This month on SCOPABlog, the Court issued one precedential opinion and five grants of allocatur.  On the opinion side, there is only A.L., in which the court addresses a version of a question it's addressed many times before: whether an out-of-state offense is sufficiently similar to an in-state offense to count for purposes of a collateral a civil statute.  Here, the out-of-state offense is sexual assault under the Uniform Code of Military Justice, the in-state offense is sexual assault under the Crimes Code, and the collateral civil statute is Pennsylvania's sexual offender registration and notification statute.  The Court answered the question simply enough: sexual assault under the UCMJ, which allows convictions where the offender was negligent as to whether the victim was too intoxicated to consent, is broader than sexual assault under the Code, where the offender must be at least reckless, and therefore they are not comparable and do not share sexual offender registration requirements.  The more interesting aspect of the opinion is that the Court unanimously adopts a “categorical approach” previously identified by the United States Supreme Court, which essentially requires courts to look to the elements of crimes, and a certain limited universe of documents, to determine the nature of an offense, rather than to the factual basis for the offense.  This is interesting for two reasons: first, the Court rarely adopts federal rules of decision into Pennsylvania law, in part because the Court is moderate-to-liberal on the whole, and the federal courts are increasingly conservative, but moreso because the Court is generally guarded with respect to ceding future development of the law to other courts.  Additionally, the opinion seems to suggest that the Court has sanctioned the “categorical approach” not only for purposes of determining “comparability” under SORNA, but also for a whole host of other civil statutory regimes as well.  The court may be tired of playing “spot the difference” with foreign criminal statutes, and more inclined in the future to leave A.L. in place, and its application to the lower courts in future instances.

On the allocatur side, I'm most interested in Weeden, which involves whether "ShotSpotter" reports, which purport to use sonic technology to identify the location of gunfire, are "testimonial" for purposes of the federal and state constitutional right to confront witnesses, and, thus, whether their admission into evidence must be accompanied by the author's testimony, subject to cross-examination.  Although the question is specifically about ShotSpotter reports, the decision could impact all sorts of other forensic technologies as well.

Precedential Opinions

A.S. V. Pa. State Police, 57 MAP 2021 (Opinion by Mundy, J.) (adopting the “categorical approach” for comparing foreign convictions to domestic convictions and holding that sexual assault based on lack of capacity under the Uniform Code of Military Justice is not comparable to sexual assault based on lack of capacity under the Crimes Code for purposes of sexual offender registration requirements)

Allocatur Grants

HTR Restaurants, Inc. v. Erie Ins. Exch., 317, 318, 334, & 335 WAL 2021 (granting review to consider two issues relating to motions to coordinate multi-county litigation under Pennsylvania Rule of Civil Procedure 213.1 )

In re: Trust Under Deed of Garrison, 587-589 MAL 2021 (granting review to consider Superior Court's refusal to modify trust per consent of settlor and beneficiaries)

In re: Koepfinger, 162 WAL 2021 (granting review to consider effect of statutorily defective powers of attorney)

Commonwealth v. Weeden, 196 WAL 2021 (granting review to consider whether “shotspotter” reports are testimonial in nature for purposes of the federal and state right to confront witnesses in a criminal trial)

Mercer v. Newell, 260 EAL 2021 (granting review to consider certain intentional-tort exceptions to the Workers' Compensation Act's preemption of employee-employer claims)

Scott v. Husqvarna Prof. Prods., Inc., 147 EAL 2021 (granting review to consider the Superior Court's observance of the applicable standard of review and determination that a trial court erred in determining that a corporate defendant's miniscule sales were de minimis and thus insufficient to render venue proper)