McShane Appeals

Commonwealth v. Yohe – The firm once again finds itself involved with the Supreme Court of the United States. We recently filed a petition in the High Court for Writ of Certiorari. This is the case where we argued the NMS labs Henry-Ford-Assembly-line-like forensic science method violates the 6th Amendment’s Confrontation Clause. We presented the following question: The United States Constitution’s Sixth Amendment guarantees criminal defendants the right to a fair trial – including the right to confront “witnesses” against them. Here, the government introduced a forensic toxicology report via a “witness” who reviewed and confirmed laboratory analysts’ work – but did not perform, observe, or have any personal connection with the analysis. Does a “witness” who reviews and confirms others’ work violate the Confrontation Clause” In other words, who is the “witness” against the defendant? At trial, the government did not present the particular witness from NMS Labs who physically conducted the accused’s blood analysis. Instead, the government and NMS presented only the PhD who reviewed the data generated by the particular witness. Trial counsel, The McShane Firm’s own Attorney Shawn Dorward, timely objected—making a complete proffer to preserve the Confrontation Clause error. Attorney Dorward carefully preserved his objection under both federal and state law. The trial court overruled the objection and allowed the “surrogate” witness to testify in lieu of the particular witness. Despite Attorney Dorward’s best efforts, the Judge disagreed with Dorward at trial and returned a guilty verdict for the BAC count, but found the accused not guilty of DUI: General Impairment. Never losing sight of the Constitutional harm, Attorney Dorward again asserted error in a well-written post-sentencing motion and accompanying legal memorandum. Sometimes, judges change their minds. And, upon reviewing the “surrogate’s” testimony and the presented arguments, the trial court agreed the government violated the accused’s Constitutional rights. At the time this all happened, the trial court was bound by the case Commonwealth v. Barton-Martin, which held that a violation of confrontation required the charge at issue to be dismissed. Despite the binding precedent of Barton-Martin, the trial court ordered a new trial as the remedy. Knowing that remedy to be in error in that the proper remedy under Barton-Martin was vacating and discharging the defendant of the conviction, Attorney Dorward filed a motion for reconsideration with the trial court for the remedy. A hearing was scheduled for this motion; however, prior to the court date the government sought appeal of the grant of the new trial. Thus, the government became the appellant. The McShane Firm, LLC became the appellee. After receiving briefs a three justice panel of the Superior Court disagreed with the trial court and overturned the grant of the new trial. In essence the three justices in the Superior Court, in a published opinion, held the testimony of the “surrogate” was sufficient Confrontation for the accused. Attorney Dorward then enlisted the help of Attorneys Justin McShane and Josh Auriemma to perfect a petition for allowance of appeal to the Pennsylvania Supreme Court. Typically, Pennsylvania’s highest court grants very few of these motions—but the court granted it here. The Court wanted to help guide the issue and hear the lawyers on both sides argue the issue. On that appeal to the Pennsylvania Supreme Court, several organizations wrote amicus briefs—“friends of the court”—including: the National College for DUI Defense Attorneys (NCDD); the Pennsylvania Association of Drunk Driving Defense Attorneys (PADDDA); the Pennsylvania Association for Criminal Defense Lawyers (PACDL); and the Philadelphia Defender Association. Ultimately, after the Court received briefs from the accused, the government, and the interested organizations, the case went to oral argument. Attorney Dorward argued the case before the Pennsylvania Supreme Court. Sadly, the Pennsylvania Supreme Court affirmed the Superior Court’s decision. Following the Pennsylvania Supreme Court’s affirmation, The McShane Firm, LLC went to the mat. With the hard work of Attorneys Justin McShane, TC Tanski, and Shawn Dorward as well as Richard Roberts, a law student intern, the firm drafted and filed a Petition for Certiorari with the United States Supreme Court. Now that we’ve filed the Petition, it’s up to the United States Supreme Court to either deny the petition or grant it. Once a Petition is granted by the High

In this important case, Dauphin County Judge Lawrence F. Clark ruled that the current calibration methods for Pennsylvania breath testing machines leave the devices inadequate to measure samples outside of the range of 0.05% to 0.15%. The ruling opens the door for thousands of the Highest BAC (over 0.16%) cases to be reviewed. He further ruled that the Intoxilyzer 5000EN breath machine may no longer considered reliable or admissible. This ruling resulted in Pennsylvania State Police halting the use of breath testing statewide in favor of blood testing.
The full order in the case of Commonwealth of Pennsylvania v. Schildt

A ruling signed by all four judges of the Court of Common Pleas in Lebanon County stated that the blood testing procedure used at Good Samaritan Hospital (GSH) was not acceptable to the court because it deviated from the instructions set forth by the manufacturer of the equipment. In response, Lebanon County District Attorney announced that it would discontinue blood testing at GSH and instead send all blood samples to the state crime lab in Harrisburg for testing.

Lebanon County Blood Testing Ruling

Co-authored with Leonard Stamm, Esquire and Ron Moore, Esquire, the successful joint National College for DUI Defense, Inc. and National Association of Criminal Defense Lawyers’ amicus curiae brief to the Supreme Court of the United States in the case of Bullcoming v. New Mexico 09-10876. On June 23, 2011, the Supreme Court of the United States sided with Bullcoming and the amicus brief issuing a sweeping opinion that affirmed the arguments presented by Bullcoming and amici counsel creating “The Particular Witness Rule.”

Commonwealth v. Curtis Williams (–A.3d–) Mr. Williams was acquitted by a jury of the charge of criminal attempt homicide, but guilty of the charge of Aggravated Assault. The defense theory of the case was that the alleged victim was the aggressor, and Mr. Williams was acting in his own self-defense and in defense of his two young children when the much larger able body alleged victim engaged in road rage. The trial court granted the Commonwealth’s pre-trial motion to preclude the defense from introducing evidence that the alleged victim was drunk (BAC of 0.15) and driving while drunk. A sharply divided panel (2-1) of the Superior Court agreed with the trial court. In a rare move, the Superior Court granted an en banc review of the panel’s decision. Less than 20 cases per year are accepted for en banc review by the Superior Court.

Commonwealth v. Karns 50 A.3d 158 (2012) (PDF) Mr. Karns was found guilty of DUI Highest Rate (BAC above .16%) by the trial court upon evidence from a blood test that reported his BAC to be .189%. At trial the Bedford County District Attorney’s Office presented Christine Ickes, the medical lab scientist from the UPMC Bedford Memorial Hospital who prepared and analyzed Mr. Karns’ blood sample. As the test was done on non-whole blood, a conversion factor accepted by the scientific community must be presented under Pennsylvania Law. The prosecution did not present any evidence of a conversion factor. During his cross-examination, Attorney McShane exposed the lack of a whole blood conversion factor before the trial court. The Superior Court of Pennsylvania reviewed the appeal and found that without a valid conversion factor, the evidence presented by the Commonwealth was insufficient for the per se conviction and overturned the conviction for the charge of DUI- highest rate of alcohol. The holding of the court was as follows:

• Supernate is not whole blood;
• Simply having a witness say it is whole blood is not “good enough” no matter how many times they insist that it is;
• Any form of non-whole blood expression for BAC must be converted back to whole blood;
• Saying there is a conversion factor automatically or somehow is not good enough;
• A dilution factor is not a conversion factor; and
• Absent an expert (or admissible testimony) as to conversion, there is insufficient evidence to support a per se based conviction for DUI)

Commonwealth v. Zerphey (936 MDA 2009) After Mr. Zerphey was originally charged with a violation of section 3802(a)(1) (being incapable of safe driving) and 3802(c) (DUI Highest Rate with BAC over 0.16), Mr. Zerphey was found not guilty at trial as to the incapable of safe driving count, but guilty as to the lesser charge of DUI high Rate (BAC greater than 0.10 but less than 0.16). At trial Attorney McShane argued that the testing method of the Good Samaritan Hospital did not result in a whole blood BAC expression. Pennsylvania law requires that the BAC be an expression of whole blood. Post-sentencing motions were denied by the trial court. The panel of Justice at the Superior Court agreed with Attorney McShane’s original contention that scientifically and factually the result that produced by the Good Samaritan Hospital is not that of whole blood and that no conversion factor was introduced as required. As a result, the Superior Court overturned the conviction. Mr. Zerphey was totally acquitted of all charges.

Commonwealth v. Longenecker (PDF) After a finding of guilt as to the DUI per se charge of having a BAC above 0.16, the lawyers at the McShane Firm argued in a post-sentencing motion that the evidence was legally insufficient to sustain a conviction as to this most serious count of DUI. The trial court agreed and overturned the conviction. In doing so the trial court evaluated the Blood Alcohol Content (BAC) testing used in Lebanon County and held that the BAC testing that is used in is an indirect enzymatic test of the supernate. It is not a test of an accused’s whole blood. When the non-whole blood is tested, the scientific community acknowledges that the result is not only inaccurate but inflated and over-reported as was argued in court. Pennsylvania DUI law requires that there be a BAC based upon whole blood, not what was tested by Good Samaritan Hospital. This type of scientific-based challenge has been advanced before with success leading the WellSpan-related and later the Geisenger-related hospitals to stop offering testing in their hospitals for police prosecution. On November 12, 2009, the hospitals issued a press release announcing this. The Superior Court of Pennsylvania, who evaluates trial court decisions, has repeatedly found this method to be insufficient as a matter of law. (A recent unpublished opinion and a published one- Commonwealth v. Renninger, 682 A.2d 356 (Pa. Super. 1996)) For greater information, you are referred to The McShane Firm’s Pennsylvania DUI Law Blog.

Commonwealth v. Lutz (PDF) At trial the District Attorney’s Office presented the lab technologist from the Good Samaritan Hospital (GHS) who performed chemical testing on Mr. Lutz’s blood. The GHS staff reported the results as a whole blood result. After skillful cross-examination, the Attorneys of the McShane Firm exposed this assertion that it was a whole blood result as being inaccurate. Under Pennsylvania law in order for there to be a conviction, an accused’s Blood Alcohol Content must be expressed in terms of whole blood. A Motion for Judgment of Acquittal was made and granted by the trial court resulting in the per se DUI count being dismissed.

Commonwealth v. Jennifer Barton Martin (5 A.2d 363, 2010 PA Super 163, certiorari denied) The Superior Court of Pennsylvania, a three judge panel with no dissenting opinions held that the Supreme Court of the United States opinion in Melendez Diaz applied even though the accused subpoenaed the technologist and the phlebotomist presenting both in our case-in-chief. The clear ruling states the following:

1. Melendez Diaz is retroactively applied.
2. Under Federal Constitutional Confrontation Clause rights, the Commonwealth during its case-in-chief must call the analyst. It expressly overruled Carter and Kravontka which were our state¹s previous precedent.
3. Failure to do #2 even if the defense in its case calls the analyst, does not cure Confrontation violation.
4. A result is not a new trial, but vacating of the conviction with jeopardy.

The Court ruled as follows: ³Because the Commonwealth did not summon at trial the analyst who prepared Appellant¹s lab report, we conclude that Appellant¹s rights under the Confrontation Clause were violated and that the lab report showing her blood-alcohol content was inadmissible. Without that evidence, Appellant¹s conviction under § 3802(c) cannot stand and we therefore vacate her judgment of sentence as to that offense.²

Commonwealth v. Angel Valle-Valez (995 A.2d 1264, 2010 PA Super 99) The Superior Court of Pennsylvania held as a matter of first impression, spousal privilege applied to testimony of defendant’s wife, even though the couple had separated, no longer held themselves out to be married, and had filed for divorce, and spousal privilege is not limited to confidential communications. Defendant was the ³lawful spouse² of his estranged wife, for purposes of spousal privilege, even though defendant and his wife had separated, no longer held themselves out to be married, and had filed for divorce, and defendant’s wife had become engaged to another man; filing of divorce complaint did nothing to affect the marriage under the law absent entry of divorce decree, and plain statutory language would not be disregarded in pursuit of the spirit of the privilege. A spouse does not waive the spousal privilege by sharing the nature of the information with third parties. Where the spousal privilege applies, the witness may refuse to testify and may not be compelled to take the stand. Spousal privilege is not limited to confidential communications.

Commonwealth v. Christina Houtz (982 A.2d 537; 2009 PA Super 186) The Superior Court of Pennsylvania held that in a sex offender case that a blanket probation condition that prohibited defendant from possessing or having access to a computer, or otherwise accessing the Internet, was unduly restrictive and unreasonable, in prosecution for corruption of a minor and indecent assault; there was no evidence that defendant’s offense was facilitated by or incorporated the use of a computer or the internet.

Commonwealth v. Justin Tobery (908 MDA 2009) The Superior Court of Pennsylvania held that a two vehicle accident involving serious bodily injury of the other motorist on an icy road where the officer noticed an odor of alcohol alone with no other indicia of intoxication present was insufficient probable cause to arrest for a DUI.

Commonwealth v. Darius Jeffries (579 Pa. 539, 857 A.2d 671) the Pennsylvania Supreme Court granted allocator for argument in this case.

Commonwealth of Pennsylvania vs. Shawn Seif: (1265 MDA 2002): Shawn Seif was charged with Resisting Arrest, Disorderly Conduct and Obstruction of Justice. Factually, he lived in a multi-unit apartment complex with a locked front door. The police received a 911 hang-up call from a alleged domestic assault involving a unit other than Mr. Seif’s. The police arrived at the locked front door and commanded that Seif open it. Seif denied them entry. He was arrested. Despite our best efforts both in pretrial motions and during trial, all pretrial motions to dismiss were denied and he was convicted by a Jury of all charges. Upon appeal, in an unpublished opinion of a panel of the Superior Court of Pennsylvania, the conviction was overturned and the case was discharged. The panel of the Superior Court agreed with Attorney McShane’s original position that the charges were not proper to begin with- in that: (1) the private common room hallway where the alleged Disorderly Conduct occurred was not a public place which is an essential element to support a Disorderly Conduct charge; (2) failing to open a door upon a police command is not an affirmative act as is necessary to sustain a conviction for Obstruction of Justice charge; and (3) a refusal to turn around and put his hands behind his back was not Resisting Arrest.

Commonwealth v. Tamika Jones (845 A.2d 821, 2004 PA Super 28) The Superior Court of Pennsylvania held that knowledge on part of police officer who stopped defendant’s vehicle, that an individual had complained that a vehicle matching the description of defendant’s vehicle and license plate number was involved in ³drug activity,² was insufficient to serve as basis for a reasonable suspicion of criminal activity; officer did not observe any conduct by defendant that would corroborate tip provided to dispatcher, and tipster did not provide any information about individuals allegedly involved in ³drug activity² or specify what the ³activity² was. Allowing Commonwealth to call as witness the informant whose tip led to stop of defendant’s vehicle would not have satisfied Commonwealth’s burden, in opposing motion to suppress evidence obtained during that stop, of establishing existence of reasonable suspicion; defendant did not contest the content of information provided, but rather whether the information itself was sufficient to serve as basis for reasonable suspicion.

This case involved a Petition to Compel the Commonwealth to provide a duplicate copy of a computer hard drive for expert analysis in a child pornography case. Under Federal Law, a duplicate copy of the hard drive will only be provided to an expert to view in the government’s facility. This greatly restricts the expert’s ability to perform a comprehensive analysis of the hard drive because the expert is not able to bring his full reference library and all of his equipment. Additionally, it forces the expert to work with unfamiliar systems. The Court held that Federal Law did not supercede the Pennsylvania Discovery Rules and therefore issued a protective order for our expert to receive the mirror image hard drive and perform comprehensive analysis. This provides the Defendant with the opportunity to fully address the alleged evidence against him.

The full order in the case of Commonwealth of Pennsylvania v. Michaels

Police received a dispatch from an individual at a movie theater who stated that they saw the Defendant fall over and that there was a bottle of wine under the seat. The caller then followed the Defendant to his vehicle and stated that he appeared intoxicated. The caller then provided the police with the Defendant’s license plate number and make and model of vehicle. Police identified the vehicle and began to follow it. While the police were following the vehicle, the vehicle was observed traveling below the speed limit and touched the yellow line. The Officer candidly testified that she did not witness a violation of the motor vehicle code or driving that would cause her to pull the vehicle over. I was successful in arguing that the police officer did not have reasonable suspicion to stop the Defendant’s vehicle and therefore all evidence acquired after the stop was inadmissible. Specifically, the Caller identity was never disclosed and therefore his tip had to corroborated by the Officer following the vehicle. The Court held that the Officer did not have sufficient independent observations to corroborate the tip and that the stop was not valid.

The full order in the case of Commonwealth of Pennsylvania v. Francis

The Defendant was accused of Driving Under the Influence. An Officer followed the Defendant’s vehicle and observed the vehicle leave its lane of travel on several occasions. The Officer than performed a traffic stop and had the Defendant perform standard field sobriety tests. The Defendant was then taken Gettysburg Hospital for a blood test. The Gettysburg Hospital blood test stated that the Defendant’s Blood Alcohol Concentration was .231%.

At trial, a Jury convicted the Defendant of DUI with a blood alcohol content of above .16%. However, we were able to successfully appeal this verdict and the trial court awarded a new trial. Specifically, the Trial Court held that the weight of the evidence did not support the blood alcohol result.

The full order in the case of Commonwealth of Pennsylvania v. Angles

After observing the Defendant’s vehicle on two (2) separate occasions, and for a total of a mile to a mile and a half, Trooper Finkbiner effectuated a stop. His alleged basis for doing so was that he observed the vehicle cross the white fog line and the dotted white line separating the two lanes of travel by a tire’s width for a matter of seconds each time. “Under the totality of the circumstances, the Court finds that Trooper Finkbiner did not have reasonable suspicion that the Defendant was in violation of the vehicle code, therefore not having the requisite cause to make a stop.

The full order in the case of Commonwealth of Pennsylvania v. Matthew Lee Kull