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Posted by on Sep 25, 2018 in Criminal, PCRA | 0 comments

Com v. Crispell: PCRA Petitions may be amended to add new claims, even if the new claims fall outside of the “one year” rule

In an otherwise mundane PCRA affirmance, the Supreme Court of Pennsylvania ruled unanimously that a PCRA petitioner may move to amend his petition to add an additional claim, even if that claim could not be independently brought as a second petition where a second petition would be time barred.

PCRA petitions must normally be filed within one year of final adjudication. Crispell filed his petition timely, but then obtained information tending to implicate a Brady violation after his filing. While more than a year had passed, at that time, since his final adjudication, Crispell sought leave to amend his PCRA petition to include this new claim. The PCRA court believed it lacked jurisdiction to entertain this claim. Our Supreme Court reversed, with Justice Wecht writing for the Court. The claim was permitted as an amendment, as only petitions are time-barred after a year, not potential amendments to petitions.

Amendments should be considered under the Rules of Criminal Procedure. “PCRA courts are invested with discretion to permit the amendment of a pending, timely-filed post-conviction petition,” and amendments should be liberally allowed to aid the pursuit of “substantial justice.”

The case was remanded for consideration of whether the Brady claim should be allowed as a timely amendment to the case.

 

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Posted by on Sep 25, 2018 in Criminal, Fourth Amendment, Search | 0 comments

Com v. Wilmer: Community Caretaking exception to warrant requirement lasts until officer is done rendering assistance

A party at a sorority house led to a drunk college kid on the roof of the house, stumbling about, looking as though he were about to fall off the roof. While the “community caretaking” exception to the warrant requirement of the Fourth Amendment justified the police officer’s initial entry into the home in an attempt to keep the young man from falling off the roof, it did not justify the officer’s subsequent re-entry into the house to search the rooms of the home for drugs. The Troopers’ concerns were apparently not unfounded, as the young man ultimately fell off the roof during the time it took the Troopers to get upstairs in an attempt to safely bring him down.

In Com v. Wilmer, the Supreme Court of Pennsylvania voted 6-1 that the officer had gone beyond the scope of the caretaking doctrine in his actions, and the search was suppressed.

Majority by Donohue: An officer must do no more than reasonably necessary to determine whether someone needs assistance and to provide that assistance

Citing to scholarly works on Search and Seizure as well as to high court decisions from a number of other jurisdictions, Justice Donohue explains that the community caretaking doctrine is “strictly circumscribed by the exigencies which justify its initiation.” The officer who enters a home must do “no more than is reasonably necessary to ascertain whether someone is in need of assistance and to provide that assistance.” (quoting Wayne LaFave, Search and Seizure). “In other words,” the majority explains, “the right of entry into the private dwelling by law enforcement officers terminates when either the necessary emergency assistance has been provided or it has been confirmed that no one inside needs emergency assistance.”

The Court goes further, explaining that the officers “were required to leave the premises immediately” once the young man had fallen off the roof. Their failure to actually vacate the premises, and the decision to re-enter the premises later, invalidated the subsequent search.

Dissent by Mundy: The requirement to leave is a new requirement

Justice Mundy dissents, arguing that the majority has “created a new requirement that the moment the emergency is abated, any police presence must independently satisfy a separate Fourth Amedment exception, or they must leave the premises.” Justice Mundy would have affirmed the Superior Court in finding that the re-entry was a continuation of the reason the police were there in the first place, and thus, was justified under the Fourth Amendment.

Conclusion: The Community Caretaking doctrine is narrowly limited

This is the second case in a year on the community caretaking doctrine, and the second time the Court has taken a step to limit its scope. The Court has made clear in both decisions that an individual’s statement that they do not need assistance should bring an end to the police encounter absent another justification for remaining on the scene. In this case, a young woman in one of the rooms “lifted her hand” as though to indicate stop to the Troopers, who nonetheless continued searching the rooms without justification. The Court has laid down two cases now to support defense counsel in limiting the scope of these searches.

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Posted by on Feb 26, 2018 in Appellate, Criminal, Fourth Amendment, Harmless Error, Search | 0 comments

Com v. Fulton: Warrantless Cell Phone searches violate both Constitutions

In a relatively-unsurprising re-affirmation of recent SCOTUS caselaw, the Supreme Court of Pennsylvania ruled 6-0 in Commonwealth v. Fulton that a warrantless search of a cell phone is unconstitutional and must be suppressed. SCOPA also ruled that the search violates Article I, section 8 of the Pennsylvania Constitution, which places this ruling out of the reach of any changes in Federal search jurisprudence in the future.

The Philadelphia Police (who once arrested one of the world’s first serial killers), after arresting I. Dean Fulton on gun charges, kept his cell phone separate from the other evidence and, without obtaining a warrant, monitored incoming calls to the phone, and answered them. After meeting with Heather Warrington, who called the phone looking to buy heroin, homicide detectives were able to discover a wealth of physical evidence which, along with Warrington’s testimony, led to Fulton’s conviction for a recent murder.

Majority by Donohue: Riley v. California already decided this, and we agree

In a unanimous opinion, Justice Donohue rules for the 6-0 majority that SCOTUS’s decision in Riley v. California controls the search of any cell phone, and that the officer’s actions in this case violated that ruling. The Court further rules that such a search is clearly unreasonable, and should be seen as a violation of the Commonwealth’s Constitution as well. Rejecting the Superior Court’s ruling that the “specific intrusion complained of” in the search in this case was “minimal,” the Court noted that Riley established a per se rule against cell phone searches without a warrant.

The more interesting analysis is that of harmless error. The Court notes that a witness’s testimony is not suppressed as often as physical evidence because a witness may choose to come forward on his own, and may not need to be discovered via a warrantless search. To put it differently, it is more likely that a witness may come forward and therefore be attenuated from the illegal search than discovered documents or hard evidence. A major factor to consider, then, is whether the witness would likely have come forward voluntarily or not.

In this case, the witness was a heroin addict, and unlikely to be cooperative with police or to come forward voluntarily. The police only discovered her existence by monitoring incoming calls to the cell phone, and were unlikely to discover her otherwise. Therefore, the witness’s testimony is suppressed, along with all the hard evidence discovered as a result of the search.

Conclusion: Could have been a summary reversal

The Court’s opinion is well-reasoned, and a minor victory for privacy advocates. This case was not difficult; SCOTUS caselaw was clear on the point, and the Commonwealth’s argument that a warrantless search that led to all of the evidence in the case was “harmless” was untenable. The Court probably could have issued a summary reversal for proceedings consistent with Riley, but perhaps wanted to flesh out the nature of “harmless error” in the context of a witness’s testimony.

Finally, worth noting, in footnote 19, the Court notes that Fulton did not litigate whether harmless error can be found by a court sua sponte, and leave the question “unsettled.” This invitation for a challenge to the Superior Court’s consideration of harmless error sua sponte should be noted by the appellate bar for future challenges.

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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 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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