Criminal Law Update Shane Scanlon, Esq. Deputy District Attorney Office of the District Attorney Lackawanna County Andrew J. Jarbola III, Esq. District.

Criminal Law UpdateCriminal Law UpdateShane Scanlon, EsqShane Scanlon, Esq..

Deputy District AttorneyDeputy District Attorney

Office of the District Attorney Lackawanna Office of the District Attorney Lackawanna CountyCounty

Andrew J. Jarbola III, Esq.Andrew J. Jarbola III, Esq.District AttorneyDistrict Attorney

CRIMINAL CRIMINAL PROCEDUREPROCEDURE

Double Jeopardy- PFA ViolationsDouble Jeopardy- PFA Violations

Hill v. Randolph,Hill v. Randolph, 24 A.3d 866 (Pa. Super. 2011) 24 A.3d 866 (Pa. Super. 2011) The Court affirmed the defendant's consecutive jail The Court affirmed the defendant's consecutive jail sentences on two counts indirect criminal contempt sentences on two counts indirect criminal contempt for violating two provisions (entry into the marital for violating two provisions (entry into the marital residence and assault of wife/protected party) of a residence and assault of wife/protected party) of a protection from abuse ("PFA") order. protection from abuse ("PFA") order.

The Court found that a multiple counts of indirect The Court found that a multiple counts of indirect criminal contempt are permitted for multiple criminal contempt are permitted for multiple violations of a single PFA order, even if it is a single violations of a single PFA order, even if it is a single criminal episode. criminal episode.

The Court noted that double jeopardy analysis would The Court noted that double jeopardy analysis would be required if the defendant were subsequently be required if the defendant were subsequently charged/convicted for other criminal offenses related charged/convicted for other criminal offenses related to same conduct.to same conduct.

Custodial Detention - Custodial Custodial Detention - Custodial InterrogationInterrogation

Com, v. Charleston,Com, v. Charleston, 16 A.3d 505 (Pa. Super. 2011) 16 A.3d 505 (Pa. Super. 2011) (rearg. denied 4/14/2011)(rearg. denied 4/14/2011)The Court affirmed the defendant's conviction for The Court affirmed the defendant's conviction for first-degree murder. Addressing the admissibility first-degree murder. Addressing the admissibility of the defendant's statements, the Court ruled that of the defendant's statements, the Court ruled that although questioned by police while sitting in the although questioned by police while sitting in the back of a police car, the defendant was not in back of a police car, the defendant was not in custodial detention until handcuffed. custodial detention until handcuffed.

The Court upheld the admission of the statements The Court upheld the admission of the statements made after Miranda warnings were given even made after Miranda warnings were given even though the interrogation began without Miranda though the interrogation began without Miranda because there was no evidence of police coercion. because there was no evidence of police coercion.

Post-sentence Motion to Post-sentence Motion to Withdraw PleaWithdraw Plea

Com, v. Yeomans,Com, v. Yeomans, 24 A.3d 1044 (Pa. 24 A.3d 1044 (Pa. Super. 2011) The Court affirmed the Super. 2011) The Court affirmed the denial of the defendant's post-denial of the defendant's post-sentence motions. sentence motions.

The Court upheld the denial of his The Court upheld the denial of his motion to withdraw his guilty plea motion to withdraw his guilty plea because he acknowledged the facts because he acknowledged the facts leading to the criminal charges against leading to the criminal charges against him at the time of his guilty plea.him at the time of his guilty plea.

Confrontation Clause Confrontation Clause - - Calibration Logs Calibration Logs

for a Breathalyzerfor a Breathalyzer Com, v. DyarmanCom, v. Dyarman.._ A3d. _ (Pa. Super. _ A3d. _ (Pa. Super.

11/16/2011) The Court affirmed the 11/16/2011) The Court affirmed the defendant's DUI conviction and rejected his defendant's DUI conviction and rejected his confrontation clause challenge to a confrontation clause challenge to a breathalyzer's calibration logs. breathalyzer's calibration logs.

Distinguishing the holding in Distinguishing the holding in Com, v. Com, v. Barton-MartinBarton-Martin. 5 A.3d 363 (Pa. Super. . 5 A.3d 363 (Pa. Super. 2010), the Court held that the calibration 2010), the Court held that the calibration logs were not testimonial evidence under logs were not testimonial evidence under Melendez-DiazMelendez-Diaz. and thus were admissible . and thus were admissible (as business records under the hearsay (as business records under the hearsay rules or under 75Pa.C.S. § 1547).rules or under 75Pa.C.S. § 1547).

CRIMINAL OFFENSESCRIMINAL OFFENSES

Cruelty to Animals -18 Pa. C.S. § Cruelty to Animals -18 Pa. C.S. § 5511(a)(2.1)(i)(A)5511(a)(2.1)(i)(A)

Com, v. CrawfordCom, v. Crawford. 24 A.3d 396 (Pa. . 24 A.3d 396 (Pa. Super. 2011) The Court affirmed the Super. 2011) The Court affirmed the defendant's conviction for cruelty to defendant's conviction for cruelty to animals for her efforts to create animals for her efforts to create "gothic" kittens. Describing the "gothic" kittens. Describing the detailed expert testimony on the cruel detailed expert testimony on the cruel effects of piercing kittens' ears and effects of piercing kittens' ears and docking their tails, the Court found docking their tails, the Court found sufficient evidence to convict and sufficient evidence to convict and rejected her constitutional vagueness rejected her constitutional vagueness argument.argument.

Robbery - Retail TheftRobbery - Retail Theft

Com, v. HansleyCom, v. Hansley. . 24 A.3d 410 (Pa. Super. 24 A.3d 410 (Pa. Super. 2011) The Court affirmed the defendant's 2011) The Court affirmed the defendant's conviction for first-degree robbery where he conviction for first-degree robbery where he was confronted by loss prevention was confronted by loss prevention associates for stealing DVD's, struggled associates for stealing DVD's, struggled with them, and then pulled a knife on them. with them, and then pulled a knife on them.

These facts were sufficient to show that in These facts were sufficient to show that in the course of committing a theft, he the course of committing a theft, he threatened another with or intentionally put threatened another with or intentionally put him in fear of immediate serious bodily him in fear of immediate serious bodily injury. See 18 Pa.C.S. § 3701(a)(1)(h).injury. See 18 Pa.C.S. § 3701(a)(1)(h).

Fleeing & Eluding Police - 75 Pa. Fleeing & Eluding Police - 75 Pa. C.S. § 3733(a.2)(2)(iii) C.S. § 3733(a.2)(2)(iii) - - High High

Speed ChaseSpeed Chase In the Interest of; R.C.Y..In the Interest of; R.C.Y.. 27 A.3d 227 (Pa. 27 A.3d 227 (Pa.

Super. 2011) (rearg. Den. 9/16/11) The Court Super. 2011) (rearg. Den. 9/16/11) The Court affirmed the juvenile defendant's affirmed the juvenile defendant's adjudication of delinquency for violating 75 adjudication of delinquency for violating 75 Pa.C.S. §3733(a.2)(2)(iii) (fleeing and eluding Pa.C.S. §3733(a.2)(2)(iii) (fleeing and eluding police by engaging in a "high-speed chase"), police by engaging in a "high-speed chase"), even though he did not exceed 35 mph. even though he did not exceed 35 mph.

Rejecting literal statutory construction, the Rejecting literal statutory construction, the Court found that the term "high-speed chase" Court found that the term "high-speed chase" includes any chase which creates includes any chase which creates "extraordinary danger to the public at large "extraordinary danger to the public at large or to police officers."or to police officers."

Third Degree Murder - MaliceThird Degree Murder - Malice

Com, v. DevineCom, v. Devine. . 26 A.3d 1139 (Pa. 26 A.3d 1139 (Pa. Super. 2011) The Court affirmed the Super. 2011) The Court affirmed the defendant's conviction for third defendant's conviction for third degree murder and other charges. degree murder and other charges. The Court found sufficient evidence The Court found sufficient evidence to convict where the defendant had to convict where the defendant had "initiated a gun battle in the midst of "initiated a gun battle in the midst of numerous innocent bystanders."numerous innocent bystanders."

DUI- Prior Offenses in Other DUI- Prior Offenses in Other JurisdictionsJurisdictions

Com, Com, v. v. PomboPombo. . 26 A.3d 1155 (Pa. Super. 26 A.3d 1155 (Pa. Super. 2011) The Court vacated the defendant's 2011) The Court vacated the defendant's sentence as illegal for failure to consider a sentence as illegal for failure to consider a prior "driving while ability impaired" prior "driving while ability impaired" conviction in New York as a prior offense for conviction in New York as a prior offense for sentencing purposes. sentencing purposes.

Noting the 2008 changes to the DUI statutes Noting the 2008 changes to the DUI statutes which changed the "equivalency" test to a which changed the "equivalency" test to a "substantially similar" test, the Court found "substantially similar" test, the Court found that the NY statute was substantially similar that the NY statute was substantially similar to the PA statute.to the PA statute.

Robbery of a Motor Vehicle -18 Robbery of a Motor Vehicle -18 Pa. C.S. § 3 702(a)Pa. C.S. § 3 702(a)

Com, Com, v. v. Bonner.Bonner. 27 A.3d255 (Pa. Super. 27 A.3d255 (Pa. Super. 8/17/2011) The Court affirmed the defendant's 8/17/2011) The Court affirmed the defendant's conviction for robbery of a motor vehicle conviction for robbery of a motor vehicle where the defendant had taken the keys from where the defendant had taken the keys from the victim at knifepoint inside her home. the victim at knifepoint inside her home.

The Court ruled that the evidence was The Court ruled that the evidence was sufficient to find that the defendant deprived sufficient to find that the defendant deprived the victim of the car while in the victim's the victim of the car while in the victim's presence, even though she remained inside presence, even though she remained inside the home after relinquishing the keys.the home after relinquishing the keys.

Dog Law - Failure to Confine Dog Law - Failure to Confine One's DogOne's Dog

Com, v. RabanCom, v. Raban. . 31 A.3d 699 (Pa. 31 A.3d 699 (Pa. Super. 10/05/2011) (rearg denied Super. 10/05/2011) (rearg denied 12/12/2011)12/12/2011)The Court affirmed the defendant's The Court affirmed the defendant's conviction under the Dog Law, ruling conviction under the Dog Law, ruling that section 305(a)(1)(failing to that section 305(a)(1)(failing to confine one's dog) does not contain a confine one's dog) does not contain a mens rea requirement.mens rea requirement.

EVIDENCEEVIDENCE

Non-testimonial Hearsay under Crawford-Non-testimonial Hearsay under Crawford-Authentication of VideoAuthentication of Video

Com, v. McKellickCom, v. McKellick. . 24 A.3d 982 (Pa. Super. 24 A.3d 982 (Pa. Super. 2011) The Court affirmed the defendant's 2011) The Court affirmed the defendant's sentence for DUI where the arresting officer sentence for DUI where the arresting officer (State Trooper Joshua Miller) died in the line (State Trooper Joshua Miller) died in the line of duty prior to the trial. of duty prior to the trial.

The Court ruled that the video of the traffic The Court ruled that the video of the traffic stop was admissible non-testimonial hearsay stop was admissible non-testimonial hearsay and that it was sufficiently authenticated by and that it was sufficiently authenticated by other officers. other officers.

The video, the testimony of medical The video, the testimony of medical personnel, and the BAC were sufficient to personnel, and the BAC were sufficient to convict despite the absence of the arresting convict despite the absence of the arresting officer.officer.

Destruction of EvidenceDestruction of Evidence

Com, Com, v. v. AllenAllen. . 24 A.3d 1058 (Pa. Super. 2011) 24 A.3d 1058 (Pa. Super. 2011) The Court affirmed the defendant's sentence for The Court affirmed the defendant's sentence for DUI, Involuntary Manslaughter, and related DUI, Involuntary Manslaughter, and related charges. The Court upheld the admissibility of the charges. The Court upheld the admissibility of the BAC despite the blood sample being destroyed by BAC despite the blood sample being destroyed by the hospital in accord with its standard the hospital in accord with its standard procedures before it could be independently procedures before it could be independently tested.tested.

The defendant failed to show that it would be The defendant failed to show that it would be materially exculpatory or that its destruction was materially exculpatory or that its destruction was due to bad faith by the Commonwealth. See due to bad faith by the Commonwealth. See Com, Com, v. Snvderv. Snvder. 963 A.2d 396 (Pa. 2009).. 963 A.2d 396 (Pa. 2009).

Photographs of Murder Victim, Prior Bad Acts - Photographs of Murder Victim, Prior Bad Acts - Arguments between Victim and DefendantArguments between Victim and Defendant

Com, Com, v. v. Funk,Funk, 29 A.3d 28 (Pa. Super. 08/26/2011) 29 A.3d 28 (Pa. Super. 08/26/2011) (en banc) The Court affirmed the defendant's first (en banc) The Court affirmed the defendant's first degree murder conviction. The Court ruled that degree murder conviction. The Court ruled that photographs of the victim's body were properly photographs of the victim's body were properly admitted where the bruises and puncture wounds admitted where the bruises and puncture wounds demonstrated a specific intent to kill. demonstrated a specific intent to kill.

Further, the evidence of blood splatter in the Further, the evidence of blood splatter in the photographs contradicted the defendant's version photographs contradicted the defendant's version of events. of events.

The Court also ruled that evidence that police had The Court also ruled that evidence that police had been called to the victim's residence on prior been called to the victim's residence on prior occasions because of fights with the defendant occasions because of fights with the defendant was properly admitted.was properly admitted.

AlibiAlibi

Com, v. SileoCom, v. Sileo. . 32 A.3d 753 (Pa. Super. 32 A.3d 753 (Pa. Super. 09/01/2011) The Court affirmed the denial of 09/01/2011) The Court affirmed the denial of the defendant's PCRA petition seeking relief the defendant's PCRA petition seeking relief from his first-degree murder conviction. from his first-degree murder conviction.

The Court ruled that the defendant was not The Court ruled that the defendant was not prejudiced by trial counsel's failure to request prejudiced by trial counsel's failure to request an alibi jury instruction. an alibi jury instruction.

The Court found that alibi evidence was not The Court found that alibi evidence was not presented where the defendant, by his own presented where the defendant, by his own admission, was alone across the street from admission, was alone across the street from the murder scene during the time of the the murder scene during the time of the killing.killing.

Competency Competency - - Young WitnessesYoung Witnesses

Com, v. Pena.Com, v. Pena._ A.3d__(Pa. Super. 10/31/2011) The _ A.3d__(Pa. Super. 10/31/2011) The Court reversed a trial court's order precluding two Court reversed a trial court's order precluding two juvenile sexual assault victims (ages fourteen and juvenile sexual assault victims (ages fourteen and fifteen) from testifying following a "taint" hearing fifteen) from testifying following a "taint" hearing pursuant to pursuant to Com, v. DelbridgeCom, v. Delbridge. 855 A.2d 27 (Pa. . 855 A.2d 27 (Pa. 2003). 2003).

The Court found that The Court found that DelbridgeDelbridge was intended to was intended to apply only for young children, and that the witnesses apply only for young children, and that the witnesses here (a fourteen- and a fifteen-year-old) were here (a fourteen- and a fifteen-year-old) were entitled to the standard presumption of competence. entitled to the standard presumption of competence.

The concerns raised by the defendant were The concerns raised by the defendant were credibility issues to be considered by the fact-finder, credibility issues to be considered by the fact-finder, not legal issues to be determined by the trial court.not legal issues to be determined by the trial court.

SEARCH & SEIZURESEARCH & SEIZURE Warrantless Seizures — Limited Auto Warrantless Seizures — Limited Auto

Exception Search & Seizure - Search Warrants Exception Search & Seizure - Search Warrants - - Staleness ChallengesStaleness Challenges

Com, Com, v. v. GriffinGriffin, , 24 A.3d 1037 (Pa. Super. 2011) 24 A.3d 1037 (Pa. Super. 2011) The Court affirmed the denial of the defendant's The Court affirmed the denial of the defendant's motion to suppress evidence found in his vehicle motion to suppress evidence found in his vehicle following his arrest for impersonating an officer. The following his arrest for impersonating an officer. The Court ruled that Pennsylvania's limited auto Court ruled that Pennsylvania's limited auto exception to the warrant requirement permitted the exception to the warrant requirement permitted the defendant's vehicle to be seized and impounded defendant's vehicle to be seized and impounded pending application of a search warrant. The Court pending application of a search warrant. The Court also ruled that the facts contained within the four also ruled that the facts contained within the four corners of the affidavit of probable cause submitted corners of the affidavit of probable cause submitted with the search warrant application were not with the search warrant application were not impermissible stale as they occurred within a week impermissible stale as they occurred within a week prior to the application.prior to the application.

Warrantless Arrest Warrantless Arrest

Com, Com, v. Galendez,v. Galendez, 27 A.3d 1042 (Pa. 27 A.3d 1042 (Pa. Super. 08/24/2011) The Court affirmed the Super. 08/24/2011) The Court affirmed the denial of the defendant's motion to denial of the defendant's motion to suppress the a gun found on him after his suppress the a gun found on him after his warrantless arrest, where the officer had warrantless arrest, where the officer had prior knowledge of the defendant, knew he prior knowledge of the defendant, knew he was wanted on an outstanding scofflaw was wanted on an outstanding scofflaw warrant, and knew he was wanted for warrant, and knew he was wanted for questioning about questioning about a a carjacking.carjacking.

Requests for Identification Requests for Identification - - Passenger in VehiclePassenger in Vehicle

Com, v. DurrCom, v. Durr. . 32 A.3d 781 (Pa. Super. 32 A.3d 781 (Pa. Super. 10/12/2011) The Court reversed the trial 10/12/2011) The Court reversed the trial court's ruling that a police officer's court's ruling that a police officer's questioning of the defendant, a passenger in questioning of the defendant, a passenger in a vehicle, regarding his identity was a vehicle, regarding his identity was unconstitutional.unconstitutional.

The Court noted that while a request for The Court noted that while a request for identification is constitutionally permissible, it identification is constitutionally permissible, it was deciding the issue whether the was deciding the issue whether the passenger has the right to not respond to passenger has the right to not respond to such a request.such a request.

Probable Cause - InformantsProbable Cause - Informants

Com, v. Goldsborough.Com, v. Goldsborough._ A.3d_(Pa. _ A.3d_(Pa. Super. 10/28/2011) The Court Super. 10/28/2011) The Court reversed the granting of the reversed the granting of the defendant's motion to suppress defendant's motion to suppress where police observations where police observations corroborated information provided by corroborated information provided by known, reliable confidential known, reliable confidential informants.informants.

Warrantless Searches Warrantless Searches - - ParoleesParolees

Com, v. ColonCom, v. Colon._ A.3d_(Pa. Super. ._ A.3d_(Pa. Super. 10/28/2011) The Court affirmed the denial of 10/28/2011) The Court affirmed the denial of the defendant's motion to suppress where a the defendant's motion to suppress where a parole agent found contraband on the parole agent found contraband on the defendant/parolee's person and in his defendant/parolee's person and in his vehicle. vehicle.

The Court found the searches justified based The Court found the searches justified based on the parole agent's reasonable suspicion on the parole agent's reasonable suspicion that he was in violation of parole conditions that he was in violation of parole conditions (namely, not residing at an approved (namely, not residing at an approved residence and possessing contraband). See residence and possessing contraband). See 61 Pa.C.S. § 6153 (relating to searches and 61 Pa.C.S. § 6153 (relating to searches and seizures involving parolees).seizures involving parolees).

Search Warrants Search Warrants - - Specificity Specificity Requirement Applied to PersonsRequirement Applied to Persons

Com, Com, v. Johnsonv. Johnson. _ A3d. _ (Pa. Super. . _ A3d. _ (Pa. Super. 11/29/2011)11/29/2011)Pa. Super. Pa. Super. The Court affirmed The Court affirmed the defendant's convictions for drug-related the defendant's convictions for drug-related offenses. The Court held that the specificity offenses. The Court held that the specificity requirement for search warrants applies to requirement for search warrants applies to descriptions of persons to be searched as descriptions of persons to be searched as well as places. well as places.

The Court found that the warrant at issue The Court found that the warrant at issue included a sufficient description of the included a sufficient description of the defendant to justify his search pursuant to defendant to justify his search pursuant to the warrant.the warrant.

Voluntary AbandonmentVoluntary Abandonment

Com, v. TaylorCom, v. Taylor._ A3d. _ (Pa. Super. ._ A3d. _ (Pa. Super. 12/14/2011) The Court affirmed the 12/14/2011) The Court affirmed the denial of the defendant's suppression denial of the defendant's suppression motion where he voluntarily motion where he voluntarily abandoned a potato chip bag used to abandoned a potato chip bag used to hold drugs when he saw police hold drugs when he saw police watching him from a passing vehicle. watching him from a passing vehicle.

SENTENCINGSENTENCING

Pre-sentence Withdrawal of Plea Pre-sentence Withdrawal of Plea - - Second or Subsequent MotionsSecond or Subsequent Motions

Com, Com, v. v. WalkerWalker. . 26 A.3d 525 (Pa. Super. 2011) The Court 26 A.3d 525 (Pa. Super. 2011) The Court affirmed the denial of the defendant's presentence motion affirmed the denial of the defendant's presentence motion to withdraw his plea of guilty but mentally ill. The to withdraw his plea of guilty but mentally ill. The defendant had withdrawn his plea once already, and the defendant had withdrawn his plea once already, and the Court ruled that an assertion of innocence does not Court ruled that an assertion of innocence does not constitute a "fair and just reason" to withdraw a second or constitute a "fair and just reason" to withdraw a second or subsequent plea to the same charges. See subsequent plea to the same charges. See Com, v. Iselelv.Com, v. Iselelv. 615 A.2d 408 (Pa. Super. 1992).615 A.2d 408 (Pa. Super. 1992).

Because the defendant was represented by counsel in his Because the defendant was represented by counsel in his appeals, the Court refused to consider the defendant's pro appeals, the Court refused to consider the defendant's pro se filings citing ineffective assistance of appellate counsel, se filings citing ineffective assistance of appellate counsel, citing the recent Pennsylvania Supreme Court decision in citing the recent Pennsylvania Supreme Court decision in Com, v. Jette.Com, v. Jette. 2011 WL 2464780 (Pa. Jun. 2011) (forcing 2011 WL 2464780 (Pa. Jun. 2011) (forcing litigants to choose between a counseled appeal or self-litigants to choose between a counseled appeal or self-representation, and rejecting the procedures set forth in representation, and rejecting the procedures set forth in Com, v. BattleCom, v. Battle. 879 A.2d 266 (Pa. Super. 2005)). . 879 A.2d 266 (Pa. Super. 2005)).

Probation & Parole - Probation & Parole - "Constructive Probation ""Constructive Probation "

Com, v. AllshouseCom, v. Allshouse.._ A.3d_(Pa. Super. 09/01/2011) _ A.3d_(Pa. Super. 09/01/2011) The Court affirmed the revocation of the The Court affirmed the revocation of the defendant's probation in Clearfield County. The defendant's probation in Clearfield County. The Court ruled the Department of Corrections properly Court ruled the Department of Corrections properly aggregated the defendant's Clearfield County aggregated the defendant's Clearfield County sentence with a consecutive sentence from sentence with a consecutive sentence from Jefferson County, and that his probation sentence Jefferson County, and that his probation sentence began upon his release from state prison at the began upon his release from state prison at the expiration of the aggregated maximum. expiration of the aggregated maximum.

In this case of first impression, the Court rejected In this case of first impression, the Court rejected the defendant's claim of "constructive probation" the defendant's claim of "constructive probation" and held that a term of probation and a term of and held that a term of probation and a term of state incarceration cannot be served state incarceration cannot be served simultaneously.simultaneously.

Probation & Parole Probation & Parole - - Adjusting Adjusting Maximum Dates for AbscondersMaximum Dates for Absconders

Com v. StaffordCom v. Stafford, 29 A.3d 800 (Pa. , 29 A.3d 800 (Pa. Super. 09/26/2011 The Court reversed Super. 09/26/2011 The Court reversed the order granting the defendant's the order granting the defendant's habeas corpus motion and remanded habeas corpus motion and remanded for further proceedings. The Court ruled for further proceedings. The Court ruled that an absconder from house arrest is that an absconder from house arrest is not entitled to credit for his sentence not entitled to credit for his sentence running for the period he was not under running for the period he was not under supervision and that the maximum supervision and that the maximum date should have been date should have been recomputed/adjusted.recomputed/adjusted.

Unreasonableness Review Unreasonableness Review - - Below Below Standard Range SentencesStandard Range Sentences

Com, Com, v. v. DanielDaniel. . 30 A.3d494 (Pa. 30 A.3d494 (Pa. Super. 10/11/2011) The Court Super. 10/11/2011) The Court reversed the defendant's sentence reversed the defendant's sentence for nearly killing an unarmed man by for nearly killing an unarmed man by stabbing him in the stomach. stabbing him in the stomach.

Citing the sentencing factors in 42 Citing the sentencing factors in 42 Pa.C.S. § 9781(d), the Court found Pa.C.S. § 9781(d), the Court found the sentence, which was well below the sentence, which was well below the minimum standard range, the minimum standard range, unreasonably lenient.unreasonably lenient.

Sentencing - Merger - Robbery by Threat Sentencing - Merger - Robbery by Threat of SBI & Robbery of a Motor Vehicleof SBI & Robbery of a Motor Vehicle

Com, Com, v. Wadev. Wade._ A3d. _ (Pa. Super. ._ A3d. _ (Pa. Super. 11/18/2011) The Court affirmed the 11/18/2011) The Court affirmed the defendant's conviction for robbery defendant's conviction for robbery and related offenses. The Court and related offenses. The Court rejected a constitutional challenge to rejected a constitutional challenge to the merger statute and found that the merger statute and found that robbery by threat of serious bodily robbery by threat of serious bodily injury and robbery of a motor vehicle injury and robbery of a motor vehicle do not merge.do not merge.

Sentencing EnhancementsSentencing Enhancements

Com, Com, v. Stokesv. Stokes. _ A3d. _ (Pa. Super. 12/01/2011) The Court . _ A3d. _ (Pa. Super. 12/01/2011) The Court affirmed the defendant's sentences for conspiracy to commit affirmed the defendant's sentences for conspiracy to commit murder and aggravated assault (and related offenses) where murder and aggravated assault (and related offenses) where the defendant was acquitted on charges (e.g., murder, the defendant was acquitted on charges (e.g., murder, firearms and PIC) indicating that the jury did not believe he firearms and PIC) indicating that the jury did not believe he was the shooter.was the shooter.

The Court held that a sentencing court must consider but is The Court held that a sentencing court must consider but is not bound by a jury's acquittal in determining whether a not bound by a jury's acquittal in determining whether a defendant possessed or used a firearm under Pa.C.S. § 9712 defendant possessed or used a firearm under Pa.C.S. § 9712 or whether the deadly weapon used sentencing guidelines or whether the deadly weapon used sentencing guidelines enhancement applied. enhancement applied.

The Court found that Sixth Amendment concerns under The Court found that Sixth Amendment concerns under Apprendi Apprendi were not triggered where facts determined at were not triggered where facts determined at sentencing did not raise the defendant's exposure beyond sentencing did not raise the defendant's exposure beyond the statutory maximum.the statutory maximum.

APPEALSAPPEALS

PCRA - Prejudice due to DelayPCRA - Prejudice due to Delay

Com, v. WeatherillCom, v. Weatherill. . 24 A.3d435 (Pa. Super. 24 A.3d435 (Pa. Super. 2011) The Court affirmed the dismissal of his 2011) The Court affirmed the dismissal of his PCRA petition due to the prejudice to the PCRA petition due to the prejudice to the Commonwealth: twenty years had passed since Commonwealth: twenty years had passed since the crime rendering most Commonwealth the crime rendering most Commonwealth witnesses unavailable, the first responder had witnesses unavailable, the first responder had died, crucial documents gone missing, the died, crucial documents gone missing, the defendant had allowed his PCRA petition to defendant had allowed his PCRA petition to languish for years without being addressed, and languish for years without being addressed, and the defendant refused not to present a novel the defendant refused not to present a novel defense. See defense. See Com, v. RencheskiCom, v. Rencheski. 988 A.2d 699 . 988 A.2d 699 (Pa. Super. 2010).(Pa. Super. 2010).

SORNASORNA

Sex Offender Registration and Sex Offender Registration and Notification ActNotification Act

42 Pa. C.S. § 9799.14, effective 42 Pa. C.S. § 9799.14, effective 12/20/201212/20/2012

15 YEAR 15 YEAR

Unlawful RestraintUnlawful Restraint18 Pa. C.S. § 2902(b)18 Pa. C.S. § 2902(b)(minor complainant, offender (minor complainant, offender notparent/guardian)notparent/guardian)

False ImprisonmentFalse Imprisonment18 Pa. C.S. § 18 Pa. C.S. § 2903(b)(minor complainant, offender 2903(b)(minor complainant, offender notparent/guardian)notparent/guardian)

Interference with Custody of Interference with Custody of ChildrenChildren18 Pa. C.S. §290418 Pa. C.S. §2904

Luring Child Into a Motor VehicleLuring Child Into a Motor Vehicle18 18 Pa. C.S. §2910Pa. C.S. §2910

15 YEAR15 YEAR

Institutional Sexual AssaultInstitutional Sexual Assault18 Pa. C.S. 18 Pa. C.S. § 3124.2(a)§ 3124.2(a)

Indecent AssaultIndecent Assault18 Pa. C.S. § 3126(a)(1) 18 Pa. C.S. § 3126(a)(1) (without consent)(without consent)

Corruption of MinorsCorruption of Minors18 Pa. C.S. § 18 Pa. C.S. § 6301(a)(1)(h)(committing or inducing 6301(a)(1)(h)(committing or inducing sexualoffenses)sexualoffenses)

Sexual Abuse of ChildrenSexual Abuse of Children18 Pa. C.S. 18 Pa. C.S. §6312(d) (child pornography)§6312(d) (child pornography)

Invasion of PrivacyInvasion of Privacy18 Pa. C.S. §7507.118 Pa. C.S. §7507.1

25 YEAR25 YEAR

Statutory Sexual AssaultStatutory Sexual Assault18 Pa. C.S. 18 Pa. C.S. §3122.1(a)(2)(at least 8 but less than §3122.1(a)(2)(at least 8 but less than 11 years older than complainant)11 years older than complainant)

Institutional Sexual AssaultInstitutional Sexual Assault18 Pa. 18 Pa. C.S. §§3124.2(a.2-a.3)C.S. §§3124.2(a.2-a.3)

Indecent AssaultIndecent Assault18Pa.C.S.§§3126(a)18Pa.C.S.§§3126(a)(2-6,8)(2-6,8)

Promoting Prostitution of a Promoting Prostitution of a MinorMinor18 Pa. C.S. §5902(b.l)18 Pa. C.S. §5902(b.l)

25 YEAR25 YEAR

Obscene MaterialsObscene Materials18 Pa. C.S. §§ 18 Pa. C.S. §§ 5903(a)(3)(h); (4)(ii);(5)(ii); (6)(minor 5903(a)(3)(h); (4)(ii);(5)(ii); (6)(minor complainant)complainant)

Sexual Abuse of ChildrenSexual Abuse of Children18 Pa. 18 Pa. C.S. §§ 6312(b),(c)C.S. §§ 6312(b),(c)

Unlawful Contact With MinorUnlawful Contact With Minor18 18 Pa. C.S. §6318Pa. C.S. §6318

Sexual Exploitation of ChildrenSexual Exploitation of Children18 18 Pa. C.S. §6320Pa. C.S. §6320

LIFELIFE

KidnappingKidnapping18 Pa. C.S. §2901 (a. 1) 18 Pa. C.S. §2901 (a. 1) (kidnapping of a minor)(kidnapping of a minor)

RapeRape18 Pa. C.S. §312118 Pa. C.S. §3121 Statutory Sexual AssaultStatutory Sexual Assault18 Pa. 18 Pa.

C.S. § 3122.1(b)(11 or more years C.S. § 3122.1(b)(11 or more years older than complainant)older than complainant)

IDSIIDSI18 Pa. C.S. §312318 Pa. C.S. §3123

LIFELIFE

Sexual AssaultSexual Assault18 Pa. C.S. §3124.118 Pa. C.S. §3124.1 Institutional Sexual AssaultInstitutional Sexual Assault18 Pa. C.S. 18 Pa. C.S.

§3124.2(a.l)§3124.2(a.l) Aggravated Indecent AssaultAggravated Indecent Assault18 Pa. 18 Pa.

C.S. §3125C.S. §3125 Indecent AssaultIndecent Assault18 Pa. C.S. § 3126(a)(7)18 Pa. C.S. § 3126(a)(7)

(complainant less than 13 years ofage)(complainant less than 13 years ofage) IncestIncest18 Pa. C.S. 4302(b) (incest of a 18 Pa. C.S. 4302(b) (incest of a

minor)minor)

Registration is required for any Registration is required for any "attempt, conspiracy, or "attempt, conspiracy, or solicitation to commit" any solicitation to commit" any enumerated offense.enumerated offense.

Registration is required for any Registration is required for any "comparable military offense or "comparable military offense or similar offense of another similar offense of another jurisdiction or foreign country."jurisdiction or foreign country."

CRIMINAL DEFENSECRIMINAL DEFENSE

How to Suppress EvidenceHow to Suppress Evidence How to Win Cases for your Criminal How to Win Cases for your Criminal

ClientsClients

Thank you to the Pennsylvania Thank you to the Pennsylvania District Attorney’s Association for the District Attorney’s Association for the materials presented today.materials presented today.

QUESTIONSQUESTIONS

Shane ScanlonShane Scanlon 570-963-6717570-963-6717