00:00 - Well.

00:00 - Good morning everyone, and

00:04 - welcome to the third panel of oral arguments

00:08 - before the Superior Court this year.

00:11 - As presiding judge of this panel, I know I speak for my colleagues

00:15 - when I say we are delighted to be here on this beautiful Philadelphia morning,

00:21 - and we're looking forward to your arguments.

00:23 - Before we get started on, I would like to take this opportunity

00:27 - to introduce the distinguished members of this court here today.

00:31 - And our administrative staff.

00:34 - To my immediate right is the Honorable

00:36 - and Lazarus president, judge of the Superior Court.

00:40 - Morning.

00:41 - She hails from Philadelphia County and was the first woman

00:44 - from Philadelphia County to win a statewide office.

00:48 - Normally, the president judge presides over on Bonks,

00:51 - but she has given me the high honor

00:53 - of presiding over this panel today, and I thank her for her graciousness,

00:57 - her position to my immediate left is the Honorable Judith

01:01 - Olson of Allegheny County.

01:03 - Mourning to President judge Lazarus Wright

01:06 - is the Honorable Debbie, councilman of Beaver County 22.

01:10 - Judge Olson's left is the Honorable Carolyn Nichols of Philadelphia County.

01:16 - Mourning to judge councilman's right

01:18 - is the Honorable Mary Murray of Allegheny County.

01:23 - Mourning to Judge Nichols, left,

01:25 - is the Honorable Megan King of Chester County.

01:29 - Good morning.

01:30 - To Judge Murray's right is the Honorable Jill Beck of Allegheny County.

01:36 - And to Judge King's

01:37 - left is the Honorable Tamika Lane of Philadelphia County.

01:41 - Good morning.

01:42 - I am delighted to be here with all of these distinguished jurors this morning.

01:47 - And I also just wanted to note that this is the first time in the history

01:52 - of the Commonwealth of Pennsylvania that the Superior Court

01:56 - has impaneled a,

01:58 - an on bank panel of all female jurists.

02:01 - So one for the books

02:05 - for the Superior Court is one of two intermediate

02:10 - appellate courts in Pennsylvania where everyone has a right

02:14 - to a constitutional right to appeal from the trial court.

02:18 - This court was founded in 1895 to assist the Supreme Court in its workload,

02:23 - and has become one of the busiest courts in the country.

02:27 - Each year, approximately 8000 appeals are filed in our court.

02:32 - All manner of cases come before us from criminal charges to car accidents

02:37 - to medical malpractice, to divorce and custody disputes and much, much more.

02:43 - We have 15 elected judges who serve on this court,

02:47 - and we are assisted by three senior judges.

02:51 - Normally, we decide cases in panels of three judges,

02:55 - but sometimes the full court agrees to reconsider a previously decided case

03:01 - or chooses, for various reasons, to hear

03:04 - a certain matter before the court en banc.

03:07 - For an en banc session, nine of the 15

03:10 - commission judges sit on that panel.

03:15 - James

03:15 - Wilson, one of our Founding Fathers and a United States Supreme Court justice,

03:20 - once said that law and liberty cannot

03:23 - rationally become objects of our love

03:26 - unless they first become the objects of our knowledge.

03:30 - My colleagues and I hope that this court session

03:33 - will create in those here present today and in the listening public,

03:37 - a desire to learn more about the law and the pursuit of justice.

03:42 - As always, we are grateful to PCN

03:45 - for carrying these oral arguments on its cable channel

03:48 - so that the citizens of Pennsylvania can see their appellate court in action

03:54 - and understand our role in the judicial system.

03:58 - We want to thank Pixar's hardworking cameramen for their loyal service,

04:02 - in particular Corey Clark, John Colwell Smith and Eric Roberts.

04:07 - Thank you for being here today.

04:10 - I would also like to thank our learned accommodate

04:13 - commentators who have assisted us here today.

04:16 - Attorney John Paul Regan of Sol Ewing

04:19 - and attorney Katherine McClay of Jones Day.

04:22 - Both of these exceptional attorneys graduated from the University

04:26 - of Pittsburgh School of Law, as did Judge King and I.

04:31 - Hail to Pitt.

04:33 - We also want to thank our court criers,

04:35 - Thomas Morrow and Charles Map, for their outstanding ability

04:38 - to have our oral arguments session run so smoothly.

04:42 - All right, Maestro Peter Johnson, and to fill you in.

04:45 - And Kathy Shelly, our chief staff attorneys

04:48 - and our monitoring, Ben Koehler, who's here today.

04:51 - We also express our appreciation to our security staff that keeps us safe.

04:56 - And for the Philadelphia police who are present in the courtroom today,

05:00 - we are surrounded by wonderful people who work hard

05:03 - to serve this court and the people of Pennsylvania.

05:07 - And we are grateful

05:09 - now to the business at hand.

05:11 - Today we have read your briefs

05:12 - and we are well acquainted with the facts and your issues.

05:16 - So your time is usually best spent proceeding directly to your oral argument.

05:21 - We are an error correcting court,

05:22 - so please be mindful of our standard of review in that regard.

05:27 - If counsel for appellant would like to reserve time for rebuttal, please do so.

05:31 - Before starting your argument.

05:33 - Please introduce yourself to the court before you begin.

05:36 - And if this is your first argument, please let us know and good luck.

05:41 - I know I

05:41 - speak for my colleagues when I say it is an honor and a privilege

05:44 - to serve you and your clients and the citizens of Pennsylvania.

05:48 - As a judge on this honorable court, and that with that, we will begin

05:53 - the first case.

05:56 - Welcome to the Pennsylvania

05:57 - Superior Court for today's en banc session.

06:01 - My name is Catherine McClay.

06:02 - I'm an attorney and an associate at the law firm of Jones Day

06:06 - in Pittsburgh, Pennsylvania.

06:08 - I'm also proud to serve as the vice president

06:10 - of the University of Pittsburgh Law Alumni Association.

06:14 - With me today is John Paul Regan, an attorney and associate.

06:18 - It's all Ewing in Pittsburgh, Pennsylvania.

06:22 - John Paul is a governor on the University

06:25 - of Pittsburgh Law Alumni Association, and we are both proud

06:29 - to be alumni of the University of Pittsburgh School of Law.

06:33 - The Superior Court was established in 1895

06:37 - and is currently comprised of 15 commission judges.

06:41 - The Superior Court hears civil, criminal

06:44 - and family cases that are appealed from our state courts in each county

06:49 - where those trials and other proceedings take place.

06:53 - From the 67 counties in Pennsylvania, the Superior Court receives

06:57 - about 6000 appeals per year, and authors

07:01 - about 3000 opinions each year.

07:05 - Our Superior Court is charged with reviewing cases

07:08 - that have received a trial that is fair, and that complies with the rules of law

07:13 - that have developed over time.

07:16 - Typically, the court sits in a panel of three judges,

07:19 - but today a full on bonk panel sits for argument.

07:23 - This is known as the en banc court.

07:27 - The court is sitting on bonk because the judges of the court

07:30 - have determined that these cases, to be argued today,

07:33 - are of sufficient importance, that to receive the analysis

07:37 - and review of nine of the 15 Commission judges.

07:42 - These judges have reviewed a written verbatim

07:45 - transcript and certified record of the proceedings below,

07:49 - and they also have reviewed

07:51 - the briefs that were prepared and submitted by the parties.

07:54 - And those briefs state the reasons why each party believes

07:58 - that the decision of the lower court should be upheld or reversed.

08:04 - These briefs also provide references to prior cases that have been heard

08:08 - and decided, and where the courts have addressed the same or similar issues.

08:13 - Being able to consider the history and reasoning of prior court decisions

08:17 - helps to create guidance, predictability, and consistency

08:21 - in the ongoing decisions of our courts.

08:24 - In addition to reading the transcript from the trial proceedings

08:28 - and reading the briefs of each lawyer, each of the nine judges

08:31 - today will hear oral argument from the lawyers in these cases.

08:35 - This allows each lawyer to personally address to the court

08:39 - why he or she believes that a decision of the trial court

08:43 - was in error was correct,

08:47 - and should be either upheld or overturned.

08:51 - Some terminology for your reference the person or the party

08:55 - raising the issue to the Superior Court is the appellant,

08:59 - and they have the burden of providing that.

09:02 - There was an error in the court below that decided the case.

09:07 - The appellee is the party who wants the court to uphold

09:11 - or sustain the decision of the trial court below,

09:14 - because the burden of overturning the court's decision is upon

09:18 - the appellant, that party will argue first, followed by the appellate.

09:23 - The appellant will have a rebuttal time of several minutes at the conclusion

09:27 - of the appellees argument, provided he or she reserve that time

09:32 - before addressing today's arguments.

09:35 - John Paul and I would like to acknowledge first President, Judge and Lazarus

09:39 - and thank her

09:39 - for the opportunity to be here for the superior Court's en banc session.

09:44 - We also would like to specially thank Judge Mary Jane Bowes, who provide

09:48 - or presides over this panel today, and who invited the two of us to be

09:53 - here and to join the court.

09:55 - And now

09:56 - we will turn to the first case argued before the court today.

10:00 - The first case on the court's docket today is Correo

10:04 - versus Domino's Pizza, LLC.

10:07 - Domino's pizza operates a business as a franchise

10:10 - or as a franchise, or Domino's Pizza executes

10:14 - franchise agreements with other companies called franchisees

10:19 - that allows those companies to use a franchise or as name

10:21 - and brand, subject to certain terms set forth in the agreement.

10:26 - The franchisee, in turn, is an independent business owner,

10:29 - and the franchisee owns and operates the franchise location.

10:32 - Subject to that franchise agreement.

10:35 - Here, Domino's Pizza executed a franchise agreement with Robina, Inc..

10:40 - Robina, Inc., in turn owned and operated a Domino's branded restaurant.

10:45 - Steven Morris is an employee of Robina

10:48 - and worked as a delivery driver in Ruby's restaurant.

10:53 - On July 27th, 2016.

10:56 - Morris was involved in a collision involving Clarence

10:59 - Coryell while returning from a pizza delivery.

11:02 - The curious filed a lawsuit against that driver, Morris

11:06 - against Ro, Baeza and Ro as owner,

11:09 - and against Domino's Pizza LLC.

11:11 - The franchise for the Chaos Theory as to Domino's Pizza

11:16 - was that Domino's was vicariously liable for the acts of the franchisee.

11:22 - Vicarious liability is a theory that would mean Domino's

11:26 - would be accountable and liable for the actions of the franchisee.

11:31 - Before trial, Domino's Pizza filed a motion

11:34 - for summary judgment, arguing that it lacked sufficient control over

11:38 - such that it should be responsible for its conduct.

11:42 - That motion was denied, and the matter proceeded to trial,

11:46 - where the jury found that Domino's was vicariously liable for the conduct

11:50 - over Baeza and as a result, the injuries that Morris caused to Clarence Coryell.

11:56 - This case involves two

11:58 - issues, one procedural and one substantive.

12:02 - The first issue is whether the Superior Court can review

12:06 - the trial court's order denying summary judgment as to Domino's Pizza

12:11 - after the case had proceeded to trial

12:13 - and a judgment had been entered.

12:16 - The second issue is whether Domino's Pizza can, as a matter of law,

12:20 - be held vicariously liable for the conduct

12:23 - of one of its franchisees, Robina, Inc..

12:28 - It may please the court.

12:29 - My name is Tom Barton, and along with Mike Luongo, we represent

12:32 - the appellant, defendant, Domino's Pizza LLC.

12:36 - In this matter, the essential question presented by this appeal

12:40 - is whether Domino's as a franchise or can be held vicariously liable

12:45 - for torts committed by the employees of one of its franchisees in the context

12:51 - of a relationship that is governed solely by a written standard.

12:55 - Franchise agreement.

12:57 - This court address this issue,

12:59 - some 30 years ago, in in

13:03 - from our perspective, precisely this context,

13:06 - in the case of Maximus Kowski versus Penn Stroud Hotel,

13:10 - 1993 case in which this court, updated

13:15 - the seminal case issued by the Supreme Court in green versus

13:19 - independent oil Company in 1964, and applied that case

13:26 - to the modern franchise context with which

13:29 - we have present, in this case,

13:32 - Domino's only connection with this dispute is through

13:35 - its standard franchise agreement with its franchisee.

13:39 - It had no daily, interaction

13:42 - with the employees of the franchisee, never interacted with the driver.

13:46 - But but isn't isn't that the the crux of it's all about control?

13:52 - because looking at the majority in the Senate,

13:55 - we have our able presiding judge to dig right in.

13:59 - but the Domino's franchise agreement,

14:03 - to what level was discretion left for will be so as franchisee

14:08 - to conduct day to day operations because it's viewed different.

14:12 - We understand the franchise agreement is controlling documents

14:16 - like anybody is disputing that.

14:17 - What's being disputed is to what level of control

14:21 - this agreement,

14:24 - exercised over the franchisee.

14:27 - And there's a dispute with the dissenting majority of there was no discretion

14:32 - on the part, reversal to conduct day to day operations or or the what's

14:38 - thank you, discretion.

14:39 - I think the question.

14:41 - and that is the crux of the dispute as it relates to the vicarious liability,

14:45 - claim essentially what you have here is a business

14:48 - format franchise agreement in which, Domino's is the owner of a brand

14:53 - or a mark, set of logos, provides a license to a franchisee such as rivets.

14:59 - A in this case, to sell products, food products,

15:03 - under its name, brand and logos.

15:08 - Every single one of these business franchise format franchise

15:11 - cases, including the one that this court addressed in Miss Koski

15:15 - does contain what we describe as brand protection standards.

15:19 - And by that I mean standards by which,

15:22 - the franchisee must adhere in order to ensure the end

15:26 - quality of the product being made in the franchisees store.

15:31 - Because, by the way,

15:33 - in the context of

15:34 - these settings, all of the employees are making these products

15:38 - without the oversight of Domino's.

15:40 - And so, counsel,

15:41 - where where is the line between brand protection and control, though?

15:44 - I mean, the franchise agreement as I read it, I mean, your

15:48 - your client is controlling which fingers

15:51 - the employees are permitted to use to push out the dough.

15:55 - Where is that line?

15:56 - Because I think that's what we are going to have to really battle with here.

15:59 - And is that really a matter of law or is it a matter of fact in this case?

16:04 - Well, I don't think it's a matter of fact in the sense that it's controlled

16:07 - solely by the agreement. Right.

16:09 - that the, the, the issues before the court are all within,

16:13 - as Rauner mentioned, within the context of the franchise

16:17 - documents, the line as we see is,

16:22 - whether

16:22 - whether these standards control the in product or the in process

16:26 - as opposed to the day to day implementation of them in this.

16:30 - Well, but if controlling the end product requires controlling the day

16:34 - to day operations down to the minutia

16:38 - of how the product is created, again, I, I echo my colleague judge Beck.

16:43 - Where's that line?

16:44 - So I think the line is what, where this court,

16:47 - laid it out in the Miss Koski, case, and I can and I can quote it to you,

16:52 - and then I will talk about how it applies here.

16:56 - What this court said in Miss Koski was the fact that the franchisees or set

17:00 - certain standards in order to maintain a uniform quality of in service.

17:05 - In that case, it was a hotel case only addresses the result of the work

17:10 - as opposed to the manner in which is conducted.

17:13 - In other words, if the standards have to do with how the product

17:17 - or the service comes out at the end, what the customer sees and receives,

17:23 - that's not conducting or overseeing the manner of the work

17:26 - that's overseeing the end product.

17:29 - So the example you gave making the pizzas or, hygiene standards, for example,

17:34 - cleanliness, that sort of thing, those standards all have to do with

17:38 - what ends up being delivered to the customer.

17:42 - you can analogize this to say, a McDonald's or a Burger King situation.

17:45 - If you go to a McDonald's in California or Texas or anywhere else,

17:49 - you're expecting the product to look, taste,

17:52 - be the same that that is the essence of of the brand.

17:55 - Yes, because that's the end product.

17:57 - And what you're talking about is the manner.

18:00 - I mean, you just said we, we, we don't control the manner in which they do that.

18:04 - But that's exactly what what was revealed in this case

18:08 - when when you're discussing exactly how and this is just one example.

18:13 - But as judge judge back reference what fingers you use to push the pizza out.

18:18 - That is the manner in which it's being conducted and not the end result.

18:23 - But of course, Your

18:24 - Honor, it's up to the franchisee to manage that in process entirely.

18:27 - In other words, here are the standards.

18:30 - Here's how you make a product that a customer is going to expect to see.

18:34 - Right.

18:35 - But you're just saying, oh, you have to ensure that they

18:40 - that they conduct themselves in such a manner

18:42 - that as is dictated by the franchise agreement,

18:46 - but only as to the end product, in our view.

18:48 - In other words, the implementation of it, the daily implementation of it

18:52 - by the franchise, or think about all of the things that the franchise owner

18:55 - has to do to implement, making a pizza.

18:59 - Let's say, they hire the employees, they schedule them

19:03 - down to the length of the fingernails of the employees,

19:08 - the the number of tattoo, whether or not tattoos are permitted.

19:11 - I mean, there was a tremendous depth of control that was revealed

19:16 - in this case, which is,

19:19 - why I think the jury came out the way it did.

19:23 - But, counsel, if I could redirect your argument,

19:26 - just for a moment to the issue that,

19:30 - we asked you to address on this re argument,

19:34 - which is whether this court may review the denial of pretrial summary judgment

19:38 - in an appeal filed after a trial has been held and judgment entered.

19:43 - Of course, Your Honor.

19:44 - the short answer to that question, in our view, is yes,

19:47 - at least in the context of this case.

19:50 - ultimately, we don't believe it matters.

19:53 - We think it's largely an academic exercise,

19:56 - purposes of this case, because the issue of law was the same

20:00 - both at the summary judgment stage and at the V stage.

20:03 - So regardless of what which order this court ultimately decides

20:07 - to review, in our view, it's the same de novo standard

20:11 - because you're reviewing the terms of a written agreement.

20:15 - obviously there's broad agreement that there's a conflict in the cases.

20:20 - on this issue, your honor, I mentioned it in

20:23 - and her opinion and the majority, you mentioned it in theirs.

20:28 - obviously coming

20:28 - to different results in terms of how it applies here,

20:31 - the way we look at it is the the dividing line seems to be,

20:36 - as we read the cases, whether the underlying summary judgment

20:40 - motion had to do with a sufficiency of the evidence type claim

20:44 - or whether it was a matter of law type issue.

20:47 - As we're addressing here, we can certainly see the wisdom

20:50 - in the context where you're addressing sufficiency of the evidence,

20:54 - because that record, that summary judgment record

20:57 - would essentially get supplanted or changed at the trial process.

21:01 - And you're saying that did not happen in this case?

21:03 - It did not it in in the central terms.

21:06 - Because if, if, if the court were to go back

21:09 - and look at the summary judgment affidavits

21:12 - and then look at the trial testimony, they are identical.

21:15 - I mean, essentially what if you think about it, we ended up doing

21:18 - was we argued a summary judgment motion to the jury is what we ended up doing.

21:24 - but but well, but they also had an opportunity

21:26 - to see the witnesses live, to decide whether or not

21:30 - they found them credible, to see them subject to cross-examination.

21:34 - So the trial court in this matter, consider

21:37 - the evidence that you've referenced and, decided to,

21:41 - not grant summary judgment and refer the matter to the jury.

21:45 - And it's your position that that was an abuse of discretion.

21:50 - Our our,

21:51 - position is it's an error of law for the trial court

21:54 - to have failed to construe the contract at the summary judgment stage.

21:57 - I mean, after all, if you go back and look at what Coryell stated in their motion,

22:02 - they likewise believe that it was an issue of law and, likewise

22:07 - believe that the entire relationship between the parties which wore,

22:11 - both parties invited the judge to perform that contract

22:15 - construction, function.

22:18 - And the trial court declined to do that.

22:19 - And we ended up in front of the jury, at which time we made

22:22 - essentially a summary judgment type argument to the jury.

22:25 - But I think if you look at the testimony of those witnesses, there was no factual

22:30 - dispute in what any of them said as it relates to the two part test.

22:35 - And just to reiterate that the two part test from this kowski,

22:39 - the ingrain that we're talking about is it's number one,

22:43 - did the franchise or actually control on a daily basis?

22:46 - The franchise sees business.

22:48 - And number two, did the franchise or have the right to control

22:53 - the contractual right to control?

22:54 - Even if it didn't do so, did the court move for summary judgment in

22:58 - in total or just partial summary judgment?

23:01 - I'm sorry, Your Honor. I've lost the first.

23:03 - The Coryell said they move for summary judgment in whole or in part.

23:07 - Well, they moved on the issue of vicarious liability yesterday.

23:11 - So on liability, it was it was a whole motion.

23:15 - But I have a procedural question for you, assuming that the trial court

23:19 - made an error in not deciding the summary judgment at the pretrial level,

23:25 - what is the appropriate remedy now, since the trial court has already

23:29 - sent the case to the jury, the jury has made a pronouncement

23:32 - and the trial court has clearly, as you've said in your argument, looked

23:37 - at this basically as a matter of law, in terms of the J and of it,

23:43 - is there a is it

23:43 - harmless or, you know, how do we should we address it procedurally?

23:48 - Well, it seems to us the standard of this court's review is de novo.

23:51 - Either way.

23:52 - and the appropriate remedy,

23:55 - to, to remedy the trial court's error would either be to reverse

24:00 - the summary judgment, the failure to grant summary judgment to Domino's

24:04 - or to reverse the fair to grant j of a Domino's after trial.

24:08 - But our basically, you're saying to me it's a harmless error because there was a

24:13 - the remedy is to deal with it as the J and V, I don't think it matters.

24:17 - We understand the academic question and it's an interesting one.

24:20 - but in this unique case, unlike the sufficiency cases, perhaps,

24:26 - we think the standard in the analysis that this court would engage

24:29 - in would be the same.

24:31 - So you want us to set aside the jury verdict

24:33 - on the basis of the agreement between the parties?

24:37 - Is that right?

24:38 - That is correct.

24:40 - Well, would you agree, counsel, that,

24:44 - parties can say whatever they

24:46 - want in a contract and if they just say, no matter what happens,

24:50 - we will not be construed to, to be, your master.

24:55 - So you could easily eviscerate vicarious

24:58 - liability by the words put into a contract.

25:02 - Is that what you're saying?

25:03 - So we don't look at all beyond

25:06 - what is in the four corners of the contract?

25:09 - No, Your Honor, I mean, the clause which is present in this case,

25:13 - and it's the same clause that was present in Miss Koski

25:15 - that does state the parties are independent contractors.

25:18 - It's a factor.

25:19 - It's not dispositive.

25:20 - Obviously, there are many other, provisions of the contract that the court

25:25 - has to consider.

25:26 - but it is a factor, to be considered, as this court stated in Miss Koski.

25:31 - So just to make sure I understand your position,

25:35 - you're saying even after we've gone through the whole trial in this matter,

25:40 - the evidence that was revealed at trial is still not enough

25:43 - to establish five carries liability on that behalf of Domino's.

25:47 - That's correct, Your Honor, for two reasons.

25:49 - and I'm not sure if my time is up or it was a warning.

25:52 - but if I could just finish this. Yes.

25:56 - The first issue

25:58 - is the actual control issue, the first part of that two part test.

26:02 - So we had to put on evidence that there was no actual control,

26:05 - just as we did at the summary judgment stage in the affidavits.

26:09 - We did that in the form of live witnesses because we were trial.

26:13 - but, in the summary judgment stage,

26:15 - essentially the same testimony came in.

26:18 - so there's undisputed evidence on point one that there was no control

26:23 - point to is simply the and so there's there's nothing

26:26 - to review in terms of, of a dispute in the evidence.

26:29 - 0.2 is simply the contract construction issue, which,

26:32 - is is a denial of a matter for this. Okay.

26:35 - All right. You have your rebuttal. Thank you. Counsel.

26:45 - That's all.

26:47 - Good morning.

26:48 - Good morning.

26:49 - Please.

26:49 - The court I'm Dan Segal on behalf of the appellate court.

26:53 - And to my left is Neil Murray, who was one of the trial

26:56 - attorneys, and Joe Traub, who filed the amicus brief.

26:59 - That's before you. Good morning.

27:01 - I think the court has to first address

27:04 - the question that was asked in the reconsideration,

27:07 - phase when you granted reconsideration and vacated the initial decision.

27:12 - And it's important because it has always

27:16 - excuse me, it has never been the standard that in the denial of a motion

27:19 - for summary judgment is necessarily reviewable on appeal.

27:23 - And that makes sense from our entire phase.

27:26 - Process of litigation.

27:29 - A motion for summary judgment is hypothetical.

27:32 - The information in a motion for summary judgment

27:35 - is the essentially what the parties arguments are on all issues.

27:39 - It doesn't mean that that's going

27:41 - to be exactly the same as the evidence presented at trial.

27:45 - And so as a practical matter, that's why it's not a final order under 301 or 341.

27:51 - And it doesn't necessarily have to.

27:53 - And the court shouldn't be reviewing a motion for summary.

27:57 - I think the the wrinkle in that argument

28:00 - is if you have a pure question of law

28:03 - that is embodied in the motion for summary judgment,

28:06 - as opposed to a question that involves sufficiency of the evidence.

28:10 - And so your opposing counsel is arguing that this case involves a question of law,

28:15 - because there were no undisputed facts, because you had the deposition testimony,

28:21 - the affidavits which actually were paralleled in the in the case itself.

28:26 - But at trial, you have credibility and all of that.

28:29 - But going back to your question, they say that,

28:32 - but they also admit in their briefs that it's not necessarily

28:35 - that because it's a mixed question of fact and law.

28:39 - In their briefs,

28:39 - they tell you that the inquiry focuses on the actual practice of the parties.

28:43 - and it's no different than, you know, me and my children.

28:47 - If I say, you've got to do this, you've got to do this,

28:50 - we have to, you know, with this.

28:52 - And then if you do it fine, or if you don't do it, and that's what they do.

28:56 - I'm glad you brought that up, because that's where I was going.

28:58 - On Nick's questions of laws and law.

29:00 - In fact, because juries can decide vicarious liability.

29:04 - And they have.

29:05 - So it's not just purely a matter of the agreement and interpreting contracts,

29:11 - but it's the conduct of the parties, the level of control,

29:14 - of dominoes that that's in that's in hot dispute. Yes.

29:18 - And all that was presented, before the jury, was it not?

29:22 - And if you read the opinion of the judge, which you obviously have,

29:26 - he went to great lengths to determine whether he should grant j

29:30 - of summary judgment, etc., and felt that it was not appropriate

29:35 - because there were mixed questions of fact.

29:37 - But, Mr.

29:38 - Siegel, aren't you taking a position that's inconsistent with the position

29:42 - you took at the summary judgment stage, when you two said

29:46 - that this is controlled entirely by the contract

29:49 - and is a pure question of law, there are no factual disputes.

29:53 - So they they had argued at trial that it was the contract was not in dispute.

29:58 - What the contract says and what the contract mandates is not in dispute.

30:03 - How it is applied is what's in dispute in argue

30:06 - that at the summary judgment stage, you argued that you were entitled

30:10 - to a verdict on the summary on liability based on the contract language alone.

30:16 - We didn't need to look at the facts.

30:18 - It seems to me you're taking an inconsistent position.

30:21 - No, I don't believe that.

30:23 - But getting back to the questions here, the question is they

30:28 - they've admitted that these are and and throughout their brief, their reply

30:32 - brief, their supplemental briefs, they keep saying yes, it isn't.

30:36 - But then under certain circumstances, the question is

30:40 - and the judge and with regard to your question,

30:44 - the judge denied all of the summary judgment motions, plaintiff and defendant.

30:47 - And it went on so that at that point that became moot.

30:52 - And at that point he let the jury decide.

30:55 - The question did did the evidence that came at trial vary

30:59 - from the deposition testimony in the affidavits?

31:02 - There would have been some variance, but most of it was very similar.

31:06 - but the jury has the ability to evaluate credibility.

31:10 - Right.

31:11 - But the judge is the gatekeeper for a if there is no material question of fact,

31:16 - the judge is certainly empowered to make a decision on the summary judgment motion.

31:20 - He felt that there was no but he felt that there was a question of fact.

31:25 - He could not take it away from the jury, and therefore

31:29 - he let the jury decide which is the purpose of our system.

31:32 - And in fact, that's why you don't review summary judgment motions.

31:36 - And because at that point, it's not appealable.

31:39 - The polls aren't appealable.

31:41 - judgments on the pleadings aren't appealable.

31:44 - You can also always seek a permission to appeal.

31:47 - Well, they could have, but they didn't.

31:49 - They did not.

31:49 - So and so because they didn't, they're limited solely

31:53 - to the review of it at the end of trial, which would be Genova.

31:56 - Correct.

31:57 - And so let's say they didn't appeal the summary judgment

32:01 - and or they didn't appeal the generally, they only appeal the summary judgment.

32:04 - They'd be out of luck. Right.

32:06 - But the problem is here they are either way out of luck,

32:10 - shall we say, because they waived those issues.

32:14 - They didn't include the they didn't address them in their brief.

32:18 - They didn't include the transcript of the jury charge.

32:21 - They didn't cite where they were.

32:23 - There's any error in the verdict.

32:24 - They didn't raise those issues.

32:26 - In the 1925 BS statement.

32:29 - So as a practical matter, the court can't review the jury charge.

32:34 - It's not there. The other evidence.

32:36 - So they decided as they made a decision to do to I asked this court

32:42 - to review the motion for summary judgment or the denial of that motion.

32:46 - And that led to the issues and why we're here.

32:50 - And the issues with relate to the parties are factual questions when you talk about

32:55 - and this was an accident with a terrible injury.

32:59 - Let me ask you this question, which I asked your opponent

33:03 - as a matter of procedure for us.

33:07 - Should we even be looking at the issue

33:09 - of summary judgment now that a trial has occurred? Now,

33:14 - in our brief and from from

33:16 - the start, we said we addressed the issue because we had to, but we didn't feel it.

33:20 - What it is.

33:21 - I have always taken the position that denials of summary judgment,

33:25 - unless they're granted appeal, are not something

33:28 - the court should be reviewing because once the jury has it, as long as there's

33:32 - a basis for the trial judge to, decide to send the matter to the jury,

33:38 - that that does the the the there's no error.

33:42 - Well, there's more definitive law when you're dealing with

33:44 - if if there had been a motion for judgment on the pleadings

33:48 - because once the trial goes ahead, even if the trial court is has failed

33:53 - to address a judgment on the pleadings, then that is waived.

33:57 - And that goes by the wayside.

33:59 - And I don't know that we've had a pronouncement about summary judgment.

34:02 - it hasn't been as clear as I would like it, I can say that,

34:06 - but I can also say that in every phase other than the trial,

34:11 - the jury, the summary judgment,

34:13 - you are looking at the facts most favorable to the plaintiff there.

34:16 - And even with those that standard oppose, you're looking at the facts

34:20 - most favorable to the party, who you know, etc., etc.

34:23 - and every one of those phases the judge felt he couldn't take that.

34:28 - He couldn't let that issue be decided at that point.

34:31 - Well, the reality is, in this case, the trial court articulated in

34:35 - its opinion that even if it had

34:38 - made a ruling at the summary judgment, it would have found in favor

34:41 - of the plaintiff. Yes.

34:43 - So to, Judge Lazarus's point that it was harmless error

34:46 - because the trial court

34:47 - said, well, I would have come down if I had decided that way.

34:50 - So, could you turn your attention now to the actual, part of the argument,

34:56 - which is whether or not

34:57 - there was sufficient control such that Domino's should be held liable?

35:00 - Absolutely.

35:01 - as you know, it's a question,

35:04 - as we view it, a mixed question of fact and law and

35:08 - to try

35:10 - to help the judges here, when you look at what just what was mandated for drivers,

35:15 - which is what we have here, a driver who got into an accident and caused,

35:19 - you know, horrific, life changing injuries.

35:23 - He they had the right to create mandatory rules,

35:26 - whether they offered delivery service, specify the qualifications,

35:29 - what delivery drivers could do

35:31 - while they were making deliveries, who they could have in their car, control

35:35 - the types of vehicle, how the the delivery cars looked, set forth

35:39 - the requirements of everything they had, all of that and more.

35:43 - I have another page of it, but but they didn't hire the driver, correct? No.

35:47 - but as a practical matter, the evidence was such that a jury

35:52 - looking at the evidence, which is what the trial judge did,

35:56 - he could decide that under those facts, there was sufficient evidence

36:01 - to show that Domino's had exerted, liability.

36:05 - And, you know, Your Honor cited two cases in the dissent in this

36:09 - where Domino's was found liable.

36:12 - And there have been other cases where they have.

36:14 - If you are take, if you take the view that the franchise agreement is absolute

36:19 - and you don't look at anything else, then there is, no matter what they say,

36:23 - absolute liability

36:24 - for every franchise or the what about what about brand protection?

36:29 - I mean, Domino's makes the point that when a person walks into a Domino's

36:35 - branded pizza shop or orders Domino's Pizza delivered,

36:39 - there is an expectation there's something that they expect to receive at the end.

36:44 - And in order to ensure that the customer is receiving that Domino's

36:49 - branded experience, they have to include these certain

36:53 - brand protection elements.

36:57 - That's what they say.

36:58 - But ultimately,

36:59 - the jury has to look at the facts to see whether in that particular case,

37:04 - under the standards that are applied to whatever franchise

37:08 - there is, are actually so sufficient that they're exercising the real.

37:13 - Could the vicarious liability control necessary to establish vicarious

37:16 - liability, because it's not always the case in the hotel

37:20 - case, for example, they had the name and everything else they didn't have.

37:24 - They weren't mandating every, room

37:27 - person who cleans the rooms and everything else.

37:29 - there are lots of cases where it makes sense.

37:32 - There a general, saying you have our franchise and that's it.

37:37 - This was far more in detail.

37:40 - The jury got to hear it.

37:41 - You know, you talked about the, length of the nails, the, you know,

37:45 - whether an employee has tattoos, and is irrelevant to any of the, issues.

37:53 - If by Domino's Pizza, you're buying a pizza.

37:56 - whether I go into when I go into a pizza place,

37:58 - the last thing I'm worried about is what the employee looks like.

38:01 - They may have a uniform, but it shouldn't be.

38:04 - And that those are the questions of fact that should be left to a jury.

38:08 - The trial court did that.

38:09 - This court should affirm, should reverse, should affirm.

38:13 - Excuse me, the judge of the the judgments are of the jury.

38:16 - And so thank you.

38:19 - All right. Any other questions?

38:21 - All right.

38:21 - Thank you very much.

38:22 - Council rebuttal.

38:28 - I'd like to briefly address,

38:30 - this question of mixed question for fact,

38:33 - because I do think it's important, and it's all going to come back to gray.

38:37 - So again, you think about this two part test,

38:40 - the right to control in the contract.

38:44 - And was there actual control.

38:45 - Can you step right in front of the microphone Council.

38:48 - You're sorry. There you go. Thank you.

38:50 - So the two part test right to control or actual control?

38:54 - if there had been evidence in this case where, if there had been a dispute

38:58 - in this case that Domino's actually exercised daily operational control

39:03 - at this franchise, that would be a mixed question of law, in fact.

39:09 - But we don't have that.

39:10 - We didn't have it summary judgment, and we didn't have it at trial.

39:13 - Sure, there were witnesses, but they all testified completely,

39:16 - consistently that there was no daily operational control.

39:19 - So there's no factual issue there.

39:21 - So is a you're position that Domino's could not be held liable

39:25 - unless it were boots on the ground every day at the store.

39:29 - Well, if

39:30 - if you look at the Miss Koski case, that's what it seems to indicate to me.

39:34 - It does talk about day to day control.

39:38 - It does talk about continuous subjugation.

39:40 - This court, quoted the Restatement of Agency

39:44 - and actually italicized those words continuous subjugation.

39:48 - So I don't know exactly where the line would be.

39:51 - And maybe there's a case in which this court would have to figure out

39:53 - how and where to draw that line, what would have happened in this case

39:57 - if Domino's in this franchise was not doing

40:03 - what they were supposed to do in the contract, what steps would the,

40:09 - senior company have taken to enforce that

40:13 - if the franchisee were in breach of the agreement?

40:16 - there's various remedies.

40:18 - could have brought a breach contract case, I suppose ultimately could have,

40:22 - potentially terminated the franchise.

40:26 - Or they could have put somebody in there to oversee it on the ground.

40:31 - No, that would have been completely contrary to the contractual provisions

40:34 - of the franchise agreement.

40:35 - Well, actually prohibit Domino's from exerting that day to day control.

40:40 - So instead of doing that and actually they create a system

40:46 - whereby there there's a minutia or exactitude of what has to happen.

40:52 - Well, they create a system

40:53 - that protects the brand by, having these end brand,

40:57 - you know, protections so that customer expectations are met.

41:01 - But it's up to the franchisee to implement those.

41:04 - The franchisee hires the people, trains the people.

41:08 - all of that is done at the franchise level without Domino's involvement at all.

41:13 - It's simply not there in the store.

41:15 - I have one more question.

41:16 - We we said if we don't address the summary judgment,

41:19 - if that's by the wayside and we're only going to look at Jahnavi,

41:22 - you're opposing counsel said that you've waived any issues

41:25 - with respect to Jay and Ovi.

41:26 - Can you respond to that course, your honor?

41:29 - we are not and have never.

41:31 - And I think we made it clear in our brief challenging the jury charge,

41:35 - there was a charge on vicarious liability in this case,

41:38 - and actually, both parties objected to it because it was a negotiation.

41:42 - We ended up with the least objectionable alternative for both sides.

41:46 - But we're not challenging the jury charge itself for the manner

41:49 - in which the court instructed the jury on curious liability.

41:53 - We're simply challenging the fair to grant

41:56 - the summary judgment motion that after trial, the chain of emotion.

41:59 - Okay. Thank you.

42:00 - All right. Thank you, counsel. Thank you. Well argued.

42:04 - The next case,

42:06 - Commonwealth v Layer and Commonwealth v Hightower, are being argued together

42:10 - because they involve the same co-defendants.

42:13 - In this case.

42:15 - The court is going to consider important questions about the plain view doctrine.

42:19 - The plain view doctrine is exception to the normal requirement

42:23 - that law enforcement agents, receive a search warrant before performing a search.

42:29 - Under the plain view doctrine, officers, while performing a protective sweep,

42:34 - need not ignore evidence of contraband so long as they view it

42:39 - from a lawful vantage point.

42:43 - In this case, on November 3rd, 2021,

42:46 - a task force knocked on defendant Dominick Hightower's door

42:50 - to arrest him on an outstanding warrant for fleeing and eluding.

42:55 - While waiting for a response, one officer noticed movement

42:58 - in the second floor blinds above.

43:01 - A few minutes later, Defendant Hightower indicated

43:04 - that he would come out and open the door.

43:08 - Hightower failed to comply with verbal commands

43:11 - and the fifth, and was physically restrained.

43:14 - In the meantime, a third party closed the door to the house.

43:19 - Officers entered the residence to conduct a protective sweep

43:23 - and quickly located defendant's second

43:26 - layer and two young children.

43:29 - Officers then proceeded upstairs as part of their protective sweep.

43:34 - Inside the master bedroom, Officer Peter Forward saw several items sitting on

43:39 - top of a dresser, including loose marijuana

43:43 - foil bags and sandwich baggies.

43:46 - Based on this discovery, and in the context of marijuana being

43:52 - discovered amongst sandwich baggies, which are generally innocuous items, they.

43:57 - The officers obtained a search warrant for the residence,

44:01 - which uncovered more drugs, cash and a key keyfob

44:06 - and officers seized the keyfob and pressed a button

44:09 - to find the matching vehicle, which was located outside the residence.

44:15 - After seeing a firearm in plain view,

44:17 - a second search warrant was obtained for the vehicle.

44:21 - Both defendants filed motions to suppress

44:24 - challenging the initial discovery of the items on top of the dresser.

44:28 - They also raised various challenges to the two subsequent search warrants.

44:33 - The trial court granted the motions,

44:35 - essentially finding that the marijuana on top of the dresser

44:39 - was not in plain view because it was comprising small specks

44:44 - that would not typically be noticed on a quick review.

44:48 - For the purposes of a protective sweep,

44:52 - the court rejected the

44:53 - Commonwealth's argument that the items were in plain view

44:57 - and therefore granted the motions to suppress.

45:00 - The trial court therefore did not address the other grounds

45:04 - raised in the suppression motion, and the Commonwealth appealed.

45:08 - At issue in this case is the primary issue argued by

45:13 - the Commonwealth, questioning

45:15 - whether the items on top of the dresser were in plain view,

45:19 - and therefore, reliable evidence

45:22 - for the sake of the subsequent search warrants.

45:26 - Secondarily, if the court finds that the items

45:29 - on top of the dresser were in plain view,

45:32 - then the court will consider whether those items were properly included

45:35 - in the affidavit of probable cause, which led to a search warrant

45:39 - for the home, followed by a search warrant for the vehicle.

45:43 - It please the court.

45:44 - My name is James number two, which from the York County District

45:46 - Attorney's office.

45:47 - I would ask for two minutes for rebuttal.

45:49 - Okay.

45:55 - Now, I know that we have, two co-defendants here.

45:59 - Others, I think a slightly different argument.

46:02 - And in the third case, and the latter case,

46:05 - but you want to address both arguments

46:09 - during your argument and then, yes, Your Honor.

46:11 - Okay. Thank you.

46:15 - Your honor, the appeal that's before the court

46:17 - today is a question of whether or not the trial court erred in suppressing the

46:22 - proceeds of a search warrant on the basis the warrant lacked probable cause.

46:26 - The Commonwealth's position is that the court properly exercised

46:30 - its discretion in suppressing money that was within a drawer of a dresser

46:34 - and an improperly exercised discretion by suppressing marijuana.

46:38 - There was a top the dresser.

46:40 - The court did not suppress the unused packets

46:43 - of packaging material adjacent to the marijuana atop the dresser.

46:46 - It's the Commonwealth's position that these two items, the presence

46:49 - of marijuana and the presence of unused packaging material is sufficient

46:54 - to sustain the search warrant that the police obtain.

46:57 - that is the crux of the Commonwealth's argument.

47:02 - the majority of the defense arguments addressed

47:04 - the issue of the protective sweep conducted on the House.

47:08 - It's the Commonwealth's position

47:10 - that this issue is not ripe for the interlocutory appeal.

47:13 - Let me ask you a question.

47:15 - I guess for me, I you were just saying about the warrant and all of that

47:19 - and the protective sweep, but what I was troubled with, or what

47:23 - I was struggling with

47:24 - was the credibility, determination that the trial put me the trial court

47:27 - didn't believe officer for ruled that he could have seen his point of view.

47:31 - You still have to have a legal vantage point to to make the observation.

47:35 - There's no, challenge that something was manipulated.

47:39 - A move by the court didn't believe that the officer

47:42 - could have seen the specks of marijuana in the way that that he said.

47:46 - He testified that he did and says, he couldn't find a reasonably cautious man

47:52 - conducting a productive suite to search for persons would have spotted

47:55 - those tiny specks of loose marijuana sitting on the dresser.

47:59 - And it was looking at the evidentiary photographs and making that,

48:03 - determination.

48:05 - So it's a fact finder and a suppression motion.

48:09 - be aware of our standard.

48:10 - And we weren't there.

48:12 - We didn't see it.

48:13 - so, what are we supposed to do with the court's credibility?

48:17 - Determination?

48:19 - Your honor, that is the crux of common argument.

48:21 - This is the reason why the Commonwealth

48:22 - is not contesting the suppression of the money.

48:24 - Okay, there's pictures taken of the money.

48:26 - Show the drawer closed,

48:28 - and while we believe the court erred in understanding the officer's testimony

48:31 - that the pictures were taken after the search,

48:34 - when the doors were closed

48:37 - because officers pulled the doors open during search and then closed them.

48:40 - but the pictures do depict a closed drawer.

48:42 - So the the evidence presented in court supports that court's findings.

48:46 - Okay.

48:47 - So you're saying the court, Aaron Howard interpreted

48:50 - the evidentiary for the photographs?

48:52 - Is that, Your Honor?

48:53 - Okay.

48:53 - in fact, the Commonwealth did attach to its brief, the color,

48:58 - the file version are in color, and it shows that the marijuana bits

49:02 - and pieces are indeed atop the dresser in neon green color.

49:06 - Large is life.

49:07 - police are trained to look for marijuana.

49:09 - It's obviously on top of the truck

49:11 - or even concedes that marijuana was atop the dresser.

49:15 - The court just didn't

49:16 - believe it was possible for the officer to see that in plain view.

49:20 - That is not the test for plain view.

49:21 - The test for plain view is whether or not it is in plain view.

49:25 - You have to be in a legal vantage point to see it.

49:28 - You know, they can't be manipulation and so on and so forth.

49:31 - So, you're saying essentially the trial court

49:34 - just misinterpreted the photographs, misinterpreted

49:39 - however or however you want to basis how you want to reverse counsel.

49:45 - Can we can we just step back for a minute because

49:49 - this case involves really two issues.

49:52 - The first issue was a protective sweep of the second floor.

49:55 - Is that correct at the suppression hearing? Yes.

49:58 - And the trial court agreed that the police

50:01 - were entitled to conduct a sweep of the second floor.

50:04 - yes, Your Honor.

50:05 - specifically on page eight of the 1925,

50:09 - the court recognizes that the protective sweep in this situation

50:13 - put the officer in lawful vantage point in the second floor bedroom.

50:16 - Okay, so then he went into the bedroom and there was a dresser,

50:20 - and the door was open.

50:21 - And when the door was open, it kind of abutted the dresser.

50:24 - So they went the police officer went in to open the door

50:28 - to make sure there was no one hiding behind the door.

50:31 - Between the door and the dressers are correct.

50:33 - when the when the door is open, like, when the officers

50:37 - standing in the hallway looking in door opens to 90 degrees, right?

50:41 - If the officer pokes his head to look around the door,

50:43 - that's where the dresser is, right? So.

50:44 - So the door doesn't open all the way.

50:46 - It's not like 180, where he would have to move the door

50:49 - out of the way to look at the dresser, but upon poking his head

50:52 - into see into the room, that's when it would be visible, okay?

50:55 - And that's when he observed what was on the top of the dresser.

50:58 - Yes, Your Honor, so it was this trial court saying that he looked too long

51:03 - and too hard at what was on the dresser, and he should have just been

51:08 - conducting as brief a view as

51:11 - possible of the room, looking only for a potential human suspect.

51:16 - Yes, Your Honor, and that is where the Commonwealth,

51:20 - believes that the the lower court made its error.

51:23 - if we look at the U.S.

51:24 - Supreme Court case, Arizona versus Hicks, the U.S.

51:27 - Supreme Court held that during a protective sweep

51:30 - where an officer pauses to memorize

51:33 - the serial number of a radio,

51:36 - that was validly done in plain view during a protective sweep.

51:40 - The officer did not manipulate

51:41 - anything on top of the dresser to see the marijuana is truly in plain view.

51:45 - There is no additional element for the plain view test

51:48 - as to whether or not the officer's looking to.

51:50 - So the picture was taken when the drawer was closed again,

51:53 - so it doesn't represent what the officer saw.

51:57 - Then when it was opened,

51:59 - as I would just say.

52:00 - Yeah.

52:00 - As to the money,

52:01 - the the money was inside the dresser, in a drawer that was partially open.

52:06 - At least that's the officer's testimony.

52:07 - When the picture was shown to the court, the court determined

52:10 - that the dresser drawer was closed in the picture.

52:12 - So how could the officer see it?

52:14 - And that's completely fair.

52:15 - That is a reasonable interpretation of the facts

52:17 - as set forth in the record, which is why the Commonwealth

52:19 - is not contesting suppression of the money.

52:21 - So let me just understand, in response to Judge Bo's question, are you saying

52:26 - that there is no law that says

52:29 - there is a limited amount of time

52:33 - in which an officer is permitted

52:35 - to to view a scene in which he is properly present?

52:41 - There are

52:42 - arguments in that regard as to the validity of a protective sweep

52:45 - for the protective sweep aspect, or is the officer entering areas

52:48 - and looking at areas that could be containing a person?

52:52 - No, I get that.

52:53 - I'm saying the length of time.

52:56 - Judge Bowes asked you whether the officer was required

53:00 - to just quickly look and see and quickly remove himself.

53:04 - Is that the legal basis upon which we look at it, or is the officer

53:10 - permitted to spend as much time needed, even to memorize a number?

53:15 - Is there any law that says he or

53:18 - she has to quickly review the scene

53:21 - and then remove themselves from the scene?

53:25 - Not as such for this type of scenario, Your Honor.

53:27 - But more importantly, there is no testimony that

53:29 - the officer's eyes lingered or delayed or however much time the officer took.

53:33 - That's that fact is simply not of record before the court.

53:36 - the officer.

53:38 - Indeed, the main contest

53:40 - at the suppression hearing was the entry into the building in the protective sweep.

53:43 - Well, even

53:45 - acknowledging the fact

53:47 - that the specks of and I have viewed the photographs several times

53:50 - because I've been involved with this case, but even, considering the,

53:55 - the slight size of the marijuana specks, the, drug paraphernalia

54:01 - was obviously much larger than that and easily visible, so.

54:06 - Correct. Yes. Yeah.

54:08 - I mean, the the packaging

54:11 - roughly how of make

54:13 - two and two and a half, two on by one side and one inch roughly.

54:17 - So they're relatively large compared to the specks of marijuana at least.

54:21 - And they say lemon cherry gelato.

54:23 - And clearly the picture indicates, to pieces of fruit

54:28 - that they're they're cartoonish, but they're obviously high.

54:32 - basically, Your Honor. Yes.

54:34 - So, so it was obvious that this was that this was for the packaging of drugs,

54:39 - to individuals trained for looking for a drug paraphernalia.

54:42 - Yes, Your Honor, which would then indicate that.

54:44 - Oh, these little specks, although they're small, are likely marijuana

54:48 - because they're in the vicinity of this packaging.

54:51 - Yes, Your Honor,

54:53 - enough to give you

54:53 - probable cause to go get a warrant. Yes.

54:57 - but several, I believe it was roughly one year ago.

54:59 - The Commonwealth had a comparable case where an individual,

55:02 - was observed outside of his house, smoking marijuana joint.

55:07 - that's all that he had on his person since he was smoking it.

55:09 - It was not consistent with the medical marijuana use law.

55:12 - So, that was at that point, illegal.

55:15 - The officer did observe the person reentered into the house

55:18 - with the remnants.

55:19 - And in an unpublished opinion, this court upheld a search warrant

55:23 - based upon that presence of the remnants of marijuana,

55:26 - that the person carried back into the house.

55:28 - Now, we believe that for the purposes of the search warrant,

55:31 - the combination of the marijuana and the packaging material that were atop

55:34 - the dresser were sufficient, in sufficient in plain view, to justify.

55:40 - But but the warrant also relied upon the cash that the police officer

55:44 - allegedly viewed.

55:46 - So if you extract the cash, item

55:50 - from the search warrant, your position is it's still sufficient.

55:54 - Yes. Your honor, we're part of a search warrant.

55:56 - Is subject to suppression.

55:58 - the normal test is to examine the four corners of the warrant, removing

56:02 - the element that is suppressed.

56:03 - And if the remaining elements, still constitute probable cause,

56:06 - then the search should still be good with the packaging material alone.

56:10 - Be sufficient.

56:13 - Let's knock out the marijuana.

56:14 - Conceivably.

56:15 - it's it's hard to view the packaging material alone,

56:18 - since the officer did see the marijuana adjacent to it.

56:20 - would that have given if we did have a test?

56:23 - For how long?

56:24 - Eyes can linger upon seeing the gelato, would that have given the ice

56:27 - the officer permission for his eyes to linger longer?

56:30 - That's the tactic, the Commonwealth would argue, if not even to linger longer.

56:35 - Let's assume, I'm just wondering, knock out the cash.

56:40 - If we knock out the marijuana, does the packaging material,

56:44 - support this search warrant?

56:47 - well, arguably, yes.

56:48 - Your honor, stacks of packaging material that are, labeled gelato

56:53 - with the character of the high individuals on the on the front.

56:57 - My party, on the front, rubber banded together.

57:02 - nowhere near a

57:05 - kitchen or area where there could be an argument

57:07 - that that's being used for a non, drug purpose.

57:11 - a reasonable officer could make the argument

57:13 - before a magistrate that that would be sufficient

57:15 - to get a search warrant for the paraphernalia to search the room.

57:18 - So you're saying if I have baggies in my bedroom,

57:21 - then that's enough for a warrant and that's enough to say

57:23 - that I am selling drugs?

57:25 - Is that your argument today?

57:26 - It's going to depend on the nature of the baggies.

57:28 - these ones are uniquely distinctive in that

57:31 - they've got the high characters on them.

57:33 - What if I had pictures of marijuana, Eminem's or, I don't know, just random

57:38 - things depicting, someone,

57:41 - a character similar to in this picture.

57:45 - That's not enough. You think that's enough?

57:47 - That would be borderline, Your Honor, if the court found it.

57:50 - I believe I could make that argument on appeal.

57:52 - If the court found again, who cares what I have in the privacy of my home?

57:55 - If you're saying just having baggies, unquote, in a place

57:59 - that is not traditionally where it would be, that that's enough for a warrant,

58:03 - I'm allowed to do whatever I want and have what I want in my home.

58:06 - How is the baggie itself illegal?

58:09 - Well, Your Honor, if it's evidence of that

58:11 - or an issue that's a no crime is being committed, then it can be used.

58:14 - And how are these baggies showing that a crime has been committed

58:18 - with specks of marijuana that are barely visible in a picture,

58:21 - that they had to be circled?

58:23 - Well, Your Honor, there's the presence of marijuana for one.

58:26 - In this particular case, if we're going with the hypothetical of just the Baggies,

58:30 - then the fact that it's baggies stacked,

58:32 - with rubber bands, stacked two additional baggies,

58:36 - that are not labeled, none of which have is used for anything.

58:39 - it's in a bedroom.

58:41 - It's not in a office. It's not in a kitchen.

58:44 - there are the implication would be that the items are being used

58:49 - for the nefarious purpose of packaging and storing marijuana.

58:53 - Can I ask you to address the Honda and the Keyfob?

58:56 - And what, if anything, was in plain view?

58:58 - How that was discovered?

59:01 - the keyfob,

59:04 - on a surface level, the Commonwealth would note that the

59:06 - the issue of the keyfob, the trial court concedes that the keyfob would come in.

59:10 - There is a but how do you get to the keyfob

59:13 - without manipulation that leads you to the Honda.

59:16 - You are in Commonwealth versus Harvard.

59:18 - this court as well as,

59:21 - in 2013, as well as in Commonwealth versus Santiago in 2024,

59:25 - held that the pushing of button on a keyfob does not constitute a search

59:30 - because there is no reasonable expectation of privacy in a motor vehicle

59:34 - parked in public.

59:35 - the existence of the motor vehicle,

59:39 - that simply could be tracked down by the officers walking down the street.

59:42 - The fact that they use the keyfob

59:43 - did not really change the circumstances of that reality,

59:45 - and did not violate anyone's privacy rights.

59:47 - How do you get to the Keyfob from a protected suite

59:50 - you far cheated with the protect?

59:51 - The sweep is your honor.

59:53 - The keyfob was found during the search pursuant to the search warrant.

59:58 - 930 What can I ask you?

01:00 - 02.999 What's the purpose of a protective sweep?

01:00 - 04.267 Is it not for the police

01:00 - 07.604 to go through the premises and make sure no one's in hiding?

01:00 - 11.040 There are no firearms in clear view

01:00 - 14.944 that anyone could get a hold of to protect the officer's safety.

01:00 - 19.716 Yes, Your Honor, that would imply that it's a relatively short type of sweep.

01:00 - 24.554 Just for the purpose of making sure that those two issues are not there.

01:00 - 26.255 That's correct, Your Honor.

01:00 - 28.157 The officer would have gone into the house.

01:00 - 29.325 Look for any other individuals.

01:00 - 33.162 in this particular case, they had seen, through a window

01:00 - 35.765 shade that someone had been up in the second floor, which is why they

01:00 - 39.602 and they and that's why they were justified in doing the detective sweep.

01:00 - 43.840 I'm not sure that the protective sweep encompasses

01:00 - 47.276 looking at every little detail

01:00 - 52.982 in the place for a long period of time, and I don't know what the period of time

01:00 - 56.452 is, clearly, but the purpose of that protective sweep

01:00 - 59.455 is just to make sure that the officers are safe

01:00 - 03.359 in that premises when they're dealing with whatever they are dealing with.

01:01 - 06.963 Indeed, Your Honor, and that's why we're to this point,

01:01 - 09.032 the federal courts, as well as the Pennsylvania courts,

01:01 - 13.336 have relied on the bright line rule of did the officers see things in plain view?

01:01 - 16.172 Well, so I'm going back to Judge Lane's question.

01:01 - 21.344 The fact that somebody might have baggies or something that is labeled gelato,

01:01 - 24.347 unless the particular officer knew

01:01 - 28.951 that that specific packaging was packaging

01:01 - 33.089 that was used in that area for drugs.

01:01 - 35.892 What basis does

01:01 - 39.862 a quick glance at that do in terms of furthering

01:01 - 44.233 any type of interpretation that there's drug use

01:01 - 47.970 or a baggie, or a playing clear

01:01 - 50.973 baggie that looks like a sandwich bag?

01:01 - 54.510 Well, Your Honor, for to use another example,

01:01 - 57.480 the court has often looked at, torn baggy corners

01:01 - 01.617 as an exemplar of possession of torn baggy corners or something

01:02 - 05.588 somewhat different because those are commonly used

01:02 - 10.827 as a specific type of drug packaging, but a plain baggy that is not torn.

01:02 - 12.161 It's just clear.

01:02 - 14.831 I keep baggies in my bathroom all the time,

01:02 - 18.735 you know, I would venture to say most of my colleagues pack and use

01:02 - 22.839 clear plastic baggies, especially since TSA doesn't let you use anything

01:02 - 24.707 but clear plastic bags.

01:02 - 26.943 So how does that lead to

01:02 - 31.214 unless the police officers have some specific knowledge

01:02 - 36.652 about this individual or this House, how does that lead to something that is,

01:02 - 40.189 actual evidence of a crime that's being committed?

01:02 - 43.860 In this particular case, your honor, the baggies were not simple,

01:02 - 44.527 clear baggies.

01:02 - 48.798 These were opaque baggies that were labeled with that cartoon character.

01:02 - 50.233 It's basically high on the front.

01:02 - 52.468 these are not like, these aren't large baggies.

01:02 - 54.003 I saw the photograph.

01:02 - 57.006 I mean, to me, they look like the same kind of packaging

01:02 - 00.243 that you use for, playing cards.

01:03 - 04.547 You know, the same with bubble gum in them,

01:03 - 07.550 you know, that they wrap up,

01:03 - 11.087 cards, trading cards.

01:03 - 12.421 That's what looks like.

01:03 - 15.758 But I, I would have to defer to your, to do that.

01:03 - 21.097 So I just wonder what was there about these particular baggies in a rubber band

01:03 - 25.201 that led to these police officers thinking that drugs were being used?

01:03 - 30.306 It would be akin to seeing a glass pipe on someone's dresser.

01:03 - 32.809 Your honor, there's no no guarantee that's being used for marijuana.

01:03 - 34.443 It could be used for tobacco.

01:03 - 37.780 but until it does garner further attention,

01:03 - 40.783 and if the court were to create an additional rule requiring

01:03 - 44.120 some sort of timeline for how long someone could use something which

01:03 - 45.822 I guess

01:03 - 48.825 the appellate hiring, department wouldn't mind that.

01:03 - 51.828 the the presence

01:03 - 53.696 of the marijuana at conjunction

01:03 - 57.767 with the packaging is what brings us probable cause beyond any doubt,

01:03 - 02.438 and whether foil bags are also hardener with their foil bags.

01:04 - 05.508 There are also, the gelato bags were the foil bags.

01:04 - 08.110 There were also additional regular type baggies.

01:04 - 11.180 foil bags or the ones that were labeled gelato with it.

01:04 - 14.250 And just to clarify the facts in this case, because I know

01:04 - 17.253 we're going to hear from your opposing counsel

01:04 - 20.690 and the police when and obtain a search warrant

01:04 - 25.728 as a result of seeing the drugs and the drug paraphernalia and as a result

01:04 - 30.299 of the execution of that search warrant, that's when they discover the keyfob,

01:04 - 33.536 you then they manipulated the keyfob.

01:04 - 36.539 And that resulted in the finding of the firearm.

01:04 - 41.911 And that's when they went to get a second search warrant to search the car.

01:04 - 42.511 Okay.

01:04 - 45.615 I just want to make sure I understand they did not enter into the car.

01:04 - 48.584 prior to obtaining the second search warrant.

01:04 - 49.352 Okay. All right.

01:04 - 50.219 Your time is up, counsel.

01:04 - 53.222 You have your rebuttal figure.

01:04 - 56.893 Good morning.

01:04 - 58.895 My name is Chris Ferro, and I represent the appellant,

01:04 - 01.230 a quantum layer in this particular case.

01:05 - 04.533 And I really just wanted to highlight two issues which, were addressed

01:05 - 07.536 through panel discussion when my colleague was making his argument.

01:05 - 09.939 And the first is with respect to credibility,

01:05 - 12.808 because I would submit to the court in this particular case,

01:05 - 14.110 that is how this matter

01:05 - 17.113 rises and falls and how it should be decided and determined.

01:05 - 20.316 The trial court in this particular matter, there was a hearing.

01:05 - 23.286 They heard the testimony of Officer Fouad.

01:05 - 25.855 They observed after Fouad testified.

01:05 - 28.357 And as noted, I believe, by Judge Nichols in our questioning,

01:05 - 31.527 she specifically put in our order that I believe that a reasonably

01:05 - 35.364 cautious person would not have seen this item and believed

01:05 - 38.701 it was immediately apparent to be contraband at that time.

01:05 - 41.337 Can you just step a little bit closer for it?

01:05 - 42.371 Thank you.

01:05 - 46.108 I believe essentially that is a very direct statement

01:05 - 48.611 by the court saying, I simply do not believe this

01:05 - 51.847 police officer when he testified to that pertinent fact.

01:05 - 57.253 But what about can can respond because, obviously I would concurring

01:05 - 02.491 opinion in this, that the evidentiary photograph

01:06 - 07.596 that the court was concerned about was taken after, the door was closed.

01:06 - 10.866 So it wasn't exactly representative of what

01:06 - 12.902 the scene

01:06 - 16.439 might have looked like when the officer came upon it and saw it.

01:06 - 19.942 The Commonwealth has really tried to cut that issue into your honor.

01:06 - 23.646 And as noted by the court, there was, a photograph that was taken

01:06 - 27.216 that was really markedly inconsistent with the officer's testimony.

01:06 - 30.853 I mean, the officer said I observed the money in plain view,

01:06 - 32.855 the only photograph taken that day.

01:06 - 35.891 And everyone admits that nothing was manipulated prior to that photograph

01:06 - 38.894 was taken, shows the door to essentially be closed.

01:06 - 41.630 And so therefore it really placed the officers credibility

01:06 - 45.901 and significantly lower bag of cash on top of the dresser.

01:06 - 48.471 there was nothing significant, you know, there was some cash,

01:06 - 50.906 there were some coins with ones in some change in it. Correct?

01:06 - 51.874 Yeah, some some change.

01:06 - 54.610 I think really something I would submit would be very consistent with,

01:06 - 58.414 with just about anyone having some loose change, loose dollar bills,

01:06 - 59.248 nothing of what

01:06 - 00.716 I would believe to be evidentiary value

01:07 - 03.152 or certainly probable cause of criminal activity.

01:07 - 05.421 It was a wad of cash which is described.

01:07 - 10.926 Is your argument just with, respect to the paraphernalia that a an officer

01:07 - 14.563 with experience who saw the package of the gelato that would.

01:07 - 17.466 Is it your position that it wouldn't tip them off,

01:07 - 19.935 that that would be considered paraphernalia?

01:07 - 21.537 Well, it's two arguments, right?

01:07 - 22.571 That is certainly one of them.

01:07 - 26.108 And that is an officer conducting a protective sweep in this matter, which,

01:07 - 28.010 you know, this is one of those unique cases

01:07 - 31.380 which both parties have really cited, the same cases, indicating

01:07 - 35.051 that we acknowledge that protective sweeps are legal, they're appropriate.

01:07 - 38.587 we agree with what the circumstances are and how they should be conducted.

01:07 - 41.457 But I would submit to the court where the trial court is concerned

01:07 - 45.761 is that if your protective sweep is truly for the safety of yourself

01:07 - 48.831 and your other officers, when you enter that room immediately

01:07 - 50.499 and determine that there is no one in there

01:07 - 52.668 that can cause you harm, that to sit there.

01:07 - 56.338 And so there's so, so are they supposed to ignore if they see things that don't,

01:07 - 57.173 you know, you're right.

01:07 - 57.907 That's the second part.

01:07 - 00.543 And there's no, assertion and also should ignore things.

01:08 - 02.578 And I also agree there's significant case law

01:08 - 05.681 that say an officer is not supposed to avert their gaze to something

01:08 - 08.684 that they know to be criminal, contraband or activity.

01:08 - 11.187 Here's the difference in this case, the difference in this case.

01:08 - 12.221 And it really brings us to this

01:08 - 15.458 sort of intersection or interplay between two separate issues in the law.

01:08 - 19.562 As we all know, in 2016, Pennsylvania, through its General

01:08 - 22.865 Assembly, has approved medical marijuana.

01:08 - 26.168 And so this there is a sea change with respect

01:08 - 29.405 to what an officer observes, which is now probable cause of criminal activity,

01:08 - 33.442 as we know with respect to the state of law at this particular moment in time,

01:08 - 37.079 there is no distinguishing look between marijuana

01:08 - 41.150 that is legally prescribed by a physician and marijuana that is illegally obtained

01:08 - 43.886 from the street. They look exactly the same.

01:08 - 45.521 A speck is a speck.

01:08 - 49.391 And I would submit to the court that looking at Commonwealth B

01:08 - 53.129 bar, which was our case, in which the Supreme Court said that plain smell

01:08 - 57.466 is no longer probable cause because it's plain smell of a medicine.

01:08 - 00.903 In this particular case, I would submit the plain view

01:09 - 04.940 of a speck of something that you think might be marijuana is also no longer

01:09 - 08.511 something that I understand that, but I was asking about the gelato,

01:09 - 13.082 and I, I sort of agree with, with, I think some of the other comments

01:09 - 16.152 that were referenced here, because we don't like

01:09 - 19.455 the look of the packaging, it's not a matter of looking at the packaging.

01:09 - 22.892 My question was a police officer with experience.

01:09 - 26.562 When he goes in, you know, to do a protective sweep

01:09 - 30.866 and he sees on the top of the dresser, excuse me, these gelato packets,

01:09 - 34.803 would he think that is paraphernalia, I would submit no, Your Honor, and

01:09 - 38.107 I think if he did, I think that would be an unreasonable belief at that point.

01:09 - 41.710 Speculation, hunch, but not probable cause,

01:09 - 45.748 because we have no testimony that those gelato bags were used to,

01:09 - 47.416 in that area commonly for drugs.

01:09 - 49.485 Is that correct? Yeah. There's no high crime area.

01:09 - 50.553 There's none of those things.

01:09 - 54.056 Again, as noted by the court, this was an arrest of another individual.

01:09 - 56.559 Pursuant to the arrest, the protective sweep was done.

01:09 - 59.328 There was no indication that my client and that's his home,

01:09 - 02.331 this was was involved in drug trafficking or drug usage.

01:10 - 05.801 It was really searching the home quickly to avert any dangers.

01:10 - 09.405 And then do you come across those baggies and that packaging?

01:10 - 11.674 And is that probable cause of a crime?

01:10 - 14.543 And then so they see the packaging and then they look down

01:10 - 18.581 and they recognize that there is marijuana residue up as well on there.

01:10 - 21.417 Are they supposed to avert their eyes at that point?

01:10 - 24.653 And I if you could just answer that question, is

01:10 - 27.990 it does it go back to the medical marijuana argument again?

01:10 - 31.160 So the direct answer to your question or no, I'm not suggesting

01:10 - 32.094 they avert their eyes.

01:10 - 34.763 I'm not suggesting that they don't look left. Right.

01:10 - 36.232 You know, one second, three seconds.

01:10 - 37.933 That's not the heart of the argument.

01:10 - 39.001 But I would submit to the court

01:10 - 42.004 that if the goal is your protection at that moment in time,

01:10 - 47.109 simply seeing those innocuous bags, simply seeing what may or may not be

01:10 - 52.381 a legally prescribed medication in spec form does not rise to probable cause.

01:10 - 55.951 Maybe a hunch, maybe speculation, but not probable cause.

01:10 - 59.655 A criminal activity is afoot based upon those individually innocuous items.

01:11 - 04.927 the other thing that I think is very important is from this view,

01:11 - 08.597 from this vantage point, if you determine and we submit, you should not.

01:11 - 09.999 But if you determine

01:11 - 11.400 that they were appropriately there

01:11 - 14.103 and they appropriately were able to look at these things,

01:11 - 16.805 they still had to get a warrant to search the entire residence

01:11 - 17.773 and the warrant submitted.

01:11 - 20.776 In this case, it's meant to the court, which has been attached to an exhibit.

01:11 - 23.979 The warrant in this case talks about the officer's training, which is fairly

01:11 - 28.117 paced, and click, talks about again why they were there that day.

01:11 - 31.420 But the only paragraph that references probable cause is this

01:11 - 35.758 during the service of the warrant, I observed loose marijuana on a dresser

01:11 - 40.529 along with lemon cherry gelato, resealable bags, and a box of clear sandwich bags.

01:11 - 43.032 That's it for the magistrate.

01:11 - 44.633 There's nothing there saying.

01:11 - 48.237 Based upon my experience and training, I believe that these items

01:11 - 51.840 are evidence of drug manufacturing, packaging, etc.

01:11 - 55.044 so I would submit if I'm a if I'm a magistrate.

01:11 - 58.047 And again, we've talked about the officer's experience,

01:11 - 01.383 his opinion on why it was, paraphernalia.

01:12 - 03.452 None of that is in this warrant.

01:12 - 04.119 And if we're looking

01:12 - 07.589 at the four corners of this warrant and I'm a magistrate and I say,

01:12 - 11.193 what the heck is lemon cherry gelato bags,

01:12 - 13.829 maybe it's something good, maybe it's something bad,

01:12 - 16.832 but there's no indication of that warrant as to why those things

01:12 - 20.302 are probable cause to do a larger search of the property.

01:12 - 22.971 And that brings us back to the plain view plain snow.

01:12 - 26.575 I would submit that simply saying any more in 2021,

01:12 - 30.979 the end of 2021, that you saw a speck of marijuana in a property,

01:12 - 34.917 does not give you probable cause to search that residence unless you've eliminated.

01:12 - 37.086 That does not mean substitute.

01:12 - 42.024 I saw if I could in pill or I saw a pill bottle, on that counter.

01:12 - 45.227 That does not get you a search because it is wholly going back.

01:12 - 48.163 Going back to the suppression court's credibility determination.

01:12 - 52.101 Can you address opposing counsel's argument that the suppression court

01:12 - 55.204 applied the wrong test for plain view?

01:12 - 58.707 the suppression court believed that

01:12 - 02.177 looking for someone, you wouldn't see those facts.

01:13 - 03.512 They were too small.

01:13 - 07.049 Opposing counsel says it doesn't matter how long you look at the specs

01:13 - 08.984 during the sweep.

01:13 - 11.053 That's all. Still plain view.

01:13 - 16.091 So I think we can get through the issue without, Well, let me answer it this way.

01:13 - 20.162 I believe that the trial court, in my opinion, from reading the opinion,

01:13 - 25.267 has directly stated, I do not believe that this officer doing this search

01:13 - 28.670 for this reason would have seen what he testified he saw.

01:13 - 31.206 I think it's a it's fairly damning statement,

01:13 - 34.710 and she's even more direct in certain areas with respect to saying

01:13 - 37.846 that she totally disbelieved the fact that he would have seen the wad of cash.

01:13 - 41.784 So I think she's artful about it, but I think it's very clear.

01:13 - 43.952 And so I don't think she's saying

01:13 - 47.456 that he wasn't allowed to linger and look or he lingered too long.

01:13 - 50.659 I think she simply saying that if you went in there,

01:13 - 55.497 as you said you did, simply to open this door, eliminate a threat and move on,

01:13 - 56.999 that I don't believe that you would have

01:13 - 00.736 saw these microscopic items or these innocuous items.

01:14 - 04.306 and therefore, even though you were lawfully

01:14 - 08.143 in this generic place, I don't believe you saw what you saw.

01:14 - 10.646 and again, that's why I always have believed

01:14 - 13.015 this is largely a credibility case.

01:14 - 15.317 And there should be great deference paid to the trial court, who?

01:14 - 17.019 It sounds

01:14 - 21.924 to me like you're asking us to articulate a standard similar to traffic

01:14 - 26.161 car stops that you can't artificially attenuate

01:14 - 29.131 the search

01:14 - 31.133 when it's a protective search.

01:14 - 33.368 And and in a roundabout way,

01:14 - 36.772 that's it sounds to me like that's what the trial court was saying.

01:14 - 40.442 And you're asking us to affirm that

01:14 - 43.412 if it's only a protective search,

01:14 - 47.182 even if you saw something very briefly, it's only if you saw something

01:14 - 51.153 very briefly that you could rely on that was in absolute plain view.

01:14 - 55.023 And I'm not sure that this case lends itself to that.

01:14 - 58.093 I understand the question, Your Honor.

01:14 - 02.431 I would submit that I think this court could also an opinion today saying that

01:15 - 05.300 we defer to the trial court's credibility determinations,

01:15 - 06.468 and the trial court simply

01:15 - 10.339 did not believe the officer's testimony, that he saw what he saw when he saw it.

01:15 - 11.540 Certainly could.

01:15 - 14.676 I'm not saying that that's a, we're here, obviously, because maybe that's,

01:15 - 17.746 not the court's intention, but I think that that would,

01:15 - 21.617 be unappealing to any higher court just based upon the court

01:15 - 25.921 affirming, and deferring rather to the trial court's, fact.

01:15 - 26.188 Fine.

01:15 - 26.989 Well, we do give great

01:15 - 30.392 deference to the trial court unless the record is does not support it.

01:15 - 33.595 And I and again, two people could read that records

01:15 - 35.130 and certainly come to a different conclusion.

01:15 - 38.333 I was there at this hearing, and I certainly believe the trial court

01:15 - 43.872 made some, fairly, damning, conclusions relative to the officer's testimony

01:15 - 46.909 on what he saw, what he did that day and why he did it.

01:15 - 48.744 And I think that that's within the opinion.

01:15 - 51.046 So I don't think that's I'm not talking outside of the record.

01:15 - 52.848 I really believe that's within the opinion.

01:15 - 56.585 So you're basically analogize this to the motion to suppress cases

01:15 - 01.590 where the police officer says, oh, at 500 yards away, I saw the actual transaction

01:16 - 04.593 and I saw the the, the diminution of cash,

01:16 - 07.829 the denominations of cash that actually passed between the parties

01:16 - 12.000 and the trial court says 500 yards away, you're a football field away,

01:16 - 12.901 you can't see it.

01:16 - 15.337 I believe the record is here for that determination.

01:16 - 19.207 Clearly did the police officer testified the suppression hearing he did

01:16 - 23.011 when Officer Boyd testified that he testified based on his training

01:16 - 23.912 and experience,

01:16 - 27.316 that there is a reference in our record in which he indicates that based upon

01:16 - 31.486 training experience, he did conclude that the packages were drug

01:16 - 35.157 paraphernalia, that that is within our record that we, acknowledge.

01:16 - 39.861 Are you conceding that they were properly on the second floor?

01:16 - 42.898 Is that issue one we don't need to address any further?

01:16 - 47.302 So Commonwealth makes a strong argument to say that the trial court didn't really,

01:16 - 49.104 rule against us in that favor.

01:16 - 53.041 And services, rather did rule against us in that issue.

01:16 - 56.612 And so since we've not had the opportunity to appeal that matter, it's not right.

01:16 - 59.848 that frustrates me as a person that, you know, we're all here.

01:16 - 02.718 We're all reading the same record. We should address the same issues.

01:17 - 06.421 my position, Your Honor, is that I think the trial court,

01:17 - 10.192 could fairly conclude that an officer has a right to a limited

01:17 - 14.262 protective sweep to for their safety, and that based upon at least this record,

01:17 - 18.533 that could include a very limited, quick, cursory search of the upstairs.

01:17 - 23.672 And I think we still win, even with even if that is conceded and the

01:17 - 27.042 I don't know who's arguing the keyfob issue.

01:17 - 29.544 Okay, I'll wait. But thank you,

01:17 - 31.413 thank you.

01:17 - 31.647 All right.

01:17 - 34.650 Thank you.

01:17 - 51.600 May please the court.

01:17 - 54.603 Jeremy Williams, on behalf of Dominic Hightower.

01:17 - 59.107 it's our position that the that the police in this case,

01:17 - 03.211 exceeded the scope of the initial warrant, which was for Mr.

01:18 - 06.782 Hightower, who was wanted for a probation violation,

01:18 - 11.186 in a charge of fleeing or attempting to elude the police.

01:18 - 13.455 what's

01:18 - 16.458 I believe most important is that he was arrested

01:18 - 19.728 outside of the residence on the front porch.

01:18 - 22.898 He was the subject of the warrant.

01:18 - 27.803 They had already, came and got everything that they were authorized to obtain.

01:18 - 33.141 and we acknowledge that there are certain exceptions,

01:18 - 37.446 to that warrant that would allow them, to

01:18 - 40.649 check for areas immediately

01:18 - 44.619 adjoining the arrest scene, for officer safety reasons.

01:18 - 47.622 However, what's critical

01:18 - 51.660 about this particular issue, and I will submit to the court

01:18 - 55.831 that this is a very, heavily fact driven case.

01:18 - 58.867 And to give it some context, in this case,

01:19 - 00.836 Mr. Farrow's

01:19 - 03.839 client is letter was attempting to shut the door to the home.

01:19 - 07.242 and police forced their way in after Mr.

01:19 - 09.077 Hightower was in custody.

01:19 - 11.513 as he was arrested and secured outside of the home.

01:19 - 12.814 Correct? That's correct.

01:19 - 16.184 And they had did surveillance on this property for about 156 hours,

01:19 - 19.855 five days prior, five days around the clock surveillance.

01:19 - 23.058 there was some testimony, that

01:19 - 26.128 Detective Pitts had not surveilled the rear of the residence.

01:19 - 29.297 but nevertheless, they knew that the only four people

01:19 - 32.100 that they expected to be present there were, Mr.

01:19 - 35.337 Hightower, Miss Lair, and the two small children,

01:19 - 38.507 all of whom were identified and present and accounted for

01:19 - 42.277 before they ever begin to ascend the second floor steps.

01:19 - 46.314 and what's more is are you arguing that they shouldn't have been,

01:19 - 49.551 conducting a protective sweep on the second floor?

01:19 - 52.721 That is my position that you appeal that issue.

01:19 - 53.688 I'm sorry.

01:19 - 55.724 A trial court found against you on that.

01:19 - 57.893 Did you file across appeal on that issue?

01:19 - 58.794 No, we did not.

01:19 - 01.363 So is the issue properly before us?

01:20 - 02.230 No, but I was just.

01:20 - 05.600 I said I'm just

01:20 - 08.603 sorry that that's separate questions.

01:20 - 14.409 I appreciate that, but it's our position, that with respect to the scope

01:20 - 19.815 of the search, I mentioned earlier that it was highly factor of and and it is.

01:20 - 23.552 And it's important to remember that this occurred between 6 and 7 in the morning.

01:20 - 29.391 These officers, that observed the marijuana in purported plain view of Mr..

01:20 - 30.125 Fouad.

01:20 - 34.663 He had been the third set of officers to go through a room

01:20 - 37.699 on the opposite side of the house in the rear of the house.

01:20 - 41.770 The first two sets of officers, Detective Pitts and Mr.

01:20 - 46.041 Not seen they had already gone and swept the entire second floor.

01:20 - 49.211 The movement in the blinds that occurred in the front of the residence

01:20 - 50.912 in another bedroom.

01:20 - 54.616 So for them to now go into the master bedroom a third time

01:20 - 59.988 and to look behind a door for a third time in a room that is dark,

01:20 - 04.392 I mean, the light that is illuminating the top of the dresser that is from Mr.

01:21 - 09.164 Fouad cellphone prior to the before they even got a search warrant.

01:21 - 13.301 And there are photographs that were contained in the suppression

01:21 - 17.372 record that show, the drawers all closed.

01:21 - 20.609 And during those same pictures, the drawers open.

01:21 - 22.711 I mean, it is a full blown search.

01:21 - 25.580 I mean, I think that's what my colleague was alluding to.

01:21 - 29.017 he just said it in much more, artful terms.

01:21 - 30.886 He, I mean, he was searching without a warrant.

01:21 - 34.022 It's that's the reason the judge made the determination.

01:21 - 37.792 She did, because it just flies in the face of common sense to think that

01:21 - 42.130 anything other than a pretextual search for drugs or contraband was going on,

01:21 - 46.902 that the detective that surveilled the residence indicated that he had seen Mr.

01:21 - 50.472 Hightower during those five days coming and going, and not Mr.

01:21 - 53.642 Hightower or anybody else committing any crimes during that time.

01:21 - 56.811 there is also you're not arguing to us

01:21 - 59.814 that the fact that they had searched the rear of the house

01:21 - 03.084 precluded them from searching it again, when they saw a movement

01:22 - 06.087 in the front bedroom.

01:22 - 07.522 I mean, you know,

01:22 - 10.425 if there's movement upstairs, there's movement upstairs.

01:22 - 15.530 And I think that they would be allowed to sweep change of circumstances.

01:22 - 18.033 Would the and the just to be clear,

01:22 - 21.736 Your Honor, the the movement in the blinds that occurred prior to Mr.

01:22 - 24.572 Hightower's arrest, the police come in.

01:22 - 27.575 They they're set up 12 to 15 people deep in

01:22 - 30.912 what they referred to as stacks to, to forcibly enter the house.

01:22 - 33.248 they can hear Mr.

01:22 - 37.085 Hightower coming saying, hey, I'm coming down from inside the residence.

01:22 - 40.322 the detective immediately recognizes him when he comes out.

01:22 - 41.990 He's taken into custody.

01:22 - 43.258 And it was prior to him

01:22 - 46.895 being arrested that they saw the movement in the blinds in the second floor,

01:22 - 49.798 and when they come into the residence, they immediately see Mr.

01:22 - 52.534 Layer and these two small children that are on the first floor,

01:22 - 54.302 and then they ascend to the second floor

01:22 - 58.606 with no reasonable expectation to find anybody or anything.

01:22 - 00.642 Well, I believe one of the children was on the steps. Right.

01:23 - 03.645 Because, officers had to pass, the child over to the mom.

01:23 - 07.382 I understood it to mean that the child was on the landing of the steps.

01:23 - 09.884 The one child was already with Miss Leah.

01:23 - 13.788 And I believe that, if the if you were familiar with the layout,

01:23 - 17.759 there's a landing and it turns up to a set of steps that then opens up to

01:23 - 19.661 to multiple bedrooms. But yes.

01:23 - 21.429 Can you address the keyfob?

01:23 - 23.765 It's our

01:23 - 26.868 position that that that is certainly a search.

01:23 - 31.373 the the initial search warrant, did not authorize the seizure

01:23 - 34.743 of that device, and they seized it, and then they manipulated it.

01:23 - 37.846 Well, it was found as result of the search warrant.

01:23 - 38.580 That's correct.

01:23 - 42.183 But the search warrant did not authorize the seizure of key FOBs.

01:23 - 45.620 There was. No that was not a criminal item.

01:23 - 48.990 the police didn't have any authorization to manipulate it in the first place.

01:23 - 54.496 so they seized it, and then they essentially, activated the

01:23 - 57.799 the car's horn, found the location,

01:23 - 00.902 and then purportedly see, a magazine.

01:24 - 05.206 Well, and a firearm from underneath the front seat, but no one said that they saw.

01:24 - 07.842 Let's assume that they could manipulate the fire.

01:24 - 09.210 No one saw Mr.

01:24 - 10.912 Hightower in possession of that gun.

01:24 - 14.349 They said in the days prior they seen him operate that vehicle.

01:24 - 16.684 But no one had ever said they'd seen the gun.

01:24 - 18.753 I mean, it's it's a firearm. There's nothing

01:24 - 21.022 that's not the issue.

01:24 - 23.758 The issue is whether it was properly seized.

01:24 - 28.263 And and there was a second search warrant that allowed them to seize that.

01:24 - 31.332 However, the and that I agree with that, Your Honor,

01:24 - 34.335 but it's important to to realize that,

01:24 - 38.373 the officer opened the vehicle and removed the gun

01:24 - 41.309 and seized the gun prior to even obtaining the search warrant.

01:24 - 42.877 Well, he says it was in plain view.

01:24 - 47.549 The warrant in very may well have been in plain view,

01:24 - 50.018 but it's not plain view, and it's not immediately

01:24 - 52.921 apparent that it's contraband because it's just a firearm.

01:24 - 56.157 The case that the interpreted this similar set of facts,

01:24 - 58.493 it was actually a case from Philadelphia.

01:24 - 00.395 I believe, where there was a traffic stop.

01:25 - 04.799 And in the course of the traffic stop, the officer recognized the firearm,

01:25 - 10.271 of an occupied vehicle, to be one that was assembled with ghost gun parts.

01:25 - 13.708 And he was immediately cognizant of the fact that gun is illegal.

01:25 - 16.878 And that's what authorized him to seize the gun immediately

01:25 - 20.215 prior to a search warrant, this vehicle was unoccupied.

01:25 - 23.218 All the people connected to it were in custody.

01:25 - 25.086 and the police were in possession of the Keyfob.

01:25 - 28.890 There was no reason your client that was being arrested for a probation

01:25 - 30.825 violation, right? Correct.

01:25 - 32.827 Legally permitted to possess a firearm?

01:25 - 37.332 No, no, no, but I mean, he's.

01:25 - 41.402 And there is an an immediately apparent reason

01:25 - 44.405 that that is contrary.

01:25 - 45.907 Well,

01:25 - 48.676 I it's okay to concede that part.

01:25 - 51.279 And he couldn't have guns on probation.

01:25 - 54.516 But I don't know that it's that clear cut.

01:25 - 58.553 I mean, they'd seen him driving a vehicle, not seen him driving a vehicle

01:25 - 59.854 and in possession of the gun.

01:25 - 04.959 But if it's his vehicle, I mean, if five is almost of no moment,

01:26 - 08.263 if the if the gun is seen in plain view in the car

01:26 - 11.266 of someone who cannot legally possess a gun,

01:26 - 14.969 even if he is in custody, I mean, they saw the gun.

01:26 - 16.838 I mean, I know I don't know if he challenged

01:26 - 19.140 a plain view of that or not, but they see the gun in their,

01:26 - 24.646 it's a bad fact.

01:26 - 25.713 It's not. It's my foot.

01:26 - 27.916 I can see that. Okay, that's what I said.

01:26 - 29.184 I can see that and move on.

01:26 - 31.019 Okay, let's move on.

01:26 - 34.889 And, can you go back to the fact that this was the third officer?

01:26 - 36.824 So it's a testimony.

01:26 - 38.493 I haven't looked at the record that closely,

01:26 - 41.763 that there were three different officers that went upstairs to do a sweep.

01:26 - 44.365 There were approximately 10 to 12, Your Honor.

01:26 - 48.436 there were several members of the US marshals Fugitive Task

01:26 - 53.474 force, the York City Police, and other sheriff's deputies that were present.

01:26 - 57.812 There were Detective Pitts, who was the first officer that testified

01:26 - 01.716 at the suppression hearing, was at the rear of the first stack, which was a

01:27 - 05.019 what he described as like a line of people

01:27 - 07.488 that were going to act as a battering ram.

01:27 - 08.890 That first stack goes in,

01:27 - 10.558 they clear that

01:27 - 13.761 area, not Stein is behind that stack.

01:27 - 15.830 They go in, clear that area.

01:27 - 17.599 How many chances do they get?

01:27 - 18.032 Three.

01:27 - 21.803 Food is there during the third sweep of the same area,

01:27 - 26.975 and it certainly exceeds the scope of of what they were there to look for.

01:27 - 28.843 because no one was expecting

01:27 - 32.614 to find people behind a solo cup on the top of a dresser.

01:27 - 35.083 Yeah, it's just

01:27 - 36.618 know people for the first time.

01:27 - 38.119 No people found the second time.

01:27 - 40.488 Why are you even doing a third sweep?

01:27 - 41.656 Is your is your point.

01:27 - 43.491 That's our that's our position.

01:27 - 44.292 That's the issue.

01:27 - 47.462 Do you want to, discuss, you know, we

01:27 - 50.465 we can't affirm on any basis supported by the record.

01:27 - 53.201 Do you find do you think that might be applicable here?

01:27 - 54.002 I'll agree with that.

01:27 - 58.873 if you want to expound upon that,

01:27 - 02.977 well, it's our position that, essentially what my colleague had indicated

01:28 - 06.848 was that the trial court made factual findings,

01:28 - 10.885 and it's it's this court's job to reverse errors of law.

01:28 - 14.756 The if the findings of fact made by the trial court support her

01:28 - 17.925 decision, then I believe you're obliged to affirm.

01:28 - 19.827 And that's what we'd ask you to do.

01:28 - 23.231 And and I open it up to any other questions from your honor.

01:28 - 25.833 All right. Thank you, counsel.

01:28 - 28.836 Thank you.

01:28 - 34.876 so I have a question on the keyfob.

01:28 - 35.743 Okay.

01:28 - 39.547 I know how my colleagues feel about this, but, where

01:28 - 43.785 in the original search warrant does it say that you can, pick up the keyfob?

01:28 - 45.720 it doesn't say that you're on a search.

01:28 - 48.323 Says search the house for drugs, drug paraphernalia and the like.

01:28 - 52.694 And anywhere that is a keyfob is about a big about, like, what, two inches.

01:28 - 53.294 Right.

01:28 - 57.065 so, I mean, anywhere that is going to hold drugs could also hold a keyfob.

01:28 - 00.268 the existing case law in Pennsylvania says that

01:29 - 03.571 the manipulation of keyfob is not a violation of a privacy.

01:29 - 05.540 Right. thus, it's not

01:29 - 09.210 an illegal search in that regard.

01:29 - 11.546 the car was out in plain view.

01:29 - 13.848 while the police,

01:29 - 16.851 the police saw the one firearm in plain view and then did secure it.

01:29 - 18.286 but then they obtained a warrant

01:29 - 22.123 which would have rendered the early the premature securing of that firearm

01:29 - 25.126 inevitable discovery in the search warrant.

01:29 - 28.196 But the car you said was outside of the house

01:29 - 32.400 and the original search warrant was for the house? Yes.

01:29 - 35.403 You're not the car. Correct. Okay.

01:29 - 36.304 Could you.

01:29 - 37.071 I'm so sorry.

01:29 - 38.239 I was just going to say.

01:29 - 41.042 Can we get back to the third? Third strike?

01:29 - 44.545 You're out kind of issue here as to whether it was appropriate

01:29 - 49.384 for three sets of officers to see in that room,

01:29 - 52.754 and it wasn't until the last year I don't believe there's testimony

01:29 - 55.323 that three officers looked at that specific room.

01:29 - 57.892 There were several officers that went into the house,

01:29 - 00.862 and secured the the occupants of the house.

01:30 - 03.698 but I don't I don't believe in the record specifically said

01:30 - 07.001 that he was the third officer to go in the master of that room.

01:30 - 09.103 That room. Okay, we'll look at that.

01:30 - 11.439 But he was located in the rear of the stack.

01:30 - 13.040 Is that correct?

01:30 - 13.841 yes, sure.

01:30 - 14.709 I believe the testimony.

01:30 - 17.445 So he was one of the last officers to enter the house?

01:30 - 19.447 Well, that was the first officer that testified.

01:30 - 23.050 Officer Pitts was at was basically at Moore towards the rear.

01:30 - 27.121 it's detailed in thorough detail within the testimony.

01:30 - 30.391 at least three officers testified on behalf of the Commonwealth,

01:30 - 33.194 and one officer was called as a defense witness.

01:30 - 37.532 The defendant came to the doorway.

01:30 - 39.300 He was arrested in the doorway.

01:30 - 42.837 And I would note, Commonwealth versus Duke.

01:30 - 46.441 a 2019 PA super published case.

01:30 - 52.013 That an individual standing in the doorway

01:30 - 55.716 of an open garage door, specifically a police officer,

01:30 - 58.486 for all intents and purposes, is inside the house.

01:30 - 01.956 I remember this because I lost expression on the basis that the officer

01:31 - 05.092 was in the doorway, and the court found he was in the house.

01:31 - 08.930 So when this defendant was in the doorway and taken into custody in the doorway,

01:31 - 12.066 he was taken into custody in the house under the existing law.

01:31 - 15.169 I would say to you, goose versus gander, on that one,

01:31 - 18.172 you're on.

01:31 - 21.609 Any additional questions?

01:31 - 25.980 I guess just a quick note as to, affirm on a basis

01:31 - 30.785 in this particular case, since the court did find that, and even state.

01:31 - 34.922 So in the 1925 opinion that should the court, hold that the,

01:31 - 39.460 there was an error in regards to the observation of the marijuana,

01:31 - 40.862 the court would itself

01:31 - 43.831 reverse the decisions as to the keyfob and the subsequent warrants.

01:31 - 47.401 it gets into the question of is it a firm, permanent basis

01:31 - 51.472 or is it reverse on a basis that is not for the court yet?

01:31 - 54.809 the Commonwealth has not had an opportunity to respond.

01:31 - 57.912 In brief form to the defendant's claim, since they were not before the court.

01:31 - 00.948 and we would just ask the court to take that in mind.

01:32 - 03.351 the the defense issues are all still preserved

01:32 - 05.553 for direct appeal, should it ever get that far.

01:32 - 08.656 My hope is that it doesn't get that far and that we can work out a deal.

01:32 - 11.359 But that is out of my hands. Isn't poetry.

01:32 - 13.561 Thank you very much. All right. Thank you. Thank you. Counsel.

01:32 - 17.698 The next case on the court's docket

01:32 - 21.302 is Commonwealth of Pennsylvania versus Brandy Snowden.

01:32 - 26.841 Probable cause is a legal standard that refers to a reasonable basis

01:32 - 30.011 for believing that a crime has been committed.

01:32 - 35.249 As a rule, law enforcement is required to demonstrate that it had probable cause

01:32 - 39.720 before arresting any person suspected of committing a crime.

01:32 - 44.825 The primary issue in this case is whether the Commonwealth had sufficient

01:32 - 48.729 evidence to establish probable cause to justify

01:32 - 51.732 arresting Brandy Snowden.

01:32 - 53.734 At 8:15 p.m.

01:32 - 58.606 on June 6th, 2022, two Pittsburgh area officers came upon

01:32 - 03.978 Snowden, who was leaning on a bus stop trash can and nodding off to sleep.

01:33 - 07.782 They approached her and they asked if she was okay,

01:33 - 10.418 and they also asked for her identification.

01:33 - 12.720 She told them that she was okay, and she put her

01:33 - 15.723 purse on the ground to search for her identification.

01:33 - 18.793 While she searched, one of the officers saw

01:33 - 21.796 at least one syringe in Snowden's bag.

01:33 - 25.466 Based on that observation, he arrested Snowden

01:33 - 28.703 and the officers then searched her bag.

01:33 - 31.906 The search revealed heroin and fentanyl.

01:33 - 34.075 Snowden argued at

01:33 - 37.078 trial that she was arrested without probable cause.

01:33 - 41.782 At a suppression hearing, Snowden introduced bodycam footage

01:33 - 46.020 from the officers to show that she did not consent to the search of her bag.

01:33 - 49.423 That, but that footage was not admitted into evidence.

01:33 - 53.060 Snowden now argues, on appeal that the Superior Court

01:33 - 56.063 should consider that footage as part of its review.

01:33 - 58.466 Snowden later went to trial,

01:33 - 01.469 and she was convicted of possession of a controlled substance.

01:34 - 05.139 This case involves two issues.

01:34 - 08.275 First, whether law enforcement had probable

01:34 - 12.346 cause to justify Brandy Snowden's arrest, and second,

01:34 - 16.751 whether body cam footage was properly excluded from the record.

01:34 - 20.621 Morning police records, I think she was in

01:34 - 23.624 from Allegheny County Office of the Public Defender.

01:34 - 26.327 I represent the appellant, miss Brandy Snowden.

01:34 - 29.196 I'd like to, reserve three minutes for rebuttal, please.

01:34 - 30.531 Certainly. Yes.

01:34 - 33.467 the trial court erred in denying suppression

01:34 - 37.605 because Officer Lawrence arrested Miss Snowden without probable cause

01:34 - 40.608 after observing a syringe in her purse.

01:34 - 43.711 Syringes are not inherently illegal.

01:34 - 47.448 They have many common medical uses to inject medication

01:34 - 50.851 for diabetes, asthma, allergies, Ms.

01:34 - 56.090 to inject fertility drugs or other hormones to administer medication to pets.

01:34 - 00.828 It makes perfect sense to store a capped medical syringe in your purse,

01:35 - 03.030 or any

01:35 - 06.767 other medication of was there medication of any kind

01:35 - 09.770 in the past as well?

01:35 - 12.573 Your honor, the officer arrested Mr.

01:35 - 15.576 Snowden immediately upon,

01:35 - 18.245 locating a syringe in her purse.

01:35 - 19.480 The purse was in front of her.

01:35 - 21.816 And you make some observations.

01:35 - 27.521 In all fairness, at least the court said, that your client was leaning on a trash

01:35 - 30.391 can and nodding off, and he originally approached her

01:35 - 33.394 for a welfare check to make sure she was okay.

01:35 - 37.064 so there's a totally the circumstances here.

01:35 - 40.601 It's not just he went in her purse and took a syringe, and that's it.

01:35 - 42.570 I mean, that's not what happened.

01:35 - 46.540 when you look at all of these other behaviors in connection with the syringe,

01:35 - 49.944 does that not is that not proper,

01:35 - 51.445 research?

01:35 - 53.681 I'm sure you would say no, but search is not safe.

01:35 - 55.850 The arrest was not proper.

01:35 - 59.987 and the body cam footage did not show that she attempted to cover up

01:35 - 00.621 the syringes.

01:36 - 01.522 Is that correct?

01:36 - 04.525 That's correct. Yes. So,

01:36 - 08.262 to answer your questions, the officer came upon Mr.

01:36 - 10.464 Snowden by happenstance.

01:36 - 14.435 He testified that she appeared to be nodding off at the bus stop.

01:36 - 19.173 he went and approached her, but then the testimony and the body

01:36 - 23.511 cam shows that she was behaving normally and was cooperative.

01:36 - 25.346 Correct. He was cooperative.

01:36 - 29.183 And in addition to that, she was coherent, was coherent.

01:36 - 30.751 She talked normally.

01:36 - 32.086 She walked normally.

01:36 - 35.990 The officer testified that she wasn't stumbling or falling.

01:36 - 40.394 There was no testimony from the officer that Miss Snowden had bloodshot eyes

01:36 - 44.498 or glazed eyes, or that she had slurred speech or slowed speech,

01:36 - 46.333 or that she was saying strange things.

01:36 - 48.469 Then if you look at the body cam again, she was

01:36 - 50.571 coherent, acting

01:36 - 54.141 normally, normal energy level walking and talking normally.

01:36 - 56.544 Would you agree that the seeing of the syringe

01:36 - 00.347 would have given him reasonable suspicion to inquire further about it?

01:37 - 02.416 But but he didn't do that.

01:37 - 04.852 He just immediately said, you're under arrest.

01:37 - 07.288 he immediately arrested her.

01:37 - 10.291 So what happened was this was a very brief encounter.

01:37 - 13.360 The arrest happened within a minute and a half.

01:37 - 15.563 He saw the syringe, and then he was immediately

01:37 - 18.098 handcuffed and arrested, and there was no chance to,

01:37 - 19.700 in other words, no probable cause.

01:37 - 23.337 He would have had reasonable suspicion to inquire further, but he did not have

01:37 - 27.975 probable cause to arrest at that instant position, as there was no probable

01:37 - 31.445 cause to arrest, and then conduct the search incident to arrest.

01:37 - 35.816 With respect to the body cam, does the body cam,

01:37 - 39.653 I guess, you know, I haven't had an opportunity to review it.

01:37 - 44.091 And so, my my guess is that the body cam is going to show the interaction

01:37 - 47.394 as he gets closer, but not the reasons why he's approached it, to show

01:37 - 50.464 just the body cam show that she's nodding off

01:37 - 53.334 or leaning on a trash can or any of those things.

01:37 - 55.803 No, Your Honor, the body cam doesn't show her nodding off

01:37 - 56.904 or leaning on a trash can.

01:37 - 00.374 What can you see from the perspective as he's approaching her?

01:38 - 03.510 You can if if Pierce

01:38 - 06.614 if he's approaching her, she has, you know, a Covid mask on

01:38 - 09.617 and she takes the mask off and he says,

01:38 - 13.220 you know, you know, ask if she's okay.

01:38 - 14.722 And she says, I'm fine.

01:38 - 18.525 I'm just tired from working long hours at the store on the street.

01:38 - 22.830 so that's all we see from the body cam.

01:38 - 25.866 The officer testify about his training and experience

01:38 - 29.904 as it relates to her nodding off and his and suspected drug use.

01:38 - 34.742 The officer didn't testify at all about his training or experience.

01:38 - 40.981 So. No, what's the standard of review that we're looking at this case with?

01:38 - 42.583 I mean, this is a suppression case.

01:38 - 44.919 So it's,

01:38 - 48.188 overturn of the facts are not supported by the record.

01:38 - 52.192 Or if the trial court's conclusions are an error of law,

01:38 - 56.163 which I believe both of those things happened here.

01:38 - 03.203 so my position is that it's not suspicious.

01:39 - 06.840 It's not a crime to be tired of the bus stop

01:39 - 09.810 to close your eyes at the bus stop.

01:39 - 11.445 Many people do it all the time.

01:39 - 14.782 People who are working long hours and are tired,

01:39 - 18.652 people who are parents and have small children and wake up.

01:39 - 20.621 We're woken up multiple times at night.

01:39 - 21.956 I know that from experience.

01:39 - 26.093 I met people today after staying up last night watching the results come in.

01:39 - 27.995 We're closing their eyes at the bus

01:39 - 31.498 stop and hear the officer didn't know Miss Snowden.

01:39 - 35.336 He had no prior experience or knowledge about her.

01:39 - 40.207 But if we're looking at the totality of the circumstance, then the trial court

01:39 - 44.979 seemed to find that the defendant, did

01:39 - 48.115 toss the syringes to the

01:39 - 51.118 side of her purse when the officer observed those.

01:39 - 55.055 Is there something in the video that that,

01:39 - 59.994 would not support that finding?

01:40 - 03.197 The video doesn't show.

01:40 - 05.699 The video shows her rummaging through her purse.

01:40 - 08.102 where she was looking for her ID, right?

01:40 - 09.703 Didn't he ask her for her ID?

01:40 - 14.541 So he asked for her ID and she agreed and said yes.

01:40 - 18.412 Now, the Commonwealth was advancing the argument in his brief

01:40 - 23.584 that the officer did say that she removed the syringe in her purse.

01:40 - 26.820 But the Commonwealth then was saying that she attempted

01:40 - 31.058 to conceal the syringe or hide the syringe, that she acted evasively,

01:40 - 32.926 that this showed a guilty conscience.

01:40 - 35.696 But the record simply does not support this.

01:40 - 39.166 The trial court made no factual findings of that nature.

01:40 - 42.836 There was no testimony from the officer that, oh, she tried to hide

01:40 - 46.707 the syringes and was acting basically, or she tried to, you know,

01:40 - 49.710 put a handkerchief or her wallet on top of her injuries.

01:40 - 53.514 So what the trial court said, in its opinion,

01:40 - 56.283 you don't consider to be a finding of fact.

01:40 - 58.352 The trial court, in its opinion, said that

01:41 - 00.754 the officer

01:41 - 03.757 testified that she moved the syringe in her purse.

01:41 - 06.627 And I don't disagree with that. That was the testimony.

01:41 - 09.663 But the trial court never said that she was

01:41 - 14.201 moving the syringe, and therefore that was an attempt to hide

01:41 - 15.702 or conceal the syringe.

01:41 - 19.606 and, I think I'm looking at her opinion, the trial court's opinion.

01:41 - 22.042 It said one defendant push the syringes to the side.

01:41 - 24.011 She was arrested once.

01:41 - 25.212 Officer Lawrence observed

01:41 - 28.782 the syringes and defendant tossed them to the side in her purse.

01:41 - 30.417 We look at the totality

01:41 - 33.587 of the circumstances to determine whether probable cause exists.

01:41 - 36.723 So. And then the trial court also considered that

01:41 - 39.860 it was in a high crime area. Correct.

01:41 - 43.664 Your honor, I want to address a bit more about both of those points.

01:41 - 44.598 Okay. Now,

01:41 - 50.104 the record to me does not support the fact that she was acting evasively.

01:41 - 52.372 It supports the opposite.

01:41 - 56.710 Miss Snowden agreed to provide her ID to the officer as she opened her

01:41 - 01.115 large purse wide, directly in front of the officer on the sidewalk.

01:42 - 03.550 She put it on the sidewalk, on the sidewalk in front of him.

01:42 - 08.255 She didn't move her body to place herself between the person,

01:42 - 12.092 the officer she didn't try to, like, shield the purse from the officer.

01:42 - 15.162 Everything was in plain view for him.

01:42 - 20.300 The officer, when he when asked, did she try and move the syringes?

01:42 - 24.171 He testified, I don't think she tried to tamper.

01:42 - 25.973 No, he did say that.

01:42 - 28.442 She kind of tossed or moved the needles to the side.

01:42 - 29.042 But again,

01:42 - 32.146 I mean, it's clear that she was looking

01:42 - 35.616 and rummaging through her bag trying to find the ID,

01:42 - 40.254 and that testimony doesn't support the leaf that she was

01:42 - 45.058 hiding or acting evasively, especially when the bag was right

01:42 - 48.328 there in plain view for her, for him to see.

01:42 - 51.465 in regards to he

01:42 - 54.868 he the officer did claim that this was a high crime area,

01:42 - 58.972 and the court's below cited that, in their opinions.

01:42 - 04.845 But it's important to note that that claim was entirely unsubstantiated.

01:43 - 07.714 The officer gave no statistics to support it.

01:43 - 11.485 He didn't mention his training and experience at all.

01:43 - 15.455 He didn't say, oh, how long he's worked in Mount Oliver.

01:43 - 19.826 just something the trial court can just acknowledge

01:43 - 24.665 being someone who lives their lives in the confines of the area.

01:43 - 29.570 I'm is an Allegheny County judge and county.

01:43 - 32.639 So Mount Oliver, if you live in Pittsburgh, you know,

01:43 - 35.709 this was

01:43 - 37.511 a busy business district.

01:43 - 40.280 And like Miss Snowden had reason to be there.

01:43 - 41.515 She worked at the store there.

01:43 - 44.017 She was waiting for the bus there.

01:43 - 45.485 broad daylight too.

01:43 - 46.853 It was broad daylight. Yes.

01:43 - 50.524 Your honor, can you briefly address the propriety of,

01:43 - 54.461 incorporating considering the body cam footage?

01:43 - 55.562 Oh, absolutely.

01:43 - 00.701 so our position that is, is that it's absolutely part of the record.

01:44 - 03.670 It was played in open court.

01:44 - 07.608 The Commonwealth stipulated to including the video and the record,

01:44 - 11.712 and the stipulation included no limiting language that this video is only

01:44 - 15.015 to be considered for the consent issue, which isn't even before the court,

01:44 - 19.186 or that the the Commonwealth wasn't waiving its, claim

01:44 - 23.991 that the video wasn't part of the record and the Commonwealth the the trial D.A.

01:44 - 25.892 didn't object.

01:44 - 30.063 He didn't raise a timely contemporaneous objection when the video was played.

01:44 - 36.003 Not only that, but he used the video to his own benefit during redirect.

01:44 - 37.304 It was his final question.

01:44 - 41.208 He cited the video and said, hey, looking at this video, does this show

01:44 - 44.411 that Miss Snowden tried to deny knowledge of the arrangement?

01:44 - 48.548 This was after she was arrested and, you know, the bag

01:44 - 50.284 and told that

01:44 - 53.287 the bag was going to be searched.

01:44 - 55.022 in the briefs,

01:44 - 58.025 there was discussion of the Jones case, which the Commonwealth cited.

01:44 - 02.429 And my position is that that supports the defense because that's the case

01:45 - 06.333 where the, the court found that a video that was played

01:45 - 11.204 was part of the record, despite, not being formally admitted.

01:45 - 14.408 This was also a suppression hearing was pretrial.

01:45 - 17.511 And I cite cases in my in my brief that's explained it.

01:45 - 22.215 You know, evidentiary rules and procedures are often relaxed in those settings.

01:45 - 26.787 and in those cases, materials presented in pretrial settings

01:45 - 30.223 that weren't formally admitted were indeed part of the record.

01:45 - 33.093 But our position is that, yes, it's part of the record.

01:45 - 37.664 But even without it there, there still wasn't probable cause,

01:45 - 42.536 for for their arrest, the video may add color and elaborate

01:45 - 47.240 on the testimony, but with the testimony alone, there's no probable cause.

01:45 - 52.913 Again, the officers own testimony showed that she answered the questions lucidly,

01:45 - 56.817 that she followed commands, that she wasn't stumbling or falling.

01:45 - 58.852 He never testified to those homework.

01:45 - 02.556 Signs of bloodshot eyes slowed speech, slurred speech,

01:46 - 07.094 confused conversation topics.

01:46 - 16.236 so. The Commonwealth, in its brief, pointed to me

01:46 - 19.339 for different reasons for why it believed that there was probable

01:46 - 22.909 was probable cause, and I addressed

01:46 - 23.744 most of them.

01:46 - 27.714 I wanted to address the last one because for all of them, again, the record

01:46 - 31.752 either doesn't support Lewis reasons or those reasons don't,

01:46 - 35.455 justify the legal conclusion.

01:46 - 37.591 I can wait order, but that's okay.

01:46 - 40.594 Thank you.

01:46 - 45.966 Morning.

01:46 - 50.170 If it's still morning, Your Honor, Frank Knepper for the Allegheny County

01:46 - 53.373 district attorney. Could you move that? Yes.

01:46 - 54.775 Or closer. How about this?

01:46 - 55.709 Can you hear me?

01:46 - 59.279 But, I want to talk about the, body camera

01:46 - 03.884 footage and, whether it can even be considered by this court.

01:47 - 06.386 It seemed like,

01:47 - 08.555 Miss Schumann's argument,

01:47 - 11.191 was that it a given that this was considered,

01:47 - 14.194 should be considered, and your question seemed to suggest that

01:47 - 17.998 it was to be considered until the final question by Judge Peck.

01:47 - 22.269 But, the Commonwealth doesn't believe that it should be,

01:47 - 26.773 it it's clear that our attorney objected

01:47 - 31.011 as soon as it was proper to object, as soon as the parties rested.

01:47 - 36.016 RDA said the body cam footage is not evidence.

01:47 - 38.518 It has not been admitted as evidence.

01:47 - 42.088 And so it cannot be considered by the court in this instance.

01:47 - 44.191 The only evidence in the record

01:47 - 47.761 is the officer's testimony that was put forth by the Commonwealth,

01:47 - 51.064 and that is the appropriate evidence for the court to review.

01:47 - 54.334 And Judge Watson, in her trial court opinion, said

01:47 - 57.737 that the video was not admitted into evidence.

01:47 - 02.075 Now says, one of the reasons that's wrong

01:48 - 07.514 is that our attorney used it to benefit the Commonwealth's case.

01:48 - 09.583 That's not true.

01:48 - 12.552 The our attorney asked one question.

01:48 - 15.422 during redirect.

01:48 - 18.525 but then after the parties rested

01:48 - 23.363 and after it was clear that the defense had not admitted it

01:48 - 27.234 into evidence, that's when we made the objection.

01:48 - 32.372 So in a sense, he's he's, he was disavowing his question.

01:48 - 34.174 He was withdrawing his question.

01:48 - 36.977 What is the effect of your stipulating to it

01:48 - 39.412 being included in the certified record? Have to do.

01:48 - 40.547 I was going to get to that.

01:48 - 43.183 oh. Good. I'm glad. Sure.

01:48 - 46.286 I don't think that, Did you do it?

01:48 - 50.056 Was it admitted in the certified record with a reservation? No.

01:48 - 52.259 Look, I will go ahead.

01:48 - 57.664 The, First of all, I don't see any reason.

01:48 - 02.536 I don't see any way the Commonwealth could keep it out of the certified record.

01:49 - 04.571 If if some.

01:49 - 09.843 Take an example of, an attorney, questioning a witness

01:49 - 15.215 at trial, and the witness gives an answer and the opposing counsel says, I object,

01:49 - 19.586 I want that stricken from the record, and the judge says, yes, disregard that.

01:49 - 23.023 That doesn't make it evaporate from transcript.

01:49 - 24.858 It's still part of the record.

01:49 - 28.061 The question is what use can it be on appeal?

01:49 - 31.331 So when, Miss Schumann asked me

01:49 - 35.368 if I would stipulate to this video being play

01:49 - 38.772 of being part of the sort of certified record because it was played,

01:49 - 43.243 at trial, I don't see any grounds to keep that out.

01:49 - 45.478 It existed. It was part of the proceeding.

01:49 - 49.282 But admitting it into the record is not the same thing with

01:49 - 50.650 there have been any basis

01:49 - 54.087 to object to the admission, if it had been technically admitted.

01:49 - 55.422 Jessica,

01:49 - 58.425 again, I'm sorry there have been any basis to object to the

01:49 - 02.028 to the admission of the body cam into the certified record.

01:50 - 05.131 No. At trial, the time of the suppression hearing,

01:50 - 09.269 when it was played to the trial judge, the trial judge saw it at the suppression

01:50 - 09.536 hearing.

01:50 - 11.471 Correct. I saw it was played,

01:50 - 15.108 at least from my reading of the record for a limited purpose.

01:50 - 18.445 The purpose was that

01:50 - 20.413 on direct, the,

01:50 - 24.284 officer testified that the search was a result of

01:50 - 28.254 a, concert consent by the defendant.

01:50 - 28.788 Right.

01:50 - 31.791 But the fact that the trial court.

01:50 - 33.693 It's more than just objections.

01:50 - 37.330 I know it's going to start with Whac-A-Mole, but,

01:50 - 41.067 but my concern is that the chocolate.

01:50 - 46.439 Watch the video, heard the testimony and was sort of appear to be figuring out,

01:50 - 49.442 reading its TCO, that it credited

01:50 - 52.078 the officer's, testimony.

01:50 - 56.016 But the fact that the trial court considered it isn't that right?

01:50 - 59.252 It's more than just it got stuck on the in the crime,

01:50 - 01.755 stuck in the certified record.

01:51 - 06.226 The trial court listened to it, watched via research.

01:51 - 09.262 And that was part of her.

01:51 - 11.264 Why are we certain? Because she puts it in here.

01:51 - 13.566 You know, we're not pulling this stuff out of thin air.

01:51 - 16.569 It's because she puts it in in the opinion.

01:51 - 17.303 And she.

01:51 - 18.805 I'm reading it, sir.

01:51 - 21.508 It says, you know, she she read it.

01:51 - 26.713 She watched it write that she, she didn't rule it inadmissible.

01:51 - 28.348 Right.

01:51 - 32.886 She didn't say anything at, at trial after we made our objection.

01:51 - 37.490 But in her opinion, she said it was not admitted into evidence

01:51 - 40.860 and I don't think I mean, I could be wrong, but I don't think

01:51 - 45.532 she said anything in her trial court opinion about considering the video.

01:51 - 46.700 I don't think she said that.

01:51 - 49.703 The fact that she heard it, watched it.

01:51 - 52.472 I guess my concern is I hear what you're saying.

01:51 - 55.008 It wasn't written ins, I get that.

01:51 - 58.078 But then she she watched it and if she heard

01:51 - 01.081 it was something that later is objected to

01:52 - 04.584 because it was not moved into the record by the party. So.

01:52 - 08.955 So your comments objected to it before she watched it.

01:52 - 09.723 The video.

01:52 - 12.592 Oh no, it was played on.

01:52 - 16.329 Cross-examined by the defense for the purpose

01:52 - 19.999 of pointing out that on direct, the officer had testified incorrectly.

01:52 - 21.735 He did not consent.

01:52 - 25.472 He did not get the, defendant's consent to search the purse.

01:52 - 28.575 He searched it incident to arrest.

01:52 - 31.544 He corrected himself after the video was played.

01:52 - 36.049 That was the only question asked about the video by the defense.

01:52 - 40.653 Then, after the parties rested, our attorney, as I quote it,

01:52 - 46.192 objected to this being considered because it was never moved for admission

01:52 - 49.329 and all the cases cited by the defense as to

01:52 - 55.502 as to, instances in which it's, something isn't officially admitted, but

01:52 - 59.939 it's clear that both parties are using it and relying on it so it can come in.

01:53 - 01.808 That wasn't the case here.

01:53 - 03.209 There was an objection.

01:53 - 06.946 And there was another argument by by the defense counsel

01:53 - 10.350 is that it was an untimely objection by our D.A.

01:53 - 13.119 that with all due respect, it doesn't make any sense.

01:53 - 18.024 There was no time to make that objection until because it was part of cross

01:53 - 20.293 right when it came in.

01:53 - 22.962 I guess they never moved for admission.

01:53 - 24.230 They never move for admission.

01:53 - 28.301 When you try a case, you move and exhibit

01:53 - 33.173 a document, a video into evidence.

01:53 - 36.242 At that time, opposing counsel

01:53 - 39.746 says, I object, but that never happened

01:53 - 43.383 because they never moved for admission, never move for admission.

01:53 - 47.020 I assume that our attorney was thinking, well, eventually this

01:53 - 49.055 before the case ends, they'll move.

01:53 - 50.390 They'll move for admission.

01:53 - 52.225 But they might. They didn't.

01:53 - 58.298 So it's not part of the evidence that was to be considered correct,

01:53 - 01.601 because it wasn't moved into evidence.

01:54 - 04.170 Correct. That's the that's how you try a case.

01:54 - 07.173 The objection was made at the only time it could have been made.

01:54 - 09.843 Right. Wouldn't have made sense to make an objection. Right.

01:54 - 11.644 Because he couldn't object unless he jumped up.

01:54 - 14.881 Person jumped up in the middle of the cross to say stop.

01:54 - 15.982 And he did that.

01:54 - 17.617 It wouldn't make sense to say I object

01:54 - 19.118 because this hasn't been moved into evidence.

01:54 - 21.421 It wasn't time for that yet, so no time for that.

01:54 - 23.790 But when the time passed, he made the objection.

01:54 - 24.824 I want to say one other thing

01:54 - 28.561 about my alleged concession to this being part of the record.

01:54 - 30.597 we have a,

01:54 - 34.133 our office has a pretty good relationship with the fence bar.

01:54 - 38.371 The appellate unit does, and in particular with the public defender's office.

01:54 - 42.242 So when they're writing briefs for the appellant, we'll get emails

01:54 - 46.012 from them saying, hey, this was played at a trial.

01:54 - 49.015 Do you mind agreeing to this being paid?

01:54 - 50.817 made part of the certified record.

01:54 - 52.785 And we are not on that case.

01:54 - 54.821 They're writing the brief for the appellant.

01:54 - 58.958 We're working on other cases, but we trust to move this process along.

01:54 - 00.326 Oh, yeah. Sure.

01:55 - 03.496 If that was that was played at trial, put it in the record.

01:55 - 07.233 If they're now going to use that as a sword against us,

01:55 - 11.070 I can only speak for myself because I can talk to my supervisor.

01:55 - 13.473 I'm not going to agree to I'm not going to agree

01:55 - 17.210 to make that part of the record if they are going to use it against us.

01:55 - 18.578 okay.

01:55 - 21.014 I think we've we've kind of beaten this issue down.

01:55 - 23.850 Maybe you want to turn to the merits of the case.

01:55 - 24.384 Yeah.

01:55 - 29.155 well, the only question of the regarding the merits is whether there was a

01:55 - 33.459 just a fair probability based on all of the circumstances

01:55 - 36.729 that Miss Snowden was involved in something illegal,

01:55 - 40.066 that the syringes were drug paraphernalia.

01:55 - 43.469 And we have not just

01:55 - 46.639 the syringes, as others of you have pointed out.

01:55 - 49.876 We have her nodding off at the bus stop.

01:55 - 52.645 If you if we're going to use the video,

01:55 - 56.416 the video doesn't start until there was engagement between.

01:55 - 00.486 So it really doesn't tell us anything about whether or not she nodded off.

01:56 - 02.989 So we have to go with the officer's testimony.

01:56 - 05.692 We have the fact the syringes can be considered.

01:56 - 07.560 It's just alone. We can't just.

01:56 - 09.228 But they can be considered.

01:56 - 13.032 we have the fact that she never said, oh, no.

01:56 - 15.935 By the way, those are for diabetes injection.

01:56 - 17.804 If you have a chance. He arrested her immediate.

01:56 - 20.974 Well, I don't I don't I don't know that that's actually true.

01:56 - 24.110 She was looking in the purse. She saw them.

01:56 - 27.447 And then instead of saying that she moved them.

01:56 - 30.550 I think the key factor is the if she did

01:56 - 33.686 not do that, I think the Commonwealth has a problem.

01:56 - 37.323 But she's looking for her driver's license, though it's a big purse.

01:56 - 39.392 She's looking for her license.

01:56 - 43.796 And so she's moving things around and to find the license.

01:56 - 47.200 And as soon as he sees the syringe, he jumps and says, you're under arrest.

01:56 - 48.301 That's not what he said.

01:56 - 51.838 He he was asked, why didn't you just ask her what the syringe right for?

01:56 - 55.008 And he said, as soon as she saw them,

01:56 - 58.311 as soon as he saw she saw them, she moved them.

01:56 - 04.050 At that point, he took that to be, an admission of guilt.

01:57 - 06.753 So she was trying to hide something.

01:57 - 10.023 And if you credit his answer, which I his response,

01:57 - 13.026 which I think you must, I don't see how you cannot.

01:57 - 17.263 Then I think the totality of the circumstances at least provided

01:57 - 21.901 a fair probability that the syringes were not being used for medical purposes,

01:57 - 27.740 but to inject just a clarification, was it one syringe or multiple syringes?

01:57 - 31.811 Well, the officer testified that there were two syringes.

01:57 - 35.481 Mr. Schumann insisted there were only one.

01:57 - 36.516 You don't get out.

01:57 - 40.486 You can't tell for sure from the from the, video.

01:57 - 43.489 If we're considering the video, which I don't think you can't,

01:57 - 47.693 but you can't tell because she when she's rifling through it, you can't see it.

01:57 - 51.330 But at one point when she sets it down, you see at least one.

01:57 - 52.265 That's all I can say.

01:57 - 57.437 Was was there any evidence as to the location being a high crime area?

01:57 - 02.542 Just that the officer worked in that, in that, police department,

01:58 - 07.113 and I assume he, I mean, I, I assume it wasn't day one, you know,

01:58 - 09.048 but he does not say how long you've been there.

01:58 - 12.919 But he said in his experience, undefined in that,

01:58 - 17.056 that that particular block of that street was known

01:58 - 20.293 not just as a high crime area of high drug activity.

01:58 - 22.095 There was a lot of drug activity.

01:58 - 23.763 So that's another factor

01:58 - 26.466 that can be considered in the totality of the circumstances.

01:58 - 29.602 Yeah.

01:58 - 30.703 Thank you.

01:58 - 31.204 All right.

01:58 - 34.207 For rebuttal.

01:58 - 41.080 Yes, a few points.

01:58 - 45.518 first, regarding the high crime area, the officer never said,

01:58 - 48.721 in my experience, this is a high crime area.

01:58 - 52.758 He just said this area now in Oliver is new, and it's up as such.

01:58 - 55.094 we did, we did? Yeah.

01:58 - 56.896 We didn't understand that. Can you repeat that?

01:58 - 02.768 Sorry, your honor, the officer didn't testify in my training and experience.

01:59 - 05.138 Now, Oliver is a high crime area.

01:59 - 07.673 He just testified

01:59 - 11.344 that while Oliver is known as a high crime area,

01:59 - 15.948 he didn't say anything about what his training experience is.

01:59 - 17.416 You say high drug high.

01:59 - 19.418 He said a high drug area?

01:59 - 21.854 Yes. Okay, okay.

01:59 - 25.258 regarding the body cam

01:59 - 28.461 and whether that it's part of the record

01:59 - 32.832 again, our position is that it definitely is the Da.

01:59 - 35.268 He made that statement during closing

01:59 - 39.238 and that wasn't a timely contemporaneous objection.

01:59 - 42.942 Did you did the defense lawyer move

01:59 - 46.746 the admission of the body cam, the defense lawyer

01:59 - 50.783 said on the record that, you know, he's showing the

01:59 - 55.388 the body cam and what you know, but did he mark moving into the

01:59 - 58.591 he but he never took the step

01:59 - 02.895 to move into evidence which you learn in trial 101.

02:00 - 06.632 You have to move a document in or exhibit

02:00 - 09.602 into evidence.

02:00 - 13.706 Well, two points one, it's important that this is a pretrial hearing.

02:00 - 16.876 And I do cite to these cases that say the rules are often

02:00 - 20.413 relaxed in these courtrooms where the trial attorney no.

02:00 - 23.115 Is the judge, is there daily.

02:00 - 26.118 But our position is that the case law shows that

02:00 - 28.621 the Commonwealth had shouldn't have waited

02:00 - 31.791 until closing argument to make that statement.

02:00 - 37.129 He should have said it when the officer was on the stand at some point.

02:00 - 41.200 And not only that, but he did use the video to his advantage.

02:00 - 45.571 But if the rules are lax for one side, they can be lax for the other.

02:00 - 48.774 And so he didn't raise it right away, but he did object

02:00 - 52.245 on for the court to consider it.

02:00 - 56.048 On what basis would he object to the failure to admit,

02:00 - 59.685 or he realized that you weren't there,

02:00 - 03.155 that your colleague was not going to admit the document or the video?

02:01 - 05.191 On what basis?

02:01 - 07.627 During the testimony?

02:01 - 10.896 I mean, I would have objected the I guess that it wasn't a

02:01 - 13.633 the consideration of it at all. Right. Yeah.

02:01 - 15.001 Because it hadn't been admitted.

02:01 - 16.068 Right. Okay.

02:01 - 18.638 and we take out the video.

02:01 - 21.807 Do you think that the cop had enough, Your Honor?

02:01 - 22.308 Absolutely.

02:01 - 25.411 Even without the video adds elaboration and color.

02:01 - 28.414 But without the video, there wasn't enough.

02:01 - 32.718 there was the testimony of the police officer.

02:01 - 33.753 Correct? Yeah.

02:01 - 38.824 The officer's testimony showed that she wasn't stumbling or falling,

02:01 - 44.397 that she answered the questions, that she was responsive, that she was cooperative.

02:01 - 44.964 Okay.

02:01 - 48.501 and there was, again, no testimony that she had those telltale signs

02:01 - 51.504 of, like, slurred speech, slowed speech.

02:01 - 53.706 Okay. Your time's up. Thank you. Counsel.

02:01 - 54.907 Thank you.

02:01 - 57.376 In the next case, Commonwealth v Goshen,

02:01 - 00.980 the court will consider the important question as to the scope of the Due

02:02 - 04.950 Process Clause, which protects Pennsylvania citizens

02:02 - 09.855 from unfairness in the process before the Commonwealth courts.

02:02 - 14.493 In this case, the appellant, Matthew Goshen,

02:02 - 17.830 entered a plea of nolo contends, often

02:02 - 21.033 referred to simply as a nolo plea.

02:02 - 24.337 In a nolo plea, a defendant

02:02 - 27.173 submits themselves to the punishment of the court

02:02 - 30.176 without accepting guilt or admitting guilt.

02:02 - 31.644 In doing so, Mr.

02:02 - 34.647 Goshen accepted a five year period of probation

02:02 - 37.783 which required him to complete sex offender treatment.

02:02 - 41.554 As a dition of completing this program,

02:02 - 45.057 he was required to admit that he was guilty.

02:02 - 49.662 He refused to do so, and the trial court revoked his probationary sentence,

02:02 - 52.865 ordering him to complete that same treatment.

02:02 - 57.636 Appellant's probation was subsequently revoked again due to Mr.

02:02 - 00.773 Go, Sean's continued unwillingness to admit guilt.

02:03 - 04.543 He was then sentenced to a term of incarceration.

02:03 - 07.780 On appeal, he, Mr.

02:03 - 11.417 Goshen, raises a due process argument, arguing that

02:03 - 15.488 it is fundamentally unfair for the court to first accept the nolo plea,

02:03 - 18.557 which does not constitute an admission of guilt,

02:03 - 22.561 and then penalize him for failing to admit guilt at a later point.

02:03 - 27.833 He offers that this process constitutes a trap and violates due process.

02:03 - 31.971 Additionally, he argues that since the Commonwealth

02:03 - 35.908 agreed to the nolo plea, forcing him to admit guilt

02:03 - 40.613 violates the benefit of the bargain that he struck with the Commonwealth.

02:03 - 42.982 In agreeing to the plea bargain

02:03 - 45.885 in this case,

02:03 - 49.922 the appellant has requested that the court revisit a prior decision

02:03 - 52.958 in Commonwealth v Snavely in which

02:03 - 57.696 the the court authorized the trial court to incarcerate the defendant

02:03 - 01.700 in that case for failing to admit guilt and Snavely.

02:04 - 06.138 This court held in a 2 to 1 decision that it does not constitute

02:04 - 10.109 self discriminate incrimination in violation of the Fifth Amendment,

02:04 - 13.446 to require an admission of guilt for past conduct.

02:04 - 17.216 Following a plea under the United States Supreme Court's case,

02:04 - 20.453 North Carolina v Alford.

02:04 - 25.057 In this case, the appellant's brief argues that the Snavely decision rests on a

02:04 - 30.463 on dubious grounds, as it quote, conflated a nolo plea with an Alford plea,

02:04 - 35.134 a distinction which does have meaningful legal significance.

02:04 - 36.635 End quote.

02:04 - 39.538 Appellant also asserts that he's not raising a Fifth

02:04 - 42.741 Amendment claim, since his claim sounds and due process

02:04 - 47.980 as such, on appeal, this court is considering a single issue

02:04 - 53.552 should the court overrule Commonwealth v Snavely and hold that regardless

02:04 - 58.157 of the specific legal rationale, a trial court may not punish a defendant

02:04 - 02.094 for failing to admit guilt after entering a nolo plea

02:05 - 05.097 may please support me.

02:05 - 07.833 I'm Spencer Brownlee with the public defender's office in Dauphin County

02:05 - 10.503 representing the appellant, Matthew Gossman.

02:05 - 13.472 I would like to reserve two minutes of rebuttal.

02:05 - 19.245 This case boils down

02:05 - 22.248 to a fundamental promise and a weird

02:05 - 24.783 remainder of our legal system.

02:05 - 28.053 What does nolo contend plea actually mean?

02:05 - 32.324 What does it promise when a defendant enters that plea?

02:05 - 36.362 It has a specific historical meaning.

02:05 - 39.365 It is not a guilty plea by any other name.

02:05 - 41.267 A defendant is punished.

02:05 - 42.268 That's not the point.

02:05 - 45.037 That's contested by counsel.

02:05 - 45.838 What the.

02:05 - 47.840 My understanding of the. No. Okay.

02:05 - 50.876 And I've gone through this case a lot.

02:05 - 55.080 Was that if the court finds

02:05 - 58.083 the facts to be, as they allege them to be,

02:05 - 02.154 I would be guilty of that crime.

02:06 - 05.357 Now, there are lots of reasons why a defendant will plead

02:06 - 09.261 nolo as opposed to a guilty plea.

02:06 - 15.200 And I think this case really goes to what is the effect of pleading nolo,

02:06 - 20.172 particularly in a sexual, abuse case,

02:06 - 23.809 because what happened in this case, if I am correct,

02:06 - 27.212 is that despite the fact that the defendant pled nolo,

02:06 - 31.951 the terms of his probation were such that he was going to be forced to admit

02:06 - 32.851 to certain

02:06 - 36.622 crimes or certain behaviors

02:06 - 41.126 that would ultimately make his nolo plea a non-entity.

02:06 - 45.064 And that's really why we're here, and that's why we're here.

02:06 - 47.733 I was trying to build the historical preamble.

02:06 - 49.301 We got it.

02:06 - 50.703 I got to the meat of the matter.

02:06 - 52.738 That's what he stated.

02:06 - 56.875 He stated if these facts were presented to a fact finder, judge, jury,

02:06 - 00.112 whatever you want to call it, if a fact finder

02:07 - 03.182 believe that, then the Commonwealth would have sufficient evidence.

02:07 - 06.652 That is not the same thing as him coming in and entering a guilty

02:07 - 11.190 plea where he says, I did those things, or having a jury trial

02:07 - 16.128 where a member of the community, members of the community or a judge affirmatively

02:07 - 21.533 finds that you did, in fact, do that conduct beyond a reasonable doubt.

02:07 - 23.969 This is a due process problem.

02:07 - 26.305 This is a due process problem because

02:07 - 27.873 what he

02:07 - 31.944 entered his plea for was with certain understandings.

02:07 - 35.280 The Commonwealth doesn't have to agree to a nolo plea.

02:07 - 37.750 They have a right to a jury. What is the judge?

02:07 - 39.918 Nor does a judge. The rules make it pretty clear.

02:07 - 45.190 Everybody involved in this case came into it with the same understanding.

02:07 - 47.826 You are entering a no contest plea, right?

02:07 - 50.596 But it's still considered a conviction. Correct?

02:07 - 51.063 I'm sorry.

02:07 - 53.165 It's still considered a conviction.

02:07 - 56.068 It is still considered a conviction for purposes of.

02:07 - 00.839 And that's USV Tucker becoming subject to punishment.

02:08 - 03.242 That's what it's considered for.

02:08 - 06.245 But the fundamental problem here

02:08 - 10.516 is, yes, you can be subject to, punishment.

02:08 - 12.017 Yes, there are things that can be done.

02:08 - 16.388 But what happened here was in serving a punishment,

02:08 - 19.758 he had to go to sex offender counseling.

02:08 - 20.025 Right.

02:08 - 23.896 But he cannot stand in jeopardy again for this charge.

02:08 - 24.396 Correct.

02:08 - 27.833 So now the focus is different.

02:08 - 29.868 Now it's on treatment.

02:08 - 33.739 I would say, Your Honor, part of the issue in that particular

02:08 - 37.676 case is given that it was a no contest plea to specific facts

02:08 - 43.048 relating to a juvenile, victim, we can't say candidly whether or not

02:08 - 48.087 in being forced to disclose that information

02:08 - 52.591 about his sexual background, his history, any form of other offending,

02:08 - 56.261 he wouldn't be subject to subsequent criminal prosecution.

02:08 - 00.733 But what I will say, and this might be a more, tight point on that issue,

02:09 - 03.902 is part of what a nolo plea

02:09 - 08.373 allows for in the rules of evidence context is if he came in

02:09 - 12.678 and spilled his guts to a,

02:09 - 16.682 therapist, because that would be

02:09 - 20.452 him making an admission during the course of the therapy

02:09 - 24.556 that could be subsequently used against him as a party admission.

02:09 - 27.192 The whole point of a no contest.

02:09 - 28.460 But it isn't, is it?

02:09 - 32.264 You just said that no contest plea is treated

02:09 - 36.268 as a guilty plea for purposes of sentencing and implicit

02:09 - 40.472 in these sex cases is the counseling

02:09 - 44.710 and certain, I don't know if you want to say

02:09 - 48.247 admissions that part of that probation process.

02:09 - 53.152 So you know, what you're signing up for when you plead no contest.

02:09 - 56.221 The sentencing is implicit in that.

02:09 - 00.359 And that includes this sex offender treatment.

02:10 - 02.795 I would push back on that, Your Honor. I will.

02:10 - 05.197 Defendant has to necessarily

02:10 - 07.699 go in and believe these are all the things that can happen.

02:10 - 12.371 And in fact, when or when the sex offender treatment be implicit in pleading,

02:10 - 17.142 no contest and being sentenced on this type of sex offense,

02:10 - 20.512 the Sentencing Code contemplates when a court

02:10 - 23.916 every sentence is individualized, this court is well aware of that.

02:10 - 26.985 Not every sex offender would

02:10 - 31.490 necessarily require sex offender counseling,

02:10 - 36.161 and as a amendment to that point, when we think about sex offenders

02:10 - 40.566 or what we do with those particular offenders, Your Honor.

02:10 - 44.536 But this isn't just any kind of this is the indecent assault

02:10 - 46.004 and corruption of minors.

02:10 - 50.642 So wouldn't that and you shouldn't surprise anyone that this would be part of

02:10 - 51.810 the sentencing.

02:10 - 54.613 And I would flip that charge around. Your honor, in this particular context.

02:10 - 56.181 Sure. That could be something that's expected.

02:10 - 59.451 But to simply say that because you're pleading no contest

02:10 - 05.190 to these types of charges, you're implicitly signing up for, that is

02:11 - 07.459 contrary to the

02:11 - 11.096 fact that a indecent assault could happen hypothetically,

02:11 - 15.133 as a hypothetical, someone gets drunk and rowdy at a kegger.

02:11 - 20.873 They engage in inappropriate touching that is, you know, an indecent assault,

02:11 - 25.077 but that doesn't necessarily require, in a court imposing a sentence

02:11 - 31.183 to bring in, you know, a large amount of conditions for that offender.

02:11 - 34.519 And additionally but it could, it could, but

02:11 - 38.557 so it shouldn't be a surprise, promise.

02:11 - 39.791 And again,

02:11 - 44.496 that is something that our position is by imposing that particular condition

02:11 - 47.766 and requiring it is continued liberty

02:11 - 53.872 to be on probation, to be predicated on him playing ball at counseling

02:11 - 57.676 and having to then in counseling in order to successfully complete it.

02:11 - 00.779 Now admit to that conduct

02:12 - 04.116 is depriving them of what a no contest plea is.

02:12 - 08.120 And just to be clear, because Your Honor brought up the

02:12 - 13.558 so when he was, told he had to enroll in this counseling, you knew that, or

02:12 - 18.931 he would have known that he had to admit to the fact that he committed this crime.

02:12 - 22.100 Did you look at alternate types of counseling

02:12 - 25.404 where he did not have to look to admit to that type of crime?

02:12 - 28.740 Your honor, the record and candidly,

02:12 - 34.112 Your Honor's there there are some issues with the, record,

02:12 - 38.250 in as much as the sentencing, sheet for Mr.

02:12 - 42.087 Goshen reflects that he received, two years of time credit other

02:12 - 43.388 based off of the math,

02:12 - 46.892 other two years of time period or seven months of time credit

02:12 - 49.995 based off of the math that could have potentially made this case moot,

02:12 - 54.366 I've an argument as to why it wouldn't be, but to Your Honor's point,

02:12 - 58.704 there were continuous conversations during revocation hearings.

02:12 - 04.443 Well, and to essentially, quote, a probation officer is two options.

02:13 - 07.879 If he takes accountability, he can stay in the community.

02:13 - 10.882 But if he doesn't, we want him to go to state prison.

02:13 - 13.051 In that sense,

02:13 - 17.356 the options for working around and this was judge,

02:13 - 20.425 Klein's point in the,

02:13 - 23.962 Snavely case,

02:13 - 27.532 I would offer that that is a failure of imagination, that sex offenders

02:13 - 30.535 can only be treated in one particular way,

02:13 - 34.106 that seeking alternative counseling.

02:13 - 35.340 And to Mr.

02:13 - 37.376 Gosden's credit, he would fail out.

02:13 - 39.978 He would reenroll he was not trying to skirt

02:13 - 43.982 the counseling, conversing, part of this case.

02:13 - 46.952 He was still enrolling to

02:13 - 51.189 to try and avoid being, punished here.

02:13 - 54.226 But but even though he was re enrolling,

02:13 - 57.662 he never completed the program because of the issue.

02:13 - 58.096 We're here

02:13 - 02.134 for the programing says we need you to take accountability for this offense.

02:14 - 04.269 He says, I played no contest.

02:14 - 06.004 I'm not going to do that.

02:14 - 08.940 And that's the hiccup here, is that now

02:14 - 11.943 becomes a sword where he gets revoked.

02:14 - 15.213 Based off of a plea that he entered several years prior.

02:14 - 19.718 But Judge Berry's question is whether he was aware

02:14 - 21.653 this was going to be part of his sentence.

02:14 - 25.524 Was this oh, gosh, there's no notice, issue here.

02:14 - 28.460 And I was misunderstanding Your Honor's point.

02:14 - 32.964 My, my position is that he from who he chose to play to

02:14 - 37.202 to enter nolo plea, knowing that this was going to be part of his sentence

02:14 - 42.808 and then now wants to come and say, but you can't make me do that.

02:14 - 46.511 My position is that is that portion

02:14 - 49.714 of that condition

02:14 - 52.184 is and was he told that he was

02:14 - 55.287 was he told that he was going to have to undergo sex

02:14 - 00.492 sex therapy if he if he was found guilty of this? Yes.

02:15 - 03.028 If I understand your

02:15 - 06.698 your question is, was he advised that, hey, if you go to trial.

02:15 - 09.901 No. What would the terms of the plea

02:15 - 11.169 first plea.

02:15 - 13.605 And to

02:15 - 16.608 circle back to my honor, your honor, is

02:15 - 20.078 our position is it doesn't matter whether you were did not know.

02:15 - 22.380 It could be a legal condition for you all.

02:15 - 24.182 So what's the remedy then?

02:15 - 29.688 The remedy would be to vacate the, revocation and essentially

02:15 - 33.358 walk off the probationary sentence that he was already serving.

02:15 - 36.428 That would be the remedy in this matter.

02:15 - 39.464 or the Re sentenced him to something

02:15 - 42.467 that didn't involve sex therapy.

02:15 - 46.438 I don't believe procedurally

02:15 - 47.506 that would be possible.

02:15 - 50.942 I believe it would have to be a return to the status quo sentence

02:15 - 54.379 prior to the March 8th, 2020.

02:15 - 59.017 What disturbs me about this is if if he doesn't know about the

02:16 - 02.454 the consequences of this, notably

02:16 - 07.325 in terms of his sentencing, his his like on a will

02:16 - 10.695 he can never get out of probation until his time is up.

02:16 - 14.032 Well,

02:16 - 16.034 I think I mean that

02:16 - 19.604 that's the that's the problem with this type of sentencing.

02:16 - 23.542 But if that was one of the conditions that he pled

02:16 - 26.811 no contest to, I mean, this is the Commonwealth

02:16 - 30.215 makes a big deal about the fact it's not the same as an Alford plea.

02:16 - 33.218 I mean, there are lots of reasons why people plead guilty,

02:16 - 36.288 even if they are not, so that they can get

02:16 - 39.624 the benefit of a shorter sentence or probationary terms or whatever

02:16 - 43.361 the terms of the plea are, as opposed to going through a trial.

02:16 - 47.999 And I believe my position, Your Honor, and I'll primarily

02:16 - 51.970 rely on, the explanation in the brief for this point.

02:16 - 53.972 But an offer plea is not a nolo plea.

02:16 - 57.475 They are distinct legal conceptions and offered.

02:16 - 00.212 The Supreme Court of the United States made that distinction.

02:17 - 03.181 It did not say what he pled to was a no lo plea.

02:17 - 05.784 It elucidated what a Nola plea is.

02:17 - 09.087 It is a very fine distinction that I that's being drawn.

02:17 - 13.892 But he got the benefit of the court of the Commonwealth withdrawing certain

02:17 - 15.794 charges. Correct.

02:17 - 18.830 Count one was drawn by the Commonwealth,

02:17 - 21.833 and he would enter a no contest plea to an amended count,

02:17 - 26.371 which would be indecent assault, a misdemeanor of the second degree

02:17 - 30.242 and count three corruption minors, a misdemeanor of the first degree.

02:17 - 35.513 So my if I'm not, I believe that means that the count one

02:17 - 37.549 must have been a felony. Yes, it would have been it.

02:17 - 39.684 So he got the benefit of that.

02:17 - 42.687 I would push back on that because how can you push back on it?

02:17 - 44.055 He got it.

02:17 - 47.058 Well, it's partly he received a charge benefit.

02:17 - 51.730 That's part of the not having a felony of not having to face a hold on.

02:17 - 55.233 He he got the benefit of not having to face a trial

02:17 - 59.004 on a felony or, or perhaps pleading guilty to a felony.

02:17 - 00.338 He got that.

02:18 - 05.577 and you didn't really answer Judge Lane's question about what the terms

02:18 - 11.182 were, because, if he got the benefit of not having to face a felony. Yes.

02:18 - 14.319 And if he had notice

02:18 - 17.088 that this sex offender therapy

02:18 - 20.191 was part of that agreement sentence.

02:18 - 25.730 I just don't see where there's due process implication here.

02:18 - 28.933 So when he got a benefit,

02:18 - 32.203 if I may, respond to that while it is

02:18 - 36.808 acknowledged that the defendant would receive a sentence of the probation

02:18 - 41.112 with the standard conditions of sexual offenders, our position is

02:18 - 47.152 you cannot bargain for what our position is in illegality.

02:18 - 49.554 And in in addition

02:18 - 52.424 to even if you got notice, you're saying that's a I'm saying the notice.

02:18 - 55.260 Okay. Not all right at issue.

02:18 - 55.527 Okay.

02:18 - 59.931 one final point is that when we have an illegal sentence,

02:18 - 04.369 the remedy gets back to my first question is to go back in re sentence.

02:19 - 06.304 And that's why I asked you what what's the remedy?

02:19 - 10.742 You want us to just eliminate this one little piece of the terms of probation.

02:19 - 15.046 But I don't know that we can do that if it disrupts the entire sentencing scheme.

02:19 - 16.548 We need to send it back.

02:19 - 19.551 And I think I and candidly, I think

02:19 - 22.053 now that I fully understand your question, Your Honor,

02:19 - 26.658 I think it's it's procedurally gummed up because this is coming to us

02:19 - 32.230 on the basis of a revocation and a second time when, candidly,

02:19 - 36.067 this probably should have been brought forth on the first go around.

02:19 - 39.137 And that's why my belief isn't

02:19 - 42.474 that you can't just separate and send it all the way back.

02:19 - 47.112 It's we're stuck with where the sentence was when it came on appeal.

02:19 - 50.215 I'm not, but isn't part of your problem was

02:19 - 53.218 the fact that this guy was sentenced in 2018

02:19 - 56.988 and there was nothing done until he's been his probation was revoked.

02:19 - 58.723 He didn't try to withdraw his plea.

02:19 - 01.326 He didn't try to negotiate anything with the Commonwealth.

02:20 - 02.894 He didn't have any issues.

02:20 - 05.897 He didn't try to to finish the the treatment.

02:20 - 09.100 And now you're saying, oh, well, because he spent his five years probation,

02:20 - 12.103 he should just it should be vacated and he should have been fine.

02:20 - 13.204 Nothing else should happen to him.

02:20 - 14.806 I think

02:20 - 18.243 our position I know I'm, somewhat over time, but

02:20 - 22.013 I think the central point is,

02:20 - 25.483 yes, a lot of history had happened in that interim.

02:20 - 28.987 What I would say is the sole issue that Mr.

02:20 - 33.792 Osborne has had in coming back for revocations has been this particular

02:20 - 37.796 issue a failure to take the accountability and the sex offender counseling.

02:20 - 40.899 Had he just refused to go,

02:20 - 42.867 we wouldn't be here.

02:20 - 45.003 Counsel with everything else.

02:20 - 47.372 Yes, he's complied with everything else in the sentence.

02:20 - 49.574 Just this one little hiccup.

02:20 - 50.642 That is my understanding.

02:20 - 53.545 And that was the basis of the, revocations.

02:20 - 58.950 That's the basis of the revocation that, came here, through,

02:20 - 02.554 it was failure to successfully complete sex offender treatment.

02:21 - 06.825 He's unsuccessfully discharged as of, August 1022.

02:21 - 10.428 He was then detained August 16th, 22.

02:21 - 13.064 That is the sole basis of this particular revocation.

02:21 - 16.768 Had it been, candidly other conditions?

02:21 - 18.603 Too bad. So sad. I'm not here.

02:21 - 19.871 Okay.

02:21 - 20.738 You have your rebuttal.

02:21 - 23.741 Thank you.

02:21 - 29.881 Probably still.

02:21 - 30.949 Morning. Your honors.

02:21 - 34.452 Ryan Laslett here from the Dawson County District Attorney's Office

02:21 - 37.922 on behalf of Appellate, the Commonwealth of Pennsylvania.

02:21 - 41.659 as to your honors point, this being a 2018 sentence,

02:21 - 44.662 while legality of sentencing claims are not waiver,

02:21 - 48.299 they will become time barred if not raised in a timely PCA petition.

02:21 - 51.469 and also

02:21 - 55.306 we get into, the issue of notice, the Commonwealth does

02:21 - 58.510 accept the appellant's concession that he did receive notice of this.

02:21 - 04.516 And, the courts get into conditions of supervision versus conditions of sentence.

02:22 - 09.120 and so, you know, I think that that is a point to be made as well.

02:22 - 12.891 and I, I'm not sure I understood what you just said.

02:22 - 13.992 Sure did.

02:22 - 19.030 He is there evidence or things in the record to support a finding

02:22 - 24.269 that he knew at the time he pled nolo, that the sex offender therapy

02:22 - 27.939 he was going to undergo required him to admit guilt.

02:22 - 31.910 I think that I don't, from my review of the record, believe

02:22 - 32.810 that it fleshes that out.

02:22 - 35.413 I believe that may need to be a PCA thing at this time.

02:22 - 37.949 But again, I think that that may be also time barred.

02:22 - 43.187 at this point, but I so that's not part that that's my problem with this.

02:22 - 47.358 We have case law goes way back that says you are entitled to the benefit

02:22 - 48.526 of your bargain.

02:22 - 53.531 And his bargain was to say no contest, not to say I'm guilty.

02:22 - 57.335 Maybe it's because he didn't want his mother to hear him

02:22 - 02.907 say I'm guilty, I don't know, but he did not agree to admit guilt.

02:23 - 06.010 And now you're saying,

02:23 - 09.213 well, you have to admit guilt to me.

02:23 - 12.750 You have violated the benefit of his bargain.

02:23 - 16.988 Unless he knew at the time he entered into this

02:23 - 20.325 plea that he would have to at one point admit guilt.

02:23 - 22.327 And I don't see that in the record.

02:23 - 25.863 Yes, Your honor, in terms of contract law and benefit of the bargain, it does go

02:23 - 26.931 both ways.

02:23 - 30.168 I believe we included case law to that effect in the brief.

02:23 - 33.071 As soon as we extend an offer to a certain defendant,

02:23 - 37.041 the defendant challenges that or tries to get out of that or out from under it.

02:23 - 38.910 Somehow we have the absolute right to

02:23 - 42.380 to take that back to square one to reinstate the prosecution.

02:23 - 45.917 He also, did that in a nolo sense.

02:23 - 48.586 Got to say, it didn't have to say those words. I'm guilty.

02:23 - 48.853 As you know,

02:23 - 50.788 he also received the benefit of the bargain

02:23 - 53.791 and that he didn't have, felony conviction.

02:23 - 56.527 Yes. Your Honor, I'm sorry.

02:23 - 58.997 and so, you know, while you don't have to stand up

02:23 - 02.433 in that moment and say I'm guilty, that is a conviction.

02:24 - 05.503 And it's treated the same as a conviction, you know that I know that,

02:24 - 09.641 but the question is whether his refusing.

02:24 - 11.909 He did everything except refuse

02:24 - 15.313 to admit I'm guilty in therapy and therefore he's discharged.

02:24 - 18.883 Did he get the benefit of his bargain

02:24 - 22.420 of never agreeing to admit guilt?

02:24 - 26.324 I don't believe his due process rights survive his conviction and sentence.

02:24 - 29.694 you all these that we have satisfied all of our process.

02:24 - 33.398 We had, probable cause to arrest him to file a criminal code.

02:24 - 35.767 Yeah, yeah. And so he is done.

02:24 - 38.002 We have done everything we need to do to convict him.

02:24 - 40.405 He had the option to take a trial.

02:24 - 44.609 and have you also had the option not to afford him a no contest?

02:24 - 46.544 Yeah. That's right, that's.

02:24 - 50.148 I'm not sure why the Commonwealth ever agrees to a no contest

02:24 - 53.251 in this context, but you have to make that decision.

02:24 - 57.588 And and the Commonwealth also had the benefit in the victim had the benefit

02:24 - 59.223 of not having to appear at trial.

02:24 - 01.292 I mean, that's why there are pleas.

02:25 - 04.128 So, I'm just concerned that

02:25 - 09.033 in terms of due process to afford someone the no contest plea and then say,

02:25 - 12.470 but you can't get the benefit of that because at sentencing,

02:25 - 15.973 you're going to have to agree that you were guilty

02:25 - 19.777 and you did these things, or you're never going to get off probation.

02:25 - 24.315 And the term of your probation is constantly going to be revoked.

02:25 - 27.919 I would, go back to the case for distinction, conditions

02:25 - 31.756 of supervision versus conditions of the sentence, where at sentencing,

02:25 - 34.759 we say you'll abide by the conditions of supervision and probation.

02:25 - 35.793 Does this.

02:25 - 38.396 Oh, I lost my honor, but we could

02:25 - 43.534 we could require, in a case like this that the judge advised

02:25 - 47.238 or the Commonwealth advised that the terms of the sentence,

02:25 - 52.143 the terms of this probation, will require you to admit your guilt.

02:25 - 55.480 And then the defendant can say, no, I'm not going to take a no contest plea.

02:25 - 57.548 Let's figure something else out.

02:25 - 01.452 Or the Commonwealth could say, in terms of your

02:26 - 04.989 accepting this no contest plea, if the Commonwealth wants to offer it,

02:26 - 08.760 that that will not become a term of your probation.

02:26 - 11.462 Did the defendant even request it, though?

02:26 - 15.466 At the same time, at you know, you're negotiating Commonwealth

02:26 - 19.771 and the defense attorney and you're argue you're discussing a plea

02:26 - 23.708 and you discuss what the terms are going to be.

02:26 - 25.143 I'm not pleading to the felony.

02:26 - 29.514 However, I will plead nolo to the misdemeanor

02:26 - 32.483 at that time.

02:26 - 35.553 Could the defendant have requested

02:26 - 41.793 any other type of therapy for sex offender treatment

02:26 - 46.230 and the Snavely descent, which was the second part of this case,

02:26 - 50.334 issue gets into that, too, that there was this,

02:26 - 55.173 I think the justice, opined that there was no available, treatment program

02:26 - 58.009 for someone to not accept guilt, but there was a footnote in there

02:26 - 01.579 where the attorney did say there was a place that could have accepted them.

02:27 - 05.950 And, this is not part of the record, but I know Dauphin County would have sleeper

02:27 - 11.823 that people could go to, and it's a more of a minimal form of, therapy, too.

02:27 - 14.492 So, sure, less intensive options exist.

02:27 - 18.496 I would, I would surely say, but I don't believe that

02:27 - 20.498 that is part of the record, in this.

02:27 - 23.467 Nor do I believe it was actually part of the record in Snavely.

02:27 - 24.902 either Your honors,

02:27 - 27.004 is this a

02:27 - 30.575 timely objection to this, to this requirement?

02:27 - 34.579 because now we're at the second revocation hearing,

02:27 - 37.882 and now we're saying, oh, by the way, my part of the sentence is illegal

02:27 - 40.985 because, it's requiring me

02:27 - 43.988 to say something to go against my plea.

02:27 - 47.959 I think, as Your Honor indicated, it would have to be a timely PCR, a claim.

02:27 - 48.860 vis-a-vis.

02:27 - 52.730 The first original sentence or even being generous, maybe.

02:27 - 53.965 And I wouldn't concede this.

02:27 - 55.766 The revocation sentence.

02:27 - 58.436 yes, I would. I would argue that.

02:27 - 59.670 Yes. Well, you're that it's not time.

02:27 - 01.439 It's not a timely objection.

02:28 - 05.042 And we just have to he just either has to write out the terms of this or,

02:28 - 09.547 or and finish it or that, or there's no other choice at this point.

02:28 - 12.583 And it's not this situation where we're going to recreate

02:28 - 15.953 putting this guy on probation every time there is a finite term.

02:28 - 21.125 Now, he is going to max out, a sentence such as this where the defendant had to,

02:28 - 24.262 I think, obtain a successful recommendation

02:28 - 28.666 from a therapist in state prison that he was no longer a danger, was upheld.

02:28 - 30.868 And I think that was Joseph Miller.

02:28 - 31.135 Okay.

02:28 - 34.238 or else Kevin Miller and I apologize to not have that citation.

02:28 - 36.240 How much longer will he have?

02:28 - 36.841 Do you know?

02:28 - 39.210 I'm not sure. Your honor. I apologize for that.

02:28 - 42.613 Okay.

02:28 - 45.616 Thank you, thank you. Your orders.

02:28 - 49.387 This couple of responses to that, a couple of points,

02:28 - 54.091 Judge Khan endorsement, indicated, he did attempt.

02:28 - 58.129 Mr. Gossman was in the process whenever he was picked up, reentry into the G.A.

02:28 - 01.265 reentry group, that is, in the transcripts.

02:29 - 04.302 So even after being discharged, he was attempting

02:29 - 10.174 to, re roll and continue working this off in regards

02:29 - 12.310 to whether, you know, walking it off,

02:29 - 16.013 as I indicated previously, there's a clerical error within the record

02:29 - 20.851 that doc may have construed as it being concluded.

02:29 - 25.690 it is not he only had seven months of time credit, on this charge.

02:29 - 29.360 He was given a one and a half to three, so that would not be a problem.

02:29 - 33.798 It is still an active, controversy in regards to what was bargained for.

02:29 - 39.737 It's been pointed out, and I reiterated it.

02:29 - 45.242 The Commonwealth had the ability to not offer a no contest plea.

02:29 - 49.814 That's part of the plea negotiations here as it relates to the condition, though

02:29 - 55.186 I would analogize this to the, cases where in the Philadelphia

02:29 - 58.222 Court of Common Pleas, individuals were sentenced to,

02:29 - 02.593 you know, the disposition of gun cases.

02:30 - 03.894 And there were quite

02:30 - 07.331 a lot of conditions attached to that, including warrantless searches.

02:30 - 10.201 You cannot impose a condition even bargained for.

02:30 - 14.672 Even one understood that has that central illegality there.

02:30 - 17.942 If there is an illegality in that condition

02:30 - 20.911 being revoked, having that condition at all,

02:30 - 24.782 you wouldn't have standing to deal with the condition until there was a.

02:30 - 28.386 Wouldn't it have been appropriate to raise it in a timely PSA?

02:30 - 32.623 And if it's untimely, even if it's illegal, we have no control

02:30 - 33.657 handed to the court.

02:30 - 36.861 I this is not how I practice.

02:30 - 39.630 I would have handled this case. I am.

02:30 - 43.300 So maybe your point is well taken, but this procedurally

02:30 - 46.670 may not be the vehicle upon which that decision can be made.

02:30 - 49.740 I don't necessarily think so, just in the sense

02:30 - 53.077 that if the revocation was the result of the legality,

02:30 - 56.814 how can he have a new revoked sentence that would have to watch?

02:30 - 58.783 Requiring a sex offender to undergo

02:30 - 02.219 a sex offender treatment is not in itself illegal.

02:31 - 05.523 It's contextually is what you're sort of correct.

02:31 - 10.361 This is a and if I may end with this, this is an extremely narrow

02:31 - 14.565 question as it relates to the supervision of sexual offenders.

02:31 - 16.467 If they pled no contest,

02:31 - 20.604 they simply cannot be revoked on the sole basis that they did not take.

02:31 - 22.673 Accountability is our position.

02:31 - 25.776 There are plenty of other reasons where they are not

02:31 - 29.847 being consistent with treatment, falling into bad habits,

02:31 - 33.751 that the courts have the full ability to impose conditions for.

02:31 - 35.553 And I appreciate the court's,

02:31 - 36.854 All right.

02:31 - 38.222 Great. Thank you so much.

02:31 - 41.225 So much for.

02:31 - 47.565 You, any.