The Superior Court has been busy.

Comm. v. Bowers, 2018 PA Super 88 (Apr. 16, 2018)

Appeal out of the 39th Judicial District, Franklin County Branch.  The Superior Court held that an appeal from an order granting the Commonwealth’s forfeiture petition is interlocutory and not appealable.

Petitions for return of property and petitions for forfeiture concern the same substantive issue, i.e., who is entitled to possession of property seized by law enforcement officials.

*       *       *

[W]e hold that while an underlying criminal action remains pending, an appeal from an order deciding the Commonwealth’s forfeiture petition is interlocutory and unappealable if the forfeiture petition relates in any way to the criminal prosecution.

Comm. v. Mock, 2018 PA Super 90 (Apr. 19, 2018)

Appeal out of Mifflin County.  This was a statutory construction issue, which takes a bit of time for one to wrap their head around.  Specifically, the statute at issue was one of the sections of Pennsylvania’s DUI law—Section 3806.  At issue was how the term “prior offense” was to be interpreted across subsections (a) and (b) of Section 3806.

The majority, over Judge Strassburger’s dissent, held that the use of the phrase “prior offense” under § 3806(b) maintains the meaning assigned to it under § 3806(a).  And that meaning is this: “the term ‘prior offense’ . . . shall mean any conviction for which judgment of sentence has been imposed before the sentencing on the present violation.

The practical effect of the majority’s interpretation in this case was the difference between Mock’s current DUI conviction being considered a first or second offense.  And here, the majority’s interpretation rendered his current DUI conviction as a second offense, which came with steeper penalties.

Again, the gist of the holding is “prior offense” under § 3806(b) retains its meaning from § 3806(a).  Thus, for purposes of calculating “prior offenses,” one does not calculate from offense date to offense date, but from sentencing date to offense date.

Comm. v. Bethea, 2018 PA Super 93 (Apr. 23, 2018)

Appeal out of Philadelphia County.  Two issues were raised in this gruesome case, which developed into a roller-coaster ride: a first bench trial interrupted by a mid-trial plea, followed by a first appeal, followed by a remand to retry to the case to a jury, which ultimately returned convictions against Bethea.

In this appeal, Bethea argued that the Commonwealth failed to bring him to trial in a speedy fashion under Rule 600.  Furthermore, he argued that the trial court’s order barring his counsel from referring to him as “an innocent man” during jury selection was error.

The Superior Court disposed of the Rule 600 issue on the grounds that the postponements that occurred in bringing Bethea to trial following the first appeal were “attributable to the schedule limitations of the trial court,” and as such “[j]udicial delay is excludable and not chargeable to the Commonwealth.”

Regarding the issue of counsel’s references to Bethea as “an innocent man” during jury selection, ultimately the Superior Court deemed that this issue was waived for a failure to adequately argue this issue with supporting authority in the principal brief.  But waiver aside, the Superior Court had to say this on the topic (which analysis I happen to disagree with):

Appellant argues that his counsel’s reminder that he is an innocent man “counter balances the persuasive impact of the allegations against him.” This assertion is not only unsupported by any authority, it is a misreading of the scope and purpose of voir dire. The purpose of voir dire is to ensure the empaneling of a fair, competent, impartial, and unprejudiced jury. It is not to counter-balance the negative impact of the charges brought against him.

Finally, it is long-settled that questions on voir dire encompassing legal principles such as the presumption of innocence are improper. See Commonwealth v. Kingsley, 480 Pa. 560, 391 A.2d 1027 (1978) (“The singular purpose of voir dire examination is to secure a competent, fair, impartial and unprejudiced jury”).

If it is improper for counsel to ask questions about legal principles in voir dire, it is even more inappropriate for counsel to assume or insinuate legal principles in voir dire, particularly in verbal shorthand, without proper context or explanation. It is the function and duty of the trial court, not counsel, to instruct jurors on the law. See Commonwealth v. Cunningham, 137 Pa.Super. 488, 9 A.2d 161, 164 (1939). The trial court did not abuse its discretion. Appellant’s second claim fails.

Comm. v. Shannon, 2018 PA Super 94 (Apr. 24, 2018)

Appeal out of Dauphin County.  This was an appeal from the denial of a third petition for post-conviction relief (PCRA).  The instant PCRA, and this resulting appeal, were the result of the e-mail scandal of a few years back, which embroiled former-Justice Eakin in controversy.  Here, specifically, Shannon’s PCRA counsel treated the revelation of the racially derogatory e-mails—and proof of their receipt by various people connected with the Dauphin County criminal-justice system (including one of Shannon’s attorneys)—as newly discovery evidence that supported a claim for post-conviction relief.  The revelation of these e-mails and their distribution also formed the basis of Shannon’s motion to disqualify the Dauphin County District Attorney’s office and the entire Dauphin County bench from his case.  Shannon, of course, was granted no relief by the PCRA court, so these issues invited the Superior Court’s consideration.

Respecting the contention that the e-mails qualified as “newly discovered evidence,” the Superior Court had this to say:

[T]he majority of our Supreme Court believes that while we need not find a ‘direct connection’ between the newly-discovered facts and the claims asserted by a petition, the statutory language requires there be some relationship between the two.

The Court continued:

[Shannon] acknowledges that only one of his attorneys actually received these e-mails during his representation of [him,] and that was during the litigation of [Shannon’s] first PCRA petition.  While [Shannon] names other people involved in the criminal-justice system . . . he is unable to tie any of these individuals to his case.  Furthermore, even if he were able to tie any of these individuals to his case, [Shannon] has shown only that they received e-mails.  Thus, [Shannon] has not establish any connection between these e-mails and his case.  In other words, the newly-discovered facts asserted by [Shannon] do not support the claims of bias upon which [Shannon’s] PCRA petition is predicated.

Now, respecting the recusal motion, because Shannon acknowledged that the presiding judge had not been involved in the e-mail scandal, and he did not allege that the judge harbored any racial animus against him, the Superior Court noted it was not convinced that there was any appearance that the judge was either unfair or incompetent such that it would warrant recusal.  On that basis, the denial of the recusal motion was affirmed.

** Personal note: The interested reader should look at Judge Dubow’s concurrence, which expressed her concerns with the PCRA court’s statements in its opinion, attacking Shannon’s current counsel for doing her job.

Comm. v. Largaespada, 2018 PA Super 95 (Apr. 24, 2018)

Appeal out of Philadelphia County.  The Superior Court held that the trial court did not abuse its discretion by denying the Defendant’s attempt to pierce the Rape Shield Law to bring in evidence of his daughter’s (the victim’s) sexual relationship with her uncle.  The stated purpose for this evidence, according to the Defendant, was to demonstrate that the victim had a reason to fabricate her story of sexual abuse by the Defendnat and had a motive to retaliate against him.  Relying on precedent, the Superior Court said this to bolster its holding:

It is this [direct] evidence of threats of retaliation that provided the trial court [in a different case] from which to infer that the victim had a motive to fabricate allegations against the defendant.  There is no such evidence in this case.

Essentially, the Superior Court held that the purported relationship between the victim and her uncle was too tenuous to make any defense of a motive to fabricate.  Thus, these purported prior sexual acts were properly excluded from the hearing of the jury.

On another minor evidentiary issue that came up on appeal, the Superior Court held that a victim’s “current social media postings as an adult are not relevant to show [the victim’s] bias four years earlier when she was a child.”

Comm. v. Mauk, 2018 PA Super 98 (Apr. 26, 2018)

Appeal out of Cambria County.  Mauk and 53 others were sentenced en mass for failing to pay restitution, court costs, and fines.  Each had previously been held in contempt for failing to satisfy their balances, and each’s sentence was held in abeyance to meet payment deadlines.  When Mauk and the others missed their deadlines, they were summoned to court.  On the day of being summoned to court, Mauk made his overdue payments and an advance payment for the next month.  Nevertheless, Mauk and the others were speedily sentenced without the opportunity to address the court, without the benefit of the assistance of counsel, and without the right to conduct cross-examination. The Superior Court had this say about this rocket-docket:

We appreciate that a trial court’s docket is heavy, but procedural shortcuts for costs-and-fines hearings that occurred in the court of common pleas were constitutionally “disastrous.”

The Superior Court noted that the sort of high-speed sentencing employed by the lower court offended notions of due process because “the fundamental requisite of due process of law is the opportunity to be heard.”  Therefore, the Superior Court said

[W]e hold that a trial court must individually question a defendant about his or her current circumstances, before sending that defendant to jail, because ‘there can be no equal justice where the kind of trial a man gets depends on the amount of money he has.’  In addition, if imprisonment is a possibility, each defendant must have a timely opportunity to consult with counsel, i.e., before he appears before the judge.

Comm. v. Diaz, 2018 PA Super 101 (Apr. 30, 2018)

Appeal out of Lebanon County.  Another contempt case as the result of the failure to pay fines and costs.  Here, the Superior Court set forth this rule:

[W]e hold that upon the trial court’s determination at the civil contempt hearing that there is a likelihood of imprisonment for contempt and that the defendant is indigent, the court must appoint counsel and permit counsel to confer with and advocate on behalf of the defendant at a subsequent hearing.

In this appeal, the right to counsel was not founded upon the Sixth Amendment but rather the Due Process Clause because of the conceded civil nature of the contempt proceeding.  The Superior Court fashioned its holding after analyzing and drawing parallels from the U.S. Supreme Court case of Turner v. Rogers, 564 U.S. 431 (2011).

Comm. v. Byrd, 2018 PA Super 102 (Apr. 30, 2018)

Appeal out of Allegheny County, and more importantly originating close to home in the City of McKeesport.  In this appeal, the Superior Court reversed the trial court’s suppression orders that suppressed Byrd’s recorded conversations from the jail and which suppressed items seized from Bryd’s truck.  

Regarding the suppressed jail conversations, the Superior Court reversed along the lines of the “mutual-consent exception” to the Wiretap Act.  “The mutual consent exception permits interception of conversations in instances where the defendant ‘knew, or should have known, that the conversation was recorded.’” The Superior Court reasoned: “Based on the environment in which Bryd conversed with [the third party], an open visitation area in the jail, he should have known that their conversation could be recorded.”  Thus, the conversations were obtained lawfully.

Regarding the suppressed evidence taken from Bryd’s truck, the Superior Court justified the warrantless search of the truck under the automobile exception to the warrant requirement.  Contrary to the trial court’s belief, the Superior Court said, “[t]he police did not have to stop searching once they observed the gun on the front seat as the totality of the circumstances warranted further investigation.  Bryd’s initial acts established probable cause for the crimes of terroristic threats and possession of a firearm and permitted the officers to continue searching the vehicle for other contraband (i.e., ammunition, knives, other weapons) related to these crimes even though they seized one gun and removed Bryd from the vehicle.”

Along these lines, the evidence was admissible at trial, so accordingly the case was remanded.