Pages Menu
Categories Menu

Posted by on Jul 21, 2017 in Criminal, Sentencing | 0 comments

Com v. Cullen-Doyle: Elementary, dear Watson—First Time Offenders are Eligible for RRRI

The Pennsylvania Supreme Court holds in Com v. Cullen-Doyle that the Recidivism Risk Reduction Inventive Act’s (RRRI) eligibility requirements were not meant to exclude a first-time violent offender pleading guilty to first-degree burglary.

The RRRI offers reduced prison times in exchange for participation in certain programs. One criterion of eligibility is that the offender must lack a “history of present or past violent behavior.” Mr. Cullen-Doyle pled guilty to First-Degree Felony Burglary, and asked to be sentenced under RRRI. The trial court denied his eligibility on the basis that his current guilty plea demonstrated present violent behavior.

Majority by Saylor: Ambiguous statute was intended to offer incentives to first-time offenders

Chief Justice Saylor, speaking for the 4-3 majority, holds that the term “history of present . . . violent behavior” is ambiguous. The General Assembly did not mean to include a first-time conviction for which the defendant is being sentenced in determining eligibility.

The majority offers three basic rationales for this conclusion. First, the legislature intended to offer greater incentives to avoid recidivism to first-time offenders than repeat offenders. Thus, when a first-time offender presents, it makes sense that RRRI should be available to him. Second, the inclusion of certain disqualifying crimes, and the exclusion of others, demonstrates the legislature’s intent in this regard. The statute explicitily disqualifies defendants guilty of certain crimes; the legislature’s failure to include burglary was intentional, and should be treated as such. Third, the rule of lenity bolsters this conclusion.

The rule of lenity is the concept that a defendant should get the benefit of the doubt in cases of criminal statutory construction. The rule of lenity applies not only to substantive criminal statutes, but also to statutes affected penalization, such as the present case. Thus, where the statute is capable of two different readings, the defendant should get the benefit of the doubt. This is the criminal equivalent of the contra proferentem doctrine in contract law, or the “your brother cuts the last piece, you choose the bigger one” rule familiar to those of us with siblings.

Dissent by Todd: History of Present . . . violent behavior” unambiguously includes all instances of violent behavior

Justice Todd dissents, joined by Justices Dougherty and Wecht, arguing that the statute is written to unambiguously include all violent behavior—past and present. Justice Todd rebukes the majority for failing to offer any alternative reading of the statute which would make the present violent conviction irrelevant, and concludes the General Assembly’s goal was to exclude violent offenders from eligibility for RRRI.

Conclusion: Narrow ruling, but is the Rule of Lenity expanded?

This case is a fairly narrow ruling. The Court hedges its ruling at key points, emphasizing that “under these circumstances,” RRRI sentencing should be available to a defendant. Though this ruling will certainly affect some defendants, the Court leaves open a trial court’s discretion to determine the appropriate sentence.

However, the Court’s invocation of the Rule of Lenity is important, particularly because this case is on the fringe of where the Rule of Lenity is typically invoked. I don’t mean to suggest the Court is wrong—I think they’re right that Lenity is implicated—but this bold application of the Rule invites its application even in situations where the Commonwealth’s grace is implicated. To put it differently, if the Rule of Lenity brings a defendant under an alternative, more merciful sentencing scheme, does it also offer a defendant hope to get on ARD where he is on the edge? Can it be invoked to justify treatment court? This ruling will certainly be a strong citation in arguments for defendants to be admitted to alternative punishment programs in the future.

Read More

Posted by on Jul 20, 2017 in Constitutional Provisions, Criminal, Suppression | 0 comments

Com v. Shabezz: Automatic standing in Pennsylvania to challenge unconstitutional searches

Saleem Shabezz was observed by a policeman in a McDonald’s Parking Lot—a “hot zone,” known for drug deals by the police in Philadelphia (always a great place to find hot ‘zones). The officer saw Shabezz from his patrol car, 45 feet away, conducting a “hand-to-hand transaction with the driver.” This transaction was “a cupping and dropping motion to transfer small objects into the driver’s hand,” and then a subsequent exchange of “something,” which the officer assumed to be money—or at least, this is the remarkably detailed story told by the officer at the suppression hearing.

The incident reports about the exchange, on the other hand, are more generic. The reports simply said Shabezz opened the passenger door to the car, leaned inside, and conducted a brief conversation with the driver. Shabezz returned to the red Acura he had arrived in as a passenger, which attempted to exit the lot.

Whatever happened before this moment, what happened next is uncontested: the cops stopped the Acura, Shabezz the passenger fled and was apprehended, and a host of drug-dealing equipment and drugs were found in the car (including “heat-sealed” baggies, scales for weighing powders, etc).

The trial court found the dramatic enhancements of the story described in the first paragraph above to be a bit too convenient, too late, and suppressed the evidence gathered in the stop as unconstitutional under the Fourth Amendment. But the Commonwealth appealed this ruling, arguing that Shabezz did not have a “reasonable expectation of privacy” in the areas searched (because it wasn’t his car), and thus, that he had no standing to contest the search.

Majority by Wecht: Shabezz has standing to challenge the search

Justice Wecht, writing for 5 members of the unanimous Court, outlines the development of “standing” in federal constitutional law. Wecht demonstrates how the Supreme Court of the United States quickly narrowed and then abandoned the concept of standing from the “automatic standing” rule of the 1960s, preferring to require Defendants to demonstrate a privacy interest in the area searched before being permitted to challenge a search under the law.

But Pennsylvania’s Supreme Court has always afforded more protection under the Pennsylvania Constitution than the Federal Supreme Court has under the Federal Constitution, and thus, Pennsylvania still recognizes automatic standing. But while standing allows the defendant to “get his or her foot in the courtroom door,” the Defendant must also demonstrate “that he had a privacy interest in the place invaded or thing seized that society is prepared to recognize as reasonable.”

Wecht goes on to argue that the Defendant in this case need not demonstrate a personal privacy interest in this case, because, “This case is about an illegal seizure of a vehicle and its occupants. It is not a vehicle search case.” (emphasis in the original).

Quoting from closely-analogous Third Circuit caselaw, the Court concludes that a defendant in a car that was unconstitutionally stopped need not show another unconstitutional search to have the evidence gathered from the unconstitutional stop suppressed. He has standing, he may challenge the stop, and having done so, he succeeds on the merits. “We hold that the contested evidence, tainted by the initial illegality, must be suppressed, even absent a demonstrable expectation of privacy in the locations where the evidence was found.”

Concurrence by Mundy: There are no “per se” rules under the Constitution

Justice Mundy, joined by Justice Baer, reminds us that the Fourth Amendment creates few “per se” rules, and that “the Court’s decision should not be read to suggest all searches stemming from unconstitutional seizures are automatically fruit of the poisonous tree.” A case by case analysis will reveal attenuation in some cases, and reasonableness in the overall circumstances of others. “Although this case is relatively straightforward, other cases may arise where the chronology of events is more complex, which may alter the calculus.”

Conclusion: Are we still talking about the Fourth Amendment?

The question granted for appeal, the Court’s reliance on Third Circuit caselaw, and the ultimate holding all seem to be interpreting the Fourth Amendment. However, the Court’s bold reminder that the Pennsylvania Constitution affords greater protection than the Federal Constitution is thrown into the midst of everything, and it brings a curiosity about this case to the foreground. Pennsylvania’s view of standing on the Fourth Amendment, by definition, must comport with the Supreme Court of the United States’s interpretation. But this opinion seems to differ in important respects from Federal Supreme Court caselaw, not the least of which is on the point of automatic standing. Indeed, with SCOTUS’s recent expansion of the “attenuation” doctrine in Utah v. Strieff, it seems hard for SCOPA to claim this case does not represent attenuation.

Perhaps I’m wrong—but from where I sit, the Court may wish to develop its own caselaw around Pennsylvania’s constitutional provisions (in this case, Article I, § 8) to fortify against encroachment by the federal courts. Of course, SCOPA is largely bound by the arguments that the litigants bring them, and this case appears to have been certified for appeal only on Fourth Amendment grounds, not under Article I. Regardless, Pennsylvania is blessed to have a strong set of Article I rights, and I hope that SCOPA future considerations of these rights remains bold and expansive, as this opinion promises they are likely to be.

Read More

Posted by on Jul 8, 2017 in Civil, Right to Know | 0 comments

PSP v. Grove: Motor Vehicle Recordings are not exempt from disclosure under Right to Know law

In Pennsylvania State Police v. Grove, the Supreme Court of Pennsylvania rules that Motor Vehicle Recordings are not exempt from the disclosure requirements of the Right to Know Act, and that they could not be withheld under the Wiretap Statute or CHRIA.

Motor Vehicle Recordings (MVRs) are recordings made by a police car’s dashboard camera, typically when the lights and siren are activated. Michelle Grove, a concerned private citizen, requested MVRs that captured investigation in the aftermath of an accident that she had observed. The record is “not clear” as to Grove’s motivation for trying to obtain the records of the accident, but she apparently became curious or concerned about the nature of the Pennsylvania State Police (PSP)’s investigation at the scene of a traffic accident where minor traffic citations were issued.

The Right to Know (RTK) Act broadly requires Commonwealth agencies to disclose various documents within their possession at the request of a citizen. 65 P.S. § 67.301. Exceptions to this broad duty of disclosure exist, of course, and two such exceptions are for “audio recordings, telephone or radio transmissions received by emergency dispatch personnel, including 911 recordings,” Section 708(b)(18)(i), and “criminal investigative records” under Section 708(b)(16). PSP denied Grove’s RTK requests, citing these exceptions, as well as the Criminal History Record Information Act (CHRIA).

Majority by Dougherty: Whether an MVR is a criminal investigative record is a case-by-case determination

Justice Kevin Dougherty, writing for the 5-2 majority, holds that MVRs are public records and therefore generally subject to disclosure under RTK requests. Exceptions should be construed narrowly to effectuate the general intent of the statute, “which is to empower citizens by affording them access to information concerning the activities of their government.” (quoting SWB Yankees LLC v. Wintermantel, 615 Pa. 640 (2012)). Any exception, including the exception for investigative materials, must be determined on a case-by-case basis.

The burden is on the Commonwealth agency to justify non-disclosure by a preponderance of the evidence. PSP’s position that MVRs are “generally exempt” would impermissibly shift this burden to the requestor to show that PSP would not be burdened. The legislature’s intent to keep RTK a broad power is underscored by the legislature’s recent expansions of RTK, and PSP, like other Commonwealth agencies, must comply.

In the present case, “The video depiction presents nothing more than what a bystander would observe.” The videos did not reveal the accident as it unfolded, and “the fact and nature of the Vehicle Code violations could not have been garnered from the video-only aspect of the MVRs.” Indeed, PSP conceded that “the only potentially investigative information consisted of the verbal statements captured on Trooper Thomas’s MVR,” which were ordered redacted by the Commonwealth Court, which neither party argued to overturn at SCOPA.

But PSP had one more argument up their sleeve in the case—RTK does not require an agency to create a “new record.” In other words, if in order to comply with an RTK request, an agency would have to redact documents so heavily as to actually compile an entirely new record, the agency can deny the request on the basis that it requires them to create something rather than disclose a document they already have. The majority wastes no time rejecting this argument in this case. All that was required here was the redaction of some audio from the MVRs—a task easily accomplished without great expenditures of labor on behalf of PSP.

The Court goes on to hold that the Wiretap Statute is not violated by the capture of oral conversations in which no privacy interest reasonably existed. The conversations were made with no expectation of privacy to investigating officers at the scene of an accident. The conversations were in public, overheard by other bystanders (including Grove), and any sensitive portions had already been agreed to be redacted from the audio. Therefore, the Wiretap Statute is not violated.

Concurrence by Wecht: Wiretap Act jurisprudence should be re-examined

Justice Wecht concurs in the result, but writes separately to argue that the Court should re-examine our interpretation of the Wiretap Statute in a future case. The Court’s jurisprudence in the past has impermissibly collapsed statutory and constitutional analysis into a singular consideration. An individual’s “privacy interest” in the content of the conversation in question, in other words, should not be relevant in determining whether capturing someone’s conversation was prohibited by the Wiretap Statute. Nonetheless, the precedents are good law at the moment, and were correctly applied to this case.

Dissent by Saylor: the exception in question here is for anything “related to” a criminal investigation

Chief Justice Saylor dissents, joined by Justice Mundy, writing that the term “related to” criminal investigation in the RTK Act is broader than the majority allows. The balance between the need for secrecy and confidentiality in criminal investigations and the public’s right of access is a delicate consideration. “[T]he appropriate balance among such important interests is a matter most closely suited to determination by the political branch, which, for the present at least, has designed a broad criminal-investigations exception to public access extending to MVRs.”

Dissent by Mundy: Police investigations should be exempt from disclosure

Justice Mundy reiterates Chief Justice Saylor’s argument that the term “related to” should be read more broadly, and that she would be satisfied with a showing that the video was recorded during an investigation, regardless of the content it captured. Her view would hold something closer to a per se rule that, once on the scene of an investigation, what is capture by MVRs is within a criminal investigation file exempt from disclosure. “Having accepted that Troopers Thomas and Vanorden engaged in a criminal investigation upon arriving at the scene of the accident, the MVRs’ record of the steps the officers took, the persons they spoke with, and the state of the scene they encountered became a record related to that investigation.”

Conclusion: Implications for body-cams, cell phones, the First Amendment

This case strikes me as the most important of the term. Yes, other cases have received more hype, but Grove will be remembered and cited to obtain access to surveillance video, MVRs, and most crucially, body-camera footage from officers. These videos have already had a profound impact on the public’s understanding of police work, and have shown horrifying images in cases such as the Philando Castile slaying by an officer in Minnesota. RTK requests will proliferate, and as this case makes clear, the requestor need not have a personal or obvious interest in the matter, they need only be a concerned citizen.

This case should be read in conjunction with the 3rd Circuit case, Fields v. City of Philadelphia, which held that citizens have a First Amendment right to record police actions, even when they don’t yet know if they’re going to use the video or post it anywhere. As technology changes, the citizen’s right to access the substantial recordings made of their own daily activities by police and other agencies is leading to growing concern that our privacy is under assault. In this case, as well as in Fields, the courts are ruling that the people have the power to turn government surveillance power into a government liability. They more they record, the more we potentially have access to.

Read More

Posted by on Jun 21, 2017 in Attorney Discipline | 0 comments

ODC v. Quigley: Misuse of IOLTA funds warrants disbarment

Quigley was an attorney with a “generally good reputation as a good trial attorney.” However, Mr. Quigley began to have money problems. Other difficulties arose, including when an ad in the phonebook was printed with the wrong phone number, and business dried up. He misused IOLTA funds from five clients over three years, and the Court rules that he is disbarred.

Majority by Mundy: Misuse of client funds warrants disbarment

Justice Mundy, writing for the majority, concludes, “The misuse of client funds in five separate matters, over three years by Quigley has compromised the integrity of the legal profession to a degree which warrants the sanction of disbarment.”

A psychologist was called to testify that Mr. Quigley should have been diagnosed several years ago with depression and mild post-traumatic stress disorder. However, evidence was adduced that Quigley’s misbehavior regarding the IOLTA account began well before any psychological disturbances arose. Therefore, “Quigley failed to demonstrate a causal connection between his misconduct and a psychiatric disorder sufficient to constitute a lesser disciplinary sanction in this matter.”

Furthermore, other mitigating factors offered by Quigley were rejected by the majority. Yes, Quigley paid back four of his five defrauded clients in full—but only after the instigation of disciplinary proceedings. Yes, he may not have had intent to defraud them—but mistakes in an IOLTA account are strict liability, and the vast disparities in the amounts in the account show he was wildly reckless at the very least in the maintenance of his account.

Dissent by Donohue: Disbarment was unnecessary in this case

It’s always surprising to see a dissent in an ODC case. The Supreme Court likes to present a united front regarding its regulation of the profession. But as Justice Donohue argues, the Court must also punish similar conduct consistently. Pointing to similar cases in the Court’s attorney disciplinary jurisprudence, Donohue argues that this case should not have resulted in disbarment. She also points out the purpose of the disciplinary oversight of the Court.

“Disbarment is an extreme sanction properly reserved for only the most egregious matters, as it constitutes a termination of the privilege to practice law without any promise of ultimate reinstatement.” Donohue would have preferred that the Court temporarily suspend Quigley, allowing him to make a recovery as to any psychological concerns and then be readmitted.

Justice Wecht joined this dissent.

Conclusion

These cases are never fun to write about, but they serve as a warning to all attorneys to carefully manage our practices and IOLTA accounts, and to be above repute in these matters. It’s heartbreaking to see a talented trial attorney lose his license over ethical abuses, but it happens all too frequently. Hopefully Mr. Quigley will be able to get his life straightened out and after the five-year moratorium passes, successfully reapply to the practice of law.

Read More

Posted by on May 26, 2017 in Criminal, Direct Capital Review | 0 comments

Com v. Johnson: A Death Penalty Appeal

In Commonwealth v. Johnson, the Pennsylvania Supreme Court unanimously affirmed a murder conviction and the jury’s imposition of the death penalty. The Supreme Court of Pennsylvania is charged with reviewing all death penalty cases before passing on a full transcript and case file to the Governor. The Court exhaustively reviewed Johnson’s case, and concluded there were no errors in his trial.

The case facts are grisly, and concern Johnson’s triple murder of one of his friends and her children to obtain drugs. A fire was set, ostensibly to destroy the murder scene. Johnson was seen fleeing the scene in a stolen car, hitting another car as he exited. Johnson was seen by family of the victims at the apartment storing some of his possessions less than 30 minutes before the murder. Finally, Johnson confessed.

The case demands no legal analysis, as nothing of particular interest is revealed in the case. Justice Donohue writes for the unanimous Court, and there are no concurrences or dissents.

 

Read More