Abuse of discretion for dismissing charges when witnesses “on their way”; smell of marijuana still good PC; and a favorable opinion for the defense bar.

  1. Comm. v. Ligon, 2019 PA Super 290 (Sept. 24, 2019)

Out of Philadelphia.  This en banc decision was unanimous.  The Court held that the that trial court abused its discretion when it dismissed the underlying action due to the complaining witness’s absence from the start of trial.

The case was an old case, originating in 2012, and it involved numerous serious charges, such as robbery, false imprisonment, aggravated assault, burglary, and firearm offenses.  “Copious continuances of the trial” had been granted as the Court described, and in this situation, where the Commonwealth was ready to begin with its opening statement and “ready to proceed to trial,” notwithstanding that the Commonwealth’s witnesses were “on their way,” the trial court dismissed the case.  It did so at noon, noting the witnesses were supposed to be there at 9:30 a.m.

Under these circumstances, that was error.  The Superior Court said this:

A trial court has the “authority to regulate attendance upon its schedule and concomitant authority to sanction a breach[.]” Commonwealth v. Carson ,510 A.2d 1233, 1235 (Pa. 1986). In a civil case, it is a private party that seeks to use the court’s authority to its own ends that will bear the brunt of the sanction. Id.

Imposing such a sanction on the Commonwealth in a criminal case, however, is a different matter. In criminal cases, any sanction the trial court imposes “must be visited upon the offender and not upon the interests of public justice.” Id. In other words, courts must take into account the effect the sanction will have on public interests. The court must calibrate the penalty in a criminal case to the nature of the violation, while taking into account other relevant circumstances, such as the running of the statute of limitations. The court certainly has the power to vindicate its authority, but must do so without unfairly harming the public’s interest. Id.

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Although a trial court may properly take steps to regulate the presentation of evidence, it “should bear in mind that [its] undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on [its] part toward witnesses . . . may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto.” Commonwealth v. McGuire ,488 A.2d 1144, 1152 (Pa.Super. 1985) (en banc) (quoting Commonwealth v. Myma ,123 A. 486, 508-09 (Pa. 1924)).

The court here failed to abide by McGuire’s admonition. It went too far, under these circumstances, in refusing to allow the Commonwealth to give its opening statement and put on another witness. Having allowed the Commonwealth time to bring the witnesses to the courtroom, the court could not dismiss the case immediately after the ADA stated she was ready. The court’s actions amounted to undue interference with the Commonwealth’s presentation of its case and prevented “the proper presentation of the cause, or the ascertainment of the truth[.]” Id.

  1. Comm. v. Batista, 2019 PA Super 291 (Sept. 27, 2019)

Out of Philadelphia.  This appeal involved the question of whether an odor of marijuana may still serve as a proper basis for establishing probable cause in light of Pennsylvania’s new medical marijuana law and the fact that Philadelphia decriminalized possession of small amounts of marijuana.  The court held that the smell of marijuana may still serve to establish probable cause.  Here’s the court’s reasoning:

Lastly, we come to Battista’s claim that the smell of fresh marijuana can no longer serve as an element of probable cause in Pennsylvania. He bases this claim on the fact that Philadelphia has rendered the possession of 30 grams or less for personal use a non-criminal violation. Batista likewise indicates that the use of medical marijuana is now legal in Pennsylvania. Thus, he reasons that marijuana’s smell is now insufficient to give rise to probable cause.

Regardless of what law Philadelphia’s City Council enacted, Pennsylvania law still holds sway there. Generally speaking, growing and distributing marijuana remain illegal. 35 P.S. §§ 780-133(a)(1),(30),(32). Indeed, the trial court convicted Batista of violating that very statute.

The Medical Marijuana Act is a limited exception to that criminal statute. Only a “grower/processor” or “dispensary”, as defined under the MMA, may “receive a permit to operate as a medical marijuana organization to grow, process, or dispense medical marijuana.” 35 P.S. § 10231.601. A grower is a “natural person, corporation, partnership, association, trust or other entity, or any combination thereof, which holds a permit from the Department [of Health] under this act to grow and process medical marijuana.” 35 P.S. § 10231.103.

To receive a grower permit under the MMA, a person must undergo an extensive application and permitting process through the Department. See 35 P.S. § 10231.602 (requiring, among other things, full, financial disclosure of all backers; descriptions of responsibilities within the partnership or corporation; criminal background checks; statements of “good moral character;” title searches for the land use; and personal information for all investors).

The number of authorized growers and processors who have completed that administrative process is currently very small. The General Assembly has capped the number of permits for growers. “The department may not initially issue permits to more than 25 growers/processors.” 35 P.S. § 10231.616.

Given the extremely limited number of permits that the Department has issued, we hold that, when an officer smells fresh marijuana emanating from a building that is a reported grow-house there still exists a fair probability that the marijuana inside is illegal. Law enforcement still holds the power and the duty to investigate that probability.

Thus, Batista has failed to persuade us that enactment of the MMA abrogates our precedents holding that the aroma of marijuana contributes to the finding of probable cause. See Commonwealth v. Trenge , 451 A.2d 701, 706 (Pa. Super. 1982) (stating “probable cause may be established . . . primarily upon [an officer’s] sense of smell in concluding that marijuana was then present”) . . . .

3. Comm. v. Perez, 2019 PA Super 293 (Sept. 30, 2019)

Out of Philadelphia.  This was an en banc decision, which I previously blogged about when it was before the panel.  I make brief mention of it here because it may serve as an important decision for defense counsel at a preliminary hearing or habeas proceeding to persuade for the dismissal of charges.  

The case is fact intensive, and it was a splintered decision, 5-4.  But suffice it to say, Carlos Perez was charged with first-degree murder for the stabbing of death of another nightclub patron, which occurred in the midst of a larger scuffle.  The case was dismissed twice for failure to establish a prima facie case, and this opinion solidified that result, at least for the time being.  Given that such a result is almost unheard of, the opinion is one to keep handy for practitioners.