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Posted by on Nov 16, 2017 in Criminal, Expert Testimony, Pennsylvania Rules of Evidence | 0 comments

Com v. Maconeghy, Jr.: Medical testimony based on nothing but another witness’s testimony is not all right, all right, all right

In a criminal prosecution about sexual assault of a child, a medical doctor opined, “The history [the child] provided to me pretty clearly indicated that she was sexually abused.” The doctor concluded with this classic statement of scientific certainty: “I really believe strongly that was my medical conclusion that this child was victimized.” Can a doctor testify to a medical opinion based entirely on the “history” provided by the alleged victim?

Our Supreme Court rules that the doctor cannot offer such testimony because such testimony invades the province of the jury.

Majority by CJ Saylor: Testimony of a sexual assault victim cannot be cloaked in medical authority by an expert witness

Chief Justice Saylor writes for the majority, explaining that a medical expert may base his conclusion on the testimony of the sexual assault victim, and may even relay that testimony to the jury, but only if the medical expert’s testimony is based on something, well, medical. To hold otherwise would put “a certificate of veracity on the child’s testimony” and offer the jury “a much sought-after hook on which to hang its hat.”

The central focus of the Court’s inquiry is to the “province of the jury” analysis. The Court is concerned that the jury’s role as trier of the credibility of the witnesses is not usurped by a confident, educated witness willing to assure the jury that he has already weighed the victim’s statement in his well-trained mind and come to a conclusion.

The Court notes that this holding is the majority of jurisdictions: most states and federal courts will not allow a medical expert to testify solely on what he was told by the victim. SCOPA, having taken one of the more restrictive approaches in restricting an expert’s testimony as to general characteristics of sexual assault victims, can’t “now forge a minority pathway on the opposite side of the spectrum by sanctioning the admission of evidence having a more direct bolstering effect specific to the complainant.”

“Upon our review, we hold that an expert witness may not express an opinion that a particular complainant was a victim of sexual assault based upon witness accounts couched as a history, at least in the absence of physical evidence of abuse.”

Dissent by Todd: There’s a difference between expert testimony on the subject of witness credibility and expert testimony on subjects which are merely founded on assessments of witness credibility

Justice Todd argues that the Court is actually departing from its prior caselaw, including several cases where she believes the matter had already been decided adversely, albeit in dicta. Quoting extensively from the trial transcript, Todd argues that the medical expert’s testimony was not, “The victim’s testimony is credible,” but rather, something more along the lines of “I’ve considered several things, one of which is the victim’s testimony, and come to a conclusion.”     

Dissent by Mundy: The objection was forfeited, and was invited error

There are a number of odd things about the objections in this case at the trial court. Justice Mundy takes on the elephant in the room: by the majority’s description of the case, it sounds as though trial counsel forfeited his objection by failing to raise it for almost a day at trial. Indeed, the trial court transcript reveals that the judge was not sure of the exact wording of the witness in order to rule on defense counsel’s objection.

In addition, some of the testimony was actually invited by defense counsel on cross-examination. Mundy points out that the expert testimony had to be disclosed in discovery, and that defense counsel could not claim to have been caught by surprise in the case. He was aware of the coming testimony, but failed to be prepared to timely object. Mundy sums up her frustration: “Despite defense counsel’s failure to timely object during his own questioning of the witness, Appellee is now rewarded with a new trial.”

Conclusion: No one likes child molesters, but this seems like the right decision

No one likes defendants like this, so it’s easy to look the other way when an apparent abuse of procedure helps put the guy away. But the majority appears to be right: we don’t need an expert medical witness to declare another witness credible. Doctors can testify to medical matters, but what business do they have basing their “expert medical opinion” gained by their years of experience in medicine to tell a jury that the kid seems credible?

The highest role a court can play is in creating a fair trial for an evil man. In this respect, this type of opinion represents the best of American law. Even the wicked deserve a fair hearing, and if the victim is credible, the jury will be able to tell.

But Justice Mundy’s dissent points up a problem in this case. The objections just don’t seem to have been timely. The Superior Court found they were, and the majority doesn’t even discuss this point. Perhaps there was a reason the Court was satisfied about timeliness, but it is not apparent to the reader of the case.

Regardless, this opinion is important. It will be dispositive in the sexual assault context, will have an impact on expert witnesses well outside the criminal context, and will be cited in briefs on expert witness testimony for years to come.

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Posted by on Oct 19, 2017 in Criminal | 0 comments

Com. v. Spotz: This is getting old

The Post-Conviction Relief Act (“PCRA”) allows a criminal defendant to file a petition within one year of final judgment seeking review of his conviction. This protection ensures that every criminal defendant will have at least two chances to prove that a mistake sent them to prison—or worse, to death row.

The Supreme Court of Pennsylania maintains mandatory and exclusive jurisdiction of all death penalty appeals, whether on direct or collateral action. This includes PCRA appeals—even where the PCRA board found that the petition was totally without merit.

These two statutes conjoin to present a vexing problem for the Supreme Court, wherein it is bound to consider appeals repeatedly from death row inmates willing to file absurd and meritless petitions, and force the Highest Court of the Commonwealth to reconsider the claims involved.

Spotz has been here before

The Supreme Court typically does a good job of demonstrating that its commitment to reviewing death penalty cases is serious, even when the issues have been exhaustively and accurately adjudicated. But one can easily sense the Court’s impatience in this brief opinion in everything from the recitation of the facts to the summary dismissal of all claims. Indeed, this case actually represents two of Spotz’s appeals rolled into one—making ten total times that Spotz has come up to the Supreme Court for a consideration of his claims. Indeed, in a footnote, the Court lists the eight previous opinions issued regarding Mr. Spotz, and in addition, one blistering special concurrence by former Chief Justice Castille, excoriating Mr. Spotz’s lawyer for various ethical violations.

But the Court is required to consider Spotz’s appeal, since he sits on death row. Accordingly, the Court proceeds to consider his claims.

Wecht for the Majority: Spotz can’t use a ruling about a federal statute to save himself from a different statute

Justice Wecht summarizes as follows: “In 1995, Spotz embarked upon a three-day homicide spree through York, Schuylkill, Cumberland, and Clearfield Counties. Spotz killed four people, one of whom was his own brother. In 1996, Spotz was convicted of first-degree murder and sentenced to death. He has brought many collateral appeals since then.”

Spotz argued that two recent SCOTUS cases apply to him: Johnson v. U.S. and Welch v. U.S, both decided in the last three years. In these cases, the Supreme Court of the United States ruled that a federal statute was void for vagueness, and that this finding should retroactively apply to those whose convictions have already been made final. Spotz pointed out that there are similarities between the federal criminal statute in question and a death penalty aggravating sentencing factor used by the jury to sentence Spotz to death.

PCRA Exception for Newly-Recognized Constitutional Right Clearly Does not Apply to Spotz

Rejecting Spotz’s claim, the Court points out, “It is axiomatic, and self-evident, that the asserted newly-created right actually must enure to the benefit of the petitioner.” In other words, Johnson isn’t talking about you, Mr. Spotz, and you knew that. Pointing to similarities in a statute that’s been stricken on constitutional ground isn’t the same as pointing to a constitutional right that has enured to your benefit. For Spotz to prevail, he needs the Pennsylvania statute to be stricken down, and for that striking down to be retroactively applied. He cannot use the mechanisms of PCRA to litigate an argument he didn’t think to present in his initial trial.

Conclusion: Time for PCRA and Death Penalty Reform

Underlying the Court’s ruling is the well-known interest of finality of judgment, particularly when it comes to death penalty cases. A brutal murder occurred, and when a jury has found a murderer guilty beyond a reasonable doubt, he should not be permitted to game the system to reconsider his conviction repeatedly.

Frustratingly, the Court is bound by statutory duty to reconsider this murder—and his victims’ families to relive it—every time Mr. Spotz decides to file a new petition. The time has come for the General Assembly to put new and reasonable limits on reviews of death penalty cases. While we certainly want the Supreme Court of Pennsylvania to have exclusive jurisdiction of death penalty appeals, surely we don’t need them to review denials of every unhinged petition attempted by an understandably but annoyingly desperate petitioner.

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Posted by on Oct 19, 2017 in Uncategorized | 0 comments

City of Arnold v. Wage Policy Comm. Of Arnold Police Department: Hey Arnold! We’re going to Arbitration

A police widow in Arnold, Pennsylvania (home to Mr. Roger’s Neighborhood Musical Director, Johnny Costa), received 50% of her husband’s pension for several years before a helpful state auditor caught the “mistake.” The city sent her notice of the change, and informed her that her pension would be cut down to 25%, and that the city would graciously enforce a loan repayment plan on the widow in the amount of $10 a month out of her new, lower pension.

The police union filed a grievance, and litigated the matter before an arbitrator, who entered an award on behalf of the widow. The City appealed, arguing the arbitrator lacked subject matter jurisdiction (“SMJ”), despite the fact that their Collective Bargaining Agreement (“CBA”) specifically incorporated pensions disputes by reference.

The Supreme Court held in City of Arnold v. Wage Policy Comm. Of Arnold Police Department that an arbitrator has subject matter jurisdiction for a pension dispute where pensions are incorporated by reference into the governing CBA pursuant to the provisions of Act 111.

Majority by Mundy: Arbitration is Called for under the Act, and the CBA incorporates the pension dispute

 Justice Mundy writes for the majority and lays out the statutory and constitutional background for a CBA: Pennsylvania’s Constitution authorizes the legislature to “enact laws which provide that the findings of panels or commissions, selected and acting in accordance with law for the adjustment or settlement of grievances or disputes or for collective bargaining between policemen and firemen and their public employers shall be binding on all parties.” Pa. CONST. Art. III, § 31. One wonders why such a specific grant of power is necessary in our state constitution, as general grants of power seemingly already made this possible.

Regardless, the legislature followed up, enacting “Act 111,” which regulates CBAs between police and firefighters and the municipalities they serve. Act 111 specifically provides for arbitration of disputes between the parties, and SCOPA caselaw has already ruled that the act is “viewed broadly” to “encompass any subject that is rationally related to the ‘terms and conditions of employment.” City of Arnold, citing Int’l Ass’n of Firefighters, Local 22, 999 A.2d at 564 (Pa. 2010).

Conclusion: This isn’t likely to come up all that often

 This case only bolsters what was already fairly clear in SCOPA caselaw: arbitration is preferred and strongly enforced when it comes to disputes over public CBAs. A city that drafts an agreement with a union should be careful about the “incorporation” language, but that should have been fairly obvious. In the end, this case stands for the unremarkable proposition that you should not incorporate by reference a document into an arbitration agreement unless you are willing to arbitrate over the agreement you’ve incorporated.


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Posted by on Oct 19, 2017 in Civil, Constitutional Provisions, Tax Law | 0 comments

Nextel v. Commonwealth: Uniformity Clause Bars Flat Cap for Taxes, but Statute is Severable

When paying corporate income tax in Pennsylvania, a corporation is permitted to carry over a net loss from the previous year to reduce the current tax year’s taxable income. However, the amount of deduction the corporation may receive—the amount of “net loss” it may carry over from the prior year—is capped at the greater of 12.5% of its current tax year income, or a flat cap of $3 million.

Nextel’s 2007 deduction from its 2006 net losses was capped at 12.5% of its 2007 income because this was greater than the $3 million flat fee cap. Nextel then brought a refund claim, and subsequently brought suit arguing that the $3 million cap that they did not use in tax year 2007 violated the Uniformity Clause in Pennsylvania Constitution, Article VIII, § 1, and—here’s where it gets tricky—that both caps on net loss deductions must be stricken because the statute was inseverable. Because the calculation they did not use was unconstitutional, the entire statute had to be stricken.

Majority by Todd: The flat cap on carryover funds violates the Uniformity Clause, but is severable from the rest of the statute

The Court agreed with the first, but not the second of Nextel’s arguments, and so Nextel wins, but really loses. Justice Todd’s majority opinion comprehensively considers the Uniformity Clause, discussing its background as a popularly-demanded addition to the “Reform Constitution” of 1874, a reaction to the abusive political power of railroads which allowed them to maneuver the General Assembly to exempt the railroads and their allies from taxes, and incrementally placing larger taxing burdens on the rest of the population to make up for the shortfall.

The Uniformity Clause, which comes into the modern 1968 Constitution unchanged, requires “substantial uniformity, which means as nearly uniform as practicable in view of the instrumentalities with which and subjects upon which tax laws operate.”

Todd wrote that Nextel’s “as-applied” argument against the flat cap is strong because of the numbers: 98.8% of all companies were exempt under the $3 million flat cap, while Nextel and a small handful of other corporate taxpayers were “required to shoulder the entire corporate net income tax burden” because of their greater income. In this respect, Nextel bears a larger burden of the corporate taxation burden in the Commonwealth than other companies. The Court found, therefore, that the tax statute “has created disparate tax obligations between these two classes of similarly situated taxpayers based solely on the value of the property involved.” This disparate treatment violates the Uniformity Clause, and the flat cap must be stricken.

 However, the Court did not agree that the statute was inseverable. Severability is the doctrine that determines when a statute may be left standing even without a portion of the statute stricken as unconstitutional. In other words, if a statute says you may not drive red, blue or green cars on the highway, and the Court finds that the prohibition of red cars is unconstitutional, must the whole statute be stricken, or are blue and green cars still prohibited?

Noting the general policy of Pennsylvania that all statutes are severable, codified by 1 Pa.C.S. § 1925, the Court explored two statutory exceptions to severability, which can both be phrased simply: where the legislature would not have passed the remaining statute in its remaining form, or where the statute simply doesn’t make sense without the stricken provision, the whole statute must fail.

Here, there was no reason to think the two legislative goals served by the corporate “net loss” taxation construct were completely defeated by striking one version of measure. Because the percentage cap was valid, and would likely have been passed by the legislature even if they had known the “flat cap” would be stricken down.

Concurrence by Baer: Nextel’s Challenge should be viewed as both Facial and As-Applied

 Justice Baer’s concurrence, joined by Justices Donohue and Wecht, argues that Nextel’s challenge should have been considered as both an “as-applied” challenge to the statute (which is how Nextel characterized the lawsuit), and a “facial” challenge to the validity of the statute (which Nextel disavowed). “[Nextel’s] challenge necessarily implicates the facial validity” of the statute, and the Court should have considered these implications in its majority opinion. “I write separately to clarify that, in my view, our holding declares the NLC unconstitutional on its face.”

Justice Baer appears to be correct that the majority opinion treats the statute as stricken as to all parties, not just Nextel.

Conclusion: Assorted Thoughts

A few scattered notes on this case.

First, the majority notes that Pennsylvania was the first state to include a uniform taxation requirement in its constitution. Thus, Pennsylvania’s continued grappling with this provision provides some guidance for other courts on this issue, and for other states considering adopting such a provision.

Second, although the reasons for the delay are not totally clear, this case is being adjudicated ten years after the tax year in question.

Third, the opinion doesn’t discuss Nextel’s standing, or the lack thereof. Nextel sued over a provision that didn’t apply to it in an attempt to strike down the provision that did apply. Another way of dealing with this case might have been to say that Nextel could not prove the whole statute was unconstitutional, and to decline to reach the merits of the issue of flat tax provisions. Alternatively, the Court may have considered that Nextel was burdened by the dichotomy, and that the lighter tax burden of other companies was harming Nextel directly. Regardless, this issue wasn’t discussed.

Finally, Nextel raises an interesting argument that the Court’s refusal to knock down the whole statute disincentivizes others to challenge tax statutes under the constitutional provision. This argument was rejected by the Court—obviously, they can’t just give you a better judgment than the law requires to “incentivize” lawsuits. But the argument offers a practical insight into a major hurdle to Uniformity Clause legislation—who wants to pay to bring these suits? Most individual taxpayers don’t stand to gain enough, and companies under the $3 million threshold certainly wouldn’t bring one. That leaves it to companies like Nextel or major casinos to take up the fight—and if they don’t think it benefits their bottom line, we may be stuck with unconstitutional taxes.

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Posted by on Oct 19, 2017 in Criminal, Juvenile | 0 comments

In re DCD: Best Interests of a Juvenile Delinquent Beat out Concerns over Community Welfare

DCD, a ten-year-old child with a low IQ, was adjudicated delinquent after sexually assaulting his younger sister. Several sexual assaults followed as DCD was moved from facility to facility and given treatments that ultimately did not help him progress. After several assaults, there were few facilities that were open to him, due to his record, his young age, the lack of contracts with the county, and his specific needs. One facility was eligible to take him, but would not because of their agreement with the local township not to take juveniles with current sexual assault delinquency adjudications. However, they intimated that they would accept him if his delinquency adjudication were terminated.

The trial court agreed to terminate his adjudication over the Commonwealth’s objection on the basis that the child needed to be moved from his current facility immediately, and that the only option to get him appropriate treatment was to terminate his delinquency.

Majority by Baer: Juvenile courts may unequally consider the three factors of BARJ

Justice Baer, writing for the majority, discussed the goal of “balanced and restorative justice” (BARJ) that is baked into the Juvenile Act. This “BARJ” is served by three goals in the Act and in the Rules of Juvenile Court Procedure:

  1. Community protection;
  2. Accountability; and
  3. Rehabilitation.

Furthermore, in determining the proper disposition of a child adjudicated delinquent, the trial court is required to consider what is “best suited” to the child’s treatment, supervision, rehabilitation and welfare, but must do so in a way “consistent” with the protection of the public interest. The majority ruled that this wording showed that the emphasis of the statute was on the rehabilitation of the offender, and that public protection was a secondary goal. The trial court must weigh the three factors, but need not give equal weight to the three. This conclusion was bolstered by the General Assembly’s directive to the courts to “use the least restrictive intervention consistent with community protection.” (citing 42 Pa.C.S. § 6301(b)(3)(i)).

In this case, where the trial court found that the child’s only option to get serious treatment was at a facility that could only house him if his delinquency adjudication was terminated, it was appropriate for a trial court to find that the interests of rehabilitation weighed more heavily than community protection. “The [trial] court had no hesitation in rejecting continued placement” at the juvenile’s current facility due to the “paucity of proper treatment provided to D.C.D.” at the present facility. The need to find an immediate place for him weighed in favor of terminating the adjudication of delinquency.

The Pennsylvania Supreme Court’s majority “view[s] it incumbent upon this Commonwealth’s juvenile court judges to consider specifically the three factors of BARJ when determining whether compelling reasons exist in the context of a motion for early termination of delinquency supervision, as with all other dispositions under the Juvenile Act. Balanced attention to the three factors, however, does not require that the factors themselves be equally weighted in the ultimate decision.”

Finding that the trial court had considered the three factors—even though he had not explicitly named them as such—the Pennsylvania Supreme Court affirmed the decision.

Dissent by Mundy: Serious offenses of DCD should have precluded termination of his supervision

While acknowledging that the trial court had taken DCD’s best interests into account, Justice Mundy dissented due to the seriousness of his crimes, and due to the need for community protection. “Based on the serious offenses D.C.D. has been adjudicated delinquent of, and the subsequent concerns about his progress with respect to personal boundaries and appropriate behavior, I cannot agree that terminating Juvenile Probation’s supervision to accommodate acceptance into a treatment program, which prohibits individuals who have active adjudications of delinquency for sexually-based delinquent acts, is appropriate.”

Conclusion: Supreme Court of Pennsylvania is willing to protect the rights of all, even those accused of sexual assault

The Supreme Court of Pennsylvania continues to chart a path respecting the rights of the worst accused, this term. Much as in Commonwealth v. Maconeghy, Jr., this decision shows the Supreme Court of Pennsylvania’s strict adherence to the text of a statute, even where it favors a young perpetrator of sexual assault. This may not be welcome news to all: Justice Mundy has dissent in both of these cases. But these opinions reflect an important role of a Supreme Court in our society. While society is finally waking up to the crisis of sexual assault going on in our midst, and proposing more serious penalties for perpetrators, it will remain the role of the dispassionate courts of our Commonwealth and country to ensure that those accused of crimes get fair trials and are punished justly.

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