Comm. v. Giles, 2018 PA Super 63 (Mar. 20, 2018)
This was an appeal out of Allegheny County. Giles had been convicted by a jury of several sex offenses, prime among them being rape of a child. The child testified at trial about her sexual interactions with Giles, and she was cross-examined on several points.
To rehabilitate the child’s credibility, the Commonwealth sought to introduce the child’s “prior consistent statements.” One of the consistent statements was introduced by way of the child’s previous forensic interview. And the other consistent statement was introduced through the child’s grandmother, who testified about what she heard the child say to a police officer while at the emergency room. Giles’s contention, on appeal, was that neither method of introducing the child’s prior statements was proper or qualified as prior consistent statements under the Rules of Evidence. The Superior Court disagreed. The Court began its analysis by reference to Rule of Evidence 613 regarding prior consistent statements. It said:
Review of the record indicates the character of impeachment “was such that the trial court could reasonably exercise its discretion to permit admission of evidence of prior consistent statements to corroborate the child victim’s impeached testimony.”
Since defense counsel was attempting to infer on cross-examination that the child had a faulty memory, it was not an abuse of discretion for the trial court to allow in the forensic interview to highlight that the child’s testimony was consistent.
The same was true with regard to the grandmother’s testimony about what the child said to the police in the emergency room. Defense counsel had cross-examined the child and the cross-examination inferred that the child had falsely accused Giles as a way to distract her mother, who had confronted her about sending pictures from her phone to a boy at school. In other words, there was a suggestion that the child made up these allegations against Giles to deflect her mother’s attention from unsavory photos found on the child’s phone (i.e. an improper motive). In that regard, the Superior Court said, it was proper for the trial court to allow grandma to say what she heard the child say to rehabilitate the child’s credibility. It was a prior consistent statement.
**An important practice point to be learned from this case is that counsel should only press a witness on cross-examination if they are reasonably certain that there is support for the points of interest. Here, defense counsel was taking issue with the child’s trial testimony that the first sexual encounter occurred in April. Defense counsel suggested that the child previously had indicated the first incident occurred in July. But, the Superior Court noted, “nowhere in the transcript of the forensic interview does [the child] ever mention that the first incident . . . occurred in July.” Therefore, due to that mistake, defense counsel opened the door to introduce the forensic interview as a prior consistent statement where it may not have been admissible otherwise.
Comm. v. Murphy, 2018 PA Super 70 (Mar. 23, 2018)
This was a direct appeal out of Fayette County. Murphy had been convicted by a jury for, among other things, possession of a controlled substance by an inmate.
At trial, Murphy testified in his own defense. On direct examination by his own attorney, Murphy denied having any synthetic marijuana, heroin, or cocaine in his possession. That opened the door for the prosecutor to cross-examine Murphy about an administrative hearing that was held beforehand in the prison system. Murphy was pressed about that administrative hearing and its outcome to which Murphy admitted he was found guilty. When further pressed as to whether Murphy made an admission of guilt at that hearing, Murphy denied taking responsibility. That led to the prosecution calling a correctional officer to the stand, who refuted Murphy’s denial.
Defense counsel objected to all of this as prejudicial to Murphy. The Superior Court had this to say in response:
We find no abuse of discretion. Simply put, we agree with the trial court that, by denying on direct-examination that he did knowingly possess the controlled substances, as well as denying on cross-examination that he had admitted such possession during the administrative disciplinary hearing, [Murphy] “opened the door” to the prosecutor using the evidence at issue for impeachment purposes.
A separate but similar evidentiary issue also reared its head on appeal. Murphy was asked on direct-examination if he currently used marijuana, heroin, or cocaine to which he said no. On cross, the prosecutor asked Murphy, “Have you ever used those types of drugs,” to which Murphy, again, replied no. But with this answer, the prosecutor sought to impeach Murphy’s credibility by introducing his prior conviction for simple possession of a controlled substance. To this the defense objected, but the trial court indicated that the prosecutor may ask Murphy if he’s ever been convicted of possession of marijuana, cocaine, or heroin. So the prosecutor did so and Murphy responded that he had previously been charged but those charges were withdrawn.
On appeal, the defense argued this was an improper line of questioning. But, again, the Superior Court disagreed. It reasoned as follows:
We have made clear that [the law] allows the prosecution to cross-examine a defendant concerning his past convictions to repudiate specific evidence of good character offered by that defendant.
* * *[Murphy’s] denial on cross-examination as to whether he “ever used those types of drugs” clearly “opened the door” and constituted evidence given by [Murphy] tending to prove his own good character or reputation.
Murphy’s convictions were ultimately affirmed.
Comm. v. Diaz, 2018 PA Super 71 (Mar. 23, 2018)
This was an appeal out of Bucks County. It was a Commonwealth appeal from the grant of a new trial for the defendant, Diaz.
The holding of this appeal is significant for this reason: the Superior Court concluded that counsel’s representation is ineffective, per se, when counsel fails to ascertain the defendant’s need for a translator, misinforming the court about defendant’s need, and failing to object to proceeding through a portion of the trial without a translator. Specifically, in reaching this conclusion, the Superior Court said this:
The ability to understand the proceedings is fundamental to the right to confront witnesses and be present at his own trial. The importance of this right is magnified in a case such as this, where the case rests solely on the testimony of the alleged victim and the defendant. Accordingly, we concluded that [Diaz] suffered prejudice per se as a result of counsel’s failure to ascertain that [Diaz] needed a translator to understand the criminal proceedings, providing incorrect information to the trial court about [Diaz’s] need for a translator, and failing to object when the trial court proceeded without a translator.
**The criminal defense practitioner should be mindful of Judge Bowes’s 42 page dissent, which challenges the conclusion that counsel’s conduct was per se ineffective. The summary of Judge Bowes’s dissent is that there was evidence in the record to suggest that Diaz understood the English language well enough, and meaningfully participated in the proceedings, and the correct standard that should have been applied was the general standard for assessing counsel’s ineffective—i.e. is the claim of arguable merit; was there as a reasonable/tactical basis for counsel’s actions; was there prejudice? The dissent is thoughtful and well reasoned, but rehashing it here would have little use.
Comm. v. Trahey, 2018 PA Super 72 (Mar. 26, 2018)
This was a Commonwealth appeal out Philadelphia. Trahey was on trial for a charges related to a DUI-related accident over the Labor Day holiday, where Trahey struck a cyclist who later died. The long-and-short of the procedural history of the case is that Trahey had success in having his blood-results suppressed as being taken in violation of his constitutional rights under the Fourth Amendment. The police had not obtained a warrant to conduct a blood draw, and Trahey argued that his consent to take his blood was no good due to the U.S. Supreme Court’s recent pronouncement in the Birchfield case. The trial court agreed that Trahey’s blood was drawn illegally. Accordingly, the Commonwealth appealed.
The substance of this appeal boiled down to what is referred to as the “exigent-circumstances exception” to the warrant requirement. On the whole, the Superior Court believed that the trial court erred by not considering the application of this exception. It was the opinion of the Superior Court panel that the exigencies of the circumstances justified a warrantless blood draw, thus rendering Trahey’s blood results admissible. The Superior Court’s reasoning to this conclusion was articulated as follows:[W]e find that the suppression court should have conducted an objective inquiry of the totality of the circumstances to determine whether exigent circumstances justified the officers’ warrantless testing of [Trahey’s] blood. Had the lower court properly assessed the facts and circumstances presented in this case, it would have found ample evidence to deny suppression of the blood evidence.
At the suppression hearing in this case, several officers testified that the optimal time period to obtain accurate blood testing evidence from [Trahey] would have been within two hours of the time of the accident. However, as emergency dispatch in Philadelphia does not prioritize car accidents for police response, officers were not dispatched to the crash scene until 10:05 p.m., fifty minutes after the accident had occurred. The officers were not informed of [Trahey’s] possible intoxication; thus, they did not determine that the accident was likely DUI-related until they spoke to bystanders and observed that [Trahey] had a strong odor of alcohol, his speech was slow and slurred, his eyes were glassy, and his gait was unsteady. Due to the officers’ need to investigate the crash scene and to defer to the specialized Accident Investigation District, there was additional delay such that [Trahey] was not transported from the scene until 10:49 p.m., and his blood draw did not occur until 11:15 p.m., two hours and five minutes after the crash occurred.
In addition to the time constraints that delayed the officers from responding to the scene and transporting [Trahey] for testing, officers noted the lack of manpower available to seek a warrant on the night of [Trahey’s] arrest. As the crash occurred on Friday evening of Labor Day weekend in 2015, five AID officers were assigned to respond to the critical and DUI related accidents in all of Philadelphia that night. One of the officers was required to stay at the headquarters to dispatch AID officers to incidents and one officer was assigned to administer blood testing to all DUI suspects in Philadelphia. That left three officers assigned to the field to investigate and document several accident scenes and to respond to the vehicle crash in this case.
Moreover, the trial court found credible the testimony of AID officers who testified to practical problems they faced in obtaining a warrant within a timeframe that still preserved the opportunity to obtain reliable evidence. The defense did not contest the prosecution’s evidence that it would have taken officers anywhere from seventy minutes to three hours to successfully obtain a warrant, depending on if difficulties arose, such as finding an available commissioner to meet with officers in a prompt manner to review and approve the warrant request. There is no evidence in the record to suggest that the officers had access to technological advances that would make the warrant application process more time-efficient.
Based on the facts and circumstances presented in this case, it is reasonable to believe that the arresting officers were confronted with exigent circumstances, in which the delay necessary to obtain a warrant threatened the destruction of evidence.
**An interesting question that arises from the disposition of this case is this: since seemingly the exigent circumstances were created in large part due to shortcomings on the government’s side (e.g. staffing issues, prioritization of calls), is it reasonable for the government to rely on its own shortcomings to justify the warrantless search? In other words, should the Fourth Amendment bend to compensate for government inefficiency? Should the warrant requirement be lessened as a result? It is important to note that the trial court never addressed the issue of the exigent-circumstances exception because the police testified that they did not believe they needed to apply for a warrant since they believed they had good consent to do the blood draw. That consent was only vitiated later due to the change in the law. Personally, I think the outcome of this case was results-oriented; the Superior Court took strides to preserve an outcome it believed Trahey deserved if not for the change in the law. And with that results-oriented approach, I believe the Superior Court ignited a ripe area for litigation.