CRIMINAL LAW

Somerset Legal Journal headnotes from approximately 1991 through the present.

For earlier cases, please visit the Somerset County Law Library.

 

AFFIRMATIVE DEFENSE – JUSTIFICATION

 

In order to be entitled to an instruction on justification as a defense to a crime charged, the actor must first offer evidence that will show: 1) that the actor was faced with a clear and imminent harm, not one which is debatable or speculative; 2) the actor could reasonably expect that the actor's actions would be effective in avoiding this greater harm; 3) that there is no legal alternative which will be effective in abating the harm; and 4) that the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue.  In Re: T.B., 62 Som. L.J. 31, 39 (2005) (Cascio, J.)

 

ARD

 

Imposition of new ARD conditions by a county probation office after a person had already been admitted to the ARD program was permissible.  Com. v. Shaffer, 58 Som.L.J. 294 (2000) (J. Gibson) 

 

If the new conditions are unacceptable to the ARD participant, he may withdraw from the program and proceed to trial.  Com. v. Shaffer, 58 Som.L.J. 294 (2000) (J. Gibson) 

 

Courts have broad authority to modify ARD conditions.  Com. v. Shaffer, 58 Som.L.J. 294 (2000) (J. Gibson)

 

COLLATERAL ESTOPPEL

 

Under the doctrine of collateral estoppel, any issues resolved by a jury cannot be again submitted for consideration at a subsequent trial, regardless of any similarity or lack of similarity between the two sets of charges.  Commonwealth v. Davis, 51 Som. 73 

 

The doctrine of collateral estoppel can only apply to those issues that were substantially similar in the prior trial, were actually litigated and which were necessarily determined at the prior trial, that is necessarily resolved for the jury to reach their verdict.  Commonwealth v. Davis, 51 Som. 73 

 

Collateral estoppel arises when an ultimate fact has been necessarily established in favor of the defendant, thus, prohibiting relitigation of that ultimate fact in a later proceeding against him.  Commonwealth v. Groft, 51 Som. 327

 

COMPLAINT (CRIMINAL COMPLAINT)

 

A prima facie case consists of evidence produced by the Commonwealth which sufficiently establishes that a crime has been committed and that the accused is probably the perpetrator of the crime.  Com. v. Emeigh 58 Som. L.J. 90 (2000) (J.Cascio) 

 

When called upon to consider the propriety of a prosecutor's policy-based decision to forego criminal prosecution, the correct standard of review is one requiring a showing of fraud, bad faith or unconstitutionality.  In Re: Petition for Review of Disapproval of Criminal Complaint, 58 Som.L.J. 176 (1999) (P.J. Fike) 

 

For disapprovals based on insufficiency of evidence, the trial court is to conduct a de novo review of the complaint to determine whether a prima facie cause of action has been established.  In Re: Petition for Review of Disapproval of Criminal Complaint, 58 Som.L.J. 176 (1999) (P.J. Fike)

 

A gognant offense is one not specifically charged in the complaint but whose elements are sufficiently described therein as to give notice to the accused that he may be indicted for it.  Commonwealth v. McCusker, 60 SLJ 416m (August 15, 2003)(J. Cascio) 

 

Courts have the inherent authority to dismiss criminal charges where the circumstances do not comport with the fundamental fairness of due process.  Commonwealth v. McCusker, 60 SLJ 416m (August 15, 2003)(J. Cascio)

 

The Commonwealth must show sufficient probable cause that the defendant committed the offense, and the evidence should be such that if presented at trial, and accepted as true, the judge would be warranted in allowing the case to go to the jury.  Commonwealth v. Barclay, 62 Som.L.J. 288 (2005) (Cascio, J.).

 

CONTROLLED SUBSTANCES

 

The Commonwealth may make subject to forfeiture any conveyance, aircraft, vehicle or vessel which is used, or is intended to be used, to transport or facilitate the sale, receipt, possession or concealment of an illegal controlled substance.  42 Pa. C.S.A. 6801.  In Re 1982 Chevrolet Camaro, 50 Som.L.J. 221 

 

To obtain its request for forfeiture, the Commonwealth must prove by a preponderance of the evidence that the vehicle was used in an illegal activity.  In Re 1982 Chevrolet Camaro, 50 Som.L.J. 221 

 

The respondent to a forfeiture action may prevent the forfeiture if he can demonstrate that he is the owner of the property, the property was lawfully acquired by him, it was not unlawfully possessed or used by him and he neither had knowledge of nor gave his consent for another's illegal use.  42 Pa. C.S.A. 6802(j).  In Re 1982 Chevrolet Camaro, 50 Som.L.J. 221

 

CORPUS DELICTI – CLOSELY RELATED CRIME EXCEPTION

 

The Pennsylvania courts recognize an exception to the corpus delicti rule known as the closely related crime rule. This exception is triggered when the accused is charged with more than one offense and makes statements related to all of the offenses, but the Commonwealth is only able to establish the corpus delicti of one of the offenses.  Com. v. McNaul, 60 Som.L.J. 78 (2001) (Cascio, J.). 

 

When the crimes are so closely related that the introduction of the statement will not violate the underlying purpose of the corpus delicti rule, the statements of the accused will be admitted with respect to all of the offenses charged. The underlying purpose of the corpus delicti rule is to preclude the admission of a confession where no crime in fact has been perpetrated.     Com. v. McNaul, 60 Som.L.J. 78 (2001) (Cascio, J.). 

 

This exception is fact and case specific and will only apply when the crimes charged share a common element and are the product of the same transaction or occurrence and only applies to inculpatory statements made by the accused.  Com. v. McNaul, 60 Som.L.J. 78 (2001) (Cascio, J.).

 

The test for determining whether the “closely related crimes” exception to the corpus delicti rule—the purpose of the rule being to avoid convictions for crimes that did not occur—applies is that the relationship between the crimes is sufficiently close so as to avoid admitting a confession for a crime that did not occur. Commonwealth v. Ashbrook, 63 Som. L.J. 339, (2007)(Cascio, P.J.)

 

While the Defendant attempted to protect her child in the event of a crash through the use of a car seat, the likelihood of a crash was substantially enhanced by the act of driving after imbibing and, therefore, satisfies the requirement of the “closely related crimes” exception to the corpus delicti rule that the crimes—in this case, driving after imbibing and endangering the welfare of a child—be sufficiently temporarily related. Commonwealth v. Ashbrook, 63 Som. L.J. 339, (2007)(Cascio, P.J.)

 

CORPUS DELICTI – GENERALLY

 

The well-established corpus delicti rule provides that a criminal conviction may not stand merely out on the out-of-court confession of one accused, and a case may not go to the fact finder where independent evidence does not suggest that a crime has occurred.  This rule is rooted in the hesitancy to convict a person of a crime solely on the basis of that person's statements.  Commonwealth v. Rafferty, 54 Som.L.J. 182 (Dec. 30, 1996) (Cascio, J.) 

 

The corpus delicti rule consists of two elements: the occurrence of a loss or injury, and some person's criminal conduct as the source of that loss or injury.  The identity of the party responsible for the act is not part of the corpus delicti.  Commonwealth v. Rafferty, 54 Som.L.J. 182 (Dec. 30, 1996) (Cascio, J.) 

 

While the burden of establishing the corpus delicti is not equivalent to the Commonwealth's ultimate burden of proof and the Commonwealth need not prove the existence of a crime beyond a reasonable doubt in order to introduce an incriminating out-of-court statement, the evidence of a corpus delicti is insufficient if it is merely equally consistent with non criminal acts as with criminal acts.  Commonwealth v. Rafferty, 54 Som.L.J. 182 (Dec. 30, 1996) (Cascio, J.) 

 

After the court has made its initial determination that the Commonwealth has proved the corpus delicti by a preponderance of the evidence and has ruled the confession to be admissible, the corpus delicti rule additionally requires that the Commonwealth prove to the jury's satisfaction, beyond a reasonable doubt, the corpus delicti of the crimes charged before the jury may consider the confession or statement.  Commonwealth v. Rafferty, 54 Som.L.J. 182 (Dec. 30, 1996) (Cascio, J.) 

 

The corpus delicti may be proved by circumstantial evidence.  Commonwealth v. Rafferty, 54 Som.L.J. 182 (Dec. 30, 1996) (Cascio, J.) 

 

The corpus delicti rule does not require that the existence of a crime be proved prior to admission of the confession but is satisfied where independent evidence, beyond the statement of the accused, suggests that a crime has occurred.  Commonwealth v. Rafferty, 54 Som.L.J. 182 (Dec. 30, 1996) (Cascio, J.) 

 

Under the corpus delicti rule, a case may not go forward based solely on the out of court admission of an accused when there is no independent evidence of a crime. The corpus delicti rule is a rule of evidence.  Com. v. McNaul, 60 Som.L.J. 78 (2001) (Cascio, J.). 

 

The Commonwealth bears the burden of proving the corpus delicti of the crime charged in order to use a confession to establish its prima facie case.  Com. v. McNaul, 60 Som.L.J. 78 (2001) (Cascio, J.). 

 

Corpus delicti means the body or substance of the crime or the fact that a crime has been committed and is composed of two elements: the act and the criminal agency of the act.  Com. v. McNaul, 60 Som.L.J. 78 (2001) (Cascio, J.). 

 

The corpus delicti, like other facts, may be shown by circumstantial evidence; it is sufficient if these circumstances are consistent with a crime even though they are also consistent with suicide or accident. However, the courts require that independent evidence of a crime must be more consistent with a crime than an accident.  Com. v. McNaul, 60 Som.L.J. 78 (2001) (Cascio, J.). 

 

In order to introduce a defendant's admission, the Commonwealth must show by a preponderance of the evidence that a loss has occurred, and that the loss occurred as a result of some person's criminal conduct.  Com. v. McNaul, 60 Som.L.J. 78 (2001) (Cascio, J.). 

 

The rule of corpus delicti is that a criminal conviction may not be based on the extra judicial confession or admission of the defendant unless it is corroborated by independent evidence establishing the corpus delicti.  Com. v. Zerfoss, 60 Som.L.J. 136 (2002) (Cascio, J.). 

 

The practical application of the corpus delicti rule is to place a burden upon the Commonwealth to prove by a preponderance of the evidence that a crime has taken place; if the Commonwealth meets this burden, the defendant's incriminating statements may be admitted into evidence.  Com. v. Zerfoss, 60 Som.L.J. 136 (2002) (Cascio, J.). 

 

In order to show corpus delicti, the Commonwealth need not eliminate the possibility of an accident. Com. v. Zerfoss, 60 Som.L.J. 136 (2002) (Cascio, J.). 

 

Pennsylvania courts have found no difficulty with proving the corpus delicti at the preliminary hearing through the use of hearsay.  Com. v. Zerfoss, 60 Som.L.J. 136 (2002) (Cascio, J.). 

 

Evidence that is physically apparent at the scene of the incident is relevant top the determination of whether corpus delicti has been shown.  Com. v. Zerfoss, 60 Som.L.J. 136 (2002) (Cascio, J.).

           

CRIMES CODE – GENERALLY

 

It is the policy of the law not to permit prosecutions under the general provisions of a penal code when there are applicable special penal provisions available.  Commonwealth v. Sigmund, 60 Som.L.J. 218 (2002) (Gibson, J.). 

 

This policy is only applicable, however, where the conflict between the statutes is irreconcilable.  Commonwealth v. Sigmund, 60 Som.L.J. 218 (2002) (Gibson, J.). 

 

Even if the two penal statutory provisions have identical elements in the sense that the special wholly encompasses the general, so long as the general has elements outside the special, the Commonwealth is not restricted from pursuing both charges in one trial.  Commonwealth v. Sigmund, 60 Som.L.J. 218 (2002) (Gibson, J.).

 

CRIMES CODE § 1.3: OWNING, OPERATING OR CONDUCTING CHOP SHOP

 

In order to establish a prima facie case under 18 P.S.§ 1.3(1) and (2), entitled "Owning, operating, or conducting a chop shop; penalty," the Commonwealth is required to produce sufficient evidence, that if accepted as true by the jury, would demonstrate either that Defendant owned, operated, or conducted a chop shop as defined in §1.2, or transported, sold transferred, purchased or received a motor vehicle which was legally obtained either to or from a chop shop.  Commonwealth v. Sigmund, 60 Som.L.J. 218 (2002) (Gibson, J.). 

 

CRIMES CODE § 1.4: ALTERED OR ILLEGALLY OBTAINED PROPERTY

 

In order to establish a prima facie case under 18 P.S. § 1.4(a) , the Commonwealth is required to produce sufficient evidence that if accepted as true by a jury, would demonstrate that Defendant altered, falsified or removed a vehicle identification number with the intent to conceal or misrepresent the identity or prevent the identification of a motor vehicle.  Commonwealth v. Sigmund, 60 Som.L.J. 218 (2002) (Gibson, J.). 

 

In order to establish a prima facie case under 18 P.S.§ 1.4(b), the Commonwealth is required to produce sufficient evidence, that if accepted as true by a jury, would demonstrate that Defendant purchased, received, disposed, sold transferred or possessed a motor vehicle with knowledge that the vehicle identification number of the motor vehicle has been altered, falsified, removed with the intent to conceal or misrepresent the identity or prevent the identification of a motor vehicle.  Commonwealth v. Sigmund, 60 Som.L.J. 218 (2002) (Gibson, J.).

 

CRIMES CODE § 110: WHEN PROSECUTION BARRED BY FORMER PROSECUTION FOR DIFFERENT OFFENSE

           

The Compulsory Joinder Rule will not bar subsequent offenses that had not yet come into being as of the first trial.  Commonwealth v. Groft, 51 Som.L.J. 327

 

CRIMES CODE § 111: WHEN PROSECUTION BARRED BY FORMER PROSECUTION IN ANOTHER JURISDICTION

 

In order to find that the additional sanction imposed on appellees by Pennsylvania authorities violated statutory double jeopardy under 18 Pa.C.S. § 111, the court would have to find that the sanction was imposed pursuant to subsequent prosecutions in Pennsylvania for violations based on the same conduct as former prosecutions in other states.  Ogline v. Commonwealth of Pennsylvania, 58 Som.L.J. 188 (2000) (J.Gibson).

 

CRIMES CODE § 1106: RESTITUTION FOR INJURIES TO PERSON OR PROPERTY

 

A victim is any person, except an offender, who suffered injury to his person or property as a direct result of a crime.  18 Pa.C.S. § 1106(h).  Commonwealth v. B.L.H., 54 Som. L.J. 366 (March 17, 1998) (Cascio, J.) 

 

School district was not a "victim" pursuant to the definition set forth in 18 Pa. C.S. § 1106(h) because it did not suffer a loss as the direct result of a crime, but, rather, suffered a financial expense as a result of its own response to the delinquent behavior.  Commonwealth v. B.L.H., 54 Som.L.J. 366 (March 17, 1998) (Cascio, J.) 

 

Legal fees are typically excluded from recovery as restitution absent a clear statutory entitlement.  Commonwealth v. B.L.H., 54 Som. L.J. 366 (March 17, 1998) (Cascio, J.) 

 

18 Pa.C.S.A. § 1106(c) states that the court shall order full restitution regardless of the current financial resources of the defendant, so as to provide the victim with the fullest compensation for the loss.  Commonwealth v. King, 61 Som.L.J. 308, 315 (March 4, 2005) (Cascio, J.) 

 

CRIMES CODE § 2501: CRIMINAL HOMICIDE

 

A charge of criminal homicide under 18 Pa.C.S.A. §2501 is sufficient notice to a defendant that he may face charges of first, second, or third degree murder, as well as voluntary or involuntary manslaughter.  Commonwealth v. McCusker, 60 Som.L.J. 416 (April 15, 2003)(Cascio)

 

CRIMES CODE §2701: SIMPLE ASSAULT

 

In the Case of M.H., a minor, 758 A.2d 1249 (Pa. Super. 2000) the Superior Court considered whether the bruises that occurred as a result of the grabbing and shoving of another constituted “bodily injury” under 18 Pa.C.S.A. § 2701 (“Simple Assault”). Finding it necessary to evaluate the assaultive nature of the contact in conjunction with the resulting physical injury, the Court found that the bruising was sufficient to constitute “bodily injury.” Commonwealth v. Davis, 64 Som.L.J. 198 (2009) (Klementik).

 

In the instant case, clearly the conduct of Defendant in jumping out of his vehicle to grab the victim aggressively and fighting with her to pull her into his vehicle was assaultive contact, the resulting bruising of which must be deemed assaultive bodily injury. Commonwealth v. Davis, 64 Som.L.J. 198 (2009) (Klementik).

 

CRIMES CODE § 2702: AGGRAVATED ASSAULT

 

The crime of aggravated assault includes a finding that the Defendant attempted to cause serious bodily injury to the victim. Serious bodily injury means bodily injury that would create a substantial risk of death or that would cause serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ. Commonwealth v. Davis, 64 Som.L.J. 224 (2009) (Klementik, J.).

 

CRIMES CODE § 2705: RECKLESSLY ENDANGERING ANOTHER PERSON

 

Defendant’s veering across the roadway at a high rate of speed toward the proximity of the victim who was forced to run off the road to avoid being struck constitutes “recklessness” pursuant to 18 Pa.C.S.A. § 2705 (“Recklessly endangering another person”) and clearly may have placed the victim in danger of death or serious bodily injury. Commonwealth v. Davis, 64 Som.L.J. 198 (2009) (Klementik).

 

CRIME CODE §2706: TERRORISTIC THREATS

 

The Commonwealth must prove that the Defendant communicated a threat with intent to terrorize another. Commonwealth v. Davis, 64 Som.L.J. 224 (2009) (Klementik, J.).

 

CRIMES CODE § 2901: KIDNAPPING

 

"Substantial distance" has not been defined by any given linear distance. The offense, however, does not include incidental movement of a victim during the commission of another crime, which does not substantially increase the risk of harm to the victim; the test is whether the removal compounds the risk of harm to the victim which is distinct from the risk inherent in the crimes which the movement accompanied, whether the victim was removed from the security of familiar surroundings, regardless of absolute distance.  Commonwealth v. Norton, 52 Som.L.J. 66

 

A removal is “unlawful” if a Defendant accomplishes it by force, threats, or deception. Commonwealth v. Davis, 64 Som.L.J. 224 (2009) (Klementik, J.).

 

CRIMES CODE § 2904: INTERFERENCE WITH CUSTODY OF CHILDREN

 

Each of the elements that comprise the different gradings of 18 Pa.C.S.A. §2904 are so similar to each other in nature that the different gradings are cognate offenses of the other.  Commonwealth v. McCusker, 60 Som.L.J. 416 (August 15, 2003)(Cascio)

 

CRIMES CODE § 3121: RAPE

 

A person commits rape if he or she has sexual intercourse by forcible compulsion or by threat that would prevent resistance by a person of reasonable resolution. The force used or threatened can be physical force or violence. Commonwealth v. Davis, 64 Som.L.J. 224 (2009) (Klementik, J.).

 

CRIMES CODE § 3125: AGGRAVATED INDECENT ASSAULT

 

To be found guilty of aggravated indecent assault, 18 Pa. C.S.A. § 3125(6), the Commonwealth must prove beyond a reasonable doubt that defendant: (1) engaged in penetration, however slight; (2) with the victim's vagina; (3) with a part of his body; (4) for any purpose other than good faith medical, hygienic, or law enforcement measures; and (5) that the victim suffered from a mental disability which rendered her capable of consent.  Commonwealth v. Rafferty, 54 Som.L.J. 182 (Dec. 30, 1996) (Cascio, J.) 

 

If sufficient evidence is presented to show that the defendant was acquainted with the mental condition of the victim, the defendant's knowledge can be inferred by the jury from the facts and circumstances established by the evidence.  Commonwealth v. Rafferty, 54 Som.L.J. 182 (Dec. 30, 1996) (Cascio, J.)

 

CRIMES CODE § 3503: DEFIANT TRESPASS

 

Testimony by a police officer that he informed Defendant that he was prohibited from being in a certain area is sufficient to meet the requirements of a prima facie case for defiant trespass.  Com. v. Titus, 58 Som.L.J. 6 (2000) (J. Gibson) 

 

CRIMES CODE § 4904: UNWORN FALSIFICATION TO AUTHORITIES

 

A person commits a misdemeanor of the second degree if, with the intent to mislead a public servant in performing his official function, he makes any written false statement which he does not believe to be true.  Commonwealth v. Atkinson, 59 Som.L.J. 127 (2002) (Cascio, J.). 

 

To sustain a conviction on an unsworn falsification to authorities charge, the Commonwealth must prove that Defendant intended to mislead a public servant by making a written false statement that he did not believe to be true.          Commonwealth v. Atkinson, 59 Som.L.J. 127 (2002) (Cascio, J.).

 

CRIMES CODE § 5101: OBSTRUCTING THE ADMINISTRATION OF LAW

 

The offense of obstructing the administration of law, 18 Pa.C.S.A. § 1501, includes the element of intent, requiring that the Commonwealth prove that the defendant "intentionally" obstructed, impaired or perverted the administration of law or other governmental function by force, violence, physical interference or obstacle, or any other unlawful act.  Commonwealth v. Ulrich, 61 Som.L.J. 282 (2004) (Fike, II, P.J.). 

 

The evidence was sufficient to warrant a finding that the defendant acted intentionally.  Commonwealth v. Ulrich, 61 Som.L.J. 282 (2004) (Fike, II, P.J.).

 

CRIMES CODE § 5104: RESISTING ARREST

 

Use of passive resistance requiring substantial force to overcome provided sufficient evidence to support the charge of resisting arrest. Commonwealth v. David Allen Jenista, 64 Som.L.J. 18 (2008) (Cascio, P.J.).

 

CRIMES CODE § 5105: HINDERING APPREHENSION OR PROSECUTION

 

A defendant charged with hindering apprehension under 18 Pa.C.S. § 5105 is not required to know that the principal actually committed an offense or that he may be charged with one.  In Re: B.D., 62 Som.L.J. 9, 15 (2005) (Cascio, J.) 

 

The word "provide" as used in section 5105 does not require the defendant to take the initiative in supplying false information to law enforcement officers.  In Re: B.D., 62 Som.L.J. 9, 20 (2005) (Cascio, J.) 

 

Providing false responses to officers, standing alone, is not sufficient evidence to find that a defendant harbored or concealed a principal under section 5105(a)(1).  In Re: B.D., 62 Som.L.J. 9, 22 (2005) (Cascio, J.)

 

CRIMES CODE § 5503: DISORDERLY CONDUCT

 

In order for a disorderly conduct violation to occur, the acts complained of must involve some invasion of the quiet and peaceable enjoyment by the public of places dedicated to the use of the public.  Com. v. Szewczyk 58 Som.L.J. 171 (2001) (J. Cascio) 

 

"Public" as used in 18 Pa.C.S.A. Section 5503 means continuously held open to the public.  Com. v. Szewczyk 58 Som.L.J. 171 (2001) (J. Cascio) 

 

A defendant who is vulgar and loud to the police while in his or her own home is not in violation of Section 5503.  Com. v. Szewczyk 58 Som.L.J. 171 (2001) (J. Cascio)

 

When an offender engages in fighting or threatening, or in violent or tumultuous behavior in a public arena, even when that conduct is directed only at one other person, the offender may be subject to conviction for disorderly conduct. Commonwealth v. John Rugg, 64 Som.L.J. 7 (2008) (Cascio, P.J.).

 

The Commonwealth burden of proof to support a misdemeanor charge of Disorderly Conduct is stated in the disjunctive rather than the conjunctive. The Commonwealth is not required to prove both that intent to cause public inconvenience, annoyance and alarm, or recklessly created that risk and that Defendant persisted after a reasonable warning or request to desist. Commonwealth v. David Allen Jenista, 64 Som.L.J. 18 (2008) (Cascio, P.J.).

 

CRIMES CODE § 5903: OBSCENE & OTHER SEXUAL MATERIALS OR PERFORMANCES

           

Material or performance is obscene if, (1) the average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest; (2) the subject matter depicts or describes in a patently offensive way, sexual conduct of a type described in this section; and (3) the subject matter, taken as a whole, lacks serious literary, artistic, political, educational or scientific value.  Commonwealth v. Sale, 52 Som.L.J. 40  (1993) (Cascio)

 

A work cannot be held obscene unless each element of the test has been evaluated independently and all three have been met.  Commonwealth v. Sale, 52 Som.L.J. 40 (1993) (Cascio)

 

The first two prongs of the Miller test, whether the challenged materials appeal to the prurient interest and whether the materials depict sexual conduct in a patently offensive way, are to be judged by reference to community standards.  Commonwealth v. Sale, 52 Som.L.J. 40  (1993) (Cascio)

 

For purposes of applying the contemporary community standards, the community is the state of Pennsylvania.  18 Pa.C.S.A. 5903 (b).  Commonwealth v. Sale, 52 Som.L.J. 40  (1993) (Cascio)

 

Unlike the prurient interest and patent offensiveness tests, the proper inquiry under the third prong of the Miller test is not whether an ordinary member of any given community would find serious literary, artistic, political or scientific value, but whether a reasonable person would find such value in the material, taken as a whole.  Commonwealth v. Sale, 52 Som.L.J. 40  (1993) (Cascio)

 

Expert testimony is not necessary to establish contemporary community standards in regard to obscenity.  Commonwealth v. Sale, 52 Som.L.J. 40  (1993) (Cascio)

 

The rationale behind the admission of comparative evidence is to allow the defendant in an obscenity case the opportunity to attempt to persuade the trier of fact that the challenged material does not exceed contemporary community standards, as represented by comparable material and against which the challenged material is judged.  Commonwealth v. Sale, 52 Som.L.J. 40  (1993) (Cascio)

 

In order for there to be a rational basis for the admission of comparable evidence there must be a showing that the proffered evidence (1) is similar to the items of evidence in issue, and (2) enjoys a reasonable degree of community acceptance.  Commonwealth v. Sale, 52 Som.L.J. 40  (1993) (Cascio)

 

The contemporary community standard element, necessary to establish the obscenity of lack of obscenity of published material is not concerned with the availability of the material, but rather with its acceptability.  Commonwealth v. Sale, 52 Som.L.J. 40  (1993) (Cascio)

 

Properly conducted opinion surveys may be useful in gauging community standards to determine whether materials in issue are obscene.  Commonwealth v. Sale, 52 Som.L.J. 40  (1993) (Cascio)

 

To be admissible, however, a public opinion poll must be relevant; it must ask questions concerning the materials involved in the case of works that are clearly akin to the charged materials.  Commonwealth v. Sale, 52 Som.L.J. 40  (1993) (Cascio)

 

The government bears the burden of proving all three elements of obscenity to the satisfaction of the trier of fact, but is not constitutionally required to introduce evidence of community standards.  Commonwealth v. Sale, 52 Som.L.J. 40  (1993) (Cascio)

 

The finder of fact is free to decide that the government has failed to prove that the materials, although unprotected by virtue of their "hard core" content, are patently offensive to the average member of the community.  Commonwealth v. Sale, 52 Som.L.J. 40  (1993) (Cascio)

 

The First Amendment protects works, which, taken as a whole, have serious literary, artistic, political or scientific value, regardless of whether the government or a majority of people approve of the ideas that these works represent.  Commonwealth v. Sale, 52 Som.L.J. 40 (1993) (Cascio)

 

In the area of freedom of speech and press the courts must always remain sensitive to any infringement of genuinely serious literary, artistic, political or scientific expression.  Commonwealth v. Sale, 52 Som.L.J. 40 (1993) (Cascio)

 

CRIMES CODE § 6105: PERSONS NOT TO POSSESS, USE, MANUFACTURE, CONTROL, SELL OR TRANSFER FIREARMS

 

A person who has been adjudicated as an incompetent or who has been involuntarily committed to a mental institution for inpatient care and treatment under section 302, 303 or 304 of the Mental Health Procedures Act is not to possess, use, manufacture, control sell or transfer firearms.  Commonwealth v. Atkinson, 59 Som.L.J. 127 (2002) (Cascio, J.). 

 

Upon application to the court of common pleas by an applicant, the court may grant such relief as it deems appropriate if the court determines that the applicant may possess a firearm.  Commonwealth v. Atkinson, 59 Som.L.J. 127 (2002) (Cascio, J.). 

 

State institutions means and includes all hospitals for the mentally ill or any other institutions for mentally retarded or epileptic persons, or for juvenile delinquents and dependants, and charitable institutions, within this Commonwealth, and whose boards of trustees are departmental administrative boards within the department.  Commonwealth v. Atkinson, 59 Som.L.J. 127 (2002) (Cascio, J.). 

 

When Defendant's own statements are the only proof of his state of mind at the time of the conduct in questions, his conduct cannot be said to be a knowing and intentional act of deceit.  Commonwealth v. Atkinson, 59 Som.L.J. 127 (2002) (Cascio, J.).

 

CRIMES CODE § 6111: SELL OR TRANSFER OF FIREARMS

 

Any person, purchaser or transferee who in connection with the purchase, delivery or transfer of a firearm knowingly and intentionally makes any material false oral or written statement commits a felony of the third degree.  Commonwealth v. Atkinson, 59 Som.L.J. 127 (2002) (Cascio, J.).

 

CRIMES CODE § 6301: CORRUPTION OF MINORS

 

Several different physical acts/conduct may justify a charge of corruption of minors under 18 Pa.C.S.A. §6301.  These differing physical acts/conduct, even thought they are charged under the same crime of corruption of minors, are not cognate offenses to each other because they require different physical acts and conduct.  A corruption of minors charge based on one type of conduct would not provide the accused with reasonable notice of a corruption of minors charge under a different type of conduct. Commonwealth v. McCusker, 60 Som.L.J. 416 (August 15, 2003) (Cascio)

 

CRIMES CODE § 6310: INDUCEMENT OF MINORS TO BUY LIQUOR

 

The Department of Transportation improperly suspended an operator's license where the operator was not convicted of violating 18 Pa.C.S.A. 6310.3.  Commonwealth v. Ogline, 51 Som.L.J. 12 

 

Imposition of the mandatory license suspension under 6310.4 is a criminal penalty.  Commonwealth v. Ogline, 51 Som.L.J. 12 

 

A license suspension imposed pursuant to 18 Pa.C.S.A. 6310.4 is the mandatory criminal sentence upon conviction of underage drinking, and a defendant must be afforded all normal criminal procedural protections in relation to that sentence, including notice that suspension will result before a plea of guilty may be valid, notice at the time of conviction and sentencing that a suspension will be imposed and notice to the defendant of this right to appeal from the conviction and sentence pursuant to the Rules of Criminal Procedure.  Commonwealth v. Ogline, 51 Som.L.J. 12

 

CRIMES CODE § 9760: CREDIT FOR TIME SERVED

 

42 Pa.C.S.A. § 9760(1) states in pertinent part: Credit against the maximum term and any  minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based.  Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending resolution of an appeal.             Commonwealth v. King, 61 Som.L.J. 308, 311 (March 4, 2005) (Cascio, J.)

 

CRIMES CODE § 10301: CONTROLLED SUBSTANCES

 

The Defendant is charged with two violations of 35 P.S. § 780-113 (a) (32) which reads: (a) the

following acts and the causing thereof within the Commonwealth are hereby prohibited:  (32) The use of, or possession with intent to use, drug paraphernalia for the purpose of planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packing, repacking, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of this act.  Commonwealth v. Nathan Paul Lindeman, 61 Som.L.J. 30 (1995)(Gibson, J.) 

 

35 P.S. § 780-133 (a) (32), coupled with the guidance of 1 Pa.C.S.A. § 1902 is an all-inclusive provision outlawing possession of drug paraphernalia articles in all forms and, in particular, all numbers.  Commonwealth v. Nathan Paul Lindeman, 61 Som.L.J. 30 (1995)(Gibson, J.)

 

CRIMES VICTIM ACT

 

Under the Crimes Code, 18 Pa.C.S.A. § 1106, and the Sentencing Code, 42 Pa.C.S.A. §9721, the term "victim" is to be defined as set forth in the Crime Victims Act, 18 P.S. § 11.103.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

Section 103 of the Crime Victims Act defines victim as follows: (1) A direct victim. (2) A parent or guardian of a child who is a direct victim, except when the parent or legal guardian of the child is the alleged offender. (3) A family member of a homicide victim, including stepbrothers or stepsisters, stepchildren, stepparents, or a fiancée, one of whom is to be identified to receive communication as provided for in this Act, except where the family member is the alleged offender.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

Under the Crimes Victim Act, Section 103, 18 P.S. § 11.103 "Direct Victim" is defined as follows: An individual against whom a crime has been committed or attempted and who as a direct result of the criminal act or attempt suffers physical or mental injury, death, or the loss of earnings under this act.  The term shall not include the alleged offender.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

According to statutory definition "victim" as stated in the Sentencing Code and the Crimes Code, includes the passenger in the defendant's car who was seriously injured, and her parents.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

The passenger's medical expenses and transportation expenses necessarily incurred for treatment of her injuries in the accident will be ordered as restitution but not transportation expense for the parents' trips to the pharmacy.  Compensation for the vacation time used by the parents is excluded as too remote and speculative.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike)

 

EXTRADITION – GENERALLY

 

Pennsylvania's Extradition Act provides that, if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. 42 Pa.C.S.A. §9121 (2002).  Commonwealth v Sallam, 60 Som.L.J. 402 (2003) (Cascio, J).

 

At extradition hearing, the Commonwealth must show that the subject has been charged with a crime in the demanding state; the subject is a fugitive from that state; the subject was present in the demanding state at the time the crime was committed; the required papers are in order and the subject is in fact the person being charged.  Commonwealth v Sallam, 60 Som.L.J. 402 (2003) (Cascio, J). 

 

When a state which has lodged a detainer against a prisoner who is serving a term of imprisonment in another state requests temporary custody of the prisoner, trial shall be commenced within 120 days of the arrival of the prisoner in the receiving state. 42 Pa.C.S.A. §9101, Art. IV (c) (2002).  Commonwealth v Sallam, 60 Som.L.J. 402 (2003) (Cascio, J). 

 

Where a prisoner makes an Article III request for a final disposition of pending charges against him in the other state, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition of the charges. 42 Pa.C.S.A. §9101, Art. III (a) (2002).  Commonwealth v Sallam, 60 Som.L.J. 402 (2003) (Cascio, J).

 

EXTRADITION – INTERSTATE AGREEMENT ON DETAINERS ACT

 

The Interstate Agreement on Detainers Act was designed to encourage the expeditious and orderly disposition of charges outstanding against a prisoner and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints which produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. 42 Pa.C.S.A. §9101, Art. I (2002).  Commonwealth v Sallam, 60 Som.L.J. 402 (2003) (Cascio, J). 

 

The Interstate Agreement on Detainers Act is a remedial statute and, therefore, should be liberally construed in favor of the prisoner. 42 Pa.C.S.A. §9101, Art. IX (2002).  Commonwealth v Sallam, 60 Som.L.J. 402 (2003) (Cascio, J). 

 

The Interstate Agreement on Detainers Act is triggered once a state which is a member of the Agreement lodges a detainer or the equivalent thereof against a prisoner who is serving a sentence in a different state which is also a member of the Agreement.  Commonwealth v Sallam, 60 Som.L.J. 402 (2003) (Cascio, J). 

 

The Interstate Agreement on Detainers Act does not grant the prisoner the right to decide which sentence will be served first. Where a prisoner faces sentences in more than one sovereign, those sovereigns may execute agreements regarding the order in which those sentences should be served.  Commonwealth v Sallam, 60 Som.L.J. 402 (2003) (Cascio, J). 

 

Where the Commonwealth seeks to extradite an incarcerated prisoner under the Interstate Agreement on Detainers Act, subsection (d) of Article IV, preserves that prisoner's right to utilize the procedures set forth in Pennsylvania's Extradition Act, 42 Pa.C.S.A. §9126 (2002).  Commonwealth v Sallam, 60 Som.L.J. 402 (2003) (Cascio, J). 

 

When a prisoner makes a request under Article III of the Interstate Agreement on Detainers Act for a final disposition of a foreign state's charges, the prisoner voluntarily returns to the receiving state and thereby waives his or her right to challenge the extradition. 42 Pa.C.S.A. §9101, Art. III (2002).  Commonwealth v Sallam, 60 Som.L.J. 402 (2003) (Cascio, J). 

 

Article IV of the Interstate Agreement on Detainers Act provides that after there has been a request for temporary custody of a prisoner, there shall be a 30-day period within which the prisoner may make a motion for the disapproval of such request. 42 Pa.C.S.A. §9101, Art. IV (2002).  Commonwealth v Sallam, 60 Som.L.J. 402 (2003) (Cascio, J). 

 

Pennsylvania's Extradition Act provides that, if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. 42 Pa.C.S.A. §9121 (2002).  Commonwealth v Sallam, 60 Som.L.J. 402 (2003) (Cascio, J). 

 

FIREARMS – POSSESSION, USE, CONTROL

 

A person who has been adjudicated as an incompetent or who has been involuntarily committed to a mental institution for inpatient care and treatment under section 302, 303 or 304 of the Mental Health Procedures Act is not to possess, use, manufacture, control sell or transfer firearms.  Commonwealth v. Atkinson, 59 Som.L.J. 127 (2002) (Cascio, J.). 

 

Upon application to the court of common pleas by an applicant, the court may grant such relief as it deems appropriate if the court determines that the applicant may possess a firearm.  Commonwealth v. Atkinson, 59 Som.L.J. 127 (2002) (Cascio, J.). 

 

State institutions means and includes all hospitals for the mentally ill or any other institutions for mentally retarded or epileptic persons, or for juvenile delinquents and dependants, and charitable institutions, within this Commonwealth, and whose boards of trustees are departmental administrative boards within the department.  Commonwealth v. Atkinson, 59 Som.L.J. 127 (2002) (Cascio, J.). 

 

When Defendant's own statements are the only proof of his state of mind at the time of the conduct in questions, his conduct cannot be said to be a knowing and intentional act of deceit.  Commonwealth v. Atkinson, 59 Som.L.J. 127 (2002) (Cascio, J.). 

 

FIREARMS – PURCHASE, DELIVERY OR TRANSFER

 

Any person, purchaser or transferee who in connection with the purchase, delivery or transfer of a firearm knowingly and intentionally makes any material false oral or written statement commits a felony of the third degree.  Commonwealth v. Atkinson, 59 Som.L.J. 127 (2002) (Cascio, J.). 

 

When the Commonwealth's only evidence is a completed and signed ATF form that contains no instructions to which applicants can refer when unsure of how to properly answer a question asked, the Commonwealth's evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.  Commonwealth v. Atkinson, 59 Som.L.J. 127 (2002) (Cascio, J.). 

 

FORGERY

 

It is the intent with which the signature, authorized or not, is affixed to an instrument which determines whether or not the instrument is fraudulent or true. The misuse of an authorized signature without fraudulent intent would not constitute the crime of forgery.  Commonwealth v. Nist, 64 Som.L.J. 113 (2009) (Cascio, P.J.).

 

FORMER CRIMINAL PROSECUTION

 

The Commonwealth is prohibited from prosecuting a defendant based on its former prosecution of the defendant if a four-part test is met.  Commonwealth v. Villa, 61 SomL.J. 231 (2004) (J. Cascio) 

 

When determining what constitutes a "single criminal episode," courts consider 1) the temporal relationship between the acts in question and 2) the logical relationship between the acts.  Commonwealth v. Villa, 61 Som.L.J. 232 (2004) (J. Cascio) 

 

In determining whether a number of offenses are "logically related" to one another, a court should inquire into whether there is a substantial duplication of factual and/or legal issues presented by the offenses.  Commonwealth v. Villa, 61 Som.L.J. 232 (2004) (J. Cascio)

 

HABEAS CORPUS – EIGHTH AMENDMENT VIOLATIONS

 

If a petitioner's averments of prison conditions do not reveal a deprivation of the required minimal implements of life's necessities, then these averments are insufficient on which to base a claim of denial of basic mental or physical health care needs.  Rigall v. Sobina, et al., 60 Som.L.J. 42 (2002) (Fike, P.J.). 

 

Although the medical treatment of prisoners is usually a matter of penal administration, courts can acquire habeas jurisdiction where conditions of confinement are so seriously deficient so as to offend the Eighth Amendment prohibition against cruel and unusual punishment.  Commonwealth ex rel. Wileman v. Hunsberger, 61 Som.L.J. 404 (2005) (Fike, II, P.J.)

 

Habeas corpus is not to be entertained merely to correct prison conditions which can be remedied through appeal to prison authorities or to an administrative agency.  Commonwealth ex rel. Wileman v. Hunsberger, 61 Som.L.J. 404 (2005) (Fike, II, P.J.) 

 

The failure to exhaust administrative remedies, such as filing a grievance, bars the habeas corpus petition.  Commonwealth ex rel. Wileman v. Hunsberger, 61 Som.L.J. 404 (2005) (Fike, II, P.J.) 

 

The test for an Eighth Amendment violation with respect to medical treatment in prisons is whether the prison acted with "deliberate indifference to the serious medical needs of prisoners."  Commonwealth ex rel. Wileman v. Hunsberger, 61 Som.L.J. 404 (2005) (Fike, II, P.J.) 

 

The deliberate indifference standard contains both an objective element and a subjective element; the former requires that the deprivation suffered by the prisoner be "objectively, sufficiently serious," while the latter requires that the officials act with a "sufficiently culpable state of mind."  Commonwealth ex rel. Wileman v. Hunsberger, 61 Som.L.J. 404 (2005) (Fike, II, P.J.) 

 

"Absent a showing that [prison] officials have engaged in constitutionally impermissible conduct, it is not in the public's interest for the court to usurp the Bureau of Prisons' authority and micro-manage the medical needs of a particular inmate."  Berman v. Lamer, 874 F.Supp. 102, 106 (E.D. Pa. 1995).  Commonwealth ex rel. Wileman v. Hunsberger, 61 Som.L.J. 404 (2005) (Fike, II, P.J.) 

 

Even negligence or an inadvertent failure to provide adequate medical care does not provide support for an allegation of constitutional magnitude, and, additionally, disagreements over medical treatment are not actionable.  Commonwealth ex rel. Wileman v. Hunsberger, 61 Som.L.J. 404 (2005) (Fike, II, P.J.) 

 

Medical treatment of prisoners is a matter of penal administration, concerning which problem the courts will not take habeas jurisdiction.  However, if the deprivation rises to the level of cruel and unusual punishment proscribed by the Eighth Amendment it may be challenged by habeas corpus petition.  Commonwealth of Pennsylvania Ex Rel Donald C. Wlieman vs. Mardi Hunsberger, Acting Superintendent of SCI Laurel Highlands, 63 S.L.J. 76 (Fike, P.J., 2005). 

 

A habeas corpus petition will not be entertained until all administrative remedies have been exhausted.  Commonwealth of Pennsylvania Ex Rel Donald C. Wlieman vs. Mardi Hunsberger, Acting Superintendent of SCI Laurel Highlands, 63 S.L.J. 76 (Fike, P.J., 2005). 

 

A violation of the Eighth Amendment occurs when there is deliberate indifference to serious medical needs of prisoners that constitute the unnecessary and wanton infliction of pain.  Commonwealth of Pennsylvania Ex Rel Donald C. Wlieman vs. Mardi Hunsberger, Acting Superintendent of SCI Laurel Highlands, 63 S.L.J. 76 (Fike, P.J., 2005). 

 

The deliberate indifference standard for a violation of the Eighth Amendment contains both an objective element and a subjective element; the former requires that the deprivation suffered by the prisoner be objectively sufficiently serious.  To be sufficiently serious a prison official's act or omission must result in the denial of the minimal civilized measure of life's necessities.  The subjective element requires that the officials act with a sufficiently culpable state of mind.  Commonwealth of Pennsylvania Ex Rel Donald C. Wlieman vs. Mardi Hunsberger, Acting Superintendent of SCI Laurel Highlands, 63 S.L.J. 76 (Fike, P.J., 2005). 

 

Complaints about medical care, which merely reflect a disagreement between the prisoner and the doctors over the proper means of treating the prisoner's medical condition, do not rise to the level of a constitutional violation.   Commonwealth of Pennsylvania Ex Rel Donald C. Wlieman vs. Mardi Hunsberger, Acting Superintendent of SCI Laurel Highlands, 63 S.L.J. 76 (Fike, P.J., 2005).  

 

Negligence or inadvertent failure to provide adequate medial care to a prisoner does not provide support for an allegation of constitutional magnitude.  Commonwealth of Pennsylvania Ex Rel Donald C. Wlieman vs. Mardi Hunsberger, Acting Superintendent of SCI Laurel Highlands, 63 S.L.J. 76 (Fike, P.J., 2005). 

 

HABEAS CORPUS – GENERALLY

 

It is within the Court's discretion whether to grant a prisoner's petition to attend an arbitration hearing in civil case initiated by the prisoner.  Warman, Jr. v. Skelton, 53 Som.L.J. 151 (Aug. 24, 1994) (Fike, P.J.) 

 

In considering such a petition, the Court weighs various factors, including but not limited to, the costs and inconvenience of transporting the inmate, any potential dangers, the substantiality of the matter, the possibility of success on the merits, the integrity of the correctional institution and the interests of the inmate in presenting live testimony.  Warman, Jr. v. Skelton, 53 Som.L.J. 151 (Aug. 24, 1994) (Fike, P.J.) 

 

Under the circumstances, the factors militating against plaintiff's petition outweigh those in favor.  Warman, Jr. v. Skelton, 53 Som.L.J. 151 (Aug. 24, 1994) (Fike, P.J.)

 

A petition for writ of habeas corpus is not the proper procedure for obtaining an adjudication of eligibility for parole.  Commonwealth ex rel. Wynn v. Sobina, 54 Som.L.J. 227 (Oct. 20, 1995) (Fike, P.J.) 

When a petition for writ of habeas corpus fails to allege any basis upon which relief could be granted, it is properly dismissed.  Commonwealth ex rel. Wynn v. Sobina, 54 Som.L.J. 227 (Oct. 20, 1995) (Fike, P.J.). 

 

In order for the averments of a habeas corpus petition to state a claim for violation of procedural due process rights, the petition must show that administrative custody has imposed on the petitioner an atypical and significant hardship.  Rigall v. Sobina, et al., 60 Som.L.J. 42 (2002) (Fike, P.J.). 

 

If a petitioner's averments of prison conditions do not reveal a deprivation of the required minimal implements of life's necessities, then these averments are insufficient on which to base a claim of denial of basic mental or physical health care needs.  Rigall v. Sobina, et al., 60 Som.L.J. 42 (2002) (Fike, P.J.). 

 

A writ of habeas corpus is not the proper proceeding for obtaining an adjudication of whether or not a prisoner is eligible for, or entitled to, parole.  Rigall v. Sobina, et al., 60 Som.L.J. 42 (2002) (Fike, P.J.). 

 

A motion for writ of habeas corpus is the proper means for a defendant to challenge the sufficiency of the evidence submitted by the Commonwealth at a preliminary hearing.  Com. v. Sigmund, 60 Som.L.J. 218 (2002) (Gibson, J.). 

 

If a committing magistrate determines that a prima facie case is established and holds the matter for court, then a defendant may challenge this determination by Petition for Writ of Habeas Corpus.  Commonwealth v. Nathan Paul Lindeman, 61 Som.L.J. 30 (2003) (Gibson, J.) 

 

If the writ is issued, and the defendant discharged, then the Commonwealth has a right to appeal.  Commonwealth v. Nathan Paul Lindeman, 61 Som.L.J. 30 (1995) (Gibson, J.) 

 

If a committing magistrate determines that a prima facie case is established and holds the matter for court, then a defendant may challenge this determination by Petition for Writ of Habeas Corpus.  Commonwealth v. Nathan Paul Lindeman, 61 Som.L.J. 30 (June 25, 2003) (Gibson, J) 

 

In petitions for habeas corpus of this type, the court of common pleas must hear testimony de novo rather than decide upon the basis of testimony at the preliminary hearing, and that is the established practice in Pennsylvania.  Commonwealth v. Nathan Paul Lindeman, 61 Som.L.J. 30 (June 25, 2003) (Gibson, J.) 

 

The scope of the evidence that is permissible of presentation before the court of common pleas in a de novo hearing on a petition for Writ of Habeas Corpus is not limited to that evidence which was previously presented before the district justice, but may include any relevant evidence necessary to the establishment of a prima facie case on the behalf of the Commonwealth.  Commonwealth v. Nathan Paul Lindeman, 61 Som. L.J. 30 (June 25, 2003) (Gibson, J.) 

 

The initial burden of proof rests upon the defendant to demonstrate that his/her liberty is restrained; once the defendant's burden is met the burden shifts to the Commonwealth to establish a prima facie case.  Commonwealth v. Nathan Paul Lindeman, 61 Som. L.J. 30 (June 25, 2003) (Gibson, J.) 

 

As stated in Rivera v. Pennsylvania Department of Corrections, "the availability of habeas corpus in Pennsylvania is both prescribed and limited by statute.  Subject to these provisions, the writ may issue only when no other remedy is available for the condition the petitioner alleges or available remedies are exhausted or ineffectual.  Thus, ‘habeas corpus should not be entertained merely to correct prison conditions which can be remedied through an appeal to prison authorities or to an administrative agency.' Moreover, ‘it is not the function of the courts to superintend the treatment and discipline of prisoners in penal institutions.' Accordingly, the writ may be used only to extricate a petitioner from illegal confinement that constitute cruel and usual punishment.  ‘[T]he failure or refusal of prison authorities to exercise discretion in a particular way may not be reviewed in a habeas corpus proceedings.'"  837 A.2d 525, 528 (Pa. Super. 2003), appeal denied, 857 A.2d 680 (Pa. 2004).  Paulich v. Rozum, 62 Som.L.J. 147 (2005) (Fike, P.J.) 

 

When the substance of the "Motion to Quash" is identical to that of a writ of habeas corpus, the reviewing court undertakes an identical inquiry in disposing of the issue asserted and the relief sought is the same, there is no reason why an error in label should prevent a court from seeing that justice seeing that justice is done.  Commonwealth v. Mitchell, 62 Som.L.J. 250 (2003) (Cascio, J.).   

 

A habeas corpus challenge need only be answered by evidence sufficient to establish the elements of each offense prima facie.  Commonwealth v. Barclay, 62 Som.L.J. 288 (2005) (Cascio, J.). 

 

INJURED CHILD

 

Where an adult is given sole custody of a child of tender years for a period of time, and, during that time the child sustains injuries which may have been caused by a criminal agency, the finder of fact may examine any explanation offered and, if they find that explanation to be wanting, they may reject it and find the person having custody of the child responsible for the wounds.  Commonwealth v. Mitchell, 62 Som.L.J. 250 (2003) (Cascio, J.) 

 

Where an adult is given sole custody of a child of tender years for a period of time, and, during that time the child sustains injuries which may have been caused by a criminal agency, the finder of fact may examine any explanation offered and, if they find that explanation to be wanting, they may reject it and find the person having custody of the child responsible for the wounds.  Commonwealth v. Mitchell, 62 Som.L.J. 260 (2004) (Cascio, J.) 

 

Defendant's testimony, corroborated by two other witnesses, that he and a three year old were the only other people in the home when the decedent was injured, coupled with the testimony of the treating physician who examined the child and pathologist who examined the child performed the autopsy provided ample support for the jury's conclusion that defendant visited the injuries on the child which resulted in his death.  Commonwealth v. Mitchell, 62 Som.L.J. 260 (2004) (Cascio, J.)                                                 

 

INTENT

 

A person acts intentionally with respect to a material element of an offense when it is his conscious object to engage in conduct of that nature or to cause such a result.  In Re: B.D., 62 Som.L.J. 9, 12 (2005) (Cascio, J.) 

 

In the absence of a declaration disclosing a person's intent, therefore, one can only look to the conduct and circumstances surrounding it to determine the mental state which occasioned it.  In Re: B.D., 62 Som.L.J. 9, 12-13 (2005) (Cascio, J.)

 

A well-recognized and generally accepted inference to establish state of mind is that an actor intends the natural and probably consequences of his acts.  Commonwealth v. Mitchell, 62 Som.L.J. 250 (2003)(Cascio, J.)

 

In harassment cases, when the evidence clearly proves that the Defendant subjected the victim to some form of physical contact, the Court need only to consider whether or not the evidence proves beyond a reasonable doubt the intent to harass. Commonwealth v. John Rugg, 64 Som.L.J. 7 (2008) (Cascio, P.J.).

 

JURISDICTION – ATTORNEY GENERAL’S OFFICE

 

The Attorney General can only investigate and prosecute criminal actions within the confines of the Commonwealth Attorneys Act, which includes any criminal offense which it reasonably believes, at the time of the investigation and with information it then possesses, it is able to prosecute under the Act.  Commonwealth v. Lassinger (No. 1), 51 Som.L.J. 340 

 

The Attorney General may also prosecute in county criminal courts any criminal charges investigated by and referred to the Attorney General by a Commonwealth agency arising out of the enforcement provisions of the statute charging the agency with a duty to enforce its provisions.  Commonwealth v. Lassinger (No. 1), 51 Som.L.J. 340

 

JURISDICTION – GENERALLY

 

Venue and jurisdiction in criminal matters compared and contrasted.  Commonwealth v. Lenhart, 61 Som.L.J. 288, 293-95 (January 21, 2005) (Cascio, J.)

 

JURISDICTION – JOURNEY ACT

           

The "Journey Act," 19 P.S. § 525, permits venue to lie in any county through which a vehicle, in which a crime is committed, travels.  Commonwealth v. Lenhart, 61 Som.L.J. 288, 295-96 (January 21, 2005) (Cascio, J.) 

 

Despite the fact that 19 P.S. § 525 is no longer on the books, the courts have recognized, although this act may appear to have been permanently repealed, it is retained by virtue of 42 Pa.C.S.A. § 20003(b).  Commonwealth v. Lenhart, 61 Som.L.J. 288, 296 (January 21, 2005) (Cascio, J.) 

 

Because the criminal episode had its genesis in Somerset County, we find that all charges were properly tried here.  Commonwealth v. Lenhart, 61 Som.L.J. 288, 297 (January 21, 2005) (Cascio, J.)

 

JUVENILES – GENERALLY

 

The purpose of the Juvenile Act is, consistent with the protection of the public interest, to provide for children committing delinquent acts programs of supervision, care and rehabilitation which provide balanced attention to the protection of the community, the imposition of accountability for offenses committed and the development of competencies to enable children to become responsible and productive members of the community.  42. Pa. C.S.A. § 6301(b)(2).  In Re: Juvenile J.D., 54 Som.L.J. 377 (January 15, 1998) (Cascio, J.) 

 

If a child is found to be a delinquent child, the court may place the child on probation under supervision of the probation officer of the court or the court of another state as provided in section 6363 (relating to ordering foreign supervision), under conditions and limitations the court prescribes.  42 Pa. C.S.A. § 6532(a)(2).  In Re: Juvenile J.D., 54 Som.L.J. 377 (January 15, 1998) (Cascio, J.) 

 

The purpose of the Juvenile Act is not punishment.         In Re: Juvenile J.D., 54 Som.L.J. 377 (January 15, 1998) (Cascio, J.) 

 

The Juvenile Act is clear that a delinquent's disposition is a duty vested in the discretion of the adjudicating juvenile court.  The sentence will not be disturbed absent a manifest abuse of discretion.  In Re: Juvenile J.D., 54 Som.L.J. 377 (January 15, 1998) (Cascio, J.) 

 

While 42 Pa. C.S.A. § 6353 does put a time restraint on the disposition of juvenile court can impose upon a juvenile, that time restraint deals with commitment only.  The comment to § 6353 makes it clear that "its purposes are to ensure that a child not be committed for a period longer than that for which he could have been committed if convicted of the same offense in a criminal prosecution."  In Re: Juvenile J.D., 54 Som.L.J. 377 (January 15, 1998) (Cascio, J.) 

 

42 Pa. C.S.A. § 6552(a)(6) deals with the duration of orders requiring a juvenile to participate in a community service or education program to discharge his or her obligation to pay restitution, and has nothing to do with probation or commitment.  In Re: Juvenile J.D., 54 Som.L.J. 377 (January 15, 1998) (Cascio, J.) 

 

The Juvenile Act is silent on the issue of the duration of a probationary order.  This silence coupled with the specific limitation of duration of initial commitment orders found in § 6352(a)(6), leads to the conclusion that the Legislature intended to place no limit on the duration of probation orders, save the age 21 limitation on the extent of the jurisdiction of the Juvenile court.  In Re: Juvenile J.D., 54 Som.L.J. 377 (January 15, 1998) (Cascio, J.) 

 

By specifically limiting the period of initial commitment orders and community service / restitution orders without specific mention of limitations of periods of probation, the Legislature has, sub silento, left the determination of probation orders in juvenile cases to the sound discretion of the Juvenile court.  In Re: Juvenile J.D., 54 Som.L.J. 377 (January 15, 1998) (Cascio, J.) 

 

In determining whether to transfer a case charging murder or any of the offenses excluded from the definition of "delinquent act" in section 6302, the child shall be required to establish by a preponderance of the evidence that the transfer will serve the public interest.  IN determining whether the child has so established that the transfer will serve the public interest, the court shall consider the factors contained in section 6355(a)(4)(iii) (relating to transfer of criminal proceedings.)  Commonwealth v. Shonko/Lape, 54 Som.L.J. 385 (December 22, 1997) (Cascio, J.) 

 

When a juvenile seeks to have his case transferred from the criminal division to the juvenile division, he must show that he is in need of and amendable to treatment, supervision or rehabilitation in the juvenile system.  If the evidence fails to establish that the youth would benefit from the special features and programs of the juvenile system and there is no special reason for sparing the youth from adult prosecution, the petition must be denied and jurisdiction remains with the criminal division.  Commonwealth v. Shonko/Lape, 54 Som.L.J. 385 (December 22, 1997) (Cascio, J.) 

 

In the event that the evidence does not affirmatively demonstrate that the accused is the kind of youth who would benefit from the juvenile court system, jurisdiction would necessarily remain within the criminal court system.  Commonwealth v. Shonko/Lape, 54 Som.L.J. 385 (December 22, 1997) (Cascio, J.) 

 

If rehabilitation cannot be assured during the child's minority, the child has failed to establish that he was amendable to juvenile rehabilitation.  Commonwealth v. Shonko/Lape, 54 Som.L.J. 385 (December 22, 1997) (Cascio, J.) 

 

Unless the juvenile can ensure that he will be rehabilitated within the juvenile system, he will remain in the criminal court system.  Commonwealth v. Shonko/Lape, 54 Som.L.J. 385 (December 22, 1997) (Cascio, J.) 

 

The Rules of Criminal Procedure do not apply to juvenile proceedings unless otherwise specifically provided, and nowhere does Rule 600 specifically mention that its time bars apply to juvenile proceedings.  In Re: B.D., 62 Som.L.J. 9, 11 (2005) (Cascio, J.)

 

MALICE

 

Malice in its legal sense exists not only where there is particular ill will, but also where there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty.  Commonwealth v. Mitchell, 62 Som.L.J. 250 (2003)(Cascio, J.) 

 

Among the circumstances that should be considered when determining the existence of malice in a case where fists are used to cause a death are the size of the assailant, the ferocity of the attack, its duration, the provocation for it, and the manner in which the fists were used.   Commonwealth v. Mitchell, 62 Som.L.J. 250 (2003)(Cascio, J.)

 

MENTAL CAPACITY OF DEFENDANT (COMPETENCY TO STAND TRIAL)

 

It has long been established that a mentally incompetent person cannot be required to stand trial.  It is equally well established that the person asserting the mental incompetence to stand trial has the burden of proving incompetence by a preponderance of the evidence.  Commonwealth v. Gracik, 60 Som.L.J. 1 (2002) (Gibson, J.). 

 

The test to be applied in determining the legal sufficiency of his mental capacity to stand trial or enter a plea at the time involved, is not the M'Naughten "right or wrong" test, but rather his ability to comprehend his position as one accused and to cooperate with his counsel, in making a rational defense.  Commonwealth v. Gracik, 60 Som.L.J. 1 (2002) (Gibson, J.). 

 

The test can also be stated to be whether the defendant has sufficient mental ability at the time of trial, and a reasonable period prior to trial, to consult with his lawyer with a reasonable degree of rational understanding, and has a rational as well as factual understanding of the proceedings against him.  Commonwealth v. Gracik, 60 Som.L.J. 1 (2002) (Gibson, J.). 

 

Competency involves a defendant's mental state at trial, not his mental state at the time of the offense.  Commonwealth v. Gracik, 60 Som.L.J. 1 (2002) (Gibson, J.).

 

PREJUDICIAL ERROR

           

The mention of a defendant's parole status may inform a jury that a defendant has a criminal record.  Commonwealth v. Lenhart, 61 Som.L.J. 288, 299 (January 21, 2005) (Cascio, J.) 

 

There is no per se rule that requires a new trial for a defendant every time there is a reference to prior criminal activity.  Commonwealth v. Lenhart, 61 Som.L.J. 288, 300 (January 21, 2005) (Cascio, J.) 

 

Prejudice results where the testimony conveys to the jury, either expressly or by reasonable implication, that fact of a prior criminal offense.  Commonwealth v. Lenhart, 61 Som.L.J. 288, 301 (January 21, 2005) (Cascio, J.) 

 

The manner in which the reference comes into the record is to be examined.  Commonwealth v. Lenhart, 61 Som.L.J. 288, 301 (January 21, 2005) (Cascio, J.) 

 

The court may consider the likelihood that the jury would recognize the connection between the specific reference and the defendant's criminal record.  Commonwealth v. Lenhart, 61 Som.L.J. 288, 302 (January 21, 2005) (Cascio, J.) 

 

Even if the reference is recognized as indicative of prior criminal activity, relief may not be necessary unless the record indicates that prejudice resulted from the reference.  Commonwealth v. Lenhart, 61 Som.L.J. 288, 302 (January 21, 2005) (Cascio, J.) 

 

Because the Commonwealth did not intentionally elicit the brief references to the ankle bracelet and the electronic monitor, nor did the Assistant District Attorney dwell upon or call any further attention to them, coupled with our conclusion that is was unlikely that the members of the jury would make a connection between these isolated comments and defendant's prior criminal activity, we find no prejudice.  Commonwealth v. Lenhart, 61 Som.L.J. 288, 303 (January 21, 2005) (Cascio, J.) 

 

A juror's post-trial statement may only be considered when the extraneous influence comes from a source outside the trial process.  Commonwealth v. Lenhart, 61 Som.L.J. 288, 304 (January 21, 2005) (Cascio, J.) 

 

PRE-TRIAL MOTIONS

 

A motion to quash may be used to raise defects apparent on the face of the information or other defects that prohibit prosecution.  Com. v. Emeigh 58 Som.L.J. 90 (2000) (J.Cascio) 

 

A motion to quash is neither a guilty determining procedure nor a pre-trial means for determining the sufficiency of the Commonwealth's evidence.  Neither the adequacy nor the competency of the Commonwealth's evidence can be tested by a motion to quash the information.  Com. v. Emeigh 58 Som.L.J. 90 (2000) (J.Cascio) 

 

A pretrial Habeas Corpus hearing determines whether sufficient evidence has been presented to require that a defendant be held in custody for trial.  Com. v. Emeigh 58 Som.L.J. 90 (2000) (J.Cascio) 

 

Evidence to be considered at the Habeas Corpus hearing is not limited to evidence from the preliminary hearing; the court may also consider any additional evidence which the Commonwealth presents to further prove its prima facie case.  Com. v. Emeigh 58 Som.L.J. 90 (2000) (J.Cascio) 

 

If the Habeas Corpus court determines that a prima facie case in fact exists against an individual, then the individual has obtained a judicial review of the legality of the government's restraint upon his personal liberty.  Com. v. Emeigh 58 Som.L.J. 90 (2000) (J.Cascio) 

 

A prima facie case consists of evidence produced by the Commonwealth which sufficiently establishes that a crime has been committed and that the accused is probably the perpetrator of the crime.  Com. v. Emeigh 58 Som.L.J. 90 (2000) (J.Cascio) 

 

In a habeas corpus proceeding, we must determine whether of not the Commonwealth has established a prima facie case that a crime was committed and that defendant was the one who committed it.  Com. v. Szewczyk 58 Som.L.J. 171 (2001) (J. Cascio) 

 

Motion To Quash Information is the appropriate means to challenge facial defects or those defects that would prevent prosecution; but it is not appropriately used for determining guilt or pretrial sufficiency of the Commonwealth's evidence.  Commonwealth v. Beener, Jason D., 61 Som.L.J. 236 (2003)(Fike, II, P.J.)

 

When the substance of the "Motion to Quash" is identical to that of a writ of habeas corpus, the reviewing court undertakes an identical inquiry in disposing of the issue asserted and the relief sought is the same, there is no reason why an error in label should prevent a court from seeing that justice is done.  Commonwealth v. Mitchell, 62 Som.L.J 250 (2003) (Cascio, J).

 

PRE-TRIAL PREJUDICE

 

Pre-trial prejudice is presumed if: (a) the publicity is sensational, inflammatory, and slanted towards conviction rather than factual and objective; (2) the publicity reveals the accused's prior criminal record, if any, or if it refers to confessions, admission, or reenactments of the crime by the accused; and (3) the publicity is derived from police and prosecuting officer reports.   Commonwealth v. Mitchell, 62 Som.L.J. 260 (2004) (Cascio, J.). 

 

The presumptive prejudice test requires all three of the offending elements to be met in addition to the lack of a "cooling off" period to allow the prejudice to dissipate.   Commonwealth v. Mitchell, 62 Som.L.J. 260 (2004) (Cascio, J.).

 

PRE-TRIAL PUBLICITY

 

In determining whether a change of venue should be granted, the court's inquiry is whether any juror formed a fixed option of the defendant's guilt or innocence as a result of the pre-trial publicity.  Commonwealth v. Mitchell, 62 Som.L.J. 260 (2004) (Cascio, J.). 

 

There are occasions where pre-trial publicity is so pervasive and inflammatory that a defendant's normal burden of demonstrating actual juror prejudice for a change of venue is obviated.  Commonwealth v. Mitchell, 62 Som.L.J. 260 (2004) (Cascio, J.).

 

POST CONVICTION RELIEF ACT (PCRA)

           

Defendant is not entitled to relief pursuant to the Post-Conviction Relief Act on the basis of a statute of limitations defense where, upon advise of counsel regarding the possibility of such a defense, defendant knowingly and effectively waived such defense.  Commonwealth v. Rice, 52 Som.L.J. 80 

 

Where defendant, sentenced to imprisonment in the state correctional system, petitions the trial court under the Post-Conviction Relief Act for failure to award credit for concurrent sentences, defendant's challenge is cognizable only when the alleged error is attributable to ambiguity in the sentence imposed by the trial court, or when petitioner challenges the legality of trial court's failure to award credit for time served.  Commonwealth v. Rice, 52 Som.L.J. 80 

 

Defendant cannot collaterally attack the validity of the plea because of alleged false responses to the questions asked of him during the plea colloquy.  Commonwealth v. Mock, 53 Som.L.J. 65 

 

Possible prejudice of sending written instructions out with the jury outweighs any benefit which might be gained from this practice.  Commonwealth v. Todaro, 53 Som.L.J. 107 

 

The adequacy of counsel's representation will be assessed in light of the standards in effect at the time of representation; counsel need not predict changes in the law.  Commonwealth v. Todaro, 53 Som.L.J. 107 

 

Where an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of the adjudication up to and including any direct appeal.  Commonwealth v. Todaro, 53 Som.L.J. 107 

 

Note-taking by jurors is prohibited but a defendant is not entitled to relief unless he or she demonstrates prejudice.  Commonwealth v. Rininger, 54 Som.L.J. 24 (March 20, 1995) (Fike, P.J.) 

 

Where there is no evidence that the jurors were misled or misunderstood or deviated from the jury charge, and no other evidence of prejudice, a juror's note-taking does not constitute a grounds for new trial.  Commonwealth v. Rininger, 54 Som.L.J. 24 (March 20, 1995) (Fike, P.J.) 

 

Jurors are not competent to testify about proceedings in the jury room unless such testimony is in regard to outside influences acting upon the jury or its deliberations.  Commonwealth v. Rininger, 54 Som.L.J. 24 (March 20, 1995) (Fike, P.J.)

 

POST CONVICTION RELIEF ACT (PCRA) – INEFFECTIVE ASSISTANCE OF COUNSEL

 

Under the Post Conviction Relief Act, a petitioner must show three things pursuant to an ineffective assistance of counsel claim: 1) the underlying claim is of arguable merit; 2) no reasonable basis existed for counsel’s action or inaction; and 3) counsel’s error caused the prejudice such that there is a reasonable probability that result of the proceeding would have been different absent such error. Commonwealth v. Jason Charles Foy, 65 Som.L.J. 127 (2012) (Cascio, P.J.).

 

POST-TRIAL MOTIONS – PROCEDURAL ASPECTS

 

For a Motion in Arrest of Judgment, the court must evaluate the sufficiency of the evidence based on the entire trial record that is whether the jury could have determined that all of the elements were established beyond a reasonable doubt.  Commonwealth v. Davis, 51 Som.L.J. 73 

 

A Motion for New Trial may be granted where the verdict is contrary to the weight of the evidence, even if it was sufficient to sustain the verdict.  Commonwealth v. Davis, 51 Som.L.J. 73 

 

Boilerplate language in a post trial motion or motion for arrest of judgment is not sufficient and, absent specific averments, such motions will not be considered.  Commonwealth v. Rininger, 54 Som.L.J. 24; Commonwealth v. Awtey, 56 Som.L.J. 56; Commonwealth v. Suter, 56 Som.L.J. 316 

 

Defendant's argument that the pre-sentence investigation report contains a statement from defendant's State Parole Officer, evidencing similar but uncharged conduct by the defendant, should not have been reviewed by the Court prior to sentencing is waived for failure to raise issues regarding the discretionary aspects of sentencing at the sentencing proceedings or by post-trial motions.  Commonwealth v. Lenhart, 61 Som.L.J. 288, 306 (January 21, 2005) (Cascio, J.)

 

PRIMA FACIE CASE – PRELIMINARY HEARING

 

In the context of the Commonwealth's burden to prove a prima facie case at the preliminary hearing, Pennsylvania courts permit the use of hearsay evidence in instances where it appears that the Commonwealth will be able to cure the hearsay defects trial.  However, hearsay evidence alone is not sufficient to prove the prima facie case.  Com. v. Zerfoss, 60 Som.L.J. 136 (2002) (Cascio, J.). 

 

In its determination of whether a prima facie case has been established, the court must assume the Commonwealth's evidence is true.  Com. v. Zerfoss, 60 Som.L.J. 136 (2002) (Cascio, J.). 

 

The limited function of a preliminary hearing is to establish a prima facie case against the accused.  Commonwealth v. Sigmund, 60 Som.L.J. 218 (2002) (Gibson, J.). 

 

Before a defendant can be held for court, the Commonwealth must establish a prima facie case that a crime has been committed and that the defendant is probably the person who committed the crime.   Commonwealth v. Sigmund, 60 Som.L.J. 218 (2002) (Gibson, J.). 

 

In order to meet this burden, the Commonwealth must present evidence of each material element of the crime and establish sufficient probable cause to sustain the belief that the defendant committed the offense.  Commonwealth v. Sigmund, 60 Som.L.J. 218 (2002) (Gibson, J.). 

 

The initial burden of proof rests upon the Defendant to demonstrate that his/her liberty is restrained; once the defendant's burden is met the burden shifts to the Commonwealth to establish a prima facie case.  Commonwealth v. Nathan Paul Lindeman, 61 Som.L.J. 30 (1995)(Gibson, J.)

 

PRIOR CRIMINAL ACTIVITY

 

There is no per se rule that requires a new trial for a defendant every time there is a reference to prior criminal activity.  Commonwealth v. Lenhart, 61 Som.L.J. 288, 300 (January 21, 2005) (Cascio, J.) 

 

Prejudice results where the testimony conveys to the jury, either expressly or by reasonable implication, that fact of a prior criminal offense.  Commonwealth v. Lenhart, 61 Som.L.J. 288, 301 (January 21, 2005) (Cascio, J.) 

 

The manner in which the reference comes into the record is to be examined.  Commonwealth v. Lenhart, 61 Som.L.J. 288, 301 (January 21, 2005) (Cascio, J.) 

 

The court may consider the likelihood that the jury would recognize the connection between the specific reference and the defendant's criminal record.  Commonwealth v. Lenhart, 61 Som.L.J. 288, 302 (January 21, 2005) (Cascio, J.) 

 

Even if the reference is recognized as indicative of prior criminal activity, relief may not be necessary unless the record indicates that prejudice resulted from the reference.  Commonwealth v. Lenhart, 61 Som.L.J. 288, 302 (January 21, 2005) (Cascio, J.)

 

PRISONERS – ACCOUNTS (MONEY)

 

Inasmuch as the defendant's motion is directed at actions taken by the Department of Corrections, and contains a request for what essentially would amount to an injunction directing the Department of Corrections to cease deducting funds from the Defendant's prison account for payment of fines and costs under Act 84, the court concludes that pursuant to the provisions of the Judicial Code, the Court is without jurisdiction to hear the petition.  Com. of PA v. John Roscoe Shipley, 59 Som.L.J. 92 (2001) (P.J. Fike). 

 

42 C.S.A. § 761 grants to the Commonwealth Court exclusive original jurisdiction of all civil actions or proceedings against the Commonwealth government, including any officer thereof.  Com. of PA v. John Roscoe Shipley, 59 Som.L.J. 92 (2001) (P.J. Fike). 

 

The proceedings are transferred to the Commonwealth Court pursuant to provisions of Section 5103 of the Judicial Code, 42 Pa. C.S.A. § 5103.  Com. of PA v. John Roscoe Shipley, 59 Som.L.J. 92 (2001) (P.J. Fike).

 

PRISONERS – DISCIPLINE

 

Courts are not to superintend matters of treatment and discipline in penal institutions.  It is the responsibility of those in charge of the prison itself and those officers given supervisory powers, both state and local, to oversee and direct discipline and treatment within the penal institution.  The inquiry is limited to a determination of whether constitutional or statutory rights have been violated.  If none appears, the action must be dismissed.  Ideen v. Sobina et al. 58 Som.L.J. 443 (2000) (P.J. Fike) 

 

The administrators and officers of a penal institution have a substantial interest in maintaining prison order and discipline, and accordingly are afforded a great degree of discretion in the management of such prisons.  Ideen v. Sobina et al. 58 Som.L.J. 443 (2000) (P.J. Fike) 

 

Exhaustion of administrative remedies is required by the provisions of the Federal Prison Litigation Reform Act, 42 U.S.C. § 1997 e (a), as interpreted by the Third Circuit Court of Appeals in Sprouill v. Gillis, 372 F.3d 218 (3d Cir. 2004), incorporated into Pennsylvania law by the Pennsylvania Prison Litigation Reform Act, 42 Pa.C.S.A. § 6603.  Paulich v. Rozum, 62 Som.L.J. 147 (2005) (Fike, P.J.) 

 

We note that the averments of the petition and complaint do not show that administrative custody has imposed on the plaintiff an atypical and significant hardship, and conclude, consequently, that no liberty interest is involved.  Paulich v. Rozum, 62 Som.L.J. 147 (2005) (Fike, P.J.) 

 

We conclude that the issues raised by the plaintiff involve internal administration of a state correctional institution in which we should not interfere.   Paulich v. Rozum, 62 Som.L.J. 147 (2005) (Fike, P.J.) 

 

Courts are not to superintend matters of treatment and discipline in penal institutions.  Commonwealth ex rel. Wright v. Bannmiller, 195 Pa. Super. 124, 168 A.2d 925 (1961), cert. denied, 371 U.S. 841, 83 S. Ct. 70, 9 L.Ed.2d 77 (1962).  Paulich v. Rozum, 62 Som.L.J. 147 (2005) (Fike, P.J.) 

 

It is the responsibility of those in charge of the prison itself and those officers given supervisory powers, both state and local, to oversee and direct discipline and treatment within the penal institution.  Commonwealth ex rel Bryant v. Hendrick, 444 Pa. 83, 280 A.2d 110 (1971).  Paulich v. Rozum, 62 Som.L.J. 147 (2005) (Fike, P.J.) 

 

As stated in Rivera v. Pennsylvania Department of Corrections, "the availability of habeas corpus in Pennsylvania is both prescribed and limited by statute.  Subject to these provisions, the writ may issue only when no other remedy is available for the condition the petitioner alleges or available remedies are exhausted or ineffectual.  Thus, ‘habeas corpus should not be entertained merely to correct prison conditions which can be remedied through an appeal to prison authorities or to an administrative agency.' Moreover, ‘it is not the function of the courts to superintend the treatment and discipline of prisoners in penal institutions.' Accordingly, the writ may be used only to extricate a petitioner from illegal confinement that constitute cruel and usual punishment.  ‘[T]he failure or refusal of prison authorities to exercise discretion in a particular way may not be reviewed in a habeas corpus proceedings.'"  837 A.2d 525, 528 (Pa. Super. 2003), appeal denied, 857 A.2d 680 (Pa. 2004).  Paulich v. Rozum, 62 Som.L.J. 147 (2005) (Fike, P.J.)

 

PRISONERS – MAILBOX RULE

 

The prisoner mailbox rule has been adopted in Pennsylvania and extended to the filing of PCRA Petitions.  Commonwealth v. Castro, 766 A.2d 1283 (Pa. Super. 2001).  Commonwealth v. Smith, 62 Som.L.J. 180 (2005) (Fike, P.J.) 

 

The prisoner mailbox rule provides that the date of delivery of the petition to the proper prison authorities or to a prison mailbox is considered the date of filing.   Commonwealth v. Smith, 62 Som.L.J. 180 (2005) (Fike, P.J.) 

 

We find in the instant case that the defendant's Motion Challenging Validity of Guilty Plea and Petition to Withdraw was timely filed by his delivering of the motion and petition to prison authorities on May 13, 2004, within ten days of his sentencing date.  Commonwealth v. Smith, 62 Som.L.J. 180 (2005) (Fike, P.J.) 

 

There is no evidence that the notice required by Pa. R. Crim. P. 720 (B)(4) was attached to the Order denying the defendant's post sentence motion.  Consequently, we must conclude that the defendant's right to direct appeal must now be recognized and the defendant shall be granted the right to file direct appeal within thirty (30) days from the date of this Order.   Commonwealth v. Smith, 62 Som.L.J. 180 (2005) (Fike, P.J.) 

 

We note that the defendant specifically waived his right to counsel in the sworn statements accompanying his Motion Challenging Validity of Guilty Plea and Petition to Withdraw, and his Petition For Writ of Habeas Corpus, and, consequently, there was no duty for trial counsel to consult with one defendant regarding appeal.  Commonwealth v. Smith, 62 Som.L.J. 180 (2005) (Fike, P.J.)

 

PROBATION & PAROLE – GENERALLY

 

A petition for writ of habeas corpus is not the proper procedure for obtaining an adjudication of eligibility for parole.  Commonwealth ex rel. Wynn v. Sobina, 54 Som.L.J. 227 (Oct. 20, 1995) (Fike, P.J.) 

 

42 Pa. C.S.A. § 6552(a)(6) deals with the duration of orders requiring a juvenile to participate in a community service or education program to discharge his or her obligation to pay restitution, and has nothing to do with probation or commitment.  In Re: Juvenile J.D., 54 Som.L.J. 377 (January 15, 1998) (Cascio, J.) 

 

The Juvenile Act is silent on the issue of the duration of a probationary order.  This silence coupled with the specific limitation of duration of initial commitment orders found in § 6352(a)(6), leads to the conclusion that the Legislature intended to place no limit on the duration of probation orders, save the age 21 limitation on the extent of the jurisdiction of the Juvenile court.  In Re: Juvenile J.D., 54 Som.L.J. 377 (January 15, 1998) (Cascio, J.) 

 

By specifically limiting the period of initial commitment orders and community service/restitution orders without specific mention of limitations of periods of probation, the Legislature has, sub silento, left the determination of probation orders in juvenile cases to the sound discretion of the Juvenile court.  In Re: Juvenile J.D., 54 Som.L.J. 377 (January 15, 1998) (Cascio, J.) 

 

Recent Appellate authority interpreting amendments to the Sentencing Code and Crimes Code indicate that the prior distinction between imposition of restitution as a sentence as opposed to a condition of probation, may no longer be valid.  Com. v. Wong, 58 Som.L.J. 273 (2001) (P.J. Fike) 

 

Even if the distinction between restitution as a direct sentence and as a probation condition is accepted, under the facts of this case, the victim's claim for restitution for expense of traveling to and from meetings with police, the Probation Department, and the District Attorney's staff will not be granted under either criteria.  Com. v. Wong, 58 Som.L.J. 273 (2001) (P.J. Fike) 

 

Restitution will not be granted as a probation condition when there is a lack of direct connection between the defendant's acts and the claimed loss, restitution would not serve any rehabilitative purpose, and an order of restitution might cause the defendant to continue to harbor a psychological connection with the victim.  Com. v. Wong, 58 Som.L.J. 273 (2001) (P.J. Fike) 

 

PROBATION & PAROLE – REVOCATION

 

Where a defendant is in custody because of a second criminal conviction and not simply because of a prima facie showing of a parole violation, the interest in providing a prompt revocation hearing to avoid the incarceration of an innocent person is substantially reduced.  Com. v. Reffner, 60 Som.L.J. 112 (2002) (Cascio, J.). 

 

Where neither party suggests any reason for the delay in a probation revocation hearing, such failure must be read in a light favorable to the Defendant.  Com. v. Reffner, 60 Som.L.J. 112 (2002) (Cascio, J.). 

 

Defendant's admission of heroin use to her parole officer was properly considered in determining the Commonwealth's Petition to Revoke Bond and Petition to Revoke Parole.  Commonwealth v. Trout, 61 Som.L.J. 224 (Cascio, J.) 

 

Generally, Defendant's parole may not be revoked based only upon hearsay information.  Commonwealth v. Trout, 61 Som.L.J. 224 (Cascio, J.) 

 

The corpus delicti standard will not be applied to parole revocation hearings (i.e. Gagnon proceedings); rather, it is more appropriately applied in a trial setting.  Commonwealth v. Trout, 61 Som.L.J. 224 (Cascio, J.)

 

PROSECUTORIAL VINDICTIVENESS

 

Prosecutorial Vindictiveness is the practice of singling a person out for prosecution under a law or regulation because has exercised a constitutionally protected right.  Commonwealth v. D'Arcangelo, 62 Som.L.J. 430 (2005) (Cascio, J.) 

 

The United States Supreme Court recognizes two distinct situations in which the appearance of vindictiveness may require inquiry and judicial intervention.  The first is where a prosecutive decision is based on discriminatory grounds of race, religion, national origin or other impermissible classification.  The other situation is where the accused is treated more harshly because he has successfully exercised a lawful right.  Commonwealth v. D'Arcangelo, 62 Som.L.J. 430 (2005) (Cascio, J.) 

 

The Commonwealth is never under any legal obligation to plea bargain with any defendant.  The decision whether to enter into plea negotiations is a function of the prosecutorial discretion and the appellate court will not review such decisions unless they are based upon invidious classifications such as race, religion, or national origin.  Commonwealth v. D'Arcangelo, 62 Som.L.J. 430 (2005) (Cascio, J.) 

 

RECORDS & TRANSCRIPTS

           

A criminal defendant's application for an order mandating the Clerk of Courts or court stenographer to furnish court records and transcribe notes of testimony will not be granted where the defendant has not demonstrated a compelling or justifiable reason for the request, and where no appeal or other proceeding is currently pending for which a transcript might be needed.  Commonwealth v. Greeley, 52 Som. 283 (1994). 

 

If defense counsel is given full access to the pre-sentence investigation report at the time of sentencing, it is not required that the report be provided to the defendant.  Commonwealth v. Carroll, 54 Som. L.J. 263 (May 14, 1996) (Fike, P.J.)

 

RULE 600 – EXCLUDABLE TIME VS. EXCLUDABLE DELAY

 

“Excludable time” is defined in Rule 600(C) as the period of time between the filing of the written complaint and the defendant's arrest, provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence; any period of time for which the defendant expressly waives Rule 600; and/or such period of delay at any stage of the proceedings as results from: (a) the unavailability of the defendant or the defendant's attorney; (b) any continuance granted at the request of the defendant or the defendant's attorney. Commonwealth v. Maust, 65 Som. L.J. 78 (2011) (Cascio, P.J.)

 

“Excusable delay” is not expressly defined in Rule 600, but the legal construct takes into account delays which occur as a result of circumstances beyond the Commonwealth's control and despite its due diligence. Commonwealth v. Maust, 65 Som. L.J. 78 (2011) (Cascio, P.J.)

 

RULE 600 – DUE DILIGENCE – MOTION TO DISMISS

 

The “due diligence” required under Rule 600(C)(1) pertains to the Commonwealth's efforts to apprehend the defendant. The other aspects of Rule 600(C) defining “excludable time” do not require a showing of due diligence by the Commonwealth. Commonwealth v. Maust, 65 Som. L.J. 78 (2011) (Cascio, P.J.)

 

If the Commonwealth attempts to bring a defendant to trial beyond the 365 day-period prescribed by Rule 600, and the defendant files a Rule 600 motion to dismiss, the court must assess whether there is excludable time and/or excusable delay. Commonwealth v. Maust, 65 Som. L.J. 78 (2011) (Cascio, P.J.)

 

Even where a violation of Rule 600 has occurred, a motion to dismiss the charges should be denied if the Commonwealth exercised due diligence and the circumstances occasioning the postponement were beyond the control of the Commonwealth. Commonwealth v. Maust, 65 Som. L.J. 78 (2011) (Cascio, P.J.)

 

RULE 600 – RULE 600E – RULE 600G

 

The concepts of “excusable delay” and “due diligence,” both applicable in cases where Rule 600 (G) is implicated, do not apply when only Rule 600 (E) is in play. Commonwealth v. Maust, 65 Som. L.J. 78 (2011) (Cascio, P.J.)

 

The plain language of Rule 600(E), referring only to the “excludable time” described in Rule 600(C), does not encompass delays attributable to actions of the Commonwealth, even when performed with due diligence. Commonwealth v. Maust, 65 Som. L.J. 78 (2011) (Cascio, P.J.)

 

Rule 600(E) contemplates an increase in the number of days of pretrial incarceration in excess of 180 based only upon the exclusions of time referenced in Rule 600(C), attributable to the defendant, and not upon extensions of time pursuant to Rule 600(G) for actions taken diligently by the Commonwealth. Commonwealth v. Maust, 65 Som. L.J. 78 (2011) (Cascio, P.J.)

 

RULE 700 – SENTENCING JUDGE

 

Pursuant to Pa.R.Crim.P. 700, the judge who presided at the trial or who received the plea of guilty or nolo contendere shall impose sentence unless there are extraordinary circumstances which preclude the judge’s presence.  In such event, another judge shall be assigned to impose sentence. Commonwealth v. Jason Charles Foy, 65 Som.L.J. 127 (2012) (Cascio, P.J.).

 

Where no exception was found under Pa.R.Crim.P. 700 to allow another judge to impose sentence, defendant’s prior sentence must be vacated and the case remanded for re-sentencing before the judge who presided at defendant’s trial. Commonwealth v. Jason Charles Foy, 65 Som.L.J. 127 (2012) (Cascio, P.J.).

 

SENTENCING – COMPUTATION

           

Computation of a state sentence is a function of the Bureau of Corrections.  Commonwealth v. Durst, 52 Som.L.J. 280 

 

If an alleged error in the computation of a sentence is thought to be the result of an erroneous computation by the Bureau of Corrections, then the appropriate vehicle for redress is an original action in the Commonwealth Court challenging the Bureau's computation.  Commonwealth v. Durst, 52 Som.L.J. 280 

 

A challenge to the Bureau of Correction's computation or construction of the terms of sentences imposed is neither a direct nor even a collateral attack on the sentences imposed by the trial court; and so, such claims were not deemed cognizable in PCHA proceedings.  Commonwealth v. Durst, 52 Som.L.J. 280 

 

SENTENCING – CREDIT FOR TIME SERVED

 

Credit for time served with regard to sentences of incarceration is governed by 42 PA. C.S. §9760.  Commonwealth v. Zemba, 59 Som.L.J. 189 (2001) (Gibson, J.). 

 

Credit for time served used to be governed by Pa.R.Cr.P 1406, but this rule was amended in 1992, and its comment reads as follows: The computation of sentences and credit for time served are governed by the Sentencing Code, 42 Pa.C.S.§§9760 and 9761.  Commonwealth v. Zemba, 59 Som.L.J. 189 (2001) (Gibson, J.). 

 

The Court in Bleecher set forth the principle that a defendant shall be given credit for any days spent in custody prior to the imposition of sentence, but only if such commitment is for the offense for which sentence is imposed.  Commonwealth v. Zemba, 59 Som.L.J. 189 (2001) (Gibson, J.). 

 

Credit is not given for a commitment by reason of a separate and distinct offense.  Commonwealth v. Zemba, 59 Som.L.J. 189 (2001) (Gibson, J.). 

 

In computing credit, a court shall first determine whether 18 Pa.C.S.§1360(4), now 42 Pa. C.S.§9760(4), applies, and only if that statutory provision is inapplicable is the principle set forth in Bleecher to be applied.  Commonwealth v. Zemba, 59 Som.L.J. 189 (2001) (Gibson, J.). 

 

A defendant cannot receive credit twice for a single period of confinement. Commonwealth v. Zemba, 59 Som.L.J. 189 (2001) (Gibson, J.). 

 

As a general rule, a trial court lacks authority to modify a sentence after an appeal has been filed or thirty days have passed from the entry of the judgment of sentence.  Commonwealth v. Zemba, 59 Som.L.J. 189 (2001) (Gibson, J.). 

 

A challenge to the trial court's failure to award credit for time served prior to sentencing involves the legality of the sentence, and therefore, this issue may properly be raised after the thirty day appeal period following sentence has passed.  Commonwealth v. Zemba, 59 Som.L.J. 189 (2001) (Gibson, J.). 

 

The trial court unquestionably possesses the inherent power to correct an unlawful sentence at any time.  Commonwealth v. Zemba, 59 Som.L.J. 189 (2001) (Gibson, J.). 

 

42 Pa. C.S.§9760(4) requires the following facts to be present in order for credit to be granted for a period of incarceration: (1) the defendant is arrested on one charge; (2) the defendant is later prosecuted on another charge growing out of an act or acts that occurred prior to his arrest; and (3) the time spent in custody as a result of the charge for which the defendant was arrested has not been credited against another sentence.  Commonwealth v. Zemba, 59 Som.L.J. 189 (2001) (Gibson, J.). 

 

When an individual is being incarcerated in a state on both that state's and another state's charges, and the charges of the state where he/she is being held are subsequently dismissed, the individual is entitled to credit toward the balance of the sentence he/she is now serving by reason of parole revocation.  Commonwealth v. Foy, 60 Som.L.J. 192 (2002) (Fike, P.J.). 

 

42 Pa.C.S.A. § 9760(1) states in pertinent part: Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based.  Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending resolution of an appeal.  Commonwealth v. King, 61 Som.L.J. 308, 311 (March 4, 2005) (Cascio, J.) 

 

In determining whether a person has spent time in custody it is necessary to examine the extent of control exercised by those in authority.  Commonwealth v. King, 61 Som.L.J. 308, 312 (March 4, 2005) (Cascio, J.) 

 

Courts must examine the rules and regulations of each program on a case-by-case basis by considering the extent of control exercised by those in authority and the restraints and limitations on the freedom of the individual seeking credit for time served.  Commonwealth v. King, 61 Som.L.J. 308, 314 (March 4, 2005) (Cascio, J.)

 

When the validity of prior offense set forth in a pre-sentence report is challenged, the defendant has the burden of alleging invalid prior convictions, and if the allegations appear to have merit, the court ordinarily should inquire into the circumstances surrounding the convictions.  Com. v. Williams, 58 Som.L.J. 357 (2000) (J. Gibson) 

 

Information concerning prior convictions in the pre-sentence report is presumed to be valid, which presumption can only be rebutted by the defense, and need not be supported by evidence from the Commonwealth unless and until a challenge is raised.  Com. v. Shaffer, 58 Som.L.J. 294 (2000) (J. Gibson) 

 

Offenses committed in Pennsylvania prior to 1976 were properly included in the calculation of the defendant's prior record score.  Com. v. Shaffer, 58 Som.L.J. 294 (2000) (J. Gibson) 

 

SENTENCING – LEGALITY, INCONSISTENT VERDICT

 

The trial court did not err in finding Defendant Not Guilty of the summary offense of Harassment while at the same time finding Defendant guilty of Simple Assault because the mens rea element of each is different and the trial court believed that his actions were more consistent with the mens rea to cause bodily injury to the victim. Commonwealth v. Davis, 64 Som.L.J. 198 (2009) (Klementik).

 

SENTENCING – RESTITUTION – GENERALLY

 

Recent Appellate authority interpreting amendments to the Sentencing Code and Crimes Code indicate that the prior distinction between imposition of restitution as a sentence as opposed to a condition of probation, may no longer be valid.  Com. v. Wong, 58 Som.L.J. 273 (2001) (P.J. Fike) 

 

Even if the distinction between restitution as a direct sentence and as a probation condition is accepted, under the facts of this case, the victim's claim for restitution for expense of traveling to and from meetings with police, the Probation Department, and the District Attorney's staff will not be granted under either criteria.  Com. v. Wong, 58 Som.L.J. 273 (2001) (P.J. Fike) 

 

If analyzed as a part of sentence under Crimes Code § 1106 and Sentencing Code § 9721, the requested restitution will not be imposed since the prerequisite injury and direct connection between injury and loss is lacking.  Com. v. Wong, 58 Som.L.J. 273 (2001) (P.J. Fike) 

 

Restitution will not be granted as a probation condition when there is a lack of direct connection between the defendant's acts and the claimed loss, restitution would not serve any rehabilitative purpose, and an order of restitution might cause the defendant to continue to harbor a psychological connection with the victim.  Com. v. Wong, 58 Som.L.J. 273 (2001) (P.J. Fike) 

 

Prior to recent amendments to Section 9721 of the Sentencing Code 42 Pa.C.S.A. Section 9821 (c), and Section 1106 of the Crimes Code, 18 Pa. C.S.A. Section 1106, the imposition of restitution as a sentence was discretionary with the Court.  Recent legislative direction has limited the court's discretion.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

Under the present versions of the Sentencing Code § 9721 and the Crimes Code § 1106, the imposition of restitution is mandatory.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

Although the award of restitution is now mandatory and a court must direct compensation for the full extent of the loss or damage, regardless of a defendant's ability to pay, the court must still consider the amount of loss by the victim and whether or not the defendant's action caused the injury.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

Restitution applies only for those crimes to property or person where there has been a loss that flows from the conduct which forms the basis of the crime for which a defendant is held criminally accountable.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

The amount of restitution awarded must be supported by the record and may not be speculative or excessive, and in addition, the sentencing court must apply a "but for" test in imposing restitution.  Damages which occur as a direct result of the crimes are those which should not have occurred but for the defendant's criminal conduct.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

Restitution does not enable a victim to make a claim for damages in a criminal trial.  Although it aids the victim, an order of restitution is not an award of damages, but its true purpose is the rehabilitation of the defendant.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

Although under present statutory and appellate direction, the court is mandated to order restitution to a victim so as to provide the victim with the fullest compensation for the loss, directly resulting from the crime, and without consideration of the current financial resources of the defendant, the award cannot be excessive or based on speculation.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

Since restitution is part of a criminal sentence, it must be supported by the record and the court must determine loss or damages resulting from defendant's conduct, the amount of compensation defendant can afford to pay, and how such amount should be paid.  Commonwealth v. McCusker, 61 Som.L.J. 131 (2003) (Cascio, J.) 

 

The insufficiency of the record to establish that Defendant's conduct relative to the charges filed in Pennsylvania, as opposed to her conduct relative to the charges filed in Wisconsin, was the cause of the juvenile's placement for diagnostic evaluation prevents us from granting the Commonwealth's Motion to Modify Sentence.  Commonwealth v. McCusker, 61 Som.L.J. 131 (2003) (Cascio, J.) 

 

18 Pa.C.S.A. § 1106(c) states that the court shall order full restitution regardless of the current financial resources of the defendant, so as to provide the victim with the fullest compensation for the loss.  Commonwealth v. King, 61 Som. L.J. 308, 315 (March 4, 2005) (Cascio, J.) 

 

Because restitution is a sentence, the amount ordered must be supported by the record; it may not be speculative or excessive.  Commonwealth v. King, 61 Som. L.J. 308, 316 (March 4, 2005) (Cascio, J.) 

 

SENTENCING – RESTITUTION – VICTIM

 

Under the Crimes Code, 18 Pa.C.S.A. § 1106, and the Sentencing Code, 42 Pa.C.S.A. §9721, the term "victim" is to be defined as set forth in the Crime Victims Act, 18 P.S. § 11.103.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

Section 103 of the Crime Victims Act defines victim as follows: (1) A direct victim. (2) A parent or guardian of a child who is a direct victim, except when the parent or legal guardian of the child is the alleged offender. (3) A family member of a homicide victim, including stepbrothers or stepsisters, stepchildren, stepparents, or a fiancee, one of whom is to be identified to receive communication as provided for in this Act, except where the family member is the alleged offender.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

Under the Crimes Victim Act, Section 103, 18 P.S. § 11.103 "Direct Victim" is defined as follows : An individual against whom a crime has been committed or attempted and who as a direct result of the criminal act or attempt suffers physical or mental injury, death, or the loss of earnings under this act.  The term shall not include the alleged offender.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

According to statutory definition "victim" as stated in the Sentencing Code and the Crimes Code, includes the passenger in the defendant's car who was seriously injured, and her parents.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

The passenger's medical expenses and transportation expenses necessarily incurred for treatment of her injuries in the accident will be ordered as restitution but not transportation expense for the parents' trips to the pharmacy.  Compensation for the vacation time used by the parents is excluded as too remote and speculative.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

The execution of a general release upon obtaining a civil settlement is irrelevant for purposes of the trial court’s determination of the amount of restitution to be imposed as part of the defendant’s sentence. Com. v. Woy, 64 Som.L.J. 159 (2009) (J. Cascio).

 

SOLID WASTE MANAGEMENT ACT

 

If an individual is convicted of violations of the Solid Waste Management Act, 75 Pa.C.S.A. § 6018.101 et seq., and the Vehicle Code, 75 Pa.C.S.A. § 101 et seq., the individual may be subject to criminal penalties.  In Re: One (1) Freightliner Tractor, N.J. Plate No. AF617K (2003) VIN 2FUPCXYB85A657438 and One (1) STRL, N.J. Plate No. T92R6N (2003) VIN 1S8AL4527R0008554. 60 Som.L.J. 196 (Cascio, J.) (2002).

 

SUFFICIENCY (WEIGHT) OF EVIDENCE

 

In determining whether evidence is sufficient to support a conviction, the test is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, and drawing all reasonable inferences therefrom, there was sufficient evidence to find every element of the crime beyond a reasonable doubt.  Commonwealth v. Rafferty, 54 Som.L.J. 182 (Dec. 30, 1996) (Cascio, J.) 

 

Defendant's post trial motion asserts generally that the verdict was against the weight and sufficiency of the evidence; however, "boilerplate" language in post trial motions is not sufficient, and absent specific averments, will not be considered.  Commonwealth v. Ulrich, 61 Som.L.J. 282 (2004) (Fike, II, P.J.) 

 

Weight of the evidence and sufficiency of the evidence are discrete inquiries.  Commonwealth v. Ulrich, 61 Som.L.J. 282 (2004) (Fike, II, P.J.). 

 

In reviewing the sufficiency of the evidence, we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner; the test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt.  Commonwealth v. Ulrich, 61 Som.L.J. 282 (2004) (Fike, II, P.J.). 

 

A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence; whether a new trial should be granted is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion.  Commonwealth v. Ulrich, 61 Som.L.J. 282 (2004) (Fike, II, P.J.). 

 

The Commonwealth must show sufficient probable cause that the defendant committed the offense, and the evidence should be such that if presented at trial, and accepted as true, the judge would be warranted in allowing the case to go to the jury.  Commonwealth v. Barclay, 62 Som.L.J. 288 (2005) (Cascio, J.). 

 

A challenge to the weight of the evidence concedes that there is sufficient evidence to sustain a verdict, but contends, nonetheless that the verdict is so contrary to the evidence that it shock's one's sense of justice.  The decision whether to grant a new trial on this basis rests in the court's discretion.  Commonwealth v. Rafferty, 54 Som. L.J. 182 (Dec. 30, 1996) (Cascio, J.) 

 

Defendant's post trial motion asserts generally that the verdict was against the weight and sufficiency of the evidence; however, "boilerplate" language in post trial motions is not sufficient, and absent specific averments, will not be considered.  Commonwealth v. Ulrich, 61 Som.L.J. 282 (2004) (Fike, II, P.J.).  

 

Weight of the evidence and sufficiency of the evidence are discrete inquiries.  Commonwealth v. Ulrich, 61 Som.L.J. 282 (2004) (Fike, II, P.J.). 

 

A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence; whether a new trial should be granted is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion.  Commonwealth v. Ulrich, 61 Som.L.J. 282 (2004) (Fike, II, P.J.). 

 

The test for a motion based on the weight of the evidence is not whether the court would have decided the case the same way, but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail.  Commonwealth v. Ulrich, 61 Som.L.J. 282 (2004) (Fike, II, P.J.). 

 

Courts with appellate jurisdiction examine the facts in the light most favorable to the Commonwealth as the verdict winner. Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000). Commonwealth v. Davis, 64 Som.L.J. 198 (2009) (Klementik).

 

Defendant’s veering across the roadway at a high rate of speed toward the proximity of the victim who was forced to run off the road to avoid being struck constitutes “recklessness” pursuant to 18 Pa.C.S.A. § 2705 (“Recklessly endangering another person”) and clearly may have placed the victim in danger of death or serious bodily injury. Commonwealth v. Davis, 64 Som.L.J. 198 (2009) (Klementik).

 

In the Case of M.H., a minor, 758 A.2d 1249 (Pa. Super. 2000) the Superior Court considered whether the bruises that occurred as a result of the grabbing and shoving of another constituted “bodily injury” under 18 Pa.C.S.A. § 2701 (“Simple Assault”). Finding it necessary to evaluate the assaultive nature of the contact in conjunction with the resulting physical injury, the Court found that the bruising was sufficient to constitute “bodily injury.” Commonwealth v. Davis, 64 Som.L.J. 198 (2009) (Klementik).

 

In the instant case, clearly the conduct of Defendant in jumping out of his vehicle to grab the victim aggressively and fighting with her to pull her into his vehicle was assaultive contact, the resulting bruising of which must be deemed assaultive bodily injury. Commonwealth v. Davis, 64 Som.L.J. 198 (2009) (Klementik).

 

TRIAL DE NOVO

 

In the de novo hearing, the court of common pleas is substituted for the prior decision maker and re-decides the case.  Commonwealth v. Nathan Paul Lindeman, 61 Som.L.J. 30 (1995)(Gibson, J.)

 

VENUE

 

"Venue" and "jurisdiction" in criminal matters compared and contrasted.  Commonwealth v. Lenhart, 61 SLJ 288, 293-95 (January 21, 2005) (Cascio, J) 

 

In determining whether a change of venue should be granted, the court's inquiry is whether any juror formed a fixed option of the defendant's guilt or innocence as a result of the pre-trial publicity.  Commonwealth v. Mitchell, 62 Som.L.J. 260 (2004) (Cascio, J.). 

 

There are occasions where pre-trial publicity is so pervasive and inflammatory that a defendant's normal burden of demonstrating actual juror prejudice for a change of venue is obviated.  Commonwealth v. Mitchell, 62 Som.L.J. 260 (2004) (Cascio, J.).

 

WITHDRAWAL OF GUILTY PLEA – UNKNOWING PLEA – FAILURE TO DISCLOSE SENTENCE ENHANCEMENT

 

When the issue is whether a Defendant has been provided with accurate information regarding the potential maximum sentences attendant to the charges pled to “the decision to plead guilty to a charge could not be accepted as being knowingly and intelligently entered without an assurance that the accused fully comprehended the maximum punishment that might be imposed for his conduct.  This information is obviously an integral part of the knowledge that should be possessed by one who is called upon to make the difficult decision whether to surrender his right to trial and to place himself at the mercy of the sentencing court.  No civilized society could tolerate the waiver of such basic rights from one who was unaware of or misinformed as to such a critical fact.”  Commonwealth v. Whitehead, 65 Som.L.J. 38 (2011) (Cascio, J.).

 

Indeed, Pa.R.Crim.P. 590 clearly recognizes both the bilateral nature of plea arrangements, “[w]hen counsel for both sides have arrived at a plea arrangement.” Pa. R.Crim.P. 590(B)(1), and the requirement that the Judge be satisfied that the “plea is voluntary and understandingly tendered.” Commonwealth v. Whitehead, 65 Som.L.J. 38 (2011) (Cascio, J.).

 

Thus, in our [open plea] system Defense Counsel’s response to the query “What am I going to get?” is limited to an explanation that the sentence is chosen at the discretion of the Court and amplifies the necessity to accurately notify Defendant of the maximum possible sentence and, where, as here, the pleas include more than one charge, the maximum possible consecutive sentences which may be imposed. Commonwealth v. Whitehead, 65 Som.L.J. 38 (2011) (Cascio, J.).

 

In the context of a post-sentence request to withdraw a guilty plea, the failure to provide the Defendant with this information meets the “manifest injustice” standard required to justify the withdrawal of the pleas. Commonwealth v. Whitehead, 65 Som.L.J. 38 (2011) (Cascio, J.).

 

Requiring the trial court to tell the defendant that the sentences may be imposed consecutively and what the total aggregate sentence could be will not significantly lengthen the colloquy or place any undue burden on the court.  Accordingly, we find that the absence of this inquiry from the transcript renders the colloquy defective.  As a result, appellant has suffered a manifest injustice.  Commonwealth v. Whitehead, 65 Som.L.J. 38 (2011) (Cascio, J.).

 

In our open plea system, the outcome of a post-sentence request to withdraw a guilty plea is impacted by the sentence actually imposed.  Commonwealth v. Whitehead, 65 Som.L.J. 38 (2011) (Cascio, J.).

 

First, if a defendant enters an open plea guilty and justifiably believes that the maximum sentence is less that what he ultimately receives, he may be permitted to withdraw his plea.  Second, if a defendant enters an open guilty plea and justifiably believes that the maximum sentence is less than what he could receive by law, he may not be permitted to withdraw the plea unless he receives a sentence greater than what he was told. Commonwealth v. Whitehead, 65 Som.L.J. 38 (2011) (Cascio, J.).

 

However, because the request to withdraw the pleas in the cases at bar was made before the sentence was imposed, Barbosa and the “manifest necessity” test do not apply.  Commonwealth v. Whitehead, 65 Som.L.J. 38 (2011) (Cascio, J.).

 

Thus, in determining whether to grant a pre-sentence motion for withdrawal of a guilty plea, ‘the test to be applied by the trial court is fairness and justice.  If the trial court finds ‘any fair and just reason’, withdrawal of the plea before sentence should be freely permitted, unless the prosecution has be ‘substantially prejudiced.’ Commonwealth v. Whitehead, 65 Som.L.J. 38 (2011) (Cascio, J.).

 

The relaxed pre-sentence standard of “fair and just reason” to withdraw pleas based upon the inaccurate information provided to him when the pleas were entered would appear to compel the conclusion that, absent prejudice to the Commonwealth, Defendant should be allowed to withdraw his plea rather than having to roll the dice on whether the Court sentences him below or beyond the maximum sentence recited in the plea colloquy. Commonwealth v. Whitehead, 65 Som.L.J. 38 (2011) (Cascio, J.).

 

Failure to allow the pre-sentence withdrawal will only prolong the process, likely resulting in a direct appeal and/or a PCRA alleging ineffective assistance of counsel. Commonwealth v. Whitehead, 65 Som.L.J. 38 (2011) (Cascio, J.).

 

Certainly, if failure to properly inform a Defendant of the potential maximum sentence he could be facing amounts to “manifest necessity” to allow withdrawal of a plea post-sentence as in Barbosa, supra, it surely must be sufficient to support a conclusion of “fair and just reason” to allow withdrawal of the plea pre-sentence, absent proof of prejudice to the Commonwealth. Commonwealth v. Whitehead, 65 Som.L.J. 38 (2011) (Cascio, J.).

 

A defendant cannot be required to waive his right to withdraw his guilty pleas as a condition of the plea agreement. Commonwealth v. Jason Charles Foy, 65 Som.L.J. 127 (2012) (Cascio, P.J.).

 

Ineffective assistance of counsel in connection with a guilty plea will only provide a basis for relief if that same ineffectiveness caused the defendant to enter an unknowing or involuntary plea. Commonwealth v. Jason Charles Foy, 65 Som.L.J. 127 (2012) (Cascio, P.J.).

 

Defendant did not need to be informed of Deadly Weapons Enhancement provisions prior to entering a guilty plea in order for the plea to be knowing and intelligent. Commonwealth v. Jason Charles Foy, 65 Som.L.J. 127 (2012) (Cascio, P.J.).