Happy Memorial Day weekend! Celebrate responsibly.
For practitioners: for those who retain your services Tuesday who did not celebrate responsibly, be mindful that the Superior Court on May 20th breathed some new life into using the DL-26 form as a suppression tool.
In a case out of Chester, the Superior Court reversed an order denying suppression, reasoning that the motorist "did not make a knowing and conscious choice of whether to submit to [a] blood draw" because the police had not conveyed the information required on the DL-26 form.
There was some question after Birchfield of what exactly law enforcement needed to convey under 75 Pa.C.S. § 1547, and whether refusal to read the DL-26 form necessitated suppression as a matter of course, but I think this opinion makes clear the mandatory, statutory obligation to read the DL-26 verbatim or else suppression will follow.
The Superior Court's opinion was issued in Comm. v. Krenzel, 2019 PA Super 159 (May 20, 2019). It's a unanimous opinion by OLSON, DUBOW, and former justice STEVENS. ... See MoreSee Less
4 hours ago ·
FIRM NEWS:
For the past year and a half our firm has been defending a criminal action alleging counts of theft (F2) and misapplication of entrusted funds (M2) against an agent under a Power of Attorney. The scope of the theft that the government alleged was in excess of $250,000.
Earlier this week, an Allegheny County Court of Common Pleas judge granted our Motion to Suppress, which took issue with the way in which the government's investigation was undertaken. We had argued that the client's Fourth Amendment rights had been violated. Accordingly, with the suppression of evidence the government dismissed all charges.
Attorney James defended this case with the invaluable assistance of co-counsel, attorney Marco Attisano.
***Past results afford no guarantee of future results. All cases are different and must be judged on the merits of each case.*** ... See MoreSee Less
1 week ago ·
For PCRA practitioners:
The Superior Court's decision in Comm. v. Medina, 2019 PA Super 119 (Apr. 17, 2019), highlights the importance of specificity when pleading an IAC based on the failure to call character witnesses at trial.
In Medina, counsel had attached affidavits from four people who claimed to be ready and willing to testify at trial "as to [Medina's] appropriate character." These four witnesses were from Philadelphia (where the case was tried), the Bronx, the D.C. area, and Orlando.
In affirming the denial of a PCRA hearing on this issue, the Superior Court reasoned this way:
"In the current appeal, the affidavits from alleged character witnesses that were attached to Appellant's amended PCRA petition do not list what character trait the witnesses would be testifying about. Therefore, the proposed testimony would not comply with the requirement of Pa.R.E. 404(a)(2)(A) that only evidence of a "defendant's pertinent trait" may be admitted as character evidence. Additionally, none of the affidavits refer to the potential character witnesses' ability to testify to Appellant's reputation; only reputation evidence may be used to prove character, not the individual's opinion of the Appellant's character. Also, only one of the affiants lives in Philadelphia; the other three live in other states. Thus, only one could testify 'as to the community opinion' of Appellant."
Based on this opinion, PCRA counsel would be wise to be specific in their witness affidavits as to 1) what particular character trait is being testified to, and 2) that the character witness is testifying to the reputation of the defendant from a relevant community. I'm of the opinion that anything less will be fatal to a PCRA alleging counsel's missteps as to character witnesses. ... See MoreSee Less
1 week ago ·
