PA Superior Court: Guilty Plea Invalid Where Defendant Not Warned of Obligation to Pay Restitution

Commonwealth v. Rotola

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Rotola, holding that the trial court may not order restitution at sentencing in a plea bargained case unless the defendant agreed to restitution as part of the plea bargain.

Theft of Property Lost, Mislaid or Delivered by Mistake and Restitution

In Rotola, the defendant pleaded guilty to theft of property lost, mislaid or delivered by mistake as a misdemeanor of the first degree. The court ordered Rotola to serve 9-24 months, less one day, of incarceration and pay restitution in the amount of $25,000, jointly and severally with his co-defendant. Initially, the court found Rotola solely responsible for the theft of $25,000 in jewelry. However, after Rotola filed a post-sentence motion to reconsider, the trial court made Rotola jointly and severally liable with his co-defendant.

Given the extremely high restitution figure, Rotola appealed. On appeal, Rotola argued that the restitution amount was both not supported by the record and not the direct result of his conduct. Rotola pleaded guilty to theft as a misdemeanor of the first degree, and theft as an M1 indicates that the property stolen was worth less than $2,000. Thus, Rotola argued that it was excessive to impose a restitution amount so far exceeding $2,000 when he pleaded guilty to an offense which suggested the restitution should only be $2,000. He also argued that he was not as culpable as his co-defendant who had actually stolen the property as his role in the crime was to sell only a portion of the stolen goods to a pawn shop.

The Pennsylvania Restitution Statute

The statute governing restitution in criminal cases makes restitution mandatory regardless of ability to pay. It provides:

§ 1106. Restitution for injuries to person or property

(a) GENERAL RULE.-- Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender shall be sentenced to make restitution in addition to the punishment prescribed therefor.

(c) MANDATORY RESTITUTION.--

(1) The court shall order full restitution: (i) Regardless of the current financial resources of the defendant, so as to provide the victim with the fullest compensation for the loss.

(2) At the time of sentencing the court shall specify the amount and method of restitution. In determining the amount and method of restitution, the court:

(i) Shall consider the extent of injury suffered by the victim, the victim’s request for restitution . . . and such other matters as it deems appropriate.

(ii) May order restitution in a lump sum, by monthly installments or according to such other schedule as it deems just.

(4) (i) It shall be the responsibility of the district attorneys of the respective counties to make a recommendation to the court at or prior to the time of sentencing as to the amount of restitution to be ordered. This recommendation shall be based upon information solicited by the district attorney and received from the victim.

(ii) Where the district attorney has solicited information from the victims as provided in subparagraph (i) and has received no response, the district attorney shall, based on other available information, make a recommendation to the court for restitution.

Restitution in Theft Cases

After Rotola appealed, the Superior Court rejected his second argument, finding that because the defendants acted together criminally to cause a single harm to the victim, both defendants were responsible for the full restitution despite Rotola being somewhat less involved.

The Court, however, agreed with the first argument. It found that there was no agreement as to restitution and no suggestion in the record that Rotola would be responsible for restitution. The plea paperwork did not suggest that he would be responsible for restitution, and the oral colloquy conducted by the sentencing judge did not inform Rotola that he would be responsible for restitution. Given the complete absence of any mention of restitution on the record, the Superior Court agreed with Rotola that the guilty plea to theft could not have been knowing, intentional, and voluntary. Therefore, the Court reversed the conviction and ordered that the plea be withdrawn.

Although the restitution statute makes restitution mandatory, a defendant must be advised of the possibility of having to pay restitution in order for a plea to be valid. The Court specifically required that the defendant be warned on the record of the possibility of having to pay restitution, and the Court also required that the sentencing court follow the procedures specified by the statute, meaning a court is required to hold a hearing and determine the amount of restitution at the time of sentencing. Because Rotola was never informed that he would have to pay restitution, his plea was withdrawn and the court remanded the case for trial.

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Doctor May Not Provide Opinion That Child Was Sexually Assaulted Without Physical Evidence of Abuse

Expert Opinions in Sexual Assault Cases

In Commonwealth v. Maconeghy, the Pennsylvania Supreme Court has just held that a child sexual abuse evaluator may not testify to his opinion that a child was sexually assaulted where the opinion is based solely on the evaluator’s apparent acceptance of the child’s reporting and description of the abuse.

In Maconeghy, the defendant’s sixteen year old stepdaughter reported that she had been raped and otherwise sexually abused on multiple occasions by the defendant when she was eleven years old. Based on her statement, the defendant was arrested and charged with various sex offenses, including rape by forcible compulsion and rape of a child. At trial, the Commonwealth presented the testimony of both the complainant and a pediatrician who evaluated the complainant to determine whether she suffered from sexual abuse.

The Testimony at Trial

After the complainant testified to the abuse, the Commonwealth called the pediatrician to testify to the results of his interview and examination of the complainant. He testified that he had conducted a physical exam of the complainant, and that the physical exam did not reveal any evidence of abuse. In his opinion, however, a physical examination was unlikely to detect evidence of the abuse outside of the first seventy-two hours following an occurrence of a sexual assault.

On cross-examination, the defense attorney repeatedly asked the doctor to concede that there was no physical or medical evidence of abuse. The doctor refused to concede this point, replying that based on the history provided by the complainant, it was clear that she had been sexually abused. Further, on questioning from the prosecution, the doctor testified that he strongly believed that the child had been victimized.

The Appeal

Based on this testimony, the defendant was convicted. Shortly thereafter, the defendant appealed. The Pennsylvania Superior Court reversed the sexual assault convictions, finding that although the defense had opened the door to some of the doctor’s personal opinion by questioning him on cross-examination, the prosecution had pushed it too far on re-direct examination.

The Pennsylvania Supreme Court has now upheld the Superior Court’s decision to reverse the conviction. The Court held that an expert witness may not express an opinion that a particular complainant was the victim of a sexual assault based upon witness accounts couched as history, at least in the absence of evidence of physical abuse. The Court recognized that such opinion testimony from an expert witness usurps the function of the jury. In other words, it is the jury’s job to determine whether or not the crime was committed. The doctor cannot testify that the crime was committed without intruding on that key function of the jury.

Instead, the doctor may testify only to the medical findings of the examination – that is, whether there was evidence of physical abuse and whether evidence of physical abuse would always be present following an allegation of sexual assault. The Court held that it is extremely important to limit the purported medical testimony because of the potential power and persuasiveness of testimony “by those clothed with the mantle of professional expertise,” meaning it will be very difficult for a jury to disregard the testimony of a respected medical doctor.  

Accordingly, the Court upheld the decision of the Superior Court, and the defendant will receive a new trial. The Court declined to rule on whether a doctor would be permitted to testify to this type of opinion in a case with actual physical evidence of abuse. Thus, that remains an open question.

The Impact of the Court's Decision in Child Rape and Sexual Assault Cases

The Court’s decision in Maconeghy is extremely important because it is very common for the prosecution to call these types of expert witnesses in rape and sexual assault cases. This is particularly true in cases involving allegations of child abuse and sexual assault on children. In many cases, complainants wait years after the alleged incident to make any reports to the authorities, and therefore, the case will often come down to the word of the complainant versus the word of the defendant.

By calling respected medical doctors to testify to their opinion that the complainant is telling the truth, the Commonwealth is often able to improperly shroud the testimony of the complainant in a shield of authority and credibility because of the impressive credentials and respectability of the medical doctor. The real question in these cases is whether the jury should believe the complainant’s testimony, but permitting doctors to testify that they believe the complainant makes it much harder for the jury to keep an open mind and reject false testimony. Therefore, this opinion will make it possible for many defendants to have a fair trial by limiting the improper influence of a medical doctor who has no specialized training in determining whether or not a complainant is lying.

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If you are facing criminal charges or allegations of sexual assault, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully represented thousands of clients. We offer a free criminal defense strategy session to any potential client who is facing criminal charges or who may be under investigation for a crime. We are experienced and understanding professionals who are well versed in recent case law and who will fight to use the law to your benefit. Call 267-225-2545 to speak with one of our defense attorneys today.

Read the Opinion:

http://www.pacourts.us/assets/opinions/Supreme/out/25655768.pdf?cb=1

PA Superior Court: Child Porn Convictions Arising Out of Same Case Do Not Trigger Lifetime Megan’s Law Registration

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Leonard. In Leonard, the Court found that the trial court erred when it required the defendant to register as a Tier III, lifetime Megan’s Law offender after the defendant pleaded guilty to multiple counts of distribution of child pornography, possession of child pornography, and criminal use of a communication facility. Because distribution of child pornography, which was the most serious charge in terms of SORNA registration, is only a Tier II offense, the trial court should have required the defendant to register as a Tier II offender for 25 years.

In Leonard, the defendant pleaded guilty to various counts of distributing and possessing child pornography as well as criminal use of a communications facility (“CUCF”). At sentencing, the defense attorney argued that the defendant should be treated as a Tier II sex offender because all of the convictions arose from the same criminal episode and the defendant was convicted of all offenses on the same date. The court ruled that defendant would be sentenced as a Tier III, lifetime offender under the SORNA provision which finds that if the defendant “has two or more convictions of offenses listed as Tier I or Tier II sexual offenses,” the defendant becomes a Tier III offender and must register for life. The court did allow the defendant to preserve the issue for appeal.

The defendant was sentenced and filed a notice of appeal. While the appeal was pending, the Pennsylvania Supreme Court decided the case of A.S. v. Pennsylvania State Police, holding that the previously mentioned language dealing with multiple convictions requires separate convictions. Thus, in A.S. (and the companion case of Commonwealth v. Lutz-Morrison­), the Supreme Court held that a defendant who had been convicted of multiple counts of Tier I possession of child pornography at the same time must only register for fifteen years as a Tier I offender.  

In Leonard, the Superior Court held that the same rule applies for when multiple Tier II and Tier I offenses are combined as part of the same case and are part of an ongoing course of conduct. Therefore, the Court remanded the case for re-sentencing with an order that the trial court require the defendant to register only as a Tier II offender. The Court rejected the prosecution’s argument that the defendant improperly challenged his registration by filing a notice of appeal directly to the Pennsylvania Superior Court. The prosecution argued that the defendant should have challenged his registration classification by filing suit against the Pennsylvania State Police in the Commonwealth Court as the Commonwealth Court has jurisdiction over lawsuits against state agencies. The Superior Court rejected this argument, finding that because the defendant was still in the process of serving his sentence and had filed a timely direct appeal, the Superior Court could review the issue of whether the trial court had imposed a legal sentence. Accordingly, the Superior Court remanded the case so that the trial court could re-sentence the defendant as a Tier II offender.

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PA Superior Court Rejects Good Faith Exception to Exclusionary Rule in Birchfield Cases

Commonwealth v. Carper

The Pennsylvania Superior Court has decided the case of Commonwealth v. Carper. In Carper, the Court held that prosecutors may not introduce illegally obtained blood test results in Driving Under the Influence (“DUI”) cases despite the fact that the police relied on then-settled law which permitted warrantless blood testing of DUI suspects. The Superior Court specifically rejected the application of the “good faith exception” and held that the evidence remains inadmissible despite the fact that the police officers may have acted in good faith and not realized that they were violating the law. 

Carper involved a relatively straight-forward DUI case. A Pennsylvania State Police Trooper pulled Carper over in October 2014 for an expired inspection sticker. During the ensuing stop, the Trooper began to suspect Carper of driving under the influence of a controlled substance. The Trooper arrested Carper, transported him to the hospital, and informed him that if he did not consent to a blood draw, he would face increased criminal penalties. Carper agreed to the blood draw, and the blood draw showed the presence of a controlled substance.

Motion to Suppress

Carper moved to suppress the evidence under the Fourth Amendment of the United States Constitution. Notably, Carper did not move to suppress the blood results under the Pennsylvania Constitution. The trial court held a suppression hearing, and the Commonwealth introduced evidence in an attempt to show that it complied with both the Fourth Amendment of the United States Constitution and Article I Section 8 of the Pennsylvania Constitution. Following the hearing, the United States Supreme Court decided Birchfield v. North Dakota, and then Carper filed a post-suppression hearing brief in which he also argued that the blood results should be suppressed under the Pennsylvania Constitution. Likewise, the Commonwealth filed a brief in which it argued that the Pennsylvania Constitution did not bar the introduction of the blood results into evidence. 

Birchfield v. North Dakota made it illegal for states to impose criminal penalties on DUI suspects who refuse a warrantless blood draw. Thus, the trial court granted the Motion to suppress, agreeing with the defense that the police illegally coerced the defendant into consenting to the blood draw by informing the defendant that he would face more severe criminal penalties if he refused chemical testing. 

The Good Faith Exception to the Exclusionary Rule

The Commonwealth appealed. In its appeal, the Commonwealth argued for the application of the good faith exception to the Exclusionary Rule. In the federal system, prosecutors may still use unlawfully seized evidence if police acted in good faith when they obtained the evidence. For example, courts have found that officers acted in good faith where they arrested a defendant on what they believed to be a valid warrant despite the fact that the warrant had actually been lifted. Likewise, federal courts have held that police act in good faith when they rely on existing case law when conducting a search even if later case law subsequently changes the legality of the search. Thus, the Commonwealth asked the Superior Court to find that the good faith exception applies in Birchfield cases because police relied on well-established case law. The Commonwealth also argued that the defendant failed to properly preserve his state law challenge to the blood draw because defense counsel moved to suppress the evidence only under the United States Constitution prior to the hearing and never mentioned the state law claim until the defense filed its post-hearing brief.     

The Superior Court rejected both of the Commonwealth’s arguments. First, the Court recognized that Pennsylvania appellate courts have repeatedly found that there is no good faith exception to the exclusionary rule in Pennsylvania. Thus, while the good faith exception may apply in federal court, it does not apply in Pennsylvania state courts. The only issue is whether officers violated the law; it does not save the Commonwealth’s case that the officers relied on the law at the time. Second, the Court rejected the Commonwealth’s argument that Carper waived the state law claims by failing to mention them in the initial motion. This would have led to the motion being denied because under the federal law claims, the good faith exception would have applied. Nonetheless, the Court rejected this argument as well, finding that the Commonwealth had not been prejudiced because the Commonwealth extensively briefed the state law issues and presented testimony relating to the issue of coercion at the suppression hearing. Further, the defense preserved the issue by filing the post-hearing brief and allowing the trial court to rule on it. Therefore, the Court rejected both of the Commonwealth’s appellate issues.  

Following Carper, it is clear that the good faith exception does not apply in Birchfield DUI cases. States may not penalize DUI suspects for refusing to submit to blood testing without a search warrant. Although prosecutors continuously ask the appellate courts to adopt a good faith exception in Pennsylvania, the courts have fortunately refused to do so thus far.  

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