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

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By LLOYD LONGlong@krasnerlong.com

Commonwealth v. Haslam, 2016 PA Super 97 (Stevens, P.J.E.) (May 9, 2016)

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Haslam was convicted of various charges for dealing drugs. His appeal challenged the lower court’s denial of his motion to suppress.

Parole agents went to the home to speak with Haslam’s parolee father about neighborhood complaints concerning the property. The complaints were about traffic to the house and suspicion of guns and drugs inside.

The couple denied that anyone else was present, but shortly thereafter, three people came downstairs (two regrettably encountered the parole agents while wanted for their own parole violations). One agent found drug paraphernalia and a gun. State troopers were called; one advised Haslam that he was free to leave while a search warrant was obtained. Haslam told the trooper that the drugs in the house belonged to him, not his girlfriend. He also consented to a search of his person that uncovered $700 in cash. Execution of the search warrant revealed more drugs and money.

The testimony of Haslam and his girlfriend was consistent with much of that by law enforcement, but certain key factual issues were disputed. His claims on appeal relied on his version of those disputes. That required an impossible reading of the record under the correct standard of review. In denying suppression, the lower court decided the agents were credible, and that Haslam and his girlfriend were not. Those determinations were supported by the record and binding on appeal. The panel held that the Haslam’s arguments were based on improper factual premises and did not review them.

Commonwealth v. Brown, 2016 PA Super 98 (Olson, J.) (May 10, 2016)

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Brown and the decedent had a dispute (seemingly over the throwing of a tissue) at a tattoo party. Brown pulled a gun on a third party, whom the decedent claimed Brown would not shoot. Brown did not; he instead shot the decedent.

The Superior Court held that an autopsy report, prepared as a result of a death from other than natural causes, is testimonial in nature under the Sixth Amendment; it is therefore inadmissible unless the medical examiner/coroner (medical examiner in Philadelphia, coroner is most other counties) who prepared the report testifies. At trial, the medical examiner did not testify; another expert did, who testified to the conclusions in the autopsy report.

Under Crawford, documents that are testimonial in nature cannot be introduced unless the preparer testifies and is subject to cross- examination (or is unavailable but there was a prior opportunity for cross-examination). A document is testimonial if its primary purpose is to establish/prove past events that may be relevant to a subsequent prosecution. Courts ask whether the document or statement was created or made under circumstances that would lead an objective witness reasonably to believe that the document or statement would be available for use at a later trial.

The autopsy revealed that the decedent was killed by gunshots and that the method of death was homicide. The report’s primary purpose, therefore, was to establish a past event. Additionally, the statutory language creating the position of medical examiner supported the conclusion that an autopsy report is testimonial because of the manner in which the statute contemplates joint effort between the medical examiner and the district attorney.

Introduction of the conclusions in the autopsy report was a violation of Brown’s right to confrontation. But the error was harmless. Pa.R.E. 703 allows an expert to rely on certain documents when forming an opinion, including otherwise inadmissible evidence like the autopsy report here. The expert testified that although his conclusion was the same as the non-testifying medical examiner’s, his was independent.

Because the wrongly admitted testimony was cumulative of proper evidence, and because the manner of death was not at issue — there was no serious doubt that the decedent was killed by gunshots — the error was harmless beyond a reasonable doubt.

Commonwealth v. Slattery, 2016 PA Super 99 (Olson, J.) (May 13, 2016)

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Slattery was convicted of driving with a suspended license and failing to signal. The arresting trooper pulled him over because he did not use a turn signal for at least 100 prior to changing lanes.

Turns out you don’t have to do that.

75 Pa.C.S. §3343, dealing with signaling, does not have a requirement of at least 100 feet for changing lanes. Subsection (b) of that statute places the 100 feet requirement only on turns made at less than 35 miles per hour. The statute does not specify how long a signal must be activated before changing lanes.

Slattery had used a signal prior to changing lanes. The trooper’s mistake about how long the signal needed to be activated prior to that action was erroneous; there was no probable cause to stop the vehicle, and the judgments of sentence were reversed.

Commonwealth v. Walker, 2016 PA Super 100 (Bender, J.) (May 13, 2016)

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Walker drove around town asking grossly inappropriate sexual questions of various underage girls. He tried to physically pull the last child he targeted into his car, but she was able to resist and flee.

He first challenged the sufficiency of the evidence for his four unlawful contact with a minor convictions. The Information did not state which offense under Chapter 31 was the goal of the unlawful contact. The trial court, however, charged the jury that it had to find that Walker was in contact with the minors for engaging in an unlawful act, specifically sexual assault and/or indecent assault with a child under 13 years of age. The Commonwealth did not object to this instruction.

Walker argued that there was no evidence he intended to commit a sexual assault or indecent assault. The panel denied relief. Walker did not cite any binding authority that based on the trial court’s instruction, the Commonwealth had to prove those specific offenses as opposed to any other Chapter 31 offense. Pennsylvania requires the Commonwealth to prove the allegations in the information, not those in a seemingly erroneous jury instruction.

Walker also claimed that he had not attempted to lure the last child to his car. While it is true that saying “come in my car” is not sufficient evidence of luring, Walker’s actions in pulling the child toward his car was an affirmative act calculated to strongly induce the child to get in the car.

The evidence was also sufficient to support Walker’s conviction for simple assault of the last child. He made an explicit sexual remark and then grabbed her by the wrist, trying to pull her in the car. The child could have fallen back and hit her head while resisting or been injured in some other way.

Finally, the evidence was sufficient to show that he corrupted the morals of the first minor. Walker stalked her through a convenience store, stared at her, stood right next to her, followed her out the store, pulled his car up next to her, and told her “Come here.”

United States v. Vasquez-Algarin, No. 15-1941 (May 2, 2016) (Precedential, Third Circuit)

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Law enforcement were looking for a homicide suspect (not Vasquez-Algarin; there was no evidence of record that the suspect and Vasquez-Algarin were associated in any way). A Deputy US Marshal received some tips that the suspect was living at an address in Harrisburg. Law enforcement obtained an arrest warrant and went to the location. After knocking, they heard much commotion, causing them to believe someone was inside. After a forcible entry, police found Vasquez-Algarin and the tools of a drug dealing operation: narcotics, packaging material, and ammunition. The homicide suspect was not present.

At the suppression hearing, the Deputy US Marshal testified that his information regarding the homicide suspect’s living situation was from another law enforcement officer and from informants on the street. That was it. The district court determined that law enforcement had a reasonable belief and probable cause to believe that the suspect was living at the property, and that the entry with only an arrest warrant was constitutionally permissible.

At trial, the Marshal added that he knocked for a long time at the property because it was not the suspect’s address of record and he wanted to gain contact with someone inside to obtain consent to search the premises.

Vasquez-Algarin appealed the denial of suppression, arguing that law enforcement needed a search warrant to enter his apartment because probable cause to believe that the subject of the warrant resided there was both required and lacking. Law enforcement only needs an arrest warrant where they reasonably believe that the subject of an arrest warrant lives at the property where the warrant is to be executed; if they are going to make the arrest at the property of a third party, they must first secure both an arrest warrant and a search warrant. The issue in the case, therefore, was what standard is needed to establish a “reasonable belief,” thereby only requiring an arrest warrant.

The panel held that that reasonable belief in this context is equivalent to probable cause. A review of the Supreme Court’s use of “reasonable belief” in Fourth Amendment cases demonstrates that the Court has utilized that term and probable cause interchangeably. More importantly, an individual’s home is the pinnacle of Fourth Amendment protections. Allowing police to enter armed with an arrest warrant and some suspicion that an individual lives there would undermine those protections.

Police made a mistake in this case: they wrongly believed that a wanted suspect lived in Vasquez-Algarin’s home. That belief was not supported by probable cause; the Marshal’s information was entirely based on the word of another law enforcement officer and informant tips. There was no specificity in the record about the information received (i.e., the number of informants, whether the information from informants was first or secondhand, the reliability of the informants, the specific information from the other law enforcement officer, or the basis for that officer’s statements). Moreover, the Marshal created more doubt about the information’s trustworthiness in his trial testimony.

Even if there was probable cause to believe that the suspect was living in VasquezAlgarin’s home, there was not probable cause to believe that the suspect was home when police went there. Mere signs of life in the apartment, even though suspicious, did not establish probable cause.

Law enforcement had not acted with sufficient information to forcibly enter the home, nor had they acted in reliance on binding precedent. Under all of the circumstances, a reasonably well-trained officer should have known that the search was illegal. Accordingly, the prosecution could not avoid suppression by invoking the good-faith exception to the warrant requirement.

Score one for privacy.

 

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