Criminal Law Update
Shane Scanlon, Esq.
Deputy District Attorney
Office of the District Attorney Lackawanna County
Andrew J. Jarbola III, Esq.
District Attorney
CRIMINAL
PROCEDURE
Double Jeopardy- PFA Violations
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Hill v. Randolph, 24 A.3d 866 (Pa. Super. 2011)
The Court affirmed the defendant's consecutive jail
sentences on two counts indirect criminal contempt for
violating two provisions (entry into the marital residence
and assault of wife/protected party) of a protection from
abuse ("PFA") order.
The Court found that a multiple counts of indirect
criminal contempt are permitted for multiple violations of
a single PFA order, even if it is a single criminal episode.
The Court noted that double jeopardy analysis would be
required if the defendant were subsequently
charged/convicted for other criminal offenses related to
same conduct.
Custodial Detention - Custodial
Interrogation
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Com, v. Charleston, 16 A.3d 505 (Pa. Super. 2011)
(rearg. denied 4/14/2011)
The Court affirmed the defendant's conviction for firstdegree murder. Addressing the admissibility of the
defendant's statements, the Court ruled that although
questioned by police while sitting in the back of a police
car, the defendant was not in custodial detention until
handcuffed.
The Court upheld the admission of the statements made
after Miranda warnings were given even though the
interrogation began without Miranda because there was
no evidence of police coercion.
Post-sentence Motion to
Withdraw Plea
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Com, v. Yeomans, 24 A.3d 1044 (Pa.
Super. 2011) The Court affirmed the denial
of the defendant's post-sentence motions.
The Court upheld the denial of his motion
to withdraw his guilty plea because he
acknowledged the facts leading to the
criminal charges against him at the time of
his guilty plea.
Confrontation Clause - Calibration Logs
for a Breathalyzer
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Com, v. Dyarman._ A3d. _ (Pa. Super.
11/16/2011) The Court affirmed the defendant's
DUI conviction and rejected his confrontation
clause challenge to a breathalyzer's calibration
logs.
Distinguishing the holding in Com, v. BartonMartin. 5 A.3d 363 (Pa. Super. 2010), the Court
held that the calibration logs were not
testimonial evidence under Melendez-Diaz. and
thus were admissible (as business records under
the hearsay rules or under 75Pa.C.S. § 1547).
CRIMINAL OFFENSES
Cruelty to Animals -18 Pa. C.S. §
5511(a)(2.1)(i)(A)
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Com, v. Crawford. 24 A.3d 396 (Pa.
Super. 2011) The Court affirmed the
defendant's conviction for cruelty to
animals for her efforts to create "gothic"
kittens. Describing the detailed expert
testimony on the cruel effects of piercing
kittens' ears and docking their tails, the
Court found sufficient evidence to convict
and rejected her constitutional vagueness
argument.
Robbery - Retail Theft
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Com, v. Hansley. 24 A.3d 410 (Pa. Super.
2011) The Court affirmed the defendant's
conviction for first-degree robbery where he was
confronted by loss prevention associates for
stealing DVD's, struggled with them, and then
pulled a knife on them.
These facts were sufficient to show that in the
course of committing a theft, he threatened
another with or intentionally put him in fear of
immediate serious bodily injury. See 18 Pa.C.S.
§ 3701(a)(1)(h).
Fleeing & Eluding Police - 75 Pa.
C.S. § 3733(a.2)(2)(iii) - High
Speed Chase
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In the Interest of; R.C.Y.. 27 A.3d 227 (Pa.
Super. 2011) (rearg. Den. 9/16/11) The Court
affirmed the juvenile defendant's adjudication of
delinquency for violating 75 Pa.C.S.
§3733(a.2)(2)(iii) (fleeing and eluding police by
engaging in a "high-speed chase"), even though
he did not exceed 35 mph.
Rejecting literal statutory construction, the Court
found that the term "high-speed chase" includes
any chase which creates "extraordinary danger
to the public at large or to police officers."
Third Degree Murder - Malice
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Com, v. Devine. 26 A.3d 1139 (Pa.
Super. 2011) The Court affirmed the
defendant's conviction for third degree
murder and other charges. The Court
found sufficient evidence to convict where
the defendant had "initiated a gun battle
in the midst of numerous innocent
bystanders."
DUI- Prior Offenses in Other
Jurisdictions
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Com, v. Pombo. 26 A.3d 1155 (Pa. Super.
2011) The Court vacated the defendant's
sentence as illegal for failure to consider a prior
"driving while ability impaired" conviction in New
York as a prior offense for sentencing purposes.
Noting the 2008 changes to the DUI statutes
which changed the "equivalency" test to a
"substantially similar" test, the Court found that
the NY statute was substantially similar to the
PA statute.
Robbery of a Motor Vehicle -18
Pa. C.S. § 3 702(a)
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Com, v. Bonner. 27 A.3d255 (Pa. Super.
8/17/2011) The Court affirmed the defendant's
conviction for robbery of a motor vehicle where
the defendant had taken the keys from the
victim at knifepoint inside her home.
The Court ruled that the evidence was sufficient
to find that the defendant deprived the victim of
the car while in the victim's presence, even
though she remained inside the home after
relinquishing the keys.
Dog Law - Failure to Confine
One's Dog
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Com, v. Raban. 31 A.3d 699 (Pa. Super.
10/05/2011) (rearg denied 12/12/2011)
The Court affirmed the defendant's
conviction under the Dog Law, ruling that
section 305(a)(1)(failing to confine one's
dog) does not contain a mens rea
requirement.
EVIDENCE
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Non-testimonial Hearsay under CrawfordAuthentication of Video
Com, v. McKellick. 24 A.3d 982 (Pa. Super.
2011) The Court affirmed the defendant's
sentence for DUI where the arresting officer
(State Trooper Joshua Miller) died in the line of
duty prior to the trial.
The Court ruled that the video of the traffic stop
was admissible non-testimonial hearsay and that
it was sufficiently authenticated by other
officers.
The video, the testimony of medical personnel,
and the BAC were sufficient to convict despite
the absence of the arresting officer.
Destruction of Evidence
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Com, v. Allen. 24 A.3d 1058 (Pa. Super. 2011) The
Court affirmed the defendant's sentence for DUI,
Involuntary Manslaughter, and related charges. The
Court upheld the admissibility of the BAC despite the
blood sample being destroyed by the hospital in accord
with its standard procedures before it could be
independently tested.
The defendant failed to show that it would be materially
exculpatory or that its destruction was due to bad faith
by the Commonwealth. See Com, v. Snvder. 963 A.2d
396 (Pa. 2009).
Photographs of Murder Victim, Prior Bad Acts Arguments between Victim and Defendant
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Com, v. Funk, 29 A.3d 28 (Pa. Super. 08/26/2011) (en
banc) The Court affirmed the defendant's first degree
murder conviction. The Court ruled that photographs of
the victim's body were properly admitted where the
bruises and puncture wounds demonstrated a specific
intent to kill.
Further, the evidence of blood splatter in the
photographs contradicted the defendant's version of
events.
The Court also ruled that evidence that police had been
called to the victim's residence on prior occasions
because of fights with the defendant was properly
admitted.
Alibi
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Com, v. Sileo. 32 A.3d 753 (Pa. Super.
09/01/2011) The Court affirmed the denial of
the defendant's PCRA petition seeking relief
from his first-degree murder conviction.
The Court ruled that the defendant was not
prejudiced by trial counsel's failure to request an
alibi jury instruction.
The Court found that alibi evidence was not
presented where the defendant, by his own
admission, was alone across the street from the
murder scene during the time of the killing.
Competency - Young Witnesses
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Com, v. Pena._ A.3d__(Pa. Super. 10/31/2011) The
Court reversed a trial court's order precluding two
juvenile sexual assault victims (ages fourteen and
fifteen) from testifying following a "taint" hearing
pursuant to Com, v. Delbridge. 855 A.2d 27 (Pa. 2003).
The Court found that Delbridge was intended to apply
only for young children, and that the witnesses here (a
fourteen- and a fifteen-year-old) were entitled to the
standard presumption of competence.
The concerns raised by the defendant were credibility
issues to be considered by the fact-finder, not legal
issues to be determined by the trial court.
SEARCH & SEIZURE
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Warrantless Seizures — Limited Auto Exception
Search & Seizure - Search Warrants - Staleness
Challenges
Com, v. Griffin, 24 A.3d 1037 (Pa. Super. 2011) The
Court affirmed the denial of the defendant's motion to
suppress evidence found in his vehicle following his arrest
for impersonating an officer. The Court ruled that
Pennsylvania's limited auto exception to the warrant
requirement permitted the defendant's vehicle to be
seized and impounded pending application of a search
warrant. The Court also ruled that the facts contained
within the four corners of the affidavit of probable cause
submitted with the search warrant application were not
impermissible stale as they occurred within a week prior to
the application.
Warrantless Arrest
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Com, v. Galendez, 27 A.3d 1042 (Pa. Super.
08/24/2011) The Court affirmed the denial of
the defendant's motion to suppress the a gun
found on him after his warrantless arrest, where
the officer had prior knowledge of the
defendant, knew he was wanted on an
outstanding scofflaw warrant, and knew he was
wanted for questioning about a carjacking.
Requests for Identification Passenger in Vehicle
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Com, v. Durr. 32 A.3d 781 (Pa. Super.
10/12/2011) The Court reversed the trial court's
ruling that a police officer's questioning of the
defendant, a passenger in a vehicle, regarding
his identity was unconstitutional.
The Court noted that while a request for
identification is constitutionally permissible, it
was deciding the issue whether the passenger
has the right to not respond to such a request.
Probable Cause - Informants
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Com, v. Goldsborough._ A.3d_(Pa. Super.
10/28/2011) The Court reversed the
granting of the defendant's motion to
suppress where police observations
corroborated information provided by
known, reliable confidential informants.
Warrantless Searches - Parolees
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Com, v. Colon._ A.3d_(Pa. Super. 10/28/2011)
The Court affirmed the denial of the defendant's
motion to suppress where a parole agent found
contraband on the defendant/parolee's person
and in his vehicle.
The Court found the searches justified based on
the parole agent's reasonable suspicion that he
was in violation of parole conditions (namely,
not residing at an approved residence and
possessing contraband). See 61 Pa.C.S. § 6153
(relating to searches and seizures involving
parolees).
Search Warrants - Specificity
Requirement Applied to Persons
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Com, v. Johnson. _ A3d. _ (Pa. Super.
11/29/2011)Pa. Super. The Court affirmed the
defendant's convictions for drug-related
offenses. The Court held that the specificity
requirement for search warrants applies to
descriptions of persons to be searched as well as
places.
The Court found that the warrant at issue
included a sufficient description of the defendant
to justify his search pursuant to the warrant.
Voluntary Abandonment
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Com, v. Taylor._ A3d. _ (Pa. Super.
12/14/2011) The Court affirmed the denial
of the defendant's suppression motion
where he voluntarily abandoned a potato
chip bag used to hold drugs when he saw
police watching him from a passing
vehicle.
SENTENCING
Pre-sentence Withdrawal of Plea
- Second or Subsequent Motions
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Com, v. Walker. 26 A.3d 525 (Pa. Super. 2011) The Court affirmed
the denial of the defendant's presentence motion to withdraw his
plea of guilty but mentally ill. The defendant had withdrawn his plea
once already, and the Court ruled that an assertion of innocence
does not constitute a "fair and just reason" to withdraw a second or
subsequent plea to the same charges. See Com, v. Iselelv. 615 A.2d
408 (Pa. Super. 1992).
Because the defendant was represented by counsel in his appeals,
the Court refused to consider the defendant's pro se filings citing
ineffective assistance of appellate counsel, citing the recent
Pennsylvania Supreme Court decision in Com, v. Jette. 2011 WL
2464780 (Pa. Jun. 2011) (forcing litigants to choose between a
counseled appeal or self-representation, and rejecting the
procedures set forth in Com, v. Battle. 879 A.2d 266 (Pa. Super.
2005)).
Probation & Parole "Constructive Probation "
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Com, v. Allshouse._ A.3d_(Pa. Super. 09/01/2011) The
Court affirmed the revocation of the defendant's probation
in Clearfield County. The Court ruled the Department of
Corrections properly aggregated the defendant's Clearfield
County sentence with a consecutive sentence from
Jefferson County, and that his probation sentence began
upon his release from state prison at the expiration of the
aggregated maximum.
In this case of first impression, the Court rejected the
defendant's claim of "constructive probation" and held that
a term of probation and a term of state incarceration
cannot be served simultaneously.
Probation & Parole - Adjusting
Maximum Dates for Absconders
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Com v. Stafford, 29 A.3d 800 (Pa. Super.
09/26/2011 The Court reversed the order
granting the defendant's habeas corpus
motion and remanded for further
proceedings. The Court ruled that an
absconder from house arrest is not
entitled to credit for his sentence running
for the period he was not under
supervision and that the maximum date
should have been recomputed/adjusted.
Unreasonableness Review - Below
Standard Range Sentences
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Com, v. Daniel. 30 A.3d494 (Pa. Super.
10/11/2011) The Court reversed the
defendant's sentence for nearly killing an
unarmed man by stabbing him in the
stomach.
Citing the sentencing factors in 42 Pa.C.S.
§ 9781(d), the Court found the sentence,
which was well below the minimum
standard range, unreasonably lenient.
Sentencing - Merger - Robbery by Threat
of SBI & Robbery of a Motor Vehicle
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Com, v. Wade._ A3d. _ (Pa. Super.
11/18/2011) The Court affirmed the
defendant's conviction for robbery and
related offenses. The Court rejected a
constitutional challenge to the merger
statute and found that robbery by threat
of serious bodily injury and robbery of a
motor vehicle do not merge.
Sentencing Enhancements
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Com, v. Stokes. _ A3d. _ (Pa. Super. 12/01/2011) The Court
affirmed the defendant's sentences for conspiracy to commit murder
and aggravated assault (and related offenses) where the defendant
was acquitted on charges (e.g., murder, firearms and PIC)
indicating that the jury did not believe he was the shooter.
The Court held that a sentencing court must consider but is not
bound by a jury's acquittal in determining whether a defendant
possessed or used a firearm under Pa.C.S. § 9712 or whether the
deadly weapon used sentencing guidelines enhancement applied.
The Court found that Sixth Amendment concerns under Apprendi
were not triggered where facts determined at sentencing did not
raise the defendant's exposure beyond the statutory maximum.
APPEALS
PCRA - Prejudice due to Delay
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Com, v. Weatherill. 24 A.3d435 (Pa. Super. 2011) The
Court affirmed the dismissal of his PCRA petition due to
the prejudice to the Commonwealth: twenty years had
passed since the crime rendering most Commonwealth
witnesses unavailable, the first responder had died,
crucial documents gone missing, the defendant had
allowed his PCRA petition to languish for years without
being addressed, and the defendant refused not to
present a novel defense. See Com, v. Rencheski. 988
A.2d 699 (Pa. Super. 2010).
SORNA
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Sex Offender Registration and
Notification Act
42 Pa. C.S. § 9799.14, effective
12/20/2012
15 YEAR
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Unlawful Restraint18 Pa. C.S. §
2902(b)(minor complainant, offender
notparent/guardian)
False Imprisonment18 Pa. C.S. §
2903(b)(minor complainant, offender
notparent/guardian)
Interference with Custody of Children18
Pa. C.S. §2904
Luring Child Into a Motor Vehicle18 Pa. C.S.
§2910
15 YEAR
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Institutional Sexual Assault18 Pa. C.S. §
3124.2(a)
Indecent Assault18 Pa. C.S. § 3126(a)(1)
(without consent)
Corruption of Minors18 Pa. C.S. §
6301(a)(1)(h)(committing or inducing
sexualoffenses)
Sexual Abuse of Children18 Pa. C.S.
§6312(d) (child pornography)
Invasion of Privacy18 Pa. C.S. §7507.1
25 YEAR
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Statutory Sexual Assault18 Pa. C.S.
§3122.1(a)(2)(at least 8 but less than 11
years older than complainant)
Institutional Sexual Assault18 Pa. C.S.
§§3124.2(a.2-a.3)
Indecent Assault18Pa.C.S.§§3126(a)(26,8)
Promoting Prostitution of a Minor18
Pa. C.S. §5902(b.l)
25 YEAR
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Obscene Materials18 Pa. C.S. §§
5903(a)(3)(h); (4)(ii);(5)(ii); (6)(minor
complainant)
Sexual Abuse of Children18 Pa. C.S. §§
6312(b),(c)
Unlawful Contact With Minor18 Pa.
C.S. §6318
Sexual Exploitation of Children18 Pa.
C.S. §6320
LIFE
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Kidnapping18 Pa. C.S. §2901 (a. 1)
(kidnapping of a minor)
Rape18 Pa. C.S. §3121
Statutory Sexual Assault18 Pa. C.S. §
3122.1(b)(11 or more years older than
complainant)
IDSI18 Pa. C.S. §3123
LIFE
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Sexual Assault18 Pa. C.S. §3124.1
Institutional Sexual Assault18 Pa. C.S.
§3124.2(a.l)
Aggravated Indecent Assault18 Pa. C.S.
§3125
Indecent Assault18 Pa. C.S. §
3126(a)(7)(complainant less than 13 years
ofage)
Incest18 Pa. C.S. 4302(b) (incest of a minor)
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Registration is required for any
"attempt, conspiracy, or solicitation
to commit" any enumerated offense.
Registration is required for any
"comparable military offense or
similar offense of another jurisdiction
or foreign country."
CRIMINAL DEFENSE
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How to Suppress Evidence
How to Win Cases for your Criminal Clients
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Thank you to the Pennsylvania District
Attorney’s Association for the materials
presented today.
QUESTIONS
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Shane Scanlon
570-963-6717