The admissibility of evidence of a homicide victim's state of mind has generated a number of challenging Supreme Court decisions and for many Bucks County criminal lawyers.  In some cases, the Court has taken the position that the victim's "state of mind" was relevant and the victim's statements admissible because the statements were evidence of the victim's relationship with the defendant and demonstrated the ill will and malice that the victim perceived, and/or the motive for the killing.  

That case, in particular, involved a defendant who was convicted of first-degree murder and sentenced to death, appellant, arguing trial court error, appealed. The court affirmed. Testimony established that the killing was committed with malice aforethought sufficient to sustain appellant's conviction. Since appellant's signed waiver of his rights was included in the record, denial of appellant's motion to suppress was proper. Although the jury heard hearsay testimony concerning appellant's possible motive for murder, the trial court ordered that the testimony be stricken and advised the jury to disregard the testimony, thus, ordering a mistrial was inappropriate. Appellant's claim of ineffective counsel for not requesting a pre-trial psychiatric examination was merit-less because appellant offered no evidence of alleged mental defects. Since the jury found that aggravating circumstances outweighed mitigating circumstances, the jury was statutorily required to impose the death sentence. Finally, the death sentenced was not disproportionate to sentences imposed in similar cases.  The citation is Commonwealth v. Fletcher, 561 Pa. 266 (Pa. 2000).  

Other cases have taken a more limited view, one which I believe addresses the prejudicial impact of the Fletcher approach with greater integrity.  In Commonwealth v. Thornton, for example, the Court held that the victim's statement concerning his fear that the defendant was "after him" was inadmissible because the victim's state of mind was not at issue in the case.  Significantly, the Court observed that the victim's statement could only be relevant as circumstantial evidence of the defendant's intent to kill if the testimony was offered for its truth; however if it was offered for the truth, it would be inadmissible as hearsay because it did not fit within any exception.  In Commonwealth v. Moore, the Court followed the reasoning of Thornton and similar decisions, holding that the testimony of the victim's father, sister, and friend about the victim's statements concerning bullying by the defendant was inadmissible.  

Here is a quick summary of the new law based upon my review (this is not a full legal opinion from a Bucks County criminal defense lawyer):

Urine Testing in Bucks County

Urine testing is an indirect method of attempting to determine the blood alcohol concentration.  It can dramatically impact your Bucks County criminal case.  When a person consumes alcoholic drinks, some of that alcohol will eventually show up in the person's urine.  Alcohol passes from the stomach into the small intestine where it is absorbed into the bloodstream.  The blood carries the alcohol to various organs of the body, including the brain, lungs, and kidneys.  

Since ethanol is really a poison, rather than a nutrient, the kidneys help to remove alcohol from the blood.  Each time the blood goes to the kidneys, a small amount of ethanol is passed through to the bladder.  The rest of the ethanol remains in the bloodstream, where it continues to circulate until it is removed by perspiration, breath expiration, breakdown in the liver, or further removal by the kidneys.  The small amount of ethanol that is secreted by the kidneys is immediately emptied into the bladder.  The bladder stores all of the secretions from the kidney, which are collectively referred to as urine.  Thus, consumption of alcohol will produce an increase in the alcohol concentration of the urine.  

More Urine Testing in Bucks County Criminal Matters

Determining the exact relationship between the urine alcohol and blood alcohol is quite difficult and should be a source of defense for your Bucks County criminal lawyer.  At any given point in time, the urine alcohol concentration does not necessarily reflect the blood alcohol concentration.  

Gas chromatography, enzymatic analysis and wet chemical tests are the major methods of determination of the urine alcohol concentration.  Besides the general unreliability of converting urine alcohol to blood alcohol and the potential inaccuracies in the testing process as outlined above dealing with blood alcohol, the major sources of the unreliability of urine testing are pooling of the urine, individual variation of the urine to blood alcohol relationship, and endogenous production of alcohol in "live" specimens due to infection by the yeast, Candida albicans.  

Pooling of urine occurs when alcohol is secreted by the kidneys and immediately enters the ureter, the tube that connects the kidney to the bladder.  The alcohol and the other kidney secretions then proceed to the bladder.  The bladder stores all the urine as it is produced by the kidneys.  The fact that the bladder stores urine that has been produced over a period of time makes it difficult to predict the blood alcohol concentration.  

Some problems in the analysis of infected urine may yield artificially high urine alcohol value.  The urine of subjects who suffer from diabetes or yeast infections is often infected with bacteria that can produce alcohol in the presence of glucose.  For example, an organism like the common yeast Candidad albicans can produce alcohol in urine while still in the bladder.  Sodium fluoride, the compound usually used as a preservative in preserving blood samples, does not prevent the production of alcohol by Candida albicans.  

Everybody on this planet makes mistakes…. Even judges. There is a remedy for correcting illegal sentences. If the court does determine that the sentence is illegal it must be corrected, the court is empowered to either amend the sentence or to remand the case to the trial court for resentencing.  However, if the sentence is determined that a correction by a certain court may upset the sentencing scheme envisioned by the trial court, the better practice is to remand.  

If a trial court errs in a case where there is more than one charge against someone, then all the sentences for all the counts will be vacated so the court can restructure their sentencing scheme. This is held true even if a defendant appeals only one illegal sentence because it would affect the original sentencing scheme that the court imposed during the original trial. The court generally has 30 days after the original sentence to correct an illegal sentence if no appeal has been taken.  This has happened in the case of Commonwealth v. Klein.

In this case Mr. Klein was found guilty of many different charges, but was only found guilty because of incorrect evidence.  The defendant Mr. Klein appealed his sentence based on the incorrect evidence and won the appeal. Later the case was remanded and Mr. Klein was resentenced to a correct sentence.  To find out more about this case; the site is Commonwealth v. Klein 566 Pa 396 (Pa. 2001).  If you have been illegally sentenced please call your Bucks County criminal lawyer.

The compassionate release program is found in 18 U.S. Code § 3582 - Imposition of a sentence of imprisonment.  It is for federal cases, not state cases.  There are 18 factors to consider.  The standard is "extraordinary and compelling reasons warrant such a reduction."  Generally, it means imminent death/terminal illness.  

On a listserv a Bucks County criminal lawyer belongs to, someone commented on the program, "The federal "compassionate release" statute is 18 USC 3582(c)(1)(A).  On its face, the standards are far more flexible than the "suspension of sentence due to terminal illness" statute in PA.  Even when limited to the categories of terminal illness and elderly-and-ill, as provided in the BOP's program statement (agency regulation) on the subject, which I believe to be unlawfully narrow, the standards on their face seem encouraging. On the other hand, release must be recommended by the BOP and the motion to modify the sentence must itself be filed by the U.S. Attorney's office on behalf of the BOP, and not by the prisoner or counsel for the prisoner (unlike a PA motion).  In practice, however, it is basically a black hole. Endless delay at the Central Office level is the name of the game, arbitrary refusal to file for prisoners who appear to be fully qualified (and have been recommended for release by their warden) is common, and many die while awaiting action."

Some folks, however, did comment on the same email that they have had success with the Compassionate Release program.  

A few years ago the Bureau of Prisons published "Compassionate Release; Procedures for Implementation of 18 U.S.C. 3582 (c)(1)(A) & 4205(g)" as well as an update in 2015.  

If a person in a Bucks County criminal matter is not sentenced for 9 years, is that enough to get a person exonerated because their speedy trial rights have been violated?  

The court must use the "Barker Test".  Pennsylvania courts follow Barker in resolving claims that procedural delays in criminal cases constitute a substantive due process violation, and we have set forth a four prong test in which the court inquires as follows: (1) whether the delay itself is sufficient to trigger further inquiry; (2) if so, the reason for the delay; (3) whether the defendant timely asserted his or her rights, and; (4) whether there is any prejudice to the defendant from the delay.  The second prong of Barker directs that the reason for the delay be examined. Moreover, deliberate attempts to delay, with the specific purpose of hampering the defense, should be weighted heavily against the government, while a more neutral reason such as negligence should be weighted less heavily.

In one very important case, a Defendant was convicted of various drug-related crimes. He appealed. The trial court granted his release on bail pending his appeal.  Specifically, on "May 10, 1989, West was arrested for selling cocaine. He was charged with possession and possession with intent to deliver a controlled substance. Approximately one year later, on May 11, 1990, West appeared before the trial court, which heard evidence on West's motion to suppress physical evidence. Following that hearing, the court denied West's prayer for relief. On that same date, the court conducted a bench trial and found West guilty of the crimes charged. Thereafter, on July 17, 1991, West was sentenced to serve a term of twenty-seven to fifty-four months of imprisonment."  At this point, a Bucks County criminal attorney should be well aware of all of the Barker rules.  

His sentence was affirmed. However, he was not recalled to serve his sentence in conformity with Pa. R.A.P. 1763. Defendant remained at liberty for nine years until, pursuant to an arrest warrant, he was arrested and committed to serve his prior criminal sentence. The Supreme Court held that as defendant could not pursue this claim through the Post Conviction Relief Act, the Superior Court properly reviewed it pursuant to habeas corpus. While the Superior Court concluded that the delay was deliberate, that conclusion was contrary to the trial court's conclusion that the delay was not intentional and occurred through unexplained oversight. Thus, the Superior Court erred in re-evaluating the evidence presented before the trial court to reach a different finding. Given the trial court's finding that the nine-year delay was caused by negligence, that factor did not weigh heavily against the State in balancing the Barker due process factors. Also, defendant did not suffer actual prejudice as a result of the nine-year delay he was erroneously at liberty. The cite is Commonwealth v. West, 595 Pa. 483 (Pa. 2007)

"SORNA" refers to the Sex Offender Registration and Notification Act which is Title 1 of the Adam Walsh Child Protection and Safety Act of 2006 (Public-Law 109-248), in junction with Megan’s Law, which basically says that if you are convicted of a sex crime, you have to register on the sex offender list so the public can see.  Different acts of sexual convictions put you on a violent or non-violent list for any period of time. If something like this has happened in your life you should contact a Bucks County Criminal Lawyer.

In this tricky case of Commonwealth v. Bundy (opinion attached), “SORNA” would have gone in effect here, but it was in the time period that the General Assembly for “SORNA”, was determining what kinds of offensives would go on the list, his did not fall on the list.

If, during a lawful pat-down search, an officer feels an object whose mass makes it immediately identifiable as contraband, that officer can seize the item.  This is considered, very loosely, the "plain feel" doctrine.  

These are cases where the officer frisks someone for weapons or contraband.  So, if you have a possession case in Bucks County, you would want to explore with your Bucks County criminal lawyer how the drugs were found.  If it was pursuant to a simple frisk/pat-down, your lawyer better know the law.  

A case guiding this situation is Commonwealth v. Stevenson.  

Stevenson had two cases.  In the first case although the officer felt what he described as a cigar or cigarette and a pill bottle during his frisk, he did not plainly feel, objects that were immediately apparent to him as contraband. The officer in the second case testified that during the frisk of defendant, he felt three hard packages of folded paper or cardboard in the change pocket of defendant's jeans. Since the officer offered only vague assertions that he somehow "knew" the cardboard was drugs based on "the feel of the bulge," the record did not support a finding that it was immediately apparent that the cardboard was contraband. Because the pat-down of defendant failed to establish probable cause, the subsequent search of the trunk of the car, was likewise unconstitutional. Thus, the drugs recovered from defendants' person as well as from the trunk of the car must be suppressed.  The outcome was that the Supreme Court ruled that the orders of the lower courts were reversed, because the officers did not "plainly feel" contraband when frisking appellants, and there was therefore no probable cause to search the trunk of the car, thus the drugs recovered were suppressible.  Commonwealth v. Stevenson, 560 Pa. 345 (Pa. 2000).

Another interesting case is Thompson.  The appellate court held in Thompson that defendant waived his claim that the initial stop was a pretext for an unlawful seizure. The officer had information from another officer that defendant was driving with a suspended license, which gave the officer reasonable suspicion that defendant was violating a provision of the vehicle code and justified the initial stop under 75 Pa.C.S. § 6309(b). Defendant was "uncomfortable and fidgety," refused to keep his hands in plain view, and attempted to drive away. Defendant also reached into his pocket when specifically directed by the officer to keep his hands in view, leading the officer to believe defendant might have been reaching for a gun. The officer articulated specific facts from which he could reasonably infer that his safety was compromised, and justified subjecting defendant to a Terry frisk. However, there was no evidence that digital scale and currency in defendant's pocket felt like weapon or were immediately recognizable as nonthreatening contraband. The subsequent canine sniff, warrant, and search of defendant's car were unlawful, and the drugs later seized from defendant's car were tainted fruits of an unlawful search.  Commonwealth v. Thompson, 2007 PA Super 372 (Pa. Super. Ct. 2007)

We previously discussed the rights and overview of the voir dire process for a Bucks County criminal case.  

Voir dire is the first part of a process of a jury trial in Bucks County.  Although the scope of voir dire rests within the sound discretion of the trial juge, the judge should not permit either direct or hypothetical questions designed to disclose what a juror's present impression or opinion may be or what his attitude or decision will likely be under certain facts which may be developed in the case.  

Thus, a trial court has properly refused to allow questions on whether a juror would listen to the evidence and follow instructions on presumption of innocence; whether jurors would be prejudiced if they learned that the defendant used drugs, whether the juror had been the victim of any crime, not just the type of crime the defendant was charged with committing, whether a juror had a prior jury experience, whether a defendant's exercise of his right to silence would prejudice the juror, whether a juror had an opinion about ownership of handguns, whether a juror had an opinion regarding an insantity defense, or whether a prospective juror in a rape case was a member of an organization such as Women Organized Against Rape or had a possible affiliation with a victims' rights group.  A court has also found that there was no abuse of discretion in a trial court's refusal to question the venire members about prior jury service.  

Conducting a voir dire on the juror's place of residence is considered unnecessary and even improper, particularly when there is no issue that the panel comes from an inappropriate county.  

The Commonwealth defines an habitual offender as "A habitual offender under section 1542 (relating to revocation of habitual offender's license) who drives a motor vehicle on any highway or trafficway of this Commonwealth while the habitual offender's operating privilege is suspended, revoked or canceled commits a misdemeanor of the second degree."  

Additionally, "The department shall revoke the operating privilege of any person found to be a habitual offender pursuant to the provisions of this section. A “habitual offender” shall be any person whose driving record, as maintained in the department, shows that such person has accumulated the requisite number of convictions for the separate and distinct offenses described and enumerated in subsection (b) committed after the effective date of this title and within any period of five years thereafter."  These are issues that frequently come up for a Bucks County criminal attorney who has a client with multiple DUI's and potentially previous poor driving history.  

The law states in 75 Pa. Cons. Stat. § 1542 (revocation of habitual offender’s license), that your driver’s license may be revoked for a period of five (5) years if you are convicted of three (3) of the following offenses, in any combination, over a period of five (5) years:

• Driving Under the Influence of Drugs or Alcohol;
• Driving While a License is Suspended or Revoked;
• Voluntary or Involuntary Vehicular Manslaughter;
• Accidents Causing Damage to property;
• Felony Involving a Vehicle;
• Racing on Highways;
• Reckless Driving;
• Fleeing From a Police Officer; and/or
• Failing to Stop When a Vehicle Involved in a Crash.

Each additional offense committed within the five (5) year span will result in an additional revocation of two (2) years if found guilty.

There is not a lot of caselaw on the subject.  On such case is Cardell.  On appeal, Licensee (Cardell) argued that PennDOT presented insufficient evidence to meet its burden of proving that he is a habitual offender under 75 Pa. C.S. §1542. Licensee contended that because PennDOT's documents are inconsistent on the critical date of his first violation, all of PennDOT's documents are unreliable and inadmissible. Absent evidence of the date of Licensee's first DUI offense, PennDOT could not prove he committed three DUI offenses within the statutory five-year period.  Cardell v. DOT, Bureau of Driver Licensing, 2013 Pa. Commw. Unpub. LEXIS 514 (Pa. Commw. Ct. 2013).  Unfortunately for the driver, the Commonwealth Court of Pennsylvania ruled, "Having reviewed the record and the arguments of the parties, we agree with the trial court that PennDOT satisfied its burden of proof and that Licensee was not entitled to relief. Because the trial court accurately articulated and thoroughly  analyzed the issues, and correctly applied the law, this Court affirms the trial court's order on the basis of the well-reasoned opinion by the Honorable Michael J. Koury, Jr. Click for Enhanced Coverage Linking Searches in John William Cardell v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, (Northampton County Court of Common Pleas, No. C-48-CV-2011-9465, filed October 25, 2012)".