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Posted by on Feb 13, 2018 in Criminal, Murder, PCRA | 20 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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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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Posted by on Aug 23, 2017 in Criminal, Mens Rea, Murder | 0 comments

Com v. Packer: DUI on immediate and debilitating intoxicants satisfies mens rea for third-degree murder

In Commonwealth v. Packer, the Pennsylvania Supreme Court rules that the choice to drive immediately after and while huffing difluoroethane (DFE) intoxicants that are known to render the user unconscious satisfies the high standard of malice necessary for a finding of third-degree murder.

Danielle Packer went to a Walmart late one night with her fiancé, Julian Shutak, and bought aerosol cans, which they both “huffed” before getting back into the car. Packer and Shutak engaged in self-aware ironic dialogue about the likelihood that Packer would kill them both while driving intoxicated. After getting on the road, Packer huffed again at a red light, and continued driving, ultimately losing consciousness, as she had before when “huffing.”

Her car crossed the dividing lines while Shutak yelled to get her attention and struck another oncoming car, killing the driver. Packer emerged from the vehicle with very little concern over the victim of her acts, but extremely concerned about her own future. Frantically asking several witnesses if she was going to jail, and smoothly asking the EMTs if the police would be able to detect DFE in her system, Packer demonstrated to every witness involved that night that she had been well aware of the likelihood that DFE would knock her out while driving.

A jury convicted Packer of third-degree murder, and Packer appealed all the way to the Supreme Court of Pennsylvania. Packer appealed to several prior cases of the Court which ruled that the malice required for murder is generally not found in a run-of-the-mill DUI.

Majority by Donohue: Packer’s knowledge of DFE’s effects on her led to virtual certainty that someone would be killed on the road

Writing for the unanimous Court, Justice Donohue explicated the various levels of murder in Pennsylvania’s common law tradition, now codified by statute. First-degree murder is the premeditated variety; second-degree murder, the felony murder kind; and third-degree murder is the catchall of “any other” type of murder, but which still requires legal malice.

Drawing on the wealth of ancient caselaw available to a Pennsylvania Supreme Court justice, Donohue quotes from an 1868 case for the proposition that malice is more than just standard ill-will, but rather a “wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.” (quoting Com v. Drum, 58 Pa. 9 (1868)).

The Court proceeds to lay out the textbook examples of “depraved heart” murder—a defendant who fires a gun into a crowd may not intend to kill anyone, but his depraved heart is sufficient for a finding of malice; playing reverse Russian roulette where the player aims at his friend is still guilty of murder, even if he really was hoping this wasn’t the loaded chamber. In the present case, getting behind the wheel of the car after intentionally huffing a substance you know typically knocks you out—and then huffing it again while driving—is sufficient to prove the malice of your depraved heart, even if you didn’t “mean” to kill anyone.

There is a long line of Pennsylvania caselaw equating the mens rea necessary for third-degree murder with that of aggravated assault. The difference between these two substantive crimes is essentially what results from the actions of the defendant. If the victim dies, it’s third-degree murder; if the victim lives, it’s aggravated assault. In both cases, however, the malice of the defendant is the same. Drawing favorably on comparable situations in the aggravated assault setting, the Court shows how a Defendant’s inexcusable recklessness can rise to a level indistinguishable from intentional action, and how this level of malice is sufficient for a conviction under either statute, depending only on the victim’s life or death.

The Court distinguishes its prior DUI caselaw, stating “There is a significant difference between deciding to drive while intoxicated and deciding to drive with knowledge that there is a strong likelihood of becoming unconscious.” This case, Donohue explains, is more like playing Russian roulette: “the defendant is virtually guaranteeing some manner of accident will occur through the intentional doing of an uncalled-for act in callous disregard of its likely harmful effects on others.”

Conclusion: DUIs are still not murder

The strong and thorough analysis in this case leaves little doubt that the Court is not trending toward treating DUIs as murder. Nonetheless, there are situations where an individual’s inexcusably reckless behavior could rise to the level of malice required for aggravated assault or “depraved heart,” third-degree murder. For now, such situations are limited to “immediate intoxicants” such as DFE; however, it is not beyond the pale to expect that prosecutors may soon be pushing the envelope in other cases.

This case’s language is narrowly-tailored to the facts, and it approves an appropriate punishment for someone who intentionally and willfully put lives at risk, and predictably killed another motorist. Hopefully the heightened consequences of such actions will cause some people to think before getting behind the wheel.

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