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

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By LLOYD LONGlong@krasnerlong.com

Supreme Court

Commonwealth v. Flor, 708 CAP (Wecht, J.) (April 25, 2016)

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Flor appealed the PCRA court’s order granting the Commonwealth’s motion for production of the complete records of trial counsel (which was composed of 30,000 pages). Flor disarmed a police officer while in hospital custody; he shot an EMT and three police officers, killing one. After pleading guilty, a jury sentenced him to death.

Flor’s PCRA petition challenged his trial counsel’s investigation and preparation for the penalty phase. He also asserted that an intellectual disability made him ineligible for execution. Trial counsel stated that they did not recall what investigative measures they took, and that they did not have copies of their file.

The Commonwealth sought an order for PCRA counsel to produce the trial file. PCRA counsel objected on attorney-client and work-product grounds; they requested an opportunity to identify and remove privileged materials. The PCRA court ordered total production because 1) the guilty plea waived all claims against self- incrimination and 2) assertions of ineffectiveness in the PCRA petition waived privilege.

The Supreme Court reversed. It first held that the order was immediately appealable under the collateral order doctrine, but only as to the claim that the PCRA court’s order dealt with privileged materials. Flor’s assertions that the PCRA court’s order was not supported by good cause as required under Pa.R.Crim.P. 902(E), and that it abused its discretion in granting the Commonwealth’s request, were not collateral orders under predecent. Flor did not argue that they did.

Attorney-client privilege is the most revered common law privilege, but a party who challenges his attorney’s effectiveness cannot invoke privilege to prevent counsel from responding to the allegations. That does not cause a total waiver of privilege: precedent requires issue-specific analysis of waiver. Here, the PCRA court ordered wholesale disclosure of the file without in camera review of the materials, and without giving PCRA counsel the opportunity to withhold privileged materials. The entire file could certainly contain materials that were protected by the privilege and not waived by assertions of ineffectiveness. This mere possibility was sufficient to reverse the lower court’s order.

Nor did Flor’s guilty plea waive all claims of privilege. A plea waives the right against self-incrimination, but it does not waive the attorney-client or work product privileges.

All justices joined in this opinion; there were two concurrences.

1Chief Justice Saylor, joined by Justice Donohue, added that PCRA counsel should create a privilege log of documents withheld under a claim of privilege. This would allow the Commonwealth to glean the general nature of withheld materials and determine whether to challenge assertions of privilege. It would also facilitate subsequent in camera review of those materials by the PCRA court, and aid in potential appellate review.

Justice Dougherty, joined by Justice Baer, wrote that the Court’s mandate should include a requirement that the lower court comply with the Chief Justice’s privilege log proposal. Justice Dougherty would go further and that direct disputes over claims of privilege be subject to in camera review by the PCRA court.

Superior Court

Commonwealth v. Evans, 2016 PA Super 90 (Ford Elliott, P.J.E) (April 26, 2016)

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Evans was a registered sex offender as the result of a previous case. He entered a negotiated guilty plea to various charges based on illegal sexual contact with a minor and was sentenced to twelve and one-half to twenty-five years’ incarceration.

Before sentencing, he was ordered to undergo a SOAB assessment. The SOAB did not receive the order until 87 days after the plea, rather than 10 as required by law. It obviously could not complete the assessment within the proscribed 90 days after conviction.

Evans sought to preclude the SOAB report at his SVP hearing based on untimeliness. The trial court acknowledged that the report was untimely under 42 Pa.C.S. §9799.24(d), but denied his motion.

The Superior Court affirmed. As with a sentencing claim that is untimely under Pa.R.Crim.P. 704, an SVP respondent seeking relief must demonstrate that the delay resulted in prejudice. Here, Evans was already a sexually violent predator; he had a record of sex crimes dating back to his being sixteen years old, was remorseless, and had a high risk of reoffending. He was also going to spend quite some time in prison and would not be required to register until release. Even though the lower court should have timely ordered the SVP assessment, Evans was not prejudiced by the delay; he did not even allege that he had been.

Commonwealth v. Stilo, 2016 PA Super 91 (Ott, J.) (April 28, 2016)

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Stilo appealed the denial of his motion to suppress physical evidence. A narcotics officer received a complaint about drug activity at the house in question, and determined that the owner had been previously arrested for narcotics offenses. After setting up surveillance in the afternoon, he observed Stilo arrive, park, and enter the property’s basement. Three minutes later, Stilo emerged from the property and got back in his car, where he remained for a few minutes.

While Stilo was in his car, another individual arrived at the property. The same thing happened: he entered the basement of the property for a few minutes, came back out and got in his car. Stilo and the other individual left the area simultaneously. The police stopped Stilo. He turned over a small bag of marijuana, but a subsequent search revealed a couple dozen opioid pills.

Stilo argued that these facts — an anonymous tip regarding a residence, no observed transaction, and circumstances that were consistent with innocent behavior or coincidence — did not lead to reasonable suspicion justifying the stop.

The Superior Court affirmed the denial of suppression. The experienced narcotics officer that received the anonymous tip established a nexus between the home and drug dealing by discovering that its owner had previously been arrested on drug charges. The near-simultaneous suspicious behavior of two people entering the basement and exiting the property within three minutes, when viewed through the eyes of a trained officer justified his belief that drug transactions occurred.

Stilo’s claim that police should have further developed their suspicions was foreclosed by precedent: the possibility of doing so does not make their observations insufficient. Moreover, it is not error to determine that reasonable suspicion exists even if the circumstances are equally consistent with innocent behavior. Viewing the evidence in light of an officer’s experience might convert otherwise innocent conduct into reasonable suspicion.

Commonwealth v. Beasley, 2016 PA Super 92 (Jenkins, J.) (April 28, 2016)

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Beasley and his friend Knox made bad choices.

They fled police, crashed their car, and ran off leaving a gun in the car. When caught, they were in possession of drugs and cash. Knox gave a false name.

Knox fled the police again eight months later.

An officer later viewed Beasley’s Facebook page (it was under Beasley’s nom de plume, “Beaz Mooga”). It contained links to various rap videos featuring him and Knox. One threatened direct violence against the officers involved in the two incidents mentioned above. They lyrics also included references to the rapper’s mother discouraging his choice to put the music on a CD.

Police went to arrest Knox at Beasley’s mother’s house. When someone answered the door, people upstairs said to not let them in. An officer took Beasley into custody thinking he was Knox and calling him Knox; Beasley remained silent. After arriving at the police station, they realized the error; police returned to the home and arrested Knox, who was hiding in the ceiling behind loose tiles.

3Beasley challenged the sufficiency of the evidence for his convictions two counts each of terroristic threats and intimidation of a witness, and one count each of conspiracy and hindering apprehension.

The Commonwealth proved the challenged element of intentional or reckless communication for terroristic threats because direct communication is not required, nor is intent to carry out the threat. The panel stated it did not need to determine whether publicly linking to a publicly available YouTube video constituted intent to communicate: there was sufficient evidence to conclude that he wanted the officers to hear the lyrical threats, and that he succeeded in doing so.

The evidence was also sufficient to prove intimidation of a witness. That he publicly threatened violence against officers who were set to testify against him was circumstantial proof that he was trying to convince police to withhold testimony.

Beasley’s argument that he and Knox conspired to commit no crime was meritless. Creation of the video was an overt act in furtherance of an agreement to threaten and intimidate police.

Finally, the evidence sufficiently proved that Beasley harbored Knox. Knox was hiding upstairs with Beasley in his mother’s house. Beasley did not correct the officer’s error in assuming he was Knox, and Knox was later found in that house hiding in the ceiling.

Commonwealth v. Diehl, 2016 PA Super 93 (Stevens, P.J.E) (April 28, 2016)

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A fire chief parked his emergency vehicle diagonally across the two lanes of I-83 and activated his overhead lights. Diehl drove past at 41-59 miles per hour, striking and killing the chief. An expert recreated the scene and testified that he was able to see the overhead lights 3,000 feet away. He further testified that based on the way the chief’s truck was parked, Diehl had to drive at least two feet across the fog line when going around the emergency vehicle at that speed.

Diehl was also drunk: subsequent testing revealed a BAC of 0.118. He was twice convicted previously of DUI — once each in Pennsylvania and Maryland — and part of his PA sentence included attending a DUI education class.

The Commonwealth sought to introduce evidence of both convictions under Rule 404(b), but the trial court only admitted the PA DUI conviction and attendance at the DUI awareness class. Diehl sought appellate review, and the Superior Court affirmed the trial court’s exercise of discretion.

The prior DUI and class proved Diehl’s criminal negligence, recklessness, and malice — he had greater knowledge about the dangers of driving drunk. It also tended to show the absence of mistake, and rebutted Diehl’s defense: because of the prior DUI and knowledge from the DUI class of the impact of driving drunk, Diehl could not

4claim that the accident was caused by a mistake or his failure to adequately respond to a rapidly developing situation. It was caused by his intoxication.

The trial court gave a cautionary instruction on the prior conviction and the jury acquitted Diehl of third-degree murder. Under those circumstances, it was impossible to conclude that the evidence unduly prejudiced the jury.

Diehl did not raise a substantial question on his claim that the sentence imposed, consisting of three consecutive terms of imprisonment, was excessive. The trial court imposed the sentence because Diehl consciously drank before driving, disregarded an obvious emergency on the road, and drove away from the collision. Diehl did not meaningfully address these reasons in his statement for allowance of appeal.

The panel would not have granted relief even if he had. The lower court considered the nature and circumstances of the offense; Diehl’s attempt to argue that certain circumstances mitigated his intoxication was unpersuasive.

Commonwealth v. Rapak, 2016 PA Super 94 (Stevens, P.J.E) (April 28, 2016)

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This was a Commonwealth appeal of an order suppressing evidence. The trial court held that the four corners of warrant at issue did not establish probable cause.

The Superior Court reversed. The affidavit contained sufficient allegations to support a finding of probable cause: specifically, marijuana plants were located in a difficult to access location bordering Rapak’s property and a business: a dirt road led from his residence to the plants. The marijuana plants were cared for regularly, and traps to prevent animals were present. Rapak had also been convicted of a drug offense many years prior.

The lower court focused on whether the owner of the property was likely growing the plants. This was error; the question is not whether the owner of a property is suspected of a crime. The proper inquiry is whether there is probable cause to believe that specific items to be searched for and seized are on the property. The plants were obviously near the property and a nearby dirt road led to Rapak’s house. Under these circumstances, it was error to determine that that probable cause did not exist to search Rapak’s property. There was sufficient indicia to conclude that there was contraband for the manufacture and delivery of marijuana elsewhere on the property and in the home.

Commonwealth v. Volk, 2016 PA Super 95 (Strassburger, J.) (April 29, 2016)

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Volk was convicted and sentenced to 2-4 years’ imprisonment plus 3 years’ probation. After his direct appeal was denied, he filed a timely pro se PCRA petition. Counsel amended the petition shortly thereafter. A hearing was held, and briefs were subsequently filed. During the pendency of the PCRA, his probation was

5revoked and he was sentenced to 6-18 months’ incarceration with time credit. The time credit caused his sentence to expire five months after it was imposed. Well after that date passed, the lower court dismissed the PCRA due to lack to jurisdiction – Volk was not serving a sentence anymore. The PCRA was dismissed and Volk appealed.

Volk made a constitutional challenge to the eligibility requirement in 42 Pa.C.S. 9543(a) (a petitioner must be serving a sentence to be eligible for relief). The Superior Court affirmed. When a PCRA petitioner is at liberty, he has no due process right to collateral review.

Nor is that section unconstitutional as applied to him. While the delay between briefing and decision by the court — 21 months — was sufficient to trigger further inquiry, it was not intentional by the government or the court. It was the result of admitted negligence by the lower court’s chambers, which claimed that the case had “slipped through the cracks.” Volk, however, was not diligent in attempting to obtain relief prior to expiration of the sentence. He did not petition the court for a decision, nor did he make a request for a PCRA ruling at his probation violation sentencing, which was in front of the same judge. Finally, Volk was not prejudiced: his PCRA claim was newly-discovered evidence about the victim’s credibility. The victim’s credibility, however, was addressed both at trial and on direct appeal.

The panel did consider the length of delay to be unacceptable. But Volk’s failure to exercise due diligence of suffer prejudice doomed his claim.

Third Circuit

United States v. Jamil Murray, No. 15-2054 (April 28, 2016) (Precedential)

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The district court denied Murray’s motion to suppress and he entered a conditional guilty plea reserving his right to challenge the suppression ruling.

The Third Circuit affirmed. Police were investigating prostitution along Route 1 in Bensalem. A hotel owner gave them a tip about a green Cadillac being involved in prostitution. Later, a woman called police with a tip that Murray was in possession of drugs at another local hotel, the Knights Inn, and that he was driving a green Cadillac.

Police saw a green Cadillac parked outside another hotel, the Neshaminy Motor Inn, and learned it was registered to room 302. They knocked at the door and a woman dressed in lingerie, Jessica Burns, answered. She asked police if they were looking for a date. The responded in the negative and went back to the Knights Inn, where they saw both Murray and a different woman leaving a room registered to him.

Police returned to room 302 and, with persistent knocking, gained voluntary entry from the woman in lingerie (she told them she was “busy” a couple times). She admitted to being a prostitute and working for a drug dealer that supplied her. Burns later testified that she was the woman who made the anonymous call, but that she had not told police it was her that day.

While police were in the room, there was a knock at the door. Police thought it was another officer, but it was Murray. He was patted down and a cell phone and large amount of money was recovered, as were the keys to rooms at the Knights Inn. Murray tried to flee, but was apprehended. Search warrants were obtained and a whole lot of crack was recovered in one of the rooms at the Knights Inn.

Jessica Burns testified at the suppression hearing that she voluntarily let police into the room. The district court found her credible and determined that she had common authority, or at least apparent authority, to admit police. The Third Circuit agreed: the facts as known to the officers justified the belief that she was a prostitute who had access to and control over the hotel room for most purposes, including permitting or denying access to the room.

The district court also rightly determined that the Terry frisk of Murray was supported by reasonable suspicion. Officers received information from Burns that corroborated their earlier investigation that Murray was a drug dealer running a prostitution operation. That justified a concern that he was armed and dangerous.

Murray’s claim that Terry is inapplicable in a home (here, a hotel room) did not afford him relief. A hotel room is not a home, police were lawfully in the premises, and a potentially dangerous individual showed up unexpectedly. Moreover, the district court determined that the items seized from Murray were taken by consent. Its credibility determination was entitled to deference.

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