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

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By Lloyd Long III    long@krasnerlong.com

Supreme Court

Commonwealth v. Descardes, No. 27 MAP 2015 (Todd, J.) (March 29, 2016)

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This was a discretionary Commonwealth appeal of an en banc Superior Court opinion denying relief. Descardes pled guilty to insurance fraud. After serving his sentence, he returned home to Haiti in 2009; when he attempted to reenter the US, he was stopped as a result of the conviction. He filed a petition for writ of error coram nobis, claiming that his counsel’s failure to advise of deportation consequences was ineffective, and seeking to withdraw his plea. The trial court treated it as a PCRA petition and dismissed it as untimely. The trial court also found that at the time of the plea, precedent held that failure to inform a client of collateral consequences of a conviction was not ineffective assistance. The Superior Court affirmed, but held that the trial court should have treated the filing as a coram nobis petition. Even though Descardes did not prevail, the Supreme Court granted the Commonwealth’s application for allowance of appeal and reversed the Superior Court. After reviewing the recent history of post-conviction proceedings in Pennsylvania, the Court noted that the PCRA has been interpreted to be the sole method of obtaining collateral relief in Pennsylvania. As such, if a claim is cognizable under the PCRA, it must be reviewed under the PCRA, even if the petitioner is ineligible for relief under the timeliness or “currently serving a sentence” provisions. Here, Descardes’ claim sounded in ineffective assistance, one that is expressly recognized under the PCRA. That he could not bring a timely claim under the PCRA did not change that such claims must be brought under the PCRA.

Commonwealth v. Chapman, No. 682 CAP (Saylor, J.) (March 29, 2016)

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The Supreme Court reversed the appellant’s death sentence in this case. As a statutory aggravator, the Commonwealth submitted the appellant’s prior convictions for aggravated assault in New Jersey. NJ does not differentiate between misdemeanors and felonies; instead, they have “degrees” of crimes. The appellant’s convictions were of the fourth degree, which is the lowest, and punishable by imprisonment of up to 18 months. The trial court determined that it is the conduct which determines whether an outof-state crime is a felony; that is, if the definition of the crime is a felony under PA law, it is a felony for the statutory aggravator. It subsequently ruled that if a crime was a felony under common law, it was a felony for the statutory death penalty aggravator. The Court relied on section 106 of the Crimes Code, which states that crimes not otherwise identified as felonies or misdemeanors are to be classified as such based on the maximum term of imprisonment: 5 years or less is a misdemeanor, more than 5 years is a felony. The NJ statute at issue was not defined as a misdemeanor or felony, but carried a maximum term of 18 months imprisonment. It was, therefore, a misdemeanor under Pennsylvania law and statutorily ineligible as a death penalty aggravator. The sentence of death was vacated and the case remanded for a sentence of life imprisonment. The Court did find error during the guilt phase. Numerous references were made to the appellant’s failure to voluntarily provide a DNA sample. Though DNA is nontestimonial, the Court noted “admission of evidence of a refusal to consent to a warrantless search to demonstrate consciousness of guilt is problematic, as most jurisdictions hold (outside the context of implied-consent scenario) that such admission unacceptably burdens an accused’s right to refuse consent.” This error was determined to be harmless both because the evidence was quite overwhelming and because a cautionary instruction was given in one instance and offered (but refused) in another.

Superior Court

Commonwealth v. Woodward, Commonwealth v. Reed, Commonwealth v. Cambric, 2016 PA Super 65 (Lazarus, J.) (March 15, 2016)

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The Superior Court quashed the Commonwealth’s appeal of a Cambria County trial court’s order denying its motion under Pa.R.Crim.P. 582(A)(2) to consolidate trials of defendants charged in separate informations or indictments. The trial court relied on Pa.R.Crim.P. 583 in denying the motion and specifically found that the defendants might be prejudiced if tried together. Pa.R.A.P. 311(d) permits what would be an impermissible interlocutory appeal when the Commonwealth certifies in its notice of appeal that a pretrial order will terminate or substantially handicap a prosecution. The panel stated that although the Commonwealth’s certification in a notice of appeal is entitled to some deference, it is not unreviewable. Here, the Commonwealth remains free to pursue convictions against all defendants in separate trials; as such, its inability to try them together obviously did not terminate or substantially handicap the prosecutions. Quashing the appeals as interlocutory was therefore appropriate.

Commonwealth v. Kelley, 2016 PA Super 64 (Gantman, J.) (March 15, 2016)

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This was an appeal from the denial of PCRA relief. The appellant, who was on state parole, gave his son counterfeit currency. It was of such poor quality that it didn’t fool the carnival workers who were supposed to unknowingly make change from it. The appellant pled guilty to various charges in exchange for a sentence of 21-60 months. Part of the bargain included acknowledging a specific effective date for the sentence: the day of his arrest. After being sentenced, the appellant learned that his true effective date was nearly two years after that specified by the plea agreement. 61 Pa.C.S. 6138(a)(5)(i). The Superior Court reversed the denial of post-conviction relief. Before the new sentence was imposed, the Parole Board imposed a back-time sentence that went beyond the aforementioned sentence effective date. The Parole Act prohibits a new state sentence from running concurrent to an already-imposed back-time sentence in circumstances like this. 61 Pa.C.S. 6138(a)(5)(i). The record contained no indication that the appellant was aware of the statutory requirement that he serve his back-time prior to the new state sentence. Counsel was ineffective for not advising petitioner of such, and the plea was therefore not entered knowingly, intelligently, and voluntarily. The petitioner was not, however, entitled to specific performance, i.e. imposition of concurrent sentences.

Commonwealth v. Konias, 2016 PA Super 68 (Bowes, J.) (March 18, 2016)

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The defendant was an armored car guard who killed his partner and ran off to Florida with $2.3 million. He claimed self-defense at trial but somehow lost. The defendant hired private counsel who subsequently filed two motions for courtfunded experts for evidentiary and psychological analysis; the motions claimed that all available funds had been exhausted on counsel fees. The trial court denied the motions without a hearing. The Superior Court affirmed based on the lack of an offer of proof – neither of the motions provided a specific showing of financial hardship. They contained only mere averments of indigency and need for court-appointed experts. The panel did indicate that the hiring of private counsel does not establish nonindigency. But the failure to include a specific offer of proof in the motion for courtfunded experts was fatal to being entitled to a hearing on the motion. The panel also rejected a claim of inadmissible evidence (a detective’s statement that no struggle had occurred in the armored truck) by finding it to be, at most, harmless error. Similarly, it rejected the defendant’s claim that the verdict was against the weight of the evidence.

Commonwealth v. Brown, 2016 PA Super 73 (Olson, J.) (March 24, 2016)

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This was an appeal of a PCRA order from Beaver County denying the appellant’s third PCRA petition. Appellant had been convicted of third-degree murder for the killing of a police officer in 2001. The first claim advanced was that the Office of the Attorney General should have been disqualified because it was being accused of a Brady violation in the proceedings. But individual prosecutor, as opposed to entire-office, disqualification is the general rule in criminal case motions like this (except where the chief prosecutor in an office has the actual conflict). Nor is there any precedent for an entire office being disqualified based on a Brady claim. The appellant also claimed that the OAG should have been disqualified under the Commonwealth Attorney Act because there was no indication that the Beaver County DA had asked the OAG to handle the third PCRA petition. This claim was waived because the appellant did not raise it at trial or on direct appeal (when the OAG was also prosecuting him) as required by the Act. The appellant proffered two claims of newly-discovered evidence. The first was an affidavit from an individual who claimed he heard a police officer state that the victim’s killing was an “inside job” – he had been killed by other officers to protect their own. Because this was hearsay, it did not satisfy the exception to the PCRA’s timebar. Aside from serious issues surrounding the statement’s reliability, there was no indication that the officers who made the statements were unavailable, which might have otherwise made it a statement against interest. Nor did the appellant plead and prove that he acted with due diligence to obtain the affidavit. The second claim was an affidavit from another individual stating the existence of a wiretap containing the voice of the actual killer. This was not a “fact” – rather, it merely referenced some evidence that might exist and lead to certain facts. In a supplemental filing, the appellant attached transcripts from the affiant’s criminal proceedings that dealt with wiretaps. The deceased officer’s killing was discussed in the wiretaps, but it is unclear who made the statements. Accordingly, the declarant could well be unavailable. The fact that the statements were contained on wiretaps made the statements reliable under Pa.R.E. 804(b)(2). The panel remanded the matter to the lower court for a determination as to whether the appellant had acted with due diligence in obtaining the second affidavit. Because an evidentiary hearing is required, the court must appoint counsel under Pa.R.Crim.P. 904(D). Judge Strassburger concurred, but would have allowed the appellant to prove the unavailability of the police officer declarant identified in the first affidavit.

Commonwealth v. Lees, 2016 PA Super 73 (Gantman, P.J.) (March 24, 2016)

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This was a Commonwealth appeal of a pretrial habeas order in Montour County. The Superior Court found that the Commonwealth had established a prima facie case of DUI, reckless driving, and careless driving where the defendant — testing revealed a 0.189% BAC — had driven her car over the partial curb in front of a parking spot, through some grass, and into an electrical box. The defendant’s car was in a numbered spot of the common private parking lot of her townhome complex. The lower court held that the lot and space were not covered by the vehicle code. The Superior Court reversed; binding cases hold that roadways in private areas, even those restricted to permit holders, can meet the “public use” test. Here, even though the lot was marked “private,” and the spot in question was reserved by a numbering system, the lot was used by mailmen, deliverymen, and visitors. This case was decided under the low prima facie standard of proof applied in habeas motions.

Commonwealth v. Cole, 2016 PA Super 74 (Shogan, J.) (March 28, 2016)

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The appellant was convicted of first-degree murder, robbery, conspiracy, and carrying a firearm without a license. During deliberations, the jury asked to see a video that had been introduced during the trial. The lower court, without objection by appellant’s then-counsel, sent a tech paralegal from the district attorney’s office in with a tipstaff to play the video in the jury room. No discussion about the case occurred. Even if the issue had not been waived by lack of a timely objection, the panel would not have granted relief. There was no ex parte communication with the jury, and the alleged prejudice, if any, was speculative. However, the panel indicated in a footnote that a better procedure would have been to bring the jury into the courtroom and play the video there. The panel also found that a detective’s narration of certain aspects of video evidence was not reversible error. The narration consisted of pointing out the time stamp at certain points, the location of the cameras to the scene, and identifying certain occurrences. According to the panel, the testimony was based on the detective’s experience, perception, and personal knowledge of the location. Relief was granted on an illegal sentencing claim – a mandatory minimum was imposed for the appellant’s robbery conviction two days after the USSC decided Alleyne.

Commonwealth v. Thompson, 2016 PA Super 75 (Bender, J.) (March 30, 2016)

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The Superior Court had previously vacated an illegal mandatory sentence and remanded this matter for resentencing and further consideration of the appellant’s Rule 600 motion. Two time periods were at issue for the Rule 600 claim; the appellant was not brought down from state custody in either instance. Either instance would put the trial beyond the adjusted run date, requiring a dismissal of charges if not excusable. The first was summarily determined to be attributable to the defense as its request for a continuance. For the second period, there was no notation in the Quarter Sessions file (from 2011). The ADA assigned to the case at the relevant time testified that the Commonwalth’s file did not indicate whether a writ was requested for the listing, but that standard procedure was to request a writ but not mark the file because it was such a routine act. The trial court found this testimony to be credible, and determined that the Commonwealth had requested a writ and acted with due diligence. The panel reversed, finding that the lower court had committed an abuse of discretion. Rule 600 requires the Commonwealth to demonstrate that it acted with due diligence in order for a period of delay to be excusable. Part of due diligence is keeping adequate records to ensure compliance with Rule 600. The Quarter Sessions file did not reflect that a writ had been issued, nor did the DA’s file. Though credible, the ADA’s mere assertions of due diligence by “common practice” without supporting facts were insufficient to meet its burden.

Commonwealth v. Muzzy, 2016 PA Super 77 (Shogan, J.) (March 31, 2016)

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The Superior Court denied counsel’s request to withdraw in an appeal of the denial of PCRA relief. Under Turner and Finley, the appellant must be advised that upon filing of a no-merit brief, the appellant has the immediate right to proceed in the appeal pro se or with private counsel; it is not dependent on whether the Superior Court grants the motion to withdraw filed contemporaneously with the no-merit brief. Here, counsel advised the appellant that if the Superior Court granted the motion to withdraw, he had the right to proceed pro se or with appointed counsel. The motion was, therefore, denied.

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