Pa. Supreme Court speaks to waiver/preservation issues, overbroad warrants, effect of bankruptcy on restitution, and ability-to-pay-fine determinations in a negotiated plea context

Supreme Court Allocatur Grants

  1. Comm. v. Alexander, 151 EAL 2019 (Sept. 24, 2019)
  1. In this case involving the warrantless search of a locked metal box in a car following the arrest of the driver, should not this court decide whether Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), should be overruled or limited as being inconsistent with privacy protections under Article I, § 8, and this Court’s decisions protecting privacy through the warrant requirement?

2. Comm. v. Peck, 215 MAL 2019 (Sept. 24, 2019)

  1. Where the drug delivery resulting in death (“DDRD”) statute explicitly applies only to deliveries occurring “in violation of section 13(a)(14) or (30) of” the Controlled Substance, Drug, Device and Cosmetic Act (“The Act”), is violation of the Act an essential element of DDRD?
  1. Where a drug delivery occurs wholly in another state, can that delivery violate the Act, which explicitly applies only to deliveries occurring “within the Commonwealth?”
  1. If a violation of the Act is an element of DDRD and an out-of-state delivery does not violate the Act, did the Superior Court err in affirming [Petitioner’s] DDRD conviction based on a delivery occurring wholly in Maryland?

3. Comm. v. Bagnall, 109 WAL 2019 (Sept. 11, 2019

The lower court erred in failing to grant a new trial based upon a serious Brady violation.

Supreme Court Opinions

  1. Comm. v. Bishop, __ A.3d __ (Pa., Sept. 26, 2019)

Out of Philadelphia County.  This discretionary appeal was granted to consider the question of whether the Pennsylvania constitution affords greater protection that than the federal constitution, such that physical evidence discovered as the result of a Miranda violation is subject to exclusion. (This is an issue that I’m currently litigating.)

The underlying facts of this case are irrelevant because the supreme court never addressed the merits of this question.  Rather, this case transformed into a case that’s instructive on points of issue preservation and waiver.  To be more specific, the supreme court Majority held that it would not consider this issue because Bishop waived it by not raising the issue either in the trial court or in the Superior Court.  The Majority took the opportunity then to detail how litigants can avoid this pitfall in the future, but the dissent, authored by Justice Wecht, made the point that the Majority really only confused, rather than clarified, what litigants must do.

I’ll start by highlighting, of course, what the Majority, authored by Chief Justice Saylor, said:

In terms of efforts by criminal defendants to raise claims for departure from federal constitutional jurisprudence on independent state grounds, the Commonwealth is correct that the precedent of this Court requires that some analysis explaining the grounds for departure is required. In this regard, our position comports with the approach of the New Mexico Supreme Court, which distinguishes between instances in which established state court precedent construes a provision of the state constitution to provide more protection than its federal counterpart and scenarios in which there is no such precedent. See State v. Gomez, 932 P.2d 1, 8-9 (N.M. 1997).

In the former instance, i.e., when there is controlling precedent:

the claim may be preserved by (1) asserting the constitutional principle that provides the protection sought under the [state] Constitution, and (2) showing the factual basis needed for the trial court to rule on the issue.

Id. at 8. Where there is no precedent supporting departure,

a party also must assert in the trial court that the state constitutional provision at issue should be interpreted more expansively than the federal counterpart and provide reasons for interpreting the state provision differently from the federal provision. This will enable the trial court to tailor proceedings and to effectuate an appropriate ruling on the issue.

Id. (emphasis in original; footnote omitted).

The New Mexico Supreme Court specifically reiterated:

References to the state constitution, without some discussion or argument concerning the scope of its

protections, are not enough to alert the trial court to the issue of a possible difference between the rights afforded by the state constitution and those provided by the [federal charter].

The Majority continued, later on in its opinion responding to Justice Wecht’s dissent, that,

the most straightforward course for counsel is to follow the template indicated in Edmunds, see supra note 7, and counsel who do so certainly have safe haven.

To all of this, Justice Wecht’s dissent was particularly critical, and for good reason as his dissent lays out.

[T]oday’s decision adopting the Gomez rubric muddies, rather than clarifies, our issue preservation rules. From now on, litigants will argue about whether the constitutional claim at issue falls within Gomez‘ first category of claims (which can be preserved simply by citing the relevant constitutional provision) or Gomez‘ second category of claims (which require “some analysis” supporting the claim for departure). See id. at 10. In many cases, both sides will be able to cite precedent from this Court supporting their position. [Citations and examples omitted.]

Eagle-eyed readers also will note that the Majority leaves itself plenty of wiggle room to ignore today’s newly invented issue-preservation rule whenever it pleases. See Majority Opinion at 12 (“We also deem it appropriate, in our discretion, to enforce the waiver here.” (emphasis added)). Indeed, today’s decision—like many of this Court’s waiver decisions—is a paragon of judicial doublespeak. The Majority tells us, for instance, that an appellant need not engage in a “complete analysis” of his state constitutional claim (id. at 11 n.9 (italics added)), but that he must engage in “some analysis” and “provide reasons for interpreting the state provision differently from the federal provision.” Id. at 10, 11-12 n.9 (quoting Gomez, 932 P.2d at 8). Similarly abstruse is the Majority’s suggestion that it would never apply a new rule “to the detriment of a litigant who has had no previous notice of it” (id. at 6), only to do exactly that a mere five pages later. Id. at 11 n.8 (proclaiming that today’s decision adopting New Mexico law should not “come as a surprise to the counseled appellant”). In short, the Majority’s implementation of the Gomez framework adds even more uncertainty for litigants wondering what exactly they must do or say to preserve a claim under the Pennsylvania Constitution to this Court’s satisfaction. I suppose the takeaway here is: “It depends.”

*       *       *

The upshot of all of this is that, even under the Majority’s newfangled “infrastructure,” Bishop was not required to offer the suppression court a “complete analysis,” or even “some analysis,” of his departure claim; instead, a “truncated presentation” would have sufficed. All of these phrases, of course, are entirely meaningless, which is why today’s decision—whether by design or by accident—makes an Edmunds analysis a de facto prerequisite for preserving departure claims. See id. at 165 (“[T]he most straightforward course for counsel is to follow the template indicated in Edmunds, and counsel who do so certainly have safe haven. (internal citation omitted)); but see Commonwealth v. Arroyo, 723 A.2d 162, 166 n.6 (Pa. 1999) (“[A]n appellant’s failure to engage in an Edmunds analysis does not result in waiver of a state constitutional claim.”). The Majority’s message to the criminal defense bar is clear in its lack of clarity: Do what we have said you need not do or else we, in our “considered judgment,” might find your analysis too “scant” or too “truncated” to warrant our attention. Majority Opinion at 11-12 n.9, 16, 17.

Personal note: I join the ranks of the admittedly “confused” after reading Bishop.  I don’t know why the Majority ventured into referencing the Gomez case out of New Mexico considering Edmunds has been a workable guide (for nearly 30 years) for arguing for greater protections under our state constitution.  I think it would’ve been sufficient for the Majority to hold that Bishop should’ve engaged in an Edmunds analysis of his claim at the outset, in the trial court, and the failure to do so constitutes waiver.  That’s, at least, what I’ve done pertaining to this issue.  (I have a sample, redacted motion available upon request.)

2. Comm. v. Petrick, __ A.3d __ (Pa., Sept. 26, 2019)

Out of Lackawanna County.  This discretionary appeal concerned an issue of whether a mandatory order for restitution is subject to discharge in bankruptcy.

In brief, a unanimous court held that federal bankruptcy law does not discharge the mandatory requirement that a defendant pay restitution.  The unanimous court reaffirmed, too, that the primary purpose of restitution is rehabilitative, notwithstanding that the law now makes it mandatory.

Personal note: Appellant and amici advanced interesting arguments as to why the criminal restitution order in this case should be discharged, which arguments focused on the significance of restitution serving either a “rehabilitative purpose” or a “compensatory goal.”  This distinction was important because of an earlier U.S. Supreme Court decision in the case of Kelly v. Robinson, 479 U.S. 36 (1986).  However, because our supreme court held that restitution still served a rehabilitative purpose, our High Court had little problem upholding the restitution order.

3. Comm. v. Turpin, __ A.3d __ (Pa., Sept. 26, 2019)

Out of Cumberland County. The question the High Court confronted was this: “whether a search warrant for an entire multi-bedroom residence shared by appellant . . . and his roommate . . . was constitutionally permissible . . . even though the warrant was premised solely on the activity of [the roommate.]  Justice Dougherty for a 6-1 Majority held that police had probable cause to search the entire residence and therefore the warrant was constitutionally permissible.

The gist of this case was that Turpin and his roommate lived together in a single-family townhouse, and the roommate was the subject of an extensive drug investigation and surveillance.  Turpin and his roommate shared separate bedrooms, and the police were aware that Turpin lived in the residence.  The police, however, received a warrant to search the entire residence that Turpin and his roommate shared, premised upon probable cause specific to the roommate.  Nevertheless, when Turpin’s room was searched pursuant to the warrant, guns and drugs were found therein and he was separately charged.  His complaint in the trial court and on appeal was that the warrant was overbroad in permitting the search of his own room, which he had a separate expectation of privacy in, because there was no probable cause suggesting anything would be found within his room.  (The case likely garnered the interests of the justices due to the commonality of unrelated people sharing single-family residences, and having separate living quarters, as a matter of economy.)

The Majority of the Court was unpersuaded by Turpin’s arguments.  The Majority reaffirmed and held that,

“where a search warrant adequately describes the place to be searched and the items to be seized the scope of the search ‘extends to the entire area in which the object of the search may be found[.]'” [Citation omitted.] Therefore, so long as police have reason to believe the specific items to be seized may be found throughout a single family residence, Article I, Section 8 does not preclude a search of the entire residence regardless of whether a particular individual not named in the warrant has an expectation of privacy in certain areas of that residence. [Citation omitted.]

Personal note: Justice Donohue’s dissent is worth a read, and it’s one in which I find to be compelling under the facts of this case because I think the Majority fails to adequately account for the significance of the law enforcement’s knowledge of Turpin’s living arrangements in the residence they searched.  Consider this portion of her dissent.

the Majority’s decision discriminates against those who choose not to live alone and those who cannot afford to live in their own separate home. They are not entitled to the same constitutional protection of their privacy interests as those who choose to or have the means to live by themselves. As aptly observed by the Supreme Court of Iowa, “[I]t is not unusual to see a group of unrelated single persons living together and sharing expenses. We do not believe that when individuals decide on this type of living arrangement, they believe they are giving up the right to privacy in their personal space.” State v. Fleming, 790 N.W.2d 560, 567 (Iowa 2010). In such circumstances, there are common spaces shared by all residents, “but the individual bedrooms remain private,” and this is a “social norm” that is “well established.” Id. A person should not be penalized with the loss of privacy rights for the choice or necessity of living with other, unrelated adults.

The fact that the search occurred inside a structure typically zoned as “single-family” is wholly irrelevant to this constitutional discussion. Even the United States Supreme Court has stated that the Fourth Amendment (which decidedly provides less protection to a person’s individual privacy rights) “protects people, not places” and a person’s expectation of privacy. Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018). “[O]fficial intrusion” into a place where a person has an expectation of privacy, i.e., “one that society is prepared to recognize as reasonable, … requires a warrant supported by probable cause.” Id.

The Majority’s holding is particularly jolting in light of the facts of the case before us. When the police applied for the warrant at issue, the affidavit of probable cause made clear that the police were aware, based on their three months of surveillance, that two individuals, one of whom was Turpin, resided or at least frequently stayed at the residence shared by Irvin, the target of the investigation. Affidavit of Probable Cause at 2. Indeed, Turpin was referred to as an “occupant” of the residence in the affidavit of probable cause. Id. at 2-3. It is also clear (in fact, admitted) that the police did not have probable cause to establish that Turpin was engaged in criminal activity. See Commonwealth’s Brief at 17. In light of the clear elevated specificity requirement of Article I, Section 8 and the uncontroverted recognition that Turpin had a reasonable expectation of privacy in his private bedroom, it is to me an inescapable conclusion that the warrant in this case cannot be upheld in the face of a challenge to its overbreadth. The warrant should have been issued to exclude the area of the residence within the exclusive control of Turpin or any other known resident.

I recognize the Majority’s concern for the practicalities of the execution of search warrants by law enforcement, but those concerns are not implicated in this case. Turpin was on the premises and specifically identified his private bedroom. An appropriately specific warrant could have been easily executed, and all of the evidence in the possession of Irvin would have been confiscated, accomplishing the stated mission.

4. Comm. v. Ford, __ A.3d __ (Pa., Sept. 26, 2019)

Out of Lancaster. The question presented was whether a defendant’s agreement to pay non-mandatory fines as part of a negotiated guilty plea agreement satisfies the pre-sentence, prerequisite finding the trial court must make of whether the defendant, in fact, has the ability to pay the fine. In other words, is the defendant’s agreement with the plea agreement enough to show that defendant has the ability to pay?  For a 6-1 Majority, Justice Wecht wrote for the Court that more was needed, albeit not much more.

The Supreme Court held that under 42 Pa.C.S. § 9726(c), “the Sentencing Code requires record evidence of a defendant’s ability to pay a fine even in the negotiated guilty plea context.” The Court reasoned,

We cannot accept the Commonwealth’s argument that a defendant’s agreement to pay a given fine is evidence of his ability to pay for purposes of Subsection 9726(c). The mere fact that a person agrees, as part of a quid pro quo arrangement, to pay a specific sum does not necessarily mean that he or she can (or even will be able to) make good on that promise. This is especially true in the plea-bargaining context, where it is fair to say that the primary concern of most defendants is the length of their incarceration rather than the sum of their fines. Put differently, when the Commonwealth extends a plea offer that includes a short prison sentence and an exorbitant fine, a rational defendant might—either out of shortsightedness or naïve optimism—gladly accept the offer even though he or she has no realistic strategy to satisfy the debt. For this reason alone, we are unpersuaded that Ford’s guilty plea agreement represents the sort of ability-to-pay evidence that the Sentencing Code unambiguously requires.

The Majority noted, however, that the trial court, in many cases, will be able to ascertain the defendant’s ability to pay by simply asking, “How do you plan to pay your fines?”  That will suffice.  But merely agreeing to a plea agreement that includes non-mandatory fines is insufficient.