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Posted by on Feb 23, 2018 in Criminal, Fourth Amendment, Seizure, Suppression | 0 comments

Com v. Yong: Collective Knowledge Doctrine Affirmed

When two police officers independently have the information necessary to constitute probable cause, but they have not communicated these facts to each other, is the arrest of the defendant constitutional? The Supreme Court of Pennsylvania says yes, in a 4-2 ruling in Commonwealth v. Yong.

Mr. Yong’s suspected drug dealing in Philadelphia (home of the World Champions) was the subject of surveillance by the Philadelphia Police in 2011. During that time, he was observed by Officers McCook and Morales conducting marijuana transactions. The record reveals that Officer McCook “met up with . . . other officers” and “brief[ed] them on the execution of the search warrant.” One of these other officers was Officer Gibson, who arrested Yong during the search and discovered a gun on his person. Marijuana was recovered in substantial amounts from the premises, and Yong was charged with various drug related crimes.

The collective knowledge doctrine allows officers to have the knowledge of other police officers “imputed” to them for Fourth Amendment purposes. Two approaches have been adopted by courts: vertical and horizontal. The vertical approach involves a situation where an officer with probable cause orders another officer to act (“Arrest that man!”). Courts have broadly ruled this this situation imputes probable cause. The horizontal approach is the controversial one—can a group of officers, each of whom holds a piece of the puzzle, be rendered a unit for the purpose of probable cause?

Majority by Mundy: Officer with Probable Cause may impute his knowledge to another Officer

Justice Mundy, writing for the 4-member majority, writes that the knowledge of a police officer with probable cause may be imputed to the arresting officer under the collective knowledge doctrine if they “are working in a coordinated investigation and not as independent law enforcement personnel . . . coincidentally.” Noting that there are “serious concerns for protecting citizens from unconstitutional intrusions,” the majority rejects the horizontal approach, but finds that a vertical approach is supported by the facts of this case.

The majority places particular weight on the pre-search briefing that took place. Surely there was communication of probable cause at that time, or at the very least, an order to arrest Yong if he was seen. Accordingly, the majority has no qualms that an illegal search took place here. “[W]e maintain that Pennsylvania adheres to the vertical approach of the collective knowledge doctrine, which instructs that an officer with the requisite level of suspicion may direct another officer to act in his or her stead.”

Dissent by Donohue: Proof of Communication should be Required for Vertical Approach

Justice Donohue dissents, accusing the majority of “announc[ing] a new rule that permits uncommunicated knowledge of one police officer to justify an arrest conducted by another officer.” Donohue would require evidence of actual communication, not imputed authority.

Conclusion: An Odd Vehicle for this Holding

Appellate courts traditionally look for good “vehicles” to resolve major issues of law. In other words, they prefer cases that cleanly present the issue. In this case, the Court, having found vertical collective knowledge, need not have made any determination on the horizontal approach. Clearly, the Court was eager to provide guidance on this, and to some extent, it is appreciated by practitioners at the criminal bar. Nonetheless, the Court usually tries to take cases where an analysis can take place without leaving the facts at hand, which did not happen here.

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Posted by on Feb 22, 2018 in Criminal, PCRA, Sentencing | 0 comments

Com v. DiMatteo: PCRA petitioner entitled to new sentence where SCOTUS change occurred before his sentence was final

Commonwealth v. DiMatteo resolves an obscure overlap in sentencing rules in Pennsylvania, confirming that a Defendant is entitled to resentencing where he was not sentenced on his open plea before a SCOTUS decision established that the ultimate sentence he would receive was unconstitutional.

The Supreme Court of Pennsylvania rules unanimously that a PCRA petitioner is entitled to resentencing because Alleyne v. United States was decided by SCOTUS before Dimatteo was sentenced. This holding resolves an ambiguity that arose where the Court had already held that 1) Alleyne is not “retroactive” to those whose sentences were decided before Alleyne was handed down; and 2) negotiated guilty pleas cannot later be challenged on the basis that the sentence is illegal because the prosecution is entitled to the benefit of its bargain.

Alleyne ruled that an aggravating factor that results in a longer sentence must be found by a jury, not by a judge. At issue in this case is 18 Pa.C.S. § 7508 (“Drug trafficking sentencing and penalties”), which allowed for aggravated penalties depending on the weight of the drugs, which weight was to be determined by the sentencing judge.

Another issue addressed here is whether a sentence that is unconstitutional presents a cognizable claim under the PCRA, which only recognizes a claim for sentences that are “

Majority by Mundy: An Illegal Sentence Can be Addressed by a timely PCRA petition

Justice Mundy, writing for five members of the unanimous Court, holds that DiMatteo is entitled to have his unconstitutional sentence revoked, and to be resentenced. Mundy notes that an open plea is different from a negotiated guilty plea, which the Court had previously said should be upheld in a post-sentence challenge. After all, if the Defendant knowingly accepted a sentence on the longer end of the range, purportedly aware of the change in the law, he should not get to challenge that sentence later.

But an open plea is different. An open plea should not result in an unconstitutional sentence. DiMatteo gets a new sentence, and the Court agrees that § 7508 is unconstitutional under Alleyne. Furthermore, despite the fact that PCRA petitions are limited to essentially eight enumerated grounds, an illegal sentence can always be addressed if the PCRA petition is timely under the “greater than the lawful maximum” power of PCRA courts.

Concurrence by Baer: Commonwealth’s argument unsupported by the record

Justice Baer concurs, arguing that because PCRA petitions are the “sole means by which to obtain collateral relief” in Pennsylvania, “a claim generally challenging the legality of a sentence is cognizable under the PCRA.” In addition, Baer addresses the Commonwealth’s argument that its withdrawal of other charges was consideration for DiMatteo’s open plea, and that the plea should be considered “negotiated” on this basis. Baer finds this argument unsupported in the record.

Conclusion: Open Pleas Really Do Have Benefits

Open pleas are typically risky for defendants—they leave discretion in the trial court’s hands, and leave the defendant with little recourse on appeal if the judge lays down the hammer. In this unusual case, the defendant gets the benefit of the doubt because of his open plea. This case will have further-reaching effects than one might think at first glance. This isn’t just about Alleyne. It lays out an avenue for relief to anyone who sees a major SCOTUS case alter the landscape, even at the last moment.

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Posted by on Feb 14, 2018 in Appellate Procedure, Civil Procedure | 0 comments

Shearer v. Hafer: Interlocutory Appeal unavailable for civil pretrial dispute over right to counsel at psychological examination

In Shearer v. Hafer, the Supreme Court of Pennsylvania rules 6-1 that an interlocutory appeal was not appropriate in a pretrial discovery dispute over whether a plaintiff has the right to counsel at a psychological examination because the right involved was not important, and would not be lost on appeal.

The case arises out of a personal injury action. The Defendants asked for a psychological exam pursuant to Pa.R.C.P. 4010, and Mrs. Shearer insisted on having her attorney present. Mr. Hafer and his codefendant had a doctor who alleged that having anyone else present during the examination could result in the introduction of bias and distortion of the data, and refused. After the Court ruled for the Defendants, Shearer asked for certification of interlocutory appeal pursuant to Pa.R.A.P. 313, which allows appeal if 1) the issue is “separable from and collateral to the main cause of action; 2) the right involved is too important to be denied review; and 3) the question presented is such that, if review is postponed until final judgment in the case, the claim will be irreparably lost.”

Both parties agreed that this case was appropriate for interlocutory appeal—but such an appeal is jurisdictional, and while SCOPA retains King’s Bench authority to step into any case at any time, it prefers to see jurisdictional bars as actual bars to its authority to step in.

Majority by Todd: Right to counsel at pretrial examination is not of constitutional importance, will not be lost on direct appeal

In a 6-1 decision, Justice Todd and the Court hold, sua sponte, that the appeal fails to meet the last two of the three prongs of the interlocutory appeal rule, and the case must be remanded without reaching the merits. The majority takes a long look at the history of interlocutory appeals in the Federal Courts, and notes that Pennsylvania is more permissive than the Federal Courts on granting such appeals. (The Court does not discuss this, but this difference in policy might be due in part to Federal Jurisdictional rules, which are not a concern for courts of general jurisdiction, i.e. state courts).

The Court recites the three-part test for interlocutory appeals, and finds that the present appeal fails on the latter two prongs. While the appeal is separable from the main cause of action, and therefore satisfies the first prong, the alleged right to counsel at a psychological examination is not the type of constitutional interest or interest deeply rooted in public policy which “would go unprotected without immediate appeal” such that it overrides the “efficiency interests served by the final order rule.”

Furthermore, the plaintiff’s right to counsel at such an examination will not be irreparably lost if the matter waits until final appeal for adjudication. Although Mrs. Shearer will have to sit through an examination without counsel, she can ultimately prevail on appeal, obtain a new trial, and have counsel at the examination which will be used in the subsequent new trial. Thus, her rights will not be lost.

Concurrence by Wecht: Non-delegation doctrine should prohibit the rules invoked here

Justice Wecht reiterates the concerns that gave rise to Protz v. WCAB last year, detecting “a palpable risk that reliance upon standards written by nongovernmental organizations, such as the APA . . . may run afoul of the non-delegation doctrine.” By incorporating guidelines promulgated by the National Academy of Neuropsychology into its code of conduct, the State Board of Psychology (let’s take a moment to consider why it’s a “State” board, and not a Commonwealth board, by the way) may have promulgated unenforceable ethical rules in this respect. Wecht emphasizes that the issue is not presented in this appeal, but that agencies should be careful in this respect.

Dissent by Mundy: “Importance” prong is not limited to matters of constitutional importance, and right to counsel may be essentially lost on direct appeal in this case

 Justice Mundy would not interpret the “importance” prong as referring only to constitutional matters. “Rule-based rights may well be significant relative to the final order rule and be deeply rooted in public policy.” Mundy also expresses her concern that the passage of time may render a subsequent psychological exam prior to a new trial may indeed cause the rights at issue to be lost.

Conclusion: Interlocutory Appeals Disfavored

The holding in this case demonstrates that interlocutory appeals are disfavored. Even where both parties and the lower court agree that an appeal is appropriate and will save time in the action, the appellate courts can refuse to hear it. I expect that this decision may limit the interlocutory appeals asked for, taken and resolved on the merits in the future.

Additionally, Justice Wecht’s concurrence invites future challenges to AMA and NAN guidelines making their way into the law. Attorneys would be wise to keep an eye out for challenges to these types of statutes in the future.

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Posted by on Feb 14, 2018 in Civil, Constitutional Provisions, Elections | 0 comments

League of Women Voters v. Commonwealth: The “Free and Equal Elections” Clause Prohibits Gerrymandering

Ever since the Pennsylvania Supreme Court issued an expedited order in League of Women Voters v. Commonwealth, ordering the Commonwealth Court to proceed with discovery and findings of fact, many have speculated as to whether the Court would really rush out in front of the Supreme Court of the United States on the issue of gerrymandering and issue a decision attempting to proscribe the practice. In January, the Court not only did so, but in a 5-2 decision, required the legislature and governor to come to terms on a new congressional map before this year’s primary elections. The Court also ruled that Pennsylvania’s current congressional map violates the “Free and Equal Elections” clause in Article I, section 5 of the Pennsylvania Constitution.

Gerrymandering has a long and defiant history in the political systems of the United States—indeed, the practice is named after one of our founding fathers, who himself was hardly its first practitioner. Scholars, politicians and courts have proposed a number of solutions, but to date, none has proven to be particularly successful in curtailing the practice. Some argue that gerrymandering is the inescapable result of the political system, and that the power to draw lines is the natural spoil of the sport.

The Supreme Court of Pennsylvania’s opinion may be the most aggressive ever issued on gerrymandering, and it has sparked a political battle between the branches of the Commonwealth’s government. From the perspective of a judiciary-watcher, the case—and this opinion—have been entertaining. Not only has the case drawn national press attention, but it has invoked the more obscure tools of Pennsylvania’s flexible appellate judiciary, relied on the precedence of Pennsylvania’s constitution, fleshed out an Article I right that has lain dormant until now, highlighted the uniqueness of Pennsylvania’s federalist structure, and tested the limits of SCOPA’s powerful jurisdiction. This may be one of the greatest test of SCOPA’s power in the Pennsylvania political structure to date. Only one other state (Alaska) has ever found protections against gerrymandering in a state constitution, and Pennsylvania takes an enormous step in this area of law in holding that the congressional map “clearly, plainly and palpably violates the Pennsylvania Constitution.”

Majority by Todd: Districts must be compact, contiguous, and maintain the integrity of political subdivisions

In her 5-2 majority opinion, Justice Todd holds that Article I, section 5’s “free and equal elections” clause requires that the districts drawn by the legislature be 1) compact, 2) contiguous, and 3) maintain the integrity of political subdivisions. “Our founding document is the ancestor, not the offspring, of the federal Constitution,” the Court explains, which is significant in part because the traditional grounds for federal suits against state gerrymandering are grounded in the 14th Amendment—written long after the Pennsylvania Constitution’s Article I.

The provision at issue here reads as follows: “Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”

The Court delves into some of the most notable scholarship on the Pennsylvania Constitution’s development, finding that the “free and equal” provision was a response to the restrictions on the right of political minorities to vote, and that an election is not free and equal if individuals’ votes are targeted for dilution for political purposes. Such targeting robs the voter of his voice, and is antithetical to the democratic process.

The Court includes a great deal of discussion on the scientific and mathematical model findings of several expert witnesses, which support the Court’s ultimate ruling that this plan fails to satisfy the three overarching goals of the free and equal elections clause.

Finally, the Court gives a defense of its decision to rewrite the congressional map if the democrat Governor finds the Republican legislature’s plan unacceptable (which happened yesterday). The Court cites proudly to a Scalia decision from SCOTUS in Growe v. Emison, 507 U.S. 25 (1993), which ruled that federal courts should exercise Pullman abstention where a state court was redistricting the legislative map in an attempt to comply with federal law. (Scalia also called this a “highly political task” in that same opinion—the Court spends relatively little time in this opinion on justiciability or political question doctrine, which have traditionally prevented these suits).

SCOPA also argues that its powers derive from the legislative codification of SCOPA’s King’s Bench authority (SCOPA may “enter a final order or otherwise cause right and justice to be done.” 42 Pa.C.S. § 726). Of course, whether this King’s Bench authority allows the Court to usurp a traditional legislative function is a somewhat different question, which the Court does not address.

Concurrence by Baer: These criteria have no basis in the Constitution

Justice Baer concurs in the result, but would have waited to order a new map until after the primaries. Baer alleges that the lack of time to formulate a new map may even represent due process concerns for the parties to the case. He also has concerns about the clarity of the criteria developed by the Court—criteria which have no basis in the text of the Constitution. “I am unwilling to engraft into the Pennsylvania Constitution criteria for the drawing of congressional districts when the framers chose not to include such provisions despite unquestionably being aware of both the General Assembly’s responsibility for congressional redistricting and the dangers of gerrymandering. It is not this Court’s role to instruct the Legislature as to the ‘manner of holding elections,’ including the relative weight of districting criteria.”

Dissent by Saylor: improvident use of extraordinary jurisdiction

Chief Justice Saylor dissents, arguing that the Court should have awaited the “anticipated guidance from the Supreme Court of the United States,” particularly in light of how long the challengers waited to challenge the 2011 congressional map. The Chief Justice views the matter as inherently political, and would leave greater deference to the political branches.

Saylor also argues there is no “right to an equally effective power of voters in elections,” and that a voter’s diluted vote is part of the democratic process. Citing to a SCOTUS concurrence by Justice O’Connor, Saylor suggests that the “prophylactic” rule created here could have a chilling effect on even legitimate considerations (such as giving racial minorities greater pull in elections). Saylor also notes that the power to draw districts is left by the Federal Constitution’s Article I, section 4, to the legislatures of the states.

Dissent by Mundy: Stare Decisis and lack of constitutional mandate compel a different result

Justice Mundy dissents, arguing that the state constitution provides no clear guidance on how congressional maps are to be created, and criticizing the Court for “these vague judicially-created ‘neutral criteria,’” which “are now the guideposts against which all future congressional redistricting maps will be evaluated, with this Court as the final arbiter of what constitutes too partisan an influence.” Mundy also points to Erfer v. Com, 568 Pa. 128 (2002), in which the Court had previously considered and declined arguments to rule that gerrymandering violated the state constitution. Justice Mundy also discusses the SCOTUS caselaw cited by the majority, discussing how none of these cases dealt with the elections clause of the Federal Constitution’s Article I, section 4.

Conclusion: The political dispute becomes legal; but will the legal become political?

To say there are differing opinions on the validity of the Court’s judgment here is an understatement. The longshot appeal to SCOTUS—denied on February 5—argued that SCOPA had usurped the role delegated to the legislature by the Federal Constitution in Article I, section 4. The argument is that the Federal Constitution gives to certain branches of the state government specific jobs to do which may not be reviewed or impinged by other branches of the state government in order to ensure that certain necessary tasks within our federal system are left outside of state politics. If you recall, this was the argument embraced by a concurrence in Bush v. Gore in overruling a state court’s interpretation of its own laws, and instead accepting the state legislature’s prescribed process for vote counting. This argument may yet come back, depending on how SCOPA draws the congressional map.

But the biggest gripe which opponents of the decision have is that the Court has entered the political fray and rendered political disagreements justiciable. There will be hew and cry when a democratic map is upheld, or vice versa, and there will never be peace. The Court’s bold move may usher in calls for reining in the Court’s power, or even for a constitutional convention. When the political becomes legal, there is a danger that the legal will become political, subject to whims and passions. Law is a science, or so we lawyers like to think, separate and apart from the politicians’ arts. Now SCOTUS will have its turn; will its ruling be as bold? Or will SCOTUS dodge again on justiciability grounds? With League of Women Voters, the Pennsylvania Supreme Court takes a bold step into the fray. History will judge whether the step was wise or ill-considered.

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Posted by on Feb 13, 2018 in Criminal, Murder, PCRA | 0 comments

Com v. VanDivner: Three Part Miller Test Establishes Sanity for Death Penalty

The Supreme Court of Pennsylvania ruled 6-0 in Commonwealth v. VanDivner that a defendant whose intellectual impairments interfere with his ability to cognitively adapt is mentally incompetent as regards the death penalty in Pennsylvania. Under SCOTUS precedent Atkins v. Virginia, such an individual may not be put to death. This case also serves as a reminder that a death penalty case which comes to the Court under its exclusive appellate jurisdiction over death penalty cases is remanded upon the Court’s ruling that the death penalty is inapposite for further proceedings in the Superior Court.

The case comes as a PCRA petition, arguing that his counsel was ineffective in failing to appropriately argue the evidence in regard to his mental deficiencies before age 18.

Todd: Interaction Between the First Two Prongs of the Miller test is Key to Inquiry

Speaking for the unanimous 6-0 majority, Justice Todd rules that VanDivner met the three part “Miller” test for mental incapacity, and that trial counsel’s failure to flesh out VanDivner’s significant limitations rendered him ineffective under Strickland.

In Com v. Miller, 585 Pa. 144 (2005), SCOPA established a three part test for determining mental incapacity for Eighth Amendment purposes:

  • Limited intellectual functioning;
  • Significant adaptive limitations;
  • Onset prior to age 18.

There is no “IQ cutoff” score to determine limited intellectual functioning, but rather, the “interaction” between the individual’s intellectual limitations and adaptive limitations determines the degree of incapacitation under this inquiry. Furthermore, the assessment is based on an individual’s “typical” rather than maximum performance. VanDivner’s voluminous evidence included testimony of his limitations prior to age 18, along with the substantial ways that he was limited, not only in IQ, but in his behavioral and adaptive abilities. The Court rules, therefore, that

Upon concluding that VanDivner is not eligible for the death penalty, the Court reclassifies the case as non-capital and sends it to the Superior Court for consideration of VanDivner’s other claims regarding his conviction.

CJ Saylor: Atkins justifies vacating sentence without ineffective assistance

Chief Justice Saylor concurs, arguing that a violation of the Eighth Amendment justifies vacating a sentence without a showing of ineffective assistance of counsel. Saylor would not use ineffective assistance as an “overlay” to get to the desired result but, upon a showing of a constitutionally-unsound death penalty verdict, would vacate the sentence on substantive grounds, namely, the imposition of sentence upon a mentally incompetent defendant.

Conclusion: Miller test reaffirmed

This case doesn’t exactly set new precedent or break new ground. The Miller test for mental incompetence has been the law in Pennsylvania for some time. But this case reaffirms the required connection between deficient IQ and cognitive adaptability. The case also emphasizes that an individual’s cognitive weaknesses are measured by this test, not the individual’s strengths. Put differently, someone who has ups and downs should be measured according to their down days, and the evidence considered in light of how low they can go.

VanDivner avoids the death penalty, and lives to fight another day in the lower courts over his underlying murder conviction.

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