JDAP continues to strengthen the Commonwealth’s juvenile justice system by supporting prevention and early intervention programs that are making a difference for young people and their communities. The following resources for the criminal defense attorney have been made public in an effort to provide high quality representation for the indigent population accused of crimes.
An appeal may not be taken from an adjudication of delinquency without a dispositional order being entered.
Low IQ alone does not establish the involuntariness of a guilty plea. The test for involuntariness is the same as the test for competency to stand trial: can the defendant comprehend his or her position as one accused of a crime, and can he or she cooperate with counsel in making a rational defense?
A juvenile may not enter a plea of guilty or nolo contendere in the juvenile justice system. Only an admission, with its attendant procedural safeguards, may be accepted in a delinquency matter.
Juveniles have a “lack of maturity and an underdeveloped sense of responsibility” which can often “result in impetuous and ill-considered actions and decisions.” Juveniles are also “more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.” Personality traits of a juvenile are less fixed and more transitory than those of an adult. For these and other reasons, a person may not be sentenced to death for any act he or she committed while under the age of 18.
While a juvenile’s admission to acts can be the basis for an adjudication of delinquency, the court must nevertheless inquire whether the admitted acts are sufficient to constitute the crimes charged; the court may also still inquire whether the child is in need of treatment, rehabilitation, or supervision.
When a juvenile is adjudicated dependent, the juvenile can only be placed in a Department of Public Welfare-approved shelter and cannot be placed in a secure state facility. The Juvenile Act, 42 Pa.C.S. § 6327(e) and § 6351(c), do not permit the detention of non-delinquent juveniles in secure facilities unless they are awaiting a hearing for a delinquent or criminal offense.
If the court finds that a juvenile has committed the acts alleged in a delinquency petition, then it must enter an order finding the child delinquent. Only after entering an order of delinquency may the court inquire whether the child is actually delinquent – that is, in need of treatment, rehabilitation, or supervision.
“[B]ecause juveniles have lessened culpability they are less deserving of the most severe punishments. As compared to adults, juveniles have a lack of maturity and an underdeveloped sense of responsibility; they are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure; and their characters are not as well formed. These salient characteristics mean that it is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption. Accordingly, juvenile offenders cannot with reliability be classified among the worst offenders. A juvenile is not absolved of responsibility for his actions, but his transgression is not as morally reprehensible as that of an adult.”
A closed-fist punch to a victim’s nose that does not result in serious bodily injury is insufficient to establish that the defendant intended to inflict serious bodily injury.
Kicking a police officer in shin is insufficient to constitute aggravated assault when no injury occurs. Pain equivalent to bumping a leg on the corner of a coffee table, which does not prevent an officer from finishing his or her shift or require medical attention is not “bodily injury” under the meaning of the assault statute.
A single punch that results in serious bodily injury is insufficient for aggravated assault. Recklessness in the context of aggravated assault requires circumstances that almost assure serious injury or death will ensue, which cannot be the case from a single punch. In such a case, the Commonwealth must also prove either the defendant specifically intended to cause serious bodily injury or acted in a manner that manifested an extreme indifference to the value of human life. The absence of any weapon or secondary blows to the victim shows lack of intent.
Com. v. McHale, 858 A.2d 1209 (Pa. Super. Ct. 2004),
overruled on other grounds by
Commonwealth v. Robinson, 931 A.2d 15, 21-22 (Pa. Super. 2007)
The recklessness required to sustain an aggravated assault conviction cannot be inferred from the act of driving drunk, without a license or insurance, colliding into a parked car, and hitting two people, even if the victims suffer severe injuries. The act of driving drunk, though unsafe and reckless in the colloquial sense, does not amount to malice, which is required to sustain a conviction for aggravated assault based on acts committed with a reckless state of mind.
Pointing a gun through closed door at woman and demanding to be let in is not an aggravated assault. “[The] words and actions in the instant case are in the nature of implied conditional threat, i.e., either let me into the house or I may shoot you. Such a threat, conditioned on the victim’s performance of some act, is insufficient to prove aggravated assault. This is because the stated condition goes to the declarant’s present intent at the time the threat is issued.” Such actions, however, are sufficient to constitute simple assault.
The effective assistance of counsel includes the right to separate counsel for codefendants when their attorney brings a motion to withdraw because of a conflict of interest.
Indigent defendants do not have a constitutional right to compel appointed counsel to press nonfrivolous points upon demand. Counsel, as a matter of professional judgment, may decide not to present those points.
Counsel is effective when they pursue a case according to the expressed wishes of a competent client, even the facts of the case suggest alternative, possibly superior legal approaches.
Trial courts considering whether to grant a continuance so that a defendant can proceed with retained counsel of his or her choice must engage in a balancing of defendant’s right to counsel of his or her choice against the Commonwealth’s interest in the swift administration of justice. A trial court abuses its discretion when it denies a defendant’s requests for a continuance without conducting such an inquiry.
The right to counsel attaches at the same time under both the Sixth Amendment to the United States Constitution and article I, section 9 of the Pennsylvania Constitution: at the defendant’s initial appearance before a judicial officer. Therefore, there is no right to counsel at a post-arrest stage such as chemical breath testing.
Failure to advise a defendant that a plea of guilty will subject him or her to automatic deportation constitutes ineffective assistance of counsel, if prejudice to the defendant is shown.
A defendant needs to be informed of all the direct consequences of a guilty plea. A guilty plea is not involuntary if a defendant is unaware of a collateral consequence of a plea; however, if he or she is actively misinformed about the collateral consequences by his or her attorney, then the defendant has not received the effective assistance of counsel and his or her plea may be withdrawn.
While the Commonwealth may prove its case wholly by circumstantial evidence, it may not do so by mere suspicion or conjecture. Evidence of mere presence in yard behind a building is insufficient to prove burglary. That a defendant and others are seen walking in an enclosed yard behind a burglarized building, then later are seen walking out of the yard does not prove that they burglarized the building. More is required for a conviction than mere presence in the area of a burglary.
Specific intent cannot be inferred solely from the commission of an act. Though evidence may be sufficient to support convictions for murder and theft when the murder weapon and property of the decedent are recovered inside the defendant’s house, the evidence is insufficient to support a conviction for burglary when the circumstances under which the defendant enters the decedent’s property are completely unknown.
The specific intent to a commit crime inside a building may not be inferred solely from kicking in the door of an occupied structure. There is no per se assumption in burglary prosecutions that a forced opening into an occupied structure automatically gives rise to an inference of intent to commit a crime inside.
A criminal defendant is entitled to a jury charge that “evidence of good character or reputation may, in and of itself, create a reasonable doubt of guilt and, thus, require a verdict of not guilty.” An instruction that “evidence of good character is material and essential testimony in determining the innocence of the defendant” is inadequate.
In a case where credibility of the witnesses is paramount, a lawyer’s failure to call character witnesses will be deemed ineffective assistance of counsel.
A juvenile, unlike an adult defendant, may be cross-examined about prior adjudications on the stand during a juvenile delinquency proceeding. The prosecution is not limited to impeachment on rebuttal using court records, or to situations where a juvenile has placed good character into issue with defense testimony.
Commonwealth agencies are not required to follow the technical rules of evidence at agency hearings. For this reason, hearsay evidence can generally be considered at an agency hearing, and only “reasonable” examination and cross-examination need occur. However, an administrative forum cannot completely abandon all the rules of evidence. At an expungement hearing, for an individual who has had his or her name placed on a statewide child abuse registry without adjudication, certain protections must apply. The Commonwealth cannot justify placement on the child abuse registry by producing an employee to simply repeat the original allegations. The admissibility of hearsay from a child should be governed by the standards of the Tender Years Exception. Hearsay that does not fall within this or another exception must be corroborated by admissible evidence to meet the Commonwealth’s burden for justifying placement on the child abuse registry. Uncorroborated hearsay is insufficient unless it was recorded by video or audio equipment, with all parties identified, and the hearsay statements were not the product of improper suggestion.
An adjudication of delinquency is not a conviction. This doctrine applies also to statutes that prescribe an enhanced sentence for offenders with prior convictions. A juvenile adjudication will not be considered a predicate offense in those cases.
An adjudication of delinquency in a juvenile court proceeding is not a criminal conviction for immigration removal purposes.
Local public housing authorities have “the discretion to terminate the lease of a tenant when a member of the household or a guest engages in drug-related activity, regardless of whether the tenant knew, or should have known, of the drug-related activity.”
Involuntary civil commitment for sex offenders under the Involuntary Civil Commitment statute does not violate the prohibition on the retroactive application of statutes. Nor is the act punitive, nor does it offend the ex post facto clause, nor does it violate due process. Though the abridgement of liberty accompanying these proceedings only requires that the Commonwealth demonstrate a compelling state interest, the statute is constitutional because it is narrowly tailored to effectuate the compelling interest of the state in protecting its citizens.
A child must submit a DNA sample to the Commonwealth after certain juvenile adjudications, in the same way that an adult must do so after certain adult convictions.
Although the Involuntary Civil Commitment statute contains language suggesting that it applies only to individuals actually in a treatment facility at age 20, if the individual is in prison instead of a treatment facility because of a later adult criminal case, the Civil Commitment statute will still apply if the individual would have still been in treatment but for the adult case. The Civil Commitment statute is not void for unconstitutional vagueness.
If a child meets the statutory requirements for expungement, it is an abuse of discretion to deny expungement unless the Commonwealth can show specific reasons that the juvenile’s record should not be expunged.
Because the Commonwealth has a compelling state interest in limiting the fundamental right of liberty from restraint, and because the Involuntary Civil Commitment statute does not create a suspect class, it does not offend the equal protection clause. Moreover, the Act, because of its “non-punitive purpose” and “non-punitive effect” it is not penal, and involuntary civil commitment under the Act does not require the constitutional protection of a burden of proof beyond a reasonable doubt.
A system of mandatory public education creates an entitlement that may not be abridged in an arbitrary fashion. Even a temporary suspension less than ten days in length requires at least notice to the student of the charges and a hearing where the student has the opportunity to be heard. However, this hearing may be held immediately after the alleged misconduct, and in cases where a student’s presence poses “a continuing danger . . . or an ongoing threat of disrupting the academic process” the student may be removed from school immediately.
Local school officials have broad discretion in meeting the requirement of 22 Pa. Code § 12.6(h) that a school district provide “some provision” for the education of an expelled child. A combination of “assigned home study and weekly in-school counseling” satisfies this requirement.
A school district must afford an informal hearing to a student who it desires to transfer to an alternative education program, and this hearing must conform to the requirements of 22 Pa. Code § 12.8(c), which include notice, the right to question witnesses, and the right to speak on one’s own behalf.
Students who return to school after being in a juvenile placement facility may not be automatically classified as disruptive students and may not be automatically made to attend an alternative school. Due process requires that these students be provided a hearing where they may demonstrate their fitness to return to school.
At a suspension hearing, the school board need only find that a student committed the act resulting in expulsion by a preponderance of the evidence. This standard can be satisfied even by the presentation of circumstantial evidence, without more.
Expulsion decisions must be supported by substantial evidence. Uncorroborated hearsay does not constitute substantial evidence.
The governmental privilege to refrain from disclosing the identity of a CI requires a “balancing of the public interest in protecting the flow of information against the individual’s right to prepare [a] defense.” This balance depends on “the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the [CI’s] testimony, and other relevant factors.” Disclosure of the informant’s identity is proper when the defendant’s guilt would otherwise be established solely by police testimony, based on a single observation, when testimony from a more disinterested source is available.
The threshold requirement to disclosure of a CI’s identity, pursuant to Pa. R. Crim. P. 573(B)(2), is that the defense make some showing that the information sought is “material” to the preparation of the defense and that the request is reasonable.
It is not an abuse of discretion to deny a CI disclosure motion when the identification of the defendant is based on seven separate observations by three different individuals, creating a minimal risk of misidentification on the part of the police, and when there is a concurrent risk that the informant would be placed in danger of physical harm if his or her identity were to be revealed or confirmed.
Only after a court has determined that the information sought by a defendant is both material and reasonable should it apply the balancing test of Carter. When the CI is the only eyewitness to the transaction other than the police officer, there exists a reasonable possibility that the CI could provide evidence that would exonerate the defendant. Therefore the information is material and disclosure is reasonable.
When the issue of misidentification is not an aspect of the defense, the trial court does not abuse its discretion in refusing to allow a line of questioning that might reveal the identity of the CI.
One who acts solely as an agent of the buyer cannot be convicted for “sale” of an illegal drug.
[N.B. The Commonwealth can argue that this case is unique because the defense asked for a bill of particulars, which was returned only for the “sale” of a drug, and prevented a conviction for delivery, distribution or any of the other activities proscribed by 35 P.S. § 780-113(a)(30).]
In order to be convicted as an accessory before the fact under 35 P.S. § 780-113(a)(30), the defendant would have to plan, cooperate, assist, aid, counsel, or abet in the perpetration of the crime. Merely introducing a buyer to a seller, and not participating in or benefiting from the resulting transaction is insufficient for conviction as an accessory.
[N.B. Flowers was distinguished in Commonwealth v. Murphy, 844 A.2d 1228 (Pa. 2004), discussed below. In Murphy the defendant did not make the introduction solely for the benefit of the buyer, but also aided the deliverer.]
A conspiratorial agreement cannot be inferred from defendant’s mere presence during an illicit transaction. There must be sufficient evidence to satisfy the fact finder beyond a reasonable doubt that a corrupt confederation had in fact been formed. Standing alone, the fact that a defendant is sitting out on the steps, accepts $50 from a police officer when so instructed by his or her spouse, and watches the police officer walk away after being handed 11 opaque bags is insufficient to prove a conspiracy to deliver a controlled substance.
For a defendant to be an accessory to the offense of delivering drugs, a defendant must have had the intent to actively aid in the delivery and then aided the deliverer. The Commonwealth does not have to prove that the defendant intended to be involved in the actual sale, that the defendant would financially benefit from the sale, or that the defendant worked for the seller to promote the sale, but merely that the defendant wanted to actively aid in transferring drugs to another.
The finder of fact cannot infer that a defendant knew of weapon’s existence simply from the fact that it was hidden in the automobile the defendant was driving.
The mere fact that persons are present in a car is insufficient to show that they knew that another occupant had a gun in their possession or that all the occupants are a part of a conspiracy to carry it in violation of law. Even evidence sufficient to support a finding of constructive possession of a gun may not be sufficient to show a conspiracy to possess the gun with other occupants of the car.
Silent observation of an illicit transaction and mere presence in the place where drugs are found are insufficient to support a finding of constructive possession of the drugs. Constructive possession is “the ability to exercise a conscious dominion over the illegal substance, the power to control the contraband, and the intent to exercise that control.”
There is sufficient evidence to demonstrate constructive possession of cocaine when it is found next to the defendant in the back seat of a car, the defendant admits to possession of another drug found in the same place, and the other passenger in the rear seat testifies that the drugs did not belong to him or her.
Burglary is a crimen falsi offense; a burglary conviction is therefore admissible to impeach the credibility of a witness.
Bias, dishonesty, defective ability to observe, and remembrance of the facts are all proper grounds for cross-examination.
A finder of fact should always be made aware when a prosecution witness may be biased because of outstanding criminal charges or another nonfinal disposition such as probation. Therefore, these topics are properly the subject of cross-examination.
While a blanket order for defense witnesses’ statements to be turned over to the prosecution is too broad, once a defense witness has testified on direct, the Commonwealth may then request production of the witness’s statement from the defense for cross-examination.
Forgery and robbery are crimen falsi offenses.
Criminal trespass is a crimen falsi offense.
A juvenile court may be granted considerable latitude in determining whether it should waive its jurisdiction and send a juvenile to adult court. However, due process requires a hearing (which may be informal), access by counsel to records or other reports that the court uses in making its determination, and a statement of reasons for the court’s decision.
“A prima facie case exists when the Commonwealth produces evidence of each of the material elements of the crime charged and establishes sufficient probable cause to warrant the belief that the accused committed the offense. Notably, the Commonwealth does not have to prove the defendant’s guilt beyond a reasonable doubt. Further, the evidence must be considered in the light most favorable to the Commonwealth so that inferences that would support a guilty verdict are given effect.”
A court reviewing a decision not to decertify a case will reverse only upon “a misapplication of the law or an exercise of manifestly unreasonable judgment based on partiality, prejudice or ill will.”
The decertification provisions of the Juvenile Act are not unconstitutionally vague, nor does placing the burden on the juvenile to show amenability to treatment offend the constitution.
A BB gun is a “deadly weapon” under the meaning of that term in the Juvenile Act because it is capable of producing death or serious bodily injury.
[N.B. Commonwealth v. Schilling, 431 A.2d 1088 (Pa. Super. 1981) had established that a BB gun is not a firearm under the Uniform Firearms Act. Many counties continue to handle BB guns and pellet guns on a case-by-case basis, looking at the manner in which the BB or pellet gun was used whenever a juvenile is accused of committing an enumerated felony with a BB gun.]
The state has a “never-shifting burden of proof” as to all elements of the crime, and when an affirmative defense would negative one of these elements, the Commonwealth has to disprove the defense beyond a reasonable doubt. For example, common-law murder requires that a killing be unlawful and also a product of malice. Self-defense would negative both of these elements and therefore has to be disproved by the Commonwealth beyond a reasonable doubt.
Self-defense must be disproved by the Commonwealth beyond a reasonable doubt if there is “any evidence that will support the [self-defense] claim.”
Two offenses are not “the same” for double jeopardy cases if each offense requires proof of a fact that the other does not.
The process of an adjudicatory hearing creates the same “anxiety and insecurity” and “heavy personal strain” as a traditional criminal prosecution. The consequences of social stigma and deprivation of liberty are also similar. Therefore, juvenile adjudications are subject to the double jeopardy clause. Jeopardy attaches when the court begins taking evidence.
The rule of compulsory joinder is designed to protect citizens from harassment and promote judicial economy. The rule requires the court to determine whether the separate prosecutions involve the same criminal episode. This is to be determined by examining the logical and temporal relationship between the charges. It offends the rules of compulsory joinder to hold two successive trials for 20 drug transactions made over the space of four months between the same two individuals for similar amounts and similar prices.
The Commonwealth may conduct separate prosecutions for drug transactions that were being investigated by different law enforcement agencies, though they occurred over a two-week period, even if both agencies are using the same informant. The logical relationship and potential for duplication of the facts are less vital concerns when different law enforcement agencies are investigating the same individual.
The felony offense of homicide by vehicle and the summary offense of driving at an unsafe speed may be tried in successive prosecutions. Homicide by vehicle does not require proof of driving at an unsafe speed, and driving at an unsafe speed does not require a death to have resulted.
It is not necessarily the statutory elements to which the Blockburger test must be applied but the acts of which the defendant has been accused. In analyzing successive prosecutions for contempt of a protection order and terroristic threats, the analysis should not consider only the statutory elements of contempt; rather, the contemptuous conduct should be compared with the elements of terroristic threats.
It does not offend the double jeopardy clause to introduce a prior conviction for stalking to prove the course of conduct element in the trial for a new charge of stalking.
Eighteen burglaries in differing counties over 17 days did not constitute a single criminal episode requiring compulsory joinder, even though all the burglaries were residential and the defendant confessed to all of them at once.
An indecent assault conviction with respect to one son does not preclude subsequent prosecutions for indecent assault on other sons which are alleged to have occurred at a different time.
Arguing with a police officer is a constitutionally protected First Amendment right and is not disorderly conduct. Unless the defendant’s act is intended to create a risk of public inconvenience or alarm, or creates unreasonable noise “not fitting or proper in respect to the conventional standards of organized society,” he or she is free to argue with a police officer. The disorderly conduct statute “must not be used as a catchall or dragnet for the prosecution of conduct that is uncivil, annoying or irritating.”
Swearing at a police officer in a calm voice, in the absence of bystanders, while walking away from the officer does not constitute “fighting words” and is not disorderly conduct. There is no risk the defendant’s comments can cause a breach of the peace when the epithet is not yelled or intended to incite.
“The suppression of evidence favorable to the accused violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution. . . . Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: ‘The United States wins its point whenever justice is done its citizens in the courts.’”
The Due Process Clause affords juveniles the right to notice of charges, the right to counsel, the right to confrontation and cross-examination of witnesses, as well as the privilege against self-incrimination.
In re Gault merely adjusted the balance between the purposes of the juvenile court and “procedural orderliness.” Gault “should not be viewed by the Courts or Judges of this Commonwealth as a mandate to abandon the juvenile court adjudicative procedure. Rather, it is an invitation to formulate a court procedure which will combine the best aspects of juvenile and criminal court procedure into an amalgam which will offer the juvenile the best of both worlds.”
The Due Process Clause requires that a juvenile charged with a violation of a criminal law have every element of each crime charged proven beyond a reasonable doubt.
While not every due process guarantee must be applied to the juvenile courts, it is clear that juveniles involved in delinquency proceedings have the right to notice, counsel, confrontation, and the privilege against self incrimination. The juvenile courts, however, are fundamentally different than an adult criminal court, and of all the rights that could be granted to juveniles, the right to a jury would be the most disruptive of the juvenile justice system. Given the procedural safeguards already in place, the juvenile system can operate to protect individual freedoms without the need for trials by jury.
[N.B. This case was directly appealed to the United States Supreme Court, resulting in the McKeiver opinion, which follows.]
The Sixth Amendment guarantees a right to trial by jury in all criminal prosecutions, but a juvenile adjudication is not the same as a criminal prosecution. Standing alone, the Due Process Clause of Fourteenth Amendment does not guarantee the right to trial by jury and therefore juveniles do not have such a right. The standard applicable to such proceedings is fundamental fairness, and a trial in front of a judge is not fundamentally unfair.
While a detention hearing decision may not be appealed directly because it is considered an interlocutory decision, see In re Brown, 408 A.2d 1146 (Pa. Super. 1979), an attorney can file a petition for writ of habeas corpus, articulating the reason for the challenge to the court’s detention.
The materiality test – whether undisclosed evidence would have created a reasonable probability of a different result – applies whether undisclosed evidence was requested specifically, generally, or not at all.
The mere fact that a defendant has been rearrested multiple times on the same charges does not amount to harassment. The defendant must show either harassment or prejudice from the rearrest for the court to grant a writ of habeas corpus, as long as the Commonwealth is still within the statute of limitations for the alleged crime.
It is reversible error to allow the accused to proceed to trial unrepresented without first conducting a thorough on-the-record colloquy to determine whether the accused has knowingly and understandingly made a decision to represent him or herself and also to determine the validity of his or her waiver of the constitutional right to representation by counsel.
Failure by the Commonwealth to identify one of its key witnesses or the statements that witness has given to the police is a violation of Brady that requires the defendant have a new trial.
Evidence is material under Brady if its use in a trial would have created a “reasonable probability” of a different result. “The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A ‘reasonable probability’ of a different result is accordingly shown when the government’s evidentiary suppression ‘undermines confidence in the outcome of the trial.’” Moreover, a defendant is not burdened with showing that the undisclosed evidence would have undercut the legal sufficiency of the prosecution’s evidence but whether “favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”
Arresting a defendant three times over a two year period, imprisoning the defendant for five months, failing to be prepared for five different listings of the preliminary hearing, and then failing to establish a prima facie case when the preliminary hearing was finally ready constitutes harassment as a matter of law and violates a defendant’s due process rights.
Though scheduling a vacation in contravention of a court’s order is a “discourteous and inexcusable affront [by the prosecutor] to the court,” in the absence of prejudice to the defendant, and considering that the court’s authority could have been vindicated by punishing the individual prosecutor, it was an abuse of discretion to punish the public by dismissing the case.
In spite of changes to the Juvenile Act and an increasing trend toward the “criminalization” of the juvenile justice system since McKeiver, juveniles are still not entitled to a trial by jury.
Though juveniles do not have a right to a speedy trial guaranteed by a rule of criminal procedure like an adult, they do have a speedy trial right guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution. However, dismissal for violation of this right requires a showing of prejudice to the child.
A Brady violation occurs when evidence that is “favorable to the accused, either because it is exculpatory, or because it is impeaching,” is “suppressed by the State, either willfully or inadvertently,” and there is a reasonable probability that the undisclosed evidence would have produced a different result.
When a child appears without counsel at any stage of a delinquency proceeding, the court has must inform the child of his or her right to counsel, and his or her right to have court appointed counsel if he or she cannot afford representation.
The trial court possesses some discretion in remedying a discovery violation. But the court must also weigh the societal interest in prosecuting crimes. Therefore, in the absence of “blatant prosecutorial misconduct,” dismissal of the case as a remedy would be an abuse of discretion.
Governmental interference with or intimidation of a witness may deny a defendant due process, as well as the right to compulsory process.
An out-of-court confession by a co-defendant who does not testify may not be used in a joint trial; this violates the defendant’s right to cross-examination secured by the Confrontation Clause of the Sixth Amendment.
The narrative of a rape victim is not admissible as an excited utterance when the statement is given three and one half hours after the incident and after the victim speaks both with her mother and the original investigating officer about the incident. Such circumstances negate the requirement of spontaneity and preclude admission under the excited utterance exception.
The admission of a conversation between a testifying witness and a third party who does not testify at trial is permissible when the words of the third party describe “present observations of the events occurring before him.”
For a statement to be admissible under the medical treatment exception to the hearsay rule, the declarant must have made the statement for the purpose of receiving medical treatment and the statement must have been necessary and proper for diagnosis and treatment. The identity of a person who causes an injury is not necessary for medical diagnosis or treatment and therefore is not admissible.
Intention, or state of mind, is a fact, and speaking or writing is often the way that this fact manifests itself. Because intentions are often unknown other than through spoken or written statements, a declarant’s out-of-court statements demonstrating his or her state of mind, made in a natural manner, are material, relevant, and admissible.
In analyzing a statement to determine whether it meets the “excited utterance” exception to the hearsay rule, “[t]he crucial question, regardless of the time lapse, is whether, at the time the statement is made, the nervous excitement continues to dominate while the reflective processes remain in abeyance.” Hence, when thirty minutes elapse between the end of the startling event and the statement, the statement is elicited eight to ten blocks away from the scene of the startling event, the utterance was in response to an officer’s query and the utterance was a narrative of overnight events, the statement is not a reaction to a single startling episode.
The Sixth Amendment of the U.S. Constitution prevents the admission of testimonial hearsay statements absent the unavailability of the witness and a prior opportunity for cross-examination. Testimonial statements are those that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. They include statements taken by police officers in the course of interrogations.
A statement given in an emergency room to an OCYS worker may be nontestimonial. For example, if the worker is trying to determine whether it is safe for a child to return to his or her home, the statement may be nontestimonial as it is given in response to an ongoing emergency.
The state’s burden to present evidence and the defendant’s right to confront witnesses under the Sixth Amendment and Crawford v. United States, 541 U.S. 36 (2004), is not satisfied by the presentation of laboratory analysts’ certificates or affidavits, but requires the presentation of the testimony of the analysts of those substances, even if the defense could have subpoenaed the analysts.
Testimony regarding a victim’s description of the assailant is not hearsay when it is a prior consistent statement used to rehabilitate a victim who had been impliedly accused of a recent fabrication. However, when such evidence is used for this purpose, the jury should be cautioned to consider this information only for rehabilitative purposes, and not as substantive evidence.
Prior consistent statements, while not admissible merely to buttress or corroborate a witness’s in-court testimony, are admissible to rehabilitate that witness’s credibility and to rebut accusations or suggestions of corrupt motives.
Prior declarations of a witness which are consistent with the witness’s present testimony may be admitted to corroborate his or her testimony at trial if that trial testimony is impugned, expressly or impliedly, as the product of recent fabrication, particularly when improper influence of the witness is implicated.
The prosecution is allowed to introduce prior consistent statements to rebut a charge of corrupt motives in anticipation of an announced defense, rather than waiting until after cross-examination of the witness.
A witness’s prior consistent statements are admissible only if it is alleged that the witness’s present testimony is recently fabricated or a result of corrupt motives. The prior consistent statement must also have been made at a time before the motive to fabricate arose.
Prior consistent statements may be offered to rehabilitate a witness whose credibility has been attacked with a charge of faulty memory.
An conviction in a sex case may be sustained without evidence of a prompt complaint.
A witness’s competency to testify is premised on four factors: (1) the witness’s capacity to observe or perceive the occurrence with a substantial degree of accuracy; (2) the witness’s ability to remember the event which was observed or perceived; (3) the witness’s comprehension of questions and ability to communicate intelligent answers about the occurrence; and (4) the witness’s consciousness of the duty to speak the truth.
The test for competence to stand trial is “whether [the defendant] has sufficient present ability to consult with their lawyer with a reasonable degree of rational understanding – and whether [the defendant] has a rational as well as factual understanding of the proceedings against him.”
While the prosecution must prove every element of every offense beyond a reasonable doubt, certain defenses, like that of insanity or extreme emotional disturbance, do not necessarily negative an element of the offense. Therefore, it is constitutional to shift the burden to the defendant to prove these types of defenses, and the defendant may be burdened with proving the defense beyond a reasonable doubt.
“[W]hen a defendant demonstrates to the trial judge that his [or her] sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.”
Pursuant to 18 Pa. C.S. § 315(a), in order for insanity to constitute a defense, a defendant must prove insanity by a preponderance of the evidence.
A criminal defendant is presumed competent to stand trial and must prove his or her incompetency by a preponderance of the evidence. This applies even in cases where the court has ordered a mental health examination sua sponte.
A consideration for child witnesses is incompetency because of taint. The implantation of false memories or distortion of actual memories through improper and suggestive interview techniques may taint a child witness so severely as to render the witness incompetent to testify. Once some evidence of taint is presented by the party alleging it, the competency hearing must be expanded to explore this specific question. During the hearing the party alleging taint bears the burden of production and the burden of persuasion to show taint by clear and convincing evidence.
A defendant’s Fifth Amendment rights are violated by the admission of psychiatric testimony relaying incriminating statements in a trial where the defendant does not present a defense of diminished capacity. Even if statements had been offered in a previous trial to rebut a defense of diminished capacity in that previous trial, they are not admissible in a later trial where diminished capacity is not at issue.
The competency of a child witness should be judged by the same test as competency of an adult witness. However, “taint” is also a consideration with respect to a child witness. Children sometimes have difficulty in separating fantasy and reality and may wish to give the “right” answer to please the investigator. Therefore, a party who proves taint by clear and convincing evidence can prevent a witness from testifying. The factors to be considered in this inquiry are: (1) the age of the child; (2) the existence of a motive hostile to the defendant on the part of the child’s primary custodian; (3) the possibility that the child’s primary custodian is unusually likely to read abuse into normal interaction; (4) whether the child was subjected to repeated interviews by various adults in positions of authority; (5) whether an interested adult was present during the course of any interviews; and (6) the existence of independent evidence regarding the interview techniques employed.
Consistent with the common law M’Naughten test for legal insanity, 18 Pa. C.S. § 315(b) defines “legally insane” as “laboring under such a defect of reason, from disease of the mind, as not to know” either: (1) the nature and quality of the act; or (2) that the act was wrong.”
A diagnosis of major depression does not qualify the defendant for a defense of insanity or guilty but mentally ill.
The standard of proof for a verdict of “guilty but mentally ill” is a preponderance of the evidence. However, neither side carries this burden – the burden merely “preponderates.”
A conviction of guilty but mentally ill does not expose a defendant to cruel and unusual punishment.
A defendant who stands in a phone booth while two acquaintances rob a neighboring restaurant is not guilty of conspiracy. Nor does glass from the window of the restaurant found next to the phone booth or flight of the robbers toward the phone booth prove conspiracy. Proximity and acquaintance do not establish conspiracy without evidence of concerted acts by the accused.
A defendant who stands next to the person that shoots and kills the victim, and then flees with shooter cannot be found guilty of conspiracy to murder in the absence of any evidence that the defendant had prior knowledge of shooter’s intent. Mere presence at the scene of the crime combined with flight is not enough to establish culpability. Mere presence when the crime occurs, coupled with flight gives rise to no more than a suspicion or conjecture of guilt.
A defendant who sits on a landing in front of an apartment’s locked door without a key cannot be found to have constructively possessed drugs found inside the apartment, in the absence of evidence that the defendant had ever been in the apartment.
When a court finds as a matter of law that the evidence, in the light most favorable to the Commonwealth, is not sufficient to support the verdict, the court should grant a motion for a judgment of acquittal. If this motion is granted after the jury has returned a verdict of guilt, then it is reviewable on appeal, since reinstating the jury verdict does not offend the proscription against double jeopardy.
In ruling on a motion for judgment of acquittal, the trial court views the evidence in the light most favorable to the Commonwealth and determines whether the “quantum” of evidence required to establish all the elements of a crime is present. To grant a judgment of acquittal, the trial court must believe that the evidence is so lacking that a reasonable jury could not enter a verdict of guilt.
A defendant charged with a possessory offense has automatic standing to bring a motion to suppress.
A “seizure” under the meaning of the Fourth Amendment is not effectuated at the time that an officer merely orders a person to stop, but only occurs only after the application of physical force or submission to a show of authority by the police.
[N.B. This does not apply in Pennsylvania – see subsection B in this heading.]
Local ordinances may empower police officers to make an arrest for a curfew violation.
The territorial jurisdiction of housing authority police officers is limited to the borders of the Authority’s property and grounds and the adjoining property. Housing authority police officers employed by municipal housing authorities are not “municipal police officers” and therefore do not have extra-territorial powers under the Municipal Police Jurisdiction Act.
Once a motion to suppress is filed, the burden lies with the Commonwealth to establish, by a preponderance of the evidence, that the evidence sought to be suppressed is admissible.
A nonexhaustive list of factors to consider in weighing whether a seizure has occurred includes: the presence or absence of police excesses; whether there was physical contact; whether police directed the defendant’s movements; police demeanor and manner of expression; the location of the interdiction; the content of the questions and statements; the existence and character of the initial investigative detention, including its degree of coerciveness; the presence of an express admonition to the effect that the defendant is free to depart is a potent, objective factor; and whether the citizen has been informed that he is not required to consent to the search.
The mere filing of a suppression motion does not automatically trigger the Commonwealth’s burden to prove the legality of police action. A complete failure to state with particularity the evidence sought to be suppressed, the grounds for suppression, and the facts and evidence in support thereof will result in waiver. In the situation where specificity is only partly lacking, the Commonwealth need only prove the legality of those things that have been stated with specificity.
“[W]here police officers observe unusual conduct which leads [them] reasonably to conclude in light of [their] experience that criminal activity may be afoot and that the persons with whom [they] are dealing may be armed and presently dangerous, where in the course of investigating this behavior the officer makes their status as a [law enforcement official] known and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel [a] reasonable fear for [the officer’s] own or others’ safety, [the officer] is entitled for [his or her own] protection . . . and [the protection of] others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used in an assault. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.
For a Terry stop to be legitimate, the police must prove that specific conduct of the seized person, as observed by police, justified and made reasonable their belief that criminal activity was afoot and that the seized person was armed and dangerous.
A police officer may rely upon information that is broadcast over a police radio in order to justify an investigatory stop, but the identification information needs to be specific enough to reasonably conclude that the party being stopped is actually the person for whom he or she is searching. An overly general description will not support a Terry stop and frisk in the absence of suspicious behavior observed by the investigating officer, and radio call descriptions are typically not sufficient for reasonable suspicion.
A person who appears to observe a police vehicle, then begins walking quickly away from a group of people on a street corner with a visible bulge on his or her person cannot be subjected to an investigatory detention, as this behavior does not give rise to reasonable suspicion.
A stop and frisk may be supported by a statement of an officer other than the arresting officer that the investigee is wanted for the commission of a crime. However evidence must be offered at the suppression hearing establishing the articulable facts that support the reasonable suspicion. In other words, the suppression court cannot speculate as to whether the officer who conveys the information to the arresting officer had sufficient facts to establish a reasonable suspicion; the officer who gave the information to the arresting officer must testify so that the court can determine whether police had reasonable suspicion to stop and frisk the defendant.
Third party bystanders do not give up their right to be free from unreasonable searches and seizures merely due to their presence at the scene of an arrest.
A warrantless seizure is illegal when the defendant is not engaged in any activity at the time of a stop that would have caused a person of reasonable caution to believe that the defendant was currently engaged in criminal conduct. Leaving a house that is a target of an investigation does not constitute reasonable suspicion. Suspicion that someone was involved in illegal activity at a time and location wholly separate from the police stop provides no basis for a Terry stop.
A police radio broadcast that a person of a particular description is carrying a gun cannot serve as the justification for a search of that person and the seizure of the gun he is carrying when the arresting officer is unable to authenticate the telephone message on which the radio broadcast was based or provide an independent basis for the stop and frisk.
Before the police may undertake a stop and frisk on the basis of an anonymous telephone tip of a man with a gun, the police must establish that they have a reasonable suspicion that the individual is involved in or about to commit a crime. If the tip contains sufficient information, the police can merely corroborate sufficient details of the tip. Otherwise, the police must investigate further by means not constituting a search and seizure. If, as a result, they acquire sufficient information to give rise to a reasonable suspicion that the individual is armed and dangerous, they may then initiate a Terry stop.
Officers have reasonable suspicion to justify the pursuit of a fleeing suspect when they have made past drug arrests in the same area, they observe an attempted hand-off of an unidentified object by the suspect, the suspect appears nervous when officers make a U-turn back toward a group that includes the suspect, and the suspect flees as the officers approach the group.
Where the source of the information given to police officers is unknown, independent corroboration of the essential allegation can give rise to reasonable suspicion justifying a stop and frisk. Information provided by a radio call may not include a range of details or indicate future behavior, but officers may confirm the location and description of a suspect, and then observe suspicious and furtive behavior that, in their experience, is consistent with the dealing of narcotics. Such suspicious conduct in an area associated with criminal activity provides independent corroboration of the essential allegation and, thus, suggests that criminality may have been afoot.
A tip from an anonymous pedestrian that there is “a tall man in the park brandishing a weapon” does not provide a police officer with reasonable suspicion of criminal activity. When the identity and veracity of an informant are unknown, there is no objective basis for an officer to conclude that the information provided by the informant is accurate or reliable. Thus, the officer needs “something more” than the tip itself to effectuate a Terry stop of an individual who might possibly be the subject of the tip. Specifically, independent corroboration of an individual’s involvement in criminal activity is necessary for reasonable suspicion.
An individual’s act of walking away from police officers in a “high crime area” is manifestly insufficient to justify an investigative detention of that individual.
A seizure occurs when a reasonable person would believe that he or she is not free to leave. Police officers act legally in asking for and examining an airline ticket and driver’s license of an airline passenger whose characteristics fit a “drug courier profile.” But – in absence of probable cause – the officers act illegally when they identify themselves as narcotics agents, inform the passenger that they are suspected of transporting narcotics, and ask the passenger to accompany them to police room, while retaining the passenger’s ticket and driver’s license and without indicating in any way that the passenger is free to depart.
A person who has been expressly informed by a police officer that he or she is being “stopped” as part of an investigation into drug activity and who has his or her background checked for prior criminal activity by that officer via police radio would not reasonably feel free to terminate the encounter with the officer and walk away. Thus, such a person is the subject of an investigative detention by the police officer.
Once a traffic stop has ended, an officer’s has no authority to order either driver or occupant from the car. If the officer requests that the occupants exit the vehicle that show of authority may constitute an investigatory detention that must be supported by a renewed showing of reasonable suspicion. Moreover, the observation during a routine traffic stop of head and shoulder movements of the rear seat passenger in a motor vehicle, coupled with the officer’s conclusion that the passenger appears “very, very nervous,” does not provide sufficient basis for the detention and search of the passenger.
The sole justification for a Terry frisk is the protection of the police officer or others nearby. The arresting officer must be able “to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” Good faith on the part of the officer, in itself, is not enough to justify a Terry frisk.
Actual observation of illegal activity among a defendant’s companions, combined with the defendant’s suspicious behavior and the officer’s knowledge that they are in a high crime area known for drug activity can provide reasonable suspicion to justify an investigatory stop. However, the absence of any specific, articulable facts establishing that a defendant was armed and dangerous renders a subsequent frisk unlawful.
No Pennsylvania court has adopted a per se rule allowing the frisk of an arrestee’s companion, or an “automatic companion rule.” An arrestee’s companion may be stopped and frisked when there is reasonable suspicion that the companion is armed and dangerous. It is inherently reasonable for a law enforcement officer to briefly detain and direct the movement of an arrestee’s companion, regardless of whether reasonable suspicion exists that the companion is involved in criminal activity. But in cases involving the frisk of an arrestee’s companion, the sole question is whether the police officer had a reasonable belief that the companion was armed and dangerous.
Frisks must be based on articulable, specific facts that lead an officer to believe that a defendant might be armed or dangerous. An officer’s general statement that the frisk is being performed for safety does not provide a sufficient basis for conducting a frisk incident to an investigatory stop.
To conduct a Terry frisk during the course of a routine traffic stop, an officer must have specific and articulable facts to explain his or her belief that the defendant is armed and dangerous.
Police officers may seize non-threatening contraband detected during a protective patdown (Terry) search, so long as the officers’ search stays within the bounds marked by Terry. Officers are strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby. If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity as contraband immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons. This is not the case when an officer determines that that a lump is contraband only after squeezing, sliding, and otherwise manipulating it.
A zip-lock baggie is not per se contraband nor is it immediately apparent to an officer who feels such a baggie during the course of a lawful Terry frisk that it contains contraband.
When it is not immediately apparent that a soft bulge is contraband, a search of the bulge is outside the scope of Terry and Dickerson. An officer must do more than testify as to a general suspicion that a bulge may have been contraband and offer, as substantiation, that the bulge was soft.
The “immediately apparent” requirement of the plain feel doctrine is not met when an officer conducting a Terry frisk merely feels and recognizes by touch an object that could be used to hold either legal or illegal substances (e.g., a cigar or pill bottle), even when the officer has previously seen others use that object to carry or ingest drugs.
Contraband discarded by a person fleeing a police officer is the fruit of an illegal “seizure” when the officer possessed neither probable cause to arrest the individual nor reasonable suspicion to stop the individual and conduct a Terry frisk. Police pursuit of a suspect is a seizure under the Pennsylvania Constitution, and therefore requires probable cause or reasonable suspicion.
Evidence that was abandoned as a direct and proximate result of an illegal detention by the police should be suppressed. The fact that a defendant may not be attempting to go anywhere at the time he or she is “ordered” to stay in a car does not mean that the defendant is incapable of being seized. There is “no authority that states that a person must be in transit or display a desire to leave a scene in order for that person to be seized.”
A suspect’s unprovoked flight in a high crime area is sufficient to create reasonable suspicion to justify a Terry stop. The appropriate time to consider whether the police have reasonable suspicion is at the point when the seizure of the defendant is effectuated.
A warrantless search will be presumed unreasonable except where the circumstances fit into an established exception, such as a search incident to arrest.
A juvenile probation officer’s warrantless search of a probationer’s bedroom must be supported by a reasonable suspicion that the juvenile possessed contraband or was in violation of the conditions of his or her supervision.
Standardized criteria or established routine must govern the conduct of an inventory search. On the question, for example, of whether a container should be opened during an inventory search, it would be constitutional for there to be a policy that all containers should be opened, and equally valid for the policy to be that no containers should be opened. The search procedures may also allow the officer some discretion, for example, a policy that requires the opening of containers whose contents cannot be determined without opening. However, if a police officer is allowed too much latitude in conducting a search, it raises the danger that inventory searches will be used as a general investigative tool. Where no policy exists at all regulating inventory searches, the Fourth Amendment is violated.
In determining whether a proper inventory search has occurred, the first inquiry is whether the police have lawfully impounded the automobile, i.e., have lawful custody of the automobile. The authority of police to impound vehicles, for purposes of an inventory search, derives from their reasonable community caretaking functions, and such functions include removing disabled or damaged vehicles from the highway, impounding automobiles which violate parking ordinances, thereby jeopardizing public safety and efficient traffic flow, and protecting the community’s safety. While a vehicle may be exposed to danger if it is left legally parked on a public street in a high-crime area, this concern, standing alone, is inadequate to override the defendant’s reasonable expectations of privacy.
The second inquiry is whether the police have conducted a reasonable inventory search. An inventory search is reasonable if it is conducted pursuant to reasonable standard police procedures in good faith and not for the sole purpose of investigation.
“The accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. . . . [F]irst one must consider whether the . . . action was justified at its inception; second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place. Under ordinary circumstances, a search of a student by a teacher or other school official will be ‘justified at its inception’ when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”
Individualized searches of public school students conducted by school officials, including school police officers, are subject to a reasonable suspicion standard under the Pennsylvania Constitution.
[N.B. This is a higher protection than afforded by the federal constitution.]
School officials do not act as agents of the police when they conduct an independent investigation based upon information the officials received from police. School officials do not need reasonable suspicion, supported by specific and articulable facts, before merely detaining and questioning a student about a rumor concerning his or her possession of a gun on school property. Also, school officials need not provide Miranda warnings to a student before questioning the student about conduct that violates the law and/or school rules. However, this rule only is limited to situations where school officials do not act at the behest of law enforcement officers.
Individualized reasonable suspicion is not necessary when the search of a student population affects a limited privacy interest, is minimally intrusive, is preceded by adequate notice, is motivated by a significant policy concern, and is directed towards an immediate need.
A policy requiring all students who participate in competitive extracurricular activities to submit to drug testing is a reasonable means of furthering the school district’s important interest in preventing and deterring drug use among its schoolchildren, and therefore such a policy does not violate the Fourth Amendment.
The warrantless search of an automobile incident to an arrest is limited to the areas and clothing immediately accessible to the person arrested. The purpose of this search is to prevent the arrestee from securing weapons or destroying contraband. When a bag is outside the area of immediate control of the arrestee, it cannot be searched incident to arrest, or searched without a warrant simply because it was seized from an automobile.
rev’d per curiam, 518 U.S. 938 (1996)
aff’d, 690 A.2d 228 (Pa. 1997)
The search of an automobile without a warrant requires both the existence of probable cause and the presence of exigent circumstances.
[N.B. This is a higher protection than afforded by federal constitutional law.]
When police have specific and articulable facts from which they reasonably believe that there exists a great potential for deadly harm, they may conduct a limited search of a vehicle to ensure their safety.
Potential danger to police or the public satisfies the exigency requirement for warrantless vehicle searches in this Commonwealth, but a mere assertion of danger by an officer, without more, is insufficient to prove exigent circumstances.
Police may only search a vehicle incident to arrest when the arrestee is unsecured and within reaching distance of the vehicle at the time of the search, or when they reasonably believe that evidence of the crime for which the suspect was being arrested for may be found in the vehicle.
A warrantless search incident to defendant’s constitutional arrest in a house on a burglary charge is unreasonable if it extends beyond the defendant’s person and area from which he or she might have either obtained a weapon or destroyed something that could have been used as evidence against him or her.
A valid search incident to arrest must meet contemporaneity and proximity tests in relation to the arrest. A search conducted two hours before the arrest, while the police were waiting for the defendant to return home so that they could arrest him, is not valid. Furthermore, search of a bedroom is not incident to an arrest made on the porch.
The person of an individual may be lawfully searched, even without a search warrant, if the search is conducted incident to a lawful arrest. However, for such a search to be valid, it must be substantially contemporaneous with the arrest and confined to the immediate vicinity thereof. Blood alcohol content tests conducted without a warrant thirteen days prior to arrest are not sufficiently contemporaneous with the arrest to be “incident” to the arrest.
When the circumstances do not support the conclusion that a search incident to arrest was necessary to prevent either harm to the arresting officers, the escape of the defendant, or the destruction of evidence, the search does not meet the exception to the warrant requirement. A search incident to arrest is justified by the rationales of ensuring officer safety and preventing the destruction of evidence. These justifications are not present if the burglaries with which the defendant was charged occurred nearly three weeks prior to the arrest and, at the time of the search, the defendant was handcuffed, the searched automobile was locked, and the automobile’s keys were in the possession of the police.
Police must have probable cause to believe that a canine search of a person will produce contraband or evidence of a crime. Reasonable suspicion of criminal activity will not suffice. Once the police have probable cause and a sniff search has been conducted pursuant to that probable cause, before any search beyond a Terry frisk may be conducted, the police must secure a search warrant, though they may detain the suspect for a reasonable time while the warrant is sought.
[N.B. This is a higher protection than afforded by federal constitutional law.]
An unlawful arrest may result in suppression of any evidence recovered in a search incident to that arrest. However, police officers have statutory authority to arrest for misdemeanors committed in their presence.
When the viewing of evidence takes place before any intrusion into a constitutionally protected area, a search has not occurred. However, a warrantless seizure of such evidence cannot be justified by the plain view alone. Thus, “in those cases in which the view precedes an intrusion into a constitutionally protected area the officer must be able to rely upon exigent circumstances . . . or he must obtain a warrant before he seizes the evidence.” Officers lawfully on a defendant’s grounds because of a recreational fire burning in violation of a local ordinance may, for example, observe slot machines in plain view inside a shed. But a seizure of the machines would require either a warrant or justification by way of another exception to the warrant requirement, such as exigent circumstances.
Police may stop a motor vehicle if they reasonably believe that a provision of the Motor Vehicle Code is being violated. The officer then has the right to ask the driver, as well as the passenger to step out of the car. At this point, contraband observed within the car may be lawfully seized if it is in plain view under the Plain View Doctrine.
The Plain View Doctrine permits the warrantless seizure of evidence in plain view when (1) the officer has not violated the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed, (2) the evidence’s incriminating character is “immediately apparent” and (3) the officer has a lawful right of access to the object itself. Although inadvertence is a characteristic of most legitimate plain view seizures, it is not a necessary condition.
When contraband is visible from a lawful vantage point, such as marijuana plants in an open area, without cover, on a defendant’s deck, clearly visible from the neighbor’s yard, and also from the road in front of the neighbor’s house, observation by police is not a search and does not constitute a violation of a defendant’s Fourth Amendment rights.
Factors relevant to demonstrating exigency include: the seriousness of the offense being investigated; whether there was reason to believe that the suspect was armed and was a danger; whether there was probable cause; whether there was reason to believe the suspect was within the premises to be searched; whether the suspect would escape if not caught immediately; whether the evidence sought to be preserved would have been destroyed; when the entry was made; and whether it was made peacefully.
If police discover cocaine in a package addressed to a defendant, then remove the bulk of the cocaine before delivering the package to the defendant, the police cannot claim exigent circumstances because of the possibility that the defendant would discover that cocaine had been removed and destroy the evidence.
Police may not create their own exigencies and then use them as justification for bypassing the warrant requirement. If the exigency arises because of unlawful behavior on the part of the police, such as their stopping someone in the absence of reasonable suspicion, then the exigency that is created does not justify the warrantless search.
When the police are not investigating a crime, but instead are acting based upon a reasonable belief that someone is inside a residence and in need of assistance, they are not creating their own exigency. Their intrusion is justified by the exigency. For example, police are justified in entering a defendant’s home without a warrant based on the urging of family members concerned for the safety of a defendant and his or her spouse.
When exigent circumstances are not the result of illegal activity by the police but flow from a proper Terry stop that unavoidably creates the exigency, the police may execute a search without a warrant.
“In determining whether exigent circumstances exist, a number of factors are to be considered. Among the factors to be considered are: (1) the gravity of the offense, (2) whether the suspect is reasonably believed to be armed, (3) whether there is above and beyond a clear showing of probable cause, (4) whether there is a strong reason to believe that the suspect is within the premises to be searched, (5) whether there is a likelihood that the suspect will escape if not swiftly apprehended, (6) whether the entry was peaceable, and (7) the time of the entry, i.e., whether it was made at night. These factors are to be balanced against one another in determining whether the warrantless intrusion was justified.
Other factors may also be taken into account, such as whether there is hot pursuit of a fleeing felon, a likelihood that evidence will be destroyed if police take the time to obtain a warrant, or a danger to police or other persons inside or outside the dwelling.”
Whether a consent to a search was in fact “voluntary” or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. While the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.
For a consensual search to be deemed valid, the Commonwealth need not show that that the person subject to the search knew that he or she had the right to refuse such consent. Therefore, consent must be voluntary but it need not be knowing or intelligent.
A person with common authority over an area may consent to a police search of the premises; however if another who also has authority is present and objects, there is no valid consent to search.
It is only the probability, and not a prima facie showing, of criminal activity that is the standard for probable cause for a warrantless arrest.
Probable cause is lacking when an officer’s justification for arrest was that the defendant met the general description of the person under suspicion, and that the defendant was present at the same address where the homicide had occurred five days earlier.
“Probable cause exists when criminality is one reasonable inference [from facts known to an officer]; it need not be the only, or even the most likely, inference.” Probable cause must be “based on a common-sense non-technical analysis.”
Mere police observation of a single exchange of an unidentified item or items on a public street corner for cash (which alone does not establish probable cause to arrest) cannot be added to, or melded with the fact of flight (which alone does not establish probable cause to arrest) to constitute probable cause to arrest.
The police do not have probable cause to arrest when they observe a defendant entering a house under surveillance, watch the defendant leave approximately two minutes later, and believe – but are not certain – that they see something in defendant’s hand.
Police training and experience, without more, is not a fact to be added to the quantum of evidence to determine if probable cause exists, but rather a “lens” through which courts view the quantum of evidence observed at the scene. For experience to bear on the probable cause analysis, the officers must demonstrate a nexus between their experience and the search, arrest, or seizure of evidence.
[N.B. See Thompson, immediately below, for additional discussion.]
While “blind reliance” on an officer’s experience will not establish probable cause, experience is relevant to determining whether an officer possessed enough information to justify a search or seizure.
The task of a magistrate issuing a warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
A warrant is not a general investigatory tool. A reviewing court must determine what items there is probable cause to seize, and then assess the items sought in the warrant to determine whether they have been described as specifically as reasonably possible. An officer executing a warrant should have no discretion about what items to seize.
Even when they have a search warrant, police officers must knock, announce their identity and purpose, and then wait a reasonable amount of time for the occupants to respond before entering any private premises. Under the Pennsylvania Constitution, the appropriate remedy for a violation of the knock and announce rule is to exclude the evidence discovered during the execution of the warrant.
A warrant authorizing the search of a building does not authorize the search of either the persons or the property of those who merely happen to be present when the warrant is executed. Police executing a search warrant for drugs at a residence may not perform a pat-down for weapons on anyone merely present on the premises in the absence of reasonable suspicion that the person is armed and dangerous. Mere presence at the premises to be searched does not justify a belief that an individual is armed and dangerous.
A magistrate may not consider any evidence outside the four corners of the affidavit of probable cause when deciding whether to issue a search warrant.
Post-indictment lineups are a critical stage of the prosecution at which the defendant is entitled to counsel. Both defendant and counsel should be notified of an impending lineup, and counsel’s presence is a requisite to conducting the lineup, absent an intelligent waiver of that right by a defendant. When the defendant is deprived of counsel at the lineup, the proper remedy – after first giving the Government the opportunity to establish by clear and convincing evidence that subsequent identifications were obtained by means purged of the primary taint – is to exclude the in-court identification evidence. In other words, although an out-of-court identification may be unlawful or suggestive, a subsequent in-court identification of an accused as the perpetrator may be admitted if it has a basis independent of the tainted identification.
The Sixth Amendment right to counsel includes the right to have counsel present at a pretrial lineup.
An in-court identification will not be suppressed as the fruit of an illegal out-of-court identification if, given the totality of the circumstances, there was an “independent origin” for the identification, such as an opportunity to observe the defendant for one to two hours the morning of the alleged crime.
Following a suggestive pre-trial identification procedure, a witness should not be permitted to make an in-court identification unless the prosecution establishes by clear and convincing evidence that the totality of the circumstances affecting the witness’s identification did not involve a substantial likelihood of misidentification. A consideration of the totality of the circumstances requires a close examination of (1) the suggestive factors involved in the identification process, and (2) whether or not, despite the suggestive factors involved in the process, other factors are present which clearly and convincingly establish that the witness’s identification has an ‘independent origin’ in the witness’s observations at the time of the crime.
Testimony concerning a pre-trial photographic identification must be suppressed when the Commonwealth fails to retain the photographs that were utilized for the photographic line-up, thus making it impossible to review the fairness of the procedure challenged.
An instruction to the finder of fact that the defendant has been denied the opportunity for an objective identification and that a subsequent less reliable identification should be viewed with caution is the proper remedy when a trial court abuses its discretion by denying a timely request for a pre-trial line-up.
An in-court identification following an illegal out-of-court identification is admissible into evidence if, considering the totality of circumstances, it is determined that the in-court identification had a sufficiently distinguishable independent origin so as to be purged of the primary taint.
Placing defendants in a police vehicle for the purpose of transporting them to the scene of the offense for identification purposes without their consent constitutes an arrest, for which probable cause is required. An identification made in this manner may be suppressed as the fruit of an unlawful arrest.
In determining whether the Commonwealth has met its burden of overcoming the suggestiveness of an out-of-court photo array by clear and convincing evidence, the court should consider the totality of the circumstances, including the accuracy of the description prior to the suggestive photo array, the level of certainty in identifying the perpetrator, the witnesses’ attentiveness during the crime, the circumstances under which the witnesses viewed the actual crime, and the lapse of time between the crime and the illegal confrontation.
When the circumstances surrounding a photo identification procedure make the accuracy of the identifications highly suspect, the identifications must be suppressed. Here, four witnesses discussed the photographic display in an effort to select the robber, and the witnesses watched one another make a selection.
“[V]erbal evidence which derives immediately from unlawful entry and unauthorized arrest . . . is no less the ‘fruit’ of official illegality than more common tangible fruits of unwarranted intrusion.” The Fourth Amendment protects against the overhearing of a verbal statement as well as against the more traditional seizure of papers and effects.
“[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he [or she] has a right to remain silent, that any statement he [or she] does make may be used as evidence against him [or her], and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he [or she] indicates in any manner and at any stage of the process that he [or she] wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he [or she] does not wish to be interrogated, the police may not question him [or her]. The mere fact that he [or she] may have answered some questions or volunteered some statements on his [or her] own does not deprive him [or her] of the right to refrain from answering any further inquiries until he [or she] has consulted with an attorney and thereafter consents to be questioned.”
Once the defense establishes an initial illegal act preceding a statement by the arrestee, the Commonwealth has the burden to demonstrate that distinct, independent means elicited the statement, such that the primary taint was purged and was not the basis for the confession.
A statement taken in violation of Miranda and later suppressed may be used to impeach a defendant who testifies at trial. However, a coerced or involuntary statement may not be used for any purpose at trial.
School police officers must Mirandize students before taking a statement. School police are judicially appointed and explicitly authorized to exercise the same powers as municipal police on school property. Moreover, when the officers wear uniforms and badges during an interrogation, and the interrogation ultimately leads to charges by the municipal police, school police officers are “law enforcement officers” within the purview of Miranda.
Whether a suspect is in custody for purposes of Miranda depends on whether the suspect is physically deprived of his or her freedom of action in any significant way or is placed in a situation in which he or she reasonably believes that his or her freedom of action or movement is restricted by such interrogation.
If, during the course of a frisk, a person could reasonably believe that his or her freedom of action is restricted, that person is within the custody of the police officers. Under such circumstances, if an officer asks a question or makes a statement reasonably likely to elicit an incriminating response, it constitutes an interrogation. Prior to such custodial interrogation the officer must advise the person of his or her rights, i.e., provide Miranda warnings.
The inquiry into whether a suspect is “in custody” for Miranda purposes is an objective one; a state court’s failure to consider the suspect’s youth and inexperience when evaluating whether that suspect was in custody does not provide a proper basis for finding that the state court’s decision was an unreasonable application of clearly established law.
If a defendant claims mistreatment by police officers and a hearing is held on the issue of the voluntariness of his or her confession, those officers must testify. Otherwise, a confession can not be satisfactorily shown to have been voluntary.
The voluntary, knowing, and intelligent waiver standard applies to children, and the waiver must be reviewed in the context of the totality of the circumstances. This includes an inquiry into the juvenile’s age, experience, education, background, and intelligence, and into whether he or she has the capacity to understand the warnings, the nature of his or her Fifth Amendment rights, and the consequences of waiving those rights.
There is no rebuttable presumption that a juvenile is incompetent to waive constitutional rights without first having an opportunity to consult with an interested and informed adult. A totality of the circumstances analysis should be applied to determine whether a juvenile’s confession is voluntarily, knowingly, and intelligently given, which must consider factors including the suspect’s age, experience, comprehension, and the presence or absence of an interested adult.
A totality of the circumstances that includes police yelling at a young suspect, threatening the child with placement in a juvenile detention center, and showing the child a jail cell, in combination with a defendant’s young age, lack of experience in the juvenile system, and the absence of an interested adult at the time of appellant’s confession amounts to a coerced, invalid confession.
In circumstances where criminal sanctions can attach based on testimonial admissions from a defendant in a psychiatric evaluation, the defendant must be informed of his or her right to consult with counsel and be advised that any admissions made can be used as evidence against the defendant and can lead to criminal convictions. The statutory suspension of privileged communication between therapists and patients or between spouses in a protective services case does not carry over to criminal proceedings, unless common law and constitutional protections are specifically waived, with appellant’s knowledge of the waiver’s implications.
A suspect who receives and understands the Miranda warnings, and does not invoke his or her Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. A suspect must state that he or she wishes to assert his or her right to remain silent. The police are not required to obtain a waiver of the defendant’s right to remain silent before interrogation.
Traditionally issues of credibility are left to the trial court. However, an appellate court may still overturn a verdict that is based on surmise or conjecture.
A child may not be committed to a placement for an initial period longer than the maximum sentence they could have received as an adult. Placement after a summary shoplifting adjudication, which carries a maximum adult penalty of 90 days in jail, therefore permits the child to be sent to placement based upon the initial disposition but requires a disposition modification hearing at 90 days in order for the court to lawfully extend the amount of time in placement.
A judicial abuse of discretion is more than an error of law. An abuse of discretion by the adjudicatory hearing judge is an erroneous judgment that ignores or misapplies the law, is manifestly unreasonable, or arises from bias, prejudice, ill-will or partiality, as shown by the evidence or the record.
Although the Juvenile Act itself does not afford a right of appeal, the Pennsylvania Constitution does. However, because the Juvenile Act is silent on this topic, juvenile appeals are governed by the same rules of procedure as adult appeals, which means that the appellate court may quash the appeal of a juvenile who is a fugitive.
Failure to raise an issue on the record will constitute a waiver and prevent review by the appellate court. When counsel believes that the record does not accurately reflect the proceedings below, it is essential that counsel follow the Rules of Appellate Procedure and work with the trial court to supplement the record. Stipulations between parties seeking to supplement the record are insufficient to properly place new information before the appellate court.
The Post-Conviction Relief Act is not applicable to juvenile cases. Therefore, a motion for permission to appeal nunc pro tunc is the juvenile’s only means of vindicating his or her right to effective assistance of counsel. Therefore, the trial court cannot limit itself to granting such a motion only when the there is fraud or a breakdown in the courts.
There is a narrow exception to the rule that only final orders are appealable. A non-final order is appealable so long as the order is separable from and collateral to the main cause of action, the right is too important to be denied review, and the question presented will be irreparably lost if the appeal is delayed until the end of the case.
“[The] [a]ppellant has the responsibility to make sure that the record forwarded to an appellate court contains those documents necessary to allow a complete and judicious assessment of the issues raised on appeal. For purposes of appellate review, what is not in the certified record does not exist.” An incomplete record may result in waiver of an issue.
A challenge to the discretionary aspects of a sentence must be raised in a post-sentence motion or by raising the claim during the sentencing proceedings. Each basis for the challenge must be stated with specificity so that the court has an opportunity to reconsider or modify the sentence on these bases. A post-sentence motion alleging that a sentence was unduly severe and an abuse of discretion will not preserve a claim that the court failed to state its reasons for the sentence on the record.
Juvenile dispositions, like adult sentences, may be reviewed for their legality. However, unlike an adult sentence, a juvenile disposition need not be shorter than the statutory maximums prescribed for adult sentences. The Juvenile Act instead places limits on the length of the disposition through jurisdictional constraints, mandatory reviews of a child’s progress, and the directives to form a disposition consistent with the public interest and the treatment, rehabilitation, supervision, and welfare of the child.
The Juvenile Act requires that the court consider public safety as well as the child’s need for care, rehabilitation, and supervision. It is therefore an abuse of discretion for the court to adopt a blanket policy regarding certain types of offenses, such as dismissing as de minimis all cases for possession of a small amount of marijuana.
An appellate court reviewing a claim of a verdict against the weight of the evidence must inquire whether the evidence is so contradictory and unreliable that any conclusions drawn therefrom would be conjecture. An appellate court may also review a trial court’s decision on a motion for a new trial due to a verdict against the weight of the evidence for an abuse of discretion. However, the reviewing court does not rule on the weight of the evidence itself, but on whether the court abused its discretion in refusing to grant the new trial.
There are two kinds of appellate attack on a sentence. The first is an attack on the legality of the sentence, which cannot be waived. The second is an attack on the discretionary aspects of sentencing. The appellate court will not disturb the discretionary aspects of a sentencing unless the trial court has committed an abuse of discretion and the appeal raises a substantial question – that is, the “actions by the sentencing court [are] inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process.”
A juvenile has a right to appeal the order of their final disposition. A juvenile does not have a right to appellate review of an order that merely continues his or her commitment in the same manner and maintains the status quo. However, orders that modify the original dispositional order by adding requirements are subject to review.
The weight of the evidence is an issue determined solely by the finder of fact, who is free to believe all, part, or none of the evidence, and to assess the credibility of the witnesses. Determinations of the effect of inconsistent testimony and improper motive go to the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the jury on issues of credibility.
In juvenile proceedings, the final order from which a direct appeal may be taken is the order of disposition, entered after the juvenile is adjudicated delinquent.
An argument that one witness’s version of events should be believed over another’s version of events is an argument against the weight, and not the sufficiency of the evidence.
The trial court has the inherent power to correct a manifest mistake in its own order, even after it has lost jurisdiction over the case.
An appellate court will not substitute its judgment for that of the finder of fact on issues of credibility.
A challenge to a verdict as against the weight of the evidence must be presented either prior to the disposition hearing or in a post-verdict motion. If it is not, this claim will be waived and will not be cognizable on appeal.
Failure to properly file a Statement of Matters Complained of on Appeal will not result in an automatic waiver of all the issues, but a showing of good cause is still necessary to expand the time for filing a Statement of Errors.
Detention of a juvenile by certain restrictive or coercive measures may be proper if the measures are necessary to insure the appearance of the juvenile at subsequent proceedings. Such measures should be utilized, however, only when the hearing court reasonably determines that there is no other less coercive method to reasonably assure future attendance and places the reasons for this finding on the record.
Unlike an adult, however, a juvenile may be detained by the juvenile court prior to an adjudication of delinquency for reasons other than the necessity of guaranteeing their presence at future proceedings. For example, the juvenile may be detained if he or she: does not have a home with a parent or other responsible party, is in need of protective custody, or is in need of psychiatric help or evaluation. The judge who orders such detention must, however, specifically find that the detention is necessary and must have support for the order in the record developed at the pre-adjudicatory hearing. Additionally, the detention must be tailored to the justification.
The remedy for a violation of the time limits on hearings imposed by the Juvenile Act is for the juvenile to be released from custody, not for the trial court to lose jurisdiction of the case.
“A juvenile held beyond the period of time provided by statute can petition the court for immediate release . . . and if not released, can petition the Superior Court.”
A parolee’s signing of a parole agreement giving the parole officer permission to conduct warrantless searches does not mean that the parole officer can conduct a search at any time and for any reason or that the parolee relinquishes his or her Fourth Amendment right to be free from unreasonable searches. Instead, the parolee’s signature acts as acknowledgement that the parole officer has a right to conduct reasonable searches of the parolee’s residence listed on the parole agreement without a warrant. A search will be deemed reasonable if the totality of the evidence demonstrates: (1) that the parole officer had a reasonable suspicion that the parolee had committed a parole violation, and (2) that the search was reasonably related to the parole officer’s duty.
Minimal due process safeguards are required at hearings on revocation of probation. During a revocation hearing, the court must make a specific finding of good cause for admitting hearsay evidence and thereby not allowing confrontation.
A prompt complaint is not required to sustain a rape conviction. However, a prompt complaint is competent evidence and may be admitted during the prosecution’s case-in-chief to corroborate the allegation of rape.
Pennsylvania’s Rape Shield law must yield to the constitutional right of Confrontation. Therefore, evidence of bias or evidence for an attack on credibility is admissible, notwithstanding the Rape Shield Law, unless the prejudicial effect of that evidence outweighs its probative value.
Consensual sex between two minors under the age of thirteen is not rape or involuntary deviate sexual intercourse. All applicable rape statutes predicated on age were created to prevent sexual acts between an adult and a minor. Furthermore, the legislature found that anyone under the age of thirteen was incapable of consenting to a sexual act and therefore “equally incapable, in any sense, implicating criminal liability, of initiating such conduct.”
Simply being a passenger in a stolen vehicle is not enough to find that the passenger “received” the vehicle, i.e. exercised conscious control or dominion over the vehicle. Furthermore, the fact that the driver decided to flee in the vehicle does not give rise to an inference of guilt on the part of the passenger unless there is some evidence to indicate that the passenger concurred in the judgment to flee.
When a passenger in a stolen vehicle flees for the purpose of avoiding arrest, a fact finder may infer the passenger’s dominion and guilty knowledge necessary to convict.
The mere possession of stolen property is insufficient to permit an inference of guilty knowledge. There must be additional evidence, circumstantial or direct, which would indicate that the defendant knew or had reason to know that the property was stolen. When the defendant cooperates with police, offers a consistent explanation at the scene and at trial for possession of the property, and there are no physical signs indicating the property was stolen, the evidence does not support the inference of guilty knowledge.
In a case of theft by receiving stolen property, if the property received, retained or disposed of is a firearm and the receiver is in the business of buying or selling stolen property then the offense is graded as a second degree felony. If the receiver is not in the business of buying or selling stolen property then it is graded according to the value of the firearm.
When an arrestee does not strike, push or kick an arresting officer but merely struggles to get free, his or her behavior does not constitute resisting arrest.
Flight to escape arrest does not constitute resisting arrest. In order to sustain a conviction for resisting arrest, the Commonwealth must prove that a defendant, intending to prevent a public servant from effecting a lawful arrest, created a substantial risk of bodily injury to the public servant or another, or that the defendant employed a means of resistance which justified or required substantial force to overcome the resistance.
A conviction for resisting arrest cannot stand where the underlying arrest is found to be unlawful. However, even an unlawful arrest does not justify physical resistance to the police, so intentionally causing physical injury to an officer while resisting an unlawful arrest can justify an arrest for the crime of assault.
When a defendant’s assault on a police officer occurs as the result of the officer’s attempt to unlawfully arrest him, that assault would justify a subsequent lawful arrest, and the act of resisting this arrest will support a charge of resisting arrest.
Although an award of restitution lies within the discretion of the court, it should not be speculative or excessive. An adjudicatory court must consider four factors before imposing restitution: (1) the amount of loss suffered by the victim, (2) the fact that defendant’s action caused the injury, (3) the amount awarded does not exceed defendant’s ability to pay, and (4) the type of payment that will best serve the needs of the victim and the capabilities of the defendant.
As to causation, the court must calculate the damages attributable to defendant’s conduct. An award in excess of that amount is improper. To determine the correct amount of restitution, the court must apply a “but-for” analysis, in which the defendant is liable for restitution for all damages which would not have occurred but for his or her criminal conduct or occurred as a direct result of the crime.
In calculating a child’s ability to pay, the court must consider the earning capacity of the child. The following factors are relevant: the child’s mental ability, maturity, and education; work history, if any, the likelihood of future employment and the ability to reasonably meet a restitution obligation as well as the impact of a restitution order on the child’s ability to acquire higher education and thus increase his or her earning capacity.
In determining how the child should make restitution, if the court determines that the child has no present ability to pay restitution, the court may defer imposition of a payment plan until an appropriate time. Another consideration must be the remaining period of jurisdiction to supervise and enforce the order of restitution since jurisdiction in a juvenile case ends at age 21. If there is any unpaid restitution at age 21, a proper court order is required to continue the child’s obligation to make payment.
It is an abuse of discretion for the trial court to impose the mandatory fines on a juvenile in a DUI case without making an inquiry of the juvenile’s ability to pay.
When two statutes directly conflict, such as Theft by Unlawful Taking and Retail Theft, the most specific statute should apply. Retail theft is the most specific offense for theft from a retail establishment and thus when the theft is from a retail establishment, retail theft is the appropriate charge. A defendant who steals $11,000 worth of jewelry from a department store cannot be charged with Theft by Unlawful Taking.
The removal of a steak from a supermarket in the presence of a security guard is theft, not a third-degree-felony robbery. The language of the robbery statute requires “taking from the person of another” as a necessary element of the crime; therefore retail theft cannot become a robbery under that subsection where a guard simply observes the taking from a display.
“Within the confines of the family, it is difficult to attach criminality to the pushing, shoving, slapping, elbowing, hair-pulling, perhaps even punching and kicking that not infrequently occur between siblings or other members of the same family. Altercations between juvenile members of the same family, even when they become less than civil, are usually too trivial to be a target of the Crimes Code. In the absence of a criminal or malicious intent, such intrafamily spats will not support criminal prosecution.” A 16-year-old who uses her elbow to push her 2 year old nephew away from her cannot be prosecuted criminally n the absence of a criminal or malicious intent. So long as there is no malicious intent to abuse or injure the child, acts of corporal punishment are justifiable and not actionable criminally.
The assault section in the Crimes Code was intended to protect and preserve one’s physical well being and was not intended to prevent temporary hurts resulting from trivial contacts which are a customary part of modern day living, which is why the Pennsylvania legislature created the summary offense of harassment. Temporary aches and pains (bruising and slight cuts on the arms) brought about by strenuous, even violent, dancing are an inadequate basis for imposing criminal liability upon a dance partner for assault.
[N.B. In dicta the Superior Court mentioned conduct it also did not believe rose to assault: petty slaps, kicks, and shove, In re Philip A., 400 N.E.2d 358 (N.Y. 1980); a very sore neck, People v. Hargrove, 464 N.Y.S.2d 224 (N.Y. App. Div. 1983); a one centimeter cut above the lip without more, People v. Jimenez, 433 N.E.2d 1270 (N.Y. 1982); or an incidental reference to a blackened eye without any development of its appearance, seriousness, accompanying swelling, or suggestion of pain, People v. McDowell, 270 N.E.2d 716 (N.Y. 1971).]
Simple assault (M3), fight by mutual consent, is not a lesser included offense of simple assault (M2). It is improper, in prosecution for a simple assault (M2), for trial court to sua sponte instruct jury that it could find defendant guilty of lesser degree of simple assault (M3) if jury found that the scuffle was entered into by mutual consent. Simple assault (M3) must be separately charged by the Commonwealth to be considered by the fact-finder.
The Commonwealth must rebut a claim of self-defense beyond a reasonable doubt. The Commonwealth fails to do this if its only evidence is that of a police officer who testifies to the complaining witness’s statement via an excited utterance exception to hearsay. The fact that a trial court does not believe the defendant’s testimony in support of his or her self-defense claim does not excuse the Commonwealth from providing proof to disprove the claim.
The Confrontation Clause does not erect a per se rule barring the admission of prior statements of a declarant who is unable to communicate to the jury at the time of trial. Although such inability might be relevant to whether the earlier hearsay statement possessed particularized guarantees of trustworthiness, a per se rule of exclusion would not only frustrate the truth seeking purpose of the Confrontation Clause, but would also hinder states in their own enlightened development in the law of evidence.
[N.B. This case relied on Confrontation Clause analysis as it existed prior to Crawford. However, it is of use because the court must inquire into the reliability of the statement as part of the statutory requirements for the Tender Years analysis.]
The Tender Years exception, 42 Pa. C.S. § 5985.1, which provides that the hearsay statements of a child sexual abuse victim or witness who is twelve years of age or younger are admissible if the victim is unavailable, must possess particularized guarantees of trustworthiness. The time, content, and circumstances of the statement must provide sufficient indicia of reliability. Reliability can be established using factors that include, but are not limited to: the spontaneity and consistent repetition of the statement(s); the mental state of the declarant; the use of terminology unexpected of a child declarant of similar age; and, the lack of motive to fabricate.
A finding by the court that a child witness is not competent to testify in court because he or she tends to tell adults what they want to hear requires a more searching inquiry into the reliability of any earlier statement by that child witness sought to be admitted through the Tender Years Exception.
The Commonwealth must give notice to the defense if it intends to proceed using a hearsay statement under the Tender Years exception. It is insufficient for the Commonwealth to provide these statements to the defense; they must notify the defense of its intention to use them as evidence as well.
Whether a child is “unavailable” for purposes of the Tender Years exception is not the same as whether a child is “unavailable” in the colloquial sense or in the sense that word is used in the Rules of Evidence. Unavailability for Tender Years purposes requires a finding that the child would suffer serious emotional distress if he or she were required to testify. Therefore, when the court cannot make this determination because of the child’s unavailability in the colloquial sense – for example, the child is deceased – the child cannot be ruled “unavailable” for Tender Years purposes.
Testimonial statements taken under the direction of police and for purposes of investigation and potential prosecution violate a defendant’s Constitutional right to confrontation when used in court. The testimonial nature of the statement is apparent when: a “forensic examiner” is called to interview the child; the police view the interview through one-way glass; the police confer with the examiner; and the examiner prepares questioning as if it were direct examination in court. Such an interview is the functional equivalent of a police interrogation. Statements from such an interview are inherently testimonial because they “are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination.” The situation would lead an objective witness to reasonably believe that the statements would be available for use at a later trial. By contrast, a mother questioning her child about the child’s odd behavior is non-testimonial. A mother questioning her child cannot objectively be viewed as a step toward investigations or trial. Such a characterization ignores the nature of a parent-child relationship.
In any prosecution or adjudication involving a child victim or a child material witness, the court may order that the testimony of the child victim or child material witness be taken under oath or affirmation in a room other than the courtroom and transmitted by a contemporaneous alternative method, including via closed-circuit television. The court must permit the defendant to observe and hear the testimony of the child victim or child material witness. There also must be a showing that testifying in an open forum, in the presence and full view of the finder of fact or in the defendant’s presence will result in the child victim or child material witness suffering serious emotional distress that would substantially impair the witness’s ability to reasonably communicate.
A threat made over the telephone to a police officer stating that “if you don’t want to send anybody down here, I have a .30-30 rifle and I’ll come up there and blow that son of a bitch’s head off” is transitory anger and thus insufficient for terroristic threats. Calling the state police barracks to inform them that a county sheriff had assaulted a family member, then calling back a second time and making such a threat demonstrates a spur-of-the moment threat that resulted from transitory anger only and not amount to a terroristic threat.
A threat made by an obviously inebriated defendant in an agitated, angry state of mind, who tells the police he was going “to kill them, machine gun them, if given a chance” is transitory anger and not a terroristic threat. Even though present ability to inflict harm is not an element of terroristic threats, circumstances such as intoxication and being handcuffed at the time of the statement belie a settled intent to terrorize.
A spur-of-the-moment threat resulting from transitory anger, even if not dignified or noble, is insufficient for terroristic threats. Terroristic threats are proved by: (1) a threat to commit a crime of violence and (2) proof that the threat was communicated with intent to terrorize. The offense does not require that the accused intend to carry out the threat; it does require settled intent to terrorize. The harm sought to be prevented is the psychological distress which follows from an invasion of another’s sense of personal security. Hence, a threat from a defendant that she would get a gun and use it as a response to the complaining witness threatening to hit her children with a car is not a terroristic threat. The threat should not be viewed in a vacuum, but instead in the context of the entire situation. It must be determined whether the threat was a result of a heated verbal exchange or confrontation.
Municipal police have full police power without a warrant, and may arrest or apprehend any child who fails to attend school in compliance with the provisions of 24 P.S. § 13-1341(a), (c). Police have requisite reasonable suspicion that criminal activity is afoot when they observe someone who appears to be of school age on a public street during a time when school is in session.
The apparent age of the juvenile can be sufficient to stop and detain the defendant for a brief period while the police investigate their suspicion of truancy. Disclosure by a juvenile that he or she is supposed to be in school but is not, in conjunction with apparent age, and the fact that the observation is made during the hours of normal school operation are sufficient to warrant an arrest.
Police officers may reasonably rely upon representations made to them and have no affirmative duty to perform on-the-scene investigation. Even if a juvenile is 17 and not of compulsory school age, the fact that he or she represents to the officer that he or she is supposed to be in school will not invalidate the arrest even though the defendant is not technically truant.
If a gun is incapable of firing and the alleged actor does not have under his or her control the means to convert the object into one capable of firing a shot, then it is not a “firearm” for purposes of the Pennsylvania Uniform Firearms Act.