BENCH/BAR 2017 CRIMINAL LAW UPDATE

Transcription

1 BENCH/BAR 2017 CRIMINAL LAW UPDATE AGGRAVATED ASSAULT Com v Domek, 2017WL (PaS 7/21) 2702(a)(3) does not have reckless as an element of the offense, therefore trial court should not have instructed jury on reckless conduct as the mens rea of Aggravated Assault under 2702(a)(3) APPEALS Com v Parsons, 2017 WL (PaS 7/14) Pa.R.A.P 1762(b)(2) allows review of bail orders pursuant to Ch. 15 of Pa.R.A.P. ARREST Com v Brockman, 2017 WL (PaS 7/5) police investigating a shooting and develop a suspect; Victim s girlfriend calls and says the shooter is at a particular location and provides a clothing description investigating detective provides name of suspect; responding officers know suspect; officers approach, ask suspect to stop and he flees, throwing things, a gun and a clear plastic bag, on the ground which police seize; D moves to suppress due to forced abandonment not forced abandonment police had reasonable suspicion based on identified caller and flight upon appearance of police BAILS Com v Parsons, 2017 WL (PaS 7/14) does NOT require every DUI D to undergo a CRN evaluation as a condition of bail CONFLICT OF INTEREST Com Berry, 2017 WL (PaS 7/10) Conflict of Interest statute is constitutional because it does not violate separation of powers, is not void for vagueness and is not overbroad CONTEMPT Com v Robinson, 2017 WL (PaS 7/19) D disrupts his Grazier hearing by Qing Ct and not answering questions put to him ct imposes 6 separate contempts resulting in an aggregate sentence of18-36 months D raises double jeopardy issue because he claims it is really only one instance of contempt separate contempts do no offend double jeopardy even if occur very close in time

2 DRUG DELIVERY RESULTING IN DEATH Com v Storey, 2017 WL (PaS 7/30) person who dies need not be in privity to the D Victim can be a 3d person buyer ESCAPE Com v Waugaman, 2017 WL (PaS 7/13) D is serving a sentence and gets work release; instead of going to work he goes to girlfriend s house & then returns to prison; he is removed from work release and charged with Escape conviction for Escape J/aff this was a substantial deviation from work release GUILTY PLEA Com v Johnson-Daniels, 2017 WL (PaS 7/5) Withdrawal of plea D pleads guilty just before picking jury; extensive colloquy with detailed recitation of the facts; at sentencing Com advocated for a 4 year minimum sentence; D then sought to withdraw plea; Trial Court allowed; Com files motion to reconsider; D makes vague claim of innocence; Trial Court reverses and sentences D D s claim of innocence was not plausible; he pled at last minute & asked to withdraw plea only after hearing Com s sentencing request therefore, Trial Court did not abuse discretion when it denied motion to withdraw plea Com v Baez, 2017 WL (PaS 8/10) D goes to trial on Rape of Child and related offenses; after trial starts D decides to plead guilty; during colloquy he says he is not guilty & trial court says trial will continue; D says no and pleads guilty; referred to SOAB & then decides he wants to withdraw plea because he is innocent relying on Carrasquillo, 115 A.3d 1284 (Pa 2015) mere claim of innocence not enough, claim must be plausible D fails to provide a plausible claim of innocence so trial court did not abuse discretion by denying request to withdraw plea JURY TRIAL Com v Storey, 2017 WL (PaS 7/30) D opens door to Com argument I wouldn t have called him if I didn t believe him by claiming Com did not trust the witness at issue appellate court finds this to be fair comment JUVENILES Com v Coia, 2017 WL (PaS 7/31) Juvenile LWOP based on Batts II, 2017 WL sentence vacated and remanded

3 MUNICIPAL POLICE JURISDICTION ACT Com v Cole, 2017 WL (PaS 7/7) MD police follow suspects into PA as part of an investigation; see D engage in criminal activity & report to PA authorities D moves to suppress for violation of MPJA because MD officers illegally entered PA Ct denies suppression because MD officers did not enter PA illegally nor try to arrest D PCRA Com v Domek, 2017WL (PaS 7/21) counsel was ineffective for not objecting to jury instruction that included mens rea of reckless when elements of crime did not include reckless D granted new trial on charges of Aggravated Assault, 2702(a)(3) Com v Smith, 2017 WL (PaS 7/24) defense counsel not ineffective for not challenging child victim s competence to testify b/c he failed to show prejudice; he did not even allege child victim was incompetent nor what questions he would have asked at a separate competency hearing not ineffective for not seeking a taint hearing b/c he would not have been able to meet burden of some evidence of taint not ineffective for putting on an expert who had previously lied under oath; defense counsel left with poor choice of not rebutting Com s evidence with expert, chosen by D, or putting on an expert with questionable credibility Com v Green, 2017 WL (PaS 7/24) D seeks reinstatement of appellate rights based on ineffective assistance of counsel question of whether defense counsel adequately consulted with D as that term is defined in Flores-Ortega, 120 S.Ct.1029 (2000) consultation must, at a minimum, encompass advice regarding an actual appeal court drops a footnote that says it cannot accept a conclusionary statement that appellate rights were discussed without knowing the content of that discussion - also need to determine if counsel had a duty to consult; in this case he did Com v Williams, 2017 WL (PaS ) a D has right to PCRA counsel at all stages of litigating a first PCRA PRELIMINARY HEARING Com v Dolan, 2017 WL (PaS 7/7) relying on Com v McClelland, 2017 WL (PaS 5/26), Court remands for the case to move forward Com can rely upon hearsay at a prelim RESTITUTION Com Berry, 2017 WL (PaS 7/10) relying on Com v Veon, 150 A.3d 435 (Pa 2016) the Com cannot be a victim under 1106

4 RULE 600 Com v. Wendel, 165 A.3d 952 (PaS 6/7) Officer seeks continuance of prelim because he was to attend training; MDJ grants 7 day continuance; those 7 days become key Ct rules that such circumstances are beyond the control of the Commonwealth & is therefore excusable delay Rule 600 not violated SEARCH & SEIZURE Com v Cruz, 2017 WL (PaS 7/18) police find gun in ceiling of a public bathroom in a business when D was manager; there were 2 bathrooms in business both open to public Ct finds D did not have a reasonable expectation of privacy in the bathrooms court notes this concept is very fact specific also noted that gun could have been considered abandoned Com v Shabezz, 2017 WL (Pa 7/19) Q: does an illegal seizure (stop) of a car entitle passenger(s) to suppression only if they can establish reasonable expectation of privacy or is evidence barred outright as fruit of poisonous tree? Ct holds that evidence, tainted by the initial illegal stop, must be suppressed even absent a reasonable expectation of privacy Com v Green, 2017 WL (PaS 7/25) (Luzerne County) stop and seizure of car and evidence supported by reasonable suspicion that D engaged in drug trafficking; therefore Tpr properly performed a K-9 sniff of car once K-9 alerts Tpr had probable cause to search & could do so without a warrant based on automobile exception pursuant to Gary, 91 A.3d 102 (Pa. 2014) SENTENCING Com v Barnes, 2017 WL (PaS 7/10) under Apprendi/Alleyne Attempted Murder SBI MUST be presented to jury in order to get the 40 year maximum sentence Com v Cullen-Doyle, 164 A.3d 1239 (Pa 2017) does a single conviction for F1 Burglary constitute a history of violent behavior that makes D ineligible for 3RI? No, a single offense cannot be a history, therefore D is eligible for 3RI Com v Grays, 2017 WL (PaS 7/25) D claims that his sentences for HBV and HBV-DUI should have merged those two laws do NOT merge for sentencing purposes as they have different elements nor do Agg.Assault by Vehicle and Agg.Assault by Vehicle-DUI merge further, trial court did not rely on D s lack of remorse alone to sentence in aggravated range nor did it double count his prior record

5 SORNA Com v Muniz, 164 A.3d 1189 (Pa 2017) retroactive application of SORNA violates PA and Fed ex post facto clause calls into question, invalidates, all sex offender registrations imposed prior to 12/20/12 SUPPRESSION Com v Haines, 2017 WL (PaS 8/2) reminds trial courts that they must make clear findings of fact when deciding suppression motions UNLAWFUL CONTACT WITH MINORS Com v Weimer, 2017 WL (PaS 7/7) under 6318 if D is acquitted of all of the predicate offenses under 6318(a) & if the Information does not include a specific offense, then the proper grading of 6318 is an F3 WIRETAP ACT Com v Cole, 2017 WL (PaS 7/7) during investigation police track D s cellphone s live-ping data & collected historical phone records officer had a lawful MD order to get live-ping data Ct upholds in this case but limits holding to make sure PA officers do not rely on out-of-state orders to circumvent PA s Wiretap Act