Congratulations to Elizabeth Lippy for being honored by The National Trial Lawyers as one of their “Top 40 under 40.”   This exclusive award only goes out to 40 trial lawyers – putting Liz among the very best of the best young trial lawyers.  We are thrilled with her accomplishment – capping a year of great success and professional achievement.  If you know Liz please congratulate her – she will certainly appreciate it.

 Pennsylvania has joined well over half the states—including New Jersey and Delaware—that prohibit texting while driving.

 On November 9^th, Governor Tom Corbett signed Senate Bill 314 into law, becoming Act 98. This Act makes texting while driving a primary offense, meaning a driver can be pulled over even if no other violation is involved. It specifically prohibits all drivers from using an interactive wireless communication device to send, read or write a text-based message while their vehicle is in motion. Such messages include text messages, instant messages, email or other written communication. The law goes into effect on March 8, 2012 and institutes a $50 fine for citations.  

Corbett said 13,790 crashes in Pennsylvania were caused in 2010 by distracted driving, which includes more than texting. He said, 1,100 of those accidents involved drivers using a handheld cell phone, and 66 people died because they were not paying attention to how they were driving.

The House could have passed even stronger legislation, but it stripped from the bill a provision that would have required hands-free cellphone use. However, Pennsylvania suburbs have been stricter in implementing their own hands-free mandate. In Philadelphia, Harrisburg, Wilkes-Barre and Erie for example, cell phone use by drivers is prohibited unless a hands-free attachment is in use. First time violators of these ordinances are subject to fines ranging from $75-$150. These city ordinances are all currently in effect.

Far fewer states, less than a dozen, New Jersey and Delaware among them, have implemented a statewide hands-free mandate. Delaware’s distracted while driving law took effect on January 2, 2011 and since that time, police agencies across the state have issued some 9,000 citations, each carrying a first-offense penalty of $100. New Jersey has a similar law also carrying a $100 fine for the primary offense of texting while driving that has been in effect since March 1, 2008.

Pennsylvania’s latest ban comes on the heels of the National Transportation Safety Board (NTSB) recommendation earlier this month that all states ban the use of cellphones by motorists. The NTSB is an independent agency that investigates transportation accidents and makes recommendations on safety-related issues. It has no authority to regulate, fund, or be directly involved in the operation of any mode of transportation. Lawmakers, however, could conceivably use the agency’s recommendations in crafting legislation. Whether a nationwide ban is on the horizon or not, the state-by-state trend is becoming clear. For motorists in Pennsylvania, you may want to think twice before pulling out your cellphone behind the wheel.

 I am doing three days of open office hours in Philly in January.  On 1/5 at Quorum, on 1/19 at Technically Philly’s office and on 1/26 at IndyHall.  I am making my 16 years of corporate transactional and general corporate experience available at no charge during these hours in ½ hour slots.  People can leverage my knowledge in the VC and PE space as well.  As most of you know, I’ve spent the bulk of my career operating in the VC and PE space on both the company side and the fund side. 

If you feel compelled and want to circulate this email or the link below to those you know may be interested, please feel free to do so.  It would be much appreciated.  The more the merrier.  Here’s the site where they would go to sign up for a slot – http://ohours.org/cmcdemus

_______________________________________

Christopher D. McDemus, Esq.

MCD Law Partners, LLC

500 Office Center Drive, Suite 400 | Ft. Washington, PA  19034

P: 267-513-1830 | F: 267-775-3454 | C: 610-220-4563 | E: chris@mcdlawpartners.com

In a recent Pennsylvania Supreme Court case, Commonwealth v. Sanchez, the court declared that juries will have to rule when a defendant in a death penalty proceeding wants to argue that he is mentally disabled and therefore ineligible for execution.

The high court upheld the death penalty for Abraham Sanchez Jr., who was convicted of the May 2007 random shooting death of an elderly man, Ray Diener, on his doorstep in Elizabethtown, PA. The 69-page opinion handed down by Chief Justice Ronald Castille documented how Sanchez and three others ended up at Diener’s house in a random search for a home to burglarize or a car to break into.  

One of the men noticed Diener inside his home, so they stopped and rang the doorbell. After Diener went to the door, another man said their car had broken down and asked to use the phone. After Diener returned with a phone, Sanchez pointed a handgun at him, there was a struggle and Sanchez shot Diener three times before he and the other men fled. Diener’s wife, who went outside after hearing his screams, returned inside, locked the doors and called police. Sanchez told a witness he did the shooting “for fun,” according to the opinion. Sanchez was convicted of first-degree murder, robbery and conspiracy.

In capital cases there are two phases, one to determine guilt and another to determine punishment. After he was found guilty, Sanchez had his subsequent penalty trial, where he requested an Atkins determination before jury selection. An “Atkins determination” comes from the U.S. Supreme Court case, Atkins v. Virginia, where the Supreme Court held that execution of the mentally retarded violates the constitutional prohibition against cruel and unusual punishment. Therefore, an Atkins determination rests upon whether or not the convicted is eligible for capital punishment. His request was denied and his death penalty trial proceeded.

During this trial, witnesses described how Sanchez was abused at home and picked on at school. His sister said when she asked him why he doesn’t show love, “He said he doesn’t know what love is.” Despite the defense’s arguments that Sanchez should get life in prison because of his age and background, at age 20, he was sentenced to death by a jury in March 2009.

On appeal, one of several certified questions was whether the trial court erred in permitting the jury to decide at the penalty phase whether Sanchez was mentally retarded and, therefore, exempt from the death penalty pursuant to Atkins. The question was answered in the negative. The justices’ ruling means jurors will have to unanimously agree that the defendant qualifies to avoid execution under Atkins.

In the new decision, the Pennsylvania court said jurors should rule on the issue before deciding if aggravating factors outweigh mitigating factors, the process by which they determine if capital punishment is warranted. The justices had previously ruled on the standards by which a defendant would be considered mentally retarded, but this was the first time they laid out procedures for how to address the issue at trial.

The high court put the burden of proof on defendants under a “preponderance of the evidence” standard, meaning the proposition is more likely true than not true. It said placing the burden on prosecutors would give defendants less incentive to cooperate with psychiatric evaluations or help produce friends and family members who might shed light on their mental states.

In dissent, two justices said that the decision on mental retardation should be made before trial by a judge, as Sanchez argued, but they agreed with the decision to uphold his Lancaster County death sentence. The majority opinion said judges will be allowed to make such rulings, if the parties agree.

The decision about when a defendant must notify prosecutors that he intends to raise a mental disability claim was left up to the court’s Criminal Procedural Rules Committee. While the decision may be vulnerable to an appeal in federal court, for now at least, Sanchez devises a procedure for implementing the Atkins decision in Pennsylvania death penalty cases.  

It has been black letter law and a source of some frustration for judges, prosecutors, and defense attorneys alike that when an individual is convicted of a Megan’s Law offense, as specified in 42 Pa.C.S.A. §9795.1, a Sexually Violent Predator (SVP) assessment must be ordered and completed prior to sentencing.  (For a more thorough review of Megan’s Law offenses and SVP hearings in general, please refer to the “Sex Crimes” link under our website’s “Practice Areas” tab.)  Contained within 42 Pa.C.S.A. §9795.4, this bright-line rule carried a number of ramifications. 

First, in a situation where the conviction resulted from a negotiated guilty plea, the sentence itself is a virtual certainty.  The Court has typically been informed of and accepted the arrangement, and would like to close the docket.  The prosecutor would like the sentence to be imposed, the conditions of supervision and Megan’s Law reporting requirements to commence, and to inform potential victims of the final result.  The convicted individual would like the matter over with and, having to face the inevitable sentence which was negotiated and agreed to, would typically like to face it and move forward with his/her life.  Delaying the imposition of the sentence only protracts the period governed by bail conditions, and delays the onset of a finite period of supervision.  Nonetheless, the law has forbidden sentencing until the SVP assessment process was completed.  Such a delay makes even less sense when an SVP finding seems highly unlikely. 

Secondly, delaying a negotiated sentence months into the future carries with it the danger of confusion.  Assistant DA’s often circulate files to other colleagues, and sloppy attorneys may not memorialize an agreement properly.  The possible result is to revisit, and re-negotiate an agreement that seemingly was set in stone.  While there are proper methods of preventing such misunderstandings, the delay carries the potential for unnecessary complications. 

Third, a hypothetical SVP finding carries with it the danger of arousing a judge’s concern that a more severe sentence may be appropriate.  If the plea was not negotiated, or if the conviction resulted from a guilty verdict, an SVP classification would present itself as an aggravating factor and would only hurt one’s chances for a more moderate sentence.  As a result, it would usually be in such an individual’s best interest to be sentenced prior to an SVP ruling.  Having that said, an assessment which declares that an individual is not an SVP may serve as a mitigating factor for defense to argue in a sentencing hearing.  Delaying sentencing could carry other potential advantages.  For example, in a situation where an individual is in custody while the matter is pending and facing a state prison sentence, building up time credit is usually desirable.  Building up county credit may also help achieve a time served sentence or a ruling that a state prison sentence may be completed in the county.  If an individual is able to delay sentencing and prove a lengthier positive track record in the meantime, bolstered by documentation of beneficial treatment, a compelling argument may be created for a more lenient sentence in the end.  Such important calculation should be discussed with an attorney experienced in these matters. 

Fourth, an individual may withdraw a guilty plea prior to sentencing if it is determined that such a withdrawal is not prejudicial to the Commonwealth.  Therefore, delaying sentencing carries the possibility for an individual to plead guilty, learn that the assessment stated that he/she met SVP criteria, and attempt to promptly withdraw the guilty plea. 

On October 20, 2011, in Commonwealth v. Whanger (2011 WL 5008397), the Superior Court held that a convicted individual may waive the statutory requirement that an SVP assessment be conducted prior to sentencing, and that SVP determination may accordingly follow sentencing.  The sentencing court’s jurisdiction is reasoned to have been retained due to the interpretation of Megan’s Law reporting requirements as a collateral consequence to a sentence, and that therefore, an SVP order and determination would not modify a sentence itself.  It is important to note that nowhere is it implied that an individual may be forced to waive the statutory requirement.  Rather, the waiver is valid only if provided  knowingly, intelligently, and voluntarily.  Having that said, an individual may not properly waive the statutory requirement, and then later redeem the statutory language as a defense to an SVP classification.  The lesson, therefore, is that the waiver option is a new and useful strategy, but must be evaluated carefully prior to its implementation.