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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 Aug 23, 2017 in Sentencing | 0 comments

Com v. Aikens: Trial Court’s Instruction Gives Insight into Jury’s Findings

18 Pa.C.S. § 6318 criminalizes “Unlawful Contact with a Minor.” One might think of this statute as an inchoate for the entire child-sexual-victimizing portion of the criminal code. If a defendant contacts a child for the purpose of sexual victimization, that contact is sufficient to support a conviction under this statute.

The statute is graded as a 3rd degree felony—unless the crime which the defendant contacted the victim to lure her into is graded worse, in which case that grading controls. So when Markeith Aikens was convicted of contacting a minor for the purpose of securing Involuntary Sexual Deviate Intercourse—a 1st degree felony—Aikens’s conviction was graded as a 1st degree felony.

Aikens’s counsel ultimately appealed this determination on the basis that it could not be clear what Aikens was convicted by the jury of. He was charged with a third-degree crime, a first-degree crime, and Unlawful Contact under § 6318. But the trial court had instructed the jury that the Unlawful Contact required two elements: “First, that [Appellant] was intentionally in contact with a minor—the victim in this case—second, that that contact was for the purpose of engaging in an unlawful act—and in this case, that unlawful act is alleged to be [IDSI], the crime that we just discussed.”

The jury found Aikens not guilty of IDSI, but found him guilty of Unlawful Contact.

Majority by Baer: Trial Court’s Instruction to the Jury Makes it Clear which Substantive Crime Jury Verdict found Defendant was Contacting the Minor to Commit

Justice Max Baer, writing for the 6-0 majority (Justice Mundy did not participate), ruled that the trial court’s (apparently erroneous) instruction made clear what Aikens was actually convicted of. The law presumes that juries follow instructions, no matter how silly this presumption may be in reality, and the jury was instructed that Unlawful Contact could only be satisfied if they found that Aikens had contacted the minor to commit IDSI. Thus, unlike in prior cases which Aikens was relying on, the court did not have to guess at which crime the jury believed Aikens was attempting to commit when he contacted the minor.

Significantly, these concerns about not guessing at the defendant’s underlying crime are not merely statutory, but are constitutional. The Supreme Court of the United States’s Apprendi v. New Jersey held that a jury must find, beyond a reasonable doubt, any aggravating factors necessary to enhance a defendant’s sentence. Thus, unless it can be proved that a jury found the
“aggravating factor” of a heightened underlying crime, the lower standard of grading (and punishment) must prevail.

Here, the trial court’s instructions made clear the underlying crime for which defendant was being convicted. Our Supreme Court rejected defendant’s arguments (and the Commonwealth’s responses) regarding inconsistent verdicts in this case. There was no inconsistent verdict, the Court found. “Rather, the jury’s verdicts merely indicate that Appellant did not actually commit IDSI with respect to the minor victim, but did unlawfully contact the minor victim for purposes of engaging in IDSI.”

Conclusion: Clear case, but quandary for defense counsel

This case appears to be straight-forward, and correctly decided. But it presents an interesting quandary for a defense attorney in a case like this. The trial court’s jury instruction favored the defendant initially. After all, the trial court should have thrown a wider net: “You can convict the defendant of Unlawful Contact if you think he contacted the victim for the third-degree crime or the first-degree crime.” But the narrower net comes back to bite in this case, because it is clear the Defendant contacted the minor for the worse crime, and thus, that he must face the higher penalties of first-degree grading. Defense counsel in future cases may have to strategically navigate between accepting the narrower net of the trial’s instructions or the higher likelihood of ambiguity that would help avoid higher grading for Unlawful Contact.

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Posted by on Apr 29, 2017 in Constitutional Provisions, Criminal, Probation and Parole | 0 comments

Pittman v. Pa. Bd. of Probation and Parole: Board Abused its Discretion by Failing to Use Discretion

The Parole Violation statute requires the Board of Probation and Parole to use its discretion when considering whether to credit “time at liberty on parole” to a convicted parole violator’s re-sentencing for the underlying crime, the Supreme Court has ruled in Pittman v. Pa. Bd. of Probation and Parole. Furthermore, the Board must explain its decision in order to provide an opportunity for effective appellant review.

Kevin Pittman was sentenced in 2010 for a Possession With Intent to Distribute, and was paroled a year later. While on parole, Pittman committed another crime, which brought him before the Board. The Board checked a “No” box in answer to the question “Credit time spent at liberty on parole” on a form, and when pressed for an explanation by Pittman via letter, the Board argued he had “automatically forfeited credit for all of the time that you spent on parole” by committing a subsequent crime. Pittman appealed to the Commonwealth Court for review, which affirmed en banc.

Baer for the Majority: Parole Board has discretion to award credit for time at liberty on parole, and must at least consider doing so

 The Parole Violation statute provides that the Parole Board “may, in its discretion, award credit . . . for the time spent at liberty on parole.” This provision “clearly and unambiguously grants the Board discretion” to award credit for time at liberty on parole. Thus, the Board erred when it said that Pittman “automatically forfeited” his time spent on parole. “[T]he Board abused its discretion . . . by concluding that it had no discretion,” Justice Baer said for the majority, reversing the Commonwealth Court and remanding to the Board to consider whether, in its discretion, Pittman should be credited with time he spent at liberty on parole.

The Court went further, ruling that the Board must produce more than a “Yes” or “No” checkbox on a form when rendering a discretionary decision. The majority held that this requirement, though not found in the statute, rested on three separate bases. First, Article V, Section 9 of the Pennsylvania Constitution grants citizens the right to an appeal from all administrative agency hearings to courts of record. Failing to provide any written reasoning for the Board’s decision threatened to turn this Constitutional appellate right to a “mere empty formality.” Second, “inherent notions of due process” demand a written explanation when a convicted parole violator is facing re-sentencing. Third, the General Assembly’s intent in passing the Parole Violation statute is best served by requiring a written opinion regarding a decision involving the Board’s discretion.

Saylor: This Decision is In Keeping with our Past Decisions on Parole Board Appeals

 Noting that the Court has previously ruled that parole revocation determinations are subject to the right to appeal, Chief Justice Saylor expressed concern in a brief concurrence that the majority opinion “may be read to diverge from this statutory requirement concerning the timing and/or content of written explanations by the Board.” Saylor offered no further explanation on this point, and was joined by Justice Todd in this opinion.

Mundy: Discretion Must be Exercised by the Board, but No Explanation is Required in the Statute

Arguing that the majority “insert[ed] new language” into the statute, Justice Mundy, joined by Justice Wecht, concurred in the result because the Board abused its discretion, but noted that nothing in the statute requires a written opinion. Noting that the Board is free to defend its decision in the appellate courts—as it did here—she argued that a written decision is not required by the statute or by practice in order for a meaningful appeal to take place.

Conclusion: The Board lost this one, right?

 The Parole Board loses this appeal on paper, but one always wonders what the Appellant wins in a case like this. For his pains, he receives the right to go back before the Parole Board, wounded by a rebuke by the Commonwealth’s highest tribunal, and beg for discretionary mercy. This time, the Board will be free to check “No” again, and will be sure to write an opinion as to why. Perhaps the Board will grant some mercy, now aware that it has broader latitude than it previously thought, but it seems unlikely that Mr. Pittman ends up in a much better situation now than before.

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Posted by on Apr 28, 2017 in Criminal, Direct Capital Review | 0 comments

Com v. Yandamuri: Direct Capital Appeal

Com v. Yandamuri was a direct capital appeal case pursuant to the Court’s responsibility to directly review all death penalty cases. In a botched baby-kidnapping-for-ransom attempt, Raghunandan Yandamuri, a non-citizen, knocked on the door of the home of friends, forced entry and threatened the grandmother with a four-inch knife. The grandmother struggled when Yandamuri grabbed the baby, and he stabbed Grandmother in the throat several times, killing her. He then stuffed a cloth in the baby’s mouth, bound the baby’s head with a towel (to keep the cloth in place), and then stuffed the child in a suitcase and left the suitcase in a sauna while he showered.

Yandamuri’s “plan,” such as it was, unraveled when he used an identifiable term for the parents known to only a small group of friends on the ransom notes strewn about the scene of the crime. He was in a casino when approached by security and asked if he would meet police in a hallway. He complied, and voluntarily accompanied the police to the station, and from there, the story is simple. He was repeatedly told he could leave at any time, and as his story changed, he finally was read Miranda rights, and he gave a full confession.

Yandamuri’s challenge to his conviction for first-degree murder is as weak as his plan for ransom. He challenged his “detention,” the admissibility of his confessions and claimed that “discrepancies” in the stories of the Commonwealth’s witnesses constituted “false evidence.” These arguments were flatly rejected.

Baer for the Majority: No Custodial Interrogation, Miranda not Required

Justice Baer, speaking for the majority upheld the conviction. Yandamuri’s first argument is that he was illegally arrested and detained. But the facts clearly demonstrated that he was first approached by private security guards at the casino where he was gaming, and he agreed to go with the guards, then with the police, and that he voluntarily remained with the police at the station in an unlocked room, even after repeatedly being reminded he was free to leave.

Second, Yandamuri argued that his confessions were coerced because he was not Mirandized early enough in the process. In determining whether a Defendant was in custodial interrogation such that Miranda warnings are required, the courts use an objective test, asking whether a reasonable person would have believed he was at liberty to terminate the police encounter under the circumstances. In this case, the officers’ repeated reminders that he was free to leave, their offer that he take breaks for food or to use the restroom, and the fact that Mr. Yandamuri had a master’s degree, implying high intelligence that makes it unlikely he was psychologically coerced.

The Court notes only two factors in his favor: Yandamuri is not a citizen, and thus “may have been unfamiliar with police practices” here in America; and he was at the police station for thirteen hours before confessing—his final confession came early in the hours of the morning. But nothing else in the situation argued in favor of a coerced confession, and so the confession could be properly admitted.

Finally, the Court rejected Defendant’s argument that minor discrepancies in the testimony of witnesses for the Commonwealth constituted the presentation of “false evidence.” Discrepancies, by themselves, are not false evidence.

Conclusion: You Can Always Waive Your Rights

These cases are always heartbreaking—especially when they deal with a murdered baby, and a grandmother who tried, however futilely, to wrest the baby back from the kidnapper. This case provides little of interest to the practicing attorney, but reaffirms the basic principle that constitutional protections cannot be foisted on those who are not interested in preserving them. The evidence used to convict Yandamuri came largely from his own mouth.

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