Dorward Appeals

COMMONWEALTH of Pennsylvania v. Daniel Eugene LANDIS, II

The Superior Court of Pennsylvania has issued a decision in the case of _COMMONWEALTH of Pennsylvania v. Daniel Eugene LANDIS, II, Appellant,_ 2108 MDA 2012 (April 8, 2014), an appeal from the Court of Common Pleas of Juniata County, Judge Kenneth A. Mummah, Criminal Division, CP–34–CR–0000167–2010.The Panel was composed of Judges BENDER, WECHT and FITZGERALD who wrote the Opinion. There was no dissent.

The Appellant appealed from a judgment of sentence entered in the Juniata County Court of Common Pleas after a jury found him guilty of, /inter alia,/ DUI-highest rate of alcohol.Appellant claimed that he was entitled to a new trial because the finding that his blood-alcohol level was over .16% within two hours of driving was against the weight of the evidence. The Panel agreed and ruled that the Appellant was entitled to a new trial on the count of DUI—highest rate of alcohol because the blood-alcohol test result of .164%, which was relied on by the Commonwealth, was subject to a 10% margin of error and there was no further evidence to sustain the jury’s finding that his blood alcohol level was .16% or above within two hours of driving.

Section 3802(c) of the Motor Vehicle Code provides that: An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual’s blood or breath is 0.16% or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

The Superior Court agreed that the jury’s verdict on the count of DUI-highest rate of alcohol was against the weight of the evidence. The evidence that his blood-alcohol level was .164% was unreliable because the medical technician only took one sample of blood and ran only one test. Moreover, the result from an Avid Axsym machine was less accurate than a gas chromatography test, and the evidence at trial established a 10% margin of error in the results from the Avid Axsym machine.

The trial record did not contain a reasoned basis for accepting the specific reading of .164% as either accurate or precise. There was no support for a finding that the reading registered by the Avid Axsym
machine was any more reliable than the possible blood-alcohol levels within the 10% margin of error. Moreover, since there was no direct or circumstantial evidence regarding the possible applications of the 10% margin of error, the trial evidence required the jury to speculate that Appellant’s actual blood alcohol content was .16% or higher within two hours of driving. Therefore, the Panel held that the Appellant was entitled to a new trial on the count of DUI—highest rate of alcohol.

The attorney for the Appellant was Shawn Michael Dorward, of the McShane Firm, Harrisburg, PA.

Commonwealth v. Yohe

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 Court, briefs are filed and arguments are presented.

If you’re looking for professionally aggressive representation, contact The McShane Firm today and put Harrisburg’s most highly-trained attorneys in your corner. WE FIGHT!