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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 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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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.

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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.

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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.


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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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