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Archives of PA Criminal Cases (2004) |
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Index of 2004 Archives 3 Months Or Older
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Case Summaries
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COMMONWEALTH v RUTH ANN REDMAN (J.S57018/04 2004 PA SUPER 473)
Superior Court 174 WDA 2004 decided December 17, 2004
The defendant wrote a check for 800 to purchase a car. When the victim attempted to collect the money the
check bounced. After numerous attempts to rectify the situation the defendant was convicted of writing a bad
check and was ordered to pay 800 in restitution and two years probation. During the sentencing hearing the
Commonwealth failed to request any restitution. On appeal the defendant claims the restitution order is illegal.
The Superior Court held under subsection (e) of the bad check statute the Commonwealth was not required to ask
for restitution in this matter.
Click here to read more on the case.
COMMONWEALTH v JERRY FERGUSON (J.S 45015/04 2004 PA SUPER 480)
Superior Court 2068 WDA 2003 decided December 21, 2004
The defendant was involved in an incident where the victim was walking down the street and he was attacked
by the defendant and three other individuals. Prior to trial one co-defendant had pled guilty. During the trial
the Commonwealth presented several eye witness that testified they saw the defendant beat and kick the victim.
The defense called the co-defendant who testified that he alone committed the crime and the defendant was not
involved. On cross-examination the Commonwealth presented him with a letter he had written where he stated he was
innocent of the crime and the other two co-defendants were responsible. This letter was received by the
Commonwealth two days prior to the testimony and had not been turned over to the defense. The defense objected to
the letter has a violation of Brady, but the trial court allowed it into evidence. On appeal the Superior Court
concluded the letter was not exculpatory and therefore not constitutionally material within Brady. In reaching
this conclusion on the definition of "materiality" the court found in this case the letter while it may have been
important in pre-trial planning it is of little value in impeaching the verdict. The definition of "material
evidence" is evidence that must be favorable to the accused so that if disclosed and used effectively it may make
the difference between conviction or acquittal. In this case the evidence presented by the Commonwealth was more
than just circumstantial it consisted of a number of eyewitness testimony and was substantial enough to over come
any reasonable doubt concerning the defendants guilt.
Click here to read more on the case.
IN THE INTEREST OF M.H.M, a minor
Superior Court 185 MDA 2004, decided December 23, 2004
A paint ball gun is a weapon and an air rifle under 18.Pa.C.S.A. Section 912 and 18 Pa.C.S.A. Section
6304
Click here to read more on the case.
COMMONWEALTH v OMARI K. WILSON (J.S30018/04 2004 PA Super 488)
Superior Court 1745 MDA 2003 decided December 28, 2004
When the Commonwealth wants to invoke the school zone enhancement it must be done at the initial
sentencing hearing. If the Commonwealth fails to present sufficient evidence the defendant must be
re-sentenced without the enhancement.
Click here to read more on the case.
COMMONWEALTH v DOMINIC GOINS (J-S67020-04 2004 PA SUPER 489)
Superior Court 3562 EDA 2003 decided December 29, 2004
The defendant was convicted of the summary offenses of Theft by Unlawful Taking or Disposition, and Theft
by Deception, on appeal he argued the convictions should have been merged and the Commonwealth filed to present
sufficient evidence to prove the value of the property taken. The Superior Court agreed and found the sentences
should merge.
Click here to read more on the case.
COMMONWEALTH v KEVIN HUGHES (J-108-2002)
Supreme Court 313 Cap decided December 21, 2004
The defendant was convicted of first-degree murder. During the penalty phase the defendant wanted to
present the mitigating circumstance of lack of a significant history of prior criminal convictions. The defense
was told that if this mitigating circumstance was presented the Commonwealth would be allowed to present as
rebuttal evidence that as a juvenile in 1976 the defendant entered into a consent decree that he had sexually
assaulted a young girl at knife point. Because of this ruling the defendant decided not to pursue this defense.
On appeal the Superior Court concluded that a decent decree can not be used to rebut the mitigating circumstance
of lack of significant history or prior convictions. The Court also found that Section 9711 (a)(2) would not have
furnished an independent basis for the admission of this evidence.
Click here to read more on the case.
COMMONWEALTH v THOMAD DILLION (J.E01002/04 2004 PA SUPER 457)
Superior Court 1772 EDA 2002 decided December3, 2004
The defendant was charged with sexual abuse of the daughter of his former girlfriend. This
abuse continued for a number of years but was never reported until the family had moved away from
the defendant. Prior to trial the Commonwealth wanted to present in its case-in-chief evidence of
physical abuse suffered by the victims mother and brother inflicted by the defendant to explain
why the abuse was not reported earlier. The victims brother had suffered a broken leg. After the
family had moved it was revealed that the defendant was responsible for that injury. The defendant
was found guilty and incarcerated as a result of this. Only after he was incarcerated did the victim
come foreword with her story. The trial court denied the Commonwealth's Motion and the Commonwealth
appealed. On appeal the Superior Court reversed and concluded that the res gestae evidence in
a sexual assault is of particular importance and significant factor. In a sexual assault case the
failure of the victim to make a prompt complaint automatically raises a credibility issue therefore the
Commonwealth can introduce this evidence to explain the reasons for the failure of the victim to make a
prompt complaint.
Click here to read more on the case.
COMMONWEALTH v DIANE LYNN KLOPP (J.A39044/04 2004 PA SUPER 472)
Superior Court 711 MDA 2004 decided December 13, 2004
The defendant was arrested for DUI prior to trial a suppression hearing was held which revealed
the following: She was driving home late at night, the trooper observed her car drifting back and
forth over the double lines. He proceeded to follow her for approximately 1.6 miles. During this
time the car continued to drift across the line four times. At one point in the oncoming lane a car
had to move to the right slightly to avoid her car. The trooper pulled the car over and the
defendant failed the sobriety tests and her blood level was .086. The trial court granted the
suppression motion based on the line of cases that addressed the standard of probable cause for
stopping a vehicle. The Superior Court reversed relying on the holding in Garcia, which held that a
momentary and minor crossing of lines is not enough for probable cause to stop the car. The specific
facts in this case the court felt were not momentary and minor but rather were significant enough to
create probable cause to stop the defendant.
Click here to read more on the case.
COMMONWEALTH v KEVIN ALSTON (J.E02009/04 2004 PA SUPER 471)
Superior Court 1961 EDA 2001 decided December 13, 2004
The defendant was charged with rape and related offenses of his girlfriend's 10 year old
daughter. Prior to trial he requested the commonwealth turn over notes of an interview of the victim
by the district attorney and a court ordered psychiatric evaluation of the victim and to cross-examine
the victim concerning two prior false accusations of sexual assault. The trial court granted these
motions and the commonwealth appealed. The Superior Court held the before the commonwealth is required
to turn over the notes in question it must first determine if they are substantially verbatim
recount of the interview of the victim then they are discoverable and must be turned over to the defense.
As to the psychiatric examination the trial court must first conduct a hearing on the question of
competency and find a compelling reasons for the order. The fact that the victim has made two prior false
accusations would call her competency into question the court still needs to have a hearing to determine if
the evaluation is warranted.
Click here to read more on the case.
COMMONWEALTH v MICHAEL A KEHOE, (J-E01012/04 2004 PA SUPER 469)
Superior Court 326 MDA 2003 decided December 10, 2004
61 P.S. Section 2141 gives categorical authority to a trial judge to order the temporary furlough
of county prisoners serving less than 5 year maximum sentences.
Click here to read more on the case.
FLORIDA v NIXON No. 03-931
United States Supreme Court decided December 13, 2004
INEFFECTIVENESS OF COUNSEL
The defendant was charged with murder and related offenses. The evidence of guilt was
overwhelming. Prior to trial defense counsel tired to negotiate a guilty plea in return for the
district attorney to remove the death penalty. The district attorney would not agree, so the case
proceeded to trial. Prior to trial defense counsel consulted with his client and told him the best
course of action would concede his guilt of the murder and try and save his life in the death penalty
stage. The client was unreceptive to any course of action proposed by the attorney. At no time did
the client accept the opinion of defense counsel nor did he specifically reject it. At trial defense
counsel conceded guilt before the jury but still aggressively questioned all the witness and made
objections to certain evidence and jury instructions. The defendant was ultimately convicted and
sentenced to death. On appeal the defendant raised an ineffectiveness of assistance issue and the lower
court agreed, because they deemed counsels statement to the jury as a guilty plea and found that a defendant
must actively accept the concession of guilt before an attorney could tell the jury that. The Supreme Court
reversed and found the correct standard to use is found in Strickland v Washington, where the court
should have examined was the actions of the attorney reasonable. In using this standard the court found
given the overwhelming evidence of guilt coupled with the fact that the attorney aggressively questioned
witnesses and jury instructions there was a reasonable basis for the attorney to pursue this course of
action.
COMMONWEALTH v LESTER FLETCHER (J-66-2004)
Supreme Court 391 CAP
Decided November 18, 2004
"Death Penalty/Batson Challenge"
The defendant was convicted of murder and sentenced to death. On direct appeal he raised
the issue of a Batson Challenge. During jury selection the Commonwealth used its peremptory
challenges to strike six African American jurors without providing a race neutral reason for
doing so. In making the objections the defendant included the race of the venirepersons stricken
by the Commonwealth, the race of the prospective jurors acceptable to the Commonwealth but stricken
by the defense but did not develop a full and complete record of the remaining venirepersons
stricken by the Commonwealth and failed to include the final racial make up the jury. In light of
these factors the Superior Court concluded the defendant failed to make out a prima facie case
for a Batson Challenge. This conclusion was reached in spite of the fact that the 3rd Circuit
in Holloway v Horn criticized the procedural requirement for the development for a Batson Challenge. The
Superior Court concluded because the Third Circuit and the United States Supreme Court has not explicitly
overruled this procedure, in Pennsylvania this procedure will still be used.
Click here to read more on the case.
COMMONWEALTH v RICHARD PAES (J-A26024-04 2004 PA SUPER 430)
Superior Court 1213 WDA 2003
Decided November 16, 2004
This case gives a good review of what the Commonwealth is required to prove to find a roadblock
set up by the police is constitutional.
Click here to read more on the case.
COMMONWEALTH v EDNA L. GREEN (J-E03004-04 2004 PA SUPER 433)
Superior Court 1440 MDA 2002
Decided November 16, 2004
"Time limits for appeal"
The time limit for filing Post Sentence Motions is from the date of imposition of sentence not
the day it is docketed
Click here to read more on the case.
COMMONWEALTH v ALFONSO F. CARTER (J.E02007/04 2004 PA SUPER 420)
Superior Court 912 MDA 2002
Decided October 29, 2004
The defendant was convicted of deliver of a controlled substance. All direct appeals affirmed the judgment
of sentence. This case was a result of his PCRA petition. During the trial the Commonwealth introduced
the lab report prepared by the Pennsylvania State Police crime laboratory to prove the existence of cocaine
from the items seized from him during his arrest. The technician who performed the actual test on the drugs
was not able to testify, so the Commonwealth has the supervisor read the report to the jury. The trial court
allowed this to be done based on the business records exception to the hearsay rule. The Superior Court
concluded that the lab report is not fall into the business records exception for hearsay and the report
should not have been allowed to be admitted into evidence. The Superior Court then did an harmless error
analysis and concluded in this case the evidence contributed to the verdict and appellate counsel was
ineffective for failing to raise this issue on direct appeal. An interesting fact in this case is footnote
number 6 the court specifically cites numerous sources that detail the existence of lab errors and
acknowledges the possibility of an inherent bias in the labs as they are a part of the Pennsylvania State
Police.
Click here to read more on the case.
COMMONWEALTH v ANTHONY COSTA (J.S17028/04 2004 PA SUPER 421)
Superior Court 2502 EDA 2003
Decided November 5, 2004
The defendant was convicted of third degree murder in connection with a drug sale where the person
dies from the use of those drugs. On Appeal the defendant argued that the statute 18 Pa.C.S. Section 2506
Drug Delivery resulting in Death is unconstitutional due to it is void for vagueness. The Superior Court
rejected this argument and concluded that the statute contains a mens rea with sufficient
certainty.
Click here to read more on the case.
COMMONWEALTH v ELLISON GUILFORD (J.A19008/04 2004 PA SUPER 419)
Superior Court 1575 EDA 2003
Decided November 1, 2004
The defendant was convicted of Robbery and was sentenced to life in prison in conjunction with
the Three Strikes Law. In support of one of the prior convictions the Commonwealth presented evidence of
a prior conviction for attempted burglary a felony in the second degree. On appeal the defendants'
argument was his prior conviction for attempted burglary a felony 2 did not qualify as a prior crime of
violence needed for the three strikes statute. The Superior Court agreed and remanded the case for a new
sentencing hearing.
Click here to read more on the case.
COMMONWEALTH v JOSE UDERRA (J-144-2003)
Supreme Court 341 CAP
Decided October 21, 2004
"Death Penalty/Batson Challenge"
The defendant was convicted of murder and sentenced to death. All direct appeals affirmed
the sentence of death. The defendant then filed a PCRA Petition, which was denied without a
hearing. This appeal followed. In this appeal he asserted the district attorney of
discrimination in the use of his peremptory challenges of jurors. The defendant was Latin
American and he charged the District Attorney with unfairly using his peremptory challenges
on Latin Americans. Because this issue was presented in a PCRA Petition and it was an unpreserved
claim the defendant can not rely on a prima facia case under Batson but must prove actual,
purposeful discrimination by a preponderance of the evidence, in addition to all other requirements
essential to overcome the waiver of the underlying claim.
Click here to read more on the case.
COMMONWEALTH v JOSE DE JESUS (J-159-2002)
Supreme Court 286 CAP
Decided October 21, 2004
CLOSING ARGUMENTS IN DEATH PENALTY
The defendant was convicted of murder in the first degree, during the penalty phase of
the trial the District Attorney during its closing argument used language that included by
returning the sentence of death you would be sending a message to the community that this type
of behavior will not be tolerated. In its opinion the Supreme Court concluded that any reference
about sending a message is prejudicial per se.
Click here to read more on the case.
COMMONWEALTH v GERALD JOHN DELBRIDGE (J-61-2002)
Supreme Court 150 MAP 2001
Decided October 21, 2004
Taint Hearing
The case was first before the court to decide if a taint hearing was permissible and if
so when and were the hearing should be held. The Supreme Court concluded that taint is a
permissible inquiry and should be held during the competency hearing. The case was then remanded
and the hearing was held. The trial court found (1) taint did not exist in this case and the
children were competent to testify (2) the court heard expert testimony on the issue of taint but
concluded if the threshold issue of taint is not found then expert testimony is not necessary (3)
the issue of taint in the psychology area is not admissible under the Frye test.
The Supreme Court in its opinion agreed with the trial court that in this case taint did not
exist, and if the threshold question of taint in not found expert testimony is not required. The
Supreme Court however, has left open the question of the admissibility of expert testimony concerning
taint and whether or not it would pass the Frye test or even if Frye would apply.
Click here to read more on the case.
BARRY GIBBS v FREDERICK K. FRANK; DISTIRCT ATTORNEY OF PIKE COUNTY; ATTORNEY GENERAL OF PENNSYLVANIA
Third Circuit Court of Appeals No. 02-3924
Decided October 14, 2004
The defendant was charged with murder and planned to present an insanity and diminished
capacity defense. Prior to trial he was ordered to undergo an examination by the states psychiatrist.
Prior to the examination he was told that anything he said could be used against him at trial. The
defendant was ultimately convicted. On appeal his conviction was reversed and he was granted a new trial.
At the second trial he choose not to present either an insanity or diminished capacity defense. The
Commonwealth however in its case in chief presented the testimony of the states psychiatrist to recount
the incriminating statements made to him by the defendant. He again was convicted and this appeal
followed. The Third Circuit concluded that a mirandized psychiatric interview can not be used for a
purpose that is utterly different than that which formed the underlying basis for the waiver
IN THE INTEREST J.G., A MINOR (J.S45021/04 2004 PA SUPER 385)
Superior Court 2297 WDA 2003 decided October 1, 2004
REASONABLE SUSPICION/TERRY STOP
The defendant was standing outside of a building located in a high drug area
when the police who were conducting a drug surveillance assignment noticed him.
When the defendant noticed the police he started to walk away (he did not run he
walked). The police stopped him and patted him down, during the pat down the police
found I.D. that did not belong to the defendant and a key. The police found the house
the key fit and entered. Upon entering they found I.D. that matched the I.D. the
defendant had on his person and heroin in the house. The defendant was charged with
Delivery of a Controlled substance. The defendant filed a suppression motion, which was
subsequently denied by the trial court and was adjudicated of Possession with Intent to
Deliver. The Superior Court reversed and found that the police did not have any reasonable
suspicion to stop the defendant. The court placed great emphasis on the fact the defendant
did not flee (which would have been enough for reasonable suspicion) but rather was starting
to walk away.
Click here to read more on the case.
COMMONWEALTH v RICHARD CARROLL NOEL (J.23-2004)
Supreme Court of Pennsylvania No. 19 WAP 2003 decided September 22, 2004
The defendant was riding her horse when the police for suspicion of DUI stopped her.
She was subsequently charged with DUI and public drunkenness. The Supreme Court concluded
someone riding a horse can not be charged with DUI.
Click here to read more on the case.
COMMONWEALTH v DAKTARI GARCIA (J.25031/04 2004 PA SUPER 372)
Superior Court No. 1839 MDA 2003 decided September 23, 2004
The defendant was being observed by the police straddling the white line on the shoulder
or berm of the road with his car, after following the car the officer noticed when another car
was approaching from the other side of the road the car again drove over the white berm until the
approaching car passed him. Based on these observations the police pulled the defendant over and
he was subsequently arrested for DUI. The Superior Court concluded with these observations the
police lacked reasonable suspicion to pull the defendant over.
Click here to read more on the case.
COMMONWEALTH v EUGENE HAROLD SMITH (J.S38032/04 2004 PA SUPER 375)
Superior Court of Pennsylvania 78 MDA 2004 decided September 24, 2004
VIOLATION OF PROBATION
The defendant was sentenced originally sentenced to a term of 7 years incarceration
followed by 2 years probation. He had completed his incarceration and has 8 days left on his
probation when his probation officer conducted a urine test. This test came back containing a
non-specific opiate. The probation officer then sent the sample for a more detailed test. The
test results came back that the sample was heroin, he was found in violation and sentenced to a
term of 11 ˝ months to 23 months incarceration followed by 2 years probation. On appeal the
defendant raised the issue of whether the Commonwealth may allege a violation of probation after
the probationary period has expired. The Superior Court concluded that in certain circumstances
the Commonwealth can proceed with a violation after the probationary period has expired. Any delay
must be reasonable under the circumstances presented. Where the identity of the violator and nature
of the violation are known, the Commonwealth is ever under the obligation to proceed with due diligence.
If the Commonwealth fails in this obligation and does not seek to initiate the revocation proceedings
while the probationary term is still in effect, then double jeopardy considerations may be implicated.
Click here to read more on the case.
IN RE: M.J. A MINOR (J. S35012/04 2004 PA SUPER 360)
Superior Court 1762 MDA 2003
Decided September 17, 2004
"Constitutionality"
The defendants in this case were found guilty of ethnic intimation concerning
their harassment of two Puerto Rican brothers. (this harassment did not
contain any physical confrontation nor did it involve the defendant even
talking directly to the victims). On appeal the Superior Court held that the
speech is not one protected by the first amendment and found that the statue
was not vague or over broad and upheld the conviction.
Click here to read more on the case.
COMMONWEALTH v GUYE HUNT (K.E02002/04 2004 PA SUPER 358)
Superior Court 928 WDA 2002 decided September 10, 2004
Rule 600
On January 21, 2000 the defendant was charged with rape and various other
offenses. The trial was set to begin on October 16, 200 at this time the Commonwealth
requested a continuance because the victim was unavailable. During the hearing for
the continuance Defense counsel did object to the continuance and did not sign the
Commonwealth's form. On January 9, 2001 the defense asked for a continuance and the
trial was rescheduled for April 9, 2001. On this date the Commonwealth again asked
for another continuance because the victim was unavailable. At this hearing defense
counsel did not object and signed the consent form. There were two more continuances
requested by the defense. The trial was scheduled for April 30, 2002. On March 25,
2002 defense counsel filed a motion to have the charges withdrawn for a violation
of rule 600. The Trial Court granted this motion and the Commonwealth appealed.
The Superior Court reversed the trial courts decision. The Superior Court found
when the Commonwealth asked for the second continuance due to the unavailability of
the victim and the defense signed the consent form and did not object they consented
to the continuance and that time does not go against the Commonwealth.
Click here to read more on the case.
COMMONWEALTH v CARLUS GRUNDY, DARNEL PIGFORD ect..(A19012/04 2004 pa super 351)
Superior Court 2141 EDA 2003 decided September 10, 2004
(This case is interesting because it deals with a car equipped with LoJack)
The police were investigating a series of car thefts in the area
where the cars were being chopped up and their parts were being sold. During this
investigation they were informed of a car that had been recently stolen and this
car was equipped with a LoJack device. While they were investigating this car,
they received a signal from the car. The police tracked the signal to a garage.
The garage was in a row of other garages and a gate enclosed them all. The gate
was unlocked and located on private property. The police entered the gate, saw a
light, heard music and an electric saw they found the car just as it was about to
be taken apart. All four men were arrested. On appeal the Superior Court found
the police had reasonable suspicion to enter because they had heard the signals
from the car as it was moving and then it was stopped. It was stopped in an area
with numerous cars had been reported stolen and chopped up for parts. The court
also found exigent circumstances existed for the police to enter.
Click here to read more on the case.
COMMONWEALTH v SCOTT MCHALE (J.S37007/04 2004 PA SUPER 343)
Superior Court 1116 EDA 2003 decided September 8, 2004
"Aggravated Assault/DUI"
The defendant was drinking at a bar, he also did not have a valid drivers license
or insurance. He proceeded to get into his car and start to drive home. On his
way home he hit a parked car and collided with two people standing near the car.
The defendant left the scene in spite of the fact an Officer shouted for him to
stop. He was arrested a few days later and charged with two counts of aggravated
assault by vehicle while intoxicated as well as DUI, two counts of aggravated
assault, two counts of causing an accident with no license and related offenses.
After a bench trial he was found not guilty of DUI and Aggravated Assault by vehicle
while intoxicated, he was found guilty of two counts of aggravated assault. On
appeal the defendant claimed the evidence was insufficient to convict him of
aggravated assault. Specifically that he lacked the mens rea required for
aggravated assault. In order to convict the defendant the Commonwealth needed to
prove beyond a reasonable doubt the defendant attempted to cause serious bodily
injury or caused such injury intentionally, knowingly, or recklessly. In this case
the Common wealth contends the defendant acted recklessly by becoming intoxicated
and driving, by not having a valid drivers license and leaving the scene of the
accident. The Superior Court disagreed and found the defendant actions did not
rise to the level of malice needed to prove reckless behavior that would be enough
to prove the elements of aggravated assault.
Click here to read more on the case.
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COMMONWEALTH v TIMOTHY DODGE (J. a18007/03 2004 PA SUPER 338)
Superior Court 543 MDA 2004 Decided August 30, 2004
The defendant was found guilty of 37 counts of receiving stolen property, 2 counts of
burglary, criminal trespass, possession of a small amount of marijuana, possession of
drug paraphernalia and unauthorized use of a motor vehicle. He was sentenced to
a term of 58 ˝ years to 124 years imprisonment. Most of the time was due to the
fact that the judge sentenced him to 37 consecutive sentences for the receiving stolen
property.
On appeal the defendant complained that the sentence was excessive in spite of the fact
that the individual sentences were within the standard range. In ts opinion the Superior
Court reiterated the standard of review, the sentences must be reviewed to ensure not only a fair
and impartial sentence under the circumstances, but also to protect against grossly disparate
treatment of like offenders throughout the Commonwealth. The Superior Court is to do more
than whether the trial court places reasons on the record for its sentencing. ( because this
claim is one of excessiveness the same standard applies even though the sentences individually were
in the standard range)
In this case the court found that the trial court did the defendants past convictions, quantity
of those convictions and the defendants lack of remorse. They also found the trial court
appeared to have a fixed purpose of keeping the defendant in jail for life, (he was 47 at the time
of sentencing ), the trial court addressed the impact of the crimes on the victims and the community
it did not give a meaningful analysis of the gravity of the offenses and while the trial court addressed
the recidivism of the defendant it did not address the rehabilitive needs of the defendant.
Because of these factors the Superior Court found the sentence excessive. The Superior Court
emphasizes that this was an unusual case and has not stated any per se rule concerning consecutive
sentences they also made clear that the sentences even in the standard range must be reviewed to
determine if they comply with the sentencing code.
Click here to read more on the case.
COMMONWEALTH v ALLEN WILEY (J.A27014/04 2004 PA SUPER 325)
Superior Court 3036 EDA 2003 decided August 23, 2004
Suppression/Gun Exception
The defendant was leaving a restaurant with a gun protruding from his waist band, this was noticed
by a patron in the restaurant, this individual followed the defendant outside of the restaurant and
called 911. During this call the individual described the defendant and told the operator where he
was and the location of the defendant. This individual waited outside of the barbershop until the
police arrived and arrested the defendant. The defendant filed a Motion to Suppress because the police
lacked reasonable suspicion to stop him based on an anonymous call concerning a person with a gun.
The trial court denied this motion and the defendant was found guilty at trail. On appeal the
Superior Court reversed the trial court decision. In its opinion the Superior Court again stated
that an anonymous caller concerning a man with a gun is not enough to create reasonable suspicion.
The Commonwealth argued that the caller identified himself after the police made the arrest and therefore
he was anonymous, however the Superior Court found that at the time of the call the police did not know
who the caller was and the fact that they knew his identify after the arrest makes no difference.
Click here to read more on the case.
COMMONWEALTH v JAMES AUGUST LEHMAN (J.S10027/04 2004 PA SUPER 2004)
SuperiorCourt 1319 WDA 2003 Decided August 20, 2004
"Suppression"
The coast guard while on patrol at received a call from an employee at a bar that a patron
just boarded his boat with an open beer can. Upon receiving this information the coast guard
searched the shore for this boat, when came upon it, they did not notice any erratic or unusual driving.
The officer boarded the boat, the defendant came down and was taking to the officers. The
officers noticed a smell of alcohol on his breath. The defendant subsequently failed the filed
sobriety test and was arrested for boating under the influence. During the suppression hearing the
officers stated that the stop was just part of the routine random checking of the boats for conducting a
Coast Guard safety check. The suppression judge found this explanation unbelievable and suppressed
the evidence. The Superior Court affirmed the trial courts decision and found that without the call
from the bar employee the coast guard would never have stopped the boat, and that information was not
sufficient to support either probable cause or reasonable suspicion for the stop.
Click here to read more on the case.
COMMONWEALTH v JEREMIAH ALLEN (J.A27010/04 2004 A SUPER 327)
Superior Court 2954 EDA 2003 decided August 23, 2004
Double Jeopardy
The defendant was charged with various offense related to his daughter. After a jury trail
the defendant was found guilty of Endangering the Welfare of a Child, guilty of Simple Assault, not
guilty of Indecent Assault and the jury was hung on he charge of Aggravated Indecent Assault.
After the Commonwealth indicated that they were going to re-try the defendant on the Aggravated Indecent
Assault, defense counsel made a motion to dismiss on the grounds of double jeopardy because the Aggravated
Indecent Assault charge is a lesser included charge of Indecent Assault charge that he was found not guilty
of. The Trial Court denied this motion. The Superior Court affirmed the ruling of the trial
court because the charges of Indecent Assault and Aggravated Indecent Assault are not greater and lesser
included offenses and therefore the double jeopardy does not apply.
Click here to read more on the case.
COMMONWEALTH v ROBERT GENE REGA (J.A06039/04 2004 PA SUPER 330)
Superior Court 1299 MDA 2003 decided August 23, 2004
Nolle Prosequi
The defendant was charged with numerous felonies in numerous complaints. After the
defendant was found guilty on two of the complaints the Commonwealth filed a motion to nolle prosequi
the remaining charges without prejudice, no hearing was held on the matter and the Commonwealth did
not present any reasons for this motion. In spite of this the court granted the motion.
The Superior Court reversed and found that a hearing should have been held and the Commonwealth is
required to state the reasons for the nolle prosequi and the court cannot supply the reasons for them.
Click here to read more on the case.
COMMONWEALTH v MICHAEL SALTER (J.S09024/04 2004 PA SUPER 318)
Superior Court 1084 EDA 2003 decided August 17, 2004
The defendant was charged with failing to register under Megan's Law. In
order to be convicted of this offense the Commonwealth must prove that the defendant actually
received the notice. During the trial the evidence of receipt presented by the Commonwealth
was the officer responsible for sending the notices. He had no independent recollection of
mailing the letter but testified to his usual practice and procedures. The court used the
"mail box" rule to infer receipt and found the defendant guilty. The Superior Court
reversed and found that in this situation the presumption of the "mail box" rule cannot be
used because the element of actual receipt must be proven beyond a reasonable doubt and a presumption
can not be used. Given that the "mail box" rule is inapplicable in this situation the
Commonwealth's evidence was insufficient.
Click here to read more on the case.
COMMONWEALTH v JOSEPH CASTRO (J.S3303504 2004 PA SUPER 308)
Superior Court 2408 EDA 2003 decided August 6, 2004
Sentencing/VOP violations
While the defendant was on probation he was arrested for a new drug charge. Prior to the
trial he filed a motion to suppress and was successful and the charges were dismissed. During
his violation hearing the Commonwealth presented evidence that he was involved in a drug
transaction. He was found guilty and was sentenced on the VOP. On appeal he raised the
issue of double jeopardy and collateral estoppel because the evidence relied on by the court had
already been suppressed and the court was barred from considering it to find him guilty of a VOP.
The Superior Court affirmed the conviction because the standard in a VOP hearing is not beyond a
reasonable doubt but rather preponderance of the evidence. Also the Commonwealth did not just rely
on the fact that the defendant was arrested to support the violation but rather they presented additional
evidence to show the defendant's participation in the drug sale. Collateral estoppel does not apply
in this case because the suppression order is not a final judgment which would have precluded the court
from considering any evidence from the previous hearing.
Click here to read more on the case.
COMMONWEALTH v SALVADOR CARLOS SANTIAGO
Supreme Court 180 Capital Appeal Docket decided August 17, 2004
Competency/PCRA
The defendant was tired for Murder in the First Degree, his defense at trial was that he was
insane at the time of the commission of the offense. He was found guilty and sentenced to
death. This conviction was later over turned. During the second trial the defendant decided
to try another defense and did not raise the issue of his incompentcy. He as again found
guilty and sentenced to death. The defendant filed a PCRA Petition in which he claimed that he was
incompetent at the time of trial and his attorney was ineffective for failing to investigate and develop
this issue. The PCRA court held a retrospective hearing to determine if the defendant was
competent at the time of the trial. On appeal the defendant raises the issue that once he raises
the issue of his competency in the context of a PCRA Petition there is a per se rule that requires the
court to order a new trial. The Supreme Court affirmed the decision of the PCRA court and held
that whenever a court can conduct a meaningful hearing to evaluate retrospectively the competency of the
defendant, such a hearing is permissible. To determine if this can be accomplished the court must
(1) determine whether the defendant's PCRA Petition raises a material issue of fact concerning whether he
was competent at the time of trial such that he would be entitled to a hearing on the claim and (2) the
PCRA court must decide whether there exists sufficient evidence of defendant's mental status at the time
of trial such that a hearing would be adequate to address the issue of competency, or whether the evidence
is so lacking that a new trial must he awarded.
Click here to read more on the case.
COMMONWEALTH v THOMAS ELLIOTT APPLEBY (J.A24007/04 2004 PA SUPER 322)
Superior Court 3731 EDA 2003 decided August 19, 2004
Gun disability
The defendant was paroled from prison and as a result of this he was not permitted from owning
or possessing a firearm. Two weeks after his release his probation officer received a tip that
he had a weapon at his house. Acting on this information the defendant's house was searched and
a weapon was found. During the defendants trial he argued that 18 Pa.C.S.A. Section 6105 allows him
sixty days to dispose of the weapons and at the time of his arrest he was still within that grace period
because he was incarcerated at the time the disability occurred and could not have disposed of the weapon
until he was released. The Superior Court held that the disability starts when the conviction occurs.
Click here to read more on the case.
COMMONWEALTH v STEVEN LEWIS DUFFEY (J-111-2002)
Supreme Court 324 CAP 2002, decided August 18, 2004
5 th amendment right to remain silent
The defendant was arrested and charged with first degree murder, prior to trial there was some
discussion of presenting an insanity defense. The defendant was examined by the
Commonwealth's psychiatrist. Commonwealth. Before the exam began the defendant was told
that he did not have to answer any question that he did not want to and no inference will be drawn
from his refusal to answer. An insanity defense was not used at trial, but during the penalty
phase the Commonwealth called the doctor to the stand to rebut the evidence that was presented by the
defense. During the Commonwealth's examination the doctor commented on the defendants silence on
some questions during the examination and used those silences to support his position. The
Commonwealth in its closing statement to the jury argued to the jury about the defendants silence and
the doctor's conclusions regarding those silences. The Supreme Court held that the reference to post
arrest silence is not permitted, even it the defendant elects to answer some questions and not
others. (This case was remanded because the issue was framed as an ineffectiveness issue and the trial
attorney needs a chance to explain his reasons for not objecting to this.)
Click here to read more on the case.
(No July cases available)
KENDALL JEFFERSON (J.A01021/04 2004 PA SUPER 235)
Superior Court 580 EDA 2003 decided June 22, 2004
When a police officer observes an individual in a high crime area coupled
with unprovoked flight upon seeing the officer is enough to create reasonable suspicion,
thereby permitting a Terry stop by the officer. (if you have a case where
the D.A. is using this case please let the Appeal department know )
Click here to read more on the case.
BRYAN P. HALL v PENNSYLVANIA BORAD OF PROBATION AND PAROLE (J-125-2004)
Supreme Court 40 EAP 2002 decided June 22, 2004
The 1996 amendments to the Parole Act do not violate the ex post fact clause
of the United States Constitution when applied to an inmate who was sentenced prior
to the act.
Click here to read more on the case.
COMMONWEALTH v ALEX HAGUE (JS71304/03 2003 PA SUPER 513)
Superior Court 1424 EDA 2003 decided December 31, 2003
The defendant was convicted of voluntary manslaughter at his sentencing hearing
before the judge imposed sentence he asked the defendant "Is there anything in addition
you want to say? He was ultimately sentenced to a term of 10 to 20 years incarceration.
The defendant claimed his counsel was ineffective for failing to ensure that he had his
right of allocution. The Superior Court agreed and found the judge did not fulfill its
obligation and the defendant was denied a full opportunity for allocution.
Click here to read more on the case.
IN RE: MATTER OF S.A.S. (J.S38039/03 2003 PA SUPER 494)
Superior Court 1981 MDA 2002 decided December 17, 2003
The Juvenile Act allows for a period of probation that exceeds the statutory maximum
possible term of adult incarceration for the particular offense at issue.
BLAKELY V WASHINGTON
UNITED STATES SUPREME COURT NO. 02-1632 decided June 24, 2004
In Blakely the defendant entered an open guilty plea to kidnapping and the facts he
admitted during the plea would have supported a maximum "standard range" sentence of 53 months.
The judge, however, using the facts the defendant did not admit during the guilty plea, determined
that he acted with "deliberate cruelty". This permitted the imposition of an exceptional
sentence under Washington law and, as a result, the defendant was sentenced to a 90 month term of
incarceration. The Supreme Court reversed and in line with Apprendi , stated that a judge
cannot enhance a sentence unless the facts used to do so are either admitted by the defendant or
found by the trier of fact beyond a reasonable doubt.
The following are two cases dealing with Miranda Warnings decided by the Supreme Court with two
different outcomes.
U.S. v PATANE
UNITED STATES SUPREME COURT NO. 2004 WL 1431768 decided June 28, 2004
The defendant had a temporary restraining order placed on him to have no contact with
his wife. The wife called the police and complained that the defendant had been calling her at
home. Before the police went to the defendant's home they were told that he was a felon in
possession of a firearm. The police went to the defendant's home to investigate this claim.
While the police were placing the defendant under arrest for violating this order the officer
attempted to read the defendant his Miranda rights, at this point the defendant told the
officer do not bother because he already knew them, as a result of this conversation the officer
stopped. The police then asked the defendant about the firearm. He told them were it was
located in the house the officer retrieved it and then arrested him for a felon in possession of
a firearm. The defendant claimed that the recovery of the firearm should be suppressed because
it was acquired as a result of his confession without the benefit of Miranda warnings.
The United States Supreme Court disagreed and reversed the lower courts decision. (this was a 5-4
decision) the question presented to the Court was "whether failure to give a suspect the
warnings prescribed by Miranda requires suppression of the physical fruits of the suspect's
unwarned but voluntary statements? The court found that the statement concerning the gun was
voluntary and not coerced the evidence can be admitted into court. Because Miranda rule protects
against violations of the self-incrimination Clause, which in turn, is not implicated by the
introduction at trial of physical evidence resulting from voluntary statements the evidence need
not be suppressed. The court did not address the situation of when physical evidence is found as a
result of involuntary statements.
MISSOURI v SEIBERT
United States Supreme Court No. 02-1371 decided June 28, 2004
The defendant was arrested in connection with the death of her son and another individual.
During the police interrogation the officer asked her questions concerning the murders and after
she had given a statement implicating herself in the crime the officer read her Miranda warnings
and asked the same questions again. The trial court suppresses the first statements given
without Miranda but allowed the second interrogation because at that point she had been
given the warnings. During the suppression hearing the officer candidly admitted that it was
the practice of its police department to purposely not give warnings until they received
information and then give the warnings. ( it was determined that this is a common practice used
by both federal and local police departments- it was actually written down in the police manuals,
it might be wise to find out what the practice of the police departments in our local area might
be)
The Supreme Court found that because the question first method is designed to completely
undermine the purpose of Miranda this type of questioning can not be allowed.
BEARD v BANKS
United States Supreme Court No. 02-1603 decided June 24, 2004
Because Mills announced a new rule of constitutional criminal procedure that does
not fall within either Teague exception its rule cannot be applied retroactively.
SCHRIRO v SUMMERLIN
United States Supreme Court No. 03-526 decided June 24, 2004
Ring does not apply retroactively to cases already final on direct appeal.
COMMONWEALTH v FRYE
Superior Court No. 1748 MDA 2002 decided June 25, 2004
The defendant pled guilty to DUI and was sentenced to a term of imprisonment of 15 days
to 23 months and 29 days. She was paroled and was found in violation this pattern continued
until the defendant was subsequently incarcerated. While she was paroled every time she was
placed on house arrest and home monitoring. The conditions of the house arrest were such that
she was not allowed to leave the confines of her house without the approval of the probation
department. When she was found in violation of the conditions of her parole the last time she
requested that she receive credit for time served while on house arrest. The Superior Court
agreed because the conditions of her house arrest were so restrictive that they were the
equivalent of being in custody.
Click here to read more on the case.
COMMONWEALTH v FLOYD COLEMAN (J.A01009/04 2004 PA SUPER 226)
Superior Court 3373 EDA 2002 decided June 15, 2004
The defendant was convicted of sexual assault. At the time of sentencing the
Commonwealth treated the defendants court martial when he was in the army as a
prior conviction to determine his prior record score. The Court concluded that
a military court martial is a federal conviction and can be used to calculate a
prior record score, but the conviction must be equivalent to a crime under the
Pennsylvania Statute. In this case the defendants court martial was for
"indecent acts" the record supplied by the military was not specific as to
whether these acts were non-consensual. This was especially important in this
case because consensual acts were might be illegal in the military are not
illegal in Pennsylvania. Because the Commonwealth could not prove that the
court martial conviction was for non-consensual acts the prior record score
could not reflect the court martial.
Click here to read more on the case.
COMMONWEALTH v ANTHONY A. MOSS, DANA Q. AUSTIN, ROBERT SULLIVAN (J.S68027/03 2004 PA SUPER 224)
Superior Court 678 WDA 2003,679 WDA 2003, 688 WDA 2003 decided June 14, 2004
This is the consolidated appeals all involve the issue of whether 18 Pa.C.S.A. 7512
Criminal Use of Communication Facility is unconstitutional the Superior Court found
this statute constitutional. They also found that for the Commonwealth to sustain a
conviction under this statue they must prove beyond a reasonable doubt that the defendant
intentionally, knowingly or recklessly used a communication facility and that in doing
so the defendant intentionally, knowingly or recklessly facilitated the commission or
attempted commission of the underlying felony. Facilitation has been defined as
any use of a communication facility that makes easier the commission of the
underlying felony. If the underlying felony never occurs then the defendants have
facilitated nothing and can not be convicted under Section 7512.
Click here to read more on the case.
COMMONWEALTH v DEMETRUIS MCNEAR (JS17024/04 2004 PA SUPER 218)
Superior Court 2275 EDA 2003 decided June 14, 2004
This case gives a good review of Rule 600.
Click here to read more on the case.
COMMONWEALTH v DERRICK DAVIS (JS20025-26/04 2004 PA SUPER 219)
Superior Court 1410 MDA 2003, 1621 MDA 2003 decided June 14, 2003
The defendant was charged with escape when he failed to return to a half way house
were he had been staying. In his appeal he argued that being at the halfway house was
part of his parole so he should have been charged with violating parole and not escape.
The Court concluded if indeed if the defendant was at the halfway house as a condition of
his parole is would not be escape. To determine this they looked to his guilty
plea statement and found that his status at the time was "prerelease" which was
prelude to him being placed on parole and therefore the escape charge was the
appropriate charge and affirmed the conviction.
Click here to read more on the case.
YARBOROUGH, WARDEN v ALVARADO
Supreme Court of the United States No. 02-1684 Decided June 1, 2004
The defendant was involved with a robbery of a truck that led to the death of the
driver. At the time of the incident he was 17 years old. During the course of
the investigation the police asked his parents to come down to the station. His
parents brought him down to the station and waited outside while the police
interviewed him. (There was some dispute as to whether his parents asked to be
present and the police would not let them into the interview) The interview
lasted approximately two hours. During the interview he was asked twice if he
needed a break. During the course of the interview he had confessed to helping
the co-defendant steal the truck and that he did not know that anyone would be
killed. He was never given any Miranda Warnings. At the conclusion of the
interview he was allowed to leave with his parents and go home. He was
subsequently arrested and charged with murder in the first degree and robbery.
The State Court and District Court concluded that he was not in custody
therefore Miranda Warnings were not necessary. The Ninth Circuit
reversed based on the fact that the State and District Courts did not taken into
consideration the defendants age and inexperience with the police when
evaluating whether a reasonable person in his position would feel free to
leave. The Supreme Court reversed and found that the determination of
whether Miranda Warnings are warranted is an objective test and if the
court were to consider a persons age and experience with the police would then
make the test a subjective one. The only relevant inquiry is whether how a
reasonable person in the position with the individual being questioned would
gauge the breadth of his or her freedom of action.
Click here to read more on the case.
COMMONWEALTH OF PENNSYLVANIA v TERRY BROWN a/k/a/ ANTONIO LAMBERT (J.S65010/03 2004 PA SUPER 2004)
Superior Court 2670 EDA 2002 decided June 8, 2004
The defendant and two friends were involved with an incident where an older woman was
shot. During the investigation, one individual gave a statement implicating himself and
the defendant in the crime. The other individual gave a statement implicating the other
two people. The defendant never made a statement concerning the crime. The only evidence
against the defendant was in the two statements given to the police. Prior to trial the
defendant moved for severance and this motion was denied. During the trial the police read
into evidence the statement given by his co-defendant. In the statement the defendant's name
was redacted and replaced with the phrase "the other guy". During the prosecutors closing
argument she mentioned the defendant specifically in the context of the co-defendants statement.
At this point defense counsel moved for a mistrial, this motion was denied but the court
offered to give a curative instruction telling the jury not to use this statement was not to
be used against the defendant. Defense counsel declined this instruction. The Superior Court
found that the defendants 6th amendment right of confrontation was violated during
the prosecutors closing argument according to Crawford v Washington and granted the
defendant a new trial.
Click here to read more on the case.
COMMONWEALTH v CHAD ELLIOTT PAPLAWSKI (J.S25001/04 2004 PA SUPER 207)
Superior Court 424 MDA 2003 decided June 4, 2004
The defendant was involved in an altercation that involved another man whom the
defendant had previous problems with. During this incident the defendant had a gun and
shots were fired. He was arrested and charged with criminal attempt, aggravate assault
and various other charges. During the trial two radically different versions of this
incident were presented by the commonwealth and the defense. During the prosecutors closing
argument he told the jury to find the defendant guilty to "send a message" that people can
not bring guns into the community. Defense counsel did not object during the closing argument.
The defendant on appeal raised the issue of his counsel's ineffectiveness for failing to object
to this statement. The Superior Court found that the issue had arguable merit and defense
counsel had no reasonable basis for failing to object to this argument. They also found that
the defendant was prejudiced by this argument. While there is not per se rule of prejudice for
the prosecutor who uses a "sending a message" argument the facts in this case warranted a new
trial. In a footnote the Court concluded that if a prosecutor using this type of argument
the court is instructed to give a direct instruction to the jury against the argument of sending
a message.
Click here to read more on the case.
FRANKLIN E. PROBST v COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION.
Supreme Court decided May 26, 2004
The defendant was arrested and pled guilty to his 5th DUI. During the
sentencing he was instructed to place an ignition lock device on his car or face an
additional one year license suspension. He appealed the decision of the ignition lock
device based on the fact that it was unconstitutional because it discriminated against
rich and poor people. The Supreme Court found that it was not unconstitutional because
financial need does not create a suspect class so a rational basis test is used to determine
the constitutionality of a statute. In this case the Supreme Court found that the legislature
had a rational basis for creating this statute and therefore it is constitutional.
COMMONWEALTH OF PENNSYLVANIA v SHAWN REED (J.A02020/04 2004 PA SUPER 204)
Superior Court 900 MDA 2003
The defendant was charged and found guilty of obstructing administration of law and
other governmental function. This charge was based on an incident that had occurred in the
common area of his apartment complex. The police were looking for a girl who had run away
from home. They had received a tip that she may be in this particular apartment building.
The police went to the building and found that the outside door was locked and could only be
accessed by residents. They waited outside for someone to come into the door. A resident
did come along and they gained access in the common area. While they approached the apartment
the defendant blocked their path and would not let the police pass. The defendant raised the
issue that he could not be convicted of this crime because the police were involved in an
illegal search because the police did not have a search warrant. The court concluded that the
defendant did not have an expectation of privacy in the hallway because while you needed a key
to have access it was not exclusive access. Other people had access to this area and the
defendant had no right to exclude these people from this area.
Click here to read more on the case.
COMMONWEALTH v TRAVIS ALAN LEHMAN (J.S 12036-04 2004 PA SUPER 198)
Superior Court 1158 MDA 2003 decided May 28, 2004
The defendant entered a guilty plea to Recklessly Endangering Another Person and was sentenced
to 24 months Intermediate punishment. During this time his probation officer requested a urine sample,
this sample tested positive for cocaine. The defendant moved to have these results suppressed and
excluded from his probation revocation hearing. The Court concluded that the exclusionary rule does
not apply to revocation of probation hearings.
Click here to read more on the case.
COMMONWEALTH v CHRISTOPHER YOUNG
PENNSYLVANIA SUPREME COURT NO. 25 EAP 2003 decided May 27, 2004
The defendant was arrested for first degree murder, during the Commonwealth's case
in chief they presented the testimony of two police officers. In their
testimony both officers testified how the defendants picture come to be in a
photo array. They testified that the photo array consisted of persons who had
prior contact with the police. The defendant moved for a mistrial based on the
fact that this testimony gave the impression that the defendant had a prior
criminal record. Both the Trial Court and the Pennsylvania Superior Court
concluded that a mere passing reference of prior contact with police does not
imply that the defendant had a prior criminal record and denied the motion for a
mistrial. The Supreme Court agreed and held that a mere passing reference with
contact with police is not per se reversible error.
Click here to read more on the case.
COMMONWEALTH v EDWARD S. ROGERS (J-47-2001)
PENNSYLVANIA SUPREME COURT NO. 37 WAP 2000 decided May 27, 2004
The defendant was driving 73 in a 55 miles per hour zone, he also was driving a car
with an expired Tenn. Temporary registration sticker. The Trooper pulled him over.
When he pulled him overt the defendant was nervous, had a box of Tide Laundry
Detergent and a box of Bounce fabric softener dryer sheets in the back of his car.
The Trooper asked the defendant for paper work for the car, the defendant produced
that were false, and was unable to answer the Troopers questions concerning where he
was coming from and where he was going. Given all of these factors the trooper called
a canine dog to the scene to sniff the outer section of the car. The dog got a hit
and then immediately jumped inside the car and reacted to the presence of drugs in the
right rear of the vehicle. The subsequent search produced 52 pounds of marijuana. The
defendant claimed on appeal (1) the trooper did not have reasonable suspicion to detain
him and (2) even if there was reasonable suspicion to detain him the officer did not have
probable cause to bring the dogs to sniff the car, and the Supreme Court concluded that
given the totality of the circumstances there was reasonable suspicion to detain the
defendant. Even if each of the circumstances could have an innocent explanation looking
at them in the totality of the situation there was enough for reasonable suspicion. The
dog sniff also was legal, because the dog was sniffing the car and not the person all
that is needed is reasonable suspicion not probable cause. After the dog was alerted, the
dog inside the car was legal because the reasonable suspicion was not converted to probable
cause for the dog to go into the car.
Click here to read more on the case.
COMMONWEALTH v JOSE LUIS VEGA (J.A39026/03 2004 PA SUPER 196)
Superior Court 497 MDA 2003 decided May 27, 2003
The defendant plead open to a charge of involuntary manslaughter. The
Commonwealth waived the imposition of the five year mandatory minimum sentence
for commission of the offense with a firearm. The defendant had no criminal
history so had a prior record score of 0, he also presented numerous witness
who testified to his good character, he also presented letters from the members
of his community who also described his good character. The guidelines called
for a sentence of 3-4 ˝ years in the standard range and 5 ˝ years in the
aggravated range. The court sentenced him to a term of 7 to 14 years followed
by 6 years probation. The defendant challenged the sentence as harsh and
excessive under the circumstances and the court failed to provide adequate
reasons on the record for the sentence. The Superior court agreed and remanded
the case for re-sentencing. The reasons the court gave for its sentence were
(1) the seriousness of the crime and (2) the fact that the maximum penalty for
the offense under the Sentencing Code is 20 years. The seriousness of an offense
is not a reason in and of itself, the guidelines take into account the seriousness
of the offense, to deviate the court needs to decided if this particular offense
is different or deviates from a typical case of the same offense. The facts of
this case did not, so this was not an adequate reason to depart from the guidelines.
Reason (2) the maximum sentence could have been 20 years is not enough of a reason
because the guidelines take into account the defendant's history and is a more precise
assessment than the general classification of felony and misdemeanor.
Click here to read more on the case.
COMMONWEALTH v JOHN MCCLINTIC (J.A01023/04 2004 PA SUPER 192)
Superior Court 1386 EDA 2003 decided May 27, 2003
The defendant was convicted of two counts of robbery and burglary along with
one count of indecent assault. These crimes took place on two different occasions.
The court sentenced him in accordance with the three-strikes law, 25 to 50 years
for one count of robbery and consecutive term of 25 to 50 years on the other charge
of burglary. He then sentenced him to a term of 25 to 50 years on the second case.
The defendant argued on appeal that the three strikes law allows only for the
enhancement per criminal episode regardless of how many crimes he was convicted of
with that episode. The Superior Court disagreed and found that the plain reading of
the statute allows the trial court to impose the enhancement for each offense that
was committed.
Click here to read more on the case.
COMMONWEALTH v MACK GILLARD (J-S71011-03 2004 PA WUPER 189)
Superior Court 3714 EDA 2002 decided May 27, 2004
The defendant entered a bar brandishing a gun and told the four patrons to
get up against the wall, he then proceeded to rob the cash register of $65.00
dollars, he did not take anything from any of the patrons. He was convicted of
five counts of robbery. The Superior Court affirmed the decision because the
defendant's actions were sufficiently threatening to all the patrons in the bar
to place them in legitimate fear of serious bodily injury that this satisfied the
clear language of the robbery statute.
Click here to read more on the case.
COMMONWEALTH v KEITH STEVENSON (JE01008/04 2004 PA SUPER 195)
Superior Court 2015 WDA 2001 decided May 26, 2004
The defendant pled guilty to third degree murder, the sentence included a five
year mandatory minimum of total confinement. The trial court granted the defendant
credit for time served on house arrest with electronic home monitoring. The Commonwealth
appealed that because this sentence was total confinement the defendant could not
receive credit for the time on house arrest with electronic home monitoring. The Superior
Court agreed and held that a defendant can not receive any credit for time served in an
electronic home monitoring program under 42 Pa.C.S.A section 9760 against a mandatory
minimum sentence under 42 Pa.C.S.A. section 9712
Click here to read more on the case.
SUPREME COURT OF THE UNITED STATES
THORNTON v UNITED STATES
No. 03-5165 decided May 24, 2004
The defendant was stopped by the police officer, he parked his car and got
out. The officer then found drugs on the defendant. Incident to arrest the officer
then searched the defendants car and found a firearm under the seat. The defendant
appealed the search of his car. He relied on the case of New York v Belton in
which this court allowed the search of a vehicles passenger compartment as an
incident to arrest. The defendant's argument was that in Belton the search
was allowed because the person was still in the car and the officer would have a
egitimate fear for his safety, unlike in his case the defendant was outside the
car and the officer was in no danger from anything in the car. The Supreme Court
disagreed and concluded that Belton allows police officers to search a
car's passenger compartment incident to a lawful arrest of both occupants and
recent occupants of the car.
Click here to read more on the case.
DONALD HARDCASTLE v MARTIN HORN, COMMISSIONER, PENNSYLVANIA DEPARTMENT OF CORRECTION
No. 01-9006 Third Circuit Court of Appeals
decided May 11, 2004
The defendant was convicted of Murder in the First Degree and was sentenced to Death. During
the jury selection process the District Attorney used her peremptory challenges to strike 12
of the 14 African-American jurors. This case was tried before the United States Supreme Courts
decision in Batson , as a result no race neutral reasons were given as a reason for the
strikes. In deciding this case the Pennsylvania Supreme Court deciding not to remand for an
evidentiary hearing decided to comb through the record itself to determine whether any race
neutral reasons existed for the challenged strikes. This court found specific race neutral
reasons for striking jurors 1-10, jurors 11-12 they found general reasons and denied the defendants
claim. In its opinion the Third Circuit makes it perfectly clear that Batson requires a three step
analysis. Each step must be dealt with separately and the court can not combine any of these
steps in reaching its conclusion if the defendant has sustained a Batson challenge.
This case also gives a great review of the analysis of each step the court should conduct.
Click here to read more on the case.
COMMONWEALTH v JAMES M. TAYLOR (J.A06001/04 2004 PA SUPER 162)
Superior Court 951 MDA 2003 decided May 11, 2004
The defendant challenged a search warrant on the basis that the police officer omitted
information when preparing the warrant. As a result the Superior Court has devised the following
test to determine if the omission warrants suppression. (1) whether the officer withheld a highly
relevant fact within his knowledge, where "any reasonable person would have known that this was the
kind of thing the judge would wish to know" and (2) whether the affidavit would have probable cause
if it has contained a disclosure of the omitted information.
Click here to read more on the case.
COMMONWEALTH v JOSE INFANTE, (J.A36014/03 2004 PA SUPER 159)
Superior Court 627 EDA 2003 decided May 11, 2004
The Court cannot revoke probation based on criminal conduct that had occurred prior to the
imposition of that probation.
Click here to read more on the case.
COMMONWEALTH v KENNETH EUGENE DESHONG (J.A43040/03 2004 PA SUPER 164)
Superior Court 229 MDA 2003 decided May 13, 2004
This case gives a good review of when restitution has to be imposed.
Click here to read more on the case.
UNITED STATES v BYRON MITCHELL
No. 02-2859
Third Circuit Court of Appeals decided April 29, 2004
The defendant challenged the fingerprint evidence that the government wanted to present
in his case. The court held a Duabert Hearing and found that the fingerprint
evidence admissible. (The backbends this court employed to find the evidence admissible is
makes this case worth reading.)
Click here to read more on the case.
COMMONWEALTH v JAMES GATHERS ( J.S11017/04 2004 PA SUPER 111)
Superior Court No. 935 EDA 2004 decided April 12, 2004
This case makes clear that when instructing a jury on the charge of attempted murder the element of "malice"
should not be used
Click here to read more on the case.
COMMONWEALTH v JAMES CHAMBLISS (J-S09010-04 2004 PA SUPER 96)
Superior Court 11 EDA 2003 decided April 6, 2004
This case gives a good review of the corpus delicti rule.
Click here to read more on the case.
COMMONWEALTH v ABDUL CLARK A/K/A/ JAMAL JONES (J.S0500604 2004 PA SUPER 97)
Superior Court 3289 EDA 2002 decided April 6, 2004
The defendant was originally sentenced in 1994 to a term of three years reporting probation.
In 1997 he was arrested and convicted of robbery, theft and various other charges. He was sentenced
to a term of 5 to 10 years incarceration. Due to the new conviction a VOP detainer was lodged against him
in 1997. Over 25 violation hearings were scheduled but due to prison crowding he was never brought down to
the jail till October 10, 2002 a delay of 4 years. The defendant appealed his sentence because he was denied
his speedy hearing on his VOP detainer. The court found that the 4 years was an unreasonable delay but that you
also must look to see if the Commonwealth used due diligence and what prejudice did the defendant suffer as a
result of the delay. In this case they found that the delay was not the fault of the Commonwealth but rather due
to the over crowding in the prisons and the defendant did not suffer any prejudice as a result of this delay.
Click here to read more on the case.
IN THE INTEREST OF R.S. A MINOR (J.A04034/04 2004 PA SUPER 101)
Superior Court 697 WDA 2003 decided April 6, 2004
This case gives a good review of when the identity of a confidential informant needs to be revealed to the
defense. This case also reviews when the court can order restitution under the juvenile act as opposed to the
crimes code.
Click here to read more on the case.
JOHN DOE v JOSEPH GRODDY ETC.
United States Court of Appeals for the Third Circuit No. 02-4532 decided March 19, 2004
This case gives a great review of the parameters of a search warrant.
COMMONWEALTH OF PENNSYLVANIA v NATAHN DUNLAP (J.E03009/03 2004 PA SUPER 78)
Superior Court No. 3158 EDA 2001 decided March 24, 2004
The defendant was involved with a transaction of the street of a high drug area the police officer saw
an exchange of money for a small object. The police officer had been of the force for 5 years he had been
in the narcotics division for 9 months and had been involved personally in 15 to 20 drug arrest. The defendant
claimed that the officer did not have probable cause based on the fact that the officer saw an exchange for an
unknown item for money. He based his reasoning on Commonwealth v Banks. The Superior Court disagreed and
found that because this officer was a drug officer and had specific experience in this area, this factor should
be considered in the totality of the circumstances to determine if probable cause existed to stop the defendant.
9 Judges heard this case, 5 voted not to suppress the evidence while 4 would have suppressed the evidence. The
dissent is worth reading to support any argument in favor of suppression.
Click here to read more on the case.
COMMONWEALTH v JOHN PEREZ, (J-57-2002)
Supreme Court No. 44 EAP 2001 decided March 24, 2004
The defendant was arrested in connection with a series of robberies. When he was arrested he gave
the police a false name and social security number as a result of this false information he was not arraigned
before six hours. Because of this he moved to have all of his statements suppressed. The Supreme Court not
only rejected this claim but established a new rule that the court needed not look at the amount of time that
has passed but instead must look to the totality of the circumstances to determine if the statements should be
suppresses. The passage of time is only one of many facts that court needs to look before deciding if the
statements should be suppresses.
Click here to read more on the case.
COMMONWEALTH v DAVID POND (J.A43016/03 2004 PA SUPER 81)
Superior Court No. 676 MDA 2003 decided March 25, 2004
The crime for violating the verification of residence provisions of the Registration of Sexual Offenders
statute has a mens rea. The Commonwealth must establish that the defendant's failure to verify his address was
intentional, knowing or reckless as defined by 18 Pa.C.S. Section 302 (b)(1),(2) and (3).
Click here to read more on the case.
COMMONWEALTH v TIMOTHY BOCZKOWSKI (J-5-2002)
Supreme Court No. 285 Capital Appeal Docket decided March 23, 2004
The defendant was arrested and charged with Murder in the First Degree in connection with the death of his
second wife. At this time he was also being investigated in North Carolina in connection with the death of his
first wife. While he was in custody in Pennsylvania North Carolina requested that he be sent there for his
trial. At that time the extradition procedures were in process from North Carolina. The extradition hearing was
held and the court granted the transfer but it was to wait until the trial in Pennsylvania was complete. At this
point the District Attorney went into court and had the defendant sent to North Carolina to stand trial. After he
was convicted the Commonwealth moved to have him sent back to Pennsylvania and informed the court that they would
seek the death sentence with the aggravating factor being the killing of the first wife. The Supreme Court
reversed the death sentence because the District Attorney could not circumvent a court order to suit its own
purpose. The Court also recognized the only reason for this was to be able to impose the death penalty in their
case.
Click here to read more on the case.
COMMONWEALTH OF PENNSYLVANIA v BRIAN RAAB( J.A38042/03 2004 PA SUPER 63)
Superior Court 3431 EDA 2002, decided March 15, 2004
The defendant was pulled over and arrested for a DUI, after the arrest the officer prepared an
investigative report regarding the circumstances of the arrest along with a hand written affidavit of
probable cause (this handwritten draft was subsequently typed and present to the district judge for his
signature) Prior to trial the defendant requested a suppression hearing. The arresting officer was not
able to testify because he was killed. The trial court allowed the affidavits under the Uniform Business
Records. The Superior Court disagreed, the they found that the affidavit was not a "routine business" record
but instead it was prepared specifically for this case and therefore the need for cross-examination is a
critical element and it should not have been admitted.
Click here to read more on the case.
COMMONWEALTH v MIGUEL GARCIA (J.S. 65009/03 2004 PA SUPER 61)
Superior Court decided March 11, 2004
If two co-defendants are tried jointly and one defendant request an "no adverse
inference" charge to the jury and the other defendant does not want this instruction read
to the jury it will not be reversible error for the trial court to give this instruction.
Click here to read more on the case.
COMMONWEALTH v ROBERT KIRWAN, II (J.A43013/03 2004 PA SUPER 50)
Superior Court 368 MDA 2003, decided march 2, 2004
COMMONWEALTH v DONALD B. TREAT (J.A43014/03 2004 PA SUPER 51)
Superior Court 621 MDA 2003, March 2, 2004
Both of these cases deal with the issue of 5th amendment privileges when
and why a witness can invoke the privilege.
Click here to read more about Commonwealth v Robert Kirwan, II.
Click here to read more about Commonwealth v Donald B. Treat.
CRAWFORD v WASHINGTON NO. 02-9410-
UNITED STATES SUPREME COURT, DECIDED MARCH 8, 2004
The defendant and his wife were involved in a incident, which resulted in a man being
stabbed. While they were being questioned the wife gave a written statement to the police.
At the time of trial, the wife invokes spousal privilege and refused to testify. The State
petitioned the trial court to allow the statement to be presented at trial. The trial
court agreed based on the standard as set forth in Ohio v Roberts that allowed hearsay statements
into evidence based on the standard that the statement bears "particularized guarantees of
trustworthiness". The United States Supreme Court overruled Ohio v Roberts and concluded that
"where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy
constitutional demands is confrontation.
Please note: Tender Years exception in Pennsylvania was allowed based on the reasoning set forth
in the now overturned case of Ohio v Roberts, this case clearly calls into question the
constitutionality of this exception and may have implications for other types of hearsay also
allowed based on Ohio v Roberts.
COMMONWEALTH v ALDO POPOW (J.A43006/03 2004 PA SUPER 34)
Superior Court 419 MDA 2003, decided February 18, 2004
The defendant was in an altercation with his wife, during this fight he picked
up his four -year old daughter and then fell down a flight of 12 stairs with her in his
arms. He was charged with Endangering the Welfare of a Child and it was graded as a felony
in the third degree. On appeal the defendant complained that the Commonwealth never proved
nor pled that he has engaged in a course of conduct that would grade this offense as a felony
in the third degree as opposed to a misdemeanor in the first degree. The Superior Court
agreed and concluded that in order to be graded as a felony of the third degree the
Commonwealth must allege in the information and present evidence at trial of the additional
factor of course of conduct and the jury must be instructed on such.
Click here to read more about the case.
COMMONWEALTH v HARRY DENGLER (SD28016/03 2004 PA SUPER 38)
Superior Court 1314 MDA 2002, decided February 20, 2004
The psychological or psychiatric testimony of an expert at an SVP proceeding is
not novel scientific evidence and is not subject to a FRYE hearing.
Click here to read more about the case.
COMMONWEALTH v TAMIKA LYNN JONES (S44027/03 2004 PA SUPER)
Superior Court 1964 MDA 2002, decided February 10, 2004
This case is a good review of when a "tip" provides sufficient evidence for
reasonable suspicion.
Click here to read more about the case.
IN THE INTEREST OF A.D., A MINOR (S70036/03 2004 PA SUPER 36)
Superior Court 933 MDA 2003, decided February 19, 2004
When an assistant principal undertakes a search without the help of the police of
a small group of students where he has a particularized suspicion one of them committed a
theft it does not violate either the United States or Pennsylvania Constitutions.
Click here to read more about the case.
GROH v RAMIREZ - SUPREME COURT OF THE UNITED STATES Decided February 24, 2004
An agent for the Bureau of Alcohol Tobacco and Firearms prepared an application for a
search warrant and a detailed affidavit setting forth the items for the search and the reasons
for the search. The warrant itself failed to include the items to be seized and it did not
incorporate by reference the detailed affidavit. The warrant was served and nothing was found.
The respondents filed a civil suit for 4 th amendment violations. The District Court
found the warrant to be valid and dismissed the case. The Supreme Court found the warrant to be
invalid on its face because it failed to state specifically what items were to be seized.
BANKS v DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION- SUPREME COURT OF THE
UNITED STATES Decided February 24, 2004
The prosecution in this case committed a Brady violation when they failed to disclose that
two of the states witness. One of the witnessess was a paid informant and the other had made a
deal with the prosecution.
ILLINOIS v LIDSTER
Supreme Court of the United States No. 02-1060 Decided January 13, 2004
The police had set up a checkpoint to stop motorist to
see if they had any information regarding a hit and run accident that had
occurred the previous week. The checkpoint was set up at the same place and
time that the accident had happened a week ago. The police would stop the cars
for approximately 10 to 15 seconds and ask if they knew about the accident. The
defendant was stopped and the officer smelled alcohol on his breath. He was
subsequently arrested and convicted of DUI. The Supreme Court found that this
was not a violation of the 4th amendment because the primary purpose
of this stop was not the find criminal behavior but rather to solve a crime that
had occurred a week ago.
Click here to read more about the case.
COMMONWEALTH V THOMAS THOMASON BEY (JS86004/02 2004 PA SUPER 11)
Superior Court 1043 WDA 2001, 1602 WDA 2001 decided January 15, 2004
COMMONWEALTH V JOHN DAVIS LIPPHARDT (J.A30034/03 2004 PA SUPER 7)
Superior Court 122 WDA 2003 decided January 12, 2004
These cases give a good review of what is needed by the Commonwealth to prove by clear
and convincing evidence that a defendant is a sexually violent predator.
Click here to read more on v Thomas Thomason Bey.
Click here to read more
on v John Davis Lipphardt.
FELLERS v UNITED STATES
United States Supreme Court No. 02-6320 Decided January 26, 2004
The defendant was indicted for distribution of drugs and an arrest warrant was issued
for his arrest. When the police went to his home, they informed him that they had an arrest
warrant for him and wanted to discuss his involvement in this case. At his house the defendant
made incriminating statements to the police. The arrested him and took him to the station.
At the station they informed him of his Miranda rights and he again made incriminating statements.
The District Court suppressed the statements made at his house finding they violated his
6th amendment right to counsel but allowed the other statements because under a
5th amendment analysis because those statements were made knowing and voluntary. The
Supreme Court has remanded this case back to determine whether the 6th amendment
requires suppression of these statements on the ground that they were the fruits of previous
questioning conducted in violation of the defendants 6th amendment rights.
COMMONWEALTH v LAUREANO M. MANUEL, M.D. (J.A35042/03 2004 PA SUPER 21)
Superior Court 1785 MDA 2002, decided January 27, 2004
Expert testimony is not required in a convicting a defendant of Prescription of a
Controlled Substance to a Drug Dependent Person if the other evidence in the case allows the
fact-finder to conclude, beyond a reasonable doubt, that the treatment would not be accepted by
any reasonable segment of the medical profession.
Click here to read more.
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