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Posted by on Dec 21, 2017 in Civil Forfeiture, Criminal | 0 comments

Com v. $34,440: Proximity to Drugs presumption may be rebutted in forfeiture proceeding

The Supreme Court of Pennsylvania continues its consideration of the powers of civil forfeiture in a 5-2 decision that the “proximity to drugs” presumption in civil forfeiture proceedings may be rebutted by evidence that the seized property was not involved in any illegal activity.

Juan Lugo was pulled over for tailgating in a “borrowed” car with several friends in Monroe County (home of “The Tricky Triangle”). The officer who pulled Lugo over then smelled marijuana, obtained consent to search the car, and discovered ecstasy in the cigarette outlet, a small amount of marijuana by the rear passenger door, and the subject dollar amount in the “b-pillar” on the passenger side of the car.

Rafael Falette came forward claiming ownership of the vehicle, and claiming that the seized money was part of a personal injury settlement which he had withdrawn in cash and used to impress his friends. He produced settlement checks in nearly this amount, making his claim plausible, but the trial court granted the Commonowealth’s forfeiture petition because the proximity between the drugs and the money produces a statutory presumption that the money was involved in drug trafficking.

The controversy in this case was whether the effect of the statutory presumption should be irrebuttable or not. The statute provides for an “innocent owner” defense; is that the only way to rebut the presumption?

Majority by Baer: Entire Record’s Evidence Must be Considered

Justice Baer, writing for the 5-2 majority, rules that the presumption that arises from physical proximity of drugs is rebuttable regardless of whether the elements of the “innocent owner defense” are met. Thus, where evidence derived from the “entirety of the record” demonstrates that the money or other property had no actual connection to drug trafficking, the forfeiture petition should be denied.

The Court first ruled, however, that the discovery of property in close proximity shifts the burden to the defendant. Accordingly, it remains the defendant’s burden to adduce sufficient evidence to prove his innocence in regards to the property at issue. In this case, the Court vacated and remanded for further consideration, holding only that the trial court erred in refusing to consider evidence outside of the “innocent owner” defense.

Dissent by Saylor: No statutory grounds exists for this interpretation

Chief Justice Saylor dissents, arguing that no other statutory grounds exist outside of the innocent owner defense to rebut the presumption of guilt created by the statute.

Dissent by Mundy: Trial Court found Falette’s testimony incredible

Justice Mundy dissents, agreeing with the Chief Justice, and also noting that the trial court did not find Falette’s testimony about his personal injury settlement credible. Mundy would have ruled that the trial court’s assessment of the facts could not be disturbed, and that the judgment should stand on that basis.

Conclusion: Civil Forfeiture is Alive and Well

The legislature recently made modifications to and moved the civil forfeiture statute to a new section (now at 42. Pa.C.S. § 5802). The Court in this opinion was not asked to consider and does not question the constitutionality of the civil forfeiture process. This is the third case this year that the Court has taken on forfeiture, and twice it has asked serious questions about the validity of the overall scheme. In this case, the Court does not raise the same questions.

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Posted by on Dec 1, 2017 in Criminal, Suppression | 0 comments

Com v. Livingstone: You’re Drunk, I presume.

In Commonwealth v. Livingstone, the Supreme Court of Pennsylvania ruled that a police officer must have articulable explanation for his “community caretaking” to use it as an exception to the warrant requirement.

Late one evening, Trooper Frantz was out on I-79 (named for former Pennsylvania Governer Raymond Shafer) when he saw a car stopped on the side of the road, with no hazard lights on. Concerned that the motorist might be having trouble, he turned on his emergency lights and pulled up next to her. He rolled down his window and spoke to the driver—Ms. Livingstone—who was putting an address into her GPS. He spoke to her and she stared back, assuring him she was OK.

But our Trooper was a gentleman, and he was concerned she wasn’t really OK. He pulled in front of her car, parked, and walked to the driver’s door to continue checking on her. The Trooper began to notice that Ms. Livingstone’s behavior was strange, and so he required a breathalyzer. Before long, she was handcuffed and under arrest for a DUI.

Majority by Todd: Community Caretaking Exception Must be Narrowly Tailored to the Objective

Justice Debra Todd, writing for the fractious majority, holds that the “community caretaking exception” to the warrant requirement of the Fourth Amendment requires the officer’s actions to be supported by clear and articulable explanation of the public service he was attempting to accomplish.

Mere encounters have long been the camel’s head under the tent in Fourth Amendment law, and the Court’s majority expresses concern that the community caretaking exception not grow to the point of invalidating the need for probable cause. If an officer can claim he is just checking in on a motorist, he can almost always initiate a stop. This conclusion was bolstered in this case by the officer’s use of lights. Pointing out that it would be a crime for the motorist to pull away while the officer’s lights are on, Todd argues that it would be absurd for a motorist to believe that she was free to leave at that point.

While stopping short of requiring a “complete divorce” from the facts giving rise to the community caretaking activity the officer initially undertook and the criminal investigation that soon followed, the majority ruled that an officer “must point to specific, objective, and articulable facts which would reasonably suggest to an experienced officer that assistance was needed” before engaging the community caretaker exception, and that “the police action must be independent from the detection, investigation, and acquisition of criminal evidence.” Finally the Court ruled that these determinations are based on the totality of the circumstances, and that the action taken by police must be tailored to rendering assistance or mitigating the peril.”

Com v. Livingstone: You’re Drunk, I presume.

In Commonwealth v. Livingstone, the Supreme Court of Pennsylvania ruled that a police officer must have articulable explanation for his “community caretaking” to use it as an exception to the warrant requirement.

Late one evening, Trooper Frantz was out on I-79 (named for former Pennsylvania Governer Raymond Shafer) when he saw a car stopped on the side of the road, with no hazard lights on. Concerned that the motorist might be having trouble, he turned on his emergency lights and pulled up next to her. He rolled down his window and spoke to the driver—Ms. Livingstone—who was putting an address into her GPS. He spoke to her and she stared back, assuring him she was OK.

But our Trooper was a gentleman, and he was concerned she wasn’t really OK. He pulled in front of her car, parked, and walked to the driver’s door to continue checking on her. The Trooper began to notice that Ms. Livingstone’s behavior was strange, and so he required a breathalyzer. Before long, she was handcuffed and under arrest for a DUI.

Majority by Todd: Community Caretaking Exception Must be Narrowly Tailored to the Objective

Justice Debra Todd, writing for the fractious majority, holds that the “community caretaking exception” to the warrant requirement of the Fourth Amendment requires the officer’s actions to be supported by clear and articulable explanation of the public service he was attempting to accomplish.

Mere encounters have long been the camel’s head under the tent in Fourth Amendment law, and the Court’s majority expresses concern that the community caretaking exception not grow to the point of invalidating the need for probable cause. If an officer can claim he is just checking in on a motorist, he can almost always initiate a stop. This conclusion was bolstered in this case by the officer’s use of lights. Pointing out that it would be a crime for the motorist to pull away while the officer’s lights are on, Todd argues that it would be absurd for a motorist to believe that she was free to leave at that point.

While stopping short of requiring a “complete divorce” from the facts giving rise to the community caretaking activity the officer initially undertook and the criminal investigation that soon followed, the majority ruled that an officer “must point to specific, objective, and articulable facts which would reasonably suggest to an experienced officer that assistance was needed” before engaging the community caretaker exception, and that “the police action must be independent from the detection, investigation, and acquisition of criminal evidence.” Finally the Court ruled that these determinations are based on the totality of the circumstances, and that the action taken by police must be tailored to rendering assistance or mitigating the peril.”

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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 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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Posted by on Sep 29, 2017 in Frye Test, Murder, Suppression | 0 comments

Com v. Jacoby: Capital Appeal: Introduction of unconstitutionally seized murder weapon evidence was harmless error

The opening paragraph of this case read like an Alfred Hitchcock screenplay. The police

received a call that originated from Monica Schmeyer’s residence . . . When the police arrived, they found Monica Schmeyer dead on her living room flolr. Blood droplets and stains surrounded her body. The telephone was off the hook; there was blood on the 9 and the 1. There was also a .32 caliber Speer branded shell casing on the floor near Monica Schmeyer’s body.

In Commonwealth v. Jacoby, a direct capital appeal, the Supreme Court of Pennsylvania rules that the introduction of an unconstitutionally-seized barrel of the murder weapon, which was urged to the jury during closing argument, was “harmless error.” In addition, Jacoby was not entitled to a Frye hearing when his argument was about the novel application of non-novel scientific evidence. For these reasons, among others, Jacoby’s conviction was confirmed.

Timothy Jacoby, the Defendant, was part of an informal group of friends that regularly met at a local Hooters. The group dubbed themselves the “Orange Shorts Society” for the garb worn by waitresses at the restaurant, and gathered together for recreational purposes. During these “meetings,” Dr. Jon Schmeyer, one of the “members,” frequently offered life updates regarding his divorce, his ex-wife, the alimony he paid her, and his ex-wife’s curious habit of keeping the sums paid to her in envelopes squirreled away around the house. In addition, this Dr. Schmeyer mentioned casually that the couple’s daughter would be out of the country for a certain period of time.

As a subsequent meeting of the Orange Shorts Society, on the afternoon and evening of March 31, 2010, Jacoby was not present despite the expectation of the other members, including Jacoby’s fiancée, that he would attend. The murder at Schmeyer’s home took place during this meeting. Two witnesses would later testify to seeing a man matching Jacoby’s general description in the area during this time. One of the witnesses remembered the man was carrying a white envelope. The other witness remembered hailing the man walking by his home, and that the man only nodded and then looked down. (Personally, I don’t find this fact to be that odd—this is Pennsylvania, after all). Finally, surveillance video captured a work van from Jacoby’s employer in the area near the time of the murder despite the fact this his employer does not do work in that area. In addition, the “sign out sheet” for the work vans was missing for the month in question (highly unusual according to the supervisor), and Jacoby put in an expense reimbursement for the time period in question. In addition, DNA evidence collected at the scene did not exclude Jacoby or his male relatives.

But most damningly of all, the police learned that Jacoby—a convicted felon—owned a .32 caliber pistol that matched the shell casing found at the scene. 15 months after the crime, police obtained a search warrant for Jacoby’s home and found a barrel that matched the pistol, although they did not find the pistol. Jacoby was convicted by a jury and sentenced to death due to the aggravating factor of the commission of a felony while committing the murder (in this case, burglary and robbery).

Wecht for the Majority: Murder Weapon

Writing for a majority of the Court (but you’ll have to do some matching up with section numbers to determine how many are in the majority for each section), Justice David Wecht finds no error in the majority of the trial. As with all capital appeals, the Supreme Court of Pennsylvania is tasked with microscopically re-examining every aspect of the trial, and the vast majority of the time, there is no error. However, three holdings stand out, the most important of which are the first and third, below.

First, and most importantly, despite finding that the warrant issued for Jacoby’s home was invalid, and that the barrel of the murder weapon found there should have been suppressed, the Court rules that the error was harmless. The affidavit submitted in support of the request for the warrant stated that Jacoby had previously had a registered firearm, that he was now a convicted felon, and that “it is reasonable to believe Jacoby would retain this item as he is barred from legally obtaining another hand-gun.” The Court found this central allegation in support of the warrant application to be “conjecture and speculation, particularly considering the gap in time,” and ruled that there was no probable cause for a warrant under the Fourth Amendment or Article I, § 8. “[T]he general rule is that probable cause must be predicated upon individualized suspicion,” so where a warrant’s allegation about what it is “reasonable to believe” “is not tailored or individualized” to the Defendant “in any fashion,” the warrant “falls short of probable cause.” The Court came back to emphasize, several times, the long gap in time between when it was known that Jacoby owned a gun matching the description involved, and when they finally requested, obtained and executed a search warrant.

While finding the warrant requirement was not satisfied under either Constitution, the Court emphasized the heightened particularity required of a warrant under Article I, § 8. (“We also note that there is a strict particularity requirement” in § 8, and that “a warrant must describe the items as specifically as is reasonably possible.” (quoting Com v. Grossman, 521 Pa. 290 (1989)).

Despite finding that the barrel should have been suppressed, the Court rules that the error of introducing it was harmless. The barrel played, “at best, only a minimal part in the Commonwealth’s ballistics evidence and its overall evidentiary presentation,” and the existence of biological evidence, evidence that the bullet that killed the victim was “proven definitively to have been fired from a gun that also was fired” on a shooting range on Jacoby’s parents’ private property, and other circumstantial evidence rendered the admission of evidence of the barrel harmless error.

Second, the Supreme Court held “there are limits to automatic standing,” and that Jacoby lacked any standing to challenge a search of his parents’ home. Although Jacoby was charged with a possessory offense (Felon in Possession of a Firearm—a newer Desert Eagle was found in his parents’ possession, titled to Defendant), he did not benefit from automatic standing under the time differential doctrine of Com v. Peterkin 511 Pa. 299 (1986). Peterkin requires focus on “whether the defendant is charged with possessing” the contraband “at the time of the contested search and seizure.” Here, Jacoby’s possessory crime took place on the date of the murder, according to the Commonwealth, and the search happened some time later. Thus, Jacoby lacked standing to challenge the search of his parents’ home.

Finally, the Court ruled that Jacoby did not meet the threshold showing required to force a Frye hearing on the DNA evidence presented. Frye hearings are required where “novel scientific evidence” is to be presented. In contrast to the Federal Courts’ Daubert rules, Pennsylvania maintains the older Frye standard which precludes the admission of scientific testimony based on methods that are not yet well established in their respective scientific discipline.

Here, Jacoby argued against the expert’s conclusions were a novel application of well-established scientific tests—that is, that the tests and findings themselves were not the result of novel science, but only the expert’s findings based on those tests. He believed that the expert had placed too much weight on one type of DNA, rather than looking at a full battery of DNA tests.

Reviewing this point under an abuse of discretion standard, the Court declined to find any wrongdoing on the part of the trial court. Jacoby’s argument went to the weight of the evidence. He could always argue the weight of the evidence to the jury—which he in fact did.

Concurrence by Mundy: I would find probable cause for search of Defendant’s home

Justice Mundy concurs in the result, joined by Justice Baer. Mundy argues there was probable cause to search Jacoby’s home in this case. Citing Federal Court of Appeals caselaw for the proposition that judges should be permitted to infer that “suspects keep instrumentalities of crime in their own residences.” Arguing that guns are “durable and sometimes valuable objects” that are kept long term, Mundy finds no reason to believe that the passage of time made it less likely the police would find the gun at Jacoby’s home in this case.

Dissent by CJ Saylor: This error was not harmless

Chief Justice Saylor dissents, arguing that the verdict should be overturned and the case remanded for a new trial due to both the invalid search of Defendant’s home, and because the Defendant was entitled to a Frye hearing (Justice Donohue joins the Chief Justice’s dissent on this latter point). On the first point, the Chief Justice says, “I have difficulty with [the majority’s] application of the harmless error standard” because the Commonwealth did not advance this argument—and bears the responsibility to prove harmless error beyond a reasonable doubt—and because the majority did not assess the facts in favor of the Defendant in its analysis. Saylor criticizes the majority’s omission of major problems with the witnesses’ testimony, developed on cross examination, as well as evidence that Jacoby frequently missed Orange Shorts Society meetings. These facts make the harmless error ruling untenable in Saylor’s view.

Furthermore, arguing that the Frye standard may bar the evidence of DNA presented against Jacoby, Pennsylvania’s Chief Justice offers “an efficient use of limited judicial resources” adopted in other jurisdictions, such as California, Flordia and Maryland: where a Frye hearing should have occurred, the case should be remanded for purposes of that hearing only, and if the evidence is ruled admissible, the original jury verdict may stand. Only if the evidence is determined by the trial court to be inadmissible must a new trial be granted.

Conclusion: Important holdings where you least expect them

I don’t normally invest much analysis into these cases simply because they are usually garbage appeals. The Defendant’s attorney has to appeal to the Court, the Court has to take it, and both sides have to present a thorough re-airing of the entire trial. This serves an important constitutional function, but rarely yields interesting legal holdings.

This case is certainly an exception to that rule. Justice Wecht’s well-written opinion makes it enjoyable to read, for one thing, but more to the point, the three holdings discussed above will provide ammunition in future cases. The Court’s re-affirmance of the specificity requirements for a warrant under Article I of the Commonwealth’s Constitution should be carefully examined by defense attorneys, while District Attorneys across the state will benefit from the re-affirmation and discussion of the limits on automatic standing in possessory offenses. In short, this case was much more than the typical throw-away, and is worth the read (or skim) for attorneys in criminal practice.

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