Fleeing or Eluding Statute Does Not Require Police Pursuit

Fleeing or Eluding a Police Officer

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Wise, holding that the fleeing or eluding statute does not require evidence that the police pursued the defendant's vehicle in order for prosecutors to obtain a conviction. 

What is Fleeing or Eluding? 

Pennsylvania’s Motor Vehicle Code makes it a crime to fail to stop your car or truck when ordered to do so by a police officer. 75 Pa.C.S. Sec. 3733 defines fleeing and eluding as follows:

(a) Offense defined.--Any driver of a motor vehicle who

willfully fails or refuses to bring his vehicle to a stop, or who

otherwise flees or attempts to elude a pursuing police officer,

when given a visual and audible signal to bring the vehicle to a

stop, commits an offense as graded in subsection (a.2).

* * *

(b) Signal by police officer.--The signal given by the police may be by hand, voice, emergency lights or siren.

Commonwealth v. Wise

Until recently, there was some dispute as to whether the fleeing or eluding statute required some evidence of pursuit by the police. In Commonwealth v. Wise, the Superior Court rejected the defendant's argument that she could not be convicted of fleeing or eluding without some evidence that the police attempted to pursue her.

In Wise, the defendant was convicted of Fleeing or Attempting to Elude a Police Officer (75 Pa.C.S. Sec. 3733). At trial, the Commonwealth presented only the testimony of the arresting officer. The officer testified that she was interviewing witnesses to a minor car accident in York County. While interviewing witnesses, she observed a green Mustang convertible with the top down approach the intersection. As the vehicle approached the intersection, the officer made contact with the defendant, who was driving the vehicle. The officer recognized her from previous interactions and knew that she did not have a valid driver’s license.

After recognizing the defendant, the officer approached the Mustang and asked the defendant some questions. The officer then asked her to pull over. The officer was in full uniform, including a vest, belt, badge, and patches on the arms. The officer pointed to where the defendant should pull over. Instead of pulling over as ordered, the defendant drove away at a high rate of speed. Notably, the officer did not pursue the defendant because she was still responding to the auto accident. She did, however, notify dispatch that the motor vehicle had fled the scene at a high rate of speed, and the defendant was later charged with fleeing or attempting to elude a police officer.

The jury convicted the defendant of fleeing or attempting to elude a police officer, and she was sentenced to two years of probation, costs and fines, and 100 hours of community service. The defendant appealed, arguing that the trial court improperly failed to instruct the jury that the jury must find that she was pursued by the police in order to convict her. Instead, the trial court instructed the jury that it could convict the defendant of fleeing and eluding if it found beyond a reasonable doubt that she

1. was the driver of a motor vehicle,

2. was given a visual and audible signal by the police officer to stop,

3. that she failed or refused to bring the vehicle to a stop or fled, and

4. that she did so willfully, meaning she was aware of the officer’s signal to stop and refused to do so.

On appeal, Wise argued that trial court should have required the jury to also find that she had attempted to elude a pursuing police officer. She argued that the absence of a comma after the phrase “or who otherwise flees” (“Oxford comma”), compels that the statute requires “‘a pursuing police officer,’ regardless of whether a motorist ‘flees’ or ‘attempts to elude’ the police.” Therefore, because the officer never pursued her, the jury was arguably misinformed as to an element of the statute.

Both the trial court and the Superior Court rejected the argument. The Superior Court found that the punctuation or lack thereof did not change the requirements of the statute. Instead, a violation of the statute can be proven in three ways. In order to show that someone commits the offense, the Commonwealth must prove only that a driver, when given a visual and audible signal to stop, 

1. willfully fails or refuses to stop, or

2. otherwise flees

3. or attempts to elude a pursuing police officer.

Therefore, the trial court had properly instructed the jury, and the Sueprior Court affirmed the conviction.

Award-Winning Philadelphia Criminal Defense Attorneys

Philadelphia Criminal Defense Attorneys

If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended thousands of clients at trial and on appeal. We offer a free criminal defense strategy session to anyone who is under investigation or has been charged with a crime. Call 267-225-2545 for a complimentary strategy session with one of our award-winning defense attorneys. 

Read the Opinion: Commonwealth v. Wise

Parole Petitions and Petitions for Early Parole in Philadelphia

Philadelphia, PA Criminal Defense Lawyers for County Parole Petitions

If your loved one is serving a county prison sentence in Philadelphia or one of the surrounding counties, the Philadelphia criminal defense lawyers of Goldstein Mehta LLC can help make sure they are considered for parole at their minimum or even earlier. With few exceptions, Pennsylvania law requires that every jail sentence have a minimum and a maximum. For example, a defendant who is convicted of selling drugs in Philadelphia could receive a sentence of 11.5 – 23 months of incarceration in the Philadelphia Prison System followed by a period of probation. In that case, the minimum sentence would be 11.5 months in jail, and the maximum sentence would be 23 months. In any case in which the maximum sentence is less than two years, the defendant would be incarcerated in the county jail instead of in a State Prison. For cases with a maximum of two or more years, the defendant would serve the sentence in a State Correctional Institution. The procedures for obtaining parole differ tremendously for county sentences and state sentences, and we are often able to help clients who received county sentences obtain parole at their minimum date or even before. 

Petitions for County Parole

Our Philadelphia probation and parole lawyers have helped countless clients obtain parole at their minimum sentence or in some cases, even earlier. In most cases, the defendant must serve the minimum sentence before becoming eligible for parole. This means that in the above example, the defendant who was convicted of Possession with the Intent to Deliver would have to serve 11.5 months in custody before being released. However, whether or not the defendant will actually be released immediately at the minimum date depends on the sentencing order. If the sentencing judge orders that the defendant receive immediate parole at the minimum, then the defendant would be released as soon as the prison calculates that the defendant has completed the 11.5 month minimum sentence.

If the sentencing judge does not order immediate parole at the time of sentencing, then the defendant will not be automatically paroled at the minimum. Instead, the defendant should retain counsel to file a Parole Petition. In some cases, if the prison system thinks the defendant has done well while in custody, the Philadelphia Probation Department will file the parole petition on the defendant’s behalf. In other cases, the Probation Department will not automatically file the petition, and many people fall through the cracks if they do not retain counsel.

If the defendant was not granted immediate parole and the Probation Department does not file a parole petition (or the sentencing judge declines to rule on the petition or has denied it), we can help. Our criminal defense attorneys can file a parole petition with the defendant’s sentencing judge asking the judge to grant parole and release the defendant from the prison system. In order to increase the likelihood of a successful petition, we will investigate the client's background and speak with family and friends in order to highlight the reasons why the defendant should be paroled. For example, helpful factors in obtaining parole could include the following:

1. Lack of a significant prior criminal record,
   

2. Good behavior while in custody,
   

3. Significant support from family and friends in the community,
   

4. Participation in drug treatment and other programs while in custody and a documented plan for continuing or obtaining treatment once released, and,
   

5. Work history and the prospects of employment in the community once released from custody.

Accordingly, our criminal defense lawyers will work to highlight the good things about the defendant and the good things that the defendant has done while in custody in order to show the sentencing judge that the defendant should be released. We will also work to schedule a hearing on the parole petition as quickly as possible. Even when the Probation Department files a parole petition on behalf of a inmate, the judge does not necessarily schedule a hearing or rule on the Petition. In that case, we can file our own petition and ask the Judge to schedule a hearing as soon as possible. We are often able to schedule hearings in Philadelphia within a week or two so that we can present the mitigation evidence to the judge and ask the judge to parole the client.

Petitions for Early Parole

In most cases, the sentencing judge expects the defendant to serve the minimum sentence before receiving parole. However, if the defendant receives a longer county sentence of 11.5 – 23 months, it may be possible to file a Petition for Early Parole once the defendant completes a portion of the minimum. If the defendant does not have any major infractions and we are able to arrange for treatment options or work opportunities upon release, we may be able to convince the sentencing judge to parole the defendant before the minimum sentence.

Under Pennsylvania law, judges in the Court of Common Pleas and Philadelphia Municipal Court often retain the power to parole inmates who are in custody in the County prison system. Judges do not decide when an inmate in the state system receives parole, so we cannot file an Early Parole Petition for an inmate who is serving a state sentence. However, if you or your loved one are serving a county sentence, we can evaluate your case and whether there are strong enough reasons for the judge to let the client out early such that it would be worth filing a Petition for Early Parole.

Award-Winning Philadelphia Criminal Defense and Probation Lawyers

Philadelphia Criminal Defense Lawyers Zak T. Goldstein, Esq. and Demetra Mehta, Esq.

Our Philadelphia Criminal Defense Lawyers have successfully defended thousands of clients in criminal cases and probation matters. We have helped clients resolve violations of probation, get detainers lifted, and obtain parole at their minimum and in some cases before the minimum. We offer a free criminal defense strategy session to any potential client. Call 267-225-2545 today to speak with one of our award-winning defense attorneys.

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PA Superior Court Upholds Homicide by Vehicle Conviction for Failure to Come to a Complete Stop at Busy Intersection

Commonwealth v. Moyer

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Moyer, upholding the defendant’s conviction and state prison sentence for Homicide By Vehicle, Recklessly Endangering Another Person (“REAP”), and Driving Under the Influence (“DUI”). On appeal, Moyer challenged the sufficiency of the evidence against her as well as the admissibility of the blood results for the DUI charge under Birchfield v. North Dakota. Unfortunately for Moyer, the Superior Court held both that the Commonwealth produced sufficient evidence to convict the defendant of homicide by vehicle and that the Birchfield claim that police should have obtained a warrant prior to the blood draw was waived for failure to raise the issue prior to or during trial.

"Rolling Stops" and Homicide by Vehicle 

In Moyer, the record showed that the defendant approached a stop sign at an intersection which she had driven through on many prior occasions. The defendant failed to come to a complete stop at the intersection. She characterized the stop as a “rolling stop,” but the trial court found that she had traveled through the intersection at around twelve miles per hour and had not attempted to activate her brakes prior to the ensuing collision. As she went through the intersection, a box truck crashed into her car, crossed the double yellow line, and then crashed into a tow truck, killing the driver of the box truck. The evidence produced at trial also suggested that it would be difficult to see traffic coming from the side due to the presence of a building at the edge of the intersection.

Criminal Charges for Car Accidents

Moyer was arrested and charged with Homicide by Vehicle, REAP, Homicide by Vehicle while DUI, DUI, and various summary offenses relating to reckless driving. The jury convicted her of homicide by vehicle and REAP, but it acquitted her of Homicide by Vehicle while DUI because the levels of marijuana and Xanax in her system were extremely low and unlikely to cause actual impairment or inability to drive. The trial court found her guilty of DUI and the summary traffic offenses. Notably, there is no right to a jury trial for a first-offense DUI charge or for summary traffic offenses. Therefore, the jury decided whether to convict on the more serious judges, and the trial judge made the ruling on the DUI and summaries.

The Criminal Appeal

Moyer raised two issues on appeal. First, she challenged the use of the blood results against her because police had warned her that she would face more severe criminal penalties if she refused to consent to chemical testing in violation of Birchfield v. North Dakota. In Birchfield, the United States Supreme Court held that states many not criminalize the refusal to submit to warrantless blood testing even where police have probable cause to believe that the driver was driving under the influence. However, Birchfield, was decided after the defendant was convicted in the trial court. Although she sought a new trial by filing post-sentence motions prior to taking the appeal, the trial court denied the post-sentence motions.

The Superior Court upheld the trial court’s decision, agreeing that Birchfield is not retroactive and that the defendant should have known the case was on appeal in the United States Supreme Court and raised the issue prior to trial in order to preserve it for appeal. Pennsylvania’s appellate waiver doctrine is extremely demanding. If claims are not properly preserved by filing motions or objections at the trial level, those claims may be waived forever.

Second, Moyer argued that the evidence was insufficient to convict on Homicide by Vehicle because she had done nothing more than roll through the intersection. Homicide by Vehicle is defined in the Motor Vehicle Code. Section 3732 of the Motor Vehicle Code defines Homicide by Vehicle as:

Any person who recklessly or with gross negligence causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic exception section 3802 (relating to driving under influence of alcohol or controlled substance) is guilty of homicide by vehicle, a felony of the third degree, when the violation is the cause of death.

Thus, in order to convict a defendant of Homicide by Vehicle, the Commonwealth must show that the defendant’s traffic violation caused a death and that the defendant acted either recklessly or with gross negligence. Pennsylvania law defines criminal recklessness as follows:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.

The statute may also be satisfied by a showing of gross negligence. Gross negligence is more than ordinary civil negligence. Instead, it requires that the defendant’s conduct “evidenced a conscious disregard of the substantial and unjustified risk that he would be involved in a traffic accident causing death.” Accordingly, appellate courts have equated gross negligence with recklessness.

The Superior Court rejected Moyer’s argument that she had not acted recklessly. Although the small amounts of marijuana and Xanax in her system had likely not caused the accident, the Court found that her failure to stop at the intersection as required by Pennsylvania’s traffic laws was reckless enough to support a conviction for Homicide by Vehicle. First, the Court found that traveling at twelve miles per hour is different than simply failing to come to a complete stop and “rolling” through an intersection. Second, the Court noted that the stop sign preceded a busy intersection and that a building obscured the view of one lane of the cross traffic. Third, the Court considered the fact that the evidence showed Moyer had failed to brake prior to the collision. Finally, the Court recognized that Moyer was familiar with the intersection and had driven through it numerous times. Therefore, she should have known the risks of driving through it without stopping. Although the decedent failed to wear a seatbelt and was driving with his passenger door open, the Court still found that it was Moyer’s reckless conduct that caused his death. Therefore, the Court upheld the convictions against Moyer.

Award-Winning Philadelphia Criminal Defense Lawyers

Defense Attorneys Demetra Mehta and Zak Goldstein

Homicide by Vehicle charges are extremely serious, and there are often defenses to these charges. In general, it is not enough for the Commonwealth merely to show that there was a car accident and someone died. Instead, the Commonwealth must show that the defendant acted with more than just negligence; that is that the defendant acted recklessly, which is more difficult to show. Here, the evidence showed that the defendant was traveling twelve miles per hour into a busy intersection without stopping, which apparently satisfied the standard. In many cases, it may be possible to challenge Homicide by Vehicle charges both by attacking the prosecution’s proof as it relates to the defendant’s mens rea and by challenging whether the defendant’s actions actually caused the death of the victim. If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of cases. Call 267-225-2545 for a free criminal defense strategy session.

Read the Case: Commonwealth v. Moyer

Pennsylvania Supreme Court Justices Can’t Agree On Admissibility of Hearsay At Preliminary Hearing

Is Hearsay Admissible at a Preliminary Hearing? 

The Pennsylvania Supreme Court has just dismissed the appeal in Commonwealth v. Ricker, thereby failing to decide the issue of how much hearsay may be admitted at a preliminary hearing in order for the Commonwealth to establish a prima facie case. The use of hearsay by the prosecution at a preliminary hearing has long been a heavily contested issue. For years, the rule was that the prosecution could introduce some evidence via hearsay testimony in order to establish a prima facie case, but the prosecution could not have a defendant held for court and a case sent to the Court of Common Pleas for trial without at least some live testimony by a witness with personal knowledge.

The Use of Hearsay at the Preliminary Hearing and the Pennsylvania Rules of Criminal Procedure

That basic rule began to change in 2011 when the Pennsylvania Supreme Court issued new Rules of Criminal Procedure expressly allowing for the use of hearsay to prove the elements of ownership and non-permission in cases involving property crimes like Theft, Burglary, and Robbery. In order to prove Theft, the prosecution would normally have to show that the defendant took someone else’s property without permission and did not intend to give it back. This would often require two witnesses. First, the complainant who had the property stolen would have to testify that something that person owned was stolen and that the complainant did not give the person who took the property permission to take it. Second, the police officer who arrested the defendant in possession of the stolen property would testify that the officer arrested the defendant and the defendant had the stolen goods.

By permitting ownership and non-permission testimony to come in through hearsay, the rule allowed the Commonwealth to call only the professional police witness, who is more likely to appear for court because it is part of his or her job, to testify at the preliminary hearing. This allowed more cases to survive the preliminary hearing because the complaining witness would only be required for trial. Of course, many cases do not go to trial, leaving many defendants forced to decide whether or not to plead guilty without any meaningful chance to challenge the evidence against them. Before the Pennsylvania Supreme Court adopted the rule, judges would frequently dismiss cases because the owner of the property or house involved in a Burglary or Theft would fail to appear for court. The rule was an attempt to provide the defendant with a continued right to a meaningful hearing while at the same time lessening the burden on victims and witnesses to miss work and other obligations for multiple pre-trial court dates.

Shortly after enacting the 2011 rule, the Pennsylvania Supreme Court amended the rule to permit other types of testimony to come in to evidence via hearsay. The rule currently reads:

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, including, but not limited to, those requiring proof of the ownership of, non-permitted use of, damage to, or value of property.

The amended rule expanded the number of cases in which hearsay could be used to prove various elements of the charged offenses at the preliminary hearing. Nonetheless, important protections remained in effect because the rule did not state that hearsay could be used to prove every element or all elements of an offense, and the Pennsylvania Supreme Court had previously ruled that a case could not be held for court at the preliminary hearing based on hearsay alone.

Commonwealth v. Ricker and Commonwealth v. McClelland

That all changed in the recent cases of Commonwealth v. Ricker and Commonwealth v. McClelland. In Ricker, the Pennsylvania Superior Court held that the amended rule permits the Commonwealth to establish a prima facie case at a preliminary hearing based on hearsay alone. Ricker did not address whether the Pennsylvania and United States Confrontation Clauses, which provide criminal defendants with the right to confront (meaning cross-examine) their accusers, prohibit the Commonwealth from establishing a prima facie case at a preliminary hearing based solely on hearsay. Unfortunately, in McClelland, a panel of the Superior Court again found that the Commonwealth could establish a prima facie case based solely on hearsay because the Confrontation Clause does not apply at a preliminary hearing.

The defense appealed in both Ricker and McClelland, and the defense bar has been anxiously awaiting the Pennsylvania Supreme Court’s review of the Ricker decision. Unfortunately, the Pennsylvania Supreme Court just announced that it has decided to punt on the issue. Instead of determining exactly how much hearsay is allowed at a preliminary hearing, the Supreme Court dismissed the appeal in Ricker as “improvidently granted.” In a concurring opinion, Chief Justice Saylor explained that the Court simply could not agree on a result and felt that the Ricker case was not the appropriate vehicle for resolving all of the issues. In a dissenting opinion, Justice Wecht argued that the Court should have resolved the issue either way and that the Superior Court’s holding in Ricker should be reversed. Because the Court has refused to rule on the issue for now, the exact procedure which should be used at a preliminary hearing will continue to be the subject of litigation.  

Despite the PA Supreme Court’s refusal to resolve the issues in Ricker, the Petition for Allowance of Appeal is still pending in McClelland. Therefore, it remains a possibility that the Court could still resolve these issues. The Court could provide an authoritative ruling on exactly how much hearsay is permitted at a preliminary hearing either by revisiting the issue in McClelland or by engaging in the rule-making process to make the Rules of Criminal Procedure clearer. In the absence of action by the Court, criminal defendants throughout Pennsylvania will remain subject to a wide variety of preliminary hearing procedures and subject to a severe disadvantage in terms of the defense’s ability to test the strength of the Commonwealth’s case at the preliminary hearing.

Most Judges in Philadelphia Require More Than Just Hearsay

In Philadelphia, most judges continue to require some level of non-hearsay testimony, and it is important to note that the rules and the case law do not require a judge to permit the Commonwealth to proceed based solely on hearsay. Instead, McClelland instructs judges to continue evaluating and analyzing the reliability of the Commonwealths’ evidence. Given the high volume of cases, it seems likely that this practice will continue for most cases. Further, many of the most serious cases in Philadelphia such as Attempted Murder and Robbery cases are now charged by way of a secret (and probably even more unfair) Indicting Grand Jury at which the defense is not present or able to cross-examine witnesses instead of by preliminary hearing. In the suburban counties, magistrates are more likely to allow the prosecution to proceed based solely on hearsay. In the short term, the practice in Philadelphia may not change dramatically. In the long term, it remains to be seen whether prosecutors will continue to call witnesses at preliminary hearings and whether the Pennsylvania Supreme Court will revisit this issue.

AWARD-WINNING PHILADELPHIA CRIMINAL DEFENSE LAWYERS

Goldstein Mehta LLC Philadelphia Criminal Defense Attorneys

If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended thousands of clients against a wide variety of criminal charges in preliminary hearings and at trial. Call 267-225-2545 for a complimentary 15-minute criminal defense strategy session with one of our award-winning defense attorneys.