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

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By Burt  Rose

The Superior Court of Pennsylvania has issued a decision in the matter ofCOMMONWEALTH of Pennsylvania v.
Len Allen GREEN, Appellant
, No. 1105 MDA 2013, 2014 WL 868627, 2014 PA Super 42 (March 5, 2014). This was a direct appeal from a Judgment of Sentence of Judge Thomas Campbell of the Court of Common Pleas of Adams County, Criminal Division, CP–01–CR–0001078–2012. The Judges were DONOHUEOTT and PLATT, who wrote the Opinion.

The Appellant negotiated a guilty plea to one count of theft of personal property from a residence. The trial court ordered Appellant to pay the victim $98,552.00 in restitution. In addition, at the Commonwealth’s request and over Appellant’s objection, the court ordered Appellant to disclose the locations where he disposed of the stolen items as a condition of probation. On appeal, the Appellant argued that the probation condition requiring him to disclose the location of the stolen items involved in this case violated his Fifth Amendment right against self-incrimination.  He argued that such disclosure could lead to identification of the persons to whom the items were sold, criminal investigations relating to other stolen items, and potential exposure to prosecution in other jurisdictions. Judge Platt agreed and stated the following:

We agree with Appellant that compelled disclosure of the locations of the victim’s numerous valuable property items might well lead to additional incriminating information, criminal investigations, and prosecutions. Thus, it is not perfectly clear that Appellant is mistaken in the apprehension of self-incrimination. To the contrary, we conclude that Appellant possesses reasonable cause to apprehend danger of prosecution … to justify the exercise of the privilege against self-incrimination. Further, in imposing the condition, the trial court did not recognize that the required disclosures may not be used in a subsequent criminal proceeding, thus eliminating the threat of incrimination.

The Panel concluded that the trial court had improperly ordered the Appellant’s non-immunized disclosure of the location of the stolen items as a condition of his probation and remanded for resentencing.

Steve Rice, Esq., of Gettysburg represented the Appellant.

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