Comm. v. Davis, 2018 PA Super 180 (June 22, 2018)

Out of Lehigh County. This case is about an attempt to withdraw a guilty plea made under a plea agreement for a sentence not to exceed 38 months incarceration.  The underlying charges were for possession with intent to deliver (PWID) among other things.

The appellant, Davis, appeared on the day that his jury trial was to begin and he agreed to this plea at the last minute.  His counsel was representing him on this particular case and another. The record revealed that if Davis were not to accept the plea on the PWID case, his attorney was going to seek leave to withdraw; however, he remained committed to represent him on the other case to conclusion.

After Davis accepted his plea, which was on February 9, 2015, he was scheduled to be sentenced on March 6, 2015.  Between those two dates, however, he left the jurisdiction and was arrested in North Carolina on new drug charges.  Obviously, he missed his sentencing hearing.  Ultimately, a detainer was placed on Davis and he was brought back to Lehigh County on February 18, 2017, two years after he entered his plea.

This time around, with new charges under his belt from North Carolina, Davis moved to withdraw his guilty plea.  As a basis for doing so, Davis alleged (1) he was coerced into accepting the plea by his plea counsel’ indication that he would withdraw from representation if he didn’t accept the deal, and (2) he claimed he was actually innocent.

The trial court denied Davis’s request to withdraw his plea, finding that his “assertion of innocence [was] not plausible” under the circumstances and he was “attempt[ing] to manipulate the system.”  The Superior Court agreed and affirmed.  In support of that decision, the Superior Court also had this to say.

Moreover, we also agree with the trial court’s finding that Appellant’s guilty plea could not be withdrawn because the Commonwealth would suffer substantial prejudice from the withdrawal.  As noted above, Appellant did not assert his alleged innocence until over two years after he entered his guilty plea; in that time, his co-defendant . . . had already entered a guilty plea and had been sentenced.  The trial court found that [the co-defendant’s] lack of motivation to cooperate with the prosecution would severely prejudice the Commonwealth if it sought to try Appellant. . . . Further, the trial court also noted that after Appellant had entered his guilty pleas in this case, the Commonwealth had destroyed the cocaine seized from Appellant’s person in both [of his cases].  Therefore, we cannot conclude that the trial court abused its discretion in finding that the prosecution would be substantially prejudiced if Appellant were allowed to withdraw his guilty plea.

Comm. v. Lynn, 2018 PA Super 190, 191 (June 28, 2018)

Out of Philadelphia.  These cases arose from a sex-abuse scandal involving the Archdiocese of Philadelphia.  The appellant, Lynn, was the appointed Associate Vicar in the Office of the Vicar for the Administration in the Archdiocese of Philadelphia.  As part of his duties, Lynn was responsible for receiving and investigating allegations of sexual abuse by priests, as well as suggesting placements for, and supervising, priests previously accused of abuse.

The procedural history of this case is long.  Essentially, Lynn had been charged with endangering the welfare children due to his negligent supervision over priests known to have a sexual-abuse history.  He was tried and convicted back in 2012, his case went up to the Superior Court then the Pennsylvania Supreme Court, and it eventually came back down for retrial.  When it did, the issues that arose before the trial court in this second go-around produced these opinions.  The issues at hand were these:

  • The Commonwealth’s appeal at 2018 PA Super 190: Whether the trial court abused its discretion in limiting the Commonwealth to three instances of “prior bad acts” instead of the nine it requested; and
  • The Defense’s appeal at 2018 PA Super 191:Whether the double-jeopardy clause prevented the Commonwealth from retrying Lynn a second time.

The summary of the holdings of the two cases is this: the trial court did not abuse its discretion by limiting the Commonwealth’s prior-bad-acts evidence; and Lynn was permitted to be retried, without running afoul of the double-jeopardy clause, because he failed to demonstrate that the alleged acts of misconduct on the part of the prosecution were intended to deprive him of a fair trial.

The second issue (and opinion) is more interesting than the first, as the first really is a run-of-the-mill analysis dealing with the trial court’s discretion to admit or exclude evidence.  Nothing too sexy.  But the second case, implicating constitutional guarantees, dealt with notions of fair play—i.e. should a prosecutor be concerned with seeking convictions rather than seeking justice.  Here’s what was at issue as reiterated by the Superior Court:

Detective Walsh confirmed the Commonwealth hired him to investigate the accuracy [of one of the alleged victim’s (D.G.)] grand jury testimony.  After conducting interviews with members of D.G.’s family and staff at St. Jerome’s grade school, Detective Walsh determined that certain details surrounding D.G.’s account of his abuse were inconsistent with information gathered through the interviews. . . . During a trial preparation session in February 2012, Detective Walsh confronted D.G. about these inconsistencies, and claimed D.G. either failed to respond when challenged, or stated he was high when he made his initial statement to the police.

Additionally, Detective Walsh testified he informed ADA Sorensen of these inconsistencies as he discovered them, but that she [the ADA] always confirmed her belief in D.G.’s story.  However, on one occasion in January 2012, before Detective Walsh’s trial preparation session with D.G., Detective Walsh’s report of inconsistencies was met with her [the ADA] telling him “you’re killing my case.” Lynn asserts that these inconsistencies and ADA Sorensen’s response were proof that D.G.’s story of [one of the priest’s] abuse was untrue, that ADA Sorensen was aware it was untrue, and as such, the prosecutor’s actions in placing D.G. on the witness stand during [the first] trial constituted prosecutorial misconduct.

[T]he trial court found that while the Commonwealth failed to provide Lynn with certain aspects of Detective Walsh’s investigation, there was no evidence this failure constituted misconduct severe enough to warrant dismissal of Lynn’s charges.  Instead, the trial court found the proper remedy in this case would be a new trial.  As Lynn had already been granted a new trial . . . the trial court found no further relief was warranted.

Thus the prompting of this appeal.  Ultimately, the Superior Court agreed with the trial court.  The Superior Court held that “the record does not support [Lynn’s] serious allegation that the prosecution knowingly presented false evidence.”  The Court reasoned that “[w]hile Detective Walsh claimed ADA Sorensen informed him that the inconsistencies he uncovered through his investigation were “killing [her] case,” he also testified that ADA Sorensen repeatedly told him she believed D.G.’s testimony.”  This did not amount to a finding that the government was knowingly presenting false evidence. Moreover, the Superior Court concluded that Lynn, too, had failed to show that the Commonwealth “maliciously” withheld the details of Detective Walsh’s witness preparation interview; therefore, it could not be said that the government engaged in intentional prosecutorial misconduct designed to deprive him of a fair trial.

Given these holdings, Lynn’s retrial was ordered to proceed, but the Commonwealth was limited with the prior-bad acts it could present.

Comm. v. Neysmith, 2018 PA Super 188 (June 28, 2018)

Out of Franklin County.  Here, Kevin Neysmith, also known as “Prince Fevoir St. Hilaire,” was contesting whether the Commonwealth sufficiently proved, for purposes of sentencing, that he had a prior DUI conviction in Maryland.  He was also contesting whether his warrantless blood-draw was lawful under the U.S. Supreme Court’s decision in Birchfield. (There also was a third issue about a delay in his sentencing beyond 90 days, but I’ll leave that for the interested reader to explore independently.)

The case is not really interesting for the Birchfield issue.  Here, like in most DUI prosecutions, Neysmith gave all the signs for driving under the influence (e.g., slurred speech, glassy, bloodshot eyes, inability to complete field-sobriety tests).  He requested of the police, nonetheless, that he be given a blood test to confirm his innocence.  He specifically asked the police: “Can I get a needle test, please, with all due respect?”  The police obliged, and while at the hospital they presented to him the then-existing DL-26 form, which informed him of his rights.  (This form would later be amended after Birchfield to remove the language about “enhanced criminal penalties.”)

When Neysmith was prosecuted after Birchfield was decided, he challenged the warrantless blood-draw, notwithstanding his request, arguing that the then-existing DL-26 form was unduly coercive, and he knew by prior experience that he could incur further criminal penalties if he refused the test.  Thus, he said his consent was tainted.  Both the trial court and the Superior Court found, however, that Neysmith’s consent was good and there was no unlawful blood draw.

That issue set aside, the Superior Court then turned its attention to Neysmith’s second issue: he contended that there was insufficient evidence to prove—by a preponderance of the evidence—that, in 2013, he pleaded guilty to a DUI-equivalent charge in Maryland, which prior conviction would have warranted an increased sentence.  This argument didn’t pass the smell test for the Court.  The whole issue here was about the Maryland conviction being taken under Neysmith’s alias, and he contended that the Commonwealth could not link him to that case.  The Superior Court said this about the matter:

Neysmith argues that the Commonwealth failed to prove “that there is not another individual whose name is actually Prince St. Hilaire whose identity [Neysmith] was using.” Neysmith believes that the Commonwealth needed to produce “photographic, fingerprint, or other reliable identifying evidence which could assure the Court that” he was the person convicted in Maryland. By using the word “assure,” Neysmith demonstrates a fundamental misunderstanding for the burden of proof. His demand for evidentiary assurance calls for a degree of certainty not required in proving a prior conviction. See United States v. Davis, 710 U.S. 104, 107 (3d Cir. 1983) (joining five other circuits to hold that a statutorily-required, preponderance-of-the-evidence burden of proof at sentencing hearings comports with Due Process Clause).

A “preponderance of the evidence” is only “the greater weight of the evidence, i.e., to tip a scale slightly is the criteria or requirement for preponderance of the evidence.” In other words, when weighing the evidence of record, the trial judge need only find that the fact in question is more-likely-than-not true. Thus, at prior-conviction evidentiary hearings, the Commonwealth need not “assure” the court of anything. It need only show that prior convictions probably belong to the offender. To determine whether the Commonwealth offered evidence sufficient to tip the evidentiary scale in its favor, we will review all of the evidence and testimony offered at the sentencing hearing.

On the side of the scales favoring the Commonwealth’s proposition that Neysmith and “St. Hilaire” are the same individual, first and foremost is the certified record from Washington County, Maryland. See St. Hilaire, supra. “The proof of prior conviction is a simple historical fact which may be ascertained through official documents.” The Commonwealth provided these official documents from Maryland and made them of record as its Sentencing Exhibit 1. Those documents identify Neysmith by his alias, “Prince Fevoir St. Hilaire,” the same name he provided to the troopers upon his arrest in this case. He likewise used that same alias in 2014, for another DUI arrest and conviction in Franklin County, Pennsylvania, a conviction Neysmith’s counsel admitted the Commonwealth “established.”

The official documents from Maryland also show a birth date matching the one Neysmith provided for his prior, Franklin County DUI case. Moreover, Neysmith’s Pennsylvania record included photographs of him, with the words “Name Used: Prince Fevoir St. Hilaire” below his face. Commonwealth’s Sentencing Exhibit 3. The person in that picture matches the image of the man arrested in the video from this case. See Commonwealth’s Suppression Exhibit 1.

Also supporting the conclusion that Neysmith was the Maryland offender is the fact that the Commonwealth discovered that conviction by searching trustworthy databases – the Unified Judicial System’s website, the Justice Network of the Pennsylvania State Police, and the Maryland Judiciary’s website. The district attorney’s staff entered various data on Neysmith into these systems, including his name, alias, and birth date(s). They matched. Those online sources returned the case of State v. St. Hilaire from the District Court of Washington County, Maryland,5 because the false data that Neysmith provided here corresponded with the false data he provided there.

Finally, we give great weight to the fact that the various vehicles that Neysmith drove while intoxicated in 2013, 2014, and 2016 all belonged to his girlfriend, Michelle McKeller. In fact, Neysmith used the exact same vehicle to commit DUI in Maryland that he used in 2014 in Pennsylvania.

On the other side of the scales, to counterbalance the Commonwealth’s weighty evidence, there is . . . nothing

Personal note: Now, from my humble perspective, all of this was interesting for two reasons.  The first point of interest was in what the Court said in a footnote about Neysmith’s silence at sentencing.  The Court, specifically through Judge Kunselman, said this:

This Court draws no inference from Neysmith not presenting any evidence at sentencing. Remaining silent was his right under the Fifth Amendment to the Constitution of the United States. See Mitchell v. United States, 526 U.S. 314, 317 (1999) (holding that the right to remain silent applies during sentencing and a “court may not draw an adverse inference from the defendant’s silence”). Nevertheless, Neysmith’s humbuggery is not proof, and nihilism does not preclude a court from weighing hard evidence against the nothingness proffered to rebut it. Thus, the right to remain silent is rather less effective at sentencing than at trial, because the Commonwealth’s burden of proof is far easier to carry at this point in the proceedings. One credible utterance outweighs silence.

The general rule is that a criminal defendant’s silence may not be used against them, but there were overtures in this opinion about Neysmith’s silence that struck a wrong chord with me.  I believe the Court’s reasoning to be sound, but all I can say is that I was troubled with how it was written up.

That aside, the second point of interest was this, and I’ll make a brief note.  Judge Kunselman, on the sentencing issue, erroneously cited to 42 Pa.C.S. § 9714 as the controlling statute that controls the burden of proof at evidentiary hearings regarding prior convictions. That statute concerns the imposition of mandatory sentences for second or subsequent convictions of “crimes of violence.”  Here, the Court was not dealing with a crime of violence, it was dealing with a DUI.  The applicable statute dealing with sentencing for DUIs is 75 Pa.C.S. § 3804.  I make this note because this incorrect citation in a published opinion breeds confusion among the bench and bar about the state of the governing law.