Vindictiveness in Bucks County cases

Pearce is not limited to situations involving resentencing after a second trial, but it may also apply to resentencings produced by appeals or by collateral attaches.  The Pearce Court established, subject to certain exceptions, a presumption that an increase in sentence is the product of an improper motive on the part of the sentencing authority.  The presumption does not apply in the abesnece of a reasonable likelihood that the increase in sentence was the product of actual vindictiveness on the part of the sentencing authority.  

The State contended that the sentences imposed upon defendants were not unconstitutional. The Supreme Court affirmed the appellate court's decisions. The constitutional guarantee against multiple punishments for the same offense required that punishment already exacted had to be fully "credited" in imposing sentence upon a new conviction for the same offense. Neither the double jeopardy provision of the Constitution nor the Equal Protection Clause imposed an absolute bar to a more severe sentence upon a defendant's reconviction. However, due process of law required that vindictiveness against a defendant for having successfully attacked his first conviction had to play no part in the sentence he received after a new trial. Due process also required that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge. The State failed to offer adequate reasons to impose increased sentences upon defendants.  North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969)

The constitutional guarantee against double jeopardy imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside. The principle that this provision does not preclude the government's retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of the United States' constitutional jurisprudence. A corollary of the power to retry a defendant is the power, upon the defendant's reconviction, to impose whatever sentence may be legally authorized, whether or not it is greater than the sentence imposed after the first conviction. That a defendant's conviction is overturned on collateral rather than direct attack is irrelevant for these purposes.

In Bucks County cases and for Bucks County criminal attorneys, the case of Walker is important:  

Defendant was convicted of possessing an instrument of crime, simple assault, recklessly endangering another person, unlawful restraint, and criminal trespass, in violation of 18 Pa. Cons. Stat. Ann. §§ 907(b), 2701(a)(1), 2705, 2902, and 3503(a)(1) (1983)and sentenced accordingly. At a post conviction hearing act, 42 Pa. Cons. Stat. Ann. §§9541-9551 (1982), proceeding the trial court increased defendant's sentence with regard to the offense of criminal trespass. Defendant filed a motion to modify the new sentence that was denied. He then filed a timely notice of appeal. Defendant challenged the legality of his new sentence under the due process and double jeopardy clauses in U.S. Const. amend. VI and XIV. The court concluded that where a trial court responded to a defendant's motion to vacate a sentence by increasing the severity of the aggregate sentence, the use of the presumption of vindictiveness was clearly warranted. Defendant also argued that the trial court violated the double jeopardy clause of U.S. Const. Amend V, but the court found that this claim was without merit. Accordingly, the court affirmed defendant's conviction and sentence.  Commonwealth v. Walker, 390 Pa. Super. 76 (Pa. Super. Ct. 1989)

Here at Bucks County criminal defense lawyers, we've already talked about the hearsay exception of a Statement Against Interest.   If a declarant is unavailable, there is a challenge under the Fifth Amendment right to confront witnesses against a defendant.  

In Crawford v. Washington, the United Supreme Court held that in criminal cases, the Confrontation Clause forbids the admission of "testimonial" statements of a witness who did not appear at trial unless that witness was unavailable to testify and the defendant had had a prior opportunity for cross-examination.  As the Third Circuit explained, The lynchpin of the Crawford decision ... is its distinction between testimonial and nontestimonail hearsay; simply put, the rule accounced in Crawford applies only to the former category of statements.  

The admissibility of nontestimonial hearsay for purposese of the Confrontation Clause continues to be governed by standards set forth in Ohio v. Roberts from 1980.  There, the Court held that hearsay statements could be admitted at trial only when:  (1) "the evidence falls within a firmly rooted hearsay exception," or (2) they contained "particularized guarantees of trustworthiness" such that adversarial testing of the statements would add little to the statements' reliability.  

Thus, the fundamental question in criminal cases with respect to the admissibility of hearsay evidence is what confrontation analysis applies - Crawford or Ohio?  

The voir dire process for a Bucks County criminal case implicates three distinct interest.  The first is that a litigant has the right to a jury selection process free of discrimination.  The second is that a prospective juror has a right to participate in this process with the confidence that he or she was evaluated on the basis of the ability to serve, regardless of racial or ethnic heritage.  The third is that the community has the right to an unquestioned belief that our system of justice operates at every level without discrimination.  These are outlined in Commonwealth v. Rico.  

The minimal standards of constitutional due process guarantee to the accused a trial by a panel of "impartial" and "indifferent" jurors, and the purpose of examining the jurors under voir dire is to secure a competent, fair, impartial and unprejudiced jury.  Under the Pennsylvania Rules of Criminal Procedure, the manner in which voir dire will be conducted is left to the discretion of the trial judge.  The judge may permit counsel to conduct the examination, or the judge may conduct the examination.  Each Bucks County judge is different with respect to this portion of the case.  

Jury selection is a "critical stage" of a  criminal prosecution, requiring assistance of a Bucks County criminal lawyer for the defendant.  Voir Dire is not intended to provide a basis for exercising peremptory challenges.  The scope of voir dire is therefore limited to determining whether jurors are qualified and whether a juror has formed a fixed opinion or may be otherwise subject to disqualification for cause.  

Today, the United States Supreme Court, in a 5-4 decision (Justice Kennedy applying the swing to the majority) decided Miller v. Alabama.   The issue in the case was, "Does the imposition of a life-without-parole sentence on a fourteen-year-old child violate the Eighth and Fourteenth Amendments' prohibition against cruel and unusual punishment?"

The answer is "Yes".  The Court held that the Eighth Amendment's prohibition against cruel and unusual punishment forbids the mandatory sentencing of life in prison without the possibility of parole for juvenile homicide offenders. The bottom line -- Children are constitutionally different from adults for sentencing purposes.

An equally big issue in the decision is that the Justices said this decision applies retroactively.  This creates a very big procedural issue for the entire country.  A list serve I'm a member of indicates that many Bucks County juvenile lawyers and Bucks County criminal defense lawyers will be digging up old files and getting ready to apply the retroactivity of the decision.  I have done a quick read of the decision , but my understanding of the case is that a state may choose a remedy so long as that remedy is not unconstitutional.  Some remedies include vacating the illegal sentence and freeing the prisoner, vacate the illegal sentence and set the case for resentencing, or declaring the person serving such sentence immediately eligible for parole.  These decisions will fall under the state legislature or supreme courts, subject to whatever the state allows for authority under its individual constitutions.  

The Pennsylvania Rules of Evidence 804(b)(3) provides for an exception to the general hearsay rule.  An oral or written statement of fact which a person knew to be against his own pecuniary, proprietary or penal interest when made is excepted from the hearsay rule, provided that the declarant had personal knowledge of the fact and is now unavailable to testify as a witness.  

Statements against interest by any unavailable declarant are admissible as a hearsay exception because their trustworthiness is safeguarded by the improbability that a declarant would fabricate a statement that is contrary to his own interest.  It is founded "on the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true."  Commonwealth v. Colon, 461 Pa. 577 (1975).  

The proponent of the evidence bears the burden of showing that the declarant is unavailable.  Unavailability based on Fifth Amendment privilege satisfies the rule.  

Your Bucks County criminal lawyer should be ready to pounce on two particular points when the government tries to make a statement admissible under this exception.  First, they should argue whether the government knows that a declarant is unavailable to testify.  

The second way is to find out if the person/declarant actually had personal knowledge.  

The court has an obligation to consider new facts in resentencing.  In Losch, the appellate reversal involed the vacation of the original sentence and remanded for resenteincing.  The judge is not required to start afresh, but merely to correct the error that was the basis of the reversal.  

A key function of the sentencing hearing is to allow an opportunity for the defense and the prosecution to supply a wide range of information concerning the person who is to be punished. It is the role of trial judge to weigh all mitigating and aggravating factors and arrive at an appropriate sentence. The final decision as to what sentence should be imposed is entrusted to the broad discretion of the sentencing authority. However, the court must reach its decision by following certain mandatory procedures. These procedures include the consideration of sufficient and accurate information.

Here are the facts of the case:  

The defendant pled guilty and was convicted of burglary. Subsequently, defendant's sentence was vacated and remanded for resentencing because the lower court failed to state on record the reason for the substantial disparity between defendant's sentence and that received by his codefendants. Defendant was resentenced to three concurrent terms of 10 to 20 years imprisonment, which he appealed on the basis that the court refused to consider evidence of defendant's good conduct. The court held that the sentencing court was required to consider evidence of defendant's good conduct while in prison and vacated the order and remanded the case for resentencing consistent with the opinion.  Commonwealth v. Losch, 369 Pa. Super. 192 (Pa. Super. Ct. 1987)

Some other issues to consider include that even long after the offense has been committed, a defendant's conduct and attitudes may reflect his potential for rehabilitation. A defendant's Bucks County criminal lawyer should know all of these factors, including, which weigh in favor of imposing a reduced criminal penalty include: the defendant's contrition and remorse for his misdeeds, his cooperation with law enforcement agencies, and his efforts to cure himself of drug addiction. The court does not think that these factors cease to be relevant as soon as the defendant is incarcerated.

When judgment of sentence is vacated and the case is remanded for resentencing, the judge at the resentencing hearing may not refuse to consider any relevant defense evidence concerning appellant's conduct since the prior sentencing hearing. 

On December 26, 2014, Pennsylvania DUI laws changed.  The law was changed to "close the DUI loophole."  The loophole would close the previous issue where an individual would get "back to back" DUI's.  The old law prior to Dec. 26, 2014 allowed an individual who had two or more pending DUI's face penalties for a first offense.  Effectively, the person would not be exposed to the increasing penalties that a 2nd and 3rd offense could bring.  The theory was that a person had not been fully availed of the rehabilitative opportunities of probation so they shouldn't be penalized beyond their first case.  

Naturally, prosecutors and the public were not happy.  A person could get 5 DUI's in a month and still only face a weekend in jail if their sentences were run concurrently.  So, the law changed, but with unexpected consequences.  The new law said that the new calculation included, 

§ 3806.  Prior offenses.

(a)  General rule.--Except as set forth in subsection (b), the term "prior offense" as used in this chapter shall mean a conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation for any of the following:

(1)  an offense under section 3802 (relating to driving under influence of alcohol or controlled substance);

(2)  an offense under former section 3731;

(3)  an offense substantially similar to an offense under paragraph (1) or (2) in another jurisdiction; or

(4)  any combination of the offenses set forth in paragraph (1), (2) or (3).

What this did was change the 10-year look back period.  Before, when it was offense date/conviction back to conviction, it now became the sentencing date.  This means that a person who delays the process long enough could then be sentenced outside the 10 years.  Given this new loophole (thank your General Assembly), people could bench warrant and disappear as they bide their time.  

Given the motivation for a defendant to delay, expect new legislation to correct this issue.  

So, for example, if you get a DUI in Upper Bucks County, you would want your Quakertown DUI lawyer to know whether you are facing a 1st offense or an aggravated case as the difference could result in just a few days in jail to a minimum of one year.  

I'm dealing with a case as a Bucks County criminal lawyer where the government is trying to include a statement from an individual who is otherwise unavailable.  Normally, this would be hearsay, an out of court statement admitted for the truth of the matter asserted. 

Courts have ruled that the res gestae exception to the hearsay exclusion has been said to be a dangerous rule which ought not be extended beyond the limits of reasonably immediate spontaneous declarations made in connection with a startling event by one laboring under the stress of nervous excitement caused by it. Res gestae is a generic term encompassing four discrete exceptions to the hearsay rule: (1) declarations as to present bodily conditions; (2) declarations of present mental states and emotions; (3) excited utterances; and (4) declarations of present sense impressions. 

To come within the excited utterance exception, a statement must be a spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person had just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence in both time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties.

The way I view this exception, an "excited utterance" must be so close in time to an event that there is absolutely no opportunity for a person to do anything but utter the truth.  For example, if someone stands up in a movie theater and a patron yells "He's got a gun!", there's an almost uncontroverted chance that the person has a gun.  Another example -- If someone yelled "He [Jack Ruby] shot Oswald" immediately after the shooting, that would normally be an excited utterance that would be admissible.  

What is the charge of Terroristic Threats?

18 Pa.C.S. § 2706 is the statute that addresses Terroristic Threats.  It states, 

(a)  Offense defined. --A person commits the crime of terroristic threats if the person communicates, either directly or indirectly, a threat to:

   (1) commit any crime of violence with intent to terrorize another;

   (2) cause evacuation of a building, place of assembly or facility of public transportation; or

   (3) otherwise cause serious public inconvenience, or cause terror or serious public inconvenience with reckless disregard of the risk of causing such terror or inconvenience.

The Commonwealth must prove that 1) the defendant made a threat to commit a crime of violence, and 2) the  [*7]  threat was communicated with the intent to terrorize another or with reckless disregard for the risk of causing terror. Commonwealth v. Kelley, 444 Pa. Super. 377 (1995).

Defenses to Terroristic Threats

If the threats were done in a "spur of the moment"  or via "transitory anger", there may be a defense from you Bucks County criminal lawyer, as the statute "Is not intended by this section to penalize mere spur-of-the-moment threats which result from anger." Commonwealth v. Kidd, 296 Pa.Super. 393, 442 A.2d 826 (1982). If you person is confronted with, for example, a threat or act of violence, their response to the act could be a spur of the moment action from transitory anger.  A good case on this defense is Commonwealth v. Anneski, 362 Pa. Super. 580

An aggravated assault in Bucks County is when a person attempts to cause serious bodily injury to another, or caused such injury intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life; and/or attempted to cause, or intentionally, knowingly, or recklessly did cause bodily/serious bodily injury with a deadly weapon.

An F1 aggravated assault may also be established when the defendant causes serious bodily injury to an individual in specifically listed classes of people. See 18 Pa.C.S. § 2702(a)(2). Those 38 classes of people, which include police officers and firefighters, are set forth in Section 2702(c). Determination of whether defendant acted with the intent to cause serious bodily injury, for purposes of an aggravated assault conviction, under 18 Pa. Cons. Stat. Ann. § 2702(a)(2), was done on a case-by-case basis and must be argued by the Bucks County criminal lawyer; evidence that defendant delivered two closed-fist punches to the victim's head, rendering the victim dazed and helpless, and was positioned to deliver more punches, when officers came to the victim's aid, sufficiently showed defendant's intent to inflict serious bodily injury. Commonwealth v. Dailey, 2003 PA Super 223, 828 A.2d 356, 2003 Pa. Super. LEXIS 1753 (Pa. Super. Ct. 2003).  

Evidence was sufficient to support defendant's conviction for aggravated assault under 18 Pa. Cons. Stat. §§ 302(b)(1), 901(a), and 2702(a)(2), where a police officer testified that defendant fired a gun at him twice from a distance of 60 to 70 feet, defendant admitted that his purpose upon seeing the police officer approach was to elude capture, defendant fired the shots at the officer immediately after realizing that he had been observed by the officer firing his gun multiple times at another man, and shooting the officer would have facilitated his escape, defendant knew the officer, and the jury could infer that defendant intended to injure the officer to better ensure an effective escape, and defendant admitted that he retrieved his unlicensed gun because he intended to shoot a third party. Commonwealth v. Hall, 574 Pa. 233, 830 A.2d 537, 2003 Pa. LEXIS 1437 (2003).

An older case from 1978 where the person was defended by a Lehigh County criminal lawyer held that defendants could be convicted of aggravated assault of a police officer under 18 Pa. Cons. Stat. § 2702(A)(2), (3) regardless of the extent of the injuries inflicted on the officers, where one defendant punched one officer when that officer identified himself, and where the other defendant pushed and kicked the other officer when the other officer tried to help the first officer.    Commonwealth v. Olah, 254 Pa. Super. 280, 385 A.2d 1019, 1978 Pa. Super. LEXIS 2666 (1978).

The following year, however, a defendant was not guilty of aggravated assault under 18 Pa. Cons. Stat. Ann. § 2702(A)(2) where police who had been informed that defendant had participated in a theft entered the home of another person without a search warrant, went into a bedroom, and found defendant pointing a gun at them.  Commonwealth v. Wagner, 486 Pa. 548, 406 A.2d 1026, 1979 Pa. LEXIS 703 (1979).