Superior Court rules on forfeiture of right to counsel

By Burt Rose

In Com. v. Kelly, 2010 WL 3506144, 2010 PA Super 165, No. 112 MDA 2009 (Sept. 9, 2010), the Superior Court of Pennsylvania ruled on a DUI appeal from a Judgment of Sentence from the Court of Common Pleas of York County. The Panel was composed of Judges BOWES, McEWEN, and CLELAND, who wrote the Opinion. Mr. Kelly argued that he was forced into accepting a guilty plea because the trial court erred in granting his court appointed counsel’s motion to withdraw on the eve of his trial. However, the Panel ruled that Kelly had intentionally forfeited his right to counsel, and so his guilty plea was upheld.

This was not a waiver of counsel case; Kelly never formally waived his right to counsel, nor did the trial court engage Kelly in a Rule 121 colloquy for waiver of counsel. The trial court, instead, denied Kelly’s right to counsel on another basis: intentional forfeiture by engaging in dilatory conduct.

While neither the United States Supreme Court nor the PA Supreme Court has expressly ruled on the level of misconduct or defiance that may give rise to forfeiture, the Superior Court relied upon the decision of the Third Circuit Court of Appeals in United States v. Goldberg, 67 F.3d 1092 (3d Cir.1995), where that court said that once a defendant has been warned that he will lose his attorney if he engages in dilatory tactics, any misconduct thereafter may be treated as an implied request to proceed pro se and, thus, as a waiver of the right to counsel.

Judge Cleland held that, under the circumstances of this case, Kelly had knowingly forfeited his right to counsel because he “was a criminal defendant who had been unwilling to cooperate with all three counsel assigned to him; who argued all counsel were incompetent because they refused to argue what he believed was the law; who, the day after his pro se motion to withdraw his first guilty plea was granted, filed pro se an omnibus pre-trial motion seeking suppression of evidence on a ground the trial court had already addressed (validity of search warrant); who wanted a counsel, but only one who would please him; who treated appointed counsel with disdain; whose trial had been already postponed because he could not agree with assigned counsel (counsel 2); who had been warned by the trial court that failure to cooperate with assigned counsel (counsel 3) would result in him representing himself pro se at trial; who sought to have other counsel appointed to him (who would have been counsel 4) and postpone the trial instead of trying to cooperate with counsel 3; and who clearly was not interested in listening closely what (trial) Judge Blackwell was telling him, consumed as he was in making his point counsel were ineffective and he knew the law better than assigned counsel. We have no difficulty concluding the trial court did not err in finding Kelly intentionally forfeited his right to counsel.”

Superior Court voids DUI conviction as per Melendez-Diaz v. Massachusetts

By Burt Rose

On Sept. 8, 2010, the Superior Court of Pennsylvania decided the case of COMMONWEALTH of Pennsylvania v. Jennifer Ann BARTON-MARTIN, Appellant, 2010 WL 3491942, 2010 PA Super 163, No. 180 MDA 2009, an appeal from a Judgment of Sentence for DUI entered in the Court of Common Pleas of York County. The case was before Judges MUSMANNO, LAZARUS and OLSON. Judge Olson wrote the Opinion.

Appellant challenged the admission of blood-alcohol test results offered to establish her guilt under § 3802(c) based on the recent United States Supreme Court decision in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009). In Melendez Diaz, the Supreme Court held that lab reports admitted to establish a defendant’s guilt constituted testimonial statements covered by the Confrontation Clause of the United States Constitution and that such reports were inadmissible unless the defendant had the opportunity to cross-examine the lab analyst at trial. Given the United States Supreme Court’s holding in Briscoe v. Virginia, 130 S.Ct. 1316 (2010), Melendez-Diaz will apply retroactively. Because the Commonwealth did not summon at this trial the technologist who analyzed Appellant’s blood and prepared Appellant’s lab report (only the hospital laboratory administrative director and custodian of records testified), the Panel concluded that the Appellant’s rights under the Confrontation Clause were violated and that the lab report showing her blood-alcohol content was inadmissible. Without that evidence, Appellant’s conviction under § 3802(c) could not stand and the Court therefore vacated her judgment of sentence as to that offense.

Seventh Circuit issues ruling on Miranda. When is custody really custody?

By Burt Rose

In UNITED STATES of America v. Michael S. SLAIGHT, Appellant, No. 10-1443 (September 2, 2010), an appeal before the United States Court of Appeals for the Seventh Circuit, the defendant had pleaded guilty to possession of child pornography, subject to a right to appeal the denial of his motion to suppress incriminating statements that he had made when questioned by federal officers at a police station. The Court held that when police create a situation in which a suspect reasonably does not believe that he is free to escape their clutches, he is in custody and, regardless of their intentions, he is entitled to the Miranda warnings.

Here, nine officers drove up to the Appellant’s house with a search warrant to seize his computer, broke in with a battering arm, strode in with pistols and assault rifles at the ready, and when they found him naked in his bed with a woman, ordered him, in an authoritative tone and guns pointed at him, to put his hands up. The police asked the Appellant to accompany them to the police station. They told him that he was not under arrest and that he was always free to leave. At the station, they put him in a small windowless and locked interrogation room. The officers were polite and repeatedly told Slaight that he was free to terminate the interrogation and leave. However, the Court stated that the average person in Slaight’s position would not have felt free to leave the interview room: “Any other conclusion would leave Miranda in tatters.” The key facts were the show of force at Slaight’s home, the protracted questioning of him in the claustrophobic setting of the police station’s “Lilliputian interview room”, and the likelihood that he would be formally placed under arrest if he tried to leave because the government already had so much evidence against him.

Superior Court rules on oral motion for lineup, use of experts on memory

By Burt Rose

In Commonwealth v. Robinson, 2010 WL 3398967, 2010 PA Super 159 (Aug 31, 2010) (452 EDA 2009), a Panel of the Superior Court of Pennsylvania affirmed a judgment of sentence from the Court of Common Pleas of Philadelphia County, Criminal Division, CP-51-CR-0009722-2007. The panel was composed of Judges FORD ELLIOTT, GANTMAN and POPOVICH. The Opinion was written by President Judge Ford Elliott.

The Appellant argued that the preliminary hearing court had erred in refusing his oral motion requesting a lineup identification procedure prior to the holding of appellant’s preliminary hearing. However, the motion was made immediately prior to the scheduled preliminary hearing, so that the appellant had waived any objection to the court’s ruling on his request by not filing a written motion for a lineup in advance of the preliminary hearing. The Panel ruled that there is a duty of a defendant to seek a lineup, in writing, prior to the preliminary hearing. Although the lower court would have been within its discretion to overlook the failure to make the request until the day of the scheduled preliminary hearing, since the request was not made in advance, or in writing, the appellant cannot now complain about the court’s decision to deny the request.

The Panel also rejected a claim of error in the court’s denial of his motion to allow expert defense testimony of a nationally recognized expert in the field of human memory, perception, and recall, regarding tendencies of eyewitnesses or victims of crime in identifying suspects. The Appellant had proffered the testimony to address such topics as weapon focus, reduced reliability of cross-racial identifications, and the decreased accuracy of an eyewitness in a high-stress, traumatic, criminal event. The Panel adhered to the principle that expert opinion may not be allowed to intrude upon the jury’s basic function of deciding credibility. The testimony at issue here was of the same general type that the Pennsylvania Supreme Court has considered and found to, if not supplant the jury’s role in assessing the credibility of a witnesses, infringe upon that role.

Superior Court rules on right to remain silent

By Burt Rose

On August 13, 2010, the Superior Court decided the case of Com. v. Molina, 2010 WL 3191784, No. 1948 WDA 2007, an appeal from the Court of Common Pleas of Allegheny County. The Panel was composed of Judges SHOGAN, COLVILLE and CLELAND.

In this case, the police were investigating a woman’s disappearance. During the investigation, police developed information that Mr. Molina may have been involved in the crime. The investigating officer tried to talk with Molina about the allegations. Over the phone, Molina denied any involvement and refused to go to the police station to talk about the case as the officer requested. The prosecutor referred to this testimony in his closing speech as a factor in deciding guilt.

The question was whether Molina had a protected right to remain silent and whether it was triggered by the officer’s investigation. The Panel concluded that the Commonwealth cannot use a non-testifying defendant’s pre-arrest silence to support its contention that the defendant is guilty of the crime charged. Judge Cleland’s Opinion noted that the right to remain silent does not come into existence only when a suspect is induced to remain silent by a Miranda warning. As a matter of Pennsylvania constitutional law, the application of the privilege is not limited to persons in custody or charged with a crime; it may also be asserted by a suspect who is questioned during the investigation of a crime. Thus, because the privilege against self-incrimination applies to pre-arrest settings, the trial court erred when it overruled the defense objection to the Commonwealth’s argument that Molina’s refusal to talk to police investigating his involvement in the victim’s disappearance was evidence of his guilt.*

Although the Commonwealth put forward substantial evidence against Molina, it was not overwhelming. Additionally, the error was not so insignificant that it could not have contributed to the verdict. Therefore, a new trial was required.

*Please note that the prosecution argued that the failure to seek a mistrial constituted a waiver of the issue. The Panel reaffirmed the principle that when an objection is overruled, the failure to request curative instructions or a mistrial does not result in waiver. When defense counsel objected to certain remarks of the prosecutor and the trial judge overruled the objection, this preserved the matter for appellate review.

New York Times Opinionator—Supreme Court to consider voting rights of convicted felons

July 29, 2010, 9:47 pm
Voting Behind Bars
By LINDA GREENHOUSE

Another public conversation about race may be the last thing the Obama administration wants, but thanks to the Supreme Court, one is very likely on the way.

It has been nearly three months since the court “invited” — that is to say, ordered — Solicitor General Elena Kagan to “express the views of the United States” on whether laws that take away the right to vote from people in prison or on parole can be challenged under the Voting Rights Act as racially discriminatory.

Click for entire story

Superior Court rules that pine tree air conditioners do not justify stop in DUI case

By Burt Rose

The Superior Court of Pennsylvania has decided the case of COMMONWEALTH of Pennsylvania v. Harry A. ANTHONY, Sr., Appellant, 2010 WL 2804337, No. 1544 WDA 2008, 2010 PA Super 127 (July 19, 2010), an appeal from a Judgment of Sentence from the Court of Common Pleas of Armstrong County. The case was before Judges MUSMANNO, BENDER and BOWES. Judge Bender wrote the Opinion for the Panel.

Anthony was convicted of Driving Under Influence of Alcohol or Controlled Substance and Violation of Vehicle Equipment Standards, 75 Pa.C.S. §§ 3802(d)(1)(i), (iii), (d)(2), and 4107(b)(2). The Court ruled that the trial court had erred in denying his motion to suppress evidence of his use of a controlled substance on the basis that the arresting officer lacked reasonable suspicion to conduct a stop based upon a purported violation of the Motor Vehicle Code. The condition the trooper cited, i.e., three air fresheners hanging from Anthony’s interior rearview mirror (the object the trooper had seen was merely “a gaggle of the ubiquitous pine tree-shaped air fresheners commonly marketed for use in automobiles”), was not unlawful and therefore was not a sufficient basis for a traffic stop under 75 Pa.C.S. § 4524(c) because those objects did not “materially obstruct, obscure or impair the driver’s vision through the front windshield.”

Accordingly, the Court concluded that the trial court had erred in denying Anthony’s suppression motion. Because all of the evidence produced by the Commonwealth was obtained as a result of this unlawful stop, the charges at issue in this appeal were dismissed and the defendant was discharged.