Comm. v. Foster, __ A.3d __ (Pa. Aug. 20, 2019)

This was a discretionary appeal out of Philadelphia.  “The issue presented in this case asks for a determination of what constitutes a permissible basis for a court to find an individual in violation of probation.” The reasoning to follow by Justice Donohue gives a flavor for this case and why the Supreme Court held the way it did in this plurality opinion:

In the case at bar, both the VOP court and the Superior Court disregarded the statutory requirement that a court must first find that the defendant either committed a new crime or violated a specific condition of probation in order to be found in violation. Relying on this Court’s prior decision in Commonwealth v. Mullins, 918 A.2d 82 (Pa. 2007), the Commonwealth contends that this Court is required to remand the case to the VOP court for it “to make factual findings under a proper legal standard,” and that vacating its order would be improper. 

We disagree that Mullins mandates remand of this matter for the VOP court to conduct another round of fact finding. In Mullins, the VOP court found the defendant in violation of his probation based on his guilty plea to a new crime while on probation. This information was presented to the VOP court through the probation officer’s hearing summary sheet, which he had adopted as his testimony, but which was never made part of the record. The defendant appealed and the Superior Court vacated the judgment of sentence, finding that the record was insufficient to establish that the defendant had violated probation. Mullins, 918 A.2d at 83-84. This Court granted the Commonwealth’s petition for allowance of appeal and reversed, agreeing with the Commonwealth’s argument that “when proper evidentiary procedures are not followed in a VOP hearing, the appropriate remedy is to vacate the revocation and remand for a new VOP hearing.” Id. at 84. We held that “the court that granted probation should not be precluded from determining whether probation remains the proper course only because the Commonwealth failed to include certain formalities in the record.” Id. at 86.

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In a concurring opinion, then-Chief Justice Cappy, joined by then-Justice (now-Chief Justice) Saylor, warned against the reading of the majority opinion that the Commonwealth in the case at bar now advances. The concurrence cautioned that the majority’s opinion should not be “misconstrued as enunciating a per se rule requiring a remand to the trial court for a new VOP hearing in each instance where the VOP hearing record is insufficient to support revocation of probation.” Id. at 87 (Cappy, C.J., concurring). The concurrence agreed, however, that under the facts of the case before the Court, remand for a new VOP hearing was the appropriate result.

Unlike Mullins, the case at bar does not involve a procedural anomaly or the disregard of an evidentiary formality. This case simply involves the question of whether the evidence and information presented before the VOP court supports a finding that Foster violated his probation. The sole evidence presented by the Commonwealth at the VOP hearing was the photographs. The photographs depicted alleged marijuana, white pills and an alleged gun, the intended implication being that Foster was in possession of contraband. The Commonwealth made extensive argument before the VOP court that the items in the photographs belonged to Foster, that he took the pictures of these items (thus possessing them), and that he thus committed a crime. [Citation omitted.] The Commonwealth never contended that Foster violated a specific condition of his probation; in fact, it expressly concedes that he did not.

The VOP court heard the argument and considered the evidence presented, making findings of fact based on its assessment of that evidence. As stated hereinabove, the VOP court found, based on the evidence presented, that Foster violated probation because in the court’s view, he was not taking his probation seriously and his behavior of posting the pictures on his social media accounts (which he admitted) was antisocial and defiant, concluding on that basis that probation was not an effective vehicle for his rehabilitation. Importantly, the VOP was specifically asked to find that Foster committed a crime, but it did not.

The take-away from this case is that a court sitting in a probation-violation hearing must scrupulously determine whether a specific condition of probation has been violated, by a preponderance of the evidence, and it’s not sufficient that a court have a “feel” that a probationer “does not take probation seriously.”

Comm. v. Maguire, __ A.3d __ (Pa. Aug. 22, 2019)

This was a discretionary appeal out of Clinton County.  At issue was this: whether the court-adopted guidelines (known as the Tarbert/Blouse guidelines)—for assessing the constitutionality of systematic vehicle checkpoints—apply to warrantless inspections of commercial vehicles, which is authorized by statute.  Here, the Supreme Court held that the guidelines do not apply in this commercial-vehicle context.  Instead, the Pennsylvania Supreme Court cited to a case out of the U.S. Supreme Court, New York v. Burger, as controlling the disposition of this case.  

Writing the lead opinion for the plurality, Justice Baer wrote the following:

[T]he United States Supreme Court held that warrantless searches of closely regulated businesses will be deemed reasonable if: (1) there is a substantial government interest that informs the regulatory scheme pursuant to which the inspection was made; (2) warrantless inspections are necessary to further that regulatory scheme; and (3) the statute’s inspection program, in terms of the certainty and regularity of its application, provides a constitutionally adequate substitute for a warrant. “In other words, the regulatory statute must perform the two basis functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers.

Previously, the Pennsylvania Supreme Court decided in Commonwealth v. Petroll, 738 A.2d 993 (Pa. 1999), that “truck drivers of commercial vehicles are part of a closely regulated industry that . . . are entitled to less Fourth Amendment protections than those of regular drivers on the highways”; thus, the Burger test applies under these circumstances.

Personal note: Practitioners should read the opinions filed by Chief Justice Saylor and Justice Wecht (particularly Wecht’s).  Justice Wecht levels the criticism that the Pa. Supreme Court, in Petroll, designated “trucking” as a closely regulated business “without following any of the guideposts established by the Supreme Court of the United States.” While he presumes that “‘trucking’ likely would again be deemed to be a ‘closely regulated’ industry” should the Pa. Supreme Court revisit this issue in a more comprehensive manner in the future, his opinion at the least makes the invitation for future litigants to raise this issue.  That aside, Justice Wecht further distanced himself from the lead opinion on the grounds that he would’ve held in defendant’s favor on the point that the search here was not “sufficiently systematic” to pass constitutional muster.  On this point, however, Chief Justice Saylor disagreed.  The Chief Justice was of the view that that particular question was a mixed question of fact, which was presently decided against defendant by the trial court, and that finding was binding on the Supreme Court.

Supreme Court (Criminal) Allocatur Grants (thru 9/9/19):

  1. Commonwealth v. Hill, 76 WAL 2019, 9/4/19:
  1. Whether a double jeopardy challenge to dual convictions and sentences under 75 Pa.C.S. § 3802(a)(1) for a single incident of driving under the influence implicates the legality of the sentence, where a defendant was sentenced to imprisonment and probation on one count, and a sentence of guilt without further penalty on the second count.
  1. Whether double jeopardy protections under the Fifth Amendment to the United States Constitution prohibit: (1) dual convictions under 75 Pa.C.S. § 3802(a)(1) arising from a single incident of driving under the influence, or (2) the imposition of a sentence of imprisonment on one count of DUI and guilt without further penalty on a second count of DUI.
  1. Commonwealth v. McIntyre, 132 EAL 2019, 9/4/19:
  1. Whether the Superior Court erred by failing to apply the standard delineated in Teague v. Lane (1989) and its progeny, including and specifically Montgomery v. Louisiana (2016), allowing a retroactive application in collateral proceedings for new substantive rules, as it is United States Supreme Court precedent?
  1. Whether a complete and fundamental miscarriage of justice issued fatally depriving Appellant of his constitutional rights to due process under the United States and Pennsylvania Constitutions where the court of original jurisdiction lacked subject matter jurisdiction to prosecute in this instant case?
  1. Whether Commonwealth v. Neiman and/or Commonwealth v. Derhammer, both Pennsylvania Supreme Court precedents, are to be applied to his first timely PCRA as new substantive rules in accord with the United States and Pennsylvania Constitutions?
  1. Commonwealth v. Coleman, 167 EAL 2019, 9/3/19
  1. Where multiple inculpatory hearsay statements are improperly admitted against an accused, may a reviewing court dismiss the claim by averring the statements were not offered for their truth if the jury was not so instructed?
  1. Whether, in the face of this Court’s clear 404(b) decisional law barring mention of guns not linked to the crime at hand, a prosecutor may introduce evidence that an accused “liked to shoot people” and carried all types of guns, a preserved claim the Superior Court never addressed?
  1. May a prosecutor tell jurors that defense counsel was wrong in urging them to look at individual errors in the case and that they must instead “look at it all together,” an urging that reduces the burden of proof?