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

By Lloyd Long, long@krasnerlong.com


Commonwealth v. Cash, 700 CAP (Todd, J.) (May 25, 2016)

Cash snuck up behind the victim, who was washing his car, and shot him in the back of the head. He was identified by multiple sources including surveillance video and an off-duty police officer. At trial, Cash testified that the victim had been stalking him with what Cash believed to be nefarious motives over the prior few days. Cash stated he shot the victim out of fear and self-preservation. The jury rejected this claim; they convicted Cash of first degree murder and sentenced him to death.

On appeal, Cash argued that the evidence was insufficient because he acted out of fear. The Court rejected that claim — the jury was free to disregard Cash’s version of the events. For the same reason, the trial court did not abuse its discretion by denying Cash’s weight of the evidence claim.

Cash also argued that the trial court erred by declining to give the voluntary manslaughter charge he requested. This claim, too, failed. No evidence showed that Cash acted under serious passion caused by adequate provocation. It showed that he deliberately snuck up behind the victim and executed him. Even if Cash’s version of the events was believed, it did not warrant a voluntary manslaughter charge. Cash claimed the victim had last pursued him 15 or 30 minutes prior to the shooting. That period of time was more than legally adequate to cool off; it was too long to establish sudden and intense passion.

The prosecutor did not commit misconduct by referring to the killing as an “execution” or by referencing “guerilla warfare” during his closing. The trial court struck the reference to an execution and instructed the jury to disregard it. Moreover, “execution” fairly described the killing. And the references to “guerilla warfare” were to the victim’s actions, not those of Cash.

While cross-examining Cash, the prosecutor confronted him with a statement given by another individual. The statement contained a double hearsay accusation that Cash had robbed a child. Defense counsel objected and moved for a mistrial on two theories: a) the prosecutor’s suggestion that calling failing to call the declarant violated the Cash’s right to not present a defense; and b) prejudice. The trial court denied the motion but offered a curative instruction that Cash refused.

On appeal, Cash argued that the line of questioning was irrelevant, constituted hearsay, and violated his right to confrontation. Even though the trial court addressed these claims in its opinion, the Supreme Court refused to review them. They were waived — Cash objected on one basis at trial but presented a different theory seeking relief on appeal.

Cash also argued that the lower court should not have let the jury watch the surveillance video in slow motion because it was irrelevant and unduly prejudicial. The Court rejected this claim because playing the video in slow motion was more probative than prejudicial and enhanced the jury’s understanding of the events.

After the guilt phase, the Philadelphia Inquirer published an article discussing the upcoming penalty phase and referencing Cash’s prior unrelated charges and convictions. Trial counsel sought to individually colloquy jurors about whether they had seen the article. The trial court denied this request because it had repeatedly instructed the jury to avoid news accounts of the case and had no reason to believe the jurors had not followed those instructions. It so instructed the jury again after defense counsel’s request and asked the jury collectively whether they had followed those instructions. No juror replied in the negative.

The Court noted that individual colloquy is the preferred procedure when prejudicial material is published during trial, but a group colloquy may be sufficient depending on each case’s facts. Here, there were daily instructions to avoid media coverage and a collective colloquy after the article was printed. There was no proffer as to why such precautions were inadequate.

During the penalty phase, an individual testified that Cash previously robbed him in a police precinct’s holding cell. Cash was not convicted of this offense, which made it a non-aggravator. Trial counsel did not object until the next day and the trial court instructed the jury to disregard the testimony completely. The Court rejected his claim for a new penalty hearing. There was no indication the jury did not follow the instruction.

Finally, Cash was not entitled to relief due to the trial court’s decision to shackle him during the penalty phase. Officials from the Sheriff’s Department warned the trial court about Cash’s behavior while in custody and suggested shackling his legs underneath his clothing. Trial counsel initially objected but abandoned the protest shortly thereafter. Cash decided he wanted to be in shackled. Efforts were made to obscure the shackling from the jury, and trial counsel did not object to any of the procedures. The initial objection was held waived.

The Court also determined that imposition of death was not a result of passion, prejudice, or arbitrariness; it was based on the evidence.

Justice Wecht concurred and wrote separately to state that although the slow- motion video was warranted in this case, the probative value of such evidence is subject to considerable risk; its admissibility requires considerable judgment. Determinations of admissibility must, in a case-by-case basis take into account whether slow motion video so enhances graphic and violent crime to become unfairly prejudicial.


Commonwealth v. Lancit, 2016 PA Super 102 (Dubow, J.) (May 18, 2016)

A Municipal Court judge in Philadelphia granted Lancit’s motion to suppress physical evidence. The Commonwealth sought pretrial review in the Court of Common Pleas. Judge Brown reversed the suppression order and remanded the matter for trial.

A conviction followed a stipulated trial. Lancit sought two bites at the apple and filed a petition for writ of certiorari in the Court of Common Pleas. Judge Street reviewed the case and vacated Lancit’s judgments of sentence after finding that suppression was required. The Commonwealth filed a motion for reconsideration based on the law of the case doctrine; Judge Street reversed herself and reinstated the judgments of sentence.

Lancit appealed to the Superior Court asserting that a post-trial reviewing court had greater power than a pre-trial reviewing court. The panel found no legal support for that claim.

The law of the case doctrine applies in three instances: 1) after remand, a trial court may not change a ruling of the remanding appellate court; 2) in a second appeal of a case, an appellate court may not decide an issue differently than the same appellate court in the first appeal; and 3) when a case is transferred between two courts of equal jurisdiction, the receiving court may not alter a legal decision already made by the sending court.

Both Judges Brown and Street are judges of the Philadelphia Court of Common Pleas and sat in an appellate capacity in the same case on the same issue. By deciding the same issue in the same case differently than Judge Brown, Judge Street’s original holding violated the law of the case doctrine (see no. 2 above). The subsequent decision to grant reconsideration and reinstate the judgments of sentence was, therefore, correct.

Commonwealth v. Phillips, 2016 PA Super 103 (Dubow, J.) (May 19, 2016)

Phillips was convicted of VUFA (persons not to possess) and possessing an instrument of crime (unlawful body armor). The contraband was found by police responding to a 911 call made by a woman Phillips was beating with the gun. This was Phillips’ second go around: his judgments of sentence were previously vacated by the Superior Court because the trial court had not conducted a proper waiver of counsel colloquy prior to the first trial.

Phillips continued down his path of bad decisions and represented himself at trial again. His first claim on (a counseled) appeal was that the trial court was required to advise him of the applicable sentencing guidelines prior to allowing him to proceed pro se. Pa.R.Crim.P. 121(A)(2)(c) only requires the trial judge to inform a defendant of the permissible range of sentences, i.e. the maximum allowable by law, not the guidelines. If the Supreme Court wanted to include the guidelines in that rule, it could have done so.

Phillips also thought that the trial court should have conducted a second waiver colloquy prior to litigating his motion in limine. This was a case of first impression in the Commonwealth. The panel held, consistent with every other jurisdiction that has examined the issue (except Florida, which has a rule of criminal procedure specific to this situation) that once there is an adequate waiver of counsel, there is no requirement for another waiver colloquy absent a substantial change in circumstances. There was none here.

Finally, Phillips challenged the admissibility of statements by the victim, who did not testify. Her 911 call was played and a responding officer testified to statements she made. Phillips claimed on appeal that this evidence was impermissible under Rule 404(b). This argument was waived. His objections in the trial court were to the relevance and hearsay nature of these statements, not under Rule 404.

Commonwealth v. Aikens, 2016 PA Super 100 (Mundy, J.) (May 20, 2016)

Aikens was convicted of unlawful contact with a minor. The jury acquitted him of IDSI, and a number of other sexual offenses were nolle prossed. He claimed that due to the acquittal, the trial court should have graded the unlawful contact as a felony of the third degree rather than the first.

The Superior Court affirmed. This case was different than Commonwealth v. Reed, 9 A.3d 1138 (Pa. 2010), in which the Supreme Court held that where a jury acquitted on various attempted sexual offenses (all of which were of different gradations), but convicted Reed of unlawful contact, the lower grading should apply. That holding was premised on the fact that the sentencing court had to guess the target offense of the unlawful contact.

Here, the trial court specifically instructed the jury that the purpose of the unlawful contact was to commit IDSI; thus, the acquittal on the substantive IDSI count did not require the same result as Reed. Based on the instructions, there was no question about identifying the target offense, and the grading issue was resolved by the verdict.

Commonwealth v. Ross, 2016 PA Super 106 (Stevens, J.) (May 23, 2016)

Ross pleaded guilty in 1997 to third-degree murder and related charges and was sentenced to 30-60 years. He’s been filing PCRA petitions ever since.

This time around, he claimed that Peugh v. United States 133 S.Ct. 2072 (2013) met the retroactivity exception to the PCRA’s timeliness requirement. In Peugh, the USSCheld sentencing a defendant under guidelines promulgated after the criminal offense is an ex post facto violation.

The test of whether a new rule fits the “retroactive constitutional right” exception to the timeliness provision of the PCRA requires a two -pronged inquiry. First, there must be a new constitutional right. Second, that right must be held by the recognizing court to apply retroactively. The USSC has not held that Peugh applies retroactively. Under the substantive/procedural framework for making that determination, moreover, all indications are that it will not.

Judge Bender concurred. He was of the opinion that the majority unnecessarily reviewed the substantive/procedural dichotomy. Ross sought to invoke the new constitutional rule exception to the PCRA, which requires that the court recognizing the new rule also hold that it applies retroactively. Because the USSC has not, the majority did not need to do an analysis as to whether it would in the future.

Commonwealth v. Korn, 2016 PA Super 109 (Stevens, J.) (May 25, 2016)

This was a Commonwealth appeal from an order suppressing evidence. State troopers used a confidential informant to make controlled buys of Xanax from an individual named Murray out of his apartment. They obtained a search warrant for the entire apartment, listing Murray as the possessor based on the informant’s claim that he was the only person living there.

During execution of the search, troopers knocked on a locked bedroom door and Appellee emerged after some time. Xanax was on his person and police found thousands of pills and a large amount of money in a lockbox in that bedroom. This was not the room in which Murray had previously made sales.

The trial court suppressed the items found in Appellee’s room on the basis that the apartment contained more than one living unit, i.e. separate living quarters for the multiple individuals residing in the apartment. It further found that the warrant failed to describe the particular living unit that was to be searched. There was, however, ample probable cause to search Murray’s room and any common areas.

The Superior Court reversed. Neither precedent nor the evidence at the suppression hearing supported the lower court’s finding that Appellee’s bedroom was a separate living unit. It was part of the same apartment described in the warrant, there was no dead bolt or key entry, and it did not have a separate mailbox, address, or private entry. The Pennsylvania Constitution does not preclude the search of an entire single unit home when probable cause exists to believe that contraband is located in a particular room of the home.

Judge Dubow dissented and would have held that the search warrant was overbroad. In her view, the case was controlled by In the Interest of Wilks, 613 A.2d 577 (Pa. Super. 1992), which required suppression. The certified record indicated that the drug transaction took place in what was presumably Murray’s room, but there were multiple bedrooms. The warrant listed only Murray as the property’s owner, and police were on notice at the time of the execution that the multiple bedrooms capable of being locked out from entry through the common areas; Appellee was locked in one of them. The search warrant affidavit only established probable cause as to the areas accessible to and controlled by Murray; any further search was overbroad.

Commonwealth v. Rainey, 2016 PA Super 110 (Ford Elliott, P.J.E.) (May 25, 2016)

Rainey was convicted in 1995 of first degree murder. He received no relief during state appellate and post-conviction review. In federal habeas proceedings, the district court held that the evidence at trial was insufficient to support a finding of first degree murder but denied relief based on a lack of prejudice: even though he was not convicted of second degree murder, the evidence would have been sufficient to support such a verdict and the same sentence would have been imposed. The Third Circuit affirmed.

Rainey sought to expunge his conviction for first-degree murder. The trial court ruled against him and he appealed.

The Superior Court affirmed. Commonwealth v. Wallace, 97 A.3d 310 (Pa. 2014) holds that no right to expungement exists during incarceration. Nor was Rainey “acquitted” of first degree murder.

Commonwealth v. Watson, 2016 PA Super 111 (Stevens, P.J.E.) (May 26, 2016)

Watson was convicted of robbery, burglary, conspiracy, and gun charges after a bench trial. He appealed denial of dismissal of the charges against him based on Rule 600. Trial did not commence until 908 days after the criminal complaint was filed. The trial court determined that over 700 of the days were attributable to defense continuance requests.

The panel affirmed. Precedent does not require that defense counsel secure a defendant’s approval prior to requesting a continuance. Rather, a continuance is a strategic determination entrusted to counsel. Nor is the Commonwealth responsible for such delays. They are beyond its control, and here, the record did not reflect that it had been dilatory in bringing Watson to trial.

Commonwealth v. Hill, 2016 PA Super 113 (Musmanno, J.) (May 31, 2016)

Hill contracted to do home improvements and bailed with the money and little to show for it. He was convicted of theft by unlawful taking or disposition, deceptive or fraudulent business practices, and home improvement fraud. He was sentenced to consecutive one to three year terms of imprisonment on each conviction.

Hill claimed that the sentences should have merged. The panel agreed in part. Theft by unlawful taking did not merge with the other offenses, as only that conviction required proof that Hill exercised unlawful control of moveable property of another. Deceptive business practices (course of business) and home improvement fraud (failure to perform/deliver) each required different elements than theft by unlawful taking.

The elements of deceptive business practices are each contained in home improvement fraud, though the latter offense has additional elements. Those offenses, therefore, merge for sentencing purposes. The case was remanded for resentencing.

Commonwealth v. Leed, 2016 PA Super 111 (Fitzgerald, J.) (June 1, 2016)

Police suspected that Leed had marijuana in a storage facility based on reliable confidential informants. A police canine alerted at the facility, and a warrant was issued. A search revealed pounds of marijuana, thousands of dollars, paraphernalia, and documents identifying Leed.

Leed filed and litigated a motion to suppress evidence from the storage locker because the information contained in the warrant was stale. Specifically, he challenged the canine sniff, which the affidavit stated occurred exactly one year prior to its issuance (the affidavit asserted the sniff occurred on March 21, 2013 and the warrant was dated March 21, 2014).

The detective who authored the affidavit testified, over objection, that the sniff date was a typographical error and that it occurred the same day that the warrant was drafted and approved.

The trial court stated that it would disregard the detective’s assertion of error, but nevertheless concluded that the date was a typo based on a commonsense reading of the affidavit. The Superior Court affirmed. In light of the chronology and other factual assertions in the warrant, plain common sense indicated that the date of the canine search was an error.

United States v. Nerius, Third Circuit, No. 15-2054 (May 25, 2016) (Shwartz)

While in custody on another federal sentence, Nerius bit a corrections officer’s finger and broke the sprinkler in his cell, causing flooding. He pleaded guilty to various crimes and was sentenced as a career offender to 37 months. After the USSC decided Johnson v. US, 135 U.S. 2551 (2015) (declaring the residual clause of the career offender scheme void for vagueness), Nerius was resentenced to 36 months.

Nerius claimed his new sentence was vindictive. The original sentence was at the bottom of the career offender guidelines; the later sentence was at the top of the non-careeroffender range. A vindictive sentence is presumed where a new sentence is imposed that is greater than an original sentence after a successful appeal. That was not the case here. The length of the new sentence was less than the original. A presumption of vindictiveness only considers the length of the sentence, not its relative position of the sentence on the applicable guidelines range.

Accordingly, Nerius was required to show actual vindictiveness. He did not even attempt to do so. The judgment of sentence was affirmed.



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