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August 2021 Docket Review

Posted by Corrie Woods | Aug 31, 2021 | 0 Comments

This month, the Court issued 10 precedential opinions and 13 grants of allocatur (or its equivalent).

On the opinion side, I'm most interested in Howard, in which the Court's ostensible question is whether a parent's mere failure to put a child in a car-seat in a car-for-hire constitutes the criminal offense of endangering the welfare of a child, or EWOC.  The Court by a vote of 6 Justices to 1 Justice held that it does not, but that may be the least interesting aspect of its decision.  The Lead Opinion, authored by Justice Todd and joined by Justice Donohue, cogently explains that the offense has been interpreted to incorporate the "norms of the community," apparently to prevent it from being voided for vagueness, quite some time ago.  See generally Commonwealth v. Mack, 467 Pa. 613 (Pa. 1976).  Its unremarkable application of that gloss, however, provoked something of a tempest from a majority of Justices, who would prefer to keep interpretation a more formalistic enterprise and jettison the rubric entirely.  And although the lead did not garner Justice Mundy's joinder on the whole, she did not challenge its reliance on the "norms of the community."

A couple of puzzlers here.  First, how do we interpret EWOC going forward? If we view precedent as a formalistic endeavor, the holding of Howard is specifically about car-seats, the "norms of the community" rubric remains applicable, and any challenge to it is simply writing on a blank slate.  But if we view it as a predictive one – i.e., an attempt to determine what the courts will say – it would appear that the "norms of the community" analysis is gone, since a majority of the Court has rejected it.  That said, if we really view it as a predictive one, we may be back to square one: if you are litigating a case involving EWOC right now, it is not likely to reach the Supreme Court before Justice Saylor's impending retirement; a new Justice's commission, and potentially even Chief Justice Baer's retirement and a new Justice's commission.  Might be wise to work out a plea.

Also, just below Howard's surface (and in the broadsides of Justice Wecht's concurrence) is a never-ending argument about the proper role of the legislature and the judiciary.  Those favoring a more formalistic interpretive approach and legislative responsibility for the criminal law (including Justice Wecht) have compelling arguments based on a fairly grotesque history of common-law crimes on their side.  On the other hand, we live at a time, and in a state, where legislatures have never met a new crime or an increased sentence they didn't like, and never met a criminal defendant that they did.  Although Justice Wecht's points about the vagaries of common-law crimes and rhapsodic jurisprudence are well-taken, in this environment, one can certainly see why a judge would not be so eager to dispense with a means whereby the legislative torrent of new crimes and punishments might be abated in some small degree.

I'm also interested in Rawls, in which the Court appears to take the appellant to task to some degree for attempting to liberalize federal constitutional law regarding police interrogations and the right to counsel that, frankly, has been largely ossified by conservative U.S. Supreme Court majorities for decades.  It's a good reminder that although this Court is one that is almost uniformly open to protecting the procedural rights of criminal defendants in new ways, or event rolling back its more arch-conservative old decisions that submarined them, it has not simply welcomed any argument that helps them.  That said, I do find it notable that the Court unanimously left open the possibility that the parallel rights under the Pennsylvania constitution might be more broadly interpreted.  If an attorney has a case where a defendant has been charged before being interrogated, he or she would do well to read Edmunds and dig into the wonderful world of state constitutional analysis.

On the allocatur side, Lopez, in which the Court has granted to review to determine whether a trial court must determine a defendant's ability to pay court costs, which can be exponential, would appear to be one of the more far-reaching decisions, as its holding will likely govern every sentence handed down in Pennsylvania thereafter.  Underlining that point, the Court also permitted four interested parties — the Controller of Allegheny County, Philadelphia Lawyers for Social Equity, the Pennsylvania Interbranch Commission for Gender, Racial, and Ethnic Fairness, and the American Civil Liberties Union — to submit amicus curiae briefs.  (As a side note, the aforementioned Controller of Allegheny County is currently an odds-on favorite to leave her office in favor of a seat on the Court of Common Pleas of Allegheny County, likely before this matter is briefed).  In any event, it will be interesting to see the Court's ultimate disposition and balance between its concern for impoverished defendants and local budgets.

And personally, I'm looking forward to Drummond, in which the Court will address a pet-peeve of mine: a trial judge's decision during criminal jury instructions to provide a "helpful" example of a reasonable doubt, which is generally defined abstractly as one "which would cause a reasonable person to hesitate before acting in a matter of importance in his or her own affairs."  Just off of the top of my head, I recall trial judges offering the following "helpful" examples:

  • choosing to continue on your commute after fearing having left a door unlocked;
  • choosing to continue on your commute after fearing having left an iron on;
  • choosing a place to live;
  • choosing a job;
  • choosing a spouse; and
  • choosing to have surgery.

In Drummond, the trial court used the latter example.  Putting aside for the moment that the mere incantation of such examples can put psychological stress on a juror and make him or her more predisposed to convict, each of the examples involves highly subjective and highly different degrees of doubt warranting hesitation (at least one hopes that a reasonable person is more doubt-averse when marrying than leaving the garage door open).  And prosecutors and defense attorneys alike are forced to conform their summations to whichever of these disparate and malapropos illustrations jurors are be provided.  It will be encouraging, and relaxing, for any trial practitioner, if the Court provides some guidance on the order of "cut it out."

Precedential Opinions

Commonwealth v. Howard, 8 WAP 2021 (fractured case) (holding the mere fact that a parent allowed her child to ride in a car-for-hire without being secured in a car-seat is insufficient to support a conviction for knowingly endangering the welfare of a child)

In re: Hon. Stephanie Domitrovich, 9 WAP 2021 et al. (Opinion by Baer, J.) (quashing appeal from purely administrative order as interlocutory, declining to exercise King's Bench jurisdiction to review it, and indicating an intent to resolve the controversy internally)

Commonwealth v. Cobbs, 56 MAP 2020 (Opinion by Baer, C.J.) (holding conviction for assault by life prisoner infirm where underlying life sentence was subsequently vacated as violative of Eighth Amendment prohibitions on juvenile-offender life sentences and holding that the offense's definition of "life" does not include sentences to terms of years, even if accompanied by a maximum term of life imprisonment)

Commonwealth v. Rawls, 49 MAP 2020 (Opinion by Saylor, J.) (holding that police-interrogators have no duty to inform an arrestee that he has been charged with a crime)

Commonwealth v. Jordan, 31 WAP 2020 (Opinion by Dougherty, J.) (holding that a defendant who proceeds to simultaneous jury and bench trials in the context of a single prosecution may not rely on one or the other for double jeopardy and collateral estoppel purposes)

In the Interest of S.K.L.R., 5 WAP 2021 et. al. (Opinion by Baer, C.J.) (holding abuse of discretion/error of law standard of review applies to terminations of parental rights and finding the Superior Court exceeded the appropriate standard of review in that regard)

Leadbitter v. Keystone Anesthesia Consultants, 19 WAP 2020 (Opinion by Saylor, J.) (holding certain portions of hospital's credentialing file for an alleged medical malpractice tortfeasor were protected from discovery by the Peer Review Protection Act and federal Heath Care Quality Improvement Act)

Commonwealth v. Edwards, 26 EAP 2020 (Opinion by Mundy, J.) (holding that the offenses of recklessly endangering another person and aggravated assault do not merge for purposes of sentencing and forswearing as-applied merger generally)

Donovan v. State Farm, 17 EAP 2020 (Opinion by Baer, C.J.) (holding an insured's signature on a statutorily-required UIM-stacking waiver does not apply to inter-policy stacking for multiple-vehicle policies; that a household vehicle exclusion is unenforceable absent a valid waiver of inter-policy stacking; and that a policy's coordination of benefits provision provision for unstacked UIM coverage does not apply absent a valid waiver of inter-policy stacking)

Commonwealth v. Dixon, 30 WAP 2020 (Opinion by Saylor, J.) (holding that trial judge's instruction that an element had been satisfied violates the federal constitutional right to trial by jury)

Allocatur Grants

Commonwealth v. Prinkey, 319 WAL 2020 (granting review to consider whether a claim of judicial vindictiveness sounds in the legality of sentencing within the meaning of the Post Conviction Relief Act)

Commonwealth v. Donahue, 70 WAL 2021 (granting review to consider a challenge to the sufficiency of the evidence of mens rea under the offenses of theft by deception and home improvement fraud)

Commonwealth v. Wilson, 21 MAL 2021 (granting review to review Superior Court's denial of petition for interlocutory appeal by permission based on earlier decision involving requests for reconsideration)

Commonwealth v. Drummond, 90 EAL 2021 (granting review to consider claim that trial counsel was ineffective in failing to challenge the trial court's instruction on reasonable doubt by providing a practical example)

Commonwealth v. Lopez, 178 EAL 2021 (granting review to consider whether Pa.R.Crim.P. 706(C) requires an ability-to-pay determination prior to the imposition of mandatory costs)

Commonwealth v. Camby, 188 MAL 2021 (granting review to consider whether the touching and kissing of one's neck without consent constitutes indecent contact with an "intimate" part of one's body within the meaning of the offense of indecent assault).

Commonwealth v. Stevenson, 83 WAL 2021 (granting review to consider whether indirect criminal contempt can be predicated on notice of a court order by a non-authorized third party)

Commonwealth v. Thorne, 99 WAL 2021 (granting review to consider whether challenges to certain sexual offender registration requirements are nonwaivable challenges to the legality of sentence)

Commonwealth v. Coleman, 66 WAL 2021 (granting review to consider whether a mandatory minimum sentencing provision applicable to multiple third-degree homicides should apply where the perpetrator commits the first and second third-degree homicide simultaneously)

A.L. v. Pennsylvania State Police, 176 MAL 2021 (granting review to address issues arising in comparison of military offenses to Pennsylvania criminal offenses)

O'Neill v. State Employees Retirement System, 452 EAL 2020 (granting review to consider the Commonwealth Court's analysis in determining and determination that a federal offense was substantially similar to a state offense for purposes of state employee pension forfeiture)

Khalil v. Williams, 53 EAL 2021 (granting review to consider whether to overturn earlier decision barring legal malpractice suits arising out of settled cases absent an allegation of fraud and/or its application therein)

Ebert v. C.R. Bard, Inc., 38 EM 2021 (granting review to consider issues of negligent design products-liability as applied to prescription implantable medical devices)

About the Author

Corrie Woods

Corrie is our primary litigator, and focuses his practice on appellate, criminal, and post-conviction cases. Corrie also authors the firm's blog, SCOPABlog, which is the only regularly updated blog providing comprehensive coverage of the Supreme Court of Pennsylvania's docket. Corrie became an a...


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