PA Superior Court: Judge May Not Announce Defendant's Sentence Prior To Sentencing Hearing

The Superior Court has held that it is reversible error for a sentencing judge to announce prior to a defendant’s sentencing hearing that the judge plans to send the defendant to jail. Under Pennsylvania law, criminal defendants are entitled to individualized sentences based both on the background of the defendant and the nature of the offense. Therefore, the Superior Court reversed the sentence of a man who received 6-12 months in jail for misdemeanor drug possession after the judge told him that he would be going to jail prior to the sentencing hearing.  

In Commonwealth v. Luketic, the defendant pleaded guilty to knowing and intentional possession of a controlled substance. The prosecution alleged that he drove a friend to buy drugs from another gentleman, purchased the crack cocaine himself, and then gave it to his friend, who was a passenger in his vehicle. Under Pennsylvania law, even serving as an intermediary and giving the drugs to a friend immediately after buying them could qualify as Possession with the Intent to Deliver, and Luketic was originally charged with drug delivery. However, given the circumstances, the prosecution permitted Luketic to plead guilty to a misdemeanor count of knowing and intentional possession of a controlled substance instead. The defense and prosecution were unable to reach an agreement as to the recommended sentence, so the defendant entered an “open plea” under which both sides were permitted to make their own sentencing recommendations and leave the final decision up to the judge who accepted the plea.

Both Luketic’s sentencing and the drug seller’s sentencing were listed at the same time, and the judge held the sentencing hearing for the seller first. The judge sentenced the seller to three to six years in state prison. During the sentencing, the judge said to the seller, “You want to sell dope. You have dope fiends like him [indicating Luketic]. He is going to jail, too. He is not walking out of here, either.” The judge reiterated a number of times during the hearing that Luketic would be going to jail. 

The judge then ordered that the defendant be tested for drugs, and while he was being tested, the defendant’s lawyer objected to the judge’s pre-sentencing statement that the defendant would be going to jail. Defense counsel did not actually move for the judge to recuse himself, but he did object multiple times. When Appellant returned from the drug test, the court held the sentencing hearing.

Despite defense counsel’s multiple objections, the court proceeded with the sentencing on the misdemeanor drug charge. The judge heard from both sides, and he permitted defense counsel to introduce evidence of mitigation such as ongoing drug treatment, employment status, and the lack of a significant record. Despite the mitigation evidence and guidelines which typically would have called for probation or a shorter sentence, the judge refused to recuse himself and sentenced the defendant to 6-12 months in jail for the drug possession conviction.

The defendant appealed, and the Superior Court reversed the sentence. On appeal, the defendant raised two grounds: First, he argued that the judge erred in failing to recuse himself. Second, he argued that the trial court violated Pennsylvania law requiring that defendants receive individualized sentences when the judge decided on jail prior to the sentencing hearing.

The Superior Court rejected the first argument, and the Superior Court’s analysis illustrates the dangers of Pennsylvania’s punishing waiver doctrine. Pennsylvania case law requires that issues be clearly raised in the trial court and that motions must be very specific or they are waived on appeal. Despite defense counsel’s repeated objections to the judge, the Superior Court concluded that Luketic waived the recusal issue on appeal because defense counsel failed to use the magic words “recusal” when objecting to the judge’s sentence. This doctrine leads to absurd results in cases like this where the issue was clearly litigated, but appellate courts are often eager to find waiver. The result is that even where a clear error has occurred, the defendant cannot obtain relief on appeal. Instead, the defendant must file a Post Conviction Relief Act Petition once the appeals have been exhausted arguing that counsel was ineffective for failure to object or make a specific motion. 

Despite finding waiver on the recusal issue, the Superior Court found merit in the second issue and reversed the defendant’s sentence. The court noted that “a sentencing court abuses its discretion when it considers the criminal act, but not the criminal himself.” The Sentencing Code prescribes individualized sentencing by requiring the sentencing court to consider the protection of the public, the gravity of the offense in relation to its impact on the victim and the community, and the rehabilitative needs of the defendant. It also prohibits a sentence of total confinement without consideration of “the nature and circumstances of the crime and the history, character, and condition of the defendant.”

Accordingly, the code requires the sentencing court to consider the characteristics of both the defendant and the crime. When a court orders a sentence based solely on the nature of the crime, the sentence must be reversed. The court cannot correct an error by going through the motions and appearances of a full sentencing hearing. Instead, when it is clear from the record that the sentence was pre-determined based only on the nature of the crime, the sentence must be vacated.

In Luketic’s case, the Superior Court found that the court had made its intention to send the defendant to jail clear and unequivocal without hearing any evidence about the defendant. Additionally, the court erred in considering the sentence for the drug seller when sentencing the defendant because it is an abuse of discretion to base one defendant’s sentence on the sentence imposed on another defendant. Finally, the Superior Court was very concerned about the fact that the trial court failed to order and consider a Pre-Sentence Investigation prior to sending the defendant to jail on an open guilty plea for a misdemeanor drug conviction which typically carries probation. Therefore, the Superior Court vacated the sentence and remanded it to the trial court for re-sentencing. The Superior Court did not order that the trial judge recuse himself, but defense counsel would be expected to make a motion for recusal in the lower court.

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Despite Partial Decriminalization, Marijuana Possession Provides Philadelphia Police Authority to Arrest and Search

Observing or Smelling Marijuana Often Gives Police Probable Cause to Search

As a general rule, both state and federal prosecutors may not use illegally obtained evidence against a defendant in a criminal trial. There are exceptions, but if the police search a defendant illegally and recover drugs, guns, or other contraband, the evidence may not be used in court. The defense may move to exclude the illegally seized evidence by filing a motion to suppress. Once the defendant moves to suppress the evidence, the court will hold an evidentiary hearing, and the Commonwealth must show that that the police obtained the evidence pursuant to a lawful search and seizure. In a recent case from the Superior Court, Commonwealth v. Edward Young, the Superior Court held that the trial court erred in suppressing a gun and marijuana because Philadelphia police officers were free to conduct a full search of the defendant after the defendant admitted that he had marijuana on him.

Commonwealth v. Young

In Young, plain clothes officers were patrolling what they described as a high crime area in Philadelphia. They observed the defendant standing outside of a corner store. When officers returned an hour later, they saw that the defendant was still standing in front of the store despite the fact that it was raining. The three officers got out of their unmarked car and approached the defendant. They identified themselves as police officers and asked him what he was doing. He told them he was waiting for a bus, and one of the officers then asked the defendant if he had anything on him which could harm the officers. The defendant responded that he did not have anything that could harm the officers, but he did have “two bags of weed.”

After the defendant admitted to possessing marijuana, the officers went into the defendant’s pockets and found both a gun and a small amount of marijuana. The defendant moved to suppress the gun and marijuana, and the trial court granted the motion to suppress. The court found that the police had conducted an investigatory detention (“Terry stop”) which required them to have probable cause. Although it was a little fishy that the defendant would stand outside in the rain and claim to be waiting for the bus for over an hour, it did not actually establish that the defendant was engaged in criminal activity. Therefore, the trial court found that the police had conducted an illegal stop when three officers identified themselves as police and demanded to know if the defendant had any weapons on him. Accordingly, the trial court suppressed the evidence. 

The Commonwealth appealed the trial court’s ruling to the Superior Court, and the Superior Court reversed. The Superior Court noted that there are three different legal standards which govern encounters between pedestrians and police officers. The court held that because police had only asked two questions of the defendant, they had simply engaged in a mere encounter which did not require them to have reasonable suspicion prior to interacting with the defendant. Further, once the defendant voluntarily admitted to having marijuana, the police had full probable cause to conduct a search of the defendant and recover the gun. 

LEGAL STANDARDS FOR POLICE ENCOUNTERS

The Superior Court explained that under the Pennsylvania and United States constitutions, there are three legal standards which govern interactions between the police and pedestrians. First, police may always engage in a mere encounter with a person on the street. This means that even if they have not seen someone do anything illegal, police officers may approach a person, ask them some questions, and attempt to have a conversation with the person. The police may do that even if they suspect the person is engaged in criminal activity without any solid basis for that belief. If the subject of the mere encounter volunteers something incriminating or hands over contraband, then that evidence may be used in court. Here, the Superior Court rejected the trial court's reasoning that the fact that there were three officers involved and that they immediately asked about weapons converted the interaction into something more than a mere encounter.

Second, police may conduct a Terry stop and frisk when they have reasonable suspicion. Police officers have reasonable suspicion when they can state specific, articulable facts which lead them to believe that criminal activity may be ongoing. Reasonable suspicion is a fairly low standard, but it requires a showing that the police had more than just a hunch that the suspect was involved in a crime. If police have reasonable suspicion, then they may conduct a stop of a person in which that person is not free to leave or disengage from the interaction. In some cases, the police may also conduct a frisk of the suspect. However, in order to properly conduct a frisk, the police must have not only reasonable suspicion of criminal activity, but also reasonable suspicion that the person is armed and dangerous. Even then, the frisk is limited to a pat down of the person’s outer clothing. The officers may pat the suspect down and feel for weapons, but they may not go into the person’s pockets or manipulate or squeeze any bulges. Further, a Terry stop must be limited and brief or it could escalate into the equivalent of an arrest.

An arrest or its equivalent requires the police to have probable cause. A stop becomes an arrest or its equivalent when a reasonable person would believe that they were under arrest. Important factors in evaluating whether a stop was the equivalent of an arrest may include whether police use handcuffs, provide Miranda warnings, point their guns at the person, transport the person in the patrol car or require them to go to the police station, and the number of officers involved in the encounter. If a police encounter rises to the level of an arrest, then the police must have probable cause that the defendant committed a crime. Probable cause requires a showing that it was more likely than not that the defendant committed a crime. If the police have probable cause, then they may fully arrest the defendant. They may also conduct a search incident to arrest, meaning they may conduct a full search of the defendant.  

In Young, the Superior Court held that the police had not exceeded the scope of a mere encounter when they simply approached the defendant, asked him what he was doing, and asked if he had any weapons on him. The police are always free to walk up to someone and ask the person some questions. Then, once the defendant admitted to having marijuana on him, the police were free to conduct a full search of the defendant because they had probable cause to make an arrest. Once they had probable cause to make an arrest, they were legally authorized to conduct a full search incident to arrest. Therefore, the police did not do anything illegal in finding the gun. The police did not surround the defendant or indicate that they were going to search him; thus, they did not do anything that made the interaction into something more than a mere encounter. 

MARIJUANA STILL PROVIDES PROBABLE CAUSE TO ARREST AND SEARCH

It is important to note that police still had probable cause to arrest and search the defendant despite Philadelphia’s recent city ordinances providing police with the authority to issue citations for marijuana possession instead of making arrests. Although the police do not arrest most people who are caught with 30 grams of marijuana or less, possession of even a small amount of marijuana remains a crime under both state and federal law. Therefore, the police still have the discretion to make an arrest, which gives them the authority to conduct a full search of someone who admits to possessing marijuana.

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PA Superior Court: Insufficient Evidence of Escape Where Police Arrested Defendant, Took Him to Hospital, Removed Handcuffs, and Left

Pennsylvania Case Law Update - Escape Charges Require Evidence of "Official Detention"

The Pennsylvania Superior Court has just reaffirmed that a conviction for escape cannot be upheld under Pennsylvania law without evidence that the defendant was subject to official detention at the time that the defendant walked out. In Commonwealth v. Treece, the court found that a defendant could not have committed the crime of escape where he was arrested, taken to the hospital, and then left uncuffed and unguarded at the hospital for over an hour before walking out and returning to work. 

THE ESCAPE ALLEGATIONS

Defendant Treece violated a Protection From Abuse order. He was taken to the police station, and while there, he indicated to the arresting officers that he felt sick. The police called paramedics, and paramedics took Treece to the hospital. During transport, Treece was cuffed to the gurney. However, once he was admitted to the hospital, it became clear that Treece was going to be there for a while. The police removed the handcuffs and left. Shockingly, Treece quickly recovered from his illness and walked out of the hospital. Police later arrested Treece and charged him with escape for leaving the hospital. The jury convicted him, and he was sentenced to 11.5 – 23 months of incarceration in the county jail.

APPEAL TO THE SUPERIOR COURT

Treece appealed his conviction for escape to the Superior Court, arguing that the Commonwealth introduced insufficient evidence at trial to sustain a conviction because he was no longer in official detention as required by the escape statute once the police officers uncuffed him and left. As the Superior Court noted, the crime of escape occurs when someone “unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.” The escape statute further defines official detention as:

arrest, detention in any facility for custody of persons under charge or conviction of crime or alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes; but the phrase does not include supervision of probation or parole, or constraint incidental to release on bail.

The Superior Court quickly noted that once police took Treece to the hospital, he was no longer in a facility for custody of persons. Because police removed the handcuffs and left, he was also no longer in police custody. Therefore, the only remaining issue was whether he was subject to “any other detention for law enforcement purposes.” A person is subject to detention for law enforcement purposes when a reasonable person, considering the totality of the circumstances, would not believe themselves free to leave. This is the same as the standard for whether an encounter with the police rises to the level of a Terry stop.

INSUFFICIENT EVIDENCE OF OFFICIAL DETENTION

Here, the Superior Court concluded that Treece was not subject to detention for law enforcement purposes. The police had removed the handcuffs and left over an hour before he left the hospital. Further, it is not uncommon in the suburban counties for a defendant to be arrested, given paperwork, and released prior to preliminary arraignment. The court also noted that when hospital employees called the police and told them what had happened, the police did not immediately obtain a warrant or take any other action to retrieve Treece. Likewise, none of the police officers told Treece he could not leave the hospital.

Therefore, the Court found that a reasonable person in Treece’s position would have believed that he was free to leave. Of course, Treece was in official detention while handcuffed and guarded by the police officers. But once they left and did not return for more than an hour, the official detention ended, and Treece could not commit the crime of escape. Accordingly, the Superior Court reversed Treece’s conviction for escape due to the Commonwealth’s failure to introduce sufficient evidence at trial that Treece was subject to an “official detention.”

Our Philadelphia Criminal Defense Lawyers Can Help You Fight Escape Charges

Treece illustrates that criminal statutes are more complicated than they may seem. In many cases, criminal statutes define ordinary, common terms such as escape or official detention in specific ways which may vary from their normal usage. Under Pennsylvania law, escape has a very specific detention which requires a showing of official detention. Although prosecutors and many people likely had a gut feeling that Treece had done something wrong by leaving, every criminal statute requires the government to prove specific statutory elements in order to obtain a conviction. Therefore, it is absolutely critical that you retain an experienced criminal defense lawyer if you are facing criminal charges. There may very well be defenses of which you are unaware. If you are facing charges in Pennsylvania or New Jersey, call 267-225-2545 for a free criminal defense strategy session with one of our Philadelphia criminal defense lawyers.   

What is Possessing an Instrument of a Crime?

We just updated our section on misdemeanor crimes in Pennsylvania and the Philadelphia Municipal Court to include a discussion of Possessing Instruments of Crime charges. Possessing Instruments of Crime is a particularly common charge in the Philadelphia Municipal Court. Prosecutors often bring this charge whenever the defendant possesses some type of object during the commission of a crime. However, there may be defenses to a PIC charge. Click here to learn more.