PBI Criminal Law Update December 10, 2014

12/10/2014
PBI Criminal Law Update
December 10, 2014
Angela Raver, PDAA Legal Support Prosecutor
Mike Piecuch, Snyder County DA
SENTENCING ‐ MANDATORIES
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Com. v. Newman, 99 A.3d 86 (Pa. Super. 8/20/2014) (Montgomery) (en banc) p.88
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HELD: mandatory minimum sentencing provisions of 42 Pa.C.S. § 9712.1 (“guns & drugs”) are unconstitutional and non‐severable
Citing Alleyne v. United States, 133 S.Ct. 2151 (2013): any facts (other than prior conviction) that trigger an increase in a mandatory minimum sentence are elements of the offense – must be submitted to the trier of fact and proven BRD
Bizzel (Pa.Super. 12/2/14)  re: 18 Pa.C.S. § § 6317 (school zone)
Fennell & Cardwell (Pa.Super. 11/21/14)  re: 18 Pa.C.S. § 7508 (drug weights)
Under review by SCOPA
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Hardy (Chester County)
Johnson (Berks County)
CRIMINAL PROCEDURE – VENUE 
Gross, 101 A.3d 28 (Pa. 9/24/14) (Monroe) p. 72
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Def. charged in Monroe with Conspiracy and as an accomplice in her bf’s illegal possession of a firearm she bought for him in Northampton
He used the gun to kill one state trooper and wound another
HELD: Commonwealth bears the burden of proving venue (where case will be heard) by a preponderance of the evidence Venue assumes jurisdiction and is not an element of the offense
HELD: Venue was proper bc the conspiracy was a continuing course of conduct as to def. permitting her bf to possess the firearm ‐ the chain of events entered Monroe County
Could properly be charged as an accomplice
Remedy is transfer, not dismissal
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TENDER YEARS TESTIMONY
Williams, 84 A.3d 680 (Pa. 1/21/14) (Berks) p.65
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CW filed motion to allow 8 yo sex abuse vic to testify re: closed circ
42 PACS 5985: testimony by contemporaneous alternative method
Ok where F2F testimony would result in serious emotional distress that would substantially impair child’s ability to reasonably testify
Trial court required vic’s therapist to testify, then gave deft access to vic’s MH diagnosis & txt info for rebuttal purposes
HELD: 5985 hrg not a critical stage of prosecution for Confrontation Clause purposes
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5985 motion DN permit broad inquiry into child’s MH status/history
Deft DN have right to present informed expert rebuttal testimony
TENDER YEARS HEARSAY
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Walter, 93 A.3d 442 (Pa. 2/18/14) (Franklin) p. 66
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Deft charged w sexual abuse of 4 yo daughter
CW moved to admit vic’s stxts per 42 PACS 5985.1 (hsay ≤ 12 yo):
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1) hsay evidence is relevant & has sufficient indicia of reliability, and
2) vic must either testify or be deemed unavailable
PA Super: trial ct erred in admitting TYH after vic ruled not comp
HELD: child’s competency is not a prerequisite for adm of TYH
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Competency & admissibility of TYH are
distinct legal concepts
Deft DN challenge stxts as testimonial under Crawford
CYS worker? Foster mother? Family friend?
PRE‐TRIAL IDENTIFICATION
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Lark, 91 A.3d 165 (Pa. Super. 4/9/14) (Philadelphia) p. 81
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HELD: Child’s pre‐trial identification of her father’s killer from a photo array should not have been suppressed absent police misconduct
Mere presence of child’s mother during her review of a photo array did not taint the identification or make it unreliable
No suggestive pre‐trial identification procedure 2
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EXPERT TESTIMONY RE: FALSE CONFESSIONS
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Alicia, 92 A.3d 753 (Pa. 5/28/14) (Philadelphia) p. 69
HELD: Expert testimony inadmissible as to false confessions
Truth or falsity of a defendant’s confession is within the jury’s determination of credibility
Manner of testimony – general or specific – is irrelevant
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EXPERT TESTIMONY RE: EW ID
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Walker, 92 A.3d 766 (Pa. 5/28/14) (Philadelphia) p. 68
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HELD: Expert testimony regarding eyewitness identification no longer per se inadmissible – discretionary with the trial court
Limited applicability as to cases and expert testimony in general
Does not infringe on jury’s determination of credibility, but allows them to make a more informed decision Compare Com. v. Alicia, decided the same day
Pa.R.E. 404(b) – PRIOR ABUSE
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Arrington, 86 A.3d 831 (Pa. 2/28/14) (Phila.) p.67
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Deft arrested for abusing/threatening GF ‐> parole detainer
Deft freed from custody when GF recanted
10 days later GF killed & Deft later convicted H1 w/ DP
404(b) evidence:
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Deft assaulted 3 other GF’s for breaking up or interacting w/other men
Deft assaulted romantic rivals and threatened the GFs’ families
HELD: proper to show Deft acted re: common scheme/design
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Relevant to show Deft willing to use violence/
threats to prevent a GF from leaving him
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EVIDENCE ‐ RELEVANCY
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Williams, 91 A.3d 240 (Pa. Super. 4/30/14 (Dauphin) p.82
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HELD: Evidence of intoxication during the events that are the subject of the witness’s testimony is admissible
Evidence of the victim’s blood alcohol content should have been admitted as relevant and more probative than prejudicial
SCIENTIFIC EVIDENCE ‐ EDR
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Safka, 95 A.3d 304 (Pa. Super. 6/25/14) (Allegheny) p.85
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HELD: Data recovered from an Event Data Recorder (EDR) is not novel scientific evidence and does not violate the Frye test
No legitimate dispute regarding the reliability of EDR
Considered “accepted technology” in scientific community – used by automobile manufacturers and accident reconstruction experts
Admissible to show defendant’s vehicle’s speed
MIRANDA & PLACED JUVENILES
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In Re: C.O., 84 A.3d 726 (Pa. Super. 1/3/14) (Monroe) p.73 
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17 yo juvie adjud delinq for sex offenses & placed at resid txt facility
Counseling (& judge) encouraged disclosure of all victims
Deft signed confidentiality waiver: new disclosures will be reported
Deft’s new disclosure to counselor & CYS leads to prosecution
HELD: suppression of disclosures upheld
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BC deft subjected to custodial interrogation, Miranda warnings required
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SEARCH & SEIZURE – POLICE ENCOUNTER
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Lyles, 97 A.3d 298 (Pa. 7/21/14) (Philadelphia) p.70
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HELD: Police requesting identification did not elevate mere encounter to investigative detention
Fourth Amdt. not implicated
High crime area, defendant would not keep hands out of his pockets, cocaine found
Additional act of officer writing down defendant’s information did not change level of detention
S&S – PROTECTIVE SWEEPS & PLAIN VIEW
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Hudson, 92 A.3d 1135 (Pa. Super. 5/30/14) (Phila.) p.83
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Traffic stop due to broken tail light
Protective sweep conducted after deft reached to center console
Pill bottles recovered from console ‐> suppression granted
HELD: suppression affirmed
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Protective sweep for weapons did not justify search of bottles
While pill bottles were in plain view, the nature of their contents as contraband was not immediately apparent
Re: Gary: only PC required to search bottles?
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Depends on scope of the PC
S&S – OBSERVED DRUG DEALS
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Thompson, 93 A.3d 478 (Pa. Super. 5/22/14) (Phila.) p.82
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Police receive numerous citizen complaints about drug deals
Experience PO observed H2H trans: cash for stashed baggie
Pills found on buyer; cash found on deft
HELD: RS to detain deft while buyer searched
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Alleyne issue:
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Judge imposed mando min per § 7508
Legality of sentence issue raised sua sponte
Sentence vacated bc triggering facts were not submitted to fact‐finder nor proven BRD
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S&S – CELL PHONES
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Stem, 96 A.3d 407 (Pa. Super. 7/11/14) (Westmoreland) p.86
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HELD: Search of defendant’s cell phone incident to arrest was unconstitutional pursuant to Riley v. California
Phone searched incident to arrest for domestic violence
Suppression of child pornography found on phone affirmed
Cell phone unrelated to arrest and no exigency to search S&S – CELL PHONES
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Wright, __ A.3d __ (Pa. Super. 8/29/2014) (Allegheny) p.89
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Police seized the cell phone from during the defendant’s arrest w/o a warrant Police suspected it contained communications between the defendant and the victim (his former girlfriend)
HELD: suppression affirmed
Rationale: although the police were lawfully in a place to observe the phone in plain view, they lacked probable cause or exigent circumstances to seize or search the phone’s contents without a warrant. S&S – HOME VISITS BY PAROLE OFFICERS
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Smith, 85 A.2d 530 (Pa. Super. 1/31/14) (Delco.) p.74
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Deft released on state parole Deft signed conditions & GF signed home provider agreement
During home visit, PO discovered marijuana in basement
Search led to more evidence seized & confession
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HELD: suppression denial affirmed
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Home visit = walk through of common areas
Home visits are NOT searches under 4th Amdt
No warrant or RS required for “home visit”
Home visit ‐> plain smell ‐> RS for search
Warrantless searches OK if supported by RS
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SPECIFIC OFFENSES – KIDNAPPING Rushing, __ A.3d __ (Pa. 8/18/2014) (Lackawanna) p.70
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Victims had been bound, threatened and sexually assaulted in their own home
SCOPA reversed Superior Court and reinstated the conviction defined “place of isolation” to include: being imprisoned in one’s own home in a manner which makes rescue or discovery unlikely
SPECIFIC OFFENSES – TERRORISTIC THREATS
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Vergilio, ___ A.3d ___ (Pa. Super. 11/6/14) (Montgomery) 
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Defendant made threats to the victim over the phone Defendant was in NJ and Victim was in PA
Matter of first impression
 Does PA trial court have jurisdiction?
Must prove the threat was communicated, which Court held contemplates that it was received HELD: Jurisdiction properly lies in the Pennsylvania trial court because an element of the statute occurred here, i.e., the victim received the threat, a necessary element of a communication
PROBATION CONDITIONS – 5TH AMENDMENT
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Green, 87 A.3d 336 (Pa. Super. 3/5/14) (Adams) p.77
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HELD: Condition of probation that defendant disclose the location of stolen property violated his 5th Amdt. right against self‐incrimination
State cannot threaten penalty for exercising Fifth Amendment right
Applies to facts establishing guilt / leading to incriminating evidence
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SENTENCING – RRRI – VIOLENT BEHAVIOR
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Chester, 101 A.3d 56 (Pa. 9/24/14) (Lancaster) p.72
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Defendant pled guilty to First Degree Burglary in Lancaster County
Had already been convicted of 3 counts of 1° Burglary in Chester County
Defendant argued he did not have a history of present or past violent behavior that would make him ineligible for RRRI sentencing
HELD: First Degree Burglary is violent behavior for purposes of RRRI
HELD: Defendant’s multiple convictions for 1° Burglary constituted a history of violent behavior which made him ineligible for RRRI sentencing
EXPERT TESTIMONY ‐ SOAB
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Prendes, 97 A.3d 337 (Pa. Super. 7/22/14) (Northampton) p.87
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HELD: Sexual Offender Assessment Board expert assessment/opinion falls under the general rules regarding expert witness testimony
May rely on any facts or data so long as they are the type relied on by experts in the field in forming an opinion
Info came from APC, police reports, polygraph report, various documents
Facts/data need not be independently admissible (hearsay) or proven beyond a reasonable doubt for the opinion to be admissible
PBI Criminal Law Update
December 10, 2014
Angela Raver, PDAA Legal Support Prosecutor
Mike Piecuch, Snyder County DA
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