The following case is from New Jersey, but it is has implications for any case using this forensic science.
State of New Jersey v Behn 868 A.2d 329
Decided March 7, 2005
The defendant was arrested and tried for first degree murder. During his trial the State and defense
both presented expert witnesses in ballistics. These experts contradicted each other as to whether the gun
used in the crime belonged to the defendant. The defendant owned a gun but had reported it stolen 8 months
previous to the murder. The State then presented an expert who worked with the FBI who testified the lead
composition of the bullets used in the crime were identical to the bullets found in the possession of the
defendant. This was the only expert the defendant did not rebut. ( it was later found this testimony was not
rebutted because there was no expert existed) The defendant was subsequently found guilty. His sentence was
affirmed in all his direct appeals. This concurrent appeal is based on after discovered evidence. Since his
conviction the National Research Council recommended to the FBI there procedures in this testing were flawed.
So flawed in fact in 2002 it was discovered there existed no valid and relevant database of bullet compositions
nor any meaningful or comprehensive studies to permit interpretation of the forensic significance of an alleged
match of bullet compositions. The defendant was granted a new trial. Since this case the FBI has disclosed that
it has suspended the use of the Comparative bullet lead analysis test.
COMMONWEALTH v MICHAEL THURMAN (J.A04018/05 2005 PA SUPER 126)
Superior Court 2289 EDA 2004 decided April 7, 2005
"Inventory Search"
The defendant was stopped by the police for having a broken taillight and no insurance, pursuant to
the Norristown Police Department General Order the car was impounded, stopped the defendant. During the
inventory search the police found drugs and paraphernalia. The defendant was charged with various drug
offenses. Prior to the start of his trial he filed a Motion to Suppress this motion was subsequently denied
and he was found guilty. On appeal the Superior Court reversed because the Norristown Police had not right to
set up this General Order and the police care-taking function that authorize the towing of a vehicle do not
allow for a twenty-four hour grace period to allow someone to prove they have insurance before the car can be
towed.
Click here to read more on the case.
COMMONWEALTH v TERRI LYNN LEVANDUSKI (J.A33042/04) 2005 PA SUPER 117
Superior Court 937 EDA 2004 decided March 31, 2005
Evidence / hearsay
The defendant was arrested in connection with the death of her husband. During the investigation the
police searched her house. As a result of this search they found a letter written by the victim thrown
away in the trash. The substance of the letter was the defendant and her boyfriend were trying to kill him.
Prior to trial the defense petitioned the court to preclude the letter from being introduced as evidence
because it is hearsay. The trial court ruled the letter could not be admitted to prove the truth of matter
asserted in the contents of the letter but rather to show motive and to show the relationship of the parties
involved. The defendant was eventually convicted of first degree murder and sentence to life in prison. On
appeal the Superior Court reversed the trial court and granted the defendant a new trial. The Court found the
letter was in fact hearsay, the contents of the letter provided evidence of the relationship between the
defendant and her boyfriend, motive and a link to the murder weapon the relevance of the letter is dependent
upon the jury to believe its contents and therefore inadmissible.
Click here to read more on the case.
COMMONWEALTH v ERIC DION BELL (JUDGE CRONIN) (J.E04004/04 2005 PA SUPER 101)
Superior Court 425 EDA 2003 decided March 18, 2005
"Suppression/ consent"
The defendant was the subject of an ongoing investigation into the sale of drugs. On June 11 the Detective
was told from a confidential informant that the defendant and his wife would be arriving at a certain location
for the purpose of delivering drugs. At that time and date the defendant did arrive. Upon his arrival he was
told to get out of the vehicle, he and his wife were immediately handcuffed. Prior to his exiting of the
vehicle the officer noticed him place a package on the floor of the car. While he was handcuffed he was told
he was not under arrest but the officer read him his Miranda Warnings. At this time the officer
testified the defendant admitted he was delivering cocaine and gave consent to search the car. In the car the
police found cocaine on the floor. This encounter took approximately 3 to 5 minutes. The defendant moved for
suppression of the drugs found in the car because his consent was not voluntary. Judge Cronin denied the
suppression motion. On appeal the Superior Court reversed the decision, the Commonwealth then asked for en banc
review. After this review the Superior Court reversed its decision and affirmed the decision of Judge Cronin.
The court reasoned looking at the totality of the circumstances and not substituting their judgment of
credibility of the witnesses for that of Judge Cronin the consent was voluntary. There was a dissent written
which is worth reading.
Click here to read more on the case.
COMMONWEALTH v KENNETH CURNUTTE, JR., (J.S72005/04 2005 PA SUPER 109)
Superior Court 525 MDA 2004 decided March 22, 2005
"SVP Hearing/expert"
The defendant pled guilty to one count of sexual abuse of children. Prior to his hearing to determine
if he was a sexually violent predator, the defendant petitioned the court to appoint a psychological expert
to assist him. The court denied this request. On appeal the Superior Court concluded a defendant is entitled
to the assistance of a court-appointed psychologist expert at SVP proceeding when he is unable to procure one
on his own.
Click here to read more on the case.
COMMONWEALTH v CHAKA MATTHEWS (J.E04003-04 2005 PA SUPER 92)
Superior Court 2651 EDA 2002 decided March 14, 2005
" Sufficiency of the evidence/ aggravated assault"
The defendant was laying carpet in a shoe store when he had a fight with his boss, whole he was leaving
a security guard saw a number of boxes of shoes in his car. When asked about these boxes the defendant ran
into the guard with his car. After he left the scene his car skidded off the road and landed on the guardrail.
A fellow motorist stopped and pulled the defendant from his smoking car. After reviving the defendant, the
defendant stuck a gun in his face and threatened to kill him. The defendant subsequently fled the scene and
was caught by the police. The defendant was charged with various offenses including aggravated assault on the
motorist. After his trial he was found guilty of all charges. On appeal the only issue raised was in connection
with the aggravated assault on the motorist. His compliant was the evidence was insufficient to convict him of
aggravated assault because despite the fact the he presses a loaded weapon to the victims throat and threatened
to kill him he did not follow through with his threats despite the fact he had ample opportunity to do so. In
its analysis the court looked to two previous cases that present opposing views, Commonwealth v Mayo and
Commonwealth v Gruff. In reaching its decision the court rejected the
Mayo's court determination that
the Commonwealth cannot establish a defendant's intention to cause serious bodily injury when the defendant
merely declines to inflict such injury despite the opportunity. While a defendant's failure to conclude that a
defendant only intended to frighten, and never possessed the intent to commit serious bodily injury if may also
permit the fact-finder to infer that the defendant possesses the intent and under the circumstances changed his
mind. In the present case the court did find the evidence to sustain the conviction for aggravated assault.
Click here to read more on the case.
COMMONWEALTH v MALIK HOOD (J.A07017/04 2005 PA SUPER 93)
Superior Court 963 EDA 2003
Decided March 14, 2005
"Evidence/hearsay 911 calls"
The defendant was involved in a shooting, which occurred outside the victim's house after an argument
has ensued. After the shooting a number of 911 calls were placed by people in the neighborhood. These calls
identified the defendant as the shooter. After an extensive investigation the police found two witnesses who
were willing to come forward and testify at trial. At trial the Commonwealth was allowed to play the tapes.
On appeal the defendant claimed these tapes should not be admitted as excited utterances because there was no
testimony that the people on the tapes actually witnesses the event. In reaching its decision the Superior
Court found the Commonwealth did not present enough evidence to qualify these tapes as excited utterance but
found there was enough evidence presented to qualify the tapes under the exception to the hearsay rule of
present sense impression.
Click here to read more on the case.
COMMONWEALTH v TERRANCE GALLAGHER (J.A18038/04 2005 PA SUPER 116)
Superior Court 1596 EDA 2003 decided March 30, 2005
"Luring a child into a motor vehicle"
This case gives a good review of what constitutes luring a child into a motor vehicle.
Click here to read more on the case.
COMMONWEALTH v KAREEM WALLACE (J-171-2004)
Supreme Court No. 7 EAP 2004 decided March 29, 2005
"Sentencing"
After a defendant violates his probation the trial court is not restricted to imposing the
maximum term prescribed by the original negotiated plea.
Click here to read more on the case.
COMMONWEALTH v RUSSELL EDWARD LEHMAN (J-129-2004)
Supreme Court No. 43 WAP 2003 decided March 29, 2005
"Municipal Police Jurisdiction Act"
While on routine patrol the officer was approached by a citizen reporting a car stuck in the middle of
the road and the driver was slumped over the wheel. The location of the car was a quarter mile outside his
jurisdiction. After receiving this information he proceed to the car and found the driver passed out. After
he was able to revive the driver he detected on odor of alcohol on his breath and the driver was not aware of
where he was or how to got there. Suspecting the driver of being intoxicated he radioed for the state police
and waited for them to arrive. The state police eventually arrested the defendant. Prior to trial the
defendant moved to suppress the stop because the responding police officer was out side his jurisdiction when
he was detained. The Supreme Court found the officer in this case did not violate the provision of the
Municipal Police Jurisdiction Act because he was rending assistance and not engaged in an extrajurisdictional
fishing expedition or was it an attempt to expand his sphere of power.
Click here to read more on the case.
COMMONWEALTH v DAVID MEADUS (J-12-2004)
Supreme Court 35 WAP 2003 decided March 29, 2005
"Rule 600 (G)"
The Commonwealth filed a criminal complaint against the defendant on January 16, 2001. The preliminary
hearing was scheduled for February 8, 2001 but the hearing was continued because the prosecutor had to attend
a CLE course. On March 8, 2001 the hearing again was continued because a Commonwealth witness failed to appear.
On March 22, 2001 the case again was continued because two of the essential Commonwealth witness failed to
appear. At that time the district justice gave the Commonwealth a choice either withdraw the compliant or he
was going to dismiss the complaint. The Commonwealth chose to withdraw the complaint. The District Attorney
then called all the witness to confirm their appearance if needed in the future. On March 27, 2001 the
Commonwealth refilled the complaint. The trial was listed for February 4, 2002. On January 20, 2002 the
defendant moved to dismiss the charges in accordance with rule 600 (G). The Commonwealth's urges the court
to use the two part test found in the line of cases Johnson, Simms, Whiting which allow for the
Commonwealth the benefit of the second filing date if the Commonwealth does not attempt to circumvent the time
limitation of rule 600. The Supreme Court rejected this argument and concluded where the Court is faced with
this situation the proper analysis should include if the Commonwealth exercised due diligence in bringing the
case to trial on the first filing. They further found in this case the Commonwealth failed to exercise due
diligence in this case and concluded the Commonwealth does not receive the benefit of the second filing date and
dismissed the charges.
Click here to read more on the case.
SHEPARD V UNITED STATES NO. 03-9168
Supreme Court of the United States decided March 7, 2005
"Sentencing"
The defendant had pled guilty to felon in possession of a firearm in determining his sentence the
government moved to increase his sentence in accordance with the Armed Career Criminal Act. In support of
their motion they presented the court with the defendants prior record for a burglary conviction in Mass. This
conviction was a result of a guilty plea. Under the ACCA statute only a generic burglary qualifies under the
statute. His guilty plea for the previous burglary was not specific as to what exactly happened. The government
wanted to use police reports, complaints applications and dismissed charges to determine the nature of the
burglary. The Supreme Court concluded the information to be used in this determination is limited to the terms
of the charging document, terms of the plea agreement, transcripts of the plea colloquy or some comparable
judicial record of this information
COMMONWEALTH v STEVEN LEWIS DUFFEY (J-111-2002)
Supreme Court 324 CAP 2002, decided August 18, 2004
5th 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.
COMMONWEALTH v PAUL P. MONACO (J.S65026/04 2005 PA SUPER 79)
Superior Court 450 EDA 2004 decided February 24, 2005
"Jurisdiction of the Juvenile Court"
The defendant was 22 when he pled guilty to various sexual offenses that had occurred when he was a juvenile.
At the time of sentencing the issues of the cases being transferred to juvenile court were not raised, instead
the defendant filed a PCRA petition raising the issue of his counsel ineffectiveness for not requesting the
case be remanded to juvenile court. The Superior Court affirmed the judgment of sentence because the defendant
was 22 years old at the time he was charged and did not satisfy the statutory definition of a child at that
time. The delay in bringing charges were not the fault of the Commonwealth, as soon as they knew about the
incidents the defendant was charged with the crimes. Since the defendant's current age places him outside the
juvenile system the trial court was correct in trying and sentencing the defendant as an adult.
Click here to read more on the case.
COMMONWEALTH v SHELDON L. WEST (J.S70024/04 2005 PA SUPER 61)
Superior Court 260 WDA 2004 decided February 15, 2005
"Sentencing"
The defendant was convicted on May 1990 for selling cocaine. After he was sentenced the defendant filed
a motion to be released on bail pending his appeal. The motion was granted and defendant was released pending
the outcome of his appeal. On June 10, 1992 the Superior Court affirmed the judgment of sentence, on March 24,
1993 the Pennsylvania Supreme Court denied cert on the defendants petition. At this point the defendant was
never notified to report to start serving his sentence. As a result of this mistake the defendant remained on
bail until April 2002 until he was arrested on an unrelated crime. In concluding the defendant be discharged
from his 1990 sentence the court used the four prong test set forth inBarker v Wingo
(1) is the delay itself sufficient to trigger further inquiry (2) the reason for the delay must be examined
(3) the defendants assertion of his rights is examined and (4) what if any prejudice occurred to the defendant.
In the present case the court found the 9 years delay sufficient to warrant further inquiry. The court then
looked to the reasons for the delay. A deliberate delay should be weighed heavily against the defendant
while a more neutral reason such as negligence should be weighted less heavily but nevertheless should be
considered since the ultimate responsibility for such circumstances must rest with the government rather than
the defendant. In this case the defendant had been arrested numerous times since 1990 each time the
Commonwealth had the opportunity to have him start his sentence but this never occurred. The defendant asserted
his rights when a bench warrant is issued for this case. He never tried to hide his identity or change his
residence. Because of this the fact that the defendant did not assert his rights sooner would not be held
against him. The prejudice the defendant suffered given the length of the delay the transcripts of the case
were lost, certain vital evidence was lost and he would have difficulty re-creating the facts of the case.
Given all of these factors the court concluded the defendants due process rights were violated and he did not
have to serve the 1990 sentence.
Click here to read more on the case.
COMMONWEALTH v MAURICE BARNES (J.A39042/04 2005 PA SUPER 72)
Superior Court 584 MDA 2004 decided February 22, 2005
"Conspiracy"
The defendant was found guilty of three counts of conspiracy; conspiracy to commit third degree murder,
conspiracy to commit robbery and conspiracy to deliver a controlled substance. The court concluded the evidence
was insufficient to convict the defendant on all three-conspiracy charges. All of the events stemmed from the
original conspiracy to deliver a controlled substance. The murder and the robbery were a result of the
original conspiracy to deliver the drugs the evidence was insufficient to prove three separate conspiracies to
commit the other crimes. The case was remanded back to the trial court for re-sentencing.
Click here to read more on the case.
UNITED STATES v ANTELOPE 9 TH CIRCUIT COURT OF APPEALS
"5th amendment right of self-incrimination"
The defendant pled guilty to possession of child pornography and was sentenced to a term of probation.
As a part of his probation he was required to participate in a sexual offenders program. As a participant in
this program he was required to submit to randon polygraph test and to tell the counselors about his sexual
history, including an actions that were taken with underage girls. When he raised an objection the court told
him that he believed any information was privileged. However under the guidelines any information concerning
the defendants involvement with underage individuals were to be turned over to the District Attorney. The
defendant refused to answer any questions unless he was given immunity. He was subsequently found in violation
of parole and sentenced to a term of incarceration. This occurred on two occasions.
The court first determined the defendant's issue was ripe for consideration because he had already
been incarcerated for failing to comply with the program. The defendant has a right to remain silent in this
situation because when questions put to a probationer however relevant to his probationary status call for
answers that would incriminate him in a pending or later criminal prosecution he may properly invoke his right
to remain silent. The court also found the conditions in this case were sufficiently coercive because the
defendant was reincarcerated when he failed to submit to the conditions of the program. Given the fact the
defendant is entitled to the 5 th amendment privilege in this case he has a right to seek immunity
before he gives any statement.
COMMONWEALTH v JEREMIAH D. OSTROSKY (J.A40006/04 2005 PA SUPER 5)
Superior Court 2134 WDA 2003 decided January 4, 2005
In September 2002 the defendant was at a football game when he encountered the victims in this case. Prior to
this date the defendant had been ordered to pay the victims $2,200 restitution for damage that he caused on their
truck. While they were at the football game the defendant and the victim were involved in a verbal altercation.
At one point the defendant told the victim that it was his fault he spent time in jail for vandalism the whole
time the defendant was ranting the victim did not take him seriously and stated to walk away at this point the
defendant stated that he was going to slap his wife around and ass f....her. After this comment the victim
started to look for help and the police were called. When they arrived and arrested the defendant. The defendant
was convicted of one count of retaliation against a witness or victim, two counts of terroristics threats and one
count of disorderly conduct. On Appeal the Superior Court affirmed all convictions except for the charge of
retaliation against a witness. In reversing this conviction the court found a single incident of verbal conduct
is not conduct that is punishable under the retaliation statute.
Click here to read more on the case.
COMMONWEALTH v TIMOTHY GRAY (J-S67014/04 2005 PA SUPER 22)
Superior Court 3417 EDA 2003 decided January 20, 2005
The defendant was involved in an altercation with his girlfriend. The police were patrolling the area when,
they were approached by a pregnant woman who told them her mother was being assaulted by her boyfriend. When
they went to investigate they found the defendant on top of the woman and she was screaming "get him off of me". She was
bleeding from the wound on her face and eye. She told the officers the defendant has stabbed her with a knife and
a screwdriver. During the trial the Commonwealth presented the hearsay statements of the two officers involved
with the investigation and the medical report concerning the victims injury. On appeal the defendant claimed the
trial court erred when it found him guilty based solely on hearsay evidence. The Superior Court concluded that
the statements made by the daughter were excited utterances and qualified under the exception to the hearsay
rule. The victim's statements even if they would not qualify under the excited utterance exception the Court
found this error to be harmless.
The defendant then complained on appeal the statements admitted at trial violated his right of confrontation
as explained in Crawford v Washington. The Superior Court disagreed and found the statements at issue were not
testimonial as required by the ruling in Crawford. They reasoned because these statements were not made in
contemplation of a prosecution and were not given in direct response to a police interrogation they do not fit
under the definition of testimonial as outlined by the Supreme Court in Crawford.
Click here to read more on the case.
COMMONWEALTH v ALLEN WADE, JR. (J.A40004/04 2005 PA SUPER 21)
Superior Court 1776 WDA 2003 decided January 19, 2005
The defendant was arrested in connection with a robbery that had occurred at a Pay Less shoe store.
On April 25 an African American man wearing an orange sweatshirt entered the store an approached the cashier and
demanded the money. A customer in the store at that time was with her young child when the robber was not looking
she grabbed her child and ran of the store. After the cashier had trouble with the register the robber told her
and another employee to go to the back of the store. At this time he demanded more money, when he was assured he
had all the money he grabbed a backpack and jacket and ran out of the store through the back door. The man then
suddenly reappeared for a second to throw the backpack and jacket back into the store. After this the robber ran
into the customer in the mall, at that point he told her to "get the hell out of here" During their investigation
the police had in their possession the defendant's drivers license. They showed this license to the employees at
the store and told them they had a suspect in custody and was this, the man who robbed the store? The defendant
was eventually arrested and charged with the crime.
During trial the Commonwealth presented the testimony of the customer in the store at the time of the
robbery. During her testimony she stated that after the robbery had occurred she had run into the defendant while
in the mall and he told her to get out. This statement was not turned over to defense counsel. Because of this
the court would not allow the identification of this witness to stand. When the defendant testified in his behalf
the Commonwealth again reintroduced the testimony of the customer concerning her encounter with the robber outside
of the store on rebuttal. The Superior Court reversed the trial courts decision because by allowing this testimony
after the Commonwealth had been sanctioned for not turning the evidence over negated the sanctions suffered by
the Commonwealth and would leave no recourse for the defense if the Commonwealth violated the rule of discovery.
The Commonwealth also failed to turn over the evidence concerning the identification procedure used by the
police. The trial court allowed this evidence to be admitted at trial over the objection of defense counsel. The
Superior Court reversed the trial court decision because it was highly suggestive and the police did not use the
proper procedure in the identification procedure. (the court gives a lengthy discussion of the pitfalls of pre-trial
identification procedures can be.)
Click here to read more on the case.
COMMONWEALTH v LAWRENCE A. GAUL, JR., (J.A39038/04 2005 PA SUPER 23)
Superior Court 473 MDA 2004 decided January 19, 2005
The defendant was a suspect in a case about a missing firearm. The police requested the defendant to come
down to the station to talk about this matter. While at the station the detective told the defendant that since
he was in custody he would have to read him his Miranda Warnings. He then asked the defendant is there was
anything he would like to say? If so then he would have to read him his Miranda Warnings. After this the
defendant told the detective off the record he could get the gun back, but they would have to make a deal with
him. The detective told him he was not able to make any promises or guarantees. At this point the conversation
stopped and the defendant was arrested.
Prior to trial the defendant filed a suppression motion to have he statements suppressed. The trial court
suppressed the statement because they found the defendant was subjected to a custodial interrogation and the
officer failed to read him his Miranda rights. The Superior Court reversed because they found the defendant was
not subject to custodial interrogation at the time of his statement and the officer was not required to read him
Miranda Warnings.
Click here to read more on the case.
COMMONWEALTH v DAVID JOSEPH DINICOLA (J-112-2003)
Supreme Court 15 WAP 2003 decided January 19, 2005
The defendant was arrested in connection with a number of sexual assaults concerning his interaction with
a minor who was a resident at a youth placement facility where the defendant formally worked. After his arrest by
the police the defendant elected not to speak with them and remained silent. During the trial the defense
position was the police did not fully investigate the crimes. To support this theory defense counsel questioned
the police concerning their efforts to investigate. During this inquiry counsel asked specifically what they did
to investigate this crime. At this point the officer stated that he contacted the defendant and started to say he
would talk to them. Upon hearing this counsel shifted the questioning in another direction. On Cross-examination
by the Commonwealth the officer was allowed to comment on the fact that the defendant refused to talk with the
police.
On appeal the defendant raises the issue that his 5th amendment rights to remain silent was
violated when the Commonwealth questioned the police officer. The Supreme Court held that his 5th
amendment rights were not violated since his defense was the police conducted an inadequate investigation and the
Commonwealth was allowed to explore the reasons for their actions in this case.
Click here to read more on the case.
COMMONWEALTH v WALTER PLUCINSKI (J.S66029/04 2005 PA SUPER 38)
Superior Court 734 MDA 2004 decided January 28, 2005
"Sexual Violent Predator Hearings"
The defendant was convicted of rape and related sexual offenses involving his step-daughter. Prior to sentencing
he was evaluated by the sexual assessment board. At the hearing the psychologist opined the defendant was a
sexually violent predator because he suffered from a condition known as "hebhelia" this is a sub category of
"paraphilia" this condition is not listed in the DSM-IV or DSM-IV-TR, but rather the doctor found this condition
listed in unidentified literature. The defendant presented his own doctor who based on the evidence he was not a
sexually violent predator. This doctor also went on to explain to the court that she had never heard of the
condition of "hebhelia" and this condition was not in any standard books that she was aware of. The Superior
Court reversed the trial court's decision based on the fact the sexual assessment guidelines this defendant did
not meet the requirements and the fact that the doctor relied on a condition that was not listed in the DSM-IV or
DSM-IV-TR, the Commonwealth's evidence was insufficient to prove the defendant was a sexually violent predator.
Click here to read more on the case.
COMMONWEALTH v JIMMY JACOB (J.A35044/04 2005 PA SUPER 29)
Superior Court 1044 EDA 2004 decided January 24. 2005
"Elements needed to convict for Attempted Involuntary Deviate Sexual Intercourse"
The defendant was chatting on the internet with who thought was a 12 years old girl. During these chats
they talked about having sex, the defendant then phoned the girl and told her he would teach her how to perform
oral sex, they arranged to meet the next day at a specified location, after they meet he was going to take her to
his place and then bring her back. The next day he arrived at the arranged location with condoms in his car. The
police arrested him on the spot. He was subsequently convicted of attempted involuntary deviate sexual
intercourse. On appeal the Superior Court affirmed the decision based on all the factors he had completed a
substantial step to commit this crime.
Click here to read more on the case.
COMMONWEALTH v CHARLES FRANKLIN STEWART (J.S63004/04 2005 PA SUPER 28)
Superior Court 1337 WDA 2003 decided January 21, 2005
"Sentencing"
The defendant was arrested for a various sexual assaults. Prior to trial the defendant agreed to pled
guilty to some charged while to Commonwealth agreed to nolle prossed the remaining charges. At the sentencing
hearing the trial court sentenced the defendant in the aggravated range based on the charges that were dismissed.
The defendant issue on appeal was whether a trial court may enhance a sentence because of charges that have been
nolle prossed as part of a plea bargain? The Superior Court remanded the case back to the trial court for a new
sentencing hearing after they concluded that it is a manifest abuse of discretion exists when a court uses charges
that have been nolle prossed as part of a plea agreement to enhance a sentence.
Click here to read more on the case.
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