Comm. v. Markun, 2018 PA Super 104 (May 1, 2018)

Appeal out of Delaware County.  This is the second reported decision this year on the Drug Overdose Response Act, 35 P.S. § 780-113.7.  In this en banc appeal, the Superior Court held that the immunity provided under the Act to persons suffering from a drug overdose, who are later prosecuted, is not a defense and is nonwaivable.

Instantly, Markun had raised the immunity issue for the first time on appeal and never litigated the issue in the trial court.  This obviously raised procedural concerns because an appellate court ordinarily cannot address issues on appeal that have not first been raised below.  But in this instance, given the language of the immunity statute, the Superior Court likened these circumstances to sovereign immunity that the government generally enjoys, which can never been waived.  Additionally, the Superior Court said this about the law:

[W]e note our belief that the Act explicitly discourages procedural gamesmanship whereby the Commonwealth files charges and places the onus on the defendant to raise the Act as a shield in cases where the Act clearly applies.

Ultimately, the immunity statute is a bar to prosecution in the first instance, the Superior Court said.  It is not “a defense” that must be raised by a defendant.

*** Personal note: In light of this pronouncement, practitioners should be mindful that if prior clients were charged and convicted for offenses that are immune under the Act, and the Act applies under the circumstances, they should bring a PCRA within a timely manner to vacate those convictions.

Comm. v. Price, 2018 PA Super 105 (May 2, 2018)

Appeal out of York County.  The Price brothers, identical twins, were convicted of statutory sexual assault related to the same teenage girl.  The price brothers were 18 at the time of the assault, and the victim was 14.  The statutory sexual assault law reads as follows:

  1. (a)Felony of the second degree—Except as provided in section 3121 (relating to rape), a person commits a felony of the second degree when that person engages in sexual intercourse with a complainant to whom the person is not married who is under the age of 16 years and that person is either:

In this appeal, the issue to be decided was how “four years older” was to be interpreted.  Interestingly, the Price brothers were born at 6:50 p.m. and 7:00 p.m., respectively, on May 5, 1994, and the victim was born at 8:16 a.m. on May 5, 1998.  Accordingly, if the difference in the ages of the defendants and the victim is calculated by hours, then the defendants were 3 years, 364 days and approximately 10 hours older than the victim.  The Superior Court accepted the Price brothers’ argument that “they had to be a full 1461 days older than the victim.”  Since the Commonwealth could not satisfy the “four years older” requirement under the law, the Superior Court held that their habeas petition should have been granted in the first instance.  There was insufficient evidence to make out the element of being “four years older.”

Comm. v. Thran, 2018 PA Super 106 (May 2, 2018)

Appeal out of York County.  This appeal was rather straightforward.  Police had received a tip from an identified caller who particularly described the appellant, Thran, as operating his motorcycle erratically (likely under the influence) and provided the location where he may be found.  Police arrived within minutes of the call at the location where Thran was reported to be, and upon arrival the officer’s overhead emergency lights were activated.

Notably, as the Pennsylvania Supreme Court recently held, “when the police activate the overhead emergency lights, no reasonable person would believe he or she was free to leave,” therefore a custodial detention is effectuated at that moment, which must be supported by reasonable suspicion.  In this case, the officer had reasonable suspicion when he detained Thran because he was able to corroborate all the information the caller provided upon arrival at the location where Thran was, i.e. what Thran was wearing and the sort of motorcycle he was operating.

For these reasons, the investigative detention of Thran was proper.

Comm. v. Robinson, 2018 PA Super 109 (May 2, 2018)

Appeal out of Philadelphia County, which was heard before the Court en banc.  It was an appeal from the denial of post-conviction relief.  The holding in this appeal is rather technical and nuanced.  The facts were important to the resolution of the appeal, but they are not rehashed here.

Suffice it to say that, generally, when an untimely post-conviction petitioner is seeking to invoke the lower court’s jurisdiction on the grounds of uncovering “newly discovered facts,” the reviewing court may not analyze the merits of the underlying claim.  The question of jurisdiction must be assessed first and independently.  But, here, the Superior Court said “we believe [this principle] cannot go so far as to altogether preclude the courts from considering the claim the petitioner seeks to raise in determining whether an evidentiary hearing is warranted.”  In this appeal, particularly, the Court said, “Recognizing the nature of the underlying claim—as distinguished from assessing its merits—is necessary to determine whether Appellant acted with due diligence in unearthing the newly-discovered facts.”

*** Personal note: For post-conviction practitioners, this issue will be sure to rear its head again multiple times over.

Comm. v. Robertson, 2018 PA Super 110 (May 3, 2018)

Comm. v. Miller, 2018 PA Super 111 (May 3, 2018)

These companion appeals were out of Berks and Centre counties, respectively.  In both appeals, the trial courts had suppressed BAC results gathered from warrantless blood draws either because (1) the court held PennDOT’s Implied-Consent Warnings Form (known as the DL-26B form) was deficient, or (2) the motorist, due to his prior DUI experience, had a subjective belief that he must consent to a blood draw or else be subject to enhanced criminal penalties.

Both of these appeals are the product of the aftermath of the U.S. Supreme Court’s ruling in Birchfield v. North Dakota.  As discussed in prior posts, the essential holding of Birchfield was that DUI-suspected motorists cannot be deemed to have given voluntary consent to warrantless blood draws if that consent is otherwise coerced by the prospect of enhanced criminal penalties for failure to provide consent.

Before Birchfield, PennDOT used what was then referred to as the DL-26A form to advise DUI-suspected motorists that if they did not give consent to have their blood drawn then, in addition to losing their license, they could face enhanced criminal penalties. Statutory law mandated that motorists be given these warnings, so the form was truly the medium for advising DUI motorist of what the law explicitly spelled out.  However, following Birchfield, PennDOT amended the DL-26A form to bring it into compliance with the Supreme Court’s decision—removing the objectionable language about enhanced criminal penalties—so  then came the new iteration of the form known as DL-26B.  However, the problem was that this change to the form occurred but the Pennsylvania statute had not yet been amended; it still required that motorists be informed of the enhanced criminal penalties.

This is the backdrop of these two appeals.  So, in the first case (Robertson), “the trial court found PennDOT’s amendment of the DL-26 form to conform to Birchfield violated the warnings provision contained in the Motor Vehicle Code at the time.  Specifically, that provision provided that ‘it shall be the duty of the police officer to inform the person [suspected of DUI] that . . . if the person refuses to submit to chemical testing, upon conviction or plea . . . the person will be subject to [enhanced penalties.]’”  The trial court held that PennDOT was without authority to change the DL-26 form before a change to the law it was based upon. But the Superior Court disagreed, and it concurred with the Commonwealth Court that PennDOT did have the authority to amend the DL-26 to bring it into compliance with Birchfield, even though the legislature had not yet amended the law.  Yet that was not the end of the analysis. The Superior Court said this:

The trial court reasoned that, even though [Robertson] was read the DL-26B form which deleted any reference to criminal penalties for the failure to submit to a blood test, [Robertson] was presumed to be aware of the (unconstitutional) Motor Vehicle Code provision that, until July 20, 2017, mandated enhanced criminal penalties for those convicted of DUI who refused a blood test.

Apparently, however, the trial court did not deem it necessary to presume that [Robertson] knew about the United States Supreme Court’s decision in Birchfield and its impact on the statutory warnings that are read to individuals who are asked to consent to a blood test. 

Ultimately, the Superior Court found this presumption of the knowability of the codified law, but not case law, to be problematic.  Thus, for the first time, the Superior Court explicitly held that “individuals are not only presumed to know statutory law but also developments in case law.”  Provided as much, the Superior Court held, “the trial court erred in finding that [Robertson] was presumed to believe she was subject to enhanced criminal penalties because of the unconstitutional provision of the Motor Vehicle Code.” Thus, given Birchfield’s holding and the presumption that Robertson knew it, Robertson could not say that her consent was uninformed or involuntary when she was read the new DL-26B form.  She gave her consent voluntarily to have her blood drawn, the Superior Court said.

Accordingly, in sum, the Court’s holding was this: (1) PennDOT had authority to amend the DL-26 form prior to the change in state law; (2) the DL-26B form read to Robertson complied with the dictates of Birchfield; and (3) police officers had no affirmative duty to tell Robertson that she would not be subjected to enhanced criminal penalties if she refused the blood tests.

Now concerning the companion case, Miller, this case involved the question of whether Miller’s consent to a blood draw was involuntary because he possessed an incorrect subjective belief, based on a prior DUI experience before Birchfield, that if he did not consent to a blood draw he would face enhanced penalties.  The resolution of this case came back to the same principle that individuals are presumed to know of developments in case law.  Thus, the Superior Court held that an incorrect subjective belief about the law cannot form the basis for suppression. 

Comm. v. Bebout, 2018 PA Super 114 (May 4, 2018)

Appeal out of Allegheny County.  This was an appeal from a resentencing of a juvenile-lifer.  The trial court imposed a 45-to-life sentence upon Bebout.  On appeal, Bebout challenged not only the discretionary aspects of the court’s sentence—which the Court ultimately deemed waived—but he challenged his sentence as a de facto life sentence.

The Superior Court said this: “Based on the record and arguments before us, we conclude that Appellant has simply failed to meet his burden of demonstrating that the lower court sentenced him to a de facto [life-without-parole] sentence. . . . [W]e are not convinced that Appellant’s sentence is the functional equivalent of life-without-parole.”

***Personal note: Unlike the Third Circuit in U.S. v. Grant, 887 F.3d 131 (3rd Cir. 2018), which cited with approval the District Courts’ use of life-expectancy tables and statistical models to determine whether a particular sentence is  de facto life sentence, our Superior Court seems to find this approach to be more problematic.  Notably, however, the Bebout panel did not cite to the Grant opinion in its case, which was published nearly a month beforehand.  For future cases, there may be an opportunity to educate future panels of the Superior Court on the use, value, and acceptance of such tables for determining whether a particular sentence is, in fact, a de facto life sentence.