Pennsylvania Law Weekly

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Application of 'Castle Doctrine' far from precise
The Pennsylvania Law Weekly
January 17, 2012

Nearly six months have passed since Pennsylvania Gov. Tom Corbett signed legislation expanding the "castle doctrine" to include home appurtenances, vehicles and public places.
Last year, former Gov. Edward G. Rendell vetoed the same bill just before leaving office. Last spring, the measure was reintroduced in the state House and Senate.
Under the old castle doctrine law, the use of deadly force was not justified if the person could safely retreat, except when the threat was made inside a home or business. The old law required a person outside the home to try to get away from a potential assailant before having a reasonable belief that deadly force was necessary for personal protection.
The reintroduced bill passed the state Senate by a 45-5 vote. The new law establishes that a person shall not be required to retreat in the face of an intrusion or attack outside the person's home or vehicle. It further established that a person is presumed to have a reasonable belief that deadly force is immediately necessary to protect oneself, or other innocent people, from the threat of death, serious bodily injury, kidnapping or rape. The legislation also limits civil liability for people who act within the dictates of the statute.
The governor signed the legislation into law during a private ceremony at the state Capitol on June 28, 2011. Since that time there has not been a rash of gun battles across the commonwealth as some had feared, but there is certainly not an absence of interesting cases to test the new law.
Recently, Somerset County District Attorney Jerry Spangler cited the castle doctrine as the basis for not pursuing a homicide charge against a man who fatally shot the lover of the man's wife outside his home with a compound bow, according to the Pittsburgh Tribune-Review .
On Oct. 9, Tony Bittinger left a message for his girlfriend, Carl Woolley's wife, saying he was going to "put a hole in [Woolley's] head." Bittinger then drove 37 miles with his two brothers to Woolley's home in Somerset County, Pa. Once he arrived, swinging a wooden club, he confronted Woolley and began to climb the front porch steps, according to the state police, as reported by the Tribune-Review .
Bittinger was intoxicated with a blood-alcohol level of .18 percent. Woolley repeatedly asked Bittinger to leave before retrieving a bow and arrow from his living room and shooting him in the chest.
The district attorney acknowledged that the newly expanded castle doctrine played a role in the decision not to prosecute Woolley.
In Westmoreland County, the district attorney withdrew attempted homicide charges against a psychologist, Charles P. Gallo, who shot a man after an incident of road rage. The charges were withdrawn because the motorist who was shot, Patrick James Pirl, refused to testify at a preliminary hearing before a Ligonier District justice, according to the Tribune-Review .
Gallo told police he was driving between 40 and 45 mph on Route 30 when Pirl allegedly started tailgating him. He told police he felt forced to shoot after Pirl turned his truck around and headed straight for Gallo's car.
"Gallo said he tried to back up away from the white truck when it started to charge at him. He felt that he had no place to go and felt threatened, so he pulled a Glock semiautomatic pistol and fired two shots at the white truck," the Tribune-Review reported.
This case is interesting in that the district attorney filed charges against the shooter, believing Gallo was not justified in shooting Pirl to protect himself from serious bodily injury. Was Pirl's vehicle a weapon, and did Gallo fear for his safety? We may never know, because Pirl wisely refused to testify against Gallo to protect his Fifth Amendment right against self-incrimination.
Washington County police and the district attorney are continuing to investigate the July 2011 shooting of Ezequiel Jeremy Pando of Lovington, N.M., who entered a home in the city of Washington, Pa., by force. He was killed by a gunshot wound to the chest.
Police Chief James Blyth told WTAE-TV that Pando had dated a woman who lived at the home, and that the woman, her current boyfriend and her two children were in the house when Pando kicked in the door.
The police know who the shooter is, but have not yet charged him. The Washington County District Attorney's Office is investigating whether the shooting was justified under the castle doctrine.
Last month, Joshua Levin and his son, Zachary Levin, were called by Joshua Levin's estranged wife to pick her up at her new boyfriend's home in Montgomery County after an argument. The Levins showed up with a baseball bat and wooden club. Joshua Levin was wounded and Zachary Levin, a student at Boyertown Area Senior High School, ended up dead.
According to Montgomery County District Attorney Risa Vetri Ferman, as reported by The Philadelphia Inquirer , Zachary Levin had a club and his father had an aluminum bat. The unidentified boyfriend retreated to his pickup truck and retrieved a .40-caliber semiautomatic handgun that was properly licensed.
Displaying the weapon did not deter the Levins. According to the district attorney, the Levins continued to poke him and hit his truck, eventually trapping him. The boyfriend allegedly struck Joshua Levin in the head with the handgun to back him off.
Zachary Levin then allegedly hit the boyfriend with the wooden club and was shot in the chest. As Joshua Levin was about to strike the boyfriend with the bat, he was shot in the arm, according to the district attorney. The boyfriend then called 911, according to the Inquirer .
A common theme with three of these cases is the "love triangle." Does the heightened emotional connection between these actors in any way diminish the objective nature of the decision to use lethal force? In other words, would someone involved in a relationship with an alleged assailant have some motive to kill for reasons other than personal protection from death, serious bodily injury, kidnapping or rape?
The castle doctrine provides a presumption that a person using lethal force acted reasonably if specific circumstances exist as defined by the statute. Can a prosecutor rebut that presumption by proving that the person who used lethal force had a motive to kill?
Is it unreasonable to let a jury decide if a homicide was the result of an immediate physical threat or an illicit affair with the shooter's spouse?

Lawmakers seek to compensate the wrongfully imprisoned
The Pennsylvania Law Weekly
December 13, 2011

A bill has been introduced in the state Senate that would provide $50,000 a year for each year of incarceration for those wrongfully convicted and confined in a Pennsylvania prison.
Senate Bill 1338 provides that all claims of wrongful conviction and imprisonment shall be heard by the Commonwealth Court. The district attorney or attorney general may offer evidence and argue in opposition to a claim for damages, but S.B. 1338 specifically suggests a level of informality with regard to the proceedings. The court may order damages of a minimum of $50,000 for each year of incarceration, as adjusted annually to account for inflation and prorated for partial years served.
The new law would provide that a claimant before the Commonwealth Court would have to prove, by clear and convincing evidence, actual innocence. A claimant can establish actual innocence in one of three ways: (1) being pardoned by the governor because the crime was not committed or if a crime was committed the claimant was not responsible; (2) the conviction was reversed or vacated on grounds consistent with innocence; or (3) a new trial was ordered, and the claimant was found not guilty or was not retried.
Senate Bill 1338's principal sponsor is Senate Judiciary Committee Chairman Stewart Greenleaf. The wrongful conviction compensation plan is part of a package of reforms proposed by the Advisory Committee on Wrongful Convictions. The committee was created in 2006 and the long-awaited report was issued in September detailing, among other things, compensation for the wrongfully convicted.
The advisory committee was not without controversy. The report was far from unanimous and the law enforcement and victim representatives of the committee issued their own independent report.
The independent report took issue with some of the terms included in the compensation portion of S.B. 1338. First, what does "grounds consistent with actual innocence" mean? The compensation bill provides that actual innocence may be proven before the Commonwealth Court if a claimant's conviction was reversed on grounds consistent with innocence. The independent report suggests that the standard is "so broad as to cover nearly all appellate reversals."
The independent report also took exception with the idea that an acquittal after a retrial or the decision not to retry is evidence of actual innocence. The independent report argues that the U.S. Supreme Court has held that an acquittal "does not prove that the defendant is innocent," Dowling v. United States , 493 U.S. 342 (1990).
The independent report succinctly pointed out that the burden of proof in criminal cases requires proving guilt beyond a reasonable doubt. The Supreme Court has made it clear that a jury must acquit "someone who is probably guilty but whose guilt has not been established beyond a reasonable doubt," Gregg v. Georgia , 428 U.S. 153 (1976).
If not guilty is not innocent, will the Commonwealth Court conduct a trial to determine innocence? With the informality that is required by the proposed statute, how is such a trial conducted? We know the burden of proof for guilt is beyond a reasonable doubt — what is the burden of proof for innocence?
If Pennsylvania were to enact a wrongful conviction and imprisonment compensation law, the Commonwealth would join 27 other states that have passed legislation providing some form of compensation. Texas provides the most comprehensive wrongful conviction compensation. Texas pays the wrongfully convicted $80,000 a year for each year of imprisonment and $25,000 a year for each year spent on parole or as a registered sex offender.
The other 26 states vary in the manner and amount of compensation, according to ABC News and the City University of New York. Awards in Massachusetts are capped at $500,000 and in North Carolina the limit is $750,000. In Missouri, only those who are found wrongfully convicted by DNA evidence can receive $18,000 per year for each year of imprisonment.
Utah limits compensation to the wages the state's average citizen earns in a year. New Jersey provides twice the yearly salary of the claimant the year before he or she was convicted. New Hampshire offers a maximum of $20,000 for the entire period of wrongful conviction and confinement. In Montana, claimants are only entitled to financial aid to attend a state college.
In 2004, the federal government enacted legislation that required compensation of $50,000 for every year of wrongful federal imprisonment and $100,000 per year if the time was spent on death row.



In states where wrongful conviction legislation has been enacted there is still a disparity in who ultimately receives compensation. A review of California's compensation scheme by California Watch found from 2000 to 2010, the state awarded funds to 11 of the 132 claimants who sought compensation. California denied 44 claims and nearly half of all claims never reached a final disposition.



Even in Pennsylvania, without a compensation statute, the outcome for those wrongfully convicted can be wildly different. Two men in Allegheny County, Thomas Doswell and Drew Whitley, were freed from prison when their convictions were overturned based on new DNA evidence. According to the Pittsburgh Tribune-Review , Doswell was convicted of rape in 1986 and spent 19 years in prison. Whitley was convicted of murder in 1989 and spent 17 years in prison. Both men sued in federal court. Doswell was awarded $3.8 million. Whitley received nothing — his case was dismissed.



Dauphin County District Attorney Edward Marsico, the former president of the Pennsylvania District Attorneys Association, is satisfied with the way Pennsylvania has resolved compensation issues. The compensation bill is "unnecessary, we have a system that can compensate those who were wrongfully convicted ... [We] shouldn't replace the court system," Marsico told KDKA-AM in Pittsburgh. Marsico also expressed concern for crime victims who are often not made whole especially in these difficult economic times: "Victim programs have been dramatically reduced."



Pennsylvania crime victims can apply through the Victims Compensation Assistance Program for up to $35,000 in restitution for losses incurred at the hands of a convicted offender.



"This is really about inequity. You could end up being paralyzed for life [from a crime], and all you get is $35,000. Period," Carol Lavery, director of the state Office of the Victim Advocate, told the Tribune-Review . "A person who didn't commit the crime should be compensated. I can't argue against that. If we're willing to pay millions to people who are truly innocent, there should be more equity."