00:00 - Hello.

00:01 - And a warm welcome to the fall

00:02 - 2022 term of the Supreme Court

00:04 - of Pennsylvania.

00:06 - As many of you know, the

00:07 - Supreme Court of Pennsylvania is

00:09 - a commonwealth,

00:10 - its highest court.

00:11 - The court decides cases

00:13 - that present new and

00:14 - interesting legal issues

00:15 - that are important

00:16 - to the public.

00:17 - A Supreme Court decision

00:19 - in the case is most often final.

00:21 - It also provides binding

00:23 - guidance to lower courts

00:24 - that are considering

00:26 - similar cases.

00:27 - The Supreme Court generally

00:29 - does not rule on a case

00:30 - in the first instance.

00:32 - Its role is to review

00:33 - whether the lower court

00:34 - made a mistake that affected

00:36 - the outcome of the case.

00:38 - My name is Andrew Lydecker.

00:40 - I am appellate counsel at Klein

00:41 - and Spector in Philadelphia.

00:43 - Today, I am providing

00:44 - brief introductions

00:46 - to each of the cases for the

00:47 - Supreme Court of Pennsylvania.

00:49 - We'll be hearing during

00:51 - the September 2002 session.

00:53 - With that, let's look

00:55 - at the first case up.

00:56 - Commonwealth versus Perron.

00:59 - In November of 2007, Dantas

01:01 - Perron and two other men

01:03 - called for a pizza delivery

01:05 - when the pizza arrived.

01:07 - The three men dropped the

01:08 - delivery person at gunpoint.

01:11 - The victim identified

01:12 - all three men from a photo

01:13 - array the day after the robbery,

01:15 - including Mr. Parent.

01:18 - Police arrested Mr.

01:19 - Parent and charged him

01:20 - with robbery, conspiracy

01:21 - and related crimes.

01:23 - One of the witnesses who

01:25 - testified at trial against Mr.

01:27 - Perron was Linwood Perry,

01:29 - one of the other robbers.

01:32 - In September 2010,

01:33 - a jury convicted Mr.

01:35 - Perron on all charges,

01:37 - so he appealed

01:39 - while the case was on appeal.

01:41 - Linwood Perry, who had

01:43 - also been involved in the pizza

01:45 - delivery robbery, told

01:46 - his cellmate that Mr.

01:48 - Perron was not

01:49 - one of the robbers.

01:51 - Mr. Parent informed the

01:52 - Superior Court in his brief.

01:55 - The Superior Court ordered

01:56 - the trial court to look

01:57 - into this new information.

01:59 - The trial court

02:00 - then held a hearing.

02:01 - Unfortunately, Linwood

02:03 - Perry refused to testify

02:04 - and exonerated Mr. Parent.

02:06 - The trial court

02:07 - decided that without Mr.

02:09 - Perry's exonerating testimony,

02:10 - the available information

02:12 - was not enough

02:13 - to justify a new trial.

02:15 - On further appeal,

02:17 - the appellate court

02:18 - ordered a second hearing.

02:21 - After some delays

02:22 - in February 2020, Mr.

02:24 - Perrin and the Philadelphia

02:25 - District Attorney's Office

02:27 - submitted to the trial court

02:29 - an agreement about Lynwood

02:30 - Perry.

02:32 - They agreed that Linwood Perry

02:34 - lied on the stand

02:36 - when he identified Mr.

02:37 - Perron as a robber.

02:39 - The Philadelphia District

02:41 - Attorney's Office also said that

02:43 - Linwood Perry's

02:43 - testimony would not be offered

02:45 - by that office at any new trial

02:47 - for Mr. Parrott.

02:49 - The trial court

02:50 - rejected the agreement

02:51 - as sufficient basis

02:52 - for a new trial.

02:54 - On further appeal,

02:55 - the Superior Court

02:56 - affirmed the trial

02:56 - court's decision.

02:58 - Shortly, you will hear speeches

03:00 - from counsel specially prepared

03:02 - for the Supreme

03:02 - Court of Pennsylvania.

03:04 - The speeches are an opportunity

03:06 - for counsel to focus the court

03:08 - on the important facts

03:09 - and arguments in the case.

03:11 - The court may also ask

03:12 - questions of the attorneys.

03:14 - Counsel for Mr.

03:15 - Perrin will argue that the

03:17 - trial court made a mistake

03:19 - to reject his agreement

03:20 - with a district attorney.

03:22 - The District

03:23 - Attorney supports Mr.

03:24 - Perrin, the office of the

03:25 - Attorney General will be

03:27 - stepping in for the Commonwealth

03:29 - to argue against a new trial.

03:31 - Here is Commonwealth

03:32 - versus Perrin.

03:33 - Let's listen.

03:39 - You are the Chief Justice and

03:40 - justices of the Supreme Court.

03:42 - West Virginia.

03:46 - Okay, so we're

03:48 - all here versus our officers

03:51 - who otherwise have to work it

03:54 - out here in this county

03:55 - or Scottish council.

03:57 - And so.

04:09 - Good morning to all.

04:10 - Welcome.

04:12 - We begin our fall session

04:14 - after a long, busy summer

04:16 - here in the City

04:17 - of Brotherly Love.

04:19 - Glad to be with you all.

04:20 - We have a

04:22 - today's not an

04:23 - especially difficult

04:24 - loss, but over the three

04:25 - days a long and difficult list,

04:27 - challenging cases.

04:28 - So we look forward to them,

04:31 - Brian, which I like

04:32 - to call the first case.

04:34 - So center

04:40 - Thursday

04:45 - general's office. Ms..

04:49 - Snyder It's, it's

04:50 - our protocol that I usually

04:52 - do a very short introduction.

04:54 - So to make

04:56 - my stand there feel

04:57 - free to stand there.

04:59 - It's just to make sure

05:00 - that we're a hot court as is

05:02 - I think our direction say

05:04 - and it makes sure that

05:07 - counsel in the court

05:08 - or on the same page

05:10 - so that you don't

05:10 - bother with facts and and argue

05:12 - the law and we can get into it

05:15 - and figure out what's going

05:16 - on and get ready to make

05:17 - a decision.

05:22 - In this case, appellant was

05:24 - convicted of multiple charges

05:26 - with two other defendants

05:27 - in a robbery at trial.

05:28 - One of his co-defendants

05:29 - testified that appellant

05:31 - was involved, but then

05:34 - that codefendant

05:35 - later recanted, telling

05:37 - a jailhouse informant

05:39 - the cellmate, that

05:40 - appellant was not involved.

05:43 - After further proceedings,

05:44 - appellant's case was set

05:45 - for a hearing on his

05:46 - motion for a new trial.

05:48 - Appellant and the

05:49 - the Philadelphia DA's

05:51 - office stipulated jailhouse

05:53 - informant would testify that

05:55 - the defendant was not

05:56 - involved in the robbery

05:58 - and that the

06:01 - informant's testimony

06:02 - would be credible.

06:04 - While the trial judge accepted

06:06 - that stipulation for its limited

06:08 - view, he indicated that a

06:10 - hearing was still necessary

06:12 - to allow him to judge

06:14 - the informant's credibility

06:17 - and to consider

06:17 - the impact of that.

06:18 - On appellant's

06:19 - motion for a new trial.

06:20 - Notably, the Superior

06:22 - Court also returned the case

06:24 - for a hearing appellant's

06:25 - counsel refused to call witness.

06:28 - Trial court found appellant

06:29 - did not meet his burden of proof

06:32 - and dismissed the

06:33 - motion for a new trial.

06:35 - Appellant now appeals,

06:36 - arguing that the trial court

06:38 - abused its discretion.

06:40 - I suppose committed

06:41 - an error of law in requiring

06:43 - a hearing and dismissing

06:45 - the motion for new trial.

06:47 - When counsel

06:47 - refused to participate.

06:50 - So if that's about it,

06:51 - go ahead and tell us

06:52 - why the trial court

06:53 - made a mistake.

06:54 - May I please this

06:55 - honorable court?

06:56 - My name is Marty Snyder,

06:56 - and I have had the pleasure

06:58 - of representing Dante's parents

07:00 - since September 15th of 2006.

07:03 - The six years of worry and

07:04 - work that I've put

07:05 - into thoughtfully

07:06 - and zealously representing

07:07 - my client leads me

07:08 - to feel exasperated

07:09 - at being back in the

07:10 - appellate courts again

07:11 - after finally having

07:12 - convinced the district attorney

07:14 - that we had been

07:15 - right all along,

07:16 - that my client should

07:17 - get a new and a fair trial.

07:19 - As far as being on the

07:20 - same page with the Court,

07:22 - I take issue

07:22 - only with a few things in

07:23 - the summary of the facts

07:24 - that the Chief

07:25 - Justice just gave.

07:26 - I don't consider what Lynnwood

07:29 - Perry said a recantation

07:31 - because he never expected

07:32 - his conversation with

07:33 - Curtis Brown to come to light.

07:36 - It was spontaneous that

07:37 - gives it more credibility.

07:39 - Although if he had

07:40 - testified and said that,

07:42 - it would have given

07:43 - it as the trial judge

07:45 - an opportunity to

07:46 - assess that correct?

07:47 - I did not expect Mr.

07:49 - Lynnwood Perry,

07:50 - who I believe is not really

07:51 - a rehabilitated person

07:53 - who had been truthful

07:54 - in the first matter,

07:55 - to come

07:55 - to court, in the trial court

07:57 - and say that he had lied to us.

07:59 - In fact, I expected

08:01 - that if he did, in fact,

08:02 - have the courage to

08:03 - get onto the video screen,

08:05 - he probably would have said

08:06 - that he did nothing of the sort.

08:07 - He probably would have

08:08 - screamed about

08:09 - his federal sentence

08:10 - being higher than he

08:11 - thought it was going to be.

08:12 - And I still would

08:13 - have had to put Mr.

08:14 - Curtis Brown up in

08:15 - order to rebut that.

08:17 - Also, the stipulation that

08:19 - was entered was significant

08:22 - in that it covered many

08:24 - things, not just that Mr.

08:26 - Brown would have

08:26 - come in and said that Mr.

08:28 - Lynwood Perry

08:29 - had revealed that he had

08:30 - lied about Dante's Perrin.

08:32 - Instead, Mr.

08:33 - Curtis Brown would

08:35 - have come in to repeat

08:36 - consistently the statements

08:39 - that he gave in 2011,

08:41 - 2009, 2017

08:46 - and the testimony

08:46 - that he gave under oath

08:48 - when subject

08:49 - to cross examined

08:49 - by the District

08:50 - Attorney's Office,

08:51 - who had qualms and doubts,

08:53 - having not talked to him

08:54 - in person and investigated

08:56 - the case carefully.

08:58 - Did you ever give a reason

09:01 - in front of Judge Campbell

09:03 - that because I didn't see it

09:05 - as to

09:07 - as to why you couldn't call

09:09 - witnesses at that hearing.

09:11 - I did not.

09:12 - And I also wouldn't have used

09:13 - the words, couldn't have called.

09:15 - Well, you did decline,

09:16 - right? I declined, yes.

09:17 - And how are we to find

09:22 - that the trial court

09:23 - abused its discretion

09:26 - in this case when

09:28 - the higher court,

09:29 - the superior court, had told it,

09:32 - it had to conduct a live hearing

09:35 - and that a cold record

09:36 - was not adequate.

09:37 - How can how can that

09:38 - be an abuse of discretion?

09:40 - Because when the

09:41 - Superior Court had given

09:43 - that remand

09:44 - instruction to the PCI

09:46 - record of the trial court level,

09:48 - they had given

09:48 - that under the understand

09:50 - that this was a disputed hearing

09:52 - where we would

09:53 - continuously talk about how

09:55 - the district attorney believed

09:57 - that Mr. Brown was lying.

09:59 - That the district attorney

10:00 - didn't have enough

10:00 - information to

10:01 - determine that Mr.

10:02 - Brown was telling the truth.

10:03 - And honestly, at that

10:05 - point, they were fighting hard

10:07 - about the fact that Mr.

10:08 - Brown was lying,

10:09 - not really noticing that

10:10 - in their own transcript

10:11 - from that evidentiary

10:12 - hearing in thousand and 17,

10:14 - their proposed

10:15 - impeachment fell flat.

10:17 - So just one brief

10:19 - follow up question,

10:21 - because I'm not asking about

10:23 - cases globally or or universe of

10:25 - cases, but about this case

10:28 - here.

10:31 - The this the relevant part of

10:32 - the superior court's opinion

10:34 - said so that the trial court

10:36 - need not rely on a cold record

10:38 - to make its credibility

10:40 - determinations here.

10:42 - You're telling me that you

10:46 - and the DA's office

10:47 - had made a joint

10:49 - credibility determination,

10:50 - and instead of the trial court

10:52 - making one

10:53 - that you two were

10:54 - allowed to make it

10:55 - for the trial court,

10:56 - and that the trial court

10:57 - would abuse its

10:58 - discretion and said

11:00 - if it if it had said, as it did.

11:02 - You know what?

11:02 - Thanks, folks,

11:03 - but I'm going to make my

11:04 - own credibility determination.

11:07 - So in this case, how can

11:08 - that be an abuse of discretion?

11:10 - Well, yes and no, Your

11:11 - Honor, because I do dispute

11:13 - some of those facts

11:14 - at the time that the superior

11:16 - court made the remand.

11:17 - There was still that dispute.

11:21 - At that point, I

11:22 - really read that

11:27 - edict

11:27 - from the superior court

11:29 - as saying there is an issue

11:31 - here is how to resolve

11:32 - that where there is an issue.

11:34 - By the time we came back

11:35 - in front of the PC record,

11:37 - there had been an ordering of

11:39 - the notes that there had been

11:41 - an investigation

11:42 - independent for each party

11:44 - because I did not participate

11:46 - in the DA's office

11:46 - investigation.

11:47 - Despite some of the claims

11:48 - that amicus counsel has made

11:50 - as to what they were

11:52 - now willing to stipulate

11:53 - to the fact that

11:55 - we're stipulated

11:56 - to were the facts that

11:57 - would have come out

11:58 - at another hearing

11:58 - and the facts that had

11:59 - come out of the next counsel.

12:02 - I want to follow up on

12:03 - Justice Wicks question.

12:04 - The issue here is, did

12:06 - did Judge Campbell

12:08 - are we going to find whether

12:09 - he abused his discretion

12:11 - yet he followed our

12:12 - decision of matter versus do?

12:15 - Cain may two years ago

12:17 - that litigants can resolve

12:19 - certain issues but not

12:20 - business of the court.

12:22 - Therefore, he observed

12:23 - the Order of Superior Court,

12:25 - which directed a

12:27 - full fledged hearing.

12:29 - Tell me how he

12:30 - abused his discretion

12:33 - by obeying our rule.

12:35 - I think it is the

12:36 - blanket refusal

12:37 - that was an abuse of discretion

12:40 - to consider the documents

12:42 - that had been stipulated to

12:43 - and that were in front of him.

12:44 - There is no.

12:46 - Excuse me

12:47 - the exact language that

12:48 - this court, all seven of us,

12:50 - that you're asking us to find

12:51 - that Campbell abused

12:53 - his discretion, said litigants.

12:55 - You can resolve

12:58 - certain

12:58 - issues, but not

12:59 - business of the court.

13:02 - Are you now

13:02 - sharing with us that the

13:04 - order of the Superior Court

13:06 - remanding for a

13:07 - full and fair hearing

13:09 - is not business of the court,

13:11 - and that you and your partner,

13:13 - the District Attorney's

13:14 - Office, have a right

13:15 - to supersede the order

13:17 - of the superior court.

13:18 - Is that what you're

13:19 - sharing with us?

13:19 - No, no, Your Honor,

13:20 - I don't believe so.

13:21 - I read the Superior Court's

13:23 - order to be to resolve the issue

13:25 - in a just way.

13:26 - And excuse me, when it just

13:28 - way did it say

13:29 - just way or did it

13:31 - say remand for a full hearing?

13:33 - It's very specific question.

13:35 - I don't know what, your honor.

13:36 - I guess I had considered

13:37 - that the Superior Court saying

13:39 - that the record can't be

13:41 - called that a credibility

13:42 - determination needs to be

13:44 - made was the actual command

13:46 - rather than the full hearing.

13:48 - Was the word a full hearing

13:49 - in the language of the remand?

13:51 - Yes, but they were okay.

13:52 - I'm sorry, Judge.

13:53 - They did go on to say that

13:55 - the purpose of such a hearing

13:56 - would be to make a

13:57 - credibility determination.

13:59 - SNYDER It doesn't

14:00 - appear that it goes

14:01 - well for you here and

14:03 - I'm with my colleagues

14:06 - being really candid.

14:07 - This smells bad.

14:09 - I mean, it looks

14:11 - and I'm

14:11 - not accusing

14:12 - anybody of anything, but it has

14:14 - an appearance of skullduggery.

14:16 - It has an appearance that a D.A.

14:20 - who is

14:20 - and I mean,

14:21 - this was greatest respect,

14:22 - but is somewhat notoriously

14:24 - friendly to defendants.

14:26 - And defense counsel

14:27 - wanted to keep this case

14:28 - away from the trial judge.

14:30 - And, you know, and I was

14:31 - a trial judge for 13 years.

14:33 - Judge Daugherty Judge, what?

14:34 - We're trial court judges.

14:36 - We're not potted plants.

14:38 - We're there to make

14:39 - sure justice is done.

14:41 - The judge said, Here,

14:42 - I need to hear the case.

14:45 - You're not seriously

14:46 - arguing to this court

14:47 - that the judge just doesn't

14:48 - have the authority to do that?

14:50 - Not exactly, Judge,

14:51 - but what I'm saying is

14:52 - that it should be the

14:54 - ability of the parties

14:56 - to stipulate in order to keep

15:02 - to keep doing

15:03 - that, to keep letting

15:04 - the court do its business,

15:06 - its actual business, and

15:07 - making those decisions.

15:08 - And that's why we're

15:08 - allowed to stipulate

15:09 - to certain facts and

15:10 - certain, but not why.

15:11 - Didn't

15:12 - you go forward with

15:13 - a hearing with that

15:14 - stipulation on your record?

15:16 - And then we could be here

15:17 - with a very different

15:17 - scenario than we have now?

15:19 - Yes. Counsel

15:21 - and in follow up to the

15:22 - Chief Justice's point,

15:24 - even if everyone is acting

15:26 - with the utmost good faith

15:28 - and there is no skullduggery

15:29 - and people are just trying to do

15:32 - exactly what the rules prescribe

15:35 - in what the Superior

15:36 - Court directed them to do.

15:38 - Can you at least acknowledge

15:40 - that there is a big difference

15:42 - between a stipulation of facts

15:44 - and the stipulation

15:45 - that encompasses

15:46 - credibility determinations?

15:47 - And I think that's what

15:48 - we're struggling with here,

15:50 - because if the judge

15:52 - was presented with

15:54 - a stipulation of facts,

15:56 - the incident occurred

15:58 - on the corner of Sixth

15:59 - Avenue and Ninth Street.

16:02 - You know, we all

16:03 - can agree, okay?

16:04 - The judge can accept

16:05 - that without any problem.

16:07 - No evidentiary hearing

16:08 - needs to take place.

16:09 - It's a stipulation of facts.

16:11 - But when the stipulation

16:13 - encompasses credibility

16:14 - determinations and who said what

16:18 - and what actually happened,

16:20 - what scenario took place,

16:23 - who is to be believed

16:24 - over someone else?

16:25 - I don't understand how we

16:27 - can ever say that stipulation

16:29 - was accepted by the trial

16:31 - judge for his consideration

16:33 - has to be accepted as fact.

16:37 - And that's where

16:38 - I'm hung up on this.

16:40 - Accepting the stipulation

16:42 - and why the judge was not free

16:44 - to do as the Superior Court

16:45 - directed conduct a

16:47 - full evidentiary hearing.

16:49 - I now have

16:51 - five questions in front of me,

16:52 - so I'm going to do maybe one.

16:54 - I thought that, but I think

16:55 - they are all the central themes.

16:56 - So we'll be quiet and I'll

16:57 - let you answer. Thank you.

17:00 - I do believe that

17:03 - the abuse of discretion here

17:04 - was not even considering

17:05 - the stipulations in

17:06 - the joint memorandum,

17:07 - because had they be considered,

17:09 - it would have been clear that

17:10 - they were appropriate, that

17:12 - they were actually almost

17:14 - as simple as a

17:16 - factual stipulation.

17:18 - We were just noting the facts

17:20 - and how often they

17:21 - had been testified to

17:23 - in order to explain we

17:25 - both think they're credible.

17:26 - So if you break it down,

17:27 - really what we were saying is

17:29 - this is what Curtis

17:30 - Brown would say.

17:31 - And now he's said

17:32 - it this many times.

17:33 - And we're

17:33 - not going to ignore

17:34 - that in our stipulation

17:35 - and just say this is

17:36 - what he was going to say.

17:38 - We're going to say this

17:39 - is what he said in 2011.

17:41 - This is what he said then.

17:42 - This is what he said under oath.

17:44 - This is what he said

17:45 - under oath, subject

17:46 - to cross-examination

17:48 - at a full hearing,

17:49 - where I actually said

17:50 - on the record sometimes

17:51 - when something was

17:52 - objected to by opposing counsel,

17:54 - Your Honor,

17:55 - I need to put

17:56 - enough on the record

17:57 - for credibility

17:58 - determinations to be made.

17:59 - So what we stipulated

18:01 - to are the facts,

18:03 - and that he said it over

18:04 - and over and over again,

18:06 - and that he is met in

18:09 - with the district

18:10 - attorney's staff without me,

18:12 - without other counsel, and that

18:13 - they found him to be credible.

18:15 - That they found

18:16 - him to be credible.

18:18 - If I litigate a motion

18:20 - to suppress, for

18:21 - instance, in court

18:22 - and I lose and I want

18:23 - to preserve my client's

18:24 - appeal rates,

18:25 - I stipulate to the admission

18:26 - of the record from

18:27 - the motion to suppress

18:29 - minus any inadmissible evidence.

18:31 - And we both rest.

18:33 - Unless I've actually

18:34 - alerted the district attorney

18:36 - to some sort of

18:36 - sufficiency argument

18:37 - that I plan to present.

18:39 - The judge says guilty,

18:40 - and we move on to

18:41 - sentencing and appeal.

18:42 - The defense uses stipulations

18:44 - in criminal law all of the time,

18:46 - and the parties have to be

18:48 - transferred with one another.

18:50 - That and then as we are,

18:51 - they're transparent

18:52 - with the court.

18:53 - That's why there's no funny

18:55 - business going on and there.

18:56 - But Counsel,

18:57 - we don't allow experts to speak

18:59 - to the ultimate issue of case.

19:02 - But you're asking us to accept

19:04 - the ultimate issue

19:05 - that being believable

19:06 - are not the

19:06 - credibility of a witness

19:08 - to be determined by the district

19:09 - attorney's office and

19:10 - the public defenders.

19:12 - Share with me how

19:13 - that can grow in.

19:15 - I'm not at the public

19:15 - defender's office

19:16 - just for clarity, but I am

19:17 - appointed in this matter.

19:19 - And it's it's because

19:22 - the parties bargained

19:24 - for that, investigated

19:25 - it, were transparent

19:26 - with our investigation,

19:28 - had someone on the record

19:29 - under oath multiple times.

19:31 - And also because

19:33 - ten years later,

19:36 - putting on a hearing would have,

19:39 - I would think, less of an

19:41 - effect on the fact finder.

19:43 - Where did Campbell

19:44 - abuse his discretion

19:46 - by requiring a hearing?

19:47 - So he, as the trier of fact,

19:49 - could make a determination

19:51 - as to credibility?

19:52 - Share with me what did he do?

19:54 - Was it when he said, no, I'm

19:56 - not allowing you to stipulate.

19:58 - I want to hear that which

20:00 - I was duly elected to do?

20:02 - Is that what his abuse

20:03 - of discretion was doing?

20:04 - His job.

20:05 - And that's, of course,

20:06 - what the judge to do his job.

20:08 - But I do think that

20:09 - by not considering

20:10 - those stipulated to facts,

20:12 - that but that was good counsel.

20:13 - And again,

20:14 - I'm following up on

20:15 - Justice Daugherty,

20:15 - and maybe we're beating a

20:17 - dead horse here to two things.

20:19 - First of all,

20:22 - it was not Brown's

20:24 - credibility that the trial judge

20:26 - had ultimately determined.

20:28 - It was Mr.

20:29 - Parents who had come into

20:30 - testimony, come in to testify.

20:32 - I'm sorry, not

20:33 - Mr. Perry, Mr. Perry, Mr.

20:35 - Perry, who had come into

20:36 - court and testified against Mr.

20:38 - Parent. Right.

20:39 - It I'm sorry.

20:40 - Say it again at trial.

20:42 - Codefendant was Perry.

20:44 - Yes, at trial it was

20:45 - Mr. Perry's testimony. Right.

20:46 - So so ultimately, we

20:48 - have to decide if Perry

20:50 - was lying in the courtroom

20:52 - when he implicated parent.

20:56 - No, I don't believe so.

20:57 - I believe that

20:59 - the the judge has

21:00 - to decide whether Mr.

21:03 - Brown is credible in the

21:05 - story that he heard Mr.

21:07 - Perry say that he lied on Mr.

21:09 - Perron

21:10 - and that if the fact finder had

21:12 - heard that evidence from Mr.

21:13 - Brown at the original trial,

21:15 - he would

21:16 - then have significant

21:17 - doubts and the result

21:19 - would have been different.

21:20 - But as I see,

21:21 - and if you don't see it,

21:23 - that's fine, I will move on.

21:24 - Don't you see that?

21:26 - That you're answer that

21:27 - if the trial judge is heard,

21:29 - had accepted the stipulation

21:31 - that Brown was credible

21:32 - and Brown heard it from Perry,

21:34 - that doesn't

21:34 - answer the ultimate question,

21:36 - which was whether or not Perry

21:38 - was credit, whether

21:39 - Perry was lying when he

21:41 - spoke in the courtroom or

21:42 - lying when he spoke to Brown

21:44 - and and the trial judge has

21:46 - to see has to see something

21:48 - more than Brown saying,

21:50 - well, I'm convinced

21:51 - I'm credible.

21:52 - Brown might be credible.

21:54 - That doesn't mean

21:55 - that Perry was not lying

21:58 - when he spoke to him.

21:59 - But Brown can still be credible.

22:01 - Perry's the one that has to

22:02 - be credible or not credible.

22:03 - Right. But Mr..

22:05 - I guess I'm confused because Mr.

22:06 - Perry was not coming

22:07 - to this hearing either way.

22:09 - So if if you're saying that

22:12 - we can can deduce

22:13 - from the record that Mr.

22:15 - Brown is credible, then

22:16 - we why would I recall Mr.

22:18 - Brown when I've offered

22:20 - when I've been offered

22:21 - a well investigated.

22:22 - Let me. Ask you. One.

22:24 - Did you finish that answer?

22:26 - Step one. Okay.

22:27 - I wanted to ask you one more

22:28 - question and then I'm done.

22:29 - I promise.

22:31 - You didn't say

22:33 - if my notes are correct.

22:37 - You didn't say that.

22:38 - Well, this case can be

22:39 - resolved on what we had.

22:41 - You said

22:44 - it would be against my client.

22:48 - And your client is Perry.

22:50 - It would be against

22:51 - my client's best interest

22:53 - to call a witness here.

22:55 - What?

22:55 - I don't know what that means.

22:57 - So I guess. I guess.

23:00 - I don't think it does.

23:01 - But in in a pragmatic sense,

23:03 - it raises an adverse inference

23:06 - that if you put

23:06 - Brown on the witness

23:07 - stand, things aren't

23:08 - going to go well for you.

23:09 - Oh, I that does not

23:10 - at all what I meant

23:12 - as an experienced lawyer.

23:13 - I would much rather

23:14 - rely on a stipulation

23:15 - like this one,

23:16 - which is well

23:17 - investigated by each party,

23:18 - independently containing

23:19 - facts fleshed out

23:20 - during a full day evidentiary

23:21 - hearing with the witnesses

23:22 - under oath and subject

23:23 - to cross-examination

23:25 - and transparent in its

23:26 - reasoning and request

23:27 - then to call

23:28 - citizen to the stand.

23:29 - Almost a decade later,

23:30 - to recount a short conversation

23:32 - with Lynwood, Perry,

23:33 - and a short conversation

23:34 - with Agent Majority

23:35 - and authenticate and adopt

23:36 - two more written statements

23:38 - that were practically

23:39 - reproduced in the stipulation.

23:40 - Already,

23:41 - this court acknowledges

23:42 - the gantlet that litigation

23:43 - can be especially unnecessary

23:45 - litigation, despite the hassle

23:47 - for Curtis Brown Dantas

23:49 - Perrin, the backlogged

23:50 - first judicial district

23:52 - and and yours truly.

23:54 - It really shouldn't

23:55 - be a necessary step

23:56 - for Dante's parent, whose

23:57 - freedom has been impeded

23:59 - by wrongful conviction

24:00 - for all these years.

24:01 - He shouldn't have had the

24:02 - conviction in August of 20,

24:04 - August 25th of 2017, and

24:05 - it shouldn't stay with him

24:06 - any longer.

24:08 - My frustration is that we

24:09 - are in fact back and forth

24:12 - now to the first.

24:13 - Now, can I can

24:15 - I go in a different

24:15 - direction real quickly?

24:17 - First of all,

24:18 - this is the first

24:19 - time in my years

24:19 - as a judge where I've heard

24:21 - skullduggery in open court.

24:22 - So that's exciting for me.

24:24 - I might try to use it some

24:25 - other time in your career.

24:27 - On Commonwealth

24:27 - Court, there was no. Scuffle,

24:29 - there was no skullduggery

24:31 - in Commonwealth Court, no.

24:33 - Maybe there was.

24:35 - So I just have a quick

24:36 - factual clarification.

24:38 - QUESTION You mentioned Pecora.

24:40 - This is a direct appeal,

24:41 - right? We're not in PCR.

24:42 - Yes, I'm sorry. Okay.

24:44 - We are in direct appeal.

24:46 - I think I got thrown off because

24:47 - we've been talking about

24:48 - after discovered

24:49 - evidence for so many years

24:50 - and in fact, that was

24:51 - before I was, you.

24:51 - Know, because this was

24:52 - this was a bench trial,

24:54 - criminal bench trial conviction.

24:56 - Where were the

24:57 - witnesses were resolved

24:58 - in favor of the Commonwealth

25:00 - and a conviction occurred? Yes.

25:02 - There are some important things

25:03 - to note, though, as your honors

25:04 - are making the

25:05 - decision about that.

25:06 - The trial court judge did

25:08 - note that he had qualms about.

25:11 - Yes, I'm aware of the alleged

25:15 - weaknesses of the of

25:16 - the prosecution's case.

25:18 - I get that.

25:18 - My question is, let's let's say

25:20 - let's say things aren't going

25:21 - well for you here.

25:22 - And let's say at

25:23 - the end of the day,

25:25 - this court might conclude

25:28 - that there was no abuse of

25:29 - discretion by the trial court

25:31 - judge here on remand

25:32 - from the Superior Court.

25:35 - I am taken a little bit by your

25:37 - passion and your concern

25:39 - for your client,

25:40 - and despite the fact

25:42 - that you were given numerous

25:43 - opportunities, I'm assuming

25:44 - your trial counsel as well.

25:46 - Oh, no, that's what I mean.

25:48 - I accused whoever the count.

25:50 - Direct appeal counsel.

25:51 - Whoever whoever

25:52 - the counsel is that's

25:53 - handling the actual proceeding

25:54 - in front of the trial was

25:55 - given numerous opportunities,

25:58 - I think maybe three

25:59 - opportunities to present

26:01 - testimony on remand and refused.

26:05 - I'm still sensitive to your

26:06 - passion for your client,

26:07 - insisting that your client

26:08 - is nonetheless innocent

26:09 - and wrongly convicted.

26:11 - If we send it back again

26:14 - for a fourth time,

26:17 - will trial counsel

26:18 - for the defendant

26:21 - go forward and comply

26:22 - with the directions

26:23 - of the trial court judge in the

26:24 - Superior Court on remand?

26:26 - Yes, that was me.

26:27 - I'm sorry, I, I then confused

26:29 - where your Honor was going

26:30 - with the procedural history.

26:32 - And yes, I'll track

26:33 - down Curtis Brown

26:34 - of all the Curtis

26:35 - Browns in the city

26:36 - I did last time with

26:37 - an investigator.

26:38 - And I will beg him

26:39 - that even though

26:39 - he's put this behind him

26:41 - and it's been all these years,

26:42 - please come to

26:43 - court and testify.

26:43 - Truthfully, I just

26:45 - as an attorney,

26:48 - putting a witness on

26:49 - the stand multiple times,

26:52 - a witness who

26:53 - has indicated to me

26:54 - that he is sick of coming,

26:56 - a witness who in the record

26:57 - did not make it that day.

26:59 - I had to call the witnesses

27:01 - out of order because he still

27:03 - didn't want to have

27:04 - to come back to court.

27:06 - He has had people

27:07 - in the neighborhood

27:09 - talk to him about

27:10 - parties being around.

27:12 - I'll do all of that.

27:13 - And I could have done it before,

27:15 - except I was offered a really

27:20 - smart

27:21 - stipulation for

27:22 - my client to accept

27:24 - because of all the work

27:25 - that I had put in for years

27:26 - while they were fighting me.

27:28 - And then when I

27:29 - finally convinced them,

27:30 - finally convinced

27:32 - them that I was right,

27:33 - that Curtis Brown

27:34 - was telling the truth,

27:35 - that Dantas parent is innocent,

27:37 - I finally get my day where

27:38 - we all agree and I'm back here.

27:40 - But you, I will do

27:41 - anything. Forgive it.

27:43 - Could I follow up there?

27:45 - But you then you were given

27:46 - your superior court

27:48 - gave you your day.

27:50 - And when the court

27:51 - called for Brown's testimony

27:54 - and you had you were

27:55 - you had found him or

27:57 - sponsored him or whatever,

27:59 - you declined to

28:00 - present him and said

28:02 - it was against your

28:03 - client's best interest.

28:05 - And how how is it that

28:08 - you can convince us

28:13 - that the court has

28:14 - to be bound by that,

28:15 - that the court can't say,

28:17 - you know, that's strange.

28:19 - I think I'm going to

28:20 - hear the testimony.

28:21 - The superior court

28:23 - told me and to hear and

28:24 - make my own decision.

28:26 - How can that be an

28:28 - abuse of discretion?

28:29 - Because it was already

28:31 - because of the nature

28:32 - of the stipulations,

28:33 - because I thought that the

28:34 - law said that seems. A lot.

28:35 - Like it was the right way.

28:36 - It seems a lot like just

28:37 - one brief follow up to it.

28:39 - When you say that

28:42 - it seems to sound a

28:43 - lot like the Brown case,

28:45 - albeit in a different

28:47 - context on the,

28:48 - you know, the

28:49 - confession of error case,

28:50 - because it seems

28:51 - like just like that case,

28:53 - you and the DA's office

28:55 - want to tell the courts

28:57 - how to conduct their business.

28:59 - And it seems a lot.

29:02 - Just maybe to follow up on

29:04 - the chief's insight,

29:05 - it is like you.

29:07 - It seems to look a lot like

29:09 - the tail wagging the dog

29:10 - and and there does come

29:12 - a time, it seems to me,

29:14 - when the court gets to make

29:17 - make its judgment,

29:18 - particularly whereas here

29:20 - it was told by the

29:21 - superior court to make its

29:23 - credibility determination, given

29:24 - that it was a new trial judge.

29:26 - So, Miss Snyder,

29:27 - what we're going to do

29:28 - is answer Justice Lex question

29:29 - and then Justice O'Connor,

29:31 - who has a final question for

29:32 - you and we're going to move on.

29:33 - So go ahead.

29:34 - I think that this case

29:35 - is a little bit different,

29:37 - the analogy of the

29:38 - tail wagging the dog,

29:40 - because in this case, there were

29:42 - there were ample

29:43 - fact finding missions

29:45 - all over between the the FBI,

29:48 - the written statements

29:49 - that were entered

29:50 - into evidence, the testimony.

29:52 - And so that is why I honestly

29:55 - did not realize the or did not

29:59 - think that we were taking

30:00 - business from the court.

30:01 - But making things

30:02 - easier for the court is because

30:04 - this was a robust record

30:06 - where we were finally agreeing.

30:08 - I finally got through

30:09 - to someone.

30:09 - That's really why that

30:11 - this had such a record.

30:13 - We already had all

30:14 - these things down.

30:15 - You could read the

30:17 - stipulations in this matter

30:19 - that were not one page long

30:21 - and say, Wow, they

30:22 - really fleshed this out.

30:23 - They're not hiding the ball.

30:24 - Look at all this stuff

30:25 - in front of me in this

30:27 - eight page stipulation,

30:28 - and it's the last

30:29 - paragraph that says

30:30 - and then therefore credible

30:32 - or therefore deserves relief.

30:34 - It's I just got through

30:37 - to them after ten years.

30:39 - And I just think

30:40 - that that record was

30:43 - where we needed it

30:44 - to be to show that Mr.

30:46 - Perrin was not guilty.

30:48 - Well, I didn't get

30:49 - through to the trial court.

30:51 - Understood the

30:51 - lesson learned here.

30:53 - It doesn't matter if

30:54 - you get through 58,

30:55 - so you fear for future times.

30:57 - But my question's a little

30:58 - bit different because I thought

31:00 - we took this case for a

31:02 - much broader decision

31:05 - as opposed to essentially

31:07 - your correction here on a

31:11 - do you foresee

31:13 - a stipulation as to credibility

31:18 - that you you would say a

31:19 - trial judge says you have to

31:21 - accept that?

31:22 - I mean, is there a case

31:24 - where a trial judge can say,

31:26 - I'm not going to I'm

31:27 - not going to do that?

31:28 - I mean, you've gone over in

31:30 - great lengths what you had here,

31:32 - which was the witness said

31:33 - the same thing multiple times.

31:35 - It's failure. OC

31:38 - Is there a case

31:39 - where, as you see it,

31:42 - it would not be an abuse

31:44 - of discretion for the trial

31:45 - judge not to accept a

31:47 - credibility stipulation.

31:52 - If the parties

32:00 - I have had happen to me

32:02 - entering into a

32:03 - stipulation with counsel

32:05 - where I thought

32:06 - that we were on the same

32:07 - page, that stipulating to facts

32:09 - also meant stipulating

32:10 - that those facts are true

32:11 - and those facts are there.

32:13 - But facts are verifiable.

32:15 - You know, that's what I have a

32:20 - sort of a hang

32:20 - up about all of this

32:22 - and justice Todd

32:23 - touched on this.

32:26 - What you're arguing

32:27 - is that the trial judge

32:29 - had to accept a stipulation

32:32 - as to an opinion and opinion

32:37 - that was drawn by

32:38 - both sides of this case.

32:42 - Okay.

32:43 - But credibility is nothing

32:46 - more than an opinion,

32:49 - essentially based on

32:51 - a non verifiable fact.

32:53 - Is the witness believable?

32:56 - And from my perspective,

32:59 - I don't see any situation

33:01 - where a trial judge

33:04 - would ever be

33:05 - bound by a stipulation

33:07 - as to credibility.

33:10 - I hope I'm understanding

33:11 - your question correctly.

33:12 - I think that there is a place

33:15 - where you may stipulate

33:17 - to an unverifiable fact

33:19 - that's that's

33:20 - okay with your honor in

33:21 - this in this hypothetical.

33:23 - I mean, I'm looking

33:24 - at there are often times

33:26 - when parties will

33:27 - stipulate that a

33:29 - expert will testify

33:31 - as to X, Y and Z.

33:33 - That's an opinion.

33:34 - But the reason that

33:35 - that's acceptable

33:36 - is because that opinion

33:38 - is based on verifiable facts

33:40 - that each side could

33:42 - get their arms around.

33:45 - That's not what you

33:46 - have with credibility.

33:47 - I mean,

33:49 - what we're hearing

33:50 - here is an argument

33:51 - that three assistant district

33:53 - attorneys, one defense counsel,

33:56 - equals a judge's

33:59 - opinion on the

34:00 - credibility of a witness

34:02 - and that that's the

34:04 - that's the aspect of this.

34:05 - I mean,

34:06 - you know, what you're arguing

34:08 - is almost as a matter of law,

34:10 - what you had here

34:11 - had to be accepted

34:13 - and and I just I cannot

34:15 - put this stipulation

34:18 - as to credibility into

34:21 - any silo of stipulations

34:25 - that I've ever seen

34:27 - as a dry judge or,

34:28 - frankly, as a trial lawyer.

34:32 - I think what comes to mind is

34:33 - what about a stipulation to a

34:38 - interview taken by a detective

34:40 - that is line for line, but not

34:42 - recorded by audio visual

34:45 - and to parties stipulate

34:46 - that that's what the witness

34:48 - would come in

34:49 - here and say today.

34:50 - And it's completely undisputed.

34:52 - I don't expect the district

34:54 - attorney at the end of the trial

34:55 - to get up and say

34:56 - that everything in

34:57 - that interview was a lie, if

34:59 - we've both stipulated to it.

35:00 - Now, I have been burned on that.

35:03 - Appeals fixed it.

35:05 - All of these things.

35:07 - So I now ask that it be put in

35:11 - or that we speak about

35:12 - whether or not there

35:13 - would be some sort of surprise.

35:14 - And I wouldn't do

35:15 - that to other counsel.

35:15 - Nothing wrong with

35:16 - what you just said.

35:17 - Here is what he's

35:18 - going to testify to, period.

35:21 - What's missing from your

35:23 - example is the following.

35:25 - And this witness is credible.

35:28 - This witness must be believed.

35:30 - Well, that's.

35:30 - The part that is sort of

35:33 - the take on to this scenario

35:36 - that I just don't see fitting

35:38 - into any established

35:41 - set of circumstances

35:43 - in which a stipulation of

35:45 - would be acceptable to a. Court.

35:49 - When we instruct a

35:50 - jury, don't we in fact

35:51 - say that this should be

35:53 - considered by you, that this

35:54 - should be taken into account?

35:56 - That's undisputed. Credible?

35:59 - Yeah.

35:59 - They don't have

36:00 - but they don't have

36:01 - anything to base

36:02 - that on other than

36:03 - said stipulation.

36:04 - So it's possible

36:05 - to take her credibility

36:06 - determination

36:07 - and to make

36:07 - a credibility determination

36:09 - without seeing someone's face.

36:11 - That's right.

36:13 - Thank you very much.

36:14 - Well, our

36:17 - Mr. Gamez, you're

36:18 - going to go next.

36:19 - Okay.

36:21 - We're pretty I mean, we

36:22 - try to give for arguments.

36:24 - We don't have time limits.

36:26 - We I think we've argued

36:27 - this pretty fully

36:28 - for the defense.

36:29 - My understanding is

36:30 - your position is identical.

36:32 - So I appreciate your limiting

36:34 - yourself which not been said,

36:36 - which it again

36:37 - seems as if what's what's been

36:39 - said is pretty comprehensive.

36:41 - Well, I would

36:41 - hope the DA's office

36:42 - has something to say

36:43 - that's not identical to defense.

36:46 - Thank you.

36:46 - And I will try not to repeat

36:48 - what Miss Snyder said.

36:50 - Good morning, Your Honor.

36:51 - My name is Michael Vermes,

36:52 - and I represent the

36:53 - Commonwealth in this case.

36:55 - The heart of this case

36:56 - is really that the post can

36:58 - the post sentence court

36:59 - because this was a

37:01 - post sentence motion.

37:03 - I didn't think that

37:04 - had the authority

37:05 - to accept the stipulation

37:07 - because they were a

37:08 - stipulation to credibility.

37:11 - The post sentence court found

37:13 - it applied a per se prohibition

37:15 - on stipulations to credibility,

37:17 - and it seems undisputed

37:19 - that credibility stipulations in

37:21 - some very limited

37:22 - circumstances are appropriate.

37:24 - So the post sentence per

37:26 - se rule and blanket prohibition

37:29 - on accepting a

37:29 - stipulation to credibility was

37:32 - an error of law that constitutes

37:34 - an abuse of discretion.

37:36 - There's two points in the record

37:37 - that make it really clear that

37:39 - the judge below was exercising

37:42 - a per say blanket prohibition.

37:45 - You can find it in the

37:46 - order in which the court

37:49 - writes, quote, The court

37:50 - concluded that the determination

37:53 - of credible t was not

37:54 - amenable to stipulation.

37:56 - And at the actual

37:57 - hearing on August 6th,

37:59 - when we were

38:00 - before the court, Ms..

38:01 - Snyder was marking the

38:02 - stipulations into evidence.

38:04 - She was saying that the

38:06 - Court now can the Court

38:09 - now can apply the applicable

38:11 - after discovered evidence

38:12 - standard to those

38:13 - stipulations, at which point

38:15 - the trial court interrupted

38:17 - and said, Haven't I already

38:20 - basically interrupted to

38:21 - disagree that he

38:22 - had already found

38:23 - he could not apply

38:25 - the law to a stipulation

38:27 - because he was applying

38:29 - a credibility situation, because

38:30 - he was applying a per se

38:32 - blanket prohibition.

38:33 - Wasn't he actually,

38:34 - though, applying

38:35 - or trying to follow the

38:36 - Superior Court's directive

38:38 - that he hold a full

38:39 - evidentiary hearing?

38:41 - So the remand order

38:43 - from the Superior Court

38:44 - and it's important to

38:45 - remember to remand order with

38:46 - this is in the same posture

38:48 - as a post sentence motion

38:50 - that should have been decided

38:52 - within 120 days of the sentence.

38:54 - But in that posture,

38:55 - the remand order

38:57 - authorized a hearing,

38:58 - essentially a duplicate hearing.

39:00 - And I would say the opposite.

39:02 - Authorized or directed.

39:04 - I would say the

39:04 - operative language is it need

39:06 - not rely on the cold record,

39:08 - but it was still authorized

39:10 - to have a hearing

39:11 - where any admissible evidence

39:12 - could have been offered,

39:13 - including this stipulation.

39:15 - But Counsel, you just

39:16 - shared with us that the Court

39:19 - In essence, what you're saying

39:20 - the Court abused its discretion

39:22 - as an over law

39:22 - by saying it refused the

39:24 - stipulation of credibility.

39:26 - It then ordered

39:27 - a further proceeding so

39:28 - that there be no cold record.

39:30 - Are you sharing with

39:31 - us that the Court didn't

39:33 - direct counsel to

39:35 - put forth evidence

39:37 - at the remand

39:38 - such that the witness

39:39 - would have to testify,

39:40 - which would have been supported

39:41 - by the record

39:42 - when counsel

39:43 - on the record said they

39:44 - chose not to call a witness.

39:46 - Now, how does that

39:47 - fly with your argument?

39:48 - Because that's

39:48 - causing me to pause.

39:49 - So I would say it's a little

39:51 - bit complicated procedurally

39:52 - because there were

39:53 - a number of listings.

39:54 - The only evidentiary hearing

39:55 - was really that last one on

39:57 - the video screen in August.

39:58 - The prior hearings were status

40:00 - hearings where legal arguments

40:02 - were being presented

40:04 - that this stipulation could

40:05 - be accepted by the trial

40:07 - court, but the court did not.

40:09 - It chose not to,

40:11 - which is within its

40:12 - purview, as the trier of fact.

40:14 - So share with me

40:15 - how that's an abuse or

40:16 - an error of law to exercise.

40:18 - Instead of exercising

40:19 - discretion, the lower court

40:21 - applied a per se prohibition,

40:23 - a blanket rule,

40:24 - refusing to accept

40:26 - this kind of stipulation,

40:28 - and that was in error.

40:30 - And share with me how

40:31 - that violates our decision.

40:33 - Two years ago in

40:34 - Mader versus Duquesne,

40:36 - in which we specifically said

40:38 - business of the court cannot be

40:39 - stipulated to by the trier

40:41 - of fact that meaning that

40:43 - the trial judge obeyed

40:45 - the order of Superior Court

40:47 - to proceed with quote

40:49 - unquote, a proceeding.

40:51 - Now, how is that an

40:52 - abuse of discretion?

40:53 - Because he chose not

40:55 - to accept your stipulation

40:57 - because he didn't

40:57 - apply discretion with regard

40:59 - to the two dozen stipulations

41:01 - that were at issue here,

41:03 - including the stipulation

41:04 - that a FBI agent who

41:06 - had previously testified

41:08 - would testify

41:10 - the same way he did at

41:11 - the prior contested hearing.

41:13 - And the FBI agent

41:13 - would do so credibly.

41:15 - But this but counsel

41:16 - to follow up on justice

41:18 - Daugherty's question this

41:21 - this aspect though

41:23 - related to the language of

41:25 - the superior court's remand.

41:27 - It says we ran excuse me, we

41:29 - remand for the determined action

41:31 - of whether Brown's

41:32 - testimony was credible, etc.

41:34 - We direct the jurist appointed

41:36 - to handle this

41:37 - matter to a new judge

41:38 - to hold a hearing at which

41:40 - parents are as witnesses again

41:42 - so that the trial court need

41:44 - not rely on a cold record

41:45 - to make its credibility

41:46 - determinations so

41:49 - so far from making

41:51 - a blanket statement,

41:53 - it seems here like

41:54 - the new trial judge

41:56 - was simply trying to comply

41:58 - with the superior court's

42:00 - specific language with respect

42:02 - to a credibility determination

42:04 - regarding Brown now

42:06 - granting for the moment,

42:08 - for the sake of argument,

42:09 - that it would have been

42:10 - within the judge's

42:11 - discretion to say, okay,

42:13 - I accept your

42:14 - stipulation, but ability,

42:16 - how can it be an abuse

42:18 - of discretion for him

42:19 - to go the other way and say,

42:21 - I'm going to hear

42:22 - this testimony?

42:25 - Couldn't he have done it?

42:26 - Couldn't he have

42:27 - discretion at least

42:29 - to do it the way

42:30 - he wanted to do it,

42:31 - assuming he had

42:32 - the discretion to go

42:33 - the way that you and

42:34 - defense counsel want it.

42:37 - So that's not what

42:38 - happened in the court below.

42:40 - Had that happened,

42:42 - we would not be here

42:43 - because had the court

42:44 - not applied a

42:45 - blanket per se rule,

42:47 - there wouldn't have been

42:48 - an error of law to appeal.

42:49 - I don't.

42:50 - I figured that's.

42:51 - Where you're going.

42:52 - I don't understand

42:53 - that rationale.

42:55 - If if we say you're right

42:59 - and oh, he committed

43:01 - an error of law,

43:02 - it was a blanket per

43:03 - se rule that he applied.

43:04 - And it goes back

43:05 - and he goes, okay,

43:06 - I was wrong in the

43:07 - blanket per se rule,

43:08 - but I'm now exercising

43:09 - the discretion

43:10 - and I'm not going to

43:11 - accept your stipulation.

43:12 - You're no better off

43:13 - than you were before.

43:14 - I think at that point

43:15 - witnesses could be called,

43:17 - and I think that at that

43:18 - point, some of the witnesses

43:20 - might not need to be called,

43:21 - such as the FBI agent who

43:23 - testified under oath about this

43:25 - incident, was cross-examined.

43:27 - And but either

43:28 - way, the trial court

43:29 - judge got to do what the

43:30 - trial court judge did here.

43:31 - That's what I'm saying.

43:32 - If your objection is

43:33 - just know this trial court

43:34 - judge just announced

43:35 - this this blanket black letter

43:38 - rule of law that he

43:39 - is not going to ever

43:41 - consider a

43:41 - credibility stipulation.

43:43 - I mean, maybe he

43:43 - did, maybe he didn't,

43:45 - but I'm sure as hell

43:46 - convinced if I if

43:48 - we sent it back

43:50 - on that error, alleged error,

43:51 - the trial judge would say,

43:53 - okay,

43:53 - maybe there's no

43:54 - blanket rule, but I'm

43:55 - still not going to accept

43:56 - the credibility stipulation.

43:58 - So if that happened, then

44:01 - the defense would properly

44:02 - be in a position

44:03 - to call witnesses.

44:04 - Right.

44:04 - So that's this is what

44:05 - we're arguing over.

44:07 - This is why we're all here.

44:08 - The result would be the same.

44:10 - Which is if you get think that.

44:14 - May I ask you?

44:15 - I think Justice Donahue

44:17 - made a wonderful point

44:19 - at the closing of prior

44:20 - counsel's argument,

44:22 - as I alluded to when Mr.

44:26 - Snider testified,

44:26 - I'd like to think

44:28 - that our trial court judges,

44:30 - some of us included in prior

44:32 - days, are not functionaries

44:35 - are not a

44:38 - our system is designed

44:39 - so they cannot be reduced

44:41 - to having no input in it.

44:44 - So the trial judge and

44:46 - I can't get into this trial

44:48 - judge is mind, but the

44:49 - trial judge is this choir

44:51 - added by what's occurring

44:53 - is not convinced that either

44:55 - justice or law is occurring

44:57 - and wants to explore it further.

44:59 - And it seems to me

45:00 - your position is, the trial

45:01 - judge doesn't have that power.

45:03 - That and again, I am not

45:05 - ascribing improper motive.

45:07 - I'm exploring a legal issue.

45:09 - But the district attorney

45:11 - and the defense counsel

45:13 - can preordained a result

45:15 - and cut the trial judge out.

45:17 - Is that your position? It's not.

45:19 - But the court can't have

45:20 - exercised as a per

45:22 - se a rule that prohibits

45:23 - a category of

45:24 - admissible evidence.

45:25 - And if I could just respond

45:27 - that I think, you know,

45:28 - perhaps the court is getting

45:29 - into the argument about Brown.

45:31 - I can understand why

45:32 - this might look like Brown,

45:34 - but this is different

45:35 - for a couple reasons.

45:38 - This case has an unusual

45:40 - posture where the legal issues

45:42 - were decided essentially

45:44 - as preliminary objections

45:47 - before we got to court.

45:48 - And they were

45:51 - vigorously disputed by

45:52 - my office and the

45:54 - court ruled against us.

45:56 - And so to the extent there is

45:59 - so, those are the

46:01 - court's decisions, not

46:02 - not the Commonwealth's

46:03 - decisions.

46:04 - And so while it may look like

46:06 - it is outcome determinative,

46:08 - it's only because

46:08 - the legal issues were

46:10 - previously litigated and lost.

46:12 - But one more time

46:12 - and last time I'll ask

46:14 - and again, I'm trying

46:15 - to parent justice.

46:16 - Donahue So if I'm doing a

46:18 - bad job, she'll

46:19 - take over for me.

46:21 - If I think her suggestion

46:22 - was and what I'm interested

46:24 - in your comment

46:25 - as the child judge

46:27 - is as I I'll use the same word

46:29 - disquieted by what's occurring

46:31 - and said I won't accept it

46:33 - put your witness on I

46:34 - want to see and hear them.

46:36 - I think what Justice Donahue was

46:39 - and maybe she persuaded me,

46:41 - is the trial judge

46:42 - has an absolute

46:43 - right to do that.

46:45 - And counsel is at

46:46 - the jeopardy that they

46:48 - she finds herself here.

46:50 - If she says I will not,

46:51 - which means she

46:52 - doesn't carry her burden

46:53 - and she loses job

46:54 - just fine, you will not.

46:56 - Next case, this

46:57 - one is dismissed.

46:59 - Does the trial court I'm

47:00 - going to quit digressing.

47:02 - Had the absolute right to

47:04 - say I want to hear witnesses.

47:06 - The trial court

47:09 - does, but that's not what

47:10 - happened in this case.

47:11 - I understand your position.

47:12 - Okay, that's a fair answer.

47:14 - Counsel.

47:15 - I'm not sure

47:16 - you and I

47:17 - are on the same

47:18 - ultimate conclusion,

47:19 - but I think we're

47:20 - somewhat on the same page.

47:22 - You're actually arguing

47:23 - this was an error of law

47:25 - because there was a

47:26 - procedural and an error of law.

47:27 - I can be an abuse

47:28 - of discretion, okay.

47:29 - For reasons that have

47:30 - always been occurred to me.

47:31 - But this trial judge,

47:37 - the best he could have

47:38 - done, was accepted.

47:40 - The fact that the

47:41 - district attorney's office

47:44 - and defense counsel agreed

47:48 - that the witness was credible.

47:51 - That doesn't mean

47:53 - that the trial judge then

47:57 - is bound by your

47:58 - credibility determination,

48:02 - because credibility

48:03 - and this gets down to

48:04 - this question I thought,

48:05 - which was really

48:06 - started, the broader issue

48:07 - that we were

48:08 - looking at, which is

48:09 - whether or not credibility is

48:12 - ever the appropriate subject

48:14 - matter of a stipulation,

48:16 - because at the end of the day,

48:20 - your agreement

48:21 - that he's credible

48:23 - has nothing to do

48:25 - with the trial judge,

48:26 - the judge's judgment

48:28 - call on that same issue.

48:31 - It's unlike a

48:32 - factual stipulation

48:33 - where there's nowhere

48:35 - else to go with it.

48:36 - There's nothing else

48:37 - I could do with the facts

48:38 - that have been stipulated to.

48:40 - When you're talking

48:42 - about a witnesses

48:43 - testimony, it's the

48:44 - quintessential judicial

48:47 - or any fact finder

48:48 - function in that context

48:50 - can make the credibility,

48:52 - determination so contrary to it.

48:54 - I think you're

48:55 - arguing my position

48:57 - and believe me, and I'm not

48:59 - this is not on firm ground here,

49:02 - but I would sort of right now

49:04 - come down on the side of

49:06 - you can never

49:07 - stipulate to credibility

49:09 - and bind the trial date

49:10 - with that got to stipulate.

49:13 - So if I could answer

49:14 - in a couple of ways.

49:15 - First, any time there

49:17 - is a disputed facts

49:19 - at a trial that's being

49:20 - resolved with the stipulation, I

49:23 - it once the stipulation

49:24 - occurs, it has been proven.

49:26 - And so you get a jury

49:28 - instruction and a jury trial

49:29 - basically to that effect.

49:31 - Ultimately, credibility is

49:34 - a bundle of smaller facts,

49:37 - and so each one of them

49:38 - individually can be stipulated

49:40 - to and ultimately concluded.

49:42 - So it is lack of bias,

49:45 - consistency,

49:48 - opportunity to observe.

49:50 - And so all those other factors

49:51 - that were part of the

49:52 - stipulation and that importantly

49:54 - in this case were fleshed out

49:57 - in a contested for

49:58 - we cross-examined

50:00 - evidentiary hearing in 20.

50:03 - So I think that

50:05 - that is where

50:06 - that difference is.

50:07 - And when I understood

50:09 - the amicus brief discussing

50:11 - that there are

50:12 - limited situations

50:14 - where such a stipulation

50:15 - would be appropriate,

50:16 - it's basically

50:17 - because if you don't have

50:19 - a stipulation to credibility,

50:22 - you are losing the

50:24 - functional effect

50:25 - of a stipulation, even if

50:27 - it is an expert witness.

50:29 - If you're all of a sudden

50:30 - going to be arguing that you're

50:32 - not credible for other reasons,

50:34 - such as bias, they were paid

50:36 - as a hired gun,

50:36 - something to that effect.

50:39 - Okay.

50:39 - Thank you. Thank you very much,

50:44 - Mr. Eisenberg.

50:51 - It pleased the court

50:53 - to the district

50:54 - attorney's argument.

50:56 - I would point the court to

50:57 - the I'm sorry, Your Honor,

50:59 - Ronald Eisenberg for the

51:01 - amicus attorney

51:01 - general's office.

51:03 - Could you pull the microphone

51:04 - down a little bit? Thank you.

51:05 - So you could. Yes,

51:06 - it's by your mouth.

51:08 - Thanks, Mr..

51:10 - Eisenberg.

51:12 - It's unusual for

51:13 - the attorney general

51:14 - to be arguing a case in

51:15 - which we have the district

51:17 - attorney's office arguing.

51:19 - But in this case, since

51:20 - the district attorney's

51:22 - office of Philadelphia was

51:23 - taking the same position

51:25 - that the defense attorney

51:28 - was taking, we made the

51:30 - and you took the unusual step

51:32 - of allowing the attorney general

51:35 - to also represent

51:36 - the commonwealth,

51:37 - to get the opposing viewpoint

51:39 - of the Commonwealth.

51:41 - Thank you, Your Honor.

51:42 - And, Ms.. Eisenberg,

51:43 - you sat obviously.

51:45 - Listen, we've

51:45 - explored at great length

51:47 - if you can focus on on

51:49 - on where you can elucidate

51:51 - something that would be helpful.

51:52 - Yes, Your Honor.

51:53 - The trial judge had

51:54 - actually not three

51:56 - but four listings at

51:57 - which he gave the parties

51:58 - the opportunity to

51:59 - present evidence.

52:00 - They were all very short.

52:01 - I urged the court to review

52:04 - them in 2020, on February

52:07 - 13, March 12th, July 9th,

52:10 - August 6th, and he made

52:12 - similar brief comments.

52:14 - And each one here

52:15 - is just

52:15 - one of those brief comments

52:16 - at the very first listing,

52:17 - I received the proposed

52:18 - stipulation from the parties.

52:20 - It's this Court's position

52:21 - that accepting that stipulation

52:22 - is contrary to the

52:23 - Supreme Court's directed

52:24 - directive and also sets

52:25 - a very bad precedent

52:27 - for this court to relegate

52:28 - its duties to counsel.

52:30 - And on July 9th, the

52:31 - third of the listings, he said

52:35 - the fact that the parties

52:37 - agree doesn't satisfy

52:38 - the purpose of the remand.

52:40 - I received and reviewed

52:41 - carefully the joint memorandum.

52:42 - While it's well-written, it

52:44 - is largely unresponsive

52:46 - to the Court's concern

52:47 - with proceedings.

52:47 - The stipulation.

52:49 - In other words, we know

52:50 - the case was remanded.

52:51 - We know what a stipulation is.

52:53 - We know that the parties agree

52:55 - this was clear even

52:56 - before the briefing.

52:57 - So whether the defendant

52:58 - is entitled to relief

52:59 - is for the court to determine,

53:01 - not for the parties to decide,

53:03 - simply because

53:03 - they're in agreement.

53:05 - Accordingly,

53:05 - reschedule the hearing.

53:07 - So the the point of this,

53:09 - Your Honor, is that, in fact,

53:10 - the court was not

53:12 - applying some kind of per

53:14 - se rule of admissibility.

53:15 - And perhaps that's

53:16 - why neither party

53:17 - argued to the court that

53:18 - he had aired in that way.

53:19 - Neither party argued to him.

53:21 - The Judge, you're abusing

53:22 - your discretion because.

53:23 - You are committing

53:24 - an error of law.

53:26 - Instead, both

53:26 - parties simply said

53:28 - over and over after the

53:29 - judge had ruled against them,

53:30 - that the judge was

53:32 - obligated to accept the parties

53:35 - stipulations because of the

53:36 - fact that they had stipulated.

53:38 - So the bottom line here is

53:40 - that the only

53:41 - people in this case

53:42 - who are taking it all or nothing

53:44 - approach were the parties.

53:46 - The judge wasn't.

53:47 - And we as the amicus are not.

53:49 - There may well be circumstances

53:51 - where parties properly

53:53 - offer stipulations.

53:54 - There may well be circumstances

53:56 - where a judge has exercised

53:57 - their discretion not

53:58 - to hold a hearing.

54:00 - The question here is

54:01 - whether they are ever allowed

54:02 - to exercise that

54:03 - sort of discretion.

54:04 - The position of the parties,

54:06 - though, was that they are not.

54:08 - That's why this court becomes

54:09 - like Commonwealth versus Brown,

54:11 - because it's again

54:12 - an all or nothing position

54:14 - that was offered to the judge

54:15 - where he either accept

54:17 - what the parties offered to him

54:19 - or they weren't

54:20 - going to go forward.

54:21 - Counsel.

54:22 - Counsel, What is your office's

54:24 - position as to stipulations

54:26 - regarding credibility.

54:27 - Your Honor?

54:28 - That's a large

54:29 - question, which I think

54:30 - doesn't have to be

54:31 - answered in case.

54:33 - And I understand

54:34 - Justice Donahue's use.

54:35 - Which I 18

54:37 - if what we're here to do

54:38 - is error correction

54:39 - of the trial court,

54:40 - I don't know why we

54:41 - would have this case.

54:42 - Your Honor, I'm not saying that

54:43 - nothing should be said about it.

54:45 - I'm saying that the context

54:46 - of this case is a post-verdict

54:48 - after discovered evidence

54:50 - claim is what's dispositive

54:51 - on that issue of stipulations

54:53 - to credibility, whatever might

54:55 - be the rule at other times,

54:57 - certainly after a verdict

54:59 - has been entered

55:01 - and there is a claim of

55:02 - after discovered evidence,

55:03 - certainly at that point, the

55:06 - judge must be empowered

55:08 - to exercise his

55:09 - ability or her ability

55:11 - to consider the evidence

55:12 - and make their own credibility.

55:14 - Should we limit our

55:15 - ruling going to these points,

55:19 - in your view?

55:20 - Should we limit our ruling

55:22 - to a circumstance like this

55:24 - where the Superior

55:26 - Court specifically directed

55:29 - a credibility determination

55:30 - and a life witness?

55:32 - I think that the Superior

55:33 - Court's directive is certainly

55:35 - a significant

55:36 - factor, Your Honor.

55:36 - I don't think it's essential.

55:38 - I think actually

55:39 - your own comments

55:40 - in one of the earlier

55:41 - appeals in this case are

55:43 - more apt, which is

55:44 - that when it comes

55:46 - to an after discovered evidence

55:47 - claim, we're really relying

55:49 - on the trial court's

55:50 - ability to assess credibility

55:52 - and the the trial court needs

55:54 - to have that opportunity.

55:56 - So it's not just that

55:57 - the superior court

55:58 - directly ordered

55:59 - it and it said, we

56:01 - it didn't say we suggest

56:02 - you can do it if you'd like.

56:04 - It said we direct.

56:05 - But it's also the fact

56:06 - that this is an after

56:07 - discovered evidence claim

56:08 - where the effort is to vacate

56:10 - a judgment of sentence.

56:13 - And in Brown,

56:13 - as this court pointed out,

56:15 - the discretion of the parties

56:18 - and the discretion of the

56:19 - of the prosecutor varies

56:21 - over the life of the

56:22 - case. The problem

56:24 - I'm not sure that

56:25 - the procedural question

56:27 - should control the question.

56:28 - You're addressing

56:30 - the reason that the

56:32 - the D.A. here

56:36 - has to go forward

56:37 - is that he no longer

56:38 - has the charging discretion

56:40 - to withdraw charges and say

56:42 - we choose not to prosecute.

56:44 - And that's the importance of it,

56:45 - it seems to me, of it

56:46 - being on post-trial motions.

56:48 - But the legal principle

56:50 - that the trial judge

56:53 - can demand to

56:54 - hear from witnesses

56:56 - and can assess credibility,

56:58 - it would seem to me

57:00 - to be equally applicable

57:01 - to a trial situation

57:03 - if the district attorney

57:04 - and it's not Philadelphia,

57:06 - the district attorney

57:07 - in Pennsylvania

57:08 - chooses to go forward

57:09 - with the charges.

57:10 - Your Honor, I'm not

57:11 - saying that the court couldn't

57:12 - issue a broader ruling,

57:14 - but I'm merely saying that

57:16 - in the context of this case, I

57:17 - don't think that's necessary.

57:18 - And yet it would be

57:19 - much more than mere

57:20 - error correction of

57:21 - this particular. Case.

57:22 - To make a ruling appropriate to.

57:23 - The post, if I could.

57:25 - I don't think, though,

57:26 - that you're disagreeing

57:27 - with the prospect. Mr.

57:29 - Eisenberg, that this case,

57:31 - while factually, perhaps

57:33 - unusual and while involving

57:34 - a superior court directive,

57:36 - does tie up the

57:38 - ultimate issues of that.

57:40 - We've been speaking of

57:42 - of what does a stipulation

57:44 - that includes

57:44 - credibility, determination

57:46 - mean to a trial judge

57:48 - and can that trial judge

57:50 - then is that trial judge

57:51 - bound in some way?

57:53 - Does it in some way limit

57:55 - his duty as a trial judge

57:57 - or what he can go on to

57:59 - do that he regards as his

58:03 - responsibility, you know,

58:04 - as his role as a trial judge,

58:06 - because those are really

58:08 - the two broader questions

58:10 - that we're interested in,

58:11 - not the specific limiting facts

58:13 - or procedures of this case.

58:15 - Certainly, your Honor, and

58:16 - I'm certainly not arguing that.

58:18 - They are interesting. Issues.

58:19 - They are certainly

58:20 - interesting issues, Your Honor.

58:21 - But it is also true that

58:24 - there may well be a difference

58:25 - between a stipulation to after

58:27 - discovered evidence

58:27 - for the purpose

58:28 - of vacating a verdict

58:29 - and a stipulation

58:30 - that the baggie of

58:31 - a weighty substance

58:32 - found in the suspect's

58:33 - pocket was really marijuana.

58:35 - Well, that was that

58:36 - was our point all along

58:37 - that we're talking

58:37 - about a stipulation

58:38 - of fact versus a

58:39 - stipulation of credibility.

58:41 - And and there may be

58:43 - with focused advocacy,

58:45 - a future case involving

58:46 - a stipulation to credibility

58:48 - at another stage of the

58:49 - case that the court may

58:50 - or may not see differently.

58:52 - If the court is convinced

58:55 - or is persuaded

58:56 - now that there are no

58:56 - differences in that setting,

58:58 - then the court can issue

58:58 - a broader ruling. Well, we.

59:00 - May not want to

59:00 - issue a blanket rule,

59:01 - but we may wish to opine

59:02 - on it because we love to opine.

59:05 - Of course. On Strasburg, it

59:08 - I understand your

59:09 - argument for judicial restraint.

59:11 - I'm not sure it would be

59:13 - dictate if we talk about a

59:14 - judicial restraint and

59:16 - doing as narrowly

59:17 - as possible to say the

59:19 - case before us here,

59:21 - do you see a

59:25 - p e a nexus

59:28 - at a potential of creating a

59:33 - aberration of law?

59:34 - If this court was to say

59:35 - trial courts have an absolute

59:37 - right to have witnesses

59:39 - called to assess credibility.

59:41 - I think what the court

59:42 - would say and I think it's clear

59:44 - from the comments

59:44 - of all the justices, is that

59:46 - the trial judge has the right

59:47 - to exercise his discretion,

59:49 - which means that the trial judge

59:52 - could abuse his discretion

59:53 - and like so many decisions

59:55 - that we entrust to trial judges,

59:59 - 721 the power is broad

01:00 - 01.864 but not unlimited

01:00 - 03.083 because it can be reviewed

01:00 - 04.467 for an abuse of discretion.

01:00 - 05.719 So therefore, it would

01:00 - 07.036 not have been an abuse

01:00 - 10.173 of discretion

01:00 - 12.220 if the trial judge had

01:00 - 14.010 done what he did,

01:00 - 15.712 even without any of

01:00 - 16.839 that language in the remand

01:00 - 17.947 from the Superior Court.

01:00 - 19.854 I don't think that the language

01:00 - 21.484 from the Superior Court alone

01:00 - 24.454 was enough to require

01:00 - 25.538 to render the

01:00 - 27.123 trial judge's result

01:00 - 29.225 necessary.

01:00 - 29.854 He certainly was

01:00 - 31.027 certainly important to him.

01:00 - 32.462 He could hardly ignore it

01:00 - 33.759 if it hadn't happened, if

01:00 - 35.498 there hadn't been that specific

01:00 - 37.900 directive,

01:00 - 38.858 and if the judge had

01:00 - 39.936 instead simply said,

01:00 - 41.087 I've seen your stipulation,

01:00 - 42.305 I've read the stipulation,

01:00 - 43.673 but wasn't the trial judge

01:00 - 44.416 and I want to hear

01:00 - 45.308 the evidence again,

01:00 - 46.009 I don't think that would

01:00 - 46.641 have been an abuse

01:00 - 47.477 of discretion either.

01:00 - 49.545 Even without the directive.

01:00 - 52.448 He had said, I want to accept

01:00 - 55.785 the stipulation that has. Been

01:00 - 56.735 excuse me, if he had

01:00 - 58.287 said, I accept the stipulation

01:00 - 59.929 and I accept the

01:00 - 01.658 stipulation and therefore I'm

01:01 - 05.328 not going to have a hearing.

01:01 - 05.888 Well, that's an

01:01 - 06.663 academic question,

01:01 - 08.731 since there would have been nobo

01:01 - 11.968 I would think it would be better

01:01 - 12.976 practice, certainly

01:01 - 14.170 in the circumstances

01:01 - 14.987 of a case like this

01:01 - 15.872 with the new judge

01:01 - 17.385 and with the superior court's

01:01 - 18.975 directive to hold a hearing.

01:01 - 21.080 But again, we're not taking

01:01 - 23.212 an all or nothing position here.

01:01 - 25.340 Counsel, could you trust

01:01 - 27.316 Commonwealth versus Williams

01:01 - 28.723 the Superior Court case

01:01 - 30.586 dealing with Officer Graham?

01:01 - 31.655 I think your brief

01:01 - 32.655 talks about it.

01:01 - 34.199 I think both of the

01:01 - 36.259 parties talked about it

01:01 - 38.196 where the defendant

01:01 - 39.962 was granted a new trial.

01:01 - 42.448 Graham was, of course,

01:01 - 44.534 the officer who, you know,

01:01 - 46.969 had a notorious publicized

01:01 - 52.542 criminal episode

01:01 - 53.584 while engaged in

01:01 - 55.244 being a police officer.

01:01 - 57.680 That defendant got a new trial.

01:01 - 58.938 Officer Graham was never

01:01 - 00.750 called to testify at trial court

01:02 - 02.051 said, we've got this, this.

01:02 - 02.860 But the other thing

01:02 - 03.953 in that case is Officer

01:02 - 05.032 Graham was the only

01:02 - 06.422 witness at that trial.

01:02 - 08.790 And could not be called

01:02 - 10.026 by the Commonwealth.

01:02 - 12.798 Doesn't that really

01:02 - 14.797 take that case out of this

01:02 - 16.059 whole notion of a

01:02 - 18.468 stipulation as to credibility?

01:02 - 20.829 I think certainly the facts are

01:02 - 22.071 different there, Your Honor.

01:02 - 22.958 And while it's a

01:02 - 24.207 little unclear to me

01:02 - 25.498 what the Superior

01:02 - 27.810 Court's analysis was, there,

01:02 - 28.914 I know what it should have

01:02 - 30.213 been, which is did the trial

01:02 - 31.059 judge abuse his

01:02 - 32.215 discretion or not?

01:02 - 33.948 I don't know that the court

01:02 - 35.585 specifically used the words

01:02 - 36.343 the trial judge

01:02 - 37.587 abused its discretion,

01:02 - 38.838 but because the standard

01:02 - 40.323 is an abuse of discretion,

01:02 - 41.345 certainly that's what

01:02 - 42.091 the appellate court

01:02 - 43.192 could be looking for.

01:02 - 45.228 And there may well be cases

01:02 - 46.155 because this is not an

01:02 - 47.363 all or nothing proposition

01:02 - 49.469 where a trial judge

01:02 - 50.600 might abuse his

01:02 - 52.259 or her discretion in refusing

01:02 - 53.770 to accept a stipulation.

01:02 - 55.471 This certainly is a different

01:02 - 56.709 factual case, not only

01:02 - 58.141 because of the superior

01:02 - 59.842 court's directive,

01:02 - 00.968 not only because the

01:03 - 02.345 judge was a new judge,

01:03 - 04.043 but because the the

01:03 - 06.182 witness really in question

01:03 - 08.070 was this Witness Perry from

01:03 - 10.052 the trial, who was nowhere

01:03 - 11.011 and was not sought

01:03 - 12.155 out by the parties.

01:03 - 14.023 So the judge was in a

01:03 - 14.907 difficult position in

01:03 - 15.858 trying to make those

01:03 - 20.163 credibility determinations.

01:03 - 23.466 Thank you very much, writers.

01:03 - 25.748 Well argued by

01:03 - 29.038 all three counsel.

01:03 - 30.554 The second case today is

01:03 - 32.475 United States versus Harris.

01:03 - 34.911 In March 2010, Mr.

01:03 - 36.051 Harris pled guilty in

01:03 - 37.380 federal district court

01:03 - 39.382 to violating a federal law

01:03 - 40.955 prohibiting a felon from

01:03 - 42.485 possessing a firearm.

01:03 - 44.687 The penalty for that crime

01:03 - 46.086 is a maximum of ten

01:03 - 47.657 years imprisonment.

01:03 - 48.758 Unfortunately for Mr.

01:03 - 50.519 Harris, he had a significant

01:03 - 52.495 history of felony convictions

01:03 - 53.812 that at the time

01:03 - 55.565 indisputably qualified him

01:03 - 56.967 for penalty increases

01:03 - 59.202 pursuant to another federal law

01:03 - 00.528 called the Armed

01:04 - 02.104 Career Criminal Act.

01:04 - 04.841 In July 2010, Mr.

01:04 - 06.630 Harris received an enhanced

01:04 - 08.177 sentence of 15 years.

01:04 - 11.347 Several years later, in 2015,

01:04 - 13.249 the United States Supreme Court

01:04 - 14.667 invalidated part of the

01:04 - 16.419 Armed Career Criminal Act,

01:04 - 18.087 calling into question

01:04 - 19.622 the legality of certain

01:04 - 20.873 sentencing enhancements

01:04 - 22.258 under that federal law.

01:04 - 24.278 Mr. HARRIS To ask

01:04 - 26.262 the federal district court

01:04 - 28.190 for a new lower sentence,

01:04 - 30.566 the district court denied Mr.

01:04 - 32.168 Harris's motion.

01:04 - 33.089 Mr. Harris then

01:04 - 34.470 appealed to the U.S.

01:04 - 35.579 Court of Appeals

01:04 - 37.273 for the Third Circuit.

01:04 - 38.940 So how does a state court, the

01:04 - 40.743 Supreme Court of Pennsylvania,

01:04 - 42.286 fit into the picture

01:04 - 43.779 of this federal case?

01:04 - 44.580 Recall that Mr.

01:04 - 46.170 Harris had a significant

01:04 - 47.450 criminal history.

01:04 - 48.784 At least one of his felony

01:04 - 50.453 convictions was in state court

01:04 - 52.054 for violation of a

01:04 - 53.522 Pennsylvania law.

01:04 - 54.395 The Supreme Court

01:04 - 55.291 of Pennsylvania

01:04 - 56.109 has final say on

01:04 - 57.159 the interpretation

01:04 - 58.694 of Pennsylvania law

01:04 - 00.434 for that reason as a precursor

01:05 - 02.431 to its own decision in the case.

01:05 - 04.455 The federal appellate court has

01:05 - 06.202 asked the state Supreme Court

01:05 - 08.237 to explain Pennsylvania law

01:05 - 09.934 as it relates to the felony

01:05 - 11.908 that formed the basis for Mr.

01:05 - 14.510 Harris's sentence enhancement.

01:05 - 15.685 Once the Supreme Court

01:05 - 17.046 of Pennsylvania answers

01:05 - 18.676 the Third Circuit's question,

01:05 - 20.249 the Third Circuit will go on

01:05 - 21.227 and apply the

01:05 - 22.885 decision to rule on Mr.

01:05 - 23.753 Harris's appeal.

01:05 - 25.588 Counsel for Mr.

01:05 - 26.971 Harris will proceed

01:05 - 28.157 first, counsel

01:05 - 29.040 for the United

01:05 - 30.459 States will respond.

01:05 - 31.421 The Supreme Court

01:05 - 33.095 has also invited the office

01:05 - 33.759 of the Attorney

01:05 - 34.897 General of Pennsylvania

01:05 - 37.533 to argue as friend of the Court.

01:05 - 39.001 Let's go ahead and listen.

01:05 - 40.925 This is the United States versus

01:05 - 42.872 Harris on a certified question

01:05 - 44.245 from the Federal Court of

01:05 - 45.975 Appeals for the Third Circuit

01:05 - 47.769 to the Pennsylvania

01:05 - 49.612 Supreme Court. In.

01:05 - 54.183 The United States of America.

01:05 - 55.015 First is Marty

01:05 - 56.352 Harris, representing

01:05 - 01.590 the United States with Al Gore,

01:06 - 03.996 representing the attorney

01:06 - 06.762 general's office is providing.

01:06 - 08.431 Good morning.

01:06 - 10.666 We granted a petition

01:06 - 12.641 for certification of a

01:06 - 14.103 question of law filed

01:06 - 15.785 by the Third Circuit Court

01:06 - 17.073 of Appeals to determine

01:06 - 19.577 whether the use of the use

01:06 - 22.878 or threat of force is an element

01:06 - 25.167 in Pennsylvania's first degree

01:06 - 27.016 aggravated assault statute.

01:06 - 30.252 The government contends that

01:06 - 31.950 the statute requires

01:06 - 34.357 some use of physical force

01:06 - 37.860 to prove an aggravated assault.

01:06 - 39.837 The appellant argues

01:06 - 41.731 that the use of or threat of

01:06 - 43.242 use of force is not an

01:06 - 45.401 element of aggravated assault

01:06 - 46.900 and points to the

01:06 - 47.770 Superior Court's

01:06 - 49.264 decision in 2005 of

01:06 - 51.574 Commonwealth versus Thomas.

01:06 - 53.342 Again, we accepted this

01:06 - 54.731 because our court had

01:06 - 56.612 never opined to the issue,

01:06 - 00.449 so feel free to begin.

01:07 - 01.283 Thank you, Mr.

01:07 - 02.318 Chief Justice, and may

01:07 - 03.519 have pleased the Court.

01:07 - 05.631 My name is Brett Sweitzer

01:07 - 06.856 from the Federal Defender

01:07 - 08.861 and it is an honor to be

01:07 - 10.693 up here before the court.

01:07 - 13.601 The certified question has

01:07 - 15.097 a straightforward answer

01:07 - 18.300 and that's the 27 to 2 A one

01:07 - 20.315 does not have an element to

01:07 - 22.271 use or threaten use of force.

01:07 - 23.586 Instead, the act is

01:07 - 25.274 Reyes is the causation

01:07 - 26.642 or the

01:07 - 27.788 attempted causation

01:07 - 29.445 of serious bodily injury.

01:07 - 31.584 That is clear from all

01:07 - 32.815 indicators of meaning.

01:07 - 34.790 The statutory text,

01:07 - 36.552 the statutory context,

01:07 - 39.121 the pattern, jury instructions,

01:07 - 40.510 the legislative history, and

01:07 - 42.024 indeed Pennsylvania case law

01:07 - 44.744 to import a physical force

01:07 - 47.096 requirement into Section A1

01:07 - 48.502 or to serve the

01:07 - 49.932 legislatures prerogative

01:07 - 51.701 and invite endless

01:07 - 53.235 litigation over the scope

01:07 - 55.212 and effect of that newly

01:07 - 56.739 recognized requirement.

01:07 - 58.343 The Court should not

01:07 - 59.575 open those floodgates,

01:07 - 01.897 but instead should confirm

01:08 - 04.413 Section A one's plain meaning.

01:08 - 07.116 To begin with the text.

01:08 - 09.085 It could not be clearer

01:08 - 10.809 that the statute says

01:08 - 12.888 the elements are either

01:08 - 14.303 an attempt or causation

01:08 - 15.991 of serious bodily injury,

01:08 - 17.965 plus a mens rea of knowing

01:08 - 19.562 or extreme recklessness.

01:08 - 22.588 Not only is a force requirement,

01:08 - 24.667 not the text of the statute,

01:08 - 26.212 but when we look at the text,

01:08 - 27.603 we see something incompatible

01:08 - 29.605 with the force requirement.

01:08 - 31.441 And that is an attempt,

01:08 - 33.542 an attempt here in this,

01:08 - 35.532 of course, is an attempt to

01:08 - 37.546 battery, which would mean

01:08 - 39.025 an intent to commit a

01:08 - 41.450 battery plus a substantial step.

01:08 - 43.252 Neither of

01:08 - 44.228 which those two

01:08 - 45.821 elements would require

01:08 - 48.543 physical force or

01:08 - 50.759 threaten physical force

01:08 - 55.097 to the victim. So

01:08 - 56.589 so it's no surprise

01:08 - 57.867 then, frankly,

01:08 - 00.269 that the jury instructions

01:09 - 01.737 are quite clear.

01:09 - 03.435 And this is pattern

01:09 - 05.608 instruction 15 to 72 B

01:09 - 07.796 when they say there

01:09 - 09.912 are two elements of 27

01:09 - 11.468 oh to A one, and of course,

01:09 - 13.048 that's causation, serious

01:09 - 14.215 bodily injury and

01:09 - 15.684 the bands are here.

01:09 - 18.921 So if were

01:09 - 21.023 if more were were required here.

01:09 - 23.094 We can also draw

01:09 - 24.593 a negative inference

01:09 - 25.611 from what the

01:09 - 27.196 legislature has done

01:09 - 30.633 in other statutes,

01:09 - 31.033 right?

01:09 - 33.227 In 2702, of course, in a

01:09 - 36.272 four and a six, the Legislature

01:09 - 40.142 provides for specific methods

01:09 - 43.812 of infliction of bodily injury.

01:09 - 46.487 In a four, of course, that's a

01:09 - 48.317 by a deadly weapon in a six,

01:09 - 50.356 it's by physical menace, which

01:09 - 52.488 is essentially physical force

01:09 - 54.278 or threatened or

01:09 - 56.158 threatened physical force.

01:09 - 57.972 Typically, these involve

01:09 - 59.261 gun pointing cases,

01:09 - 01.430 as the court is aware.

01:10 - 02.679 Yet in A1 there is

01:10 - 04.233 no such requirement.

01:10 - 05.812 Of course we just have

01:10 - 06.869 serious bodily injury.

01:10 - 08.555 A neighboring provision

01:10 - 10.339 2703 and other assault

01:10 - 13.576 statute specifically says is

01:10 - 16.045 requires assault by

01:10 - 17.668 force likely to cause

01:10 - 19.548 serious bodily injury.

01:10 - 21.782 Again, nothing in a 127

01:10 - 23.919 no to a one about force.

01:10 - 25.705 And of course, perhaps

01:10 - 27.156 most familiar to the court

01:10 - 28.886 is the robbery

01:10 - 31.760 provision in 30 701a1

01:10 - 33.950 which provides

01:10 - 35.764 the defines robbery

01:10 - 37.132 really in various ways

01:10 - 38.973 obviously, but including

01:10 - 41.070 to theft by bodily injury

01:10 - 42.844 or theft accompanied by

01:10 - 44.123 bodily injury or

01:10 - 45.574 theft separately

01:10 - 47.276 in a separate subsection

01:10 - 49.144 by accompanied by force.

01:10 - 50.980 So the legislature knows how

01:10 - 52.208 to distinguish these things

01:10 - 53.415 and how to require force

01:10 - 55.273 and simply does not

01:10 - 56.619 in section eight want

01:10 - 00.756 we could I

01:11 - 01.450 as a matter of

01:11 - 02.825 statutory interpretation,

01:11 - 04.089 I think the court

01:11 - 05.527 could stop there.

01:11 - 07.930 But the the

01:11 - 11.567 the attorney general at least

01:11 - 14.470 sort of hangs

01:11 - 17.006 its hat on legislative history

01:11 - 18.096 and looks points to

01:11 - 19.441 the model penal code.

01:11 - 20.843 So 2702

01:11 - 23.176 is the adoption of

01:11 - 24.480 the Model Penal Code.

01:11 - 25.721 And somehow there's

01:11 - 27.316 a hidden force element

01:11 - 29.202 that was carried over

01:11 - 31.654 from common law into 2702

01:11 - 32.952 that let's just start

01:11 - 33.889 reading the legislative

01:11 - 34.996 of the legislative

01:11 - 36.625 history is simply wrong.

01:11 - 39.561 Respectfully And if.

01:11 - 41.467 The court looks at the

01:11 - 42.931 commentaries to the Model

01:11 - 45.004 Penal Code, what it

01:11 - 47.870 will see is that in the.

01:11 - 49.438 Modernization.

01:11 - 51.463 Of that of common law, battery

01:11 - 53.309 law, the Model Penal Code

01:11 - 55.878 drafters chose to drop

01:11 - 59.114 the common contact requirement

01:12 - 02.384 and instead place

01:12 - 03.663 in its place the bodily

01:12 - 04.853 injury requirement.

01:12 - 08.357 That's what permits

01:12 - 10.204 the holdings of

01:12 - 11.894 really the uniform

01:12 - 14.663 holdings of the lower courts

01:12 - 16.799 in this Commonwealth

01:12 - 20.002 to find that neglect,

01:12 - 23.072 typically child neglect cases,

01:12 - 24.852 but also sometimes in the

01:12 - 26.942 case of seniors, which can.

01:12 - 28.677 Constitute

01:12 - 30.587 wanted to let you

01:12 - 31.680 get your basics.

01:12 - 33.716 I'm sorry,

01:12 - 34.956 I wanted to let you

01:12 - 36.418 get your premise up.

01:12 - 38.515 I think the nub of the case

01:12 - 40.489 and if you disagree, tell me,

01:12 - 42.632 is that our aggravated

01:12 - 44.560 assault statute requires

01:12 - 47.563 circumstances manifesting

01:12 - 48.864 an extreme indifference

01:12 - 50.532 to the value of human life.

01:12 - 52.050 And at least at

01:12 - 53.602 first blush, it's hard

01:12 - 56.572 to see how one can manifest.

01:12 - 57.728 I think that's an

01:12 - 58.774 important word.

01:12 - 59.860 Extreme indifference

01:12 - 01.410 to the value of human life

01:13 - 05.013 and and and yet not do anything,

01:13 - 07.649 not lay hands on, not

01:13 - 09.632 do something

01:13 - 11.220 that that, you know,

01:13 - 13.626 it is a violent

01:13 - 16.658 act or is an act.

01:13 - 20.829 Of course, Your Honor,

01:13 - 22.831 there section three or one

01:13 - 25.327 defines an act as an omission

01:13 - 27.269 or an affirmative action.

01:13 - 29.204 And we don't dispute that.

01:13 - 31.062 What you have, though, is

01:13 - 33.542 it's the neglect cases, really.

01:13 - 34.774 So that's that's primarily

01:13 - 36.078 what we're talking about.

01:13 - 37.575 And the question

01:13 - 39.181 is, is it possible

01:13 - 40.610 to even with extreme

01:13 - 42.384 recklessness or even knowing

01:13 - 44.324 mens rea, is it possible

01:13 - 46.288 to cause bodily injury

01:13 - 49.825 without that

01:13 - 51.566 that contact requirement

01:13 - 54.062 that that frankly, doesn't exist

01:13 - 56.181 under under this under 2702

01:13 - 58.367 but that existed under the

01:13 - 59.935 common law.

01:13 - 01.645 And, and and the

01:14 - 04.239 answer is plainly yes.

01:14 - 05.045 And we've answered

01:14 - 06.375 we've answered that. Right.

01:14 - 08.610 The Nixon case from 2000.

01:14 - 09.812 Yes, yes, your honor.

01:14 - 10.879 And all the

01:14 - 11.796 all of the cases in the

01:14 - 13.182 Commonwealth are in accord here.

01:14 - 15.339 So for instance in

01:14 - 17.252 the Commonwealth

01:14 - 18.052 in fact and the

01:14 - 19.254 Superior Court case,

01:14 - 20.189 the Commonwealth took the

01:14 - 21.487 opposite position in the

01:14 - 23.192 Thomas case, the Commonwealth

01:14 - 24.113 and the Superior Court

01:14 - 25.227 were correct and Thomas,

01:14 - 29.031 there was no force there,

01:14 - 30.108 but there was no and

01:14 - 31.700 there need not be any force

01:14 - 34.268 and the aggravated assault

01:14 - 35.737 conviction was proper.

01:14 - 36.508 Likewise in I

01:14 - 37.906 guess, which is cited

01:14 - 39.523 by the Attorney General

01:14 - 41.376 neglecting a 92 year old

01:14 - 43.635 can be if death results,

01:14 - 45.147 third degree murder,

01:14 - 46.704 but not because housing

01:14 - 48.484 him in the country is force

01:14 - 50.480 or that there's any requirement

01:14 - 51.920 for force under the murders,

01:14 - 53.721 under under the definition

01:14 - 55.190 definition of murder.

01:14 - 56.480 But because force

01:14 - 57.392 is not required

01:14 - 59.387 and under section 301,

01:14 - 01.497 an omission suffices.

01:15 - 03.206 Likewise, Miller and Kellam,

01:15 - 05.000 these are the infant cases.

01:15 - 07.202 Their right to

01:15 - 08.320 there can be a murder, a

01:15 - 09.838 third degree murder conviction

01:15 - 12.605 involving neglect of

01:15 - 13.709 an infant, even though

01:15 - 14.910 there is no restraint.

01:15 - 17.732 In other words, even though

01:15 - 20.682 there's no physical force.

01:15 - 25.020 So the the government,

01:15 - 27.003 the United States, to a certain

01:15 - 28.590 extent, the attorney general

01:15 - 30.013 in again, with

01:15 - 31.894 respect, I think, tries to

01:15 - 36.031 unduly complicates this case.

01:15 - 37.392 There's a lot of argument

01:15 - 38.667 about or pre argument

01:15 - 40.360 previews of federal

01:15 - 42.104 arguments and so forth

01:15 - 45.040 about whether

01:15 - 46.553 we can look beyond the

01:15 - 48.010 elements we meaning as

01:15 - 50.279 from the federal perspective,

01:15 - 51.185 ultimately what this

01:15 - 52.114 case is about once

01:15 - 54.242 it goes back to federal

01:15 - 56.952 court, do the elements does

01:15 - 57.796 the federal court look

01:15 - 58.587 past the elements?

01:15 - 00.656 Is there some inherent

01:16 - 02.392 underlying requirements

01:16 - 04.760 that are behind the elements?

01:16 - 05.786 All those sorts of things?

01:16 - 06.995 Those are federal questions.

01:16 - 08.463 We will debate that.

01:16 - 09.231 When we go back

01:16 - 10.232 to federal court.

01:16 - 12.901 And not

01:16 - 14.726 surprisingly, I, I did not

01:16 - 16.505 preview in my briefing,

01:16 - 19.428 but not surprisingly, we have

01:16 - 21.243 we we disagree about that.

01:16 - 23.845 And so there's I would

01:16 - 25.810 suggest to the court those

01:16 - 27.182 issues are not before it.

01:16 - 28.517 The Third Circuit

01:16 - 29.781 really needs to know under

01:16 - 31.119 the categorical approach.

01:16 - 32.754 This court, I think, is

01:16 - 34.301 perhaps not as familiar,

01:16 - 36.391 but maybe a bit more familiar.

01:16 - 38.079 I saw on the case recently

01:16 - 39.661 that the court adopted

01:16 - 43.332 a similar approach for certain

01:16 - 45.734 inquiries under state law.

01:16 - 48.103 But the Third Circuit

01:16 - 49.304 needs to know now just

01:16 - 50.639 what are the elements?

01:16 - 52.240 That's it.

01:16 - 53.442 And then we answer

01:16 - 55.410 that to the federal courts.

01:16 - 56.303 So go back and figure

01:16 - 57.479 out what to do with that.

01:16 - 58.653 I can I would only

01:16 - 00.115 add your honors that

01:17 - 05.520 sort of reaching out

01:17 - 07.667 to hold again in my

01:17 - 10.158 position, at least contrary

01:17 - 11.942 to the text and everything

01:17 - 14.096 else, that there is some sort

01:17 - 15.297 of a force element,

01:17 - 16.856 a requirement in 20

01:17 - 19.101 702a1 is a Pandora's box.

01:17 - 21.800 I mean, first of all, it's

01:17 - 23.905 little peculiar to to have

01:17 - 25.539 the attorney general

01:17 - 26.942 at least sort of adding

01:17 - 27.988 a requirement, adding

01:17 - 29.411 an element to the offense.

01:17 - 31.914 But I can assure you

01:17 - 33.982 that the federal courts,

01:17 - 35.784 where physical force

01:17 - 37.653 is actually in the statute.

01:17 - 38.824 So that's why they have

01:17 - 40.022 to deal with this issue.

01:17 - 41.690 They've been grappling with

01:17 - 42.551 what does physical

01:17 - 43.825 force mean for 20 years.

01:17 - 46.261 And so

01:17 - 47.702 not only would reading

01:17 - 49.431 that type of requirement

01:17 - 50.265 in the Pennsylvania law,

01:17 - 51.467 not be consistent

01:17 - 53.335 with this court's normal

01:17 - 55.456 approach to

01:17 - 57.205 statutory construction?

01:17 - 00.175 But it would also

01:18 - 01.977 be a huge headache, frankly.

01:18 - 02.988 What does that

01:18 - 04.680 mean in future cases?

01:18 - 05.889 What does that

01:18 - 07.182 mean in past cases?

01:18 - 09.065 Has any jury for been

01:18 - 12.054 instructed in a one prosecution

01:18 - 13.055 about the hidden

01:18 - 14.523 requirement of force?

01:18 - 16.649 Has any defendant been

01:18 - 18.360 allowed to argue against

01:18 - 19.698 that to present evidence

01:18 - 21.229 that it was not forcible?

01:18 - 23.242 Well, once and Thomas

01:18 - 24.933 and they were shot down,

01:18 - 27.102 apparently from our research.

01:18 - 28.749 But if this court were

01:18 - 30.872 to to sort of to reach out

01:18 - 32.474 and recognize

01:18 - 33.635 some sort of a new element

01:18 - 34.910 or new hidden requirement,

01:18 - 37.603 it seems to me that that's

01:18 - 39.548 that is a that is a litigation

01:18 - 41.349 engine.

01:18 - 43.051 And, again, a Pandora's box,

01:18 - 44.588 both for past cases and

01:18 - 46.621 for future cases of counsel.

01:18 - 47.956 Yes, Your Honor.

01:18 - 48.997 Didn't the Third

01:18 - 50.325 Circuit already go

01:18 - 51.965 the way of your argument

01:18 - 52.994 in the Mayo case?

01:18 - 54.396 It did, in fact.

01:18 - 55.026 Then what's the

01:18 - 56.064 purpose of being here?

01:18 - 56.565 Are they trying

01:18 - 58.497 to overrule their Mayo case

01:18 - 00.669 as opposed to going on bunk?

01:19 - 01.332 Well, it's an

01:19 - 02.537 interesting question.

01:19 - 03.219 I can say I've

01:19 - 04.372 pondered that myself.

01:19 - 06.641 Unfortunately, I don't have

01:19 - 08.133 I'm not a fly on the wall, so I

01:19 - 09.745 can't give a definitive answer.

01:19 - 12.380 But what we do know is that

01:19 - 14.419 this was decided

01:19 - 16.084 before and apparently

01:19 - 19.166 apparently I this

01:19 - 21.289 as sort of a dot

01:19 - 22.663 the I's and cross the T or a

01:19 - 24.159 belt and suspenders approach

01:19 - 27.028 in deference to federalism.

01:19 - 28.477 And so, of course, in

01:19 - 30.298 email, the third Circuit

01:19 - 33.106 not a huge leap because

01:19 - 34.536 I think this is clear

01:19 - 35.830 as a matter of state

01:19 - 37.606 statutory interpretation.

01:19 - 39.033 But the Third Circuit

01:19 - 41.376 predicted the elements of of one

01:19 - 43.335 and then went on to

01:19 - 44.579 make its federal holdings.

01:19 - 48.049 They relied. On commerce.

01:19 - 49.439 Which is now intermediate

01:19 - 50.685 appellate court case

01:19 - 53.922 in June.

01:19 - 54.990 This court is that

01:19 - 56.699 the question is cert with

01:19 - 58.226 notwithstanding Mayo

01:19 - 59.779 because it recognized that

01:19 - 01.596 Mayo was premised on farmers

01:20 - 04.065 and before the federal court

01:20 - 05.551 adopted that we wanted

01:20 - 06.868 to look at it personally.

01:20 - 08.458 I think, That's

01:20 - 09.271 right, Your Honor.

01:20 - 10.889 I think in the in the

01:20 - 12.841 certification petition,

01:20 - 15.143 the Third Circuit talked about,

01:20 - 16.845 they didn't see other cases,

01:20 - 18.480 quote unquote. Solidify in.

01:20 - 20.148 Thomas or whatnot.

01:20 - 21.783 I don't think that's required

01:20 - 22.517 as your honors are,

01:20 - 24.089 where my first position

01:20 - 25.754 in this proceeding was

01:20 - 27.108 that the court should

01:20 - 28.390 not accept the petition

01:20 - 30.628 either because there's

01:20 - 32.527 no substantial question or

01:20 - 34.350 or what I was pointing

01:20 - 36.097 to, frankly, was the

01:20 - 37.785 the the general

01:20 - 40.001 prudential rule of this court

01:20 - 41.161 that you don't decide

01:20 - 42.904 previously decided questions.

01:20 - 44.072 And so

01:20 - 46.297 the Third Circuit's

01:20 - 47.209 interpretation

01:20 - 48.400 of the Pennsylvania

01:20 - 50.312 obviously has no effect here

01:20 - 52.881 in the Commonwealth's courts.

01:20 - 54.683 And so I think that that would

01:20 - 56.394 still be an appropriate

01:20 - 58.353 resolution of this case.

01:20 - 00.822 The Court could

01:21 - 02.127 dismiss the case

01:21 - 03.158 is is sort of been

01:21 - 04.005 providentially

01:21 - 05.427 granted, so to speak.

01:21 - 07.128 But if it did not if it does

01:21 - 09.097 not wish to, that I would urge

01:21 - 11.707 the court to interpret a

01:21 - 14.669 one just as it interprets

01:21 - 16.680 statutory other statutes

01:21 - 18.573 all the time and not create

01:21 - 20.673 massive, in my opinion, what

01:21 - 22.143 would be massive problems

01:21 - 23.132 for the common in the

01:21 - 24.145 Commonwealth Court?

01:21 - 24.813 Pardon me, counsel.

01:21 - 26.219 You're saying that we could

01:21 - 28.016 economically dispose of the case

01:21 - 30.585 by sending a one paragraph

01:21 - 32.650 memorandum back to

01:21 - 34.022 the Third Circuit saying

01:21 - 35.190 you got it right in Mayo.

01:21 - 37.192 C Thomas, thank you.

01:21 - 37.881 Yes, I think that

01:21 - 38.760 that could be done.

01:21 - 41.154 Mr.. Have you ever

01:21 - 42.597 heard of an instance

01:21 - 43.506 where we have turned

01:21 - 44.532 down a Third Circuit

01:21 - 45.984 request for certification

01:21 - 47.402 of that oral question?

01:21 - 49.271 I did.

01:21 - 51.331 I can't say as I kept the case

01:21 - 53.208 name in my mind, but when

01:21 - 55.337 when we were initially briefing

01:21 - 57.145 the acceptance question,

01:21 - 58.413 I did see that

01:21 - 59.446 at least on one

01:21 - 00.782 or two occasions,

01:22 - 01.731 I thought in the

01:22 - 03.184 last five or ten years

01:22 - 05.365 that the certification denied

01:22 - 07.722 I'd be I'd be happy to prior.

01:22 - 08.990 To 2016.

01:22 - 09.871 Those denials

01:22 - 11.326 were prior to 2016.

01:22 - 13.594 I can tell you that as a

01:22 - 15.257 matter of comedy,

01:22 - 16.932 it's difficult.

01:22 - 18.700 Say why one would say no.

01:22 - 21.002 And when asked. I told you.

01:22 - 22.141 I absolutely understand

01:22 - 23.104 that, Your Honor.

01:22 - 25.168 And as as Your Honor pointed,

01:22 - 27.542 there are other economical ways

01:22 - 28.476 short of

01:22 - 32.647 a dismissal to achieve the same.

01:22 - 33.575 I think we've put you in

01:22 - 34.683 an uncomfortable position.

01:22 - 36.618 We can't remember, so

01:22 - 37.497 we shouldn't expect

01:22 - 38.353 you to remember.

01:22 - 40.415 Granted, on this one, I will

01:22 - 42.724 therefore deal with this one.

01:22 - 43.429 You don't have to

01:22 - 44.326 help us. Thank you.

01:22 - 45.660 Thank you've.

01:22 - 47.429 Anything else you want to add?

01:22 - 48.469 Any other questions? I would

01:22 - 49.431 be happy to. Answer for the.

01:22 - 50.265 Thank you.

01:22 - 51.299 Thank you.

01:22 - 51.633 Thank you.

01:22 - 56.271 I understand. So

01:22 - 57.739 good morning.

01:22 - 58.709 Your Honor, may I

01:22 - 00.108 please the Court Well,

01:23 - 01.578 Robert Salisbury, on

01:23 - 03.812 behalf of the United States,

01:23 - 04.308 thank you very

01:23 - 05.046 much for the honor

01:23 - 06.915 of appearing before this court.

01:23 - 09.451 The the categorical approach is

01:23 - 10.632 an incredibly unusual

01:23 - 12.120 doctrine of federal law.

01:23 - 13.843 And I would imagine that

01:23 - 14.850 state practitioners

01:23 - 15.657 in this court

01:23 - 17.425 probably feel fortunate

01:23 - 18.112 when they see

01:23 - 19.361 reference to it, that

01:23 - 20.695 they don't have to deal with

01:23 - 22.197 it on a daily basis as we do.

01:23 - 23.565 And it leads us

01:23 - 25.276 to some very strange places,

01:23 - 27.135 and this may be one of them.

01:23 - 28.766 The what's strange about

01:23 - 30.538 it, of course, is you're dealing

01:23 - 32.340 with the question of recidivism.

01:23 - 33.812 You're with a question

01:23 - 35.443 of when is an offender

01:23 - 36.511 so serious,

01:23 - 38.054 an offender that he or she

01:23 - 39.681 should be more sanctioned

01:23 - 40.382 by the law?

01:23 - 41.755 But if I can interrupt, I

01:23 - 43.485 respect that and I understand

01:23 - 44.874 you're wrestling with

01:23 - 46.621 that, but we're not see,

01:23 - 48.074 recidivism is not

01:23 - 49.290 our it's your issue.

01:23 - 50.615 I understand down the

01:23 - 52.727 street, but our issue is narrow

01:23 - 54.430 and it's just giving the

01:23 - 55.830 Third Circuit the answer

01:23 - 58.833 on whether use of physical force

01:23 - 00.123 is required under our

01:24 - 01.436 aggravated statute,

01:24 - 02.835 having nothing to do

01:24 - 04.639 with your statutes. And.

01:24 - 07.101 And doesn't the

01:24 - 08.676 case begin and end

01:24 - 10.320 with simply asking

01:24 - 12.180 whether we can hypothesize

01:24 - 13.329 reasonably plausible

01:24 - 15.316 hypotheticals that don't involve

01:24 - 16.622 the use of force but

01:24 - 17.886 nonetheless meet?

01:24 - 20.155 2702 So the neglect cases

01:24 - 21.664 would seem to

01:24 - 23.291 answer that clearly.

01:24 - 24.331 What what are we missing

01:24 - 25.527 there? What am I missing?

01:24 - 26.500 Thank you for the

01:24 - 27.529 question, Your Honor.

01:24 - 28.295 What is not the

01:24 - 29.397 focus of this court

01:24 - 30.697 and should not be the

01:24 - 32.333 focus is what is, quote,

01:24 - 33.981 physical force that is

01:24 - 35.804 a term of federal law.

01:24 - 37.505 And what my friend Mr.

01:24 - 39.585 Sweitzer here is doing very

01:24 - 41.843 ably is seeking a home run,

01:24 - 43.858 looking to get a court

01:24 - 46.081 of this August stature

01:24 - 47.823 to say a statute doesn't

01:24 - 49.384 involve physical force.

01:24 - 50.928 Knowing how influential that

01:24 - 52.420 will be with the Third Circuit.

01:24 - 54.189 And it would be wrong.

01:24 - 55.557 And the reason it would be wrong

01:24 - 57.715 is that that term physical force

01:24 - 59.761 only appears in federal law.

01:25 - 01.521 It's a term of art in the

01:25 - 03.064 ARM Career Criminal Act.

01:25 - 04.785 The Armed Career Criminal

01:25 - 06.501 Act says a prior violent crime

01:25 - 08.272 is one that has as an

01:25 - 10.171 element the use, attempted

01:25 - 11.335 use or threatened

01:25 - 13.007 use of physical force.

01:25 - 14.227 That's the only

01:25 - 15.376 place it appears.

01:25 - 16.377 And the United States

01:25 - 17.545 Supreme Court has said

01:25 - 19.319 explicitly that this is a

01:25 - 21.116 question of federal law

01:25 - 23.042 and what a state law state

01:25 - 24.686 quite has to say about it

01:25 - 25.787 is not relevant.

01:25 - 27.585 That's the Johnson case in

01:25 - 29.824 2010, the Johnson case in 2010

01:25 - 31.212 that we've cited involved

01:25 - 32.961 the Supreme Court of Florida,

01:25 - 34.764 which much like the superior

01:25 - 36.364 court in Thomas in this case

01:25 - 38.334 had said, what is physical

01:25 - 39.868 force and what is not?

01:25 - 41.417 And the United States Supreme

01:25 - 42.937 Court said, we don't care.

01:25 - 44.305 We interpret

01:25 - 45.673 what physical force means

01:25 - 47.342 in the armed career criminal

01:25 - 49.049 and what we look to states

01:25 - 50.979 for and to the state courts

01:25 - 53.319 is to tell us what acts

01:25 - 55.316 violate this statute.

01:25 - 56.362 Now, Counsel, I

01:25 - 57.685 disagree with you there.

01:25 - 58.438 I think what they're

01:25 - 59.521 asking for is what are the

01:26 - 02.701 what acts can meet the

01:26 - 03.445 elements is a

01:26 - 04.659 different question.

01:26 - 06.172 But the question we've

01:26 - 07.395 got from the circuit is,

01:26 - 09.780 is physical force

01:26 - 12.133 element of the crime,

01:26 - 14.390 not an act that will equate

01:26 - 16.337 to an element of the crime.

01:26 - 17.939 And so I think there

01:26 - 19.345 is a difference between

01:26 - 20.775 mechanism and element

01:26 - 22.092 and why should we

01:26 - 23.778 get into this discussion

01:26 - 25.346 about what physical force is.

01:26 - 26.569 If I can just look at

01:26 - 27.815 the statute and see

01:26 - 29.247 there's nothing about force,

01:26 - 30.652 period, physical, mental,

01:26 - 33.306 emotional, anything that

01:26 - 36.257 says it's about affect what

01:26 - 37.847 that what is caused and mens

01:26 - 39.460 rea begins and ends there.

01:26 - 40.061 Thank you.

01:26 - 41.286 That's a very fair question

01:26 - 42.397 that the federal court

01:26 - 43.453 is looking to what

01:26 - 44.532 the elements are

01:26 - 45.372 and looking to the

01:26 - 46.568 state court definition.

01:26 - 47.922 What we often do,

01:26 - 49.404 though, and we litigate

01:26 - 51.219 these categorical approach

01:26 - 52.200 cases constantly,

01:26 - 53.308 unfortunately, is

01:26 - 55.175 we must look to the acts

01:26 - 57.145 in state reported cases

01:26 - 58.162 to inform us as to

01:26 - 59.280 what the elements are.

01:26 - 00.126 So I appreciate

01:27 - 01.282 the clarification.

01:27 - 03.484 We are looking for the elements,

01:27 - 04.439 but when we look to the

01:27 - 05.587 elements of this statute,

01:27 - 06.304 I think the answer

01:27 - 07.288 to the Third Circuit's

01:27 - 09.390 question is very clear.

01:27 - 11.342 The elements of first degree

01:27 - 13.528 aggravated assault are clear.

01:27 - 15.140 One has to show that the

01:27 - 16.531 person attempted to use

01:27 - 19.968 or inflicted serious bodily.

01:27 - 20.700 And the other

01:27 - 21.970 part of the question

01:27 - 23.862 is the volition question is

01:27 - 25.707 informed by section 301.

01:27 - 26.890 It either has to

01:27 - 28.076 be a volitional act

01:27 - 30.129 or it has to be a failure to act

01:27 - 31.679 by a person who has a duty.

01:27 - 33.726 But you would agree that

01:27 - 35.984 in both of those scenarios

01:27 - 38.245 the General Assembly did not

01:27 - 40.321 use any words regarding force.

01:27 - 42.123 Do not use the word force

01:27 - 44.993 or any

01:27 - 46.430 derivative or or

01:27 - 48.162 equivalent of it.

01:27 - 49.738 I agree that the words

01:27 - 51.232 physical force are not used.

01:27 - 52.688 I also agree with

01:27 - 53.668 my colleague, Mr.

01:27 - 54.394 Eisenberg, who

01:27 - 55.670 will address the court

01:27 - 57.262 that for all intents

01:27 - 58.773 and purposes, serious

01:27 - 00.506 bodily injury does equate

01:28 - 02.543 it actually more than meets

01:28 - 04.169 the common definition

01:28 - 05.513 of a physical force.

01:28 - 06.869 And so, in fact,

01:28 - 08.750 requiring proof of serious

01:28 - 09.942 bodily injury is

01:28 - 11.986 requiring physical force.

01:28 - 14.409 But I jump in on that and ask

01:28 - 17.191 you then, would you tell us how

01:28 - 21.462 a parent convicted

01:28 - 24.198 under 27 to

01:28 - 25.982 has used physical

01:28 - 28.002 force when she or

01:28 - 29.536 he did not seek

01:28 - 31.506 medical treatment

01:28 - 35.109 for an injured?

01:28 - 35.731 Well, there are two

01:28 - 36.377 ways, Your Honor.

01:28 - 37.011 First of all.

01:28 - 37.956 What was the physical

01:28 - 38.880 force there? Sure.

01:28 - 40.648 First of all, the individual

01:28 - 42.288 in the starvation case

01:28 - 44.252 in the medical case, the

01:28 - 45.395 the individual does use

01:28 - 46.821 physical force in the sense

01:28 - 48.400 that he or she has to

01:28 - 50.458 put the person in a place

01:28 - 53.361 where help cannot be obtained.

01:28 - 54.808 The starvation cases

01:28 - 55.863 normally involve

01:28 - 56.890 locking somebody

01:28 - 58.266 in a room. That is.

01:28 - 59.600 Let's assume it's an infant.

01:28 - 01.502 The parent simply walks away.

01:29 - 02.437 If it's an infant,

01:29 - 03.680 then the person has

01:29 - 05.673 placed the infant in a place

01:29 - 07.475 where help is not available.

01:29 - 08.676 The physical. Force.

01:29 - 10.845 The physical it's a physical act

01:29 - 11.869 of putting the person

01:29 - 13.214 there, the physical force

01:29 - 14.315 is that the person

01:29 - 16.378 is also taking advantage of

01:29 - 18.619 the profound physical force

01:29 - 20.059 that will then ensue that

01:29 - 21.522 ends the person's life.

01:29 - 22.701 What the Supreme you

01:29 - 23.991 know, Supreme Court, the U.S.

01:29 - 25.969 Supreme Court has defined

01:29 - 28.529 physical force as being common

01:29 - 30.555 law force and has said

01:29 - 32.174 simply that it is

01:29 - 33.901 concrete action.

01:29 - 34.562 Counsel, let me interrupt

01:29 - 35.436 you, because you're going down

01:29 - 37.505 that rabbit hole. We

01:29 - 39.173 we shouldn't

01:29 - 40.635 care, nor should we

01:29 - 42.510 look at how the United

01:29 - 43.713 Supreme Court defines

01:29 - 45.313 physical force for this statute.

01:29 - 47.626 We should simply look

01:29 - 49.684 to the statute to see,

01:29 - 51.247 is there any indicia of

01:29 - 52.520 the general assemblies

01:29 - 54.966 to require proof

01:29 - 56.391 of physical force

01:29 - 57.722 to get a conviction

01:29 - 58.960 under this statute?

01:29 - 00.340 That's really what we

01:30 - 01.329 should be looking at.

01:30 - 02.498 And what I'm saying,

01:30 - 04.399 Your Honor, is that this court

01:30 - 05.867 really should not concern itself

01:30 - 06.769 with the concept of

01:30 - 07.935 physical force at all.

01:30 - 10.021 This court should define the

01:30 - 12.073 elements of aggravated assault.

01:30 - 13.331 Those elements are

01:30 - 15.743 inflicting serious bodily injury

01:30 - 17.650 either directly or through

01:30 - 19.280 an omission by a person.

01:30 - 19.847 Well, if we do.

01:30 - 20.815 But that's what you're

01:30 - 21.457 telling us, that the

01:30 - 22.417 answer to the Third Circuit

01:30 - 23.251 certified question

01:30 - 24.426 is to tell the Third Circuit

01:30 - 25.753 what is to quote the statute.

01:30 - 27.710 I believe that happens

01:30 - 28.923 to be the case is some

01:30 - 30.324 cases are simple.

01:30 - 32.160 And then once that happens,

01:30 - 33.686 once this court tells

01:30 - 35.163 the Third Circuit,

01:30 - 36.864 the elements are plain,

01:30 - 38.191 the elements are serious

01:30 - 39.224 bodily injury with

01:30 - 40.268 a volitional act

01:30 - 41.173 or an omission by a

01:30 - 42.537 person with a duty to act.

01:30 - 43.905 It's then up to the

01:30 - 45.339 Third Circuit to decide

01:30 - 47.708 is that, quote, physical force.

01:30 - 49.043 That's like telling the Third

01:30 - 50.184 Circuit, stop

01:30 - 52.146 asking us questions.

01:30 - 53.023 I can't speak for

01:30 - 54.081 the Third Circuit.

01:30 - 55.550 Your Honor, I.

01:30 - 56.649 I was puzzled when

01:30 - 58.019 I saw this question.

01:30 - 01.589 Counsel, may I ask you it?

01:31 - 04.586 I read all the hypos, perhaps

01:31 - 07.462 we all did that you're reciting.

01:31 - 09.136 To say that I had

01:31 - 11.132 to question myself

01:31 - 12.374 that it seems to me

01:31 - 14.168 that adopting those kinds

01:31 - 16.347 of constructs, that walking

01:31 - 18.306 away is physical force

01:31 - 22.109 that is seen in the child

01:31 - 24.006 in a bathtub, drowning

01:31 - 26.881 and not lifting a hand to help.

01:31 - 28.686 The child is physical force

01:31 - 30.852 and it seemed results oriented

01:31 - 32.627 to me rather than a fair,

01:31 - 34.355 dispassionate statute.

01:31 - 36.424 What what occurred to me

01:31 - 37.917 and what I wanted to ask

01:31 - 39.560 you about is our statute

01:31 - 41.506 is actually brought than

01:31 - 43.130 what you're seeking.

01:31 - 45.483 Our legislature might have

01:31 - 46.629 been very aware

01:31 - 48.169 and didn't want to

01:31 - 50.071 put physical

01:31 - 51.181 force in because

01:31 - 52.807 wanted to criminalize

01:31 - 54.868 walking away from the

01:31 - 57.245 child with a epileptic fit

01:31 - 58.297 in the bathtub who's

01:31 - 59.213 going to drown?

01:31 - 00.248 And the parent says, well,

01:32 - 01.761 the child is better off anyway

01:32 - 03.451 because of the medical problems

01:32 - 05.665 or walking away from

01:32 - 07.855 the child in the crib

01:32 - 09.490 that starving or the like.

01:32 - 12.076 So rather than narrowing

01:32 - 14.362 aggravated assault,

01:32 - 15.704 the Pennsylvania

01:32 - 17.565 legislature has broadened it.

01:32 - 19.588 Who are we to second

01:32 - 21.402 guess them and narrow it?

01:32 - 23.509 I am not second guessing

01:32 - 24.605 it at all, Your Honor.

01:32 - 26.614 What I'm struggling with

01:32 - 29.110 here is the idea that this court

01:32 - 30.732 has to talk about, quote,

01:32 - 32.313 physical force at all.

01:32 - 33.879 It may well be that the

01:32 - 36.017 state legislature has decided

01:32 - 37.976 that what we all commonly

01:32 - 39.720 consider a physical force

01:32 - 41.522 is not required.

01:32 - 42.690 But for purposes.

01:32 - 43.608 Interrupt you just so we

01:32 - 44.859 can get to the bottom of this.

01:32 - 46.531 I hear you and I've

01:32 - 47.895 heard you say that before.

01:32 - 50.598 Looking at the

01:32 - 52.136 question that the Third

01:32 - 53.901 Circuit certified to us.

01:32 - 55.821 It's whether Pennsylvania's

01:32 - 57.338 first degree aggravated assault

01:32 - 58.827 provision requires some use

01:32 - 59.857 of physical force,

01:32 - 00.841 not in the U.S.

01:33 - 02.474 Supreme Court parlance,

01:33 - 04.845 not in the federal law parlance

01:33 - 08.149 as as part of whatever

01:33 - 10.751 27 or to a one do.

01:33 - 13.588 So, you know, physical force

01:33 - 15.335 can be part of many

01:33 - 17.291 puzzles in the law.

01:33 - 18.369 And we just have

01:33 - 19.327 this narrow puzzle

01:33 - 20.061 front of us. But

01:33 - 21.174 it does require that we

01:33 - 21.727 decide that

01:33 - 22.897 question, doesn't it?

01:33 - 24.665 Your Honor,

01:33 - 25.272 I would suggest

01:33 - 26.067 that the question

01:33 - 27.696 be answered narrowly,

01:33 - 29.036 which is asking

01:33 - 30.036 what are the elements

01:33 - 31.205 of aggravated assault,

01:33 - 32.620 and specifically asking

01:33 - 33.808 about the Thomas case?

01:33 - 35.076 That is important

01:33 - 36.669 because the Thomas case

01:33 - 38.913 said and what I agree with Mr.

01:33 - 40.406 Eisenberg is dictum that

01:33 - 42.049 force is not an element.

01:33 - 44.573 The it's important to address

01:33 - 46.687 the Thomas case and confirm

01:33 - 47.521 and I think

01:33 - 48.527 we're actually in agreement

01:33 - 49.557 with the defense on this,

01:33 - 51.043 that the Thomas case on

01:33 - 52.727 the facts was correctly decided

01:33 - 54.261 that a person

01:33 - 55.300 confining and beating

01:33 - 56.864 and doing the terrible things

01:33 - 58.104 that the defendant

01:33 - 59.367 did in that case

01:33 - 00.885 was first degree aggravated

01:34 - 02.370 assault under state law.

01:34 - 03.657 That's what the Third

01:34 - 04.772 Circuit needs to know,

01:34 - 06.568 because it will then

01:34 - 08.209 consider that in deciding

01:34 - 10.158 did what happened in that

01:34 - 12.146 case amount to physical force

01:34 - 13.848 under federal law.

01:34 - 14.930 But I have to say that

01:34 - 16.384 the first part of the third

01:34 - 18.486 Circuit's question is a puzzle.

01:34 - 20.598 To me, asking this court is,

01:34 - 23.190 quote, physical force an element

01:34 - 25.087 when the only relevance

01:34 - 26.427 of that term ever

01:34 - 28.036 is in interpreting a

01:34 - 29.330 provision of federal law

01:34 - 30.366 that happens to

01:34 - 31.866 use those two words.

01:34 - 33.894 You want us to decide, and

01:34 - 35.836 I'm going to have to go back

01:34 - 36.904 and think hard on this.

01:34 - 39.440 You want us to decide that

01:34 - 43.110 Thomas was correctly decided

01:34 - 45.017 when it said physical

01:34 - 47.314 force is not an element

01:34 - 48.331 of Pennsylvania law

01:34 - 49.750 and that's okay with you

01:34 - 50.911 because you'll take that back

01:34 - 52.219 and argue to the Third Circuit.

01:34 - 53.759 It is an element of the

01:34 - 55.356 Armed Career Criminal Act

01:34 - 56.490 under federal law.

01:34 - 57.291 Is that correct?

01:34 - 59.392 No, I don't believe that

01:34 - 01.429 Thomas was correct in

01:35 - 03.152 I believe it was actually dictum

01:35 - 04.699 the statement regarding force,

01:35 - 05.982 what we would

01:35 - 07.201 like this court to say.

01:35 - 09.303 Well, believe is that Thomas

01:35 - 11.217 correctly decided on the

01:35 - 13.441 facts that defendant committed

01:35 - 15.229 first degree aggravated

01:35 - 17.745 assault by starving her child.

01:35 - 19.113 That's the important. Fact.

01:35 - 19.837 But what you're

01:35 - 20.781 not saying to me,

01:35 - 22.488 I think and get it, I'll

01:35 - 24.218 stop badgering you and

01:35 - 26.098 but what you're not

01:35 - 27.722 what you're trying skip

01:35 - 30.991 in the Thomas analysis is

01:35 - 32.878 what you want to add

01:35 - 34.128 to the Thomas analysis

01:35 - 36.244 is that parent

01:35 - 38.933 committed first degree

01:35 - 40.367 aggravated assault on that

01:35 - 42.103 child through physical force.

01:35 - 43.461 That's who you want us

01:35 - 44.839 to intimate, is that correct?

01:35 - 46.907 Well, you can.

01:35 - 47.908 But again,

01:35 - 48.735 that reaches the

01:35 - 49.744 federal question,

01:35 - 50.845 because I do believe

01:35 - 52.255 that, quote, physical force

01:35 - 53.848 is only a physical question.

01:35 - 55.481 But do I believe that that

01:35 - 57.518 defendant used physical force?

01:35 - 58.578 Absolutely. No

01:35 - 00.121 question about it.

01:36 - 02.223 I apologize.

01:36 - 03.891 Help me out on the five.

01:36 - 06.026 First is the US U.S.

01:36 - 07.366 Supreme court case

01:36 - 09.630 specifically said this judge

01:36 - 11.570 should look at the evidence

01:36 - 12.967 of the offending statute,

01:36 - 14.635 not the facts

01:36 - 17.471 of the offense.

01:36 - 20.975 So our statute says it's

01:36 - 22.946 reasonable to conclude the

01:36 - 24.845 words physical force are not.

01:36 - 27.314 Included, not the facts.

01:36 - 29.884 At the end to her massive.

01:36 - 32.274 Theory, the answer

01:36 - 33.687 is no, it does not.

01:36 - 36.001 Well, you are again,

01:36 - 37.892 we're in federal law now,

01:36 - 38.988 and that's actually I

01:36 - 40.161 respectfully suggest

01:36 - 41.612 not the answer when

01:36 - 43.230 we litigate these issues.

01:36 - 44.585 The Supreme Court

01:36 - 45.733 has never required

01:36 - 47.385 that for a crime to

01:36 - 49.036 involve physical force

01:36 - 50.022 and thus be subject

01:36 - 51.138 to the criminal act

01:36 - 52.494 that the statute used

01:36 - 53.707 the words physical force.

01:36 - 55.968 What the court looks to instead

01:36 - 57.611 are what are the elements

01:36 - 59.013 informed by

01:36 - 00.619 the facts that have been found

01:37 - 02.249 to establish those elements?

01:37 - 03.480 And what the Supreme

01:37 - 04.418 Court has often said

01:37 - 05.695 and this gets to you on

01:37 - 07.221 this question about Mayo,

01:37 - 08.622 and this is why we have

01:37 - 10.710 so vigorously argued for years

01:37 - 12.893 that Mayo was wrongly decided

01:37 - 14.058 and why we're grateful

01:37 - 15.062 that the Third Circuit

01:37 - 15.867 is apparently

01:37 - 17.198 taking it up again,

01:37 - 18.378 that the Supreme

01:37 - 20.401 Court has explicitly said

01:37 - 22.247 that in multiple cases

01:37 - 24.338 that a requirement of bodily

01:37 - 26.581 exactly what we have in this

01:37 - 28.375 aggravated assault statute,

01:37 - 30.022 that a requirement of

01:37 - 31.412 bodily injury equates

01:37 - 33.109 with physical force, as it is

01:37 - 34.481 stated in the Armed Career

01:37 - 35.549 Criminal Act.

01:37 - 36.581 So when I get back to

01:37 - 37.985 the Third Circuit one day,

01:37 - 38.946 that's what I'm

01:37 - 39.887 going to be reminding

01:37 - 41.388 the Third Circuit of that.

01:37 - 42.089 The Supreme Court

01:37 - 43.612 has said these words in

01:37 - 45.426 the Pennsylvania statute,

01:37 - 46.876 meet the physical force

01:37 - 48.362 requirement in the Armed Career

01:37 - 49.296 Criminal Act.

01:37 - 50.336 And Mayo was was

01:37 - 51.532 wrongly decided.

01:37 - 53.361 They again what we

01:37 - 55.135 come back to here is

01:37 - 57.068 we need to know the elements

01:37 - 59.073 of this state offense and the.

01:38 - 01.785 Again, I'm kind of

01:38 - 02.710 going back to this

01:38 - 04.789 your approach to our response

01:38 - 07.181 to the Third Circuit's question

01:38 - 09.812 is dear Third Circuit,

01:38 - 12.119 the elements are serious

01:38 - 13.882 bodily injury and intent,

01:38 - 16.023 and the words physical force

01:38 - 17.591 do not appear in the statute.

01:38 - 19.226 Have a good day.

01:38 - 20.417 It puts it doesn't give

01:38 - 21.862 the Third Circuit anything.

01:38 - 22.830 I mean, they're

01:38 - 23.777 they're just judges

01:38 - 24.698 are very capable

01:38 - 25.846 of reading reading

01:38 - 27.468 the statute themselves.

01:38 - 28.769 But that's what you're

01:38 - 30.408 essentially asking us to do,

01:38 - 32.306 is to say, here's our statute.

01:38 - 34.029 And so you can go back and

01:38 - 34.922 argue how you

01:38 - 36.377 you got your answer

01:38 - 37.047 from the Pennsylvania

01:38 - 37.578 Supreme Court.

01:38 - 38.573 They told you what

01:38 - 39.647 the statute says.

01:38 - 41.015 I am asking you to do that.

01:38 - 42.103 Exactly, Your Honor, because

01:38 - 43.450 I think that's the right answer.

01:38 - 45.623 And the Third Circuit

01:38 - 47.254 decided that it wanted

01:38 - 48.722 to hear from this court.

01:38 - 49.423 How do you how do you think

01:38 - 50.546 the Third Circuit would

01:38 - 51.692 react if we did that?

01:38 - 53.287 I don't I think they would be

01:38 - 54.962 happy to accept that answer.

01:38 - 56.430 And then I'm sure Mr.

01:38 - 57.473 Sweitzer and I will be

01:38 - 58.732 back in our usual places

01:38 - 00.280 arguing about it

01:39 - 01.335 to the Third Circuit.

01:39 - 02.770 And I think that would be

01:39 - 03.532 it's not only

01:39 - 05.272 acceptable, but it's right.

01:39 - 07.464 The the the elements

01:39 - 09.009 of the statute,

01:39 - 10.308 not always plain as day, but

01:39 - 11.912 it is plain as day in this case.

01:39 - 14.014 Now, I will say even.

01:39 - 15.327 May be plain as day, but

01:39 - 16.884 in the opposite direction,

01:39 - 18.934 because again,

01:39 - 20.187 you seem to neglect

01:39 - 22.518 an entire category

01:39 - 24.158 of hypotheticals,

01:39 - 26.712 some of which have become

01:39 - 29.196 real cases of omission to act.

01:39 - 30.885 And it tortures the

01:39 - 32.866 words physical force

01:39 - 36.542 to construe such circumstances

01:39 - 39.373 as involving physical force.

01:39 - 40.474 I mean, if you

01:39 - 42.269 if you want to go down to

01:39 - 44.378 the federal court and argue

01:39 - 46.183 to them about what SCOTUS

01:39 - 48.449 has said about physical force

01:39 - 50.167 in the context of federal

01:39 - 52.186 law, certainly that's fine.

01:39 - 54.015 But to get us to tell

01:39 - 55.956 you that our statute

01:39 - 58.011 includes physical

01:39 - 59.827 forces is entirely

01:40 - 01.138 contrary to the

01:40 - 02.162 text of the statute

01:40 - 02.938 that we have in

01:40 - 04.264 front of us right here.

01:40 - 05.499 Let me address that, Your Honor.

01:40 - 06.953 Again, the physical force,

01:40 - 08.769 the only place that appears in

01:40 - 09.737 this case,

01:40 - 10.980 is a federal term of art in

01:40 - 12.339 the arm for a criminal act.

01:40 - 14.730 And in fact, numerous courts

01:40 - 16.744 have held that an omission

01:40 - 18.443 to act by a person, a

01:40 - 20.981 duty to act is physical force

01:40 - 22.340 under that specific

01:40 - 23.650 federal statute.

01:40 - 24.769 And we cited all of

01:40 - 26.387 those cases in our brief.

01:40 - 28.473 Just for one, I'll call court's

01:40 - 30.257 attention to the Scott case,

01:40 - 31.787 which is an exhaustive and

01:40 - 32.763 banc decision of

01:40 - 33.994 the Second Circuit

01:40 - 35.419 on the very issue that

01:40 - 36.930 Your Honor is talking about

01:40 - 39.900 on that federal issue.

01:40 - 41.018 It does someone,

01:40 - 42.936 quote, use physical force

01:40 - 44.979 when they have a duty

01:40 - 46.840 to act and stand back

01:40 - 49.147 while physical properties, go

01:40 - 51.211 to work and murder someone.

01:40 - 53.781 The all the other circuits,

01:40 - 55.228 I think about eight or nine

01:40 - 56.483 of them are unanimous

01:40 - 58.057 in interpreting the Armed

01:40 - 58.767 Career Criminal

01:40 - 59.820 Act to include that.

01:41 - 01.464 So I mean, I'm a counsel

01:41 - 03.057 and I may have a conundrum

01:41 - 06.293 then because I

01:41 - 08.762 am leaning of

01:41 - 11.065 a view that physical force

01:41 - 13.011 doesn't include

01:41 - 14.701 acts or omissions,

01:41 - 17.410 but you're telling

01:41 - 18.505 me federal law

01:41 - 19.982 includes within physical

01:41 - 21.608 force acts or omissions?

01:41 - 23.243 How then am I

01:41 - 24.359 supposed to answer the

01:41 - 26.113 Third Circuit certified question

01:41 - 28.555 under my view of what the

01:41 - 30.150 definition of physical force

01:41 - 31.051 is, in contrast

01:41 - 32.393 to the view that pervades

01:41 - 33.921 the federal jurisprudence.

01:41 - 36.552 Your Honor, I think your opinion

01:41 - 38.025 regarding what physical force

01:41 - 39.893 is certainly deserves respect.

01:41 - 40.765 But again, it's a

01:41 - 42.129 question of federal law,

01:41 - 43.845 and that if your

01:41 - 45.599 view is that these.

01:41 - 46.683 The why did the Third

01:41 - 47.968 Circuit said in the question.

01:41 - 50.170 I can't answer that question.

01:41 - 51.941 Well, but your your answer

01:41 - 53.874 is they Senate erroneously

01:41 - 55.742 because they know

01:41 - 57.303 well what physical

01:41 - 59.413 force is every circuit

01:41 - 01.144 that's considered it has

01:42 - 02.562 decided it includes

01:42 - 03.917 a failure to act

01:42 - 06.313 and it's self-evident that

01:42 - 08.188 that the Pennsylvania

01:42 - 09.990 Supreme Court would be moronic

01:42 - 10.824 to not adopt

01:42 - 11.754 this universally

01:42 - 12.826 held definition,

01:42 - 13.594 which would take

01:42 - 14.728 care of the question.

01:42 - 15.596 My guess is that the

01:42 - 16.663 question was certified

01:42 - 18.089 because of the statement

01:42 - 19.299 in the Thomas case

01:42 - 20.767 of the Intermediate Court,

01:42 - 22.050 which said the use of

01:42 - 23.604 force is not an element

01:42 - 25.033 and that that properly

01:42 - 27.141 leads the Third Circuit to ask

01:42 - 28.749 how exactly do you

01:42 - 30.244 look at this state statute?

01:42 - 32.496 But, Counsel, you're asking

01:42 - 34.982 us to apply federal jurisdiction

01:42 - 36.786 to interpret a

01:42 - 38.685 Pennsylvania statute.

01:42 - 41.113 The Third Circuit is asking

01:42 - 43.023 us to apply Pennsylvania

01:42 - 44.493 statutory construction

01:42 - 46.660 principles to a state statute.

01:42 - 47.961 Which brings us back

01:42 - 49.319 to where justice worked

01:42 - 50.998 is I mean, the face of the

01:42 - 52.099 statute is clear.

01:42 - 54.035 It has two elements and

01:42 - 56.503 not either of them involves

01:42 - 58.480 physical force in the

01:42 - 00.541 context of statutory

01:43 - 02.069 interpretation that we would

01:43 - 03.677 do and do Pennsylvania law.

01:43 - 05.367 So I am absolutely not

01:43 - 07.247 asking this court to apply

01:43 - 08.582 federal jurisprudence.

01:43 - 11.285 I am pointing I am pointing out

01:43 - 13.154 that it is a separate

01:43 - 14.354 federal question.

01:43 - 15.689 The United States Supreme Court

01:43 - 17.145 has told us explicitly

01:43 - 19.159 that I cannot ask this court

01:43 - 20.459 to answer the federal

01:43 - 21.595 question for us.

01:43 - 22.888 What I'm pointing out is

01:43 - 24.531 that the third Circuit needs

01:43 - 25.032 to know what

01:43 - 26.858 the elements of this crime are

01:43 - 28.769 and the elements of the crime

01:43 - 30.792 are attempted or infliction

01:43 - 32.539 of serious bodily injury,

01:43 - 34.441 either volitional

01:43 - 35.829 or by omission, by a person

01:43 - 37.344 with the duty to act fully.

01:43 - 39.493 The Third Circuit asked us

01:43 - 42.082 to answer a precise question,

01:43 - 43.984 and that is whether it requires

01:43 - 45.786 some use of physical force.

01:43 - 47.370 I mean, that's

01:43 - 48.789 that's the question.

01:43 - 49.726 Again, I think I

01:43 - 50.924 think I understand

01:43 - 51.880 I think I understand

01:43 - 52.859 where you're going

01:43 - 54.861 and correct me if I'm wrong.

01:43 - 56.029 The issue is, Thomas,

01:43 - 58.031 if we

01:43 - 59.654 if we get rid of Thomas

01:43 - 01.301 and say nothing more,

01:44 - 02.706 we just say that

01:44 - 03.737 that's the line in

01:44 - 04.396 Thomas was dicta

01:44 - 05.205 and nothing more.

01:44 - 06.540 It leaves everything else

01:44 - 07.655 sufficiently ambiguous

01:44 - 08.742 that you will argue

01:44 - 09.973 in the Third Circuit what

01:44 - 11.178 you're going to argue.

01:44 - 13.513 Because if Thomas goes away

01:44 - 15.782 and we say nothing,

01:44 - 17.105 you get to continue to argue

01:44 - 18.452 your federal jurisprudence

01:44 - 19.486 of bodily and serious.

01:44 - 20.724 But whether serious bodily

01:44 - 22.322 injury requires physical force.

01:44 - 24.057 Thomas, is the problem.

01:44 - 24.858 I think that's right.

01:44 - 25.771 That one sentence in

01:44 - 26.893 Thomas is the problem.

01:44 - 28.168 Interestingly, the

01:44 - 29.396 facts in Thomas

01:44 - 30.308 and the result in

01:44 - 31.732 Thomas are not a problem

01:44 - 32.958 that defendant did

01:44 - 35.102 physical force to murder her.

01:44 - 35.981 But it doesn't.

01:44 - 37.204 That doesn't matter.

01:44 - 38.538 It doesn't matter exactly.

01:44 - 39.842 It does. The if I could

01:44 - 41.341 just say one more thing.

01:44 - 42.242 Yeah. Would you.

01:44 - 43.593 I really believe

01:44 - 45.479 that notwithstanding

01:44 - 46.923 some frustration up here,

01:44 - 48.682 we understand your argument.

01:44 - 49.730 And so take a sentence

01:44 - 50.851 and finish up for us.

01:44 - 52.298 Well by sentence of a

01:44 - 53.887 listener it with what Mr.

01:44 - 54.821 Eisenberg has to say.

01:44 - 56.790 Because in terms of

01:44 - 58.262 in terms of whether as

01:44 - 59.826 an academic question,

01:45 - 01.273 this statute requires

01:45 - 02.195 physical force,

01:45 - 04.131 as it's by the common law,

01:45 - 05.065 I think the answer

01:45 - 06.233 to that is also yes.

01:45 - 06.650 And that's what

01:45 - 07.234 he's going to tie.

01:45 - 08.502 I think we should ask Mr.

01:45 - 09.466 Eisenberg to argue

01:45 - 11.104 third, in every case in the.

01:45 - 11.505 Future

01:45 - 13.774 that thank you very much.

01:45 - 14.270 Thank you very

01:45 - 15.008 much for your time

01:45 - 17.511 and for coming over here today.

01:45 - 20.347 To please the court.

01:45 - 22.104 Ronald Eisenberg for the amicus,

01:45 - 23.884 the attorney general's office.

01:45 - 27.487 Thank you. Justice Todd.

01:45 - 28.789 Talk about Pennsylvania law.

01:45 - 29.581 Please go ahead for

01:45 - 30.524 a couple of minutes.

01:45 - 31.291 Yes, Your Honor.

01:45 - 32.727 And we haven't spoken

01:45 - 34.394 about the federal law.

01:45 - 35.269 I've left that to

01:45 - 36.430 our federal partner.

01:45 - 37.354 We've only spoken

01:45 - 38.231 about Pennsylvania

01:45 - 39.669 law and its antecedents, and

01:45 - 41.234 we've done that to follow up

01:45 - 42.374 on your questions,

01:45 - 43.537 justice problem,

01:45 - 44.975 because on the one hand,

01:45 - 47.040 one can just look at the statute

01:45 - 47.741 and on the other hand,

01:45 - 48.539 if that's all we do,

01:45 - 49.443 then all we're doing

01:45 - 50.310 is sending back

01:45 - 51.193 to the Third Circuit

01:45 - 52.279 a copy of our statute,

01:45 - 53.083 which is obviously

01:45 - 54.047 not what they want,

01:45 - 55.796 which means we must go beyond

01:45 - 57.751 the mere words of the statute.

01:45 - 59.419 They are asking us to do that

01:45 - 00.635 because they could read

01:46 - 02.089 the statute on their own.

01:46 - 03.833 And when we go beyond the

01:46 - 05.592 words of the statute we come

01:46 - 07.388 to, it's history, it's basis,

01:46 - 09.396 which is the model penal code.

01:46 - 10.219 And I think the

01:46 - 11.064 problem here is that

01:46 - 12.466 there's been some confusion

01:46 - 14.787 by the defense

01:46 - 16.370 between absence of

01:46 - 18.167 and degree of force

01:46 - 20.107 and between direct force

01:46 - 20.950 like punching

01:46 - 22.342 and indirect force,

01:46 - 23.596 like abandonment or

01:46 - 24.911 isolation or exposure.

01:46 - 26.283 And the model penal

01:46 - 27.914 code makes it very clear

01:46 - 30.117 that causing bodily injury

01:46 - 31.942 includes the latter, includes

01:46 - 33.854 that kind of indirect force,

01:46 - 35.251 which Justice Wecht, you

01:46 - 36.690 have referred to as neglect.

01:46 - 37.835 The model penal code

01:46 - 39.092 doesn't say it that way.

01:46 - 40.407 It says bodily injury,

01:46 - 41.928 quote unquote, includes

01:46 - 42.552 more than the

01:46 - 44.131 consequences of direct attack.

01:46 - 46.262 It also covers pain, illness

01:46 - 47.768 or physical impairment

01:46 - 49.169 caused indirectly

01:46 - 50.203 as, for example,

01:46 - 51.212 by exposing another

01:46 - 52.406 to inclement weather

01:46 - 53.778 or by non therapeutic

01:46 - 54.641 administration

01:46 - 56.243 of a drug or narcotic.

01:46 - 58.001 And it goes on to also cite

01:46 - 59.980 the situation of abandonment

01:46 - 01.214 or of a young child.

01:47 - 02.379 All of these are

01:47 - 04.451 included in the definition

01:47 - 06.241 in the in the meaning

01:47 - 07.721 of bodily injury. So

01:47 - 10.454 why should this court

01:47 - 12.459 accept that when the second

01:47 - 14.048 part of our statute says

01:47 - 15.862 manifest an indifference.

01:47 - 17.646 Because the additional

01:47 - 18.296 language of

01:47 - 19.666 manifest indifference

01:47 - 20.325 doesn't change

01:47 - 21.535 the definition of, but.

01:47 - 22.844 It encompasses all

01:47 - 24.838 those acts of negligence,

01:47 - 28.775 starvation neglect.

01:47 - 29.443 Why would can

01:47 - 30.343 I would I would easily,

01:47 - 31.746 as a trial judge, convict

01:47 - 33.513 someone of aggravated assault

01:47 - 34.630 for starving a child

01:47 - 35.715 under manifesting

01:47 - 37.122 an indifference to the value

01:47 - 38.552 of human life, hands down.

01:47 - 39.386 Justice Daugherty

01:47 - 40.750 Aggravated assault requires

01:47 - 42.088 that additional element.

01:47 - 43.613 Simple assault merely

01:47 - 44.858 requires bodily injury.

01:47 - 45.926 And what I've read to you

01:47 - 47.096 is the definition

01:47 - 48.428 of bodily injury.

01:47 - 49.564 So that definition

01:47 - 50.597 is encompassed

01:47 - 51.898 in aggravated assault.