Associates PA Capitol Digest

PaCapitol Session schedule

The House and Senate meet Monday, Tuesday and Wednesday.

Governor signs bill on sexual violence Senate Bill 681 (Greenleaf-R- Montgomery) was signed into law as Act 25.  The act provides for protective orders in favor of victims of sexual violence or intimidation.  The protective orders can last up to 36 months.

Public hearings

March 31– House Judiciary Committee holds a hearing on drug courts and heroin crisis.  Room 205 Ryan Building. 10:00.

April 1– Senate Judiciary Committee holds a hearing on Senate Bill 979 (Greenleaf-R- Montgomery) establishing the PA Center for Effective Indigent Defense Legal Representation– sponsor summary.  Hearing Room 1, North Office Building. 10:30.

April 1– Joint House Judiciary - Transportation Committees hold an information meeting on DUI laws.  Room 205 Ryan Building.  10:00.

April 2– Senate Communications and Technology Committee meets to consider Senate Bill 1290(Vulakovich-R-Beaver) requiring the disclosure of wireless device location information– sponsor summary.  Room 461 Capitol Building.  9:30.

April 10– House Consumer Affairs Committee holds a hearing on variable rate electric rate contracts.  Allegheny Court House, Gold Room, 436 Grant St., Pittsburgh. 10:00.

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.

Supreme Court extends CP and MC criminal e-filing pilot program until April 2015

Click for Order

ByrneLarge

By Burt Rose

Click for Opinion

U.S. v. Winkelman, 2014 WL 1228194 (C.A.3 (Pa.)): This case was before Judges SCIRICA, NYGAARD and ALARCÓN. Judge Nygaard wrote the Opinion for the Panel.

Before the Court were motions by pro se Appellants George A. Winkelman and John F. Winkelman, Jr., to recall the mandate and to reinstate their direct appeals so they can try to seek relief under the Supreme Court’s recent holding in Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).

These are successive § 2255 motions which are authorized only if based on “newly discovered evidence,” or on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” The Winkelmans argued that Alleyne announced a new retroactive rule of constitutional law because it overruled Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). They contended that the Supreme Court has made Alleyne retroactively applicable to cases on collateral review. The Third Circuit Court did not agree.

The Supreme Court may well have announced a new rule of law in Alleyne. See, e.g., Simpson v. United States, 721 F.3d 875, 876 (7th Cir.2013) (holding that Alleyne announced a new rule of law). However, a new rule is not made retroactive to cases on collateral review unless the Supreme Court holds it to be retroactive. Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001).

The Supreme Court could make a new rule of law retroactive by putting it in a category of cases previously held to be retroactive. Those categories are: new substantive rules that place “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe”; and new procedural rules that “are implicit in the concept of ordered liberty.” Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (citations and quotations omitted); see also Chaidez v. United States, ––– U.S. ––––, –––– n. 3, 133 S.Ct. 1103, 1107 n. 3, 185 L.Ed.2d 149 (2013) (continuing to recognize only the two Teague exceptions). The latter is set aside for “watershed rules of criminal procedure” which “ ‘alter our understanding of the bedrock procedural elements’ “ of the adjudicatory process. Teague, 489 U.S. at 311 (quoting Mackey v. United States, 401 U.S. 667, 693, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring)).

The Court of Appeals held that the Alleyne decision does not fit into either category. Therefore, Alleyne will not be applied retroactively to cases on collateral review.

Tag Cloud

Follow

Get every new post delivered to your Inbox.

%d bloggers like this: