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Commonwealth v. Wisneski: A Driver Has a Duty to Stop When He Runs Over a Dead Body

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Commonwealth v. Wisneski, No. 5 WAP 2010 (September 29, 2011)

Wisneski ran over a fallen bicyclist with his vehicle. Although he realized after looking at his rear view mirror that he had hit a body, and not a speed bump as he originally thought, Wisneski did not stop or notify police. The bicyclist had been struck by more than one vehicle and died.

Wisneski was charged with failure to stop at an accident, failure to comply with a duty to give information and render aid, and failure to immediately notify the police.

He filed a habeas corpus petition seeking dismissal of the charges asserting that the Commonwealth cannot prove that the bicyclist was alive when he struck him. Concluding that the statutes required the victim be alive at the time of the accident, the Indiana County Court of Common Pleas granted Wisneski’s petition, and the Pennsylvania Superior Court affirmed. The Commonwealth appealed to the Pennsylvania Supreme Court.

Because statutory interpretation is a question of law, the Pennsylvania Supreme Court exercised a de novo standard of review.

Section 3742 of Pennsylvania’s Vehicle Code addresses accidents involving death or personal injury:

(a)  General rule.–The driver of any vehicle involved in an accident resulting in injury or death of any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of section 3744 (relating to duty to give information and render aid). Every stop shall be made without obstructing traffic more than is necessary.

Noting that the statute does not define “accident,” the Court concluded that its meaning is broad, and duration cannot be determined. The Court also pointed out that involvement does not require that a person cause the accident.

The Court found that the plain meaning of the word “injury” is also broad. The Court stated that the legislature intended for a person to stop if he damaged someone’s property, such as a bicycle. Therefore, the duty to stop certainly exists if a person damaged someone’s body, whether alive or dead.

Reversing the Superior Court, the Pennsylvania Supreme Court found that “injury” encompasses damage to a dead body, so all the obligations under the statutes apply even when the victim is deceased.

Commonwealth v. Hart: The Mere Offer of a Car Ride to a Child Is Not an Attempt to Lure

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Commonwealth v. Hart, No. 9 MAP 2010 (Pa. September 28, 2011)

Twice in one week, Hart, a 35-year-old man living in a residential area, offered two neighborhood boys a ride to school or at least as far as the local grocery store. Hart neither ordered their entry nor enticed them. The children declined on both occasions.

Hart was then charged with harassment, stalking, and attempted luring of a child into a motor vehicle. After a bench trial in the Delaware County Court of Common Pleas, he was convicted on four counts of attempted luring and sentenced to 18 months’ probation. As a result of his conviction, Hart was required to register as a sex offender for ten years under Pennsylvania’s Megan’s Law.

Hart appealed to the Pennsylvania Superior Court. Relying on its 1994 Commonwealth v. Figueroa decision, the Superior Court affirmed Hart’s conviction. Hart then appealed to the Pennsylvania Supreme Court.

Section 2910 of the Pennsylvania Crimes Code addresses luring a child into a motor vehicle:

(a) Offense.–Unless the circumstances reasonably indicate that the child is in need of assistance, a person who lures or attempts to lure a child into a motor vehicle or structure without the consent, express or implied, of the child’s parent or guardian commits a misdemeanor of the first degree.

(b) Affirmative defense.–It shall be an affirmative defense to a prosecution under this section that the person lured or attempted to lure the child into the structure for a lawful purpose.

Because statutory interpretation is a question of law, the Pennsylvania Supreme Court exercised a de novo standard of review.

Noting that neither the current nor previous versions of Section 2910 defined “lure,” the Court first turned to two apparently contradictory 1994 Pennsylvania Superior Court opinions: Commonwealth v. Adamo and Commonwealth v. Figueroa.

In Adamo, the Superior Court found that enticement beyond an offer of a ride to a child is necessary to constitute a lure. But shortly after in Figueroa, it held that an offer of a ride without more was sufficient.

The Court then looked at dictionary definitions of “lure” and concluded that luring requires inducement beyond the mere offer of a ride.

Rejecting Figueroa and concluding that Hart’s actions of offering rides without inducement did not constitute attempts to lure, the Pennsylvania Supreme Court reversed Hart’s conviction.

Commonwealth v. Johnson: Constructive Possession and Mandatory Minimum Sentencing For Drug Trafficking

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Commonwealth v. Johnson, No. 32 EAP 2009 (Pa. August 16, 2011)

Johnson sold one bundle of heroin packets to an undercover officer on June 16 and June 30. He then sold him two bundles on July 6 in separate sales. Before the last transaction, Johnson received the bundle from a man who had just retrieved it from the glove box of a parked Buick. Johnson was arrested, and the heroin stored in the Buick was later seized.

After a bench trial in the Philadelphia Court of Common Pleas, Johnson was found guilty of conspiracy, possession, and possession with intent to deliver. When calculating the total weight of heroin for sentencing purposes, the trial court included the heroin from all four sales and the heroin found in the other man’s Buick. Also considering Johnson’s previous conviction for possession with intent to deliver, the court applied the mandatory minimum sentence and sentenced him to three years’ imprisonment.

Section 7508 of the Pennsylvania Crimes Code addresses mandatory minimum sentencing for drug trafficking:

(a)  General rule.–Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply:

(7) A person who is convicted of violating section 13(a)(14), (30) or (37) of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance or a mixture containing it is heroin shall, upon conviction, be sentenced as set forth in this paragraph:

(i) when the aggregate weight of the compound or mixture containing the heroin involved is at least 1.0 gram but less than 5.0 grams the sentence shall be a mandatory minimum term of two years in prison and a fine of $5,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense: a mandatory minimum term of three years in prison and $10,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity;

* * * *

Johnson appealed to the Pennsylvania Superior Court. The court found that the heroin sold on June 16 and June 30 should not have been used in the calculation, but affirmed based on its finding that Johnson constructively possessed the heroin found in the Buick, and the combined weight for the three bundles still exceeded one gram. Johnson then appealed to the Pennsylvania Supreme Court.

Unlike the lower courts, the Pennsylvania Supreme Court concluded that Johnson did not constructively possess the heroin seized from the Buick because no evidence suggested that he had joint control over it or the ability or intent to exercise dominion over that heroin. The Court noted that no evidence showed any connection between Johnson and the Buick at all. Johnson was never observed in or near the Buick. He did not own the Buick, have a key or remote entry device, or have any ability to enter the passenger side or trunk. The court observed that Johnson had his own car, and only the man who retrieved the bundle from the Buick had a set of keys.

The Court also rejected the Commonwealth’s alternative theory of conspiratorial liability. The Court found no evidence of an ongoing conspiracy between Johnson and the Buick’s owner beyond that single transaction.

Because evidence was insufficient to show that Johnson constructively possessed the heroin from the Buick or that he engaged in a conspiracy, the Court found that the bundle was improperly included in the trial court’s calculation. Without that bundle, the total weight of heroin did not exceed one gram, therefore the imposition of the mandatory minimum sentence was improper. The Pennsylvania Supreme Court reversed and remanded for resentencing.

Commonwealth v. Clegg: The Inchoate Crime of Attempt Is Not A Qualifying Offense Under the Uniform Firearms Act

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Commonwealth v. Clegg, No. 18 MAP 2010 (Pa. August 16, 2011)

After a hunting incident in which he was found possessing two firearms, Clegg was charged with violating the Uniform Firearms Act because of his previous conviction for attempted burglary. The Perry County Court of Common Pleas dismissed the charge, and the Commonwealth appealed this decision to the Pennsylvania Superior Court.

The Superior Court reversed and remanded the case concluding that attempted burglary qualified as an offense under the Act’s savings clause. Clegg then appealed to the Pennsylvania Supreme Court.

Because statutory interpretation is a question of law, the Pennsylvania Supreme Court exercised a de novo standard of review.

Section 6105 (a) of the Pennsylvania Crimes Code defines the offense for persons possessing firearms:

(1) A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth.

Subsection (b) enumerates 38 offenses including “Section 3502 (relating to burglary).” The list is followed by the “savings clause”:

Any offense equivalent to any of the above-enumerated offenses under the prior laws of this Commonwealth or any offense equivalent to any of the above-enumerated offenses under the statutes of any other state or of the United States.

The Court stated that the statute was unambiguous and turned its attention to the list of enumerated offenses, specifically to the crime of burglary found in Section 3502:

A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.

The Court noted that burglary is defined as a completed act, not an attempt. In fact, attempt is a separate crime codified elsewhere in the Crimes Code. Section 6105 does not expressly address attempt. The Court also found that the parenthetical descriptions in the statute, such as “(relating to burglary),” were merely for convenience and did not imply the inclusion of the crime of attempt.

Concerning the savings clause, the Court explained that the prior statute’s inclusion of attempted burglary does not make it the equivalent of burglary under the current version.

Relying on Commonwealth v. Hoke, the Court also pointed out that clear and unambiguous penal statutes must not be interpreted broadly against a defendant’s interests “under the pretext of pursuing its spirit.”

In reversing the Superior Court, the Pennsylvania Supreme Court concluded that the inchoate (incomplete) crime of attempt (including attempted burglary) does not qualify as an offense under the Uniform Firearms Act. [Justice Eakin wrote a concurring opinion in which he stated that the inchoate crimes of criminal conspiracy and criminal solicitation also do not qualify as offenses under Section 6105.]

Commonwealth v. Zortman: An Inoperable Handgun Is a Firearm for Mandatory Minimum Sentencing Purposes

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Commonwealth v. Zortman, No. 11 WAP 2010 (Pa. July 19, 2011)

Zortman pleaded guilty to several drug charges including possession of a controlled substance with intent to deliver. These charges resulted from a search in which a handgun was found in close proximity to the drugs.  The Clearfield County Court of Common Pleas applied the mandatory minimum sentence in accordance with Section 9712.1 (“Sentences for certain drug offenses committed with firearms”) and sentenced her to five years’ imprisonment and three years’ probation.

After Zortman argued in her post-sentence motion that the mandatory minimum sentence should not apply because the handgun was inoperable without its firing pin, the court re-sentenced her to just nine months’ imprisonment and nine years’ probation.

The Commonwealth appealed to the Pennsylvania Superior Court which reversed the trial court. Zortman then appealed to the Pennsylvania Supreme Court.

Because statutory interpretation is a question of law, the Pennsylvania Supreme Court exercised a de novo standard of review.

Section 9712.1 expressly adopts the definition of “firearm” that is in Section 9712 (e):

“Any weapon, including a starter gun, which will or is designed to or may readily be converted to expel a projectile by the action of an explosive or the expansion of gas therein.”

The Court reasoned that “firing a bullet is the only true ‘designed’ function — in fact, the essence — of a handgun or ‘firearm,’” and the absence of part of a handgun does not make it lose its designed function. Therefore, in affirming the Pennsylvania Superior Court, the Court concluded that even though the loaded handgun’s missing firing pin caused it to be inoperable, it was still a weapon that was designed to fire a bullet, and thus a “firearm” under the statute.