Adams County Bar Association – 2014
Stuart Suss, Esquire
Holmes, ___ Pa. ___, 79 A.3d 562 (10/30/13)
No extra round of collateral attacks
Reaffirm Grant (2002) - Claims of ineffective
assistance to be deferred to PCRA review
Extraordinary exceptions to deferral of ineffectiveness claims:
 Ineffectiveness both meritorious and apparent from the record
 Defendants who receive short prison sentences or probation
 No prolix claims of ineffective assistance
Holmes, ___ Pa. ___, 79 A.3d 562 (10/30/13)
Exceptions to deferral of claims of ineffectiveness
must be accompanied by waiver of PCRA.
Exhaustion of first PCRA petition
60 day deadline for any second PCRA petition
◦ Government interference
◦ Newly discovered facts
◦ New retroactive constitutional right
We do not authorize trial judges to appoint counsel to
search for ineffectiveness claims.
The trial court is not obliged to indulge a defendant's
complaints about trial counsel.
Any fact that triggers a mandatory minimum sentence is an
“element” of the offense that must be submitted to the jury.
Unconstitutional Pennsylvania statutory provisions regarding
mandatory sentences

Not
 an element of the offense


To be decided by the judge not the jury
Proof by a preponderance of the evidence
May the unconstitutional provisions be severed from the
statute?







Alleyne does not apply retroactively on PCRA.
◦ Miller, ___ A.3d ___ (Pa. Super. 9/26/14)
Alleyne applies retroactively on direct appeal.
Unconstitutional provisions are not severable.
◦ Newman, ___ A.3d ___ (Pa. Super. 8/20/14) (en banc)
Amendment of information and special jury verdict do not cure constitutional
defects.
◦ Valentine, ___ A.3d ___ (Pa. Super. 10/3/14)
Prior convictions that enhance sentences are not elements of the offense, and
are not subject to the Alleyne rule.
Not all mandatory sentences are constitutionally flawed.
Homicide by Vehicle while driving under the influence
75 Pa.C.S. § 3804 (DUI penalties)
42 Pa.C.S. § 9717 (victim over age 60, defendant under age 60)
Supreme Court of Pennsylvania to have the final say
◦ Commonwealth v. Hopkins, No. 98 MAP 2013 (argued 9/10/14)
Indecent assault, Corruption of minors, Statutory
sexual assault

No offender registration under prior law

Registration under current law

Current law applies retroactively
Defendant claims that registration requirement is a
breach of the plea agreement.
Is SORNA unconstitutional as applied to juveniles?
Interest of J. B., No. 87 MAP 2013 (argued 5/6/14)
Issues to be considered with respect to adults:
1. Act 19 of 2014 may remove the registration requirement.
Bundy, ___ A.3d ___ (Pa. Super. 7/10/14)
Are the following issues now moot?
2. Was plea agreement nullified by defendant’s probation violation?
Partee, 86 A.3d 245 (Pa. Super. 2/20/14)
3. Defendant entitled to specific enforcement of terms of a plea agreement.
Hainesworth, 82 A.3d 444 (Pa. Super. 12/12/13) (en banc)
4. Request for specific enforcement is not a PCRA petition subject to PCRA
filing deadlines.
5. May the sentencing court terminate supervision early?
Commonwealth, Appellant v. Leeshay Bennaim, No. 51 MAP 2014
Gary, ___ Pa. ___, 91 A.3d 102 (4/29/14)
(plurality opinion and Saylor, J. concurring)
Tinted window stop (lawful stop)
Q: Anything we need to know about? A. Some weed.
Adoption of federal constitutional standard
Mobility is a per se exigency
1.
2.
3.
4.
5.
6.
Did the police have sufficient time to obtain
a warrant?
Would the vehicle have been driven away if
not immediately searched?
Would the interior of the vehicle been
accessed by others?
Was anything dangerous inside the vehicle?
Should the police have posted a guard at
the vehicle?
Should the vehicle have been impounded
and a warrant then sought?
1.
2.
3.
4.
5.
6.
7.
8.
Was the vehicle lawfully stopped?
Is there legal justification to search the vehicle?
May the police search containers found in the
vehicle?
If the vehicle is impounded, is a warrant now
necessary?
Is there a time deadline for searching after
impoundment?
What rules apply to passengers and their
belongings?
What is the scope of a search incident to an arrest
of the driver?
What is the law pertaining to an inventory search?
Hudson, 92 A.3d 1235 (Pa. Super. 5/30/14)

Probable cause still required post-Gary

Broken tail light stop


Furtive movements
Protective sweep: Three
bottles in center console
prescription
pill
Pill bottle is not “immediately apparent” as
contraband
If police have probable cause to search a vehicle, they do
not need a separate warrant to open a container.
Every part of the vehicle and its contents that may
conceal the object of the search may be searched.
Trunk
Ash tray
Glove compartment
Paper bag Backpack
Briefcase
Mobile digital storage device (computer, phone, tablet)??
No search warrant is necessary even after the
vehicle has been impounded.
United States v. Johns, 469 U.S. 478,
105 S.Ct. 881, 83 L.Ed.2d 890
(1/21/85)
Search of packages permitted three days after
impoundment of vehicle.
Probable cause to search car does not permit
search of passenger’s person
Wyoming v. Houghton, 526 U.S. 295, 119
S.Ct. 1297, 143 L.Ed.2d 408 (4/5/99)
Probable cause to search car permits search of purse on
back seat
What if the passenger were holding her purse?
(Breyer, J. concurring)
What if the police separated passenger from her purse?
Protective frisk of interior of vehicle
Officer reasonably believes that suspect is
dangerous and may gain control of weapons
Mere nervousness of driver insufficient
Were there furtive movements?
A search of interior of vehicle, after the arrest
of the driver, may not occur after the arrestee
has been secured and cannot access the
interior of the vehicle.
Is it reasonable to believe that evidence of the
offense of arrest might be found in the vehicle?
Turn signal violation
After stop: No emissions sticker, license is suspended
75 Pa.C.S. § 6309.2(a)(1)
 Immobilization is distinct from impoundment
 License suspension authorizes immobilization of vehicle
 Operator has 24 hours to obtain judicial certificate of release
 Towing and storage only if "in the interest of public safety”
Vehicle two feet from curb
No broken glass or items of value
Immobilization, without impoundment, does not authorize
an inventory search
Thompson, 999 A.2d 616 (Pa. Super. 7/16/10) is overruled.
Riley v. California, 573 U.S. ___, 134 S.Ct. 2473,
189 L.Ed.2d 430 (6/25/14)
The digital contents of a mobile phone may not be
accessed incident to an arrest of the phone’s owner.
Permissible police conduct after discovery of a phone,
incident to an arrest:
Examine the phone to insure there is no concealed
weapon
Disable the phone’s automatic lock feature
Seize and secure the phone while seeking a
warrant
Search the contents in a case of exigent
circumstances
Riley v. California, 573 U.S. ___, 134 S.Ct. 2473,
189 L.Ed.2d 430 (6/25/14)
Issues to be resolved:
Prior law is not overruled. Searches of wallets and
purses for physical evidence remain permitted.
Digital data is different.
Applicability to tablets and laptops – mobile data
storage devices
Will mobile data storage devices be different from
containers in a vehicle?
Retention of and access to previously seized digital
data (How do you return part of a hard drive?)

Seizure of phone – Probable cause required

Defendant arrested for murder; phone seized from nightstand



No blood stains on phone; no evidence that telephone had
been used to communicate with victim on day of murder
Romantic relationship between victim and defendant did not
constitute probable cause to seize phone
Removal of battery from phone did not constitute probable
cause that contents were incriminating

A request for identification is not a detention.

Writing down information does not restrain a suspect’s
freedom of movement.

◦ Commonwealth v. Au, 615 Pa. 330, 42 A.3d 1002 (4/26/12)
Officer testified that he did not believe that defendant was
free to leave.
However, the officer’s belief was never communicated to the
defendant.
The legal standard is an objective one and depends upon the
reasonable impression conveyed to the person seized and not
the subjective view of either the officers or the person being
seized.