Pa. Supreme Court’s October decisions: two on the application of Birchfield, and one the scope of liability under the concealed-carry statute.

Supreme Court Allocatur Grants

1. Comm. v. Ballentine, 379 MAL 2019 (Oct. 29, 2019)

Whether, in light of Commonwealth v. Veon, 150 A.2d 435 (Pa. 2016), a sentence to pay restitution to a nonprofit corporation may be ordered when the underlying offense occurred prior to October 24, 2018, the effective date of the amendment to 18 Pa.C.S. § 1106.

Supreme Court Opinions

In October, the Pennsylvania Supreme Court issued three opinions in criminal cases. Two of the three dealt with the application of the U.S. Supreme Court’s decision in Birchfield v. North Dakota.  The holdings of those opinions follow:

 Comm. v. Hays, __ A.3d __ (Pa., Oct. 31, 2019).  On the question of whether Birchfield should apply to all cases not yet final when Birchfield was rendered, our Supreme Court said Birchfield would apply so long as the Birchfield-issue was preserved at all stages of the litigation.  In this case, Hays hadn’t challenged his blood draw as being coerced.  He only argued there was no probable cause to stop his vehicle.  That motion failed, Hays was convicted at trial, then the following day the U.S. Supreme Court decided Birchfield.  Accordingly, Hays’s counsel raised the Birchfield holding in a post-sentence motion seeking a new trial.  The trial court granted a new trial, but ultimately the Superior Court reversed and the Supreme Court affirmed that reversal. It was Hays’s lack of clairvoyance to argue the issue yet to be decided by Birchfield (i.e. coercion), during pre-trial motions, which was fatal to his ability to get the benefit of Birchfield’s rule.  

Personal note: Interestingly, as sentencing was deferred for a drug-and-alcohol assessment, the parties entered an agreement that Hays would only be sentenced on the general-impairment count and he’d not be sentenced on the highest-tier DUI count because of Birchfield.  Notwithstanding that agreement by the Commonwealth, however, the Commonwealth opposed the grant of a new trial based on Birchfield, arguing the issue was waived.  By the trial court’s estimations though it was the Commonwealth that was subject to the penalty of waiver since it agreed, based on Birchfield, no sentence should be imposed on the highest-tier DUI count. That, of course, didn’t matter in the final analysis to the Supreme Court. The take-away, therefore, is counsel and litigants must be mindful of “arguments relative to unsettled law,” and it won’t be an excuse to avoid waiver to say, “Well, the issue wasn’t decided yet, so I didn’t raise it.”  (I’d encourage practitioners to read Chief Justice Saylor’s short concurrence, which seemingly sends a signal that he’d be receptive to moving away from Pennsylvania’s stricter waiver rules to system more in line with the waiver principles of other states, such as those that employ the plain-error rule.)

Comm. v. Olson, __ A.3d __ (Pa., Oct. 31, 2019). In this case, the Supreme Court held that Birchfield is not a substantive rule of criminal procedure; therefore, it doesn’t apply retroactively to cases on collateral review. The reason why? “Because Birchfield did not set forth a ‘categorical constitutional guarantee’ that places criminal punishment for blood test refusal ‘altogether beyond the State’s power to impose,’ [ ] but, rather, established a procedural requirement that, once satisfied, authorizes that punishment . . . .”

Comm. v. Peters, __ A.3d __ (Pa., Oct. 31, 2019). This was a case concerning the interpretation of 18 Pa.C.S. § 6106(a)(1) (carrying a firearm without a license).  Here, the High Court said, “We now affirmatively reject, as contrary to the plain text of the statute, the concept that concealment on or about a different individual’s person can satisfy the concealment prerequisite of Section 6106(a)(1).”  

In plain English: one can’t be convicted of concealing a firearm that’s carried on another’s person. Thus, the government can’t convict under such circumstances either by way of a constructive-possession or accomplice theory. The Court reasoned that “a judicial construction allowing for criminal responsibility founded on the concealment of the weapon about another’s person would impermissibly broaden the scope of [Section 6106] beyond that which the Legislature has specified.”