PLW: Pa. Supreme Court Tackles Internet Privacy in 'Kurtz'

Matthew T. Mangino
The Legal Intelligencer
January 15, 2026

In summer 2016, a woman in Northumberland County went to bed after her husband, a corrections officer, left to work the midnight shift at Coal Township State Correctional Institution.

After he left an intruder entered the home. The intruder bound and gagged the woman, removed her from her home, and raped her in a nearby trailer. The Pennsylvania state police (PSP) investigated the crime.

Although foreign DNA was found on the victim’s body, the PSP could not match the DNA to any known person. Investigators surmised, through their preliminary investigation, that the perpetrator was familiar with the victim. The PSP obtained a “reverse keyword search warrant” requiring Google to provide any search of the victim’s name or address by anyone in the world for a week prior to the attack.

The warrant was not directed at a specific person’s activity, but instead any activity that was directed toward information about the victim. After about a year, Google found that two searches for the victim’s address occurred only hours before the attack.

The information provided by Google included the person’s IP address. As aresult, the PSP focused on John Edward Kurtz who was a corrections officer at the same facility as the victim’s husband. After grabbing a cigarette butt discarded by Kurtz and retrieving his DNA, the PSP found it matched the DNA retrieved from the victim.

Kurtz was arrested and subsequently filed a motion to suppress the Google warrant. Kurtz argued that the PSP failed to establish probable cause individualized to him, as constitutionally required to support the issuance of a search warrant.

However, before Kurtz could challenge the validity of the search warrant, he first had to demonstrate a reasonable expectation of privacy in the area searched. What is a reasonable expectation of privacy triggering the protection of the Fourth Amendment?

In Katz v. United States, 389 US 347 (1967), the U.S. Supreme Court found that a bookie using a telephone booth to place bets was protected by the Fourth Amendment and if police wanted to listen to his end of the conversation outside a telephone booth, they needed to get a search warrant.
The majority opinion was not as newsworthy as the concurring opinion by Justice John Marshall Harlan. As the Pennsylvania Supreme Court noted, Harlan’s often quoted concurrence bears repeating,“Justice Harlan explained that, for a person to demonstrate an expectation of privacy,‘there is a twofold requirement. ’First, that person must‘ have exhibited an actual (subjective) expectation of privacy and, second, ... the expectation must be one that society is prepared to recognize as reasonable.’”

After Kurtz’s suppression motion was denied,he was convicted at trial of multiple rapes. The Superior Court affirmed his conviction and the Pennsylvania Supreme Court ultimately granted Kurtz’s allowance of appeal at Commonwealth v. Kurtz, 98, 99, and 100 MAP 2023.

Initially, the Supreme Court determined, “In this case, we must decide whether a person who conducts general, unprotected internet searches has an expectation of privacy in the records generated by those searches.”

The court continued, “The internet is now commingled with most, if not all, of our personal and professional activities that does not mean that a person automatically has a constitutionally reasonable expectation of privacy in its general usage.”

The court suggested that an individual’s use of the internet in her own home—a place often viewed by the U.S. Constitution as an individual’s most sacred and protected refuge, is not automatically protected. The Pennsylvania Supreme Court acknowledged, “At the heart of the Fourth Amendment‘ stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’”

The majority opinion in Kurtz, written by Justice David Wecht and issued on Dec. 16, 2025, took care to examine a number of well-known U.S. Supreme Court decisions establishing, and later restraining the “third-party doctrine.” The doctrine stands for the premise that if an individual makes personal matters accessible to a third party, that person cannot then invoke the protections of the Fourth Amendment.

The U.S. Supreme Court began to narrow the third-party doctrine in United States v. Jones, 565 U.S. 400 (2012), in which the court held that attaching a GPS device to a vehicle and using satellite technology to track the operator’s movements in that vehicle constituted a “search” under the Fourth Amendment and requires a search warrant..

The Kurtz opinion then focused on Carpenter v. United States, 585 U.S. __(2018). Police had retrieved cellphone numbers from a member of a burglary ring. Investigators then obtained the cellphone site location information (CSLI) without a search warrant. The U.S. Supreme Court held a person does not make a voluntary choice to place CSLI generated by cellphone use into the hands of third parties. Rather, such transmission happens automatically.
Based on the analysis of the third-party doctrine and its subsequent treatment, the Pennsylvania Supreme Court reasoned that the resolution of Kurtz’s claim hung“upon whether such actions are governed by Carpenter’s “narrow” rejection of the third-party doctrine, or fall instead under the traditional third-party doctrine.”

Wecht wrote, “the pedestal upon which the Fourth Amendment places the home crumbles when “a person knowingly exposes [private material] to the public. ”While “a man’s home is, for most purposes, a place where he expects privacy,” that privacy does not extend to those “objects, activities, or statements that he exposes to the plain view of outsiders.”

The court continued, “The point is that the data trail created by using the internet is not involuntary in the same way that the trail created by carrying a cellphone is.” An individual should not be surprised that there is no reasonable expectation of privacy in Google searches, “It is common knowledge that websites, internet-based applications, and internet service providers collect, and then sell, user data.”

The court ruled in Kurtz that an individual does not have a reasonable expectation of privacy with regard to internet searches, in this case the simple, and prolific decision to “Google it.”

The court did not make access to internet searches unlimited. The court made clear that internet users who take efforts “to secure some degree of privacy” may be afforded greater constitutional privacy protections. The court pointed to use of virtual private networks, internet browsers that do not collect or share data, and websites that are password-protected as examples of internet use that may permit users to “retain a constitutionally recognizable expectation of privacy.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney of Lawrence County, Pennsylvania.He is the author of "The Executioner’s Toll." You can follow him on Bluesky @matthewmangino.bsky.social or contact him at mmangino@lgkg.com.

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The Legal: Pa. Supreme Court: Warrantless Blood Draws Under Section 3755 Are Unconstitutional

Matthew T. Mangino
The Legal Intelligencer
October 16, 2025

The Pennsylvania Supreme Court has ruled that warrantless blood draws based on “probable cause” of driving under the influence permitted by 75 Pa.C.S.A. 3755 are unconstitutional.

In the past, the Supreme Court ruled that 3755(a) required “hospital personnel, in cases where probable cause exists to believe that an emergency room patient has violated Pennsylvania’s DUI statute, to take blood samples for BAC testing.” There was no requirement in the statute, however, “that the BAC testing be conducted at the request of a police officer.” The only condition for a legal blood draw under Section 3755 was “the abstract requirement that probable cause exists to believe” there was a violation of the DUI statute.

The Supreme Court has acknowledged that Section 3755 was “inartfully drafted” because it “required a probable cause determination without specifying who is to make such determination, or how such an abstract requirement is to be met.”

Section 3755 is a component of Pennsylvania’s “implied consent” scheme, which, together with Section 75 Pa.C.S.A. 1547, is designed to facilitate the investigation and prosecution of driving under the influence (DUI) offenses by requiring motorists to submit to chemical testing in order to measure their blood alcohol concentration.

As stated expressly in Section 1547(a), the theory underlying the implied consent scheme is that, by electing to drive a vehicle in Pennsylvania, a person “shall be deemed to have given consent” to a search of his or her bodily fluids when a police officer develops “reasonable grounds to believe” that the person has committed a DUI offense.

Although Section 1547 allows a person who has been arrested for DUI to refuse a request and mandates that the testing not be conducted against the arrestee’s will, the statute discourages refusal by imposing consequences upon the exercise of that right, including driver’s license suspension, authorization to use the refusal as evidence of guilt in a future DUI prosecution, and imposition of enhanced criminal penalties upon the refusal to submit to breath testing, but not blood testing.

On June 17, 2025, the Pennsylvania Supreme Court decided Commonwealth v. Hunte, ___ A.3d ___, 2025 WL 1703981 (Pa. 2025).

Larry Wardell Hunte was the driver in a single-car accident that resulted in the death of his passenger. He was transported to the hospital, a state trooper who was with Hunte was unable to obtain his consent to a blood draw because he was unconscious.

The trooper requested that hospital personnel draw Hunte’s blood pursuant to Section 3755. The hospital proceeded to draw Hunte’s blood without his knowledge or consent, and without the trooper first obtaining a warrant for the blood draw.

The state police later obtained search warrants to get the blood sample and to have a laboratory test the sample to determine the defendant’s blood alcohol. Analysis of Hunte’s blood revealed the presence of alcohol and controlled substances.

Hunte was charged with homicide by vehicle while DUI and related offenses. He filed a motion to suppress the results of the blood draw on the basis that Section 3755 was unconstitutional. The trial court in Cumberland County granted Hunte’s suppression motion and found Section 3755 unconstitutional. As a result, the commonwealth filed a direct appeal to the Pennsylvania Supreme Court.

In analyzing Section 3755, the Supreme Court stated that “on its face, Section 3755 … purports to authorize the seizure of a person’s blood on the basis of probable cause to suspect DUI, without the need for a search warrant or the demonstration of any circumstance-specific exception to the warrant requirements of the Fourth Amendment and Article I, Section 8.”

Article I, Section 8 of the Pennsylvania Constitution provides “No warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment to the U.S. Constitution provides, “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.”

The Supreme Court first examined whether blood draws in DUI cases fell under any exceptions to the warrant requirement. The Supreme Court determined that “statutory ‘implied consent’ cannot serve as an independent, categorical exception to the warrant requirement.”

The court also concluded that “warrantless blood searches are not authorized by any categorical understanding of exigent circumstances.” The court concluded that “neither the exigent circumstances doctrine nor consent—actual or ‘implied’—provides the categorical authority” to excuse the warrant requirement when conducting a blood draw.

Therefore, the high court ruled “Section 3755 is clearly, plainly, palpably, and indeed, facially unconstitutional under the Fourth Amendment,” and also unconstitutional under Article I, Section 8 of the Pennsylvania Constitution.

This decision does not limit the ability of medical personnel to draw blood for independent medical purposes. Blood drawn for medical purposes may be subject to a search warrant for purposes of measuring the blood alcohol content through subsequent testing.

About six weeks after Hunte was decided, the Pennsylvania Superior Court decided Commonwealth v. Persico, 2025 EDA 2024 (Pa.Super 2025). Joseph L. Persico was involved in a deadly automobile accident. After being transported to the hospital, medical staff ordered blood and urine tests. A vial of blood was sealed and locked in the lab without testing. A month later police obtained a search warrant and asked the hospital to test the blood for the first time.

The Superior Court found—in light of the Supreme Court striking down Section 3755—the commonwealth must establish the medical reason for drawing the blood at Persico’s suppression hearing.

No hospital personnel testified at the suppression hearing and the commonwealth presented no evidence that Persico’s blood draw occurred for independent medical purposes. As a result, the Superior Court found “the commonwealth entirely failed to meet its burden.”

In Commonwealth v. Jones-Williams, 279 A.3d at 508 (Pa. 2022), the Pennsylvania Supreme Court held that if there is no evidence that hospital personnel acted at the direction of police or as an agent of the police in conducting a blood draw, and instead, conducted the blood draw for “independent medical purposes” the blood could be obtained with a warrant.

However, in Commonwealth v. Shaw, 770 A.2d 295 (Pa. 2001) the high court made clear that a blood draw does not need to be conducted at the request of a police officer for Section 3755 to be applicable, but need only occur because of a perceived duty arising out of Section 3755 and, of course, the Supreme Court said in Hunte, “Section 3755 is facially unconstitutional under the Fourth Amendment to the U.S. Constitution and Article I, Section 8 of the Pennsylvania Constitution.”

The Superior Court in Persico ruled “a subsequently obtained search warrant does nothing to cure the statute’s facial authorization of a warrantless search.” The blood draw was not for medical purposes and the trial court’s suppression of the blood test was affirmed by the Superior Court.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney of Lawrence County, Pennsylvania. He is the author of "The Executioner’s Toll." You can follow him on Bluesky @matthewmangino.bsky.social or contact him at mmangino@lgkg.com. 

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Legal Intelligencer--High Court: ARD Admission Is Not Considered a Prior Offense to Enhance Sentencing for a DUI

Matthew T. Mangino
The Legal Intelligencer
June 12, 2025

The Pennsylvania Supreme Court has ruled that 75 Pa.C.S.A. 3806 of the Motor Vehicle Code—which includes accelerated rehabilitation disposition (ARD) in the definition of a prior offense for purpose of sentencing on a second or subsequent driving under the influence conviction—unconstitutional.

The court found that ARD does not equate to a conviction because it lacks the procedural safeguards of a criminal trial, such as the right to a jury trial and the requirement of proof beyond a reasonable doubt.

The high court’s decision finally puts to rest the evolving question of whether admission into the ARD program can be used as a sentence enhancement for purposes of deterring recidivist conduct on Pennsylvania’s roadways.

In May 2020, the Pennsylvania Superior Court turned the DUI statute on its head.

Igor Chichkin was charged with DUI in Philadelphia in 2017. Chichkin had a prior DUI charge in which he received ARD, a diversion program. Upon acceptance into the ARD program a defendant need not plead guilty or not guilty. If the defendant successfully completes the program the charges are dismissed and the defendant may seek the expungement of the charge.

Prior to the decision is Chichkin, if a defendant was arrested within 10 years of accepting ARD, he or she could be charged with a DUI second offense which carried a mandatory minimum of 30 days in jail, 75 Pa.C.S.A. 3804 (b) (2). For sentencing purposes in Pennsylvania an ARD was considered a prior offense, Section 3806 (a).

Chichkin went to trial on his new offense and was convicted of DUI. As a result of his prior ARD, he was sentenced to 30 days to six months in jail.

On appeal, Chichkin raised the landmark U.S. Supreme Court decision of Alleyne v. United States, 570 U.S. 99 (2013). The Alleyne court held that the Sixth Amendment guarantees an accused a right to a trial by a fair and impartial jury, which can only be accomplished if all of the facts that are elements of the crime are presented to the jury. If an element of the crime increases the mandatory minimum punishment, it must be submitted to the jury and found beyond a reasonable doubt.

Alleyne was an expansion of the high court's prior ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000).

Alleyne held "a defendant has due process rights to specific notice in the charging document and proof beyond a reasonable doubt, as well as, the constitutional guarantee of a jury determination" with regard to "any factual determination that triggers a mandatory minimum sentence."

As a result, the court vacated Chichkin’s mandatory minimum sentence.

The court wrote about the prior offense excused by ARD, “They are a "fact" that, pursuant to Alleyne, Apprendi, and their progeny, must be presented to the fact finder and determined beyond a reasonable doubt before a trial court may impose a mandatory minimum sentence under Section 3804,” see Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020).

The Chichkin decision created chaos for prosecutors and the courts. However, that chaos was short lived. In fact, I anticipated the recent Pennsylvania Supreme Court decision in an article for “The Legel Intelligencer” in January 2023. I wrote then, “The prosecution of repeat DUI offenders is back where it was prior to 2020 ... this is not the last we will hear on this subject. Stay tuned, this matter will most likely end up before the Pennsylvania Supreme Court.”

How did this matter ultimately get to the high court? In Commonwealth v. Richards, 284 A.3d 214 (Pa. Super. 2022) (en banc), and Commonwealth v. Moroz, 284 A.3d 227 (Pa. Super. 2022) (en banc), the Superior Court held that, pursuant to Section 3806, a defendant’s previous acceptance of ARD for a DUI constitutes a prior offense for purposes of imposing a mandatory minimum sentence under Section 3804.

The court made it clear that the decision of a defendant to enter the ARD program is voluntary. A defendant “is free to reject participation in the program if he wishes to avail himself of his full panoply of constitutional rights.”

Applying for, and being accepted into, the ARD program does not carry the same procedural safeguards of a conviction following trial. The court found “The safeguards in place to be adequate.” The court emphasized that “Section 3806(a) appropriately notifies a defendant that earlier ARD acceptance will be considered a prior DUI offense for future sentencing purposes.” The voluntary nature of the ARD program mitigates the due process concerns expressed by the U.S. Supreme Court. As a result, a defendant’s prior acceptance of ARD fits within the limited “prior conviction” exception set forth in Apprendi.

The Superior Court was unequivocal in its holding in Richards, “We expressly overrule Chichkin.”

On May 30, 2025, the Pennsylvania Supreme Court decided Commonwealth v. Shifflett, No. 26 MAP 2024. In 2012, Shifflett was charged with the offense of driving under the influence of alcohol 75 Pa.C.S. Section 3802(d)(3). He was accepted into an ARD program.

In 2022, George Thomas Shifflett was arrested for another DUI and, based on his previous acceptance of ARD for his 2012 offense, he was charged with DUI as a second offense.

Shifflett pleaded guilty to the second DUI. At that time, the commonwealth asserted that, pursuant to Section 3806 the plea constituted a second DUI offense. The trial court agreed with Shifflett’s claim that the prior ARD should be considered a prior offense.

The commonwealth appealed, arguing that the trial court erred in failing to treat the appellant’s 2012 offense as a prior offense under Section 3806 and impose an enhanced sentence under Section 3804 as a result of the decisions in Richards and Moroz holding that, pursuant to Section 3806, a defendant’s previous acceptance of ARD for a DUI constitutes a prior offense for purposes of imposing a mandatory minimum sentence under Section 3804.

According to the opinion in Shifflett, the trial court, in its opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, concluded that, in light of Richards and Moroz, it erred in granting the appellant’s motion to exclude at sentencing evidence of his previous acceptance of ARD for his 2012 offense, and, accordingly, requested that the Superior Court remand the case for resentencing. In a unanimous, unpublished memorandum opinion, the Superior Court vacated Shifflett’s judgment of sentence and remanded for resentencing.

The Pennsylvania Supreme Court agreed to hear Shifflett’s appeal focusing on the U.S. Supreme Court’s decision in Alleyne, and whether it was unconstitutional to consider Shifflett’s previous acceptance of ARD as a prior offense for sentencing purposes.

Pennsylvania Supreme Court Chief Justice Debra Todd, writing for a 4-3 majority, found “acceptance into an ARD program does not offer a defendant any of the constitutional safeguards that accompany either a criminal conviction or a guilty plea proceeding.”

The safeguards recognized by the U.S. Supreme Court’s in Apprendi and Alleyne, namely that any fact which increases the penalty for a crime beyond the statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proven beyond a reasonable doubt are not present with admission to ARD.

The high court continued, “Thus, an individual’s previous acceptance of ARD, which, when construed as a prior offense under Section 3806 to increase the penalty for a subsequent conviction pursuant to Section 3804, is a fact that must be submitted to a jury and proven beyond a reasonable doubt.”

The reasoning in Chichkin is again the law of the commonwealth. Once and for all, admission to ARD is not considered a prior offense for purposes of enhancing a driving under the influence sentence.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney of Lawrence County, Pennsylvania. He is the author of "The Executioner’s Toll." You can follow him on Bluesky @matthewmangino.bsky.social or contact him at mmangino@lgkg.com.

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Pa. High Court to Decide Whether Flight in a High Crime Area Can Result in an Investigative Stop

Matthew T. Mangino
The Legal Intelligencer
February 6, 2025

The Pennsylvania Supreme Court will decide whether unprovoked flight from the police in a high crime area provides police with the requisite reasonable suspicion to conduct an investigatory detention.

In 2021, following a bench trial, Phillip Shivers was convicted of violating 18 Pa.C.S.A. 6105, 18 Pa.C.S.A 6106 and 18 Pa.C.S.A 6108 under the Uniformed Firearms Act. On July 18, 2019, Philadelphia police were on regular patrol in a neighborhood known for "drug activity and gun violence.” Shivers was observed near the entrance of a nearby a 7-Eleven.

As police approached Shivers, he took off running. He was soon detained by police where it was discovered that Shivers illegally possessed a firearm.

Shivers sought to suppress the discovery of the firearm based on the premise that the police violated Article I, Section 8 of the Pennsylvania Constitution in not having reasonable suspicion to conduct an investigator detention. The motion to suppress was denied, and he was convicted following a bench trial. The language of Article I, Section 8 and the Fourth Amendment are very similar.

On direct appeal to the Pennsylvania Superior Court, Shivers challenged the trial court’s ruling dismissing his suppression motion.

There are three distinct levels of interaction between police officers and citizens:

• a mere encounter;
• an investigative detention;
• a custodial detention.

In this instance, the police did not have probable cause to detain or arrest Shivers. Prosecutors contend what started as mere encounter evolved into reasonable suspicion as Shivers fled from the police while in a high crime area.

Shivers asserted the police provoked his flight by pursuing him as he walked away, and that the Pennsylvania Constitution provides greater protections to an individual subject to detention than does the U.S. Constitution.

In Illinois v. Wardlow, 528 U.S. 119 (2000), the U.S. Supreme Court held that an unprovoked flight in a high crime area is sufficient to create reasonable suspicion to justify an investigatory detention pursuant to Terry v. Ohio, 392 U.S 1 (1968).

Let’s look at Terry first. On Oct. 31, 1963, while walking the beat through downtown Cleveland, police detective Martin McFadden, with 39 years of police experience, noticed three men acting suspiciously and pacing in front of a jewelry store on Euclid Avenue.

McFadden, based on his years of experience was concerned the men were “casing a job, a stick up” and were carrying weapons. McFadden identified himself as a police officer and asked their names and searched the three for weapons.

The searches resulted in John Terry’s arrest for possessing a firearm without a license. He was convicted and appealed all the way to the U.S. Supreme Court. Although the Supreme Court in Terry acknowledged that a hunch was not enough, the court carved out a new standard of proof—reasonable suspicion.

Some 30 years later, in Chicago, Sam Wardlow was holding a bag on a city street known for heavy narcotics trafficking. After noticing police officers in the area, Wardlow fled on foot. When officers caught up with him, they conducted a protective Terry pat-down search for weapons, their training and experience told them that weapons are usually in the vicinity of narcotics transactions. The officers arrested Wardlow after discovering that he was carrying a handgun.

At a suppression hearing, Wardlow claimed that in order to stop an individual, short of actually arresting the person, police first had to have reasonable suspicion to conduct an investigatory detention. The motion was denied and he was convicted at trial.

Chief Justice William H. Rehnquist, writing for a 5-4 majority, held that police officers did not violate the Fourth Amendment when they stopped Wardlow, because the officers were justified in suspecting that the accused was involved in criminal activity and, therefore, justified in investigating further. Rehnquist wrote "flight is the consummate act of evasion."

In 1999, it appeared that Pennsylvania would adopt a contrary position on flight as a factor in reasonable suspicion determinations. In the Interest of D.M., 743 A.2d 422 (Pa. 1999), police received an anonymous phone call about a man with a gun on a street corner in Philadelphia. The call stated that he was a Black male and described his clothing. The officer was only a block away when he heard the radio call. He drove to the corner and saw D.M. who matched the description. D.M. ran from the officer and police ultimately caught up with him.

The court held that his flight was irrelevant to the reasonable suspicion analysis because D.M. did nothing to arouse the officer’s suspicion before he fled. Finding the matching of the nondetailed clothing description alone insufficient to provide reasonable suspicion for a seizure, the court held that there was a violation of the Fourth Amendment and Article I, Section 8.

In light of the Wardlow decision, the U.S. Supreme Court vacated the decision in D.M. and ordered reconsideration of the Pennsylvania Supreme Court decision. On remand, the court reversed its earlier Fourth Amendment ruling and held that it incorrectly ruled that flight was irrelevant to the reasonable suspicion analysis. “The totality of the circumstances test, by its very definition, requires that the whole picture be considered when determining whether the police possessed the requisite cause to stop appellant,” and “flight was clearly relevant.”

In recent years, the Pennsylvania Supreme Court has limited long accepted indicia of reasonable suspicion due to evolving legislation with regard to firearms and marijuana.

In Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), this court held that criminal activity justifying a stop could not be inferred from carrying a concealed gun in public because many people have licenses to carry firearms. The court held, the conduct at issue was solely possession of the gun, “there remains no particularized basis upon which to suspect that Hick’s mere possession of a concealed firearm was unlawful.”

In Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021), the commonwealth claimed that there was probable cause to search a vehicle solely because police smelled marijuana after a lawful traffic stop, and the stop was in a high crime area. The Medical Marijuana Act now permits many people to have a license to possess marijuana. As the Pennsylvania Supreme Court, held a stop based on the mere smell of marijuana was unconstitutional.

Shivers contends the Pennsylvania Constitution, Article I, Section 8, can go further than the Fourth Amendment to the U.S. Constitution in protecting people during investigatory detentions. Fleeing is an individual’s decision, and fleeing—in and of itself—is not a basis for reasonable suspicion. Being in a high crime area is not the conduct of an individual, but the conduct of others. Innocent people are in high crime areas—they may live there or work there or have friends or family living there, through no choice of their own. At times, innocent people flee from the police in high crime areas due to a fear of dangerous and even deadly encounters with the police.

The case is Commonwealth of Pennsylvania v. Shivers, 50 EAP 2024.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney of Lawrence County. He is the author of "The Executioner’s Toll." You can follow him on Bluesky @matthewmangino.bsky.social or contact him at mmangino@lgkg.com.

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PLW: One Word May Make All the Difference for Lifers Convicted of Felony Murder

Matthew T. Mangino
The Legal Intelligencer
September 26, 2024

The Pennsylvania Supreme Court has agreed to hear oral arguments in a criminal case that will test, when it comes to punishment, whether the Pennsylvania Constitution provides greater protections than the U.S. Constitution.

The constitutional provisions at play are Article I, Section 13 of the Pennsylvania Constitution and the Eighth Amendment to the U.S. Constitution.

Article I, Section 13 of the Pennsylvania Constitution provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted.

The Eighth Amendment provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Pennsylvania Supreme Court must decide whether the term "cruel punishment" is more expansive in the punishments it precludes than the term "cruel and unusual punishment."

In what context has this matter made its way to the state's high court?

On Oct. 14, 2014, Derek Lee was one of two men who entered a residence in Allegheny County shared by Leonard Butler and Tina Chapple. According to the Pennsylvania Superior Court, "Both Butler and Chapple were forced into the basement of the home, and then were forced to kneel. Both males were yelling at Butler to give up his money and one used a taser on Butler several times during the attack." Lee took Butler's watch and went up the stairs, leaving the basement.

The second male remained with the couple and shot Butler causing his death.

There is no dispute that Lee did not kill or intend to kill in the commission of the robbery. Following trial, the jury found Lee guilty of second-degree murder, robbery, and conspiracy. Second degree murder, felony murder, is a statutory crime in Pennsylvania promulgated at 25 Pa.C.S.A. 2502 (b), "Criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony."

The Pennsylvania Crimes Code, 18 Pa.C.S.A. 1102(b), provides a mandatory sentence of life in prison for second degree murder. As a result, Lee was sentenced to life without the possibility of parole.

In Pennsylvania, life without parole is often referred to as death-by-incarceration.

Pennsylvania's death penalty is in a de facto moratorium. Gov. Josh Shapiro has said unequivocally that he is opposed to the death penalty, but death-by-incarceration is flourishing in Pennsylvania.

Under Pennsylvania's sentencing scheme, offenders—other than lifers—are sentenced to a minimum and a maximum term of sentence. The maximum must be at least twice the minimum.

Once an inmate has served his minimum sentence, he is eligible for parole. Release from prison is determined by the state's parole board. Once released, the offender is supervised on parole until the expiration of his maximum sentence.

A life sentence in Pennsylvania has no minimum—there is no opportunity for parole—life means life in Pennsylvania.

Over time, the U.S. Supreme Court has back-pedaled from life without parole. The decisions in Graham v. Florida, 560 U.S. 48 (2010), Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016) are instructive. Lee has cited in his argument the U.S. Supreme Court's finding that "That life-without-parole sentences are sufficiently similar to the death penalty that they may be unconstitutional when applied to people with categorically diminished culpability based on their offense or characteristics."

That is the criticism of Pennsylvania's mandatory sentence of life without parole for second degree murder—diminished culpability. As in Lee's case he was not the shooter, he didn't intend to shoot anyone, yet his sentence provides no hope for redemption, rehabilitation or a return to society.

The Pennsylvania Supreme Court's review of Lee's case comes down to a single word, "unusual." Lee argues that the absence of the word "unusual" in the text of Article I, Section 13 is crucial to finding mandatory life without parole for second degree murder unconstitutional.

In Bucklew v. Precythe, 587 U.S. 119 (2019), U.S. Supreme Court Justice Neil Gorsuch turned to history as he and his conservative colleagues are so eager to do when analyzing an argument. Gorsuch cited a 2009 law review article by John F. Stinneford defining "unusual" in a constitutional sense as "Americans in the 18th and 19th centuries describe unusual government actions that had "fallen completely out of usage for a long period of time." (Appellant's brief at page 17).

Without the limitations of "unusual" in Article 1, Section 13, the Pennsylvania Supreme Court is free to determine if life without parole, although still in use, is unduly cruel. The argument suggests even if the Eighth Amendment to the U.S. Constitution doesn't prohibit life without parole for second degree murder in Pennsylvania, the Pennsylvania Constitution does.

So, does the language of Article I, Section 13 provide greater protection than the Eighth Amendment?

Lee's attorneys say yes. However, in order for Lee to prevail he must persuade the court that the four factors outlined in Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), favor the prohibition of life without parole for second degree murder.

The four factors are "the text of the Pennsylvania constitutional provision; the history of the provision, including Pennsylvania case law; related case-law from other states; and 4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence."

At a minimum, the policy considerations are compelling. Pennsylvania is home to thousands of people sentenced to die in prison. The state has the second-highest number of people serving life without parole, nearly 5,100 inmates, approximately 1,200 of whom have been convicted of felony murder, according to the Pennsylvania Department of Corrections.

Only Louisiana and Pennsylvania still impose the sentence without regard for a person's involvement or intent in the crime. According to the Pennsylvania Capital-Star, every other state among the 30 that allow life sentences without parole require an additional level of intent or action by the defendant.

Lee argued in his brief in support of allowance for appeal, "Pennsylvania stands virtually alone in mandating that anyone convicted of felony-murder is sentenced to life in prison with no possibility of parole."

This matter is scheduled for argument on Oct. 8, 2024.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. He is the author of "The Executioner's Toll," 2010. You can reach him at www.mattmangino.com and follow him on X (formerly Twitter) @MatthewTMangino.

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Pa. High Court: Hearsay Evidence Not Enough to ID a Defendant at a Preliminary Hearing

Matthew T. Mangino
The Legal Intelligencer
July 2, 2024

The Pennsylvania Supreme Court has yet again addressed the issue of proving a prima facie case at a preliminary hearing. The Supreme Court has clarified that inadmissible hearsay alone will not be adequate to identify a defendant at a preliminary hearing.

The high court initially sought to clarify when the commonwealth may properly use hearsay evidence to establish a prima facie case at a preliminary hearing in Commonwealth v. Ricker, 135 A.3d 175 (Pa. 2016), an appeal dismissed as improvidently grant, and in Commonwealth v. McClelland, 233 A.3d 717 (Pa. 2022).

In 1990, the Pennsylvania Supreme Court decided Commonwealth Buchanan v. Verbonitz, 581 A.2d 172 (Pa. 1990).

Prior to Verbonitz prosecutors could establish a prima facie case at a preliminary hearing by presenting only hearsay evidence. In Verbonitz, the only evidence offered by the commonwealth at the preliminary hearing was the testimony of a police officer about a statement made by a witness. The Pennsylvania Supreme Court held that the commonwealth failed to establish a prima facie case. Justice Rolf Larsen wrote in a plurality opinion, “Fundamental due process requires that no adjudication be based solely on hearsay evidence.”

Twenty years after Verbonitz, Pennsylvania Rule of Criminal Procedure 542 was established and preliminary hearings were got a bit twisted. Subsection (E) provides as follows:

“Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established. Hearsay evidence shall be sufficient to establish any element of an offense requiring proof of the ownership of, nonpermitted use of, damage to, or value of property.”

Rule 542 was established in 2011. It appeared that the new rule was intended to lessen the burden on prosecutors to call witnesses to prove “ownership of, nonpermitted use of, damage to, or value of property.”

However, the new rule’s comments appeared to imply that hearsay could be used to establish any element of a prima facie case. Prosecutors ran with that interpretation.

In 2013, the comment to Rule 542 was amended. The comment, as it reads today, provides “Hearsay, whether written or oral, may establish the elements of any offense. The presence of witnesses to establish these elements in not required at the preliminary hearing.”

In 2017, the Pennsylvania Superior Court ruled in Commonwealth v. McClelland, 165 A.3d 19 (Pa. Super. Ct. 2017), in support of hearsay at a preliminary hearing, “admitting hearsay at the preliminary hearing would be irrelevant if the defendant was convicted at trial, and if the defendant was acquitted, then the error’s impact would be ‘minimal’ because there would be no permanent loss of liberty.” The logic employed by the Superior Court appeared to render the preliminary hearing meaningless.

Then in 2020, the Pennsylvania Supreme Court reversed the Superior Court in Commonwealth v. McClelland, 233 A.3d 717 (Pa. 2020), which has come to be referred to as McClelland II.

In McClelland II, the Supreme Court had “little difficulty in stating with certainty that five justices in Verbonitz agreed a prima facia case cannot be established by hearsay evidence alone, and the common rationale among those Justices involved due process considerations.” The court held that hearsay evidence alone cannot establish a prima facie case at a preliminary hearing.

That bring us to the Supreme Court’s latest iteration of the preliminary hearing. On Jan. 3, 2022, the Superior Court decided Commonwealth v. Harris, 2022 Pa. Super. 1 (Pa. Super. Ct. 2022).

Ronald Harris was accused of shooting a man over drugs. The victim failed to show up for two preliminary hearings. When the victim failed to show for a third hearing the district attorney’s office called the police officer who took a statement of the victim. The officer testified over the objection of Harris’ counsel. The case was bound to trial.

Although Harris filed a motion to quash the information, he remained incarcerated for nearly 18 months, despite the fact that the commonwealth had a witness unwilling to cooperate.

The Superior Court in Harris found that “Nothing in Rule 542 (E) prevents the application of Verbonitz requiring that all material elements of the criminal offense need to be proved at a preliminary hearing by nonhearsay evidence.”

The Superior Court concluded, “The Supreme Court’s holdings in Verbonitz and McClelland precludes the commonwealth from relying on hearsay alone at a preliminary hearing to establish a prima facie case that the defendant committed a crime.”

The Supreme Court permitted the commonwealth to appeal, by allowance, the Superior Court’s decision in Harris, Commonwealth v. Harris, No. 31 EAP 2022, decide May 13, 2024. The Supreme court narrowed its inquiry as to whether Rule 542 (E) permits the use of hearsay alone to prove the defendant’s identity.

The Supreme Court found that “Rule 542 (E)’s first sentence requires the preliminary hearing judge to consider hearsay in determining whether a prima facie case has been established … as to both the commission of a crime and the identity of the defendant.” The second sentence of 542 (E) is significant, it provides that hearsay shall be sufficient to prove “any element of an offense including, but not limited to. those requiring proof of ownership of, nonpermitted use of, damage to, or value of property.” The second sentence does not refer to identification. The court went on, “This strongly suggests hearsay relating to the identity of the offender is insufficient to prove a prima facie case under Rule 542.”

Although the Supreme Court did not approve of the rational of the Superior Court in Harris in all regard, the court was unequivocal in holding:

To summarize the state of the law regarding the use of hearsay at preliminary hearings, Rule 542 (E) is intended to allow some use of otherwise inadmissible hearsay by the commonwealth to establish a prima facie case that an offense has been committed.

Finally, we now hold, based on the plain language of Rule 542, that inadmissible hearsay alone may not be used to prove a prima facie case as to the defendant’s identity. This means the commonwealth at a preliminary hearing is required to produce some nonhearsay or admissible hearsay evidence to sustain its prima facie burden as to the defendant’s identity.

The Supreme Court has distinguished between the evidence needed to sustain a prima facia finding of the elements of an offense at a preliminary hearing and the identity of the alleged offender at the preliminary hearing.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney of Lawrence County. He is the author of “The Executioner’s Toll.” You can follow him on X @MatthewTMangino or contact him at mmangino@lgkg.com.

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PLW: Pennsylvania Approves Funding for Indigent Criminal Defense

Matthew T. Mangino
The Legal Intelligencer
January 26m 2024

Pennsylvania will soon provide funding for indigent criminal defense. The legislature approved $7.5 million for criminal defense for those who cannot afford an attorney. The historic legislation was signed into law by Gov. Josh Shapiro. What is so historical about funding a constitutional right that was confirmed by the U.S. Supreme Court in 1963?

For Pennsylvania, it is an opportunity to move on from the dubious distinction of being one of only two states, South Dakota is the other, providing zero state funding for indigent defense. For Pennsylvania counties the burden of providing counsel to indigent defendants was previously paid for without state assistance.

Article I, Section 9 of the Pennsylvania Constitution provides: “In all criminal prosecutions the accused hath a right to be heard by himself and his counsel.“

According to the Pennsylvania indigent criminal defense services funding and caseloads report of the state legislative and budget committee, Pennsylvania Supreme Court decisions confirm that the Pennsylvania Constitution aligns with the U.S. Constitution in terms of an indigent criminal defendants’ right to counsel at trial.

In 1968 the Public Defender Act was adopted providing that each county is required to appoint a public defender through local government action. The county was also responsible, exclusively, for funding the office.

The Public Defender Act was the result of a 1963 U.S. Supreme Court decision that extended the Sixth Amendment—by way of the 14th Amendment—to indigent criminal defendants facing felony charges in state court. The high court later expanded the protection to misdemeanor charges.

The dire state of indigent defense in Pennsylvania has been front and center for decades. A dozen years ago, in a column for The Legal Intelligencer, I described concerns raised more than 40 years ago. The Pomeroy Report issued in 1982, chaired by Pennsylvania Supreme Court Justice Thomas W. Pomeroy and the 1998 report of the governor’s judicial reform commission, chaired by Superior Court Judge Phyllis W. Beck, both advocated for the state to finance indigent defense costs.

In 2003, The Pennsylvania Supreme Court report on racial and gender bias in the justice system recommended “that Pennsylvania institute statewide funding, and oversight, of the indigent defense system by establishing an independent indigent defense commission and appropriating state funds for the support of indigent defense.”

The report found that “Pennsylvania is generally not fulfilling its obligation to provide adequate, independent defense counsel to indigent persons.”

In 2011, the joint state government task force on services to indigent criminal defendants found, “There is no direct state funding, nor is there a statewide administrative structure for ensuring uniform quality of representation or reasonably consistent eligibility standards.”

How did we get here?

The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense.”

In 1932, the U.S. Supreme Court decided Powell v. Alabama, 287 U.S. 45 (1932), nine Black youths—the “Scottsboro Nine”—were accused of raping two white women in Alabama. County officials moved quickly. A total of three trials took one day and all nine were sentenced to death. Alabama law required the appointment of counsel in capital cases, but counsel was little more than a “warm body” sitting next to the defendants at trial.

The high court ruled that the U.S. Constitution requires defendants in capital cases, those facing the death penalty, be given access to counsel.

Ten years later in Betts v. Brady, 316 U.S. 455 (1942), the court refused to extend the right to counsel to criminal charges other that capital murder. Betts was indicted for robbery in Maryland. He was unable to afford counsel and requested one be appointed for him. His request was denied. He was convicted and appealed to the U.S. Supreme Court.

The high court held that a refusal to appoint counsel for an indigent defendant charged with a felony did not violate the U.S. Constitution.

In the early 1960s Clarence Earl Gideon was a 51-year-old drifter and petty-thief. He was charged with breaking and entering in Florida. The charge was a felony and Gideon asked the court to appoint him a lawyer.

Gideon was denied a lawyer. He was convicted and his state appeal denied. He ultimately made his way to the U.S. Supreme Court. Gideon was appointed an attorney for his appeal. His attorney argued that the federal government already recognized that the Sixth Amendment required the appointment of counsel for indigent defendants facing felony charges. He also pointed out that 37 states provided for the appointment of counsel by statute, administrative rule or court decision. Eight states provided counsel as a matter of practice. In an unprecedented act of support for the rights of those accused of a crime, 22 state attorneys general joined Gideon in urging the court to establish an absolute constitutional right to counsel in criminal cases. See Gideon v. Wainwright, 372 U.S. 335 (1963).

Justice Hugo Black’s brief opinion in Gideon was compelling:

“Reason and reflection require us to recognize that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.”

Last spring, I wrote in the Pennsylvania Capital Star, that over the decades since Gideon “the focus has evolved from merely the right to counsel—to the right to effective representation.  That representation has turned from ensuring a fair trial to ensuring effective assistance on matters such as plea bargaining and the collateral consequences of sentencing.”

The evolution from a “warm body” at counsel table to a competent attorney creates an additional problem in Pennsylvania. Besides not providing statewide funding for indigent defense, according to the National Conference of State Legislatures, Pennsylvania provides no statewide administration of right to counsel services. The county-based systems remain entirely decentralized with no oversight by state government.

Who will administer the new state funding and establish standards for local public defenders? A county-by-county review by the legislative budget and finance committee of the General Assembly in 2021 found Philadelphia spends the most money on criminal defense per person, around $30.20 in fiscal year 2019, reported The Express. The same year, Mifflin County in rural central Pennsylvania spent $3.20 per person.

The new legislation will establish a committee to decide how to spend the state’s funding for indigent defense. The legislation directs the committee to develop educational training for public defenders and to collect data that will assist in monitoring the quality of public defender services on a county level.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George in New Castle. He is the author of “The Executioner’s Toll,” 2010 and a columnist with Creators. He was the former district attorney of Lawrence County. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Recent Pa. Supreme Court Case Tackles Pre-Arrest and Post-Arrest Silence

Matthew T. Mangino
The Legal Intelligencer
September 7, 2023

The distinction between pre-arrest and post-arrest silence is crucial. Prejudice to defendants whose post-arrest silence is brought up is “innate.” The prosecution must prove beyond a reasonable doubt that the error did not affect the deliberations of the jury.

Most Americans can recite the Miranda warnings verbatim—not because of the power and substance of some high school civics class—but because of television crime dramas. The Miranda warnings are etched into our psyche, “You have the right to remain silent …” However, that iconic first line is not as clear as one might think.

This summer the Pennsylvania Supreme Court issued an important decision regarding the Fifth Amendment of the U.S. Constitution and Article I, Section 9 of the Pennsylvania Constitution. The language of the Pennsylvania and U.S. Constitutions are quite similar, but not identical. In Pennsylvania the Constitution provides, “The accused … cannot be compelled to give evidence against himself.” The Fifth Amendment provides, “No person … shall be compelled … to be a witness against himself.”

The Pennsylvania Supreme Court decided Commonwealth v. Rivera, 22 MAP 2022, on June 21. If you are a constitutional “geek” you’ll feel as though you stumbled upon a pot of gold. This opinion examines a defendant’s silence in the context of pre-arrest and post-arrest; harmless error; a lack of curative instruction; credibility and split verdicts.

Jonathan Rivera was accused of the rape of several children. He was accused by four females and went to trial. At trial the prosecutor asked a testifying police officer: “After you read him his Miranda warnings, he never told you that he didn’t do anything to any of these kids?” Over the objection of the defense counsel, the police officer was ordered to answer. The officer said “He [Rivera] did not deny.” All in all, the officer was asked four different ways if Rivera denied the allegations and each time the officer answered in the negative.

The jury returned a split verdict finding him not guilty on the most serious charges. On appeal, Rivera argued that the trial court erred by permitting the testimony regarding his post-arrest silence. Rivera suggested that the testimony of his silence “irreparably undermined his credibility in the eyes of the jury.”

The prosecution argued that the defense briefly inquired into the defendant’s pre-arrest silence and that opened the door to the prosecution’s questions. The prosecutor’s questions were a fair response to the defense counsel’s questioning. The Pennsylvania Superior Court disagreed and ruled the prosecution’s questions of silence were admitted in error.

However, that’s where the wheels came off at the Superior Court. The court found the “trial court’s error was harmless because the prejudice to Rivera, if any, was de minimis.” The problem with the Superior Court’s finding, according to the Supreme Court, was that the court relied on decisions relating to pre-arrest silence, instead—as in Rivera’s case—the issues of one of post-arrest/post-Miranda silence. In Rivera, the Supreme Court ruled, “Undeniably, the four questions the prosecutor asked here related to Rivera’s post-arrest, post-Miranda silence.”

 

The distinction between pre-arrest and post-arrest silence is crucial. Prejudice to defendants whose post-arrest silence is brought up is “innate.” The prosecution must prove beyond a reasonable doubt that the error did not affect the deliberations of the jury.

Why is the commonwealth’s reference to post-arrest silence innately prejudicial? Most people believe a person falsely accused of a crime would bitterly protest their innocence or without hesitation challenge any accusation against them.

The same is often thought when a suspect displays little emotion in the wake of the suspicious loss a spouse or child.

We know that neither is necessarily indicative of guilt. People dealing with a loss or confronted with arrest react in different ways. The shock of such a trauma could simply be dealt with by silence—neither should be easily accepted as an admission of guilt.

Although the Supreme Court acknowledged that the court has struggled to create a uniform rule to govern references to pre-arrest silence—the case before the court was not the case to address that issue. The court wrote, “We need not square the circle here.”

According to the Supreme Court, the court first took up the issue of post-arrest silence more than a half century ago. In Commonwealth v. Haideman, 296 A.2d 765 (Pa. 1972), the Supreme Court held, “Testimonial reference to an accused’s silence … at the time of arrest is … constitutionally impermissible.”

The court in Haideman pointed out that even Miranda v. Arizona, 384 U.S. 436 (1966), forbids the prosecution from “introducing at trial the fact that the accused ‘stood mute or claimed privilege.’”

The Supreme Court also explored Commonwealth v. Greco, 350 A.2d 826 (Pa. 1976), “I advised him … that he had the right to remain silent and he didn’t actually make any statement …”; Commonwealth v. Singletary, 387 A.2d 656 (Pa. 1978), “And on advice of counsel, you made no statement concerning the case?”; and Commonwealth v. Turner, 454 A.2d 537 (Pa. 1982), “Did you ever tell the police that somebody was shooting at you?”

None of these decisions relied on by the Supreme Court were cited by the Superior Court in their Rivera decision.

In each of the above decisions, the Supreme Court granted the defendant a new trial. The court noted, “This court has repeatedly signaled to the commonwealth that referencing a defendant’s post-arrest silence may imperil an entire case.” The court went further, “We have often deemed a single such reference—answered or not, curative instruction or not—offensive enough to the constitution and the principles it embodies as to call for a new trial.”

The last question addressed by the Supreme Court, now that it was clear that the testimony of Rivera’s post-arrest silence was admitted in error, was whether the error was harmless. The court looked to Commonwealth v. Hairston, 84 A.3d 657 (Pa. 2014). There are three prongs to the Hairston harmless error test. First, did the error prejudice the defendant or was the error de minimis?

The court quickly disposed of the first prong—the Superior Court had reviewed the case as pre-arrest silence when it was clearly post-arrest silence.

The second prong related to whether the error was merely cumulative. The commonwealth did not even argue that the testimony of the police officer regarding Rivera’s post-arrest silence was cumulative of other evidence presented in the case.

The third prong provides that the commonwealth must prove beyond a reasonable doubt that “properly admitted and uncontracted evidence of guilt was so overwhelming and the prejudicial effect of the error was insignificant …”

The court found that due to the lack of physical evidence, credibility was central to this case “It is not improbable that the admission of this testimony might have contributed to the conviction.” The court also pointed out the absence of a clear curative instruction by the trial judge and the spit verdict by the jury all contributed to the finding that “the allowance of the constitutionally impermissible testimony here was not harmless.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney of Lawrence County. He is the author of “The Executioner’s Toll.” You can follow him on twitter @MatthewTMangino or contact him at mmangino@lgkg.com.

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PLW: ABA Report on Plea Bargains Reveals Need for Reform

Matthew T. Mangino
The Legal Intelligencer
May 11, 2023

More than a decade ago, in a case known as Missouri v. Frye, former U.S. Supreme Court Justice Anthony Kennedy wrote that plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.”

Recently, the American Bar Association (ABA) released its 2023 Plea Bargain Task Force Report. Three years in the making, the report revealed that in 2018, only 2% of federal criminal cases ended in a jury trial. The task force examined how the emphasis on resolving criminal cases through plea bargains negatively impacts the integrity of the criminal justice system by creating “perverse incentives” for lawyers and judges to conclude cases quickly instead of justly.

The plea bargain, however unpopular or unseemly, is an important tool in the administration of justice. Plea bargains save the government time, money, and the trouble of actually proving a case beyond a reasonable doubt. If the plea bargain were to disappear the criminal courts would grind to a halt.

However, just because the plea bargain is needed doesn’t mean it is fair, just, and in line with some of America’s most fundamental constitutional rights.

The ABA report lays out a number of principles for reform—including that people should not be penalized with harsher sentences by exercising their right to a trial, and that people are often incentivized to plead guilty for reasons that have nothing to do with their actual guilt or innocence.

A 2018 National Association of Criminal Defense Lawyers’ report found, “There is ample evidence that federal criminal defendants are being coerced to plead guilty because the penalty for exercising their constitutional rights is simply too high to risk. This ‘trial penalty’ results from the discrepancy between the sentence the prosecutor is willing to offer in exchange for a guilty plea and the sentence that would be imposed after a trial.”

The problem is best exemplified by the reality that one in four people exonerated by DNA in the United States confessed to the crime charged. It seems astonishing that a person would plead guilty to a crime they did not commit.

Here are some things to consider. In the United States of America, a police officer can lie to an accused about incriminating evidence during an interrogation and elicit a confession, and the U.S. Supreme Court has said there is nothing wrong with such conduct.

Sixty years ago, the Supreme Court acquiesced to the potentially innocent pleading guilty. Henry C. Alford was indicted for first-degree murder, a capital offense in North Carolina. Although he proclaimed his innocence, he pleaded guilty to killing a man with a shotgun. He said in court, “I’m not guilty, but I plead guilty.”

The Supreme Court ruled in North Carolina v. Alford, “An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”

Then there is the trial penalty—the act of accepting a plea bargain due to the fear of a harsh sentence if convicted at trial. There are reams of data to support the existence of the trial penalty. The trial penalty—and the need to have one—point to the dire state of the criminal justice system. The burden of proof—beyond a reasonable doubt—is rarely employed. The prosecution is rarely forced to prove anything beyond probable cause to make an arrest.

There is an incentive in the system to plead guilty to crimes that were charged but not committed. Police often over-charge defendants. The most serious charges are dropped and the defendant is expected, under oath, to make admissions to crimes he did not commit. The benefit of the plea bargain often comes at a high price to the defendant and to the system. The impact of race in plea bargaining cannot be overstated. The ABA report details significant racial disparities in the plea bargaining. Hannah Dean wrote in Jurist Magazine of Duquesne University School of Law, “Prosecutors’ decisions to drop or reduce charges as part of a plea bargain reveal stark racial bias. White defendants are 25% more likely than Black defendants to have their most serious charge dropped or reduced as part of a plea bargain, and Black defendants frequently receive higher sentences for the same charges as their white counterparts.”

For the most part, plea bargaining is not governed in detail by rules of court or established policy. What Kennedy called “the criminal justice system” has few safeguards and little oversight. A plea offer can be arbitrary and subject to the whim of the prosecutor. In fact, a prosecutor has no obligation to even negotiate a plea with a defendant.

In Pennsylvania if one is looking for guidance of plea bargains here is what is codified on the subject:

Plea Agreements

At any time prior to the verdict, when counsel for both sides have arrived at a plea agreement, they shall state on the record in open court, in the presence of the defendant, the terms of the agreement, unless the judge orders, for good cause shown and with the consent of the defendant, counsel for the defendant, and the attorney for the commonwealth, that specific conditions in the agreement be placed on the record in camera and the record sealed.

The judge shall conduct a separate inquiry of the defendant on the record to determine whether the defendant understands and voluntarily accepts the terms of the plea agreement on which the guilty plea or plea of nolo contendere is based.

The ABA report’s 14 principles for reform are a small step in a long journey toward fairness and transparency in the criminal justice system. Unfortunately, those accused of criminal conduct do not have a very strong lobby. One way to change this process is through the legislation. The prospect is daunting; there are 50 different legislatures and a Congress that needs convincing.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. and the former district attorney of Lawrence County. He is the author of “The Executioner’s Toll.” You can follow him on twitter @MatthewTMangino or contact him at mmangino@lgkg.com. 

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The Legal: Shapiro Calls for End of Death Penalty in Pennsylvania

Matthew T. Mangino
The Legal Intelligencer
March 2, 2023

Pennsylvania Gov. Josh Shapiro has finally done what some recent governors may have contemplated, but never did—call for the end of the death penalty in Pennsylvania.

In June 2018 the Joint State Government Commission, Task Force and Advisory Committee on Capital Punishment, established under Senate Resolution 6 of 2011, issued its long-awaited report. I was a member of the advisory committee that reviewed 17 different aspects of the death penalty and made eight recommendations to the legislature.

In fact, in 2015, Gov. Tom Wolf announced a moratorium on the death penalty in Pennsylvania—still in place today—awaiting the outcome of the task force and advisory commission report. At the time Wolf said in a statement, “Today’s moratorium will remain in effect until this commission has produced its recommendation and all concerns are addressed satisfactorily.” Wolf implemented his unilateral moratorium by granting a temporary reprieve, not a commutation, each time an execution was scheduled.

After the report, Wolf took no action with regard to the efficacy of the death penalty or with regard to the death sentences of more than 100 men and women on Pennsylvania’s death row. All one needs to know about Pennsylvania’s death penalty is that the commonwealth has executed three men since the death penalty was reinstated in 1978. All three men volunteered to be executed—waiving their appeal rights. In fact, Pennsylvania has not carried out an involuntary execution since 1962.

The state’s most recent execution occurred in 1999, when Gary Heidnik was put to death for the murders of two women he tortured in his Philadelphia home. The other two executions were in 1995. Leon Moser killed his wife and two daughters, and Keith Zettlemoyer killed a “friend” who planned to testify against Zettlemoyer at his trial for robbery.

The death penalty in Pennsylvania has been around for parts of five centuries. In that time more than a 1,000 people have been executed. Until 1915, those executions were at the hand of the hangman. Between 1915 and 1962 executions in Pennsylvania were conducted by electrocution—the electric chair. In 1991, the method of execution became lethal injection. Through records compiled by the Reading Eagle and the Death Penalty Information Center during the modern era of Pennsylvania’s death penalty—September 1978 through 2022—Pennsylvania courts have sentenced 417 prisoners to death. There are approximately 101 men and women currently on death row, 11 men have been exonerated, well over 30 inmates have died of natural cause or suicide and three have been executed. 

Twenty-seven states, including Pennsylvania, still have capital punishment on the books. The death penalty has been around in its modern form for about 46 years. In 1972, the U.S. Supreme Court outlawed the death penalty. The court ruled in Furman v. Georgia, 408 U.S. 238 (1972), that the death penalty was unconstitutional, violating the Eighth Amendment ban against cruel and unusual punishment. U.S. Supreme Court Justice Potter Stewart wrote, “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.”

That same year, the Pennsylvania Supreme Court decided Commonwealth v. Bradley, 403 A.2d 842 (Pa. 1972). On Dec. 15, 1967, George Bradley and two other men entered a bar in Philadelphia with the intent to commit a robbery and ended up killing the bar owner, Charles Mosicant. Bradley was convicted and sentence to death. On appeal, the high court ruled the commonwealth’s death penalty sentencing procedure was unconstitutional. The court cited the U.S. Supreme Court’s decision in Furman​. Pennsylvania’s death row was emptied; all sentences were judicially reduced to life.

The decisions forced Pennsylvania’s general assembly, and other state legislatures across the country, to review the death penalty and eliminate the arbitrary, capricious and racially discriminatory aspects of capital punishment.

The idea was that the death penalty would be reserved for the worst of the worst. Before a prosecutor could seek the death penalty she would have to prove more than an intentional killing. Each state established aggravating factors that would target the death penalty for the most dangerous and heinous murderers. The decision also called for bifurcated trial. A guilt phase and a penalty phase for the jury to decide life or death. The court in Furman also suggested that states establish procedures for providing the sentencing court with information about the convicted murderer’s character and record.

In 1974, the Pennsylvania legislature enacted a new death penalty statute overriding Pennsylvania Gov. Milton Shapp’s veto. The new death penalty statute was subsequently found unconstitutional in 1977.

In 1976, the U.S. Supreme Court in Gregg v. Georgia, 428 U.S. 153 (1976), found that Georgia, Florida and Texas had enacted new death penalty statutes that were in line with the holding in Furman. Pennsylvania enacted a new death penalty statute in 1978.

Today, the death penalty seems to be spiraling toward extinction. In 2022, there were 18 executions nationwide and only 20 new death sentences meted out across the country. Pennsylvania accounted for one of those death sentences.

Compare those numbers with 1994 and 1998. In 1994, 328 men and women were sentenced to death nationwide. In 1998, there were 98 executions carried out in the United States. Public opinion polls in 2022 showed support for capital punishment remained near historic lows, even amid rising perceptions of crime. Gallup’s 2022 Crime Survey, administered between Oct. 3 and Oct. 20, 2022, reported support for capital punishment held steady at 55%, one percentage point above the 50-year low of 54% in 2021, reported the Death Penalty Information Center.

One way to measure the strength of the death penalty is through a political lens. The death penalty has more to do with political symbolism, “I’m a tough, law and order guy,” than holding killers accountable and deterring future murders.

There were three state governor plebiscites in 2022 where a pause in capital punishment was an issue. Those states were California, Oregon, and, of course, Pennsylvania. In California Gov. Gavin Newsom, who imposed a moratorium on executions, and decommissioned the state’s death chamber, easily won re-election. Newly elected Oregon Gov. Tina Kotek promised to extend the state’s existing moratorium on executions. Shapiro seeks to take the most radical action—abolish the death penalty in Pennsylvania.

“The commonwealth shouldn’t be in the business of putting people to death, period,” Shapiro said. “At its core, for me, this is a fundamental statement of morality, of what’s right and wrong in my humble opinion. And I believe as governor that Pennsylvanians must be on the right side of this issue.”

Shapiro’s position is not the usual political side-step. He didn’t say the death penalty is racist, or there are too may exonerations or even that the process is arbitrary—no, Shapiro contends the death penalty is wrong, state-sponsored death is immoral and Pennsylvania, or any other state for that matter, should not be in the business of death.

The death penalty has lost its way in the muddled political rhetoric of 21st century governance and Shapiro is poised to act. There has not yet been a bill introduced to end the death penalty. Once legislation is introduced, it will be a battle before it ever reaches the governor’s desk.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. and the former district attorney of Lawrence County. He is the author of “The Executioner’s Toll.” You can follow him on twitter @MatthewTMangino or contact him at mmangino@lgkg.com

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