Pa. Supreme Court overturns forfeitures for being excessive under the Eighth Amendment’s Excessive Fines Clause and sets guidelines for considering an innocent owner defense

Commonwealth v. 1997 Chevrolet, 29 EAP 2015 and Commonwealth of Pa. v. 416 Sourth 62d Street, 30 EAP 2015

The Supreme Court affirmed Commonwealth Court rulings reversing seizures of a house and a car using civil in rem forfeiture proceedings. The Court found “the proper constitutional construct in determining whether an in rem forfeiture violates the Excessive Fines Clause of the Eighth Amendment requires an initial determination regarding the relationship between the forfeited property and the underlying offense — the instrumentality prong. If this threshold prong is satisfied, the next step of the analysis is a proportionality inquiry in which the value of the property sought to be forfeited is compared to the gravity of the underlying offense to determine whether the forfeiture is grossly disproportional to the gravity of the offense.” The house and car was seized from a 71 year old grandmother was was bedridden with illness and whose son and some grandchildren lived with her. Her son was observed, during the course of an investigation, selling marijuana form the house and using the car to facilitate the sales, and when police searched the house, they found paraphernalia related to selling marijuana. He was arrested but the homeowner— his mother— was not charged with any crime. In rem forfeiture proceedings were started, and the forfeiture court rejected her innocent owner defense because it felt she had done nothing to stop the drug activity. The 73 page opinion concludes that a forfeiture court cannot simply reject on credibility grounds an innocent owner defense as grounds for seizing someone’s property— the record showed that the forfeiture court did not consider a great deal of evidence the owner offered. Forfeiture courts must recognize the difficult task property owner have to establish a negative— that they did not know of the illegal activity— and “identify the circumstances that make it reasonable to infer that the property owner had actual knowledge and did consent to the violation of the Drug Act.” This opinion is required reading for anyone mounting an innocent owner defense.

PCRA petitioner made showing that claim attorney who failed to file timely post-sentence motions and appeal could be after-discovered evidence

Commonwealth v. Chester, 2017 PA Super 154 (5/19/17)

After Mr. Chester was placed on probation, he was violated for a new conviction. Dissatisfied with his sentence for the violation, he asked counsel to file a motion for reconsideration and if that failed, an appeal, but counsel filed an untimely motion to reconsider sentence. The judge denied the motion, but the denial was not reflected on the docket. A direct appeal was filed. Two years later he filed a PCRA petition, appointed counsel filed an amended petition, and it was dismissed pursuant to Pa.RCrim.Pro. 907, allowing dismissal without a hearing. Mr. Chester filed a direct appeal. His attorney did not file a 1925(b) statement. In his brief he raised (1) was it error to dismiss the petition without a hearing, and (2) did the court err in not finding violation counsel ineffective.

The Superior Court excused the failure to file a 1925(b) statement because the docket failed to reflect it had been served. (What is it with the Philadelphia Clerk of Courts?) On the issue of not granting a hearing, Mr. Chester had invoked the newly-discovered fact exception set forth at 42 Pa.C.S. § 9545(b)(1)(ii), and contended that his counsel abandoned him by failing to file a timely direct appeal. Mr. Chester had correspondence from counsel proving that counsel knew of the request for an appeal and had mishandled it, and that he had filed his PCRA petition within 60 days of getting an idea his counsel had messed up. Under these circumstances, he was entitled to a hearing to show that he could not discover the mistake his counsel made within the one year limit for filing PCRA petitions.

Parole Board must explain decisions not to credit parolees for street time

Pitman v. Pa. Bd. of Prob. & Parole, 56 MAP 2016 (4/26/17)

In this case the Supreme Court held that that the Parole Board abuses its discretion (1) where it fails to consider whether to grant a convicted parole violator (“CPV”) credit for time spent at liberty on parole, and  (2) in failing to consider whether to grant CPVs credit for time spent at liberty on parole under the plain language of Subsection 6138(a)(2.1) of the Parole Code, 61 Pa.C.S. § 6138(a)(2.1).

This overturns decades where parolees violated for new convictions never received credit for street time. The Court’s analyses it short and succinct— the kind of thing we have been receiving from it lately.

Person is not under official detention when police leave him alone in a hospital, and he does commit escape when, freed from restraints, he walks away


Commonwealth v Treece, 2017 PA Super 135 (May 5, 2017)

Following his arrest and transport to a police station for violation of a PFA order, Mr. Treece was taken, in handcuffs, to an emergency room. The restraints were removed to facilitate examination and treatment, and he was admitted to the hospital. The police left the hospital. A little later, Mr. Treece determined he was just fined, pulled out the IV, and walked out of the hospital. He was later arrested and charged with escape. He was tried, convicted and sentenced for escape, and he appealed challenging the sufficiency of the evidence.

18 Pa.C.S. § 5121(e) defines official detention‖  as:

arrest, detention in any facility for custody of persons under charge or conviction of crime or alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes; but the phrase does not include supervision of probation or parole, or constraint incidental to release on bail.

When police removed his handcuffs and left the hospital Mr. Treece was no longer in a facility for detention, and had no reason to believe he was otherwise in official detention. Therefore, the evidence was insufficient to convict.

Sentencing court’s pre-disposition to send defendant to jail required resentencing/post-sentence motion raising discretionary aspects of sentencing is optional if those issues are raised during the sentencing proceeding

Commonwelth v Luketic, 2017 PA Super 146 (5/16/2017)

Mr. Luketic and a friend were arrested for possession of drugs after purchasing heroin form a street dealer. Both he and his fiend pled guilty. Sentening immediately followed. The friend was sentenced to 3 to 6 years incarceration followed by 5 years probation, and in its remarks, the court said Mr. Luketic would get jail time too.

Before sentencing Mr Luketic, the court directed that he be taken outside and tested for drugs. In his absence, counsel objected to the court sentencing  Mr. Luketic if, before hearing any evidence, it was determined to put him in jail. The Court deferred any ruling until the defendant returned. He did have opioids in his system, but he had a prescription for them. After hearing evidence of Mr. Luketic’s employment and rehabilitation efforts, the court sentenced his to 6 to12 months incarceration, and consecutive probation. He filed no post-sentence motions, but in his 1925(b) statement raised the court’s failure to recuse itself and the failure to impose an individualized sentence.

The Superior Court found that Mr. Luketic had not fully sought recusal, but found that the judge’s pre-sentencing statement that he was going to put Mr. Luketic in jail deprived him of an individualized sentence, requiring a new sentencing. The Superior Court excused the lack of a post-sentence motion citing the numerous ways Mr. Luketic had raised the issue, but that was nonetheless a risky omission. It cited earlier caselaw that issues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. (The real lesson might be that the Superior Court will not find waiver if a real injustice occurred.) The determination that Mr. Luketic would go to jail before hearing his evidence required a new sentencing.

Failure to provide affidavits or certifications of defense witnesses with PCRA petition grounds for dismissing petition

Commonwealth v. Brown, 2017 PA Super 133 (May 4, 2017)

This is an unremarkable affirmance of the dismissal of a PCRA petition but for its noting that the petition could have been dismissed without a hearing because the Mr. Brown failed to provide affidavits indicating the putative witness’s availability and willingness to testify on his behalf. The increased appearance of citations to this requirement (the opinion does not reflect whether the Commonwealth argued this point or it was raised sua sponte) shows that a storm is coming on this issue. This requirement is impractical in the bulk of PCRA cases, as they are handled by underpaid, overworked conflict counsel without investigative resources to obtain such documentation.

The remainder of the opinion is unremarkable because the Superior Court noted several deficiencies in the certified record and the brief that indicated displeasure with the preparation of the appeal.


Electronic monitoring while at home due to a bail order does not constitute pre-trial detention

Commonwealth v. Dixon, 2017 PA Super 129 (5/1/17)

Mr. Dixon appealed the sentencing court’s decision to not credit his time spent on bail at home with an electronic monitoring device towards his sentence. The Superior Court refused to accept Mr. Dixon’s argument that federal court decisions required reexamination of rulings that such bail conditions constitute detention for the purposes of 42 Pa.C.S. §9760(1).

Stop of suspect one month after he was observed engaged in a drug sale was not a valid investigative stop

Commonwealth v. Parker, 2017 PA Super 132 (May 1, 2017)

Mr. Parker was observed selling drugs during an operation where police were using an informant or undercover officer to buy drugs. A description was radioed to other officers, but the police operation did not Calculus for arresting the dealers at the times of the buys.  About ix weeks later, on eof the officers who had been radioed the information at the time of the buy and believed h e saw the dealer immediately thereafter observed Mr. Parker, and radioed that information to another officer who was on bike patrol.  That officer and another stopped Mr. Parker, and as a pretext for the stop made up a story that there had been a nearby disturbance and Mr. Parker was suspected of being involved.  This allowed them to elicit Mr Parker’s identifying information, after which they let him go. He was arrested a few months later and charged with the drug sale. His lawyer moved to suppress the identifying information on the groundthat the officers (1) lacked reasonable suspicion to detain Appellant, and (2) gave a pretextual reason for stopping Appellant.  The motion was denied, Mr. Parker convicted and an appeal followed.

Citing both Pennsylvania and other jurisdictions’ decision, the Court concluded that the stop was an investigatory detention because Mr. Parker did not feel free to leave. He was encountered by two officers and told he was suspected of criminal activity that did not occur. If Mr. Parker had felt free to leave, then there would not have been a problem, but the “detention” aspect of the stop transformed it into an encounter subject to the Fourth Amendment.

Failure to explain reason for forgoing PSI requires new sentencing except where the court has sufficient information to demonstrate it does not need one.

Commonwealth v Tejada, 2017 PA Super 123 (4/26/2017)

Mr. Tejada was convicted of aggravated harassment of a prisoner following a jury trial he was not allowed to attend. He was not allowed to attend because at the first attempt of having a trial he engaged in disruptive behavior culminating in his hitting his lawyer during his opening statement. At sentencing he objected to the absence of a pre-sentence report, and the judge, before sentencing him, refused to explain why he had done so.

Pa.R.Crim.Pro. 702(A)(2)(a) requires a judge to explain the reasons for forgoing a PSI when a sentence of one year or more is possible, but the Superior Court has said the explanation is not necessary if the court demonstrates it has sufficient information to allow it to dispense with the report. Because the sentencing court immediately sentenced the defendant after denying the objection and did not otherwise indicate it had sufficient information to dispense with the report, a new sentencing is required.

Note to persons who might from time to time practice in Bucks County— a Common Pleas judge, faced with such an issue at a PCRA hearing, accurately opined that anyone who asks for a PSI before a Bucks County sentencing is ineffective.

Photo identification of defendant that was fruit of illegal search of cell phone did not extend to in court identification

Commonwealth v. Santiago, 2017 PA Super 116 (4/20/17)

A police officer encountered Mr. Santiago’s car and deeming the circumstances questionable, walked up the vehicle and asked for identification. Mr. Santiago said he did not have any, and when the officer asked him to get out, he reached for his consol. The officer grabbed him to prevent him from reaching it, and Mr. Santiago began to speed off, causing the officer to fall off the car and his foot to be run over. After receiving medical treatment the officer with other officers returned to the scene where they found a cell phone on the ground. The injured officer picked it up and accessed it without a warrant to ascertain the identity of who owned the phone.  This led to a search of the NCIC data base of one of the names in the phone, and upon retrieval of the picture of Mr. Santiago form NCIC, the officer’s identification of him. Mr. Santiago was arrested and charged with assaulting the officer.

The lower court granted a motion to suppress all evidence found as a result of the search of the cell phone, and the Commonwealth appealed, arguing that even if the search was illegal, the scope of the remedy was too broad. The Court rejected the Commonwealth’s argument that identity evidence is never completely suppressable, but if found that the lower court’s conclusion that an in court identification was irrevocably tainted by the officer’s observation of the phone was not justified by the evidence.  Just because Mr. Sanchez was discovered because of the search of the phone did not mean that absent that search the officer could not otherwise have had the ability to identify the defendant. So while the suppression of the fruits of the search of the phone was upheld, an in court identification of the Defendant by the officer was not.