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


By LLOYD LONGlong@krasnerlong.com


Commonwealth v. Taylor, 2016 PA Super 83 (Olson, J.) (April 11, 2016)

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This was an en banc appeal from two indirect criminal contempt convictions.

There was a PFA order against Taylor prohibiting threatening, harassing, and related contact toward his wife. The PFA order permitted text messages regarding legitimate issues involving the couple’s children. He was tried for two separate contacts with her during the course of divorce proceedings.

The first was in a gas station parking lot during a custody exchange. Taylor told the couple’s daughter to ask her mother whether she had been in touch with her lawyer about the sale of the marital property. He then got out of his car and spoke directly to her about the same subject.

In the second, Taylor sent his ex-wife a text message regarding the property; in the message, he stated that he had sent an email to her lawyer regarding the property and encouraged her to follow up with the attorney. He indicated that the sooner this was done, the faster he would be able to move into the house with their daughters.

Following conviction, he was sentenced to an aggregate term of 90 days in county jail and a fine. Taylor appealed, claiming that the fourth element of an indirect criminal contempt conviction — wrongful intent — had not been established.

The Superior Court disagreed. In the first instance, the trial court determined that Taylor’s intent was to discuss his desire to come to a quick resolution of issues regarding the couple’s jointly owned property. The panel agreed; any relationship between the contact and the children’s interests was remote and tangential.

The panel also agreed with the trial court’s finding of wrongful intent in the second contact. Although mentioning the children, the primary focus of the text was financial because it dealt with the transfer of marital property. The panel considered it important that Taylor knew his ex-wife was represented by counsel and that he knew communications regarding settlement of the divorce should be directed to her attorney.

It concluded that the trial court committed no error by deciding that Taylor was trying to rush the proceedings with these communications by pressing his ex-wife into action, rather than discuss legitimate issues concerning their children.

Taylor also waived his claim of an excessive penalty by not objecting at the time sentence was imposed or raising it in a post-sentence motion. Judge Bender, joined by Judges Mundy and Ott, dissented. They would have found that the element of wrongful intent had not been established by proof beyond a reasonable doubt. In their view, the communication was not abusive, harassing, or threatening. Additionally, the dissent did not believe the text to be outside permitted communications, as it dealt with Taylor’s living situation with the children.

Commonwealth v. Sodomsky, 2016 PA Super 84 (Ott, J.) (April 12, 2016)

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The trial court in three separate instances granted Sodomsky’s motion to suppress child pornography found on his computer by a Circuit City technician and police.

The technician found one file and called police, who came to the store and watched the technician play the video. Based on the plain sight exception to the warrant requirement, police seized the computer and later found more child pornography.

The Superior Court had already reversed the trial court’s suppression rulings twice. The first reversal was based on the trial court’s erroneous determination that Sodomsky retained a reasonable expectation of privacy in the computer. By turning the computer over to Circuit City, he had voluntarily relinquished control of the computer and its files.

On remand, the trial court allowed Sodomsky to reopen the record and present expert opinion that Circuit City’s method of opening the original file was not commercially acceptable. It granted suppression based on this testimony, but the Superior Court again reversed because nothing changed the earlier conclusion that Sodomsky had abandoned control over the files by giving the computer to Circuit City.

Sodomsky again sought to reopen the record based on the USSC’s decision in US v. Jones, 132 S.Ct. 945 (2012), which was decided after briefs were submitted to the Superior Court in the second appeal. Jones held that attaching a GPS to a car and monitoring the vehicle’s movement was a search under the Fourth Amendment, thereby requiring a warrant. According to Sodomsky, this was a clear change in the law that was applicable to his case.

The trial court agreed and again granted suppression. On appeal, a divided panel of the Superior Court affirmed. The Commonwealth sought reargument en banc and the suppression order was reversed. Jones did not create new law — it reaffirmed that a person’s effects (like a car) were subject to protection under the Fourth Amendment. But in that case, there had been no abandonment of the item at issue. In this case, there had: turning a computer over to a private citizen who viewed what he perceived to be an unlawful video and showed it to police.

Pa.R.Crim.P. 581 permits a suppression record to be reopened on motion if the opportunity to present certain evidence did not previously exist or if the interests of justice otherwise require. Because Jones did not announce a clear change in the law, the opportunity to make certain arguments always existed. The interests of justice did not require reopening of the record for the same reason.

Commonwealth v. B.H., 2016 PA Super 86 (Strassburger, J.) (April 14, 2016)

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B.H. was adjudicated delinquent for sexual assault and rape.

Originally, he agreed to admit to the charge of sexual assault and be adjudicated; part of the agreement was that there would be a finding of fact without adjudication on the rape charge. If he did not comply with terms of the imposed programs, he might later be adjudicated on the rape charge based on the finding of fact.

After a number of probation violations, B.H. was eventually adjudicated delinquent on the rape charge. He appealed.

The Superior Court reversed. The Juvenile Act only permits dispositions that are set forth in the Act itself. Adjudication on one charge and a finding of fact leaving open a possibility of subsequent adjudication on another is not such a disposition.

After the first admission, the juvenile court was required to make a finding specifying which counts were committed; it was not permitted to let itself make that determination later on additional charges based on B.H.’s success in certain programs. Even though the parties originally agreed to the above arrangement, the Juvenile Act did not contemplate such a disposition. The lower court’s implementation of the arrangement was, therefore, a manifest abuse of discretion



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