The Superior Court has issued seven precedential opinions this month.  Straying from my usual summaries, I intend only to provide the holdings and other pertinent points and, of course, my commentary when I believe it necessary.  This will then get this blog up to speed.  But that said, given the time involved with these posts, from here on out it’s my intention to provide only the holdings of any future cases and to provide more elaborate summaries for the cases that I believe to be the most important.  I hope you won’t fault me in that regard.  Enjoy! 

Comm. v. Olds, 2018 PA Super 197 (July 3, 2018)

Out of Allegheny County.  This is a juvenile-lifer-without-parole (JLWOP) case.  Olds was convicted of second-degree murder as a juvenile and given a life sentence without parole. he argued on appeal whether it was error, or constitutional, to impose a life maximum tail when it was never proven that he killed or intended to kill anyone?  His argument relied heavily upon Justice Breyer’s concurrence in the landmark Miller case.

Essentially, the Superior Court resolved this issue along this reasoning: “Consistent with the Eight Amendment, a state can set a mandatory maximum term of life imprisonment, even for nonhomicide offenses, so long as it grants defendants the opportunity for parole based upon demonstrated maturity and rehabilitation.  That is exactly what occurred here.  Specifically, the trial court made [Olds] eligible for parole after 20 years’ imprisonment and credited him with over 37 years for time served.  Thereafter, [Olds] was granted parole based upon his demonstrated maturity and rehabilitation.

Therefore, the Superior Court held, a life maximum imposed upon a defendant similarly situated to Olds—i.e. one who neither killed or intended kill—is constitutional and in line with the U.S. Supreme Court’s JLWOP precedents, which construed the Eighth Amendment.  It is similarly consistent with the Pennsylvania Supreme Court’s precedents on the issue.

Comm. v. Montgomery, 2018 PA Super 198 (July 5, 2018)

Out of Philadelphia.  The Commonwealth had filed two charges against Montgomery: (1) carrying a firearm without a license (§ 6106); and (2) carrying a firearm on public streets in Philadelphia (§ 6108).  The 6106 offense was dismissed after a preliminary hearing for failure to produce a prima facie case.  The evidence established that the arresting officer “saw Montgomery ‘messing with’ what he believed to [be] ‘the handle of a gun in his  waistband.’”  He couldn’t see the entire gun but just the handle.

Because the elements of Section 6106 require that the Commonwealth prove that an unlicensed person is carrying a firearm “concealed on or about his person,” there was a question of whether the Commonwealth could prove “concealment” if the handle was visible. Of course, the issuing authority (i.e. the magistrate) held that the Commonwealth could not, but the magistrate did hold over the 6108 offense.  The Commonwealth, however, refiled the Section 6106 before trial.  When it was dismissed it took this appeal.

The Superior Court addressing this issue addressed three prior cases—one from the Supreme Court and two from its own Court.  Focusing on the case out of the Supreme Court, Commonwealth v. Scott, 436 A.2d 607 (Pa. 1981), the Superior Court noted that in that case “any concealment, even partial, is sufficient to satisfy the concealment element of the crime.”  Thus, the Court concluded that under Scott, the Commonwealth had met its minimal burden for purposes of the preliminary hearing.  Moreover, the officer had testified that Montgomery turned around when he saw the officer, walked into a nearby store, and he had placed the gun on a nearby rack.  That evidence was sufficient to allow a fact finder to conclude Montgomery was attempting to conceal the firearm from observation.  Accordingly, the Superior Court concluded it was error to quash the 6106 offense.  The take away: apparently partial concealment is concealment.

Personal note: I haven’t read the Scott case from 1981, but I’m surprised to law of the Superior Court’s interpretation of that case that it stands for the proposition that partial concealment is full concealment.  “Conceal” seems to me to be a rather unambiguous, straightforward word.  Something is either concealed—blocked from view—or it is not.  If you can see what seemingly is gun, be it fully or partially, how can it otherwise be concealed?  This case stinks of fudging with the words of a statute and implying meanings that are otherwise not there.  It was for the legislature to write the law and be specific about its meaning, and being that this is a criminal offense the statute, if deemed ambiguous, is to be read in the light most favorable to the accused.  All that being said, I suspect that this case may get a closer look by the Pennsylvania Supreme Court.  And it should if the basis for establishing concealment is the act of placing the gun on the rack.  That, in my mind, is not what it means to conceal a firearm “on or about his person.”  But we’ll see what the future holds for the interpretation of this offense.

Comm. v. McCleary, 2018 PA Super 201 (July 10, 2018)

Out of Philadelphia.  The Superior Court reversed the trial court’s suppression order.  Essentially, the trial court suppressed evidence on the grounds that the police failed to follow an internal police directive when searching the house.  The Majority, consisting of J. Dubow and PJE Stevens, held as follows:

[E]ven where police fail to comply with specific Rules of Criminal Procedure relating to the issuance and execution of search warrants or violate statutes governing police authority and conduct during investigations, searches, and seizures, the exclusionary rule is not necessarily the appropriate remedy, particularly where an individual’s Fourth Amendment rights have not been violated.  By focusing its analysis exclusively on the police directive, the suppression court ultimately neglected to evaluate the totality of the circumstances and failed to apply relevant and dispositive case law.

Personal note: Judge Murray authored a dissent.  I remember when reading this case—first reading the Majority—I believed the panel got this right.  However, when I looked at the dissent, the points made there gave me pause if for nothing else than I believed the dissent was giving the proper deference to the trial court, which ordered suppression. The lynchpin of this case, though, is McCleary gave police consent to search his home.  Initially, he had called the police to his home for their assistance to remove his ex who was the subject of a Protection from Abuse (PFA) Order.  The police never confirmed the PFA, rather they were pressing McCleary about searching the residence to search for or gather the ex’s belongings.  Seemingly, that was not a step consistent with internal police directives.  The trial court and the dissent would have determined the police acted unreasonably by not removing the unwanted ex from the residence—i.e. it was unnecessary for them to do any search be it consented to or not.  Nevertheless, after McCleary gives the police consent to search the home they, of course, stumble upon his drugs and charge him.  As with any Fourth Amendment analysis, the touchstone is reasonableness . . . was it reasonable for the police to conduct the search they did.  The Majority says “yes” because they had consent to do so; the dissent says “no” because it was inconsistent with policy.  I lean with the Majority, I suppose, because the “foolish” giving of consent is the trump card. Tough case, though! 

Comm. v. Horning, 2018 PA Super 204 (July 11, 2018)

Out of Lancaster County. Held: “Because Appellant committed his crimes at a time when registration requirements for rape and IDSI were less burdensome and stringent, we conclude that the retroactive application of SORNA’s registration and reporting requirements to Appellant violated the ex post facto clause of the Pennsylvania Constitution.

Comm. v. Hodges, 2018 PA Super 206 (July 16, 2018)

Out of Delaware County. By way of background, Simple Assault is a second-degree misdemeanor, generally speaking.  If the assault is entered into by “mutual consent,” or there exists facts of mutual combat, then Simple Assault is a third-degree misdemeanor.  Here, a jury convicted Hodges of Simple Assault as an M2.  He argued on appeal that his resulting sentence was illegal because there should have been a jury finding that the assault was not entered into mutually.  Held: It is not necessary that the Commonwealth disprove mutual consent or mutual combat.  It is sufficient only that the Commonwealth prove the elements of simple assault.  The issue between an M2 or M3 Simple Assault is a grading issue to be resolved at the time of sentencing.

Personal note: This case is in line with how the courts have handled grading issues under Section 6106 dealing with carrying a firearm without a license as either an F3 or M1 offense. It should be noted, too, that there were a lot of waiver issues at play in this case.

Comm. v. Presley, 2018 PA Super 207 (July 17, 2018)

Out of Philadelphia.  Two holdings at issue.  The first is procedural.  Appellant’s counsel failed to file what is called a “1925(B) Concise Statement of Errors on Appeal.”  In a criminal case, when that happens, 1925(c)(3) directs the appellate court to remand the case back to the trial court for direction to counsel to file a late Concise Statement in order to perfect the appeal.  The appellate court does so when it is “convinced that counsel has been per se ineffective.”  Here, interestingly, this was a collateral attack of sentence imposed following a probation violation.  This collateral attack (under the PCRA) is deemed to be a proceeding that is civil in nature, not criminal though the underlying substance of the case stems from the criminal courts.  So the question was whether remand really was proper or just outright waiver and a quashing of the appeal.  The Superior Court held this way:

Although the PCRA proceedings are civil, they nonetheless involve a collateral attack upon a judgment of sentence imposed in a criminal case.  Further, PCRA proceedings are governed by the Rules of Criminal Procedure, not the Rules of Civil Procedure.  We see no reason not to continue viewing PCRA proceedings as criminal for purposes of the Rules of Appellate Procedure.

Regarding the second issue—the claims of counsel’s ineffective assistance—the claim was that counsel rendered ineffective assistance for failing to challenge the court’s maximum sentence following the probation revocation proceedings.  Moreover, there was a claim that counsel should have objected on to the judge not stating on the record its reasons for imposing the sentence it did.

Ultimately, the resolution of this issue boiled down to a question of whether counsel’s inactions prejudiced Appellant. Stated differently: had counsel made a timely objection to the court not stating its reasons for its sentence, would that have resulted in a more favorable outcome of the sentence?  Here the answer was no.  The Superior Court held that the disposition of this case was governed by the Supreme Court’s decision in Commonwealth v. Reaves, 923 A.2d 1119 (Pa. 2007).  Since Appellant had not pled facts to show how counsel’s lack of objection would have led to a more favorable sentence, then prejudice cannot be shown and the PCRA court was right to dismiss the PCRA. 

Comm. v. Jones, 2018 PA Super 208 (July 17, 2018)

Out of Greene County.  Preliminarily, there is another interesting 1925(B) issue that rears its head in this case, which came about because of the trial court’s order which conflicted with the language of 1925(B).  Essentially, the Commonwealth did not comply with the dictates of 1925(B) as it technically should have, but the Superior Court declined to find waiver.  This issue takes up the first 9 of 17 pages of the opinion.  The substantive issue of the opinion, however, deals with the suppression of tangible evidence stemming from a Miranda violation.  The Court said this on the issue.

[Jones] advances the theory that the evidence should have been suppressed based on the lack of Miranda warnings, which “led the police to obtain involuntarily” the firearm’s location.

We cannot affirm on this basis.  [Jones] avers that the fruit of the poisonous tree doctrine warrants suppression of the gun due to the lack of Miranda warning.  In other words, but for the improper questioning, he would not have revealed the location of the gun, which, in turn, led to the consensual search.  While the trial court focused on the last part of this chain, [Jones] asks us to consider an earlier link: his responses to the officers’ questions, which the trial court suppressed.

We agree that the trial court’s legal conclusions with respect to suppression of the statements must stand, as the Commonwealth does not challenge that portion of the order on appeal.  However, [Jones] fails to recognize that the fruit of the poisonous tree doctrine does not extend to physical evidence recovered due to Miranda violations.  Hence, we may only affirm the portion of the suppression order suppressing [Jones’s] statements.

Personal note: Essentially, if I read the Superior Court’s reasoning correctly, it appears to be of the mind that tangible evidence may not be suppressed if it was discovered as the result of Miranda violations. I think this is absolutely wrong.  The Superior Court attempts to bolster its reasoning by reliance on a plurality opinion out of the U.S. Supreme Court—United States v. Patane, 542 U.S. 630 (2004)—but that case is distinguishable for this reason: that case dealt with a voluntary statement that led to the recovery of physical evidence.  To say that physical evidence may not be suppressed as fruits of the poisonous tree from an unlawfully obtained statement, I think, runs contrary to the hornbook case of Wong Sun v. United States, 371 U.S. 471 (1963), which is a pivotal fruit-of-the-poisonous tree case.  By the Superior Court’s reasoning, therefore, police could blatantly violate a person’s rights with impunity to force a confession to lead to some other physical evidence, knowing full well the confession may be suppressed yet they could benefit still with the fruits of the confession.  That just promotes law enforcement’s utter disregard of Miranda and the Fifth Amendment guarantee against self-incrimination.  And I don’t think the Supreme Court has ever sanctioned that.