Don't forget to vote today in the primary!

There are lots of candidates running for judge in Philadelphia County, many of which will sit in criminal court.  Be sure to educate yourself and check out the Committee of Seventy and the Philadelphia Bar Association's Commission on Judicial Selection and Retention.

Philadelphia Criminal Lawyer Update: Passenger's Nervousness and Movements Appearing to Be Reaching Beneath Seat During Nighttime Car Stop Enough to Justify Reasonable Suspicion for Protective Weapons Search

Criminal lawyers in Philadelphia need to be aware of cases where police claim their clients appeared nervous and made furtive movements.  The latest case on this issue is Commonwealth v. Buchert, --- A.3d ---, 2013 WL 1499347 (Apr. 12, 2013) from the Pennsylvania Superior Court.  In Buchert, the Court held that, during a nighttime car stop, police had reasonable suspicion to conduct a protective weapons search in the passenger area of a car where the passenger was seen reaching forward towards the area beneath his seat as police approached the car, and where he appeared extremely nervous.  To read the case, click here.

Rapper Meek Mill Weighs in on Discredited Philadelphia Police Officer Andre Boyer

According to Philly.com, rapper Meek Mill claims the findings about discredited Philadelphia Police Officer Andre Boyer will help his law suit.  It doesn't look like the Maybach Curtains will close on this story any time soon.  To view the article, click here.

Philadelphia Criminal Lawyer Update: Commonwealth Must Prove Causation Was "Direct and Substantial Factor" in Aggravated Assault By Vehicle While Driving Under the Influence (DUI)

In a new opinion in Commonwealth v. Spotti, 2013 WL 1490996, --- A.3d --- (April 12, 2013), the Pennsylvania Superior Court reversed defendant's conviction for aggravated assault by vehicle while DUI because the defendant's reckless driving was not a direct and substantial factor in victim's injuries. The defendant in Spotti was driving under the influence of alcohol, and driving erratically and recklessly.  The defendant swerved his car, causing another to veer to avoid colliding with defendant's car, which caused that person to crash into a van parked on the side of the road.  The van then struck a tow truck.  Two people who were changing a tire on the van were severely injured when the accident occurred.  To read the majority opinion in Spotti, authored by Judge Bender, click here.  To read the concurring and dissenting opinion, authored by Judge Strassburger, click here.

Credibility of Philadelphia Police Officer Andre Boyer at Issue, According to Philly.com

Philadelphia Police Officer Andre Boyer has made many, many arrests.  And, many of them are now being challenged because of a 2008 police probe calling into question Officer Boyer's credibility, according to an article reported on Philly.com. To view the article, click here.

Philadelphia criminal lawyers need to be aware of each and every police officer whose credibility is in question, especially where credibility issues have been documented, like in this case.

Philadelphia Criminal Lawyer Update: Pennsylvania Supreme Court Rules on Juvenile Life Without Parole

The Pennsylvania Supreme Court, in Commonwealth v. Batts (March 26, 2013), ruled that the trial court unlawfully sentenced a juvenile to a mandatory sentence of life without parole, applying the United States Supreme Court opinion in Miller v. Alabama and new Pennsylvania law on juvenile sentencing in murder cases.  This is a must read for every criminal lawyer in Philadelphia.  To read Batts, click here.

Philadelphia Criminal Lawyer Update: Pennsylvania Superior Court Weighs In on GPS Tracking Devices Under the Wiretap Act in Two Recent Cases

The Pennsylvania Superior Court rules that defendants must have a reasonable expectation of privacy to enjoy the evidentiary exclusionary rule provided in the Pennsylvania Wiretapping and Electronic Surveillance Act (“WESCA”) and that authorization orders issued pursuant to WESCA serve as the functional equivalent of traditional search warrants.

In two recent opinions on the Pennsylvania Wiretapping and Electronic Surveillance Control Act (“WESCA”), 18 Pa.C.S. § 5701, et seq., the Pennsylvania Superior Court held that defendants must have a reasonable expectation of privacy to enjoy the evidentiary exclusionary rule provided by WESCA and that orders pursuant to WESCA serve as the functional equivalent of traditional search warrants.  The cases are Commonwealth v. Arthur, ___ A.3d ___, 2013 WL 618798 (Pa. Super., Feb. 20, 2013) and Commonwealth v. Burgos, ___ A.3d ___, 2013 WL 618794 (Pa. Super., Feb. 20, 2013), a case of first impression as to the application of the United States Supreme Court opinion in United States v. Jones, 132 S.Ct. 945 (2012), which held that the installation of a GPS tracking device constitutes a search within the guarantee against unreasonable governmental searches and seizures under the Fourth Amendment to the United States Constitution.  Philadelphia criminal lawyers must have a good grasp on search and seizure law and WESCA to litigate drug cases successfully.

Commonwealth v. Arthur

Central to the Superior Court’s holding in Arthur was the defendants’ failure to demonstrate a sufficient privacy interest in a car to which law enforcement attached a GPS tracking device.  The salient facts follow, and the case ultimately involved consolidated appeals from a matter involving two co-defendants (a third co-defendant died during the pendency of the appeal). 

A county detective received information from two confidential informants that Defendant Arthur was selling drugs, and one of the informants participated in a controlled buy.  During the buy, the police saw Arthur drive to the meet location in a blue Ford Taurus.  After the transaction, police saw Arthur return to the address listed on his drivers’ license, on Stanbridge Street.  Based on that information, a county detective complied with WESCA and obtained a court order granting authorization to install and use a GPS tracking device on the Ford Taurus, pursuant to WESCA, specifically 18 Pa.C.S. § 5761 (Mobile Tracking Devices).   Once the GPS tracking device was installed, there was a second controlled buy from Arthur.  Arthur drove to that buy in the Ford Taurus, departing from an address on Sandy Street and returning there after the buy.  A few hours after, he returned to the Stanbridge Street address.  As a result of both the second controlled buy and information obtained from the GPS tracking device, law enforcement obtained and executed search warrants for both addresses and the Ford Taurus.

Upon search of the Stanbridge Street address, police seized numerous quantities of marijuana, drug paraphernalia, five guns and ammunition.  At the time of that search, Defendant Ladson-Singleton (deceased) was found at the residence.  Upon search of the Sandy Street address, police seized numerous quantities, drug trade documents, empty plastic baggies, nearly $20,000 in cash and a loaded gun.  At the time of that search, Defendant Thompson was found at the residence.

All three defendants were arrested and charged with criminal conspiracy, various firearms offenses and various drug offenses, and all three cases were consolidated.  The defendants filed motions to suppress evidence, and the trial court granted the motions to suppress.  The Commonwealth appealed.

At the motions to suppress, there was no evidence that Defendant Arthur or Defendant Thompson had a privacy interest in the Ford Taurus.  The evidence adduced at the suppression hearing with respect to Defendant Arthur was merely that he used the Ford Taurus during the first controlled buy.  There was no evidence about the owner of the car, or that he had permission from the owner to use it.  As to Defendant Thompson, she also was not the owner of the car, there was no evidence that she had any possessory interest in the car, that she ever drove the car or that she was a passenger in the car at the time the GPS tracking device was installed.

Pennsylvania law requires that a defendant, on a motion to suppress evidence, either through his or her own evidence, or through the evidence of the Commonwealth, demonstrate a privacy interest that has been infringed upon.  The Superior Court cited several cases for the proposition that it would be hard pressed to find that a defendant had a reasonable expectation of privacy absent evidence of ownership or express permission to use a vehicle. Therefore, because the record did not establish ownership or permission to use the vehicle by either defendant, the Superior Court ruled that neither defendant established a reasonable expectation of privacy in the car, a threshold that must be met before a court can grant a motion to suppress.

Commonwealth v. Burgos

The Superior Court in Burgos had the opportunity to rule on the merits of a trial court’s granting of the defendant’s motion to suppress evidence seized as the result of the installation of a GPS tracking device – a case of first impression in Pennsylvania as to the application of United States v. Jones, 132 S.Ct. 945 (2012), which held that the installation of a GPS tracking device constitutes a search within the guarantee against unreasonable governmental searches and seizures under the Fourth Amendment to the United States Constitution. 

In Burgos, the defendant was charged with possession of marijuana with intent to deliver, possession of a controlled substance and criminal conspiracy.  Based on information received from two confidential informants, police detectives obtained information that the defendant had been supplying high-grade marijuana.  The two confidential informants provided extensive evidence about the defendant, his vehicle and his residence.  Their information was corroborated by conversations intercepted by court-ordered wiretaps of others, which referred to the supplier of their marijuana as the first name of the defendant, Edwin.  Police surveillance verified the defendant’s residence and pickup truck, which contained a large toolbox, which was previously described by the two informants as being used to transport marijuana.  The confidential informants had been reliable sources of information in past investigations.

Police obtained an order authorizing the installation and use of a GPS tracking device onto the defendant’s pickup truck, pursuant to WESCA, specifically 18 Pa.C.S. § 5761.  The GPS tracking device was attached onto the pickup truck on March 28, 2011.  On April 2, 2011, the defendant’s traveled from his home in Reading, PA, to a home in Allentown, PA.  After that he made several stops in the Allentown area, and headed west and south, ultimately stopping near Dublin, VA, that evening.  Early in the morning on the next day, on April 3, 2011, the pickup truck departed the location in Dublin, and traveled through North and South Carolina and into Georgia, stopping in the area of Midvale, GA.  It stayed there until early in the morning of April 4, 2011.  It then retraced its route through Georgia, South Carolina and North Carolina.   During that time period, one of the confidential informants provided information to a police detective that the defendant was in South Carolina picking up marijuana to be returned to Berks County, PA and that the defendant’s wife was travelling with him.  The informant also provided further information on the toolbox on the truck.  The vehicle was tracked via the GPS device back to Pennsylvania, and it was ultimately stopped in southern Berks County.  After the stop, police obtained a search warrant for it, and they recovered thirty-four black plastic bags containing marijuana from a special compartment in the toolbox of the truck.  Also from this stop, police recovered three cellular telephones and approximately $188.  After the search of the truck, police obtained a search warrant for the residence the defendant visited in Allentown, PA, on North Mohr Street, which yielded a cash-counting machine and a box of .38 caliber ammunition. 

Burgos filed a motion to suppress evidence, in which the trial court ultimately granted.  The trial court’s reasoning was that the recent United States Supreme Court opinion in United States v. Jones, 132 S.Ct. 945 (2012), required a search warrant based on a finding of probable cause to install a GPS tracking device onto a motor vehicle and that Section 5761 of WESCA was no longer applicable to GPS tracking device searches pursuant to Jones.  In short, the US Supreme Court Jones held that the installation of a GPS tracking device constitutes a search within the meaning of the Fourth Amendment. 

The Superior Court in Burgos disagreed with the trial court, holding that while probable cause is required for the installation of a GPS tracking device, wiretap orders pursuant to Section 5761 serve as the functional equivalent of traditional search warrants.  Thus, a traditional search warrant is not required, only the mandates of WESCA must be complied with in order to lawfully obtain authorization for a GPS tracking device.  The court noted that, because of the purpose of WESCA, and once an order is lawfully obtained through it, WESCA protects citizens’ legitimate expectation of privacy, while recognizing the needs of law enforcement to combat crime.

Any Allocatur?

As of the date of this writing, March 19, 2013, according to Pennsylvania’s Unified Judicial System Web Portal, no party in Burgos has yet filed a petition for allowance of appeal to the Pennsylvania Supreme Court.  However, criminal lawyers on behalf of Arthur filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court on March 14, 2013.

Philadelphia Criminal Lawyer Update: Nervousness of Driver of Car During Late Night Traffic Stop for Tinted Window Violation Insufficient to Justify Police Protective Weapons Search

Criminal Lawyer Update: Pennsylvania Superior Court Carves Out Exception to Spousal-Communication Privilege

In one of the latest criminal law opinions by the Pennsylvania Superior Court, it carves out an exception to the spousal-communication privilege, codified at 42 Pa.C.S. Sec. 5014, holding that the privilege must yield to child abuse prosecutions.  To read the case, Commonwealth v. Hunter, --- A.3d ---- (2013), 2013 WL 150779, click here.  No petition for allowance of appeal has been filed.

Philadelphia criminal lawyers need to keep this new exception in mind when litigating cases of alleged child abuse to provide the best defense to their clients. 

Eyeball Falling Out in Court Precipitates a Mistrial

This is too good not to keep sharing.  A complainant's eyeball falls out in court, shocks the jury, and causes a mistrial.  Check it out here -->http://articles.philly.com/2013-02-06/news/36952151_1_mistrial-motion-gilson-eye

The following story was originally published in the January 2012 edition of Upon Further Review, a publication of the Philadelphia Bar Association. Re-printed here with permission of the Philadelphia Bar Association.

Pennsylvania Supreme Court Rules Wiretap Act Does Not Prohibit Fake Text Messages

In the latest decision on the Pennsylvania Wiretapping and Electronic Surveillance Control Act (“Wiretap Act”), the Pennsylvania Supreme Court holds there is no violation of the Wiretap Act where law enforcement lies to a suspect during an investigation. The case is Commonwealth v. Cruttenden, A.3d _, 2012 WL 6570210 (Pa. Dec. 17, 2012), and the opinion is written by Justice McCaffery, with a concurring opinion by Justice Baer with which Justice Todd joins.

In Cruttenden, there were two defendants, Cruttenden and Lanier. The facts are that Pennsylvania State Troopers stopped a car and uncovered 35 pounds of marijuana, methamphetamines, drug paraphernalia, a .45 caliber handgun and a Tracfone (a mobile telephone). One of the occupants of the car, Amodeo, told Trooper Richard Houk that he had been using the Tracfone to communicate with Defendant Stephen Lanier regarding the exchange of marijuana for $19,000. Amodeo permitted Trooper Houk to use the Tracfone to pose as Amodeo while exchanging text messages with Defendant Lanier. After so doing, Defendant Lanier and Trooper Houk agreed to rendezvous at a Holiday Inn parking lot to conduct the transaction.

The troopers arrived at the meeting place and approached Defendant Lanier, who was accompanied by Defendant Cruttenden, both of whom were in a parked car. The police arrested the defendants and recovered $20,000 from Lanier’s coat pocket. After obtaining a search warrant for the car, the police recovered, inter alia, the Tracfone used to text Amodeo.

The police charged the defendants with criminal attempt, criminal conspiracy, and dealing in proceeds of unlawful activities. Each defendant filed a pretrial suppression motion alleging that the warrantless “interception” of the text messages was illegal, and not subject to an exception under the Wiretap Act.

After a hearing, the trial court granted the suppression motions, and the Commonwealth appealed to the Pennsylvania Superior Court. The Superior Court affirmed the orders granting suppression, and the Commonwealth then sought allocator, which the Supreme Court granted.

In its opinion, the Pennsylvania Supreme Court agrees with the Commonwealth’s contention that Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. 2001), controls. Proetto held that where a law enforcement officer posing as an underage female communicated with a suspected sexual offender in a chat room on the internet, no violation of the Wiretap Act occurred because the officer was a direct party to the communication, and thus there was no “interception” of a communication. The Supreme Court finds in its opinion that the Superior Court’s distinguishing of Proetto was misplaced, in that there was no illegal “‘interception’ of text messages between [Defendant] Lanier and Trooper Houk posing as Amodeo because the trooper was a direct party to the communication and the misrepresentation of his identity was an irrelevant factor for purposes of the Wiretap Act.”
Justice Baer’s concurring opinion agrees with the court’s opinion, but states that the case is more factually similar to Commonwealth v. Smith, 140 A.2d 347 (Pa. Super. 1958) and Commonwealth v. DiSilvio, 335 A.2d 785 (Pa. Super. 1975), which both involved police officers answering telephones on the premises of bookmaking operations and acting as accomplices who could take bets, than Proetto, which involved internet communications.

Why is Cruttenden important? It helps define what does not constitute an “interception” under the Wiretap Act. That is, when someone is an actual party to a communication, they are not intercepting a communication, regardless of whether they are misrepresenting who they are. For criminal practitioners, Cruttenden can provide an invaluable defense to a client charged with a violation of the Wiretap Act. The Wiretap Act does not draw a distinction between law enforcement and civilians in defining what constitutes an interception. Thus, the government can use Cruttenden to support its burden in a motion to suppress evidence based on a violation of the Wiretap Act, and individual defendants can use it as a defense if they are charged with a violation when they were an actual party to the underlying communication. As for civil practitioners, motions to exclude illegally-intercepted communications do arise from time to time, and preventing your opposition from excluding communications can help keep in important evidence at trial.

To view the full opinion, visit the following URL:
http://www.pacourts.us/OpPosting/Supreme/out/J-115-2011mo.pdf

The following story was originally published in the November 2012 edition of Upon Further Review, a publication of the Philadelphia Bar Association. Re-printed here with permission of the Philadelphia Bar Association.

Amendments to Pennsylvania's Wiretap Act Give Law Enforcement Teeth

Law enforcement has always had to keep up with the use of technology in criminal activities, but sometimes it is the law that hampers its ability to keep pace with crafty criminals. One such example of technology that has outpaced law enforcement in criminal investigations is the use of modern mobile technology. New “smart phones” and communication technology has presented law enforcement with a host of new issues, including the fact that call history, text-messaging and social media can be important evidence in the investigation of crime. But, sometimes the law has handcuffed law enforcement’s ability to use evidence of intercepted communications in court and to track a suspect’s communications in furtherance of a criminal enterprise.

In an attempt to ensure the preservation of evidence and its admissibility in court, House Bill 2400 of 2012, signed into Pennsylvania law on October 25th, 2012 (effective 60 days thereafter), expands the ability of law enforcement officers and private individuals to intercept wire, electronic and oral communications under the Wiretapping and Electronic Surveillance Control Act (WESCA). The bill was first introduced in the spring of this year, and it suffered much wrangling through amendments because it dilutes many privacy rights in communications that Pennsylvanians have enjoyed for a long time. The final version of HB2400 is the result of an attempt to balance law enforcement’s needs with individuals’ rights to privacy in communications.

Some of the amendments to WESCA that expend the exceptions on the usual prohibition of interception and disclosure of communications include:

1. One-party consent to intercept a wire or oral communication involving suspected criminal activities where there is reasonable cause to believe that a party may resist with the use of weapons or is threatening suicide or harm to himself or others, and
2. Any victim, witness or licensed private detective may intercept the contents of a wire, electronic or oral communication if that person is under a reasonable suspicion that the intercepted party is committing, about to commit or has committed a crime of violence and there is reason to believe that evidence of the crime of violence may be obtained from the interception (crimes of violence are defined under WESCA).

HB 2400 also makes it a felony of the third degree to intentionally possess a telecommunication identification interception device. Importantly for law enforcement, it expands its ability to obtain a court order to intercept wire, electronic or oral communications with the aid of devices providing caller ID, deluxe caller ID or any other features available to ascertain the telephone number, location or subscriber information of a facility contacting the facility whose communications are to be intercepted.

What is most intriguing in the HB2400 amendments to WESCA is the ability of law enforcement to obtain court orders to track targets, and not just a specific telephone at a specific location. This “Target-Specific Orders” amendment, permits law enforcement to obtain an order to intercept communications from a specific target (or suspect) under certain circumstances. This will be particularly useful in situations where criminals are using throw-away phones to get law enforcement off their trail.

It will be interesting to see how much law enforcement uses WESCA in light of the HB2400 amendments. After all, in 2011, authorized interceptions were down nationwide, with just 13 authorized wiretaps in Philadelphia County. (Source: Forbes.com athttp://www.forbes.com/sites/andygreenberg/2012/07/02/as-reports-of-wiretaps-drop-the-governments-real-surveillance-goes-unaccounted/ and United States Courts Wiretap Report 2011 at http://www.uscourts.gov/Statistics/WiretapReports/WiretapReport2011.aspx) Maybe the new law is just what the doctor ordered for police to get the job done in our age of fast-paced mobile technology. On the other side, criminal-defense lawyers need to be mindful to procure full and complete discovery in cases involving target-specific orders, because HB2400 places the burden on law enforcement to take proper steps in obtaining the order and to properly preserve evidence and documentation in carrying out the order.

To view the full text of HB2400 (final amendment at printer number 4083), click on the following link: http://www.legis.state.pa.us/cfdocs/legis/PN/Public/btCheck.cfm?txtType=HTM&sessYr=2011&sessInd=0&billBody=H&billTyp=B&billNbr=2400&pn=4083

Have a happy and safe new year, and thank you for reading.

Mandatory-Minimum Sentence for Drug Offense Committed with Firearm Affirmed by Superior Court Where Gun Found in Basement of Apartment Building

In Commonwealth v. Hawkins, ___ A.3d ___ (2012), 2012 Pa. Super. 85 (Apr. 12, 2012), the Superior Court of Pennsylvania affirmed a mandatory-minimum sentence of five years imprisonment for certain drug offenses committed with a firearm under 42 Pa.C.S. Sec. 9712.1.  Hawkins' criminal lawyer argued in this case that the sentencing court should had not have applied the mandatory-minimum sentence.

In Hawkins, the defendant sold drugs from his apartment, which was located on the first floor of a building that contained multiple apartments.  When the police searched the building, they found a gun in the basement, which was a common area inside the defendant's apartment, but an area to which he had access.  The basement had an entry from the defendant's apartment, but was also accessible to residents of the other apartments from an outside door.  In addition, the police found a black set of scales both inside the bag with the firearm and they found scales inside his bedroom.  Finally, there was no evidence that the gun or the bag belonged to any of the other tenants, and it was accessible from the defendant's apartment within 10 to 15 seconds in the basement.

Happy Cinco de Mayo!  To read Hawkins, click here.

Connecticut Governor Dannel Malloy Signs Bill Abolishing Death Penalty

According to CNN.com, Connecticut Governor Dannel Malloy signed the bill abolishing the death penalty.  To read more about this win for criminal defense, click here.

Connecticut's Death Penalty Law on the Verge of Repeal

Last week, the Connecticut House of Representatives voted 86-63 to repeal its state’s death penalty law.  The state Senate passed the bill earlier in the week.  Governor Dannel Malloy has promised to sign the bill making Connecticut the 17^th state, and the 5^th in the past 5 years, to repeal capital punishment.  The bill is prospective in nature meaning that it will not affect the 11 prisoners currently on death row. Since the United States Supreme Court ruled in Gregg v. Georgia (1976) that the death penalty is constitutional, Connecticut has handed down 15 death sentences but has only executed one defendant.

In Pennsylvania, our legislature revived the death penalty law in 1978, which still remains in effect today, having been upheld in several U.S. Supreme Court appeals.  According to the Death Penalty Information Center, Pennsylvania currently has 211 prisoners on death row (4^th highest in the U.S.), but only has executed 3 prisoners since 1974 (counting both under the old and new death-penalty law), with the last execution occurring in 1999.  As we all know, regardless of how little defendants are actually executed, criminal lawyers fight long and hard to keep their clients alive.

To read more about Connecticut’s death penalty repeal, click here.

For more information on the Death Penalty Information Center, click here.

I'll Take the Double Jeopardy Challenge for a Thousand, Alex. The Superior Court Bars Subsequent Prosecution for Same Criminal Episode in Commonwealth v. George

In the recent case of Commonwealth v. George, the defendant pleaded guilty to two cocaine deliveries that were made in 2007, he was sentenced and served his time.  He was later charged by grand-jury presentment with two counts of corrupt organizations and one count of conspiracy to deliver cocaine, stemming from his narcotics-trafficking activity prior to his arrest for the 2007 cocaine deliveries.

The defendant filed a motion to bar subsequent prosecution under the compulsory-joinder rule contained in 18 Pa.C.S. Sec. 110, which bars a second prosecution for the same criminal conduct or for conduct that arose from the same criminal episode as a former prosecution.

The trial court granted the defendant's motion to dismiss.  The Commonwealth then appealed.

On appeal, the Pennsylvania Superior Court affirmed the trial court's dismissal, focusing on two key points in determining that the defendant's subsequent prosecution arose from the same criminal conduct and thereby barred by the compulsory-joinder rule, as the facts of the latter prosecution were logically and temporally related to the former conviction.

First, the Superior Court found that the charges arose out of the same factual nucleus and that they had duplication of witnesses and evidence. 

Second, the facts of both prosecutions were intertwined.  The bulk of the grand jury evidence against the defendant referenced his arrest in 2007, and the statement he made at that time.  Also, the preliminary hearing on the new charges arose from the same factual nucleus as the former prosecution. 

As in many of the cases on double jeopardy claims based on compulsory joinder, our appellate courts are concerned whether there would be factual overlap.  That is, they look at whether there would be duplication of witnesses and evidence in a subsequent prosecution when determining if prosecutions are from the same criminal conduct or arose from the same criminal episode.  A criminal lawyer must be mindful that there are many ways to demonstrate that conduct arose from the same criminal episode, such as from prior testimony from any court proceeding, witness statements and investigation reports.

To read Commonwealth v. George, 458 A.2d 177 (Pa. Super. 1983), click here.

Philadelphia Police Department, in Conjunction with the University of Pennsylvania Create a High-Tech, Real-Time Surveillance Center

As reported in the Daily Pennsylvanian, the Philadelphia Police Department and the University of Pennsylvania have combined forces to create a high-tech, real-time surveillance center.  Read more at http://thedp.com/index.php/article/2012/03/philadelphia_police_department_creates_surveillance_center

Criminal lawyers practicing in Philadelphia County should be mindful of the resources of the Philadelphia Police Department because their resources could provide evidence that could exonerate defendants.

Possession of a Gun During a Drug Delivery Triggers Mandatory-Minimum Sentence, Regardless of Whether it was Possessed Legally

Criminal defense work constantly presents criminal lawyers with bad facts coupled with bad law. A new case handed down by the Pennsylvania Superior Court is a prime example of this. The case is Commonwealth v. Stein, 2012 PA Super. 26 (Feb. 7, 2012). The defendant is now serving a five-year mandatory-minimum prison sentence because he possessed a gun on his person while making a drug delivery, even though he otherwise possessed the gun legally, had a permit to carry it concealed, and did not use it in the commission of the offense. Enjoy.

Superior Court of Pennsylvania Holds Probation Violation Illegal When Original Sentence Illegal

In the recent case of Commonwealth v. Milhomme, 2011 PA Super. 149 (July 21, 2011), the Superior Court of Pennsylvania held that a sentence stemming from a violation of probation was illegal where the original sentence was illegal. Read this new case on sentencing law by clicking here.

The Jordan Brown Murder Trial

The following story was originally published in the April 2011 edition of Upon Further Review, a publication of the Philadelphia Bar Association. Re-printed here with permission of the Philadelphia Bar Association.


Follow Up Story: The Jordan Brown Murder Trial


In February’s edition of Upon Further Review, we told the story of the embattled trial of Jordan Brown, where the parties have been fighting for over a year about whether the 13 year-old defendant will face trial as an adult or proceed through the juvenile-justice system. Now, after an interlocutory appeal, the Pennsylvania Superior Court ruled last month in Commonwealth v. Jordan Anthony Brown, 2011 Pa. Super. 47 (March 11, 2010), that the Fifth Amendment right against self-incrimination applies to juvenile decertification proceedings.

As background, in Commonwealth of Pennsylvania v. Jordan Brown, the 13 year-old defendant is charged as an adult for the alleged murder of his father’s fiancé, Kenzie Houk, and her unborn child. They were killed when she was shot in the back of the head while she was sleeping. Brown was just 11 years-old when Houk was murdered. If convicted as an adult, he faces a mandatory-minimum prison sentence of life.

In March of last year, a judge denied Brown’s petition to transfer his case from the criminal court to the juvenile court under the Juvenile Act provision of 42 Pa.C.S. Sec. 6322, at a hearing commonly known as a decertification hearing. At the decertification hearing, the trial court considered that he had not admitted to the murders in determining that he is not amenable to rehabilitation in the juvenile-justice system. At a decertification hearing, the Pennsylvania Juvenile Act, 42 Pa.C.S. Sec. 6322, requires that the juvenile establish by a preponderance of the evidence that the transfer of his or her case will serve the public interest. Under Section 6355 (a)(4)(iii), the Juvenile Act enumerates certain factors that a court must consider in determining whether the transfer serves the public interest, none of which require the acceptance of responsibility or an admission to an offense. However, one factor requires a court to consider “whether the child can be rehabilitated prior to the expiration of the juvenile court jurisdiction,” which is when the child reaches the age of twenty-one.

Brown took an interlocutory appeal from the trial court’s order denying his petition to decertify his case and transfer the matter to juvenile court. The Pennsylvania Superior Court heard oral arguments on January 25, 2011.

In its majority opinion, the Pennsylvania Superior Court, with a panel comprised of Allen, J., Olson, J. and Colville, S.J., held that the trial court’s taking into consideration the fact that Brown did not admit to the offense in determining that he could not be rehabilitated before the expiration of juvenile court jurisdiction violated his Fifth Amendment right against self-incrimination.

The Court conducted a comprehensive survey of state law across the nation on the issue of Fifth Amendment jurisprudence in the context of decertification proceedings. In doing so, the Court adopted the majority view among states, holding that the Fifth Amendment applies to juvenile decertification hearings, which are adversarial in nature and have “severe, potential consequences.”

The Court went on to explain that the pure-use immunity protections contained in 42 Pa.C.S. Sec. 6338 (c)(1), which merely prevent the use of statements, admissions or confessions of a child in relation to the decertification process, are not adequate enough to trump Fifth Amendment protections. However, the Court seemed to imply that if Section 6338 (c)(1) contained derivative or transactional use immunity, the result could have been different. Now, one shouldn’t be surprised if a member of our legislature introduces a bill to expand the protections of Section 6338 so as to alleviate the Fifth Amendment concerns discussed in this opinion.

Finally, the Court concluded that the trial court’s decision effectively required Brown to admit guilt in order to be determined to be amendable to treatment in the juvenile-justice system, which necessarily compels incrimination. The Fifth Amendment is concerned with compulsion, and without adequate protections of immunity, compelling a child to incriminate himself or herself to qualify for treatment in the juvenile system runs afoul of the right against self-incrimination. The child’s choice would come down to admitting guilt, or facing trial as an adult. Thus, if a child had to admit guilt to be considered amenable for juvenile treatment, that would constitute a penalty for exercising a constitutional right.

The Superior Court vacated the trial court’s order denying decertification and ordered a new decertification hearing.

Judge Colville wrote a dissent, based on the record, in that Brown never specifically asserted his Fifth Amendment rights during his psychiatric evaluations or at the decertification hearing. Here’s my take on this: If the trial court did not think Brown had Fifth Amendment rights, there would be no reason to so advise Brown. With a 13 year-old defendant, and a trial court unaware of his Fifth Amendment rights, to require a specific objection would expect the blind to be able to lead the blind. The law always requires that a waiver of constitutional rights be done knowingly and intentionally. Important to note is that it does not appear that Brown was ever advised of his rights against self-incrimination or that an on-the-record colloquy was conducted to advise him that he had any such rights. So it is questionable whether 13 year-old Brown could have knowingly waived this important constitutional right.

The Commonwealth has not filed a petition for allowance to appeal in the Pennsylvania Supreme Court.

To access the opinion, click here.