00:00 - Good morning everyone.

00:03 - Welcome to this second day of our fall

00:07 - oral argument session here in Pittsburgh.

00:10 - As you may know, the Pennsylvania Supreme Court

00:13 - is the oldest appellate court in North America.

00:16 - Our roots date back to William Penn's Provisional.

00:19 - Provincial Court of 1684, and our Supreme Court

00:24 - was formally established pursuant to the Pennsylvania.

00:28 - Judiciary Act of 1722.

00:32 - In 2022, we celebrated the court's historic 300th

00:37 - anniversary in Philadelphia.

00:39 - We are very proud of our rich history.

00:42 - We sit today in Pittsburgh City-County building,

00:46 - a 1917 granite Art Deco building

00:50 - which was designed by renowned local architect Harry Horn Basile.

00:56 - Architect Edward B Lee was responsible

01:00 - for the design of this magnificent courtroom.

01:03 - The wooden oblongs and fluted columns

01:06 - and the bench and bar are all mahogany.

01:11 - It is truly an honor for us to work in three

01:15 - beautiful courtrooms in Philadelphia, Harrisburg and Pittsburgh.

01:21 - As you may have noticed entering the courtroom, our court has a tradition

01:25 - of hanging oil portraits of former chief justices in our courtroom space.

01:31 - Today, I'd like to touch on some of the more

01:33 - recent portraits here in our Pittsburgh courtroom.

01:37 - And I'd like to thank our court crier, Bryan Minner, for taking an interest

01:42 - in our court's history and in compiling these biographies.

01:46 - If you have any interest in learning more about the history of the Supreme Court,

01:52 - just as Sally Mundy heads our historical commission,

01:56 - and we have a wealth of information on our website

02:00 - and in our Pennsylvania Judicial Center in Harrisburg.

02:05 - If we begin with the fifth portrait from my last,

02:10 - that is Chief Justice Samuel Roberts.

02:14 - After graduating from the University of Pittsburgh,

02:17 - pardon me, the University of Pennsylvania Law School,

02:20 - Roberts entered a lengthy private practice in his home town of Erie.

02:25 - He served in World War Two in the United States

02:29 - Navy, and was later elected to the Erie County bench.

02:32 - He was elected to this court in 1962

02:36 - and became Pennsylvania's Chief Justice in 1983.

02:42 - He served as Chief Justice until 1984, after which he had not had enough.

02:48 - He still served as a senior judge on the Superior Court

02:52 - and as a special master for the U.S.

02:54 - Supreme Court.

02:56 - To Justice, Roberts, left, is Chief Justice John Flaherty,

03:01 - who many of us knew after graduating from law school.

03:05 - Justice Flaherty opened a solo practice in Mount Lebanon,

03:09 - while at the same time teaching at Carnegie Mellon University.

03:14 - He was elected to the Allegheny County Court of Common Pleas

03:17 - and gained notoriety for his controversial decisions, including.

03:26 - Including closing

03:28 - an all black middle school in Pittsburgh for illegal segregation.

03:33 - He was elected to this court in 1979,

03:37 - and he served as Chief Justice from 1996

03:42 - until his retirement in 2001.

03:45 - Next to justice, Flaherty is someone

03:47 - we all knew Chief Justice Stephen Cipolla.

03:51 - An outstanding athlete, Zappala played basketball for Notre Dame

03:56 - before moving back to Pittsburgh to play for Duquesne University.

04:01 - After serving in the Army as a first lieutenant,

04:04 - Zappala graduated from Georgetown Law School

04:08 - and returned to Pittsburgh to practice with his father and brother.

04:12 - He was elected to the Allegheny County Common Pleas bench in 1979,

04:17 - and two years later to this court.

04:20 - He served as Chief Justice from January 1st,

04:24 - 2002 to December 31st, 2002.

04:29 - While on the court, Justice Cipolla initiated developed and fully

04:34 - integrated the largest court automation system of its type in the country.

04:39 - Next to Chief Justice Cipolla is Chief.

04:43 - Justice Ralph Kappy, who we all knew very well.

04:48 - Justice Cappie graduated from the University

04:50 - of Pittsburgh School of Law and entered private practice before

04:54 - beginning his public service at Allegheny County's public Defender's office.

05:00 - He became the director of that office

05:03 - before his appointment to the Common Pleas bench by Governor Sharp.

05:07 - He won a seat on our Supreme Court in 1989, and became Pennsylvania's.

05:12 - Chief Justice in 2003, serving

05:15 - until his retirement in 2008.

05:19 - Chief Justice Cappy died unexpectedly in 2009, shortly

05:25 - before the opening of Pennsylvania's Judicial Center in Harrisburg,

05:30 - because of his efforts in securing funding for that building.

05:33 - His portrait hangs in the Judicial Council room

05:37 - on the first floor of our Pennsylvania Judicial Center.

05:41 - Finally, our late colleague and my predecessor,

05:45 - Chief Justice Max Baer,

05:48 - Justice Baer, began his public service with the Attorney General's office

05:53 - before moving to private practice and later

05:56 - to the Allegheny County Common Pleas Bench.

05:59 - During that time, he fought tirelessly

06:02 - to reform the juvenile justice system.

06:05 - After receiving national recognition for his efforts,

06:09 - he was elected to the Supreme Court in 2003

06:13 - and spearheaded several initiatives to help speed up the appeals

06:17 - process for the domestic cases involving children.

06:21 - He became Chief Justice in 2021

06:25 - and served until his unexpected death in October 2022.

06:32 - Visiting with us today are some students

06:35 - from Duquesne University, Thomas Klein School of Law.

06:40 - We have students from the Pennsylvania constitutional law class,

06:45 - and they are here with Assistant Professor Lauren Gailey

06:49 - and we also have a first year law student here with us who's

06:53 - getting a head start on his judicial education.

06:57 - Could the students please rise so we can welcome you?

07:02 - Excellent.

07:03 - We're glad to have you. Welcome.

07:05 - And you may sit down.

07:07 - This is a message to all the attorneys arguing today.

07:11 - Please try not to dissuade these students

07:15 - from their pursuit of careers in law.

07:18 - I know they're looking forward to hearing from you.

07:22 - Before we hear the first case, I'd like to remind Council of a few things.

07:26 - Appellant's counsel, please approach the podium when your case is called.

07:30 - I will then give a short summary of the case.

07:33 - You may then begin by stating your name and the party

07:36 - you represent, and introducing your co-counsel to the court.

07:41 - The justices are familiar with your cases, so I ask that

07:45 - you avoid any unnecessary recitation of facts or procedural history

07:50 - and instead focus on the main issues on which we granted review.

07:54 - Counsel is welcome to rely on their briefs for particular issues.

07:59 - Please remember, we do not allow rebuttal in cases

08:03 - in which there are multiple parties represented by separate counsel.

08:07 - You should avoid repeating the same arguments as prior counsel.

08:12 - Please do not interrupt the justices when we are asking you a question.

08:17 - A justice's question is not meant to trip you up.

08:20 - Rather, it indicates there are particular issues we wish to explore further.

08:25 - While there is no set time limit for argument, I will advise counsel

08:29 - when the court is satisfied that all of its questions have been answered.

08:33 - And at that time, I will ask that you conclude your argument.

08:38 - Welcome to the historic Pennsylvania.

08:40 - Supreme Court courtroom in Pittsburgh's City-County building,

08:44 - where the court will be entertaining oral arguments

08:47 - for its October 2025 oral argument session.

08:51 - My name is Todd Pappas surgery.

08:53 - I'm the general counsel of the Pennsylvania Independent Oil

08:56 - and Gas Association and a former clerk for the late Chief Justice Max Beyer.

09:02 - The first case the court will hear today is a joint appeal

09:06 - in Commonwealth versus stroke and Commonwealth versus Sutton.

09:11 - In these two cases, although they involve different

09:14 - defendants, the same core legal question is presented

09:19 - can the Commonwealth establish a prima facie case at a preliminary hearing,

09:24 - using only hearsay evidence to identify a defendant

09:28 - when that evidence comes from a confidential informant?

09:33 - Both cases began as undercover drug investigations in Bradford County,

09:38 - and trope police used a confidential informant,

09:41 - often called a CI, to conduct a controlled purpose purchase of drugs

09:46 - from a residence under surveillance in Sutton.

09:50 - Investigators arranged two control bys at the defendant's

09:54 - home in rural Rome, Pennsylvania.

09:57 - In both operations, the CI was searched before and after the transaction

10:02 - given, marked by money, and returned with drugs.

10:06 - In all of the circumstances,

10:08 - at the preliminary hearing for both defendants, the only witness

10:11 - called by the Commonwealth was a detective involved in the investigation.

10:16 - The detective described the procedures for the controlled buys, and relayed

10:20 - what the confidential information had reported to him that the information

10:25 - purchased, that the informant purchased drugs directly from the defendant.

10:31 - Neither informant testified in person.

10:35 - The magistrates in both cases found sufficient evidence

10:38 - to hold the charges for trial.

10:40 - However, the trial court later quashed the charges,

10:43 - finding that the Commonwealth had failed to establish identify identity

10:48 - without relying exclusively on hearsay.

10:51 - The Superior Court reversed in both cases, concluding that

10:55 - additional non hearsay evidence such as police surveillance,

10:59 - vehicle identification and address verification

11:03 - linked the defendants to the drug transactions.

11:07 - Now, the Pennsylvania Supreme Court has granted review in both cases

11:11 - to determine whether the Superior Court rulings are consistent

11:15 - with this court's 2024 decision in Commonwealth versus Harris,

11:20 - which held that hearsay alone cannot establish identity.

11:24 - At a preliminary hearing.

11:26 - The issue before the court is whether the use of a CI

11:29 - reported through police officers creates a permissible exception to Harris.

11:34 - In other words, if an officer testifies about what an informant told them,

11:39 - can that be enough to establish who committed the crime?

11:42 - Even if the informant does not testify?

11:46 - Both of the defendants argue

11:48 - that the Superior Court created an improper exception to Harris.

11:52 - They contend that under Pennsylvania law, identity cannot be proven

11:55 - solely through hearsay, regardless of whether the source is a CI.

12:00 - Mr. Sutton's counsel emphasizes that his entire identification rested

12:05 - on the detective's repetition of what the informant said.

12:09 - The informant statements, he argues, are inadmissible hearsay

12:13 - and were the only evidence of who sold the drugs in Mr.

12:17 - Sutton's case.

12:18 - Mr. tropes counsel makes the same point, and therefore the magistrate's decision

12:23 - to hold his case for trial also violated Harris.

12:27 - Both the appellants warn that allowing hearsay

12:30 - to substitute for live testimony at this early stage

12:33 - would dilute the screening function of preliminary hearings,

12:38 - where defendants are protected from being sent to trial

12:41 - without real evidence connecting them to a crime.

12:45 - The defendants also argue two procedural reasons the fine in their favor

12:49 - one, that the Superior Court did not have proper jurisdiction

12:53 - to hear the appeal, and two, that the Commonwealth did not follow.

12:57 - Appellate Rule of Procedure, 1925, requiring an appealing party

13:02 - to state its reasons for appeal so that the trial court can write

13:05 - an initial opinion.

13:08 - The Commonwealth, in both cases

13:10 - responds that Harris does not prohibit the use of all hearsay.

13:14 - It simply forbids reliance on hearsay alone.

13:17 - Prosecutors here argue that the detective's

13:20 - testimony included independent non hearsay facts,

13:24 - such as in stroke, where police recognized the defendant's vehicle,

13:28 - and in Sutton were officers targeted on the defendant's actual home.

13:33 - The Commonwealth argues that these additional facts satisfy Harris,

13:37 - which only prohibits hearsay alone and not hearsay,

13:41 - supplemented by reasonable inferences with other evidence.

13:45 - They also contend that requiring informants to testify

13:49 - at preliminary hearings would jeopardize their safety and compromise.

13:53 - Ongoing investigations.

13:56 - Interestingly, the Commonwealth does not challenge

13:59 - or respond to the procedural missteps alleged by the defendants in its brief.

14:04 - In this case, the Supreme Court's decision will clarify

14:07 - how Harris rule applies in narcotics investigations involving spies

14:12 - and whether supplemental evidence is relevant in those matters.

14:16 - With that background, let's hear the oral arguments

14:19 - in Commonwealth versus trope and Commonwealth versus Sutton.

14:24 - Good morning, Mr.

14:24 - Chief Justice and associate Justices.

14:27 - May it please the court. My name is Jordan Leonard.

14:29 - I'm, as the crier said, I represent, both. Mr.

14:33 - Corey stroke and Mr. Scott Sutton.

14:36 - And there were also a number of other cases,

14:38 - I believe that there were two that, Ella Carter was asked for, which was,

14:42 - I believe, was denied, but it remained, at this level.

14:48 - These cases all stem from

14:51 - an operation that was done by the Bradford County District Attorney's Office.

14:55 - That was called Operation Jet Sweep.

14:57 - And with with that sweep, there were,

15:00 - a number of arrests that were made.

15:03 - And at the conclusion,

15:05 - sorry, a number of drug buys that were made

15:08 - and at the conclusion, or right about at the conclusion,

15:13 - that's when, the individual targets were arrested,

15:17 - and subsequently preliminary hearings and,

15:21 - subsequent to the preliminary hearings, where where the

15:24 - I believe all the cases were bound over at the time of the preliminary

15:27 - hearing, ha be as corpus, proceedings were,

15:32 - asked for and, the

15:34 - writ was ultimately granted by, I believe, all of them.

15:38 - It was President Judge Byrne, who found that under the Superior Court's

15:43 - decision in Harris, the Commonwealth did not establish that prima facie case,

15:48 - specifically the identity of the actor, by direct evidence,

15:53 - as is the Superior court's,

15:56 - version of Harris.

15:59 - Before it got up to your your honors,

16:05 - The Commonwealth took an appeal on that.

16:09 - And, the first case

16:11 - that came came about with that, I believe

16:15 - the first case it was decided by the Superior Court was Scott Sutton.

16:19 - However, I believe yes, ma'am.

16:20 - Were all the charges dismissed,

16:25 - with Scott second for his stroke?

16:27 - Yes, yes, yes, Your Honor.

16:29 - Okay. And he's.

16:31 - Why was this appeal for that?

16:34 - So, So, Your Honor, I, I believe that the appeal was allowed.

16:39 - I think that they,

16:42 - I got involved in these cases a little bit after I was in ha be as counsel.

16:46 - I believe that they took, an interlocutory appeal as of right.

16:51 - When it came to, it was an interlocutory appeal by permission.

16:59 - That's correct, Your Honor.

17:00 - It was an interlocutory appeal by permission.

17:04 - And I don't think that they went about it

17:07 - as of right.

17:11 - I think that that creates

17:13 - a problem because obviously they would have been able to take.

17:17 - That issue in the Superior Court.

17:21 - I did not, Your Honor.

17:23 - Does it make a difference?

17:25 - Is there a jurisdiction waiver?

17:27 - Will or lack of jurisdiction?

17:31 - I think it is, Your Honor.

17:32 - You in your briefs, you say it's not you.

17:36 - You point out the subject matter jurisdiction is non waiver,

17:40 - which would be correct.

17:41 - And yeah.

17:43 - I'm sorry, Your Honor.

17:44 - I got a little bit tripped up.

17:47 - Yes, Your Honor, your honor, I mean, because that that is your preliminary.

17:51 - I shouldn't say preliminary.

17:53 - That's your first claim on this appeal, is it?

17:56 - If it is, Your Honor, and it's potentially dispositive.

17:59 - Right?

18:01 - I believe so, Your Honor.

18:02 - Yes, ma'am.

18:03 - Because they could have rearrested.

18:05 - Correct.

18:07 - They could still re arrest if, this this court reverses.

18:10 - He could he can still be arrested.

18:13 - All of them could still be arrested.

18:15 - That's why it was in the interlocutory appeal.

18:17 - That's why you're an interlocutory appeal is not would not lie

18:22 - because they had the option of re arresting him as of right.

18:28 - Yes, yes, yes, Your honor.

18:29 - They still do have the opportunity to arrest them, regardless

18:33 - if you if now it has to do with the case that was pending in the Superior Court

18:38 - and now here.

18:39 - Yes, Your honor,

18:43 - If a prima facie case isn't met, generally speaking.

18:47 - And I don't believe that there's any type of rule in,

18:50 - a local rule

18:51 - in Bradford County that, once a,

18:54 - prima facie case isn't made, that, a re-arrest cannot be made.

18:58 - So that's that's correct.

19:01 - Yes. Yes, sir.

19:03 - Position of how we should, interpret the confidential informant.

19:07 - What?

19:07 - You're.

19:08 - It how the question before of is

19:12 - will there be a certain to have for complex and for both the.

19:19 - Your honor, I don't believe that there should be

19:21 - an exception for confidential informants.

19:26 - Number one, on on its basis.

19:29 - And, I, I thought about this on my trip up yesterday, and I apologize.

19:33 - It's not that, it's not, a very well established in, in my brief,

19:39 - but as I was driving here, I was kind of

19:42 - going over and,

19:45 - it hit me, when I was thinking about the purpose of a preliminary hearing.

19:49 - And as, I deal with clients and, and a lot of times

19:54 - they deal with indigent clients, and I meet them right before

19:57 - preliminary hearing or whatever that might be.

20:00 - They ask me,

20:01 - what's the purpose of a preliminary hearing?

20:04 - And I do a lot of appeal.

20:06 - So I go through a prima facie a case and I get a white walk.

20:09 - And, usually boils down to

20:13 - it's a probable cause.

20:14 - Hearing.

20:16 - So let's just see. Hi.

20:18 - Yes, your honor,

20:20 - in the trial, we're

20:22 - very indicated, or at least, told the court that the confidential informant

20:27 - would be identified and testified at the trial.

20:31 - So, they help us after you see we're here?

20:35 - Yes, Your honor, that's one for.

20:37 - And should we create an exception to the use of a confidential informant

20:41 - for purposes of identification?

20:44 - And the question becomes.

20:46 - Yes, there was relevant, competent evidence at this

20:49 - point out here, but we're looking at the.

20:53 - Your, prior trial counsel

20:56 - requested the appearance, but the court or the Commonwealth certifies

21:00 - to the court to inform the court that the person would appear at trial.

21:05 - If you come, you're here today.

21:06 - Tell us

21:08 - why we should allow that.

21:10 - Yes, Your Honor, so.

21:13 - So I'm sorry, I apologize, but when.

21:16 - When when I began to think about probable

21:19 - cause,

21:23 - Began to think about what is the probable cause?

21:26 - It's usually required, to make an arrest warrant,

21:31 - or to to arrest without a warrant.

21:33 - And, I began to think, and I, I got in a little bit late last night.

21:38 - Took a little bit longer.

21:39 - And I went back into a treatise, and I,

21:44 - I came upon and rea o a which I this court decided back

21:48 - in, I believe, 1998, and it went into detail about,

21:53 - when, when a confidential informant

21:56 - is used in order to effectuate an arrest,

22:01 - the, the amount of detail that needs to be provided to,

22:05 - a judge to get that warrant or

22:08 - if it's, a warrant less arrest.

22:11 - Exactly.

22:12 - Or the, the burden that that officer and the Commonwealth needs to establish.

22:18 - And I think that when it comes to the decision

22:22 - in Sutton on its base,

22:25 - that it really doesn't

22:28 - have any perimeter, it doesn't even have any perimeters.

22:31 - It basically says

22:33 - at least my reading of it is that if the confidential informants used.

22:39 - The Commonwealth can make a prima facie case

22:42 - via hearsay,

22:44 - from whatever that confidential informant said.

22:47 - And I think that that's.

22:49 - I'm sorry, Your Honor. Let me help you out.

22:51 - The articulate the standard for probable cause is it's been established for years.

22:55 - At a preliminary hearing was a crime committed?

22:57 - More likely than not.

22:58 - Is the defendant the person that committed the crime in this particular case?

23:02 - Sutton. Mr..

23:02 - Hope, you've got a sigh that goes in, comes out.

23:05 - There's no tie to Sutton or scope to this particular issue other than what

23:08 - the CI allegedly tells the officer the arresting officer is.

23:12 - Is that the fair statement?

23:14 - I think mostly, Your Honor.

23:16 - In, in the Commonwealth's defense on these particular

23:20 - let the Commonwealth defend themselves.

23:22 - Yes. You're asking you that question because the question

23:24 - that Justice Daugherty wants to answer, and I think the question

23:26 - everybody else here wants answered is under rule 542, limited

23:30 - hearsay is allowable to certain to prove certain elements of the crime.

23:33 - It's not suggested, and it's not allowed to prove.

23:36 - Identity identities get approved independently

23:38 - through some type of evidence at a preliminary hearing.

23:41 - Would you agree with that statement?

23:42 - Yes, Your Honor, and in these these two cases, yes,

23:47 - I'm more concerned

23:48 - with the totality of the circumstances rather than limited to a prima facie

23:51 - hearing at a preliminary hearing, because if we carve out an exception,

23:55 - as Justice Daugherty just asked you in a question for a confidential informant,

24:00 - when do we get to the issue of how can a defense prepare for trial?

24:03 - In other words, we're going to say confidential informants.

24:06 - They don't have to be produced at a preliminary hearing.

24:08 - We're going to carve out an exception for him.

24:09 - When do we have to produce the identity, if at all?

24:12 - And how can the defense then prepare if all they have is what

24:16 - the CI told the arresting officer with no other evidence?

24:20 - You understand where I'm going with this case?

24:22 - I do, Your Honor, in.

24:23 - So why don't you give me that answer if you have it?

24:26 - So, going back, our position is,

24:30 - and I think that the general facts

24:34 - are the same thing in these two cases.

24:37 - And, and I say these two cases because the associated cases,

24:41 - there's one in particular that I, I'd like to go back to.

24:44 - I think it paints a better picture of that, but confidential informant

24:48 - goes into a residence or a dwelling or a, a building comes out and he says, hey,

24:54 - X, Y and Z happened.

24:56 - You you take it from here, detective,

24:59 - the reason that I point out these two cases versus another case, these ones,

25:04 - they were able to see, the defendant's car or it might have been the house.

25:09 - One of the other ones that came up.

25:10 - It was actually they went into a hotel for that.

25:14 - That listen, that what you're describing now is an independent

25:17 - basis for a prima facie evidence for holding somebody for court,

25:20 - which is is there circumstantial evidence?

25:22 - You go to Mr. Stokes house, Mr.

25:25 - Stokes, the target of the investigation.

25:27 - We've seen hundreds of cases

25:28 - where the narcotics officer officers sitting out front undercover,

25:31 - he looks up and he sees the key knock on the door, stroke

25:34 - or Sutton answers the door, waives him to come in.

25:37 - That's independent kind of circumstantial evidence that Mr.

25:40 - Stroup or Mr. Sutton is involved.

25:42 - My understanding of the facts of these particular cases,

25:44 - there's no testimony at all on the record at the preliminary hearing

25:48 - that Strop or Sutton answer the door, let the guy in.

25:51 - There's nothing there to suggest other than the fact that the CI told

25:54 - the arresting officer that it was Stroop or Sutton.

25:58 - That's correct, Your Honor.

25:59 - So my question remains,

26:01 - should we carve out an exception for confidential informants

26:04 - where the Commonwealth is going to make a representation

26:06 - that at the time of trial, we're going to produce the CI?

26:09 - Because obviously, if I'm the prosecutor in the case, I'm

26:12 - not going to take that case to trial unless I've got a witness that can say

26:16 - the CI was handed methamphetamine, crack, some type of narcotics by Mr.

26:21 - Stroh or Mr. Sutton.

26:22 - You're not going to try that case on a circumstantial basis.

26:24 - Argue that it's his house.

26:27 - Well, I wanted you wouldn't.

26:29 - Right. No. You'll be pretty easy case to defend.

26:32 - Yes, Your Honor, so my question remains.

26:33 - Are we going to carve out an exception for a CI

26:35 - where the Commonwealth makes a representation that the CI will be

26:39 - made available at trial? So.

26:43 - So obviously my point to that is no, Your Honor.

26:46 - And, one of the, one of the reasons, that that I think of when it comes to,

26:52 - carving out some type of an exception like this is every time I've,

26:57 - handled any type of cross-examinations at with with the confidential informant,

27:02 - it usually comes out through a detective or some police officer

27:06 - who was the one who's, handling them, if you will.

27:10 - The confidential informants are,

27:13 - by and large, unreliable sources.

27:17 - So usually what those sources

27:20 - or the, the handlers will do is

27:23 - what I believe that should have been done in the first place.

27:26 - They should verify with some type of independent

27:32 - direct evidence.

27:33 - So are you talking anecdotally

27:36 - or are you saying, Reporting to some cognition

27:43 - that they're inherently unreliable?

27:45 - I'm not sure what you're saying.

27:46 - So, so, Your Honor, I think that the, the vast majority

27:51 - of the time and I think, the vast majority of cases,

27:55 - at least, that I've seen when there's a confidential informant being used,

27:59 - they are unreliable because a lot of times

28:02 - they are getting themselves involved in a potentially dangerous situation

28:08 - to get themselves out of trouble.

28:12 - To, That's shocking.

28:15 - There's,

28:17 - I guess, Your Honor, there's usually some type of quid pro

28:20 - quo, and it's analogous to a jailhouse informant.

28:23 - Situation is the point you're making.

28:25 - It's a yes, Your Honor.

28:27 - They they have something to gain from it.

28:33 - Speaking.

28:34 - Speaking directly to Mr.

28:35 - Sutton's case. It's interesting because after Mr.

28:38 - Sutton was arrested, the person who turned out to be the,

28:44 - confidential informant,

28:45 - at least in some of these cases, because some of them did go to trial.

28:49 - He was actually accused of stealing Mr.

28:51 - Sutton's car and selling it.

28:53 - And while while Mr.

28:56 - Sutton was in jail, they're not supposed to disclose.

28:59 - It's usually not, Your Honor.

29:03 - But I didn't handle the case.

29:04 - But, Yeah, yeah,

29:08 - the point is, that the confidential informants

29:12 - often times have, motive to

29:16 - to lie, they're,

29:20 - you know, that confidential

29:21 - informants are necessary tools, but law enforcement

29:25 - uses to establish a case.

29:29 - Yes, Your honor, that's 100% right.

29:32 - I don't I don't know why you you're, Maybe it's because of the the questions

29:37 - from the bench, but I don't know why you're already, sort of,

29:43 - climbing down the ladder to this this argument

29:46 - about reliability or unreliability about this species of witness.

29:51 - You know, don't you have a more,

29:56 - principled argument

29:57 - about the hearsay, the hearsay issue itself?

30:01 - Well, I'll, I'll, I'll McClelland, Harris, etc..

30:06 - Well, judge, I think that ultimately

30:09 - what it comes down to is, yes, number one, reliability.

30:12 - But I think that that does go into, why

30:19 - hearsay is generally disfavored evidence.

30:22 - And this court has been dealing with this in some way or another since,

30:27 - the 2015 record decision, which, Fricker

30:33 - originally came up to this court, but I think that it was I denied some point.

30:39 - But then it came back.

30:39 - McClelland and then it came back and Harris

30:43 - and and then it came back in this and then it came back in.

30:45 - Miss.

30:46 - That's correct, Your Honor.

30:49 - Although at the preliminary hearing or the prima facie level,

30:55 - the full Penelope of rights

30:58 - and rules of evidence don't necessarily apply.

31:02 - It is not it's it's not supposed to be a speed bump.

31:08 - To get to trial.

31:10 - And a defendant who could be sitting in jail

31:14 - for a long time has.

31:18 - I'm going to say the word right.

31:20 - Even though what I just said,

31:24 - they should be able to hear the actual accusations

31:27 - coming from the person who's making them counsel.

31:31 - We said that.

31:32 - I mean, that's,

31:32 - you know, sort of the basis of our opinions that this case is

31:36 - looking for an exception.

31:37 - But the Commonwealth is claiming a qualify privilege

31:42 - for the CBI and qualified privilege forces exist.

31:48 - Why are they not entitled to that in this case? So.

31:53 - So, Your Honor, I think that it goes,

31:55 - goes back to what I just said is that once you get to the litigation portion

32:01 - and after you've been, arrested,

32:04 - I think that you have the,

32:08 - I'm going to use the word again right,

32:11 - to hear that accusation coming directly from the person who saw it.

32:15 - And otherwise, if if that's not their

32:20 - the police

32:22 - can can verify it in other ways.

32:25 - They can sit and they could they could sit for the

32:28 - the extra 15 minutes and see if they can see the defendant

32:31 - come to the door, receive them, retrieve the mail or whatever that might be.

32:36 - That's not what spy confidential informant identity is not revealed.

32:41 - Is the preliminary hearing.

32:42 - Aren't there legitimate reasons why the prosecution does not want to.

32:47 - So, so so, Your Honor, yes, there are.

32:50 - And I think that, are the two big ones

32:54 - that I've come across are, number one,

32:58 - the continuation of, operations or whatever that might be.

33:03 - Number two, safety. And number two, safety.

33:06 - The first one, at least in this case, I don't believe that that one applies

33:12 - because, they seem to have lasted everybody at the same time, wasn't

33:17 - it isn't the that isn't the larger I thought the larger point there

33:20 - is that those qualified privilege cases and or situations where the Commonwealth

33:25 - can prove its can prove its case without this hearsay that you

33:31 - it's the hearsay that's the problem.

33:34 - Right?

33:34 - I mean, that's why this case is different than that line of qualified

33:38 - privilege cases, because there the Commonwealth was proving it's

33:41 - proving its case through the undercover officers testimony

33:45 - and not through the hearsay.

33:48 - Yes, Your Honor, I think that that's correct.

33:51 - So what's your best start?

33:55 - So. So, Your Honor, I guess that I was going to go to the, to

34:00 - the second portion of that, which I think is, is ultimately my best argument.

34:05 - And,

34:08 - it's it's what the Superior Court ended on

34:11 - in its decision in Harris that I don't believe this court directly

34:15 - touched on, but, what what

34:18 - I believe that the last paragraph in that opinion said is we understand

34:24 - that there are dangers when it comes to being a witness.

34:28 - However,

34:31 - a criminal defendant

34:32 - also has the right to to hear from the person

34:37 - who actually witnessed, other crime take place.

34:43 - The Commonwealth says it's

34:46 - produced the same person.

34:49 - The trial we were representing to you by saying.

34:55 - I. I think that

34:59 - what it comes down to with that, Your Honor, is I,

35:03 - I've been a prosecutor.

35:07 - I've never really been a drug prosecutor, but I did a lot of domestic

35:10 - violence cases and time and time and time again,

35:15 - I have a victim who is going to come forward.

35:19 - And sometimes they do with the preliminary hearing.

35:22 - And then

35:24 - they vanish.

35:26 - Know the remedy.

35:29 - If that happens in this kind of a case,

35:32 - is there a remedy?

35:33 - You've already gotten through the preliminary hearing.

35:35 - So is that your position that.

35:38 - Well, well, I mean, after the preliminary hearing

35:40 - or the ha be as, if that's what happens?

35:43 - Sometimes these cases can take a very long time.

35:46 - That person would be sitting in gotcha, possibly sitting in jail or,

35:51 - obviously under some type of bail condition.

35:54 - Up until that point, when an overburdened court

35:59 - system decides to call that person's case to actual trial.

36:04 - You can help me. Yes, your honor, with us.

36:07 - What you want us to write?

36:10 - If you were us, how are we writing your rule or your possession?

36:15 - The confidential informant.

36:17 - What? So.

36:18 - So, Your honor, obviously, I would like the case to be reversed.

36:21 - And I'm asking you,

36:23 - assuming we were in a reverse posture, you're now the chief justice.

36:26 - You're leading the opinion.

36:28 - How are you going to finish the sentence

36:30 - a confidential informant use at a preliminary hearing.

36:34 - Finish it,

36:36 - your honor.

36:37 - I think that the way that I would go forward with that,

36:40 - and that's it might not very well be the, the typical defense attorneys,

36:46 - answer is I just wanted out, yes.

36:51 - Well, I just want all confidential, informant testimony out.

36:56 - If it's not coming in front of the justice or the,

36:59 - the the fact finder out yourself.

37:02 - So you're saying I would want no hearsay evidence.

37:05 - And in some very rare circumstances, I would at least like there

37:10 - to be some type of rule or parameter when it can be used, because it.

37:17 - So, Number one, I think that they should be required

37:22 - to, inform not only the court but defense counsel that,

37:28 - that confidential informant will be available at the time of trial.

37:32 - You also have back in the day as justice McCaffrey

37:34 - and I both were DA's in Philadelphia trying guns and drugs.

37:38 - There used to be a thing called a Prichard motion

37:41 - that you want to understand that this is material to your defense

37:45 - and you need the identification.

37:46 - So tell me with the fact that we have that the defense has that in its arsenal.

37:52 - How does that fit in with your position

37:55 - with your with the Prichard vote, your position is revealed.

37:59 - The confidential informant has to be identified, which is not going to happen.

38:03 - So, I think that in,

38:10 - in the vast majority of cases, I don't think that you need

38:13 - to to reveal the confidential informant and, interesting.

38:19 - And, Scott, sorry you're on.

38:21 - You're supposing that the Commonwealth can prove a prima facie case

38:25 - to independent circumstantial evidence.

38:29 - The case that we're dealing with here.

38:31 - You don't have anything other than the CI telling the arresting officer.

38:35 - Stroker Sutton gave me the drugs.

38:38 - That's why it's an important case.

38:39 - Yes, exactly. Yeah.

38:41 - I mean, 573 doesn't give an exception with Justice Socrates

38:45 - talking about as codified under the Pennsylvania Rules of Criminal Procedure

38:48 - 573 allows you to file when you say it is a defense attorney.

38:52 - Judge, I need to know who the CIA is in order to prepare my defense.

38:56 - It's discretionary with the court.

38:58 - So again,

38:59 - we keep coming back to the same issue at a preliminary hearing.

39:03 - All right.

39:03 - We all know

39:04 - that certain limited hearsay is allowable to prove certain elements of the crime.

39:08 - That's the law that's meant to a law.

39:10 - Harris comes along.

39:11 - Harris says that you can't prove the identity, which is not an element

39:14 - of the crime identity of the perpetrator, of the particular crime,

39:19 - through circumstance, through or hearsay alone.

39:22 - So my point to you is, and I think we're dancing around the issue,

39:25 - why don't you just make that argument 573 she got no exception for sea ice.

39:29 - The plain text doesn't allow it to prove

39:32 - identity, and Harris confirms that.

39:35 - Well, I want to make your order.

39:37 - Well, yes, Your Honor has to do it. Yes.

39:41 - That is Your Honor.

39:42 - Harris Harris differentiated from the the elements of the crime and said

39:48 - that the, the identity of the perpetrator understand that.

39:52 - And possession with intent to deliver.

39:53 - You're not going to call him the chemist, right?

39:55 - You're going to say, yeah, yeah.

39:56 - At the preliminary hearing,

39:57 - if the chemist were called to testify, you testified

39:59 - that the items that are put on a property received by the arresting officer

40:02 - were tested, and they tested positive for cocaine schedule two narcotic.

40:06 - That's an element of the crime.

40:06 - Possession with intent to get them distributed, controlled substance

40:10 - identities, not your client's

40:12 - may or may not have been in the house for all we know. Right.

40:15 - Did anybody testify at a preliminary hearing?

40:17 - Mr. Sutton was in the house.

40:18 - Mr. sirup was in the House. They answered the door.

40:20 - They handed the city information.

40:22 - There's no independent information to verify the identity of Mr.

40:25 - Stroker. Mr.

40:26 - Sutton, that's the core issue here, right?

40:29 - Yes, Your Honor.

40:30 - Okay.

40:30 - Why don't you just say that, as you said in your brief, that there's

40:34 - no sy exception to Harris, like it is not what you want to just say.

40:39 - Because I was a little nervous, Your Honor.

40:41 - Because what, sir?

40:42 - Because I was a little nervous. I apologize, but.

40:45 - Oh, no. No, that's fine. I think we get the point.

40:47 - I think we get it.

40:48 - And, I think we will hear from the Commonwealth.

40:51 - Mr. Gallagher. Thank you very. Thank you, Your Honor.

40:53 - In front of the seven of us, I.

40:56 - I'm nervous.

40:58 - Oh, I'm nervous as well.

41:00 - Yeah. My name is Brian Gallagher.

41:02 - I represent the Commonwealth of Pennsylvania.

41:04 - I'm going to pull the microphone up because you seem to be very tall

41:08 - or or lean over. Yeah.

41:11 - I'll try, I'll try my best. Okay.

41:13 - Not to do that. Standing on one leg. Okay.

41:16 - Thank you.

41:17 - Yes, I guess, just to piggyback off

41:20 - on what justice McCaffery said was the core issue.

41:24 - And I hate to do it, but I disagree with you a little bit.

41:28 - Justice McCaffery, about whether or not,

41:32 - the only evidence presented

41:35 - connecting the individuals charged was hearsay.

41:39 - I disagree with that because in the in Sutton,

41:42 - both these controlled purchases, it was confirmed, the CI went into Mr.

41:47 - Sutton's residence to identity.

41:51 - What's the other evidence as to identity?

41:53 - Well, the fact that the controlled purchase was conducted in his residence.

41:59 - Proof of his residence? Yes.

42:02 - Was Mr.

42:02 - Proof that he was in his residence at the time at the CI went in.

42:06 - That's the question.

42:06 - Or that nobody else was in there because you're arguing now an independent,

42:10 - independent evidentiary basis at a preliminary hearing at a prima

42:13 - facie level to suggest that Sutton had to be there.

42:16 - His car was out front.

42:17 - Is that excuse house? We went into?

42:19 - He lived there by himself.

42:20 - That's all independent kind of circumstantial evidence, correct?

42:23 - There's no direct evidence that Struttin or Soap

42:25 - is the guy that gave the methamphetamine to the CI, right?

42:27 - That's correct.

42:28 - That's what we were trying to get at.

42:29 - Yeah.

42:30 - So, okay, so, I believe that there was circumstantial evidence

42:35 - connecting both Sutton and stroke, that they were the correct individuals charged.

42:40 - In Sutton's case, it was his residence.

42:41 - It was confirmed that that was the residence listed on his driver's license.

42:45 - That was the residence.

42:46 - His a proof residence because he was currently on probation

42:50 - or he was on probation at the time of the incident.

42:52 - So let me throw a twist at you, okay?

42:53 - I'm sorry if I'm monopolizing.

42:56 - Say we have a

42:57 - crack house because we have 1 or 2 of those in the city of Philadelphia.

43:00 - Or probably more than that

43:03 - drug places that have euphemistically been called a crack house.

43:05 - We don't know who owns the house.

43:07 - It's an abandoned property yet.

43:09 - Narcotics officers are pretty sharp.

43:11 - They understand where the drugs are coming from and where they're going for.

43:14 - They set up a surveillance.

43:15 - They set a key up in front an abandoned property that we don't know who's in it.

43:19 - All right. We send the key into the house.

43:21 - The key goes in there and says, I met with Brian Gallagher.

43:25 - He gave me some crack. Here's the crack.

43:27 - All right.

43:28 - Officers are sitting out front.

43:29 - They go back, they do their 549 or 3.

43:32 - Okay, we said, and they say Brian Gallagher sold the PSI a crack.

43:36 - And based upon that and the summary here and Brian Gallagher was arrested

43:40 - and we see you in the house,

43:42 - nobody knows that you're in the house other than the CI.

43:45 - Is that enough for the hearing?

43:47 - Because now Brian Gallagher is going to be arrested.

43:50 - If we allow an exception to the CI.

43:52 - Brian Gallagher can be sitting in prison for nine months to a year

43:56 - based upon solely based upon what

43:59 - the CI testified to, based on Harris.

44:02 - And I assume when you say the CIA,

44:03 - the CIA didn't testify at the preliminary hearing, that's part of your hypothetical

44:07 - based on Harris, I submit that that would not be enough.

44:12 - Thank you.

44:12 - Can I can I go back before you get into further further into the CI?

44:17 - Because I'm sure we all have questions on that.

44:21 - You, in the docket statements in these cases,

44:24 - you check the box indicating that you were appealing from a final order.

44:28 - But,

44:32 - An order granting ha be as is not is not final.

44:35 - You could have filed these charges.

44:38 - So what's your defense to the problem of subject matter jurisdiction?

44:43 - Why shouldn't we just dismiss this?

44:47 - I don't think you even addressed it in your briefs.

44:49 - No, I did not. And I'm apologize.

44:52 - I don't really have a good answer for you one,

44:55 - because when you say I checked the box, it actually,

44:58 - I don't mean you're a different attorney from a prior administration.

45:01 - Check that box.

45:03 - So I wasn't really involved in the case, at the superior court level,

45:07 - so I apologize.

45:08 - I don't really have a very good answer because that could be a real problem

45:12 - for you.

45:13 - This is you know, these cases are always refiled

45:15 - when they're, well, usually refiled if they're dismissed.

45:20 - Well, I don't think it would be a problem

45:21 - as far as prosecuting the case to to a conviction.

45:25 - We would refile it.

45:26 - Yeah. No, I just saying because it's, you know, it's interlocutory here.

45:29 - We said in McClelland and what you just said is the reason

45:33 - that it shouldn't be here because you could refile

45:37 - or send a final order.

45:38 - It is not a final order and we could refile well.

45:41 - And and so the Superior Court had no jurisdiction.

45:47 - Correct.

45:48 - Which means I apologize.

45:50 - I'm not I'm not prepared to ask to be vacated.

45:53 - Well, maybe maybe you can educate me for sure, though,

45:56 - if you would have refiled, what would have happened?

45:58 - If I would have refiled it?

46:00 - I would have me personally if I were prosecuting the case.

46:03 - At the point what I say you, I mean, the Commonwealth, what would

46:07 - let's say let's say that the appeal didn't happen.

46:09 - The Commonwealth refile the charges. Would there be another preliminary hearing?

46:12 - There would be another.

46:13 - And you would submit. You would submit the same evidence.

46:16 - I would,

46:17 - I guess.

46:18 - Commonwealth with the with the hindsight being 2020,

46:22 - I think would create a better record and provide more circumstantial evidence.

46:26 - That's my question.

46:27 - That was if you believed, as the Commonwealth,

46:29 - that you produced enough evidence in the first preliminary hearing

46:33 - and that you didn't violate Harris and that the MDA was wrong,

46:37 - when does that assuming this was not appeal able

46:40 - interlocutory order, it wasn't final.

46:42 - When does that issue get to be taken up by the Commonwealth?

46:46 - The, what issue?

46:48 - The, whether or not whether or not there was an after the preliminary hearing

46:52 - for improperly throwing out the charges, which is your contention,

46:56 - saying they did or they didn't.

46:57 - I'm sorry.

46:58 - I'm confused because the MDA bound over the charges bound over

47:01 - and the trial court determined, decided there wasn't enough.

47:05 - Okay, so so the trial.

47:06 - So when does that decision get appealed that that alleged error by the trial judge?

47:13 - I perhaps in a situation where we can't refile

47:18 - because the statute of limitations is told her for some other reason.

47:21 - So you so so again, you're helping me

47:24 - understand this, but you're saying that you're stuck with that decision.

47:27 - Any refiling that you do would have to comply with that decision,

47:31 - or you'd have to keep violating that decision.

47:34 - And then at some point in time later, you can raise this Harris to issue

47:40 - like I'm.

47:40 - When does the Harris two issue get resolved?

47:42 - I assume, assuming the Superior Court didn't have jurisdiction in this appeal,

47:46 - when does your Harris two issue get?

47:48 - Decide when do you get to appeal the disagreement you have

47:51 - with the trial judge.

47:54 - When do I get to

47:55 - I'm not sure the will be once the trial judge says

47:59 - perhaps on your request that is dismissed with prejudice. Yes.

48:03 - That's the answer as you were beginning to say that that came to mind.

48:08 - And the reason that it's an issue here is because all of the charges

48:11 - were dismissed.

48:12 - If we got a case where only some of the charges were dismissed,

48:16 - then it would be an appeal order because you couldn't retry it

48:20 - because the double jeopardy.

48:22 - Well, that's not what happened here.

48:24 - I don't I don't think I could I think double jeopardy would attach would it not.

48:28 - And I wouldn't be able to appeal that

48:31 - if I went to trial and a juror

48:33 - and a jury was, you could appeal it because you couldn't retry it.

48:37 - That's why that decision would be appeal able.

48:41 - Because you couldn't you couldn't you couldn't try it.

48:45 - Well, if, if well,

48:47 - if not all the charges were sorry for their cases.

48:51 - Okay.

48:51 - So I distinguishes between dismissing

48:54 - all of the charges and dismissing some of the charges here.

48:58 - All of the charges were dismissed.

48:59 - Okay.

49:00 - It's not final because you could refile file or up until the point

49:04 - where Robson said you could have asked the trial court to dismiss with prejudice.

49:10 - But none of that happened. No, that did not happen.

49:12 - One other pre merits matter. Counsel.

49:14 - Commonwealth failed to file a rule 1925 B statement in Sutton.

49:20 - We bounced cases all the time in Superior court does as well.

49:24 - There's plenty of authority on this.

49:26 - What why is why is the case?

49:29 - B why isn't the case not subject to being vacated on that basis?

49:33 - I'm not sure that the Superior Court wanted to hear the case.

49:37 - Well, I mean, the Superior.

49:38 - Court, superior Court also created an exception to Harris here.

49:42 - So the Superior.

49:43 - Court can do all kinds of things, but then sometimes we reverse them.

49:47 - I'm asking why we should overlook the failure to file when we don't do that.

49:51 - In other cases.

49:53 - Well, I would if the purpose

49:55 - of the rule is to apprize the,

49:59 - trial court judge of all the issues, I don't think

50:02 - there is really any dispute over what is at issue.

50:05 - The second column of Commonwealth

50:08 - versus Lord says it's a black letter rule

50:12 - period and has been for years.

50:14 - Lots of cases that have been balanced under the circumstances

50:17 - so that.

50:20 - Counsel,

50:21 - the issue for this court is should we allow for an exception?

50:25 - Doctor Harris, you come out prove I promise that I would say.

50:30 - I here faithfully particularly

50:34 - when a confidential informant is, you know.

50:38 - So my position is

50:41 - based on the record established at the preliminary hearing.

50:44 - You don't have to

50:46 - and I appreciate I reviewed the Pennsylvania District.

50:50 - Attorney's Association brief, and they, advocate for creating this rule.

50:55 - My position is.

50:59 - And I'm

51:00 - just focusing on prosecuting these two individuals.

51:03 - And based on the the transcript of the preliminary hearing,

51:06 - the judgment of the magistrate, preliminary.

51:11 - A prima facie case was made.

51:13 - Mr. Gallagher, we're the Supreme Court, not the Superior Court.

51:16 - We're here to make a rule.

51:18 - The rule that's been kind of taken up is a question that's been

51:20 - taken up is should we, as Justice Daugherty just mentioned, that?

51:23 - I mean, that's why we're getting to the whole issue

51:26 - of whether or not this was a final order versus an interlocutor pre order.

51:29 - We're not here to error. Correct.

51:31 - We're not here to decide whether or not there was an independent

51:33 - prima facie basis based upon circumstantial evidence.

51:36 - We're here to address the question, the public policy question frankly,

51:40 - of whether or not there should be an exception to a CI at a preliminary

51:43 - hearing.

51:44 - Well, to address the public policy concerns, I mean, certainly

51:48 - the identity of confidential informants throughout this Commonwealth.

51:54 - That knowledge being known to charged

51:56 - individuals is a grave safety risk to those.

51:59 - And they're an important,

52:01 - important factor, important element for law enforcement.

52:04 - Yes, they are.

52:05 - And I think a ruling that says a hard

52:09 - line ruling that says, no, you can never use

52:13 - hearsay of a confidential informant, a preliminary hearing.

52:16 - What identity to prove identity would have a chilling effect

52:20 - on the information that is brought forward to police from.

52:24 - Let me stop you there.

52:25 - Let's say we adopt that role, that particular role.

52:28 - At what point does the defendant's Sixth Amendment rights kick in

52:32 - that we have to produce the identity

52:35 - of the confidential informant, because, I mean, flip yourself over a little bit.

52:39 - Your defense attorney now, you've have to prepare for trial.

52:43 - If you've got no other evidence other than the confidential informant,

52:45 - at what point does the defendant's.

52:48 - Sixth Amendment right to confront the witnesses against him kick in?

52:51 - And do we have to produce a confidential informant?

52:53 - Because otherwise, as I just mentioned, Brian Gallagher is sitting in jail

52:57 - for nine months, a year, 18 months, and all of a sudden

53:00 - the CIA disappears, or the CIA, you know what the Commonwealth says?

53:03 - This guy's too valuable.

53:05 - This is a very dangerous criminal.

53:06 - We're not going to produce this guy.

53:08 - So this guy's got lost two years of his life

53:10 - because the CI said he bought crack from you,

53:13 - and there's no other evidence to suggest otherwise.

53:15 - Well, I think certainly not at the extremely early stage

53:19 - of a proceeding such as before, a preliminary hearing takes too early.

53:23 - It's to excuse me, what's extremely early?

53:26 - I mean, after a preliminary hearing, you self report,

53:28 - bail stays the same or there's no bail.

53:30 - The guy is now sitting in jail.

53:31 - At what point do we then say CI has got to be turned over?

53:34 - Well, we only have two stages that we're talking about here.

53:37 - Preliminary hearing and trial. Right? Yes.

53:39 - But the preliminary hearing, I believe, is required to happen

53:41 - within a week or two of the individual being arrested.

53:45 - And then after that formal Raman is rescheduled

53:48 - and then the discovery process starts.

53:51 - You hit the nail on the head for me.

53:53 - Tell me, if we were to follow your rule

53:56 - and we make an exception for a confidential informant,

53:59 - then at what point is it incumbent upon the Commonwealth

54:03 - to provide information so that the defense can adequately prepared defense?

54:08 - That meaning,

54:10 - is your discovery going to

54:12 - exclude the identity of the confidential informant?

54:16 - Because then now you're putting the defense at a distinct disadvantage

54:19 - that they have no idea

54:21 - unless they raised what we called back in the day a Prichard motion.

54:24 - And that's always in their arsenal. Yes.

54:26 - But your position is my position is upon motion of the defendant

54:31 - for that specific information after a hearing with the trial court.

54:35 - But that's but that's after presumably,

54:39 - their liberty has been denied and they're incarcerated, or jailed.

54:43 - And and so the only argument I heard you advance here in response

54:49 - to my colleague's question was,

54:52 - threat of retaliation, as I understand it.

54:55 - So how is that any different from

54:59 - the preliminary hearing where the detective comes in

55:03 - and gives gives testimony about hearsay,

55:07 - gives hearsay testimony about a, a robbery victim

55:12 - or an eyewitness to a murder if there's no principal difference at all.

55:16 - So your argument is just a slippery slope.

55:19 - It's just a conduit to hearsay it, and it's.

55:24 - I don't see how it comports in any way with McLelland or Harris.

55:27 - So this this this, request

55:34 - for an exception for cases, it seems to me, has.

55:38 - No. There, there.

55:40 - When we excavate it, can you can you elucidate elucidate

55:44 - the difference between, for example, a robbery case is where

55:48 - that's not an undercover operation where,

55:51 - that that's one victim one time, perhaps a random act of violence,

55:56 - whereas in these cases, with confidential informants,

56:00 - the confidential

56:01 - informant typically is already known,

56:04 - perhaps a regular purchaser of drugs to these drug dealers.

56:08 - So the drug dealer knows where they live?

56:11 - No where they can be found, knows their family

56:14 - a little bit different than,

56:16 - for example, a robbery case, a random act of violence.

56:19 - But why is it I mean, we can we considered this issue

56:22 - in in Harris and concluded that

56:27 - recognizing that the danger to a witness is a consideration,

56:32 - it doesn't overcome the due process rights of the defendant.

56:36 - Well.

56:38 - It seemed to me in Harris this court was avoiding the due

56:42 - process issue regarding hearsay at preliminary hearings.

56:46 - And Harris focused,

56:49 - I thought, pretty deliberately on the plain

56:54 - reading, the plain language of rule 542,

56:58 - which is why I focused in my brief on

57:01 - was there some circumstantial evidence, non hearsay?

57:05 - Circumstantial evidence?

57:07 - Is there an

57:08 - established, privilege in other circumstances?

57:11 - Forces?

57:14 - What do you mean, in other circumstances other than the preliminary hearing,

57:18 - which is where we are,

57:19 - which is why you're here, asking us to create an exception to it.

57:23 - Well, potentially fold is in the two fold danger and interference

57:29 - with an ongoing investigation and interference with,

57:34 - the free flow of information to police detectives.

57:38 - So it's a three pronged cast.

57:39 - Yeah.

57:41 - And where is that set forth?

57:43 - Where is that?

57:44 - What case?

57:45 - Elucidate that I, I'm not sure.

57:49 - Is is there an ongoing

57:50 - why is there an ongoing investigation in this case, or is it.

57:54 - I appears in most of the briefs, the fact that the,

57:57 - investigation that DCI was involved with was concluded.

58:03 - I'm sorry, restate the

58:04 - investigations that this CI was involved with concluded.

58:09 - Was it done?

58:11 - In in in my county's experience, based on my knowledge

58:14 - of how this case, the CIA's work was done.

58:18 - Okay, so he's okay.

58:20 - He's done. Okay.

58:22 - All right. We go.

58:24 - I think we have.

58:25 - Yeah, I think we have it.

58:26 - And if I might just, just,

58:30 - add a corollary to when I say

58:32 - the CIA's work was done, his work

58:35 - going into people's houses and trying to buy drugs was done.

58:39 - It was made very clear to him he may be required to testify at trial.

58:44 - I think the question was,

58:45 - was there still an ongoing investigation after the arrest of Sutton?

58:49 - Right.

58:50 - No, I think they were they were they were done after that, like,

58:52 - okay, that was your answer.

58:53 - Okay. Yeah.

58:54 - All right.

58:54 - Okay. Thank you both.

58:56 - Thank you so much, Your Honor.

58:58 - Our next case is Commonwealth versus Cynthia Black, a deeply unusual matter

59:03 - that asks the Pennsylvania Supreme Court to decide when the five year

59:07 - statute of limitations begins to run for two theft related offenses

59:12 - theft by deception and receiving stolen property

59:16 - in circumstance involving a long running concealment of the crime.

59:21 - The facts of this case are unlike most that reach this court

59:25 - between 2001 and 2005.

59:28 - Cynthia Black's grandmother passed away while living with Miss Black

59:32 - in York County, rather than reporting her grandmother's death.

59:37 - Miss black placed the body in a freezer and continued to collect

59:41 - her grandmother's Social Security payments for several years.

59:45 - Those payments, totaling nearly $186,000, were automatically

59:51 - deposited into the joint bank account of the defendant and her grandmother.

59:55 - 005 The payments stopped in 2010 when the Social Security Administration

01:00 - 01.440 became suspicious.

01:00 - 05.868 After failing to receive routine correspondence from the defendant's grandmother

01:00 - 07.914 years later,

01:00 - 11.474 in 2019, police discovered the grandmother's body

01:00 - 16.879 inside a freezer at a foreclosed property once owned by Miss Black.

01:00 - 21.660 The remains were later identified, and Miss Black admitted to authorities

01:00 - 25.598 that she had concealed her grandmother's body in order to continue

01:00 - 28.625 receiving the Social Security payments.

01:00 - 33.229 The Commonwealth charged Miss Black in 2020 with theft by deception,

01:00 - 37.333 receiving stolen property, and abuse of a corpse.

01:00 - 40.870 She was convicted in a stipulated bench trial

01:00 - 44.007 and sentenced to nearly four years in prison.

01:00 - 47.052 Her appeal centers not on the underlying facts,

01:00 - 50.079 but whether the theft related charges were filed too late.

01:00 - 53.058 That is, after the five year statute of limitations

01:00 - 56.085 had run for those offenses.

01:00 - 58.631 The Pennsylvania Supreme Court granted review

01:00 - 01.658 in this case to decide two related questions.

01:01 - 05.528 Did the statute of limitations for theft by deception begin

01:01 - 08.931 when the Social Security payments stopped in 2010?

01:01 - 13.002 Or years later, when the body was discovered in 2019

01:01 - 17.840 and was receiving stolen property, a continuing offense

01:01 - 23.279 that extended until Miss Black no longer possessed or benefited from the funds.

01:01 - 25.824 The answers turn on how

01:01 - 29.085 Pennsylvania law defines when an offense is complete,

01:01 - 33.032 and whether certain crimes can legally continue

01:01 - 36.092 over time through concealment or retention.

01:01 - 40.763 The defendant, Miss Black, argues that both charges were time barred.

01:01 - 45.234 Her position is that all of the elements of theft by deception were complete.

01:01 - 49.439 When the Social Security Administration made its final payment in 2010.

01:01 - 54.110 After that date, she neither received nor withheld additional funds.

01:01 - 57.956 She contends that the lower court suggested that concealing evidence

01:01 - 00.983 of a crime extends the offense itself.

01:02 - 04.997 Miss black argues, however, that no such doctrine exists

01:02 - 06.432 in Pennsylvania law,

01:02 - 10.293 and that the Commonwealth's reliance on cases involving conspiracy,

01:02 - 13.696 which is explicitly defined as a continuing offense

01:02 - 16.966 and involving more than one person, is misplaced

01:02 - 21.637 because no statute involved in this case speaks to a continuing offense.

01:02 - 27.410 She also points to a 2017 Superior Court decision, Commonwealth versus Suchi,

01:02 - 30.589 which found that the theft by deception statute

01:02 - 34.016 does not criminalize inherently continuous conduct.

01:02 - 37.763 Therefore, she says, the five year statute of limitations

01:02 - 41.491 began in 2010 and expired in 2015.

01:02 - 45.995 The Commonwealth argues that the charges were timely filed.

01:02 - 50.166 Prosecutors maintained that Miss Black's deception continued for years

01:02 - 51.944 because she actively concealed

01:02 - 55.071 her grandmother's death to prevent discovery of her fraud.

01:02 - 58.851 They rely on what they call a continuing deception

01:02 - 02.621 or an ongoing cover up of this case, asserting that a

01:03 - 07.250 theft of deception is not complete until the deception itself

01:03 - 10.987 ends under a case known as Commonwealth versus Fisher.

01:03 - 14.700 According to the Commonwealth, the deception did not cease

01:03 - 18.604 until May of 2018, when Miss Black lost control

01:03 - 21.898 of the property containing the freezer after the foreclosure.

01:03 - 26.044 Only then, they say, did her ability to conceal the crime

01:03 - 30.215 and because charges were filed in May of 2020,

01:03 - 32.718 just two years after the foreclosure.

01:03 - 37.246 The Commonwealth argues that they were well within the five year limitations period

01:03 - 40.492 as far as receiving stolen property.

01:03 - 43.619 Prosecutors emphasize that this offense remains ongoing

01:03 - 47.290 as long as the person retains the property or its benefits.

01:03 - 51.060 Since Miss Black used the stolen Social Security funds

01:03 - 55.908 to pay the mortgage on the very house where the body was concealed, they argued

01:03 - 59.836 that she must have retained those funds until at least 2018.

01:04 - 02.047 At stake in this case, in.

01:04 - 05.651 This is the Supreme Court's decision on how Pennsylvania law

01:04 - 09.345 will apply its statute of limitations to theft and fraud

01:04 - 13.316 involving long term concealment or misuse of property.

01:04 - 15.460 With this background in mind,

01:04 - 18.821 let's hear the oral arguments in Commonwealth versus black.

01:04 - 20.999 Morning once again, your honors.

01:04 - 22.234 My name is Brian McNeil.

01:04 - 24.102 I'm with the York County Public Defender's office,

01:04 - 26.062 and I represent the appellant, Cynthia Black,

01:04 - 29.141 for both the offenses at issue here.

01:04 - 32.168 Certainly a lot of the same principles are at play.

01:04 - 35.881 It's undisputed that both of these prosecutions were untimely.

01:04 - 38.875 If the statute of limitations ran from the last deposit

01:04 - 42.545 into the bank account in question in November of 2010,

01:04 - 46.124 that means they would be untimely under the general rule

01:04 - 49.661 for statutes of limitations, which is that they begin to run the day

01:04 - 52.688 after all, elements of an offense are complete.

01:04 - 55.801 But there's an exception to this general rule

01:04 - 59.071 under 42 PACs, section 5552

01:04 - 02.098 de that says that

01:05 - 05.310 when the legislature plainly intends to prohibit

01:05 - 09.071 a continuing course of conduct, the general rule does not apply.

01:05 - 12.885 Now, the most obvious way for the General Assembly to indicate

01:05 - 15.912 this intent would be to explicitly say as much.

01:05 - 18.891 And that's exactly what it's done under a fair

01:05 - 22.051 number of statutes, most notably the conspiracy statute,

01:05 - 26.756 but also under the Medicare Fraud Act and the Corrupt organization statute.

01:05 - 28.800 And each of these instances,

01:05 - 32.771 the General Assembly has specifically indicated that it is prohibiting

01:05 - 35.965 a continuing course of conduct in creating these offenses.

01:05 - 39.711 And we'll acknowledge there's a second category of offenses

01:05 - 44.073 where, the requisite intent appears to be and that's what possesses offenses

01:05 - 48.120 due to the fact that possessor offenses are, by their own nature,

01:05 - 51.113 inherently continuing.

01:05 - 53.058 Neither offense

01:05 - 56.085 at issue, however, fits into either of these categories

01:05 - 59.531 and the requisite intent to, deviate from the general rule

01:05 - 02.558 for statutes of limitations is therefore absent.

01:06 - 05.837 Well, if you if you give.

01:06 - 07.005 No, you don't give me.

01:06 - 10.943 I'm sorry if, if you left or,

01:06 - 14.913 a diamond ring on that desk and when you weren't looking,

01:06 - 18.240 I came and I grabbed it and I retained it.

01:06 - 23.346 Or if we're looking at the other statute, if I withheld it,

01:06 - 27.383 and then you just, you know, leave you go back to York and,

01:06 - 30.953 five years later, I've still got this ring.

01:06 - 33.265 Have I not retained it?

01:06 - 34.657 And have I not withheld it?

01:06 - 38.136 Well, I think the

01:06 - 40.339 ten years, 12 years, 20 years, essentially.

01:06 - 42.507 I think that's the office of the attorney general's position, right.

01:06 - 43.376 That, both

01:06 - 46.769 whether you're talking about retaining or withholding for both of these offenses,

01:06 - 49.448 that it's functionally the same as possession

01:06 - 52.317 and therefore is inherently continuing conduct.

01:06 - 55.954 I think the problem with that is there's ambiguity in those terms.

01:06 - 58.991 They're not necessarily the same thing as possession,

01:06 - 03.061 and that they actually can be passed as having occurred at a specific point

01:07 - 05.831 in time as opposed to possession, which continues

01:07 - 07.532 for as long as you would possess it.

01:07 - 11.069 If the statute were called, you know, possession by deception,

01:07 - 15.707 for example, or possessing stolen property in the hypothetical that you offered.

01:07 - 17.943 Justice Wecht I think I think you'd be right.

01:07 - 18.911 I'm sorry.

01:07 - 20.645 Just one follow up counsel,

01:07 - 24.640 if, for the deception element, if I said, hey, counsel, look over there.

01:07 - 28.144 And I grabbed it, says, you know, this deceptive conduct,

01:07 - 31.914 and then I'm withholding it from you for 20 years.

01:07 - 33.658 You're never the wiser.

01:07 - 34.293 Why is that?

01:07 - 36.862 An ongoing, continuing course of conduct?

01:07 - 41.233 Because, again, because you can you can trace that to a specific point in time.

01:07 - 44.960 I think the United States, the Irvine case from the United States Supreme Court

01:07 - 49.165 is especially instructive on this, rejecting the notion that withholding

01:07 - 53.345 is of itself inherently continuing conduct and saying that, yes,

01:07 - 56.539 you could look at withholding to mean something that's ongoing.

01:07 - 01.653 But we're rejecting that proposition and saying that that's not necessarily

01:08 - 05.724 true and that, you know, the statute of limitations can run

01:08 - 08.927 for an offense that's based on withholding because it can be linked

01:08 - 12.798 to a specific point in time, such as, you know, probably the best

01:08 - 16.358 example is if someone demands return for their property,

01:08 - 19.728 and through an act of deception, I withhold it from them.

01:08 - 22.707 Then potentially you've got a specific act

01:08 - 26.335 taking place at a specific point in time and no longer how,

01:08 - 30.039 no matter how long it's withheld or, you know, possessed better word.

01:08 - 33.952 After that, then, that does not mean the statute

01:08 - 36.979 limitations is forestalled from running for that entire time.

01:08 - 39.691 Now, Irvine's an old case. It's from 1878.

01:08 - 43.061 But, the principles underlying it, makes sense.

01:08 - 46.088 And they certainly, you know, haven't dimmed with time,

01:08 - 51.136 like, with retained, you know, it's a lot of the same issues,

01:08 - 54.163 like I said, you know, the sad

01:08 - 57.199 case, the Alaska Supreme Court case cited in the briefs,

01:08 - 01.437 that deals, you know, it notes there's kind of a split of authority

01:09 - 05.717 across the country about this exact issue receiving stolen property.

01:09 - 07.719 Is it a continuing offense?

01:09 - 10.746 And it notes that retention, like withholding,

01:09 - 14.159 can be something that occurs at a specific point in time.

01:09 - 16.995 Most best example

01:09 - 19.931 with receiving stolen property in particular is, you know,

01:09 - 23.993 someone comes into innocent possession of, stolen property.

01:09 - 26.671 They have no idea that it's stolen.

01:09 - 28.640 And, you know, there's nothing wrong with their possessing it.

01:09 - 32.844 But later, while they possess it, they come to find out that it is stolen.

01:09 - 35.180 It probably has been stolen. And yet.

01:09 - 36.781 And they decide, you know what?

01:09 - 38.583 I'm going to hang on to it anyway.

01:09 - 42.077 Now that's a retention, and it's something that occurs at a specific point in time.

01:09 - 47.049 The point of all this with regard to both withholding and retention is that,

01:09 - 51.730 unlike possession, which cannot be passed, from any time

01:09 - 53.732 that someone takes possession of something to the point

01:09 - 56.601 when they lose possession of it, these actually can be passed.

01:09 - 59.371 They can be fixed at a certain point in time.

01:09 - 03.933 And this being the case, there's ambiguity in these statues as to whether

01:10 - 07.536 they were truly intended to prohibit a continuing course of conduct.

01:10 - 10.215 And if there's ambiguity, that's not enough.

01:10 - 14.119 Subsection 5552 requires that the General Assembly,

01:10 - 17.780 plainly intended to prohibit a continuing course of conduct.

01:10 - 20.759 Add to that that

01:10 - 24.353 statutes of limitation are narrowly construed in favor of the accused.

01:10 - 27.933 So you really have two layers of reasons to construe this.

01:10 - 30.402 Against the Commonwealth's construction

01:10 - 33.026 or against the Office of Attorney General's construction, as well.

01:10 - 39.177 And honestly, that's

01:10 - 42.605 really the, long and the short of it as far as our position in this case,

01:10 - 46.375 if there are no further questions, we ask that this court

01:10 - 50.622 reverse the decisions of the lower courts, vacate Miss Black's convictions

01:10 - 53.649 for theft by deception and receiving stolen property.

01:10 - 56.161 Are there any other questions for council? Great.

01:10 - 58.163 Thank you very much. We'll hear from the district attorney.

01:10 - 59.598 Thank you very much.

01:10 - 02.625 It's Lombardi.

01:11 - 04.804 Thank you, Madam Chief.

01:11 - 09.898 Justice Justices, if this defendant had not moved to York County

01:11 - 14.069 and taken the refrigerator with her, you wouldn't have this case.

01:11 - 17.215 Actually, Your Honor, has she taken the freezer with her?

01:11 - 19.618 When she foreclosed on her property?

01:11 - 23.912 We would still have an ongoing concealment of her actions. So.

01:11 - 25.358 And that's the heart of it.

01:11 - 27.792 This is an ongoing concealment.

01:11 - 31.796 There is no crime until the fraud is discovered and the fraud isn't discovered.

01:11 - 33.765 Program while the remains were discovered.

01:11 - 34.433 What if.

01:11 - 35.434 What if it was?

01:11 - 37.526 What if we were talking about, say,

01:11 - 41.506 200 bucks and and, or 2000 bucks?

01:11 - 42.641 Well, it doesn't matter the amount.

01:11 - 45.768 And and it was demonstrably,

01:11 - 49.514 uncon incontestable that

01:11 - 52.350 that she used that money to pay off a mortgage.

01:11 - 55.377 That money was gone.

01:11 - 57.289 How could we say that

01:11 - 00.316 she is retaining or withholding that money

01:12 - 04.320 because she's retaining, at least at that point in 2018,

01:12 - 09.425 the house upon which the funds were used, she's retaining in the larger property.

01:12 - 11.936 That's how it's retained value that she obtained.

01:12 - 12.937 Okay. Exactly.

01:12 - 13.773 Yeah. Okay. Thank you.

01:12 - 19.077 So in other words, if if it could not be, correlated

01:12 - 23.615 with some asset that replace those funds, you wouldn't have that argument.

01:12 - 24.016 Is that right?

01:12 - 25.550 In other words, she spent it.

01:12 - 27.852 It's gone.

01:12 - 29.821 If I couldn't trace it or track it, it's gone.

01:12 - 32.324 And I think the case law, there's one case I cited to it.

01:12 - 34.893 I'm blanking on its name, but it talks about a check

01:12 - 37.862 when they had the physical control of the check, they had the property

01:12 - 41.099 when the property was cashed and the funds gone lower.

01:12 - 44.169 Court said, yeah, you no longer in possession here.

01:12 - 45.236 It's different

01:12 - 46.538 because you have the retention of

01:12 - 50.299 that money, because it was a direct deposit into the account

01:12 - 52.944 and then transferred into the mortgage.

01:12 - 55.914 How do you know that the only evidence of record

01:12 - 59.308 are bank statements for two months?

01:13 - 02.487 How did how did you prove

01:13 - 05.647 how did you prove the facts that you just stated

01:13 - 08.793 that the money was used because this was an account

01:13 - 12.087 with both her grandmother and her mother

01:13 - 15.600 in the mother's Social Security payments

01:13 - 18.627 were also being paid into the same account.

01:13 - 23.575 So how did you prove that mortgage payments were made

01:13 - 28.237 with the retained Social Security benefits from the grandmother?

01:13 - 29.382 Thank you, Your Honor.

01:13 - 34.176 So in the stipulation of facts, the facts were that.

01:13 - 38.647 I'm going to use grandmother and mother to distinguish between the two persons.

01:13 - 42.785 Mother had died previously and her death was notified.

01:13 - 46.698 And in the stipulation previous to what previous I believe

01:13 - 50.559 previous to grandmother, and I believe at that time they stopped

01:13 - 55.664 they or they stipulation that, miss

01:13 - 59.601 the paramour of defendant was on the mortgage

01:13 - 04.072 but allowed the defendant mortgage access for payment, whatnot.

01:14 - 08.553 And there was information of record, a stipulation that she was unemployed

01:14 - 11.990 for periods of time and did not have an income from that.

01:14 - 16.251 The trial court, in the light industrial to the Commonwealth, inferred

01:14 - 19.097 that the proceeds coming in were used to pay the mortgage,

01:14 - 22.825 that insurance money that was the only money going into the account. Yes.

01:14 - 26.571 That then so yeah, it's a thin read though,

01:14 - 30.809 because then every one of these cases becomes an accounting exercise.

01:14 - 35.537 It's it's sort of a you see the problem, you know, it's like a,

01:14 - 40.375 it's an actuarial, engagement every time you're looking

01:14 - 43.388 dollars in, dollars out.

01:14 - 44.412 It seems like

01:14 - 46.958 your argument would

01:14 - 50.819 would amount to there's no statute of limitations on RSP.

01:14 - 54.556 Well, that's what forensic accountant are for, right? Yes.

01:14 - 58.870 But you only there's only two bank records

01:14 - 01.897 in the record for a couple of months.

01:15 - 06.535 I mean, who did the forensic accounting here

01:15 - 08.547 based on why.

01:15 - 11.573 It's nothing in the record.

01:15 - 14.085 I will defer to what the stipulated record

01:15 - 16.321 was at the time of the stipulated bench trial.

01:15 - 18.690 What is in there is all that's in there.

01:15 - 21.493 I can't comment anything that's not in there.

01:15 - 24.362 But there was a stipulation and it was entered on the record.

01:15 - 28.500 It was it was marked as an exhibit, as well as corresponding

01:15 - 31.493 exhibits to the stipulations to which the parties agreed.

01:15 - 34.739 So when, when would the statute,

01:15 - 38.500 the statute of limitations, in your view, begins to run?

01:15 - 41.579 When what in.

01:15 - 45.374 And I'm going to ask this in which way the theft by deception or the rap

01:15 - 48.207 because I think they are different. Start with this step by step. Okay.

01:15 - 50.588 So historically we look

01:15 - 53.591 at when is deception discovered.

01:15 - 57.152 We've argued in our brief that when the defendant

01:15 - 01.132 stopped actively concealing the body, I stopped hiding.

01:16 - 03.167 The fact that grandma was dead

01:16 - 07.029 could be a definitive place to say, this is when the deception ends.

01:16 - 10.699 This is when the statute of limitations begins.

01:16 - 14.879 Is that when defendant moved and left the body in a basement? Yes.

01:16 - 17.549 Because that's when she lost control over the body.

01:16 - 20.051 And that's when she lost her ability to deceive.

01:16 - 23.054 That grandmother was still alive, that wanted to know

01:16 - 26.081 who the who the body was before you could.

01:16 - 30.695 Oh, I agree, and I also think you could also say

01:16 - 35.266 at the identification of grandmother when her remains were identified

01:16 - 39.037 as being her and the full deception covered, it

01:16 - 41.673 kind of makes sense, because if the grandmother was alive

01:16 - 46.911 and was saying to the, relatives, yeah, cash my checks for me,

01:16 - 51.373 help me do my banking, why would you have any inkling that something was amiss?

01:16 - 54.953 Well, and that's why the checks stopped in 2010

01:16 - 58.456 when they sent out the Centurion letters, when she would have turned 100.

01:16 - 01.483 Is that when Social Security does these letters?

01:17 - 03.361 I think it's part of their normal.

01:17 - 04.196 Just checking in,

01:17 - 07.823 making sure that the right recipient is receiving these types of checks.

01:17 - 09.601 And there was no response.

01:17 - 14.939 And the response from SSA was, all right, get in contact with us.

01:17 - 16.007 Again.

01:17 - 19.801 Fraud, as I say, knew she had moved or what have you.

01:17 - 21.913 There was no indication of her death.

01:17 - 23.081 How was the body?

01:17 - 28.553 I know the body was discovered by the new owners of the home

01:17 - 31.856 that defendant, say cated when they found a locked

01:17 - 35.317 freezer in their basement and caused it to be opened.

01:17 - 38.286 But how did Social Security learn of that?

01:17 - 43.158 It didn't.

01:17 - 46.938 They didn't they just they had already cut it off right after.

01:17 - 48.406 They got no response.

01:17 - 50.041 That was it. Then.

01:17 - 51.876 Yeah. They stopped the checks back in 2010.

01:17 - 53.511 There were no checks from that point forward.

01:17 - 56.514 That goes to my question, which is theoretically,

01:17 - 59.675 the deceptions stopped when the checks ended,

01:17 - 02.744 not when the body was discovered, which was eight years later.

01:18 - 04.288 That would only be true

01:18 - 08.383 if SSA knew that the reason the checks should stop is her death.

01:18 - 09.662 Why is that?

01:18 - 12.096 Why under the statute limit? I'm sorry.

01:18 - 14.098 Yeah. Just as Danny was about to ask.

01:18 - 15.500 That's better than I would.

01:18 - 19.194 At that point in time, her deception ended.

01:18 - 23.465 You know, at that point in time, her deception was still ongoing.

01:18 - 25.009 That's. But.

01:18 - 27.812 But was it still ongoing?

01:18 - 31.382 I mean, isn't there a different crime that could have been charged

01:18 - 34.843 which is failing to disclose, failing

01:18 - 39.114 to correct the misrepresentation for which she was not charged with?

01:18 - 41.726 I am unfamiliar with that

01:18 - 44.753 particular statute, but

01:18 - 48.766 failing to act, it's failing to correct the false impression.

01:18 - 51.860 It's, section 3820283.

01:18 - 55.106 And it wasn't charged in this case? No.

01:18 - 58.209 So I'll focus on the was charged is when we look at

01:18 - 01.236 what historically the case has been with death with deception.

01:19 - 05.116 The deception has to be more than a suspicious suspicion.

01:19 - 08.376 And it has to be an act of I am being deceived.

01:19 - 13.591 At this point, SSA had no reason to believe that they were being deceived.

01:19 - 17.428 To go back to Justice White's earlier hypothetical two,

01:19 - 20.455 opposing counsel about, hey, look, steal the ring.

01:19 - 24.001 If he doesn't know that his ring has been,

01:19 - 28.430 taken by the deceptive act of justice, who would never be deceptive.

01:19 - 29.141 Could add to that.

01:19 - 32.734 But add to that hypothetical, then, then I.

01:19 - 33.812 Then I fence it.

01:19 - 36.772 You know, I spend the money. Money's long gone.

01:19 - 44.880 Or, because

01:19 - 48.617 under your theory, I guess I could still be prosecuted.

01:19 - 52.354 The only scenario in which I couldn't

01:19 - 55.099 is, is if I, is.

01:19 - 58.236 I guess if I went over to the Social Security office

01:19 - 01.263 and gave them the money back.

01:20 - 03.875 I mean, that there's no

01:20 - 07.169 there's no point at which the limitations period is going to.

01:20 - 09.614 And it's going to kick in here.

01:20 - 13.651 No, it kicks in when the deception is made.

01:20 - 16.387 Okay. I'll give you an example. I'll use this case.

01:20 - 21.183 So they discovered the identity of grandmother in as the remains.

01:20 - 23.761 And then we do nothing.

01:20 - 26.788 We sit on it, we wait

01:20 - 30.168 five and a half years go by, we file, you kick it

01:20 - 32.069 because Commonwealth, you did nothing.

01:20 - 34.005 For five and a half years.

01:20 - 37.732 I would be in agreement because the deception was known.

01:20 - 39.343 It was made aware.

01:20 - 41.145 It was not mere suspicion.

01:20 - 43.581 It was an actual knowledge of deception.

01:20 - 46.517 But you're you're almost asking us to extend the discovery rule.

01:20 - 49.644 I mean, if Justice Daugherty and I were in a DA's office 30 years ago,

01:20 - 51.255 and I had my favorite pen

01:20 - 54.282 in the DA's office, and all of a sudden, one day disappeared.

01:20 - 57.662 If I'm talking to Justice Daugherty six months ago, and he says,

01:20 - 59.363 remember your remember your favorite pen?

01:20 - 02.099 I took that off your desk 35 years ago.

01:21 - 03.123 And I said, gee,

01:21 - 04.836 where's where's it now?

01:21 - 07.438 Well, it ran out of ink ten years ago when I got rid of it.

01:21 - 10.465 And we prosecute him for for stealing my pen

01:21 - 12.944 because that seems to be.

01:21 - 13.912 I mean, I just discovered

01:21 - 17.748 that he stole my pen 32 years ago, but the pen ran out of ink ten years ago.

01:21 - 19.750 Can he be prosecuted for stealing my pen?

01:21 - 20.719 Because that seems to be

01:21 - 23.855 what you're suggesting here, which is application of a discovery rule.

01:21 - 27.983 I just discovered that my pen was, in fact, stolen by Justice Daugherty

01:21 - 29.294 32 years ago.

01:21 - 31.395 But the pen run out of ink ten years ago, and he got rid of it.

01:21 - 34.422 So you no longer retains it or retains the benefit of it.

01:21 - 36.834 Where does the statute run and where does it end?

01:21 - 38.378 Is what I'm really trying to find out.

01:21 - 42.140 And more

01:21 - 45.166 importantly, I mean, can you can you address one other point?

01:21 - 47.245 Sure. Maybe a rule of entity.

01:21 - 50.481 I mean, if we're if we're interpreting these statutes, is that what the general.

01:21 - 54.552 Assembly really intended, that it should be kind of this ongoing theft?

01:21 - 58.213 And we can therefore there's there would seem to be no statute of limitations.

01:21 - 02.117 Your honor, if you want more grandmas in freezers,

01:22 - 05.329 this is how you get more grandma's in freezer when grandma's in freezers.

01:22 - 07.231 If I was the York County District Attorney's office,

01:22 - 09.967 I might have prosecuted her for some other crime.

01:22 - 11.903 Not really. The theft of of.

01:22 - 15.806 And what happened 20, 30 years ago like we did, we also prosecute

01:22 - 17.108 for abuse of a corpse.

01:22 - 19.977 There was no indication of cause or manner of death.

01:22 - 23.071 So there was no other crime other than what she was charged with.

01:22 - 24.615 So there was no overcharging here.

01:22 - 27.985 We did what we could with a body that had been in a freezer

01:22 - 31.146 and had been in a decomposition for years.

01:22 - 35.116 And, well, with regard to justice McCaffrey's question,

01:22 - 39.430 in your brief, you refer to the quote unquote continuing cover up.

01:22 - 45.593 Doc doctrine shared with me how that is aligned with 6552 date.

01:22 - 49.106 So the idea behind both

01:22 - 52.434 is that there's an ongoing deception fraud.

01:22 - 56.905 What we are arguing is that when there are active steps taken

01:22 - 00.308 to continue to conceal or cover up

01:23 - 05.189 the deception, the fraud, that is what extends the statute of limitations.

01:23 - 05.891 For example.

01:23 - 09.660 And here it was, the active placement of grandmother

01:23 - 12.988 in the trash bags in the freezer on her property.

01:23 - 17.125 It extended to when she moved and took the freeze her with her.

01:23 - 20.295 This is an ongoing continuation of the deception

01:23 - 25.109 she is preventing anyone not just SSA, but friends, family,

01:23 - 28.937 everyone from discovering that grandma is dead.

01:23 - 33.408 The only reason that grandma is discovered

01:23 - 37.278 is because she no longer is actively concealing the body.

01:23 - 39.991 Within that freezer.

01:23 - 43.861 Had she taken the freezer with her, it would have been an ongoing, continuous

01:23 - 47.989 deception because she's continuing to exert control over their means

01:23 - 51.092 to prevent the discovery of grandma's death.

01:23 - 51.937 The council.

01:23 - 55.830 If you were to go back to justice, McCaffrey's hypothetical,

01:23 - 00.969 let's say in year three, justice McCaffrey is having

01:24 - 03.147 a soda

01:24 - 06.417 with Justice Daugherty and says, you know,

01:24 - 10.478 I was thinking about my favorite pen that I lost when I was at the DA's office.

01:24 - 11.989 Do you know ever what happened to it?

01:24 - 14.792 And just to her, he goes, oh, no, I never saw it.

01:24 - 17.094 Don't even know what you're talking about.

01:24 - 19.930 Fast forward two years after that, McCaffrey goes,

01:24 - 22.957 you know, I just had the strangest dream about my favorite pen again.

01:24 - 26.003 And and you know Justice Daugherty,

01:24 - 28.939 are you sure you don't know what happened to my favorite pen in Justice Daugherty

01:24 - 29.641 I never saw it.

01:24 - 32.667 What are you talking about? I have no idea.

01:24 - 35.813 Is is he continuing?

01:24 - 38.282 And as opposed to just a theft,

01:24 - 40.985 which is one thing, is he continuing?

01:24 - 44.955 Acts of this are those continuing acts of deception that would cause

01:24 - 48.983 the statute of limitations to continue to, to be told.

01:24 - 52.854 You bring up a fantastic point, and I'd like to expand on it

01:24 - 56.200 because you said, is this just a theft or

01:24 - 59.203 the subsequent deception?

01:24 - 00.905 There are multiple theft charges.

01:25 - 06.634 The theft by deception requires a false impression as to a status, a law intent.

01:25 - 09.613 Deception is part of the initial crime.

01:25 - 13.675 If justice work just stole the soda pop or the,

01:25 - 16.711 pen or whatever item.

01:25 - 19.124 Yep. I'm in

01:25 - 22.417 Pittsburgh, I represent we're in Pittsburgh, so it's pop.

01:25 - 27.255 I tried, I tried, you tried to please everybody, and that was.

01:25 - 28.200 That was good.

01:25 - 29.333 Thank you.

01:25 - 32.002 Hopefully, I will also please you to a victory.

01:25 - 36.397 But the deception isn't part of the initial theft.

01:25 - 39.677 Here it is, then. Not.

01:25 - 43.905 Or the defendant not notifying SSA is creating the false impression.

01:25 - 46.784 So it's an ongoing part of the initial crime.

01:25 - 49.019 And that's the distinction

01:25 - 52.046 I would hope a prosecutor would not, 30 years later,

01:25 - 55.159 prosecute a pen theft.

01:25 - 58.586 But in the hypothetical posed to me,

01:25 - 02.123 if there was initial deception used to steal the pen

01:26 - 05.002 under what I have suggested today

01:26 - 08.329 and under the similar circumstances of this case, you could.

01:26 - 13.811 However, if it was your garden variety, I steal it and then I lied to you later.

01:26 - 16.213 Those are two distinct acts here. Theft.

01:26 - 21.509 Deception by deception does require deception as part of the theft.

01:26 - 23.288 All right.

01:26 - 25.756 Are there any other questions from us in Bartow?

01:26 - 28.783 Thank SSA know about this case?

01:26 - 31.028 I'd have to call and ask SSA.

01:26 - 33.764 Interesting because in order to get the extension

01:26 - 40.195 of the statute of limitations, the victim has to discover

01:26 - 43.440 after the five year period

01:26 - 48.779 and I couldn't see anything in the record that would indicate that the victim,

01:26 - 51.949 who is Social Security Administration, knows

01:26 - 54.976 anything about this person's.

01:26 - 59.790 I wish I had a better answer for you other than, but no one's getting in.

01:26 - 02.526 No one's going to answer, I know that, yeah.

01:27 - 06.955 You're relying on the additional three years. Yes.

01:27 - 08.800 How do you do that?

01:27 - 11.826 If the victim goes in, discover the fraud.

01:27 - 15.839 You're you're counting

01:27 - 20.735 discovery of the deception, which is the completion of the act.

01:27 - 25.006 And using that same discovery

01:27 - 29.077 for the extension of the five year statute of limitations.

01:27 - 34.959 But the discovery requires the victim to discover.

01:27 - 37.986 And you don't have that here.

01:27 - 39.697 I can only rely on the record.

01:27 - 42.600 I understand what Your Honor is saying.

01:27 - 44.101 I would submit that

01:27 - 46.737 once you find a dead body.

01:27 - 48.072 Now, that doesn't I.

01:27 - 53.635 I understand they didn't find the dead body, and apparently SSA never discovered

01:27 - 58.349 that there was a, theft by deception, which is what you require

01:27 - 01.376 to get the three year extension of the statute of limitations.

01:28 - 04.221 Yeah, that's surprising, isn't it?

01:28 - 06.090 That Social Security was not.

01:28 - 07.691 Well, they didn't count them all.

01:28 - 11.586 Was there any restitution in this case after the conviction? No.

01:28 - 14.689 Well, because SSA can't be recognized as a victim

01:28 - 17.801 and so no restitution could be awarded.

01:28 - 19.303 What do you mean?

01:28 - 23.707 So the way the statute reads, as I understand it, is SSA,

01:28 - 26.910 because of its governmental agencies status, could not be

01:28 - 30.648 the recipient of the restitution in this matter that was litigated.

01:28 - 32.249 I think, in post sentence motions.

01:28 - 34.184 Please don't hold me to that.

01:28 - 37.087 But ultimately, as I say, it could not be reimbursed for the,

01:28 - 38.489 well, that would be your argument.

01:28 - 39.590 The justice done to you

01:28 - 44.085 that that says SSA is not a victim because it's a government agency.

01:28 - 47.388 The victim is the Commonwealth, so there is no victim.

01:28 - 50.467 So you cannot have an extension of the statute of limitations.

01:28 - 53.828 That's the only way the statute is extended.

01:28 - 56.140 Then you're going to see a bill

01:28 - 59.834 if that and the statute of limitations that can't be that then.

01:29 - 03.681 But if you do that, then you incentivize every person

01:29 - 07.075 to deceive the government with no consequence and no penalty.

01:29 - 10.921 You encourage the act of misconduct, not doing anything.

01:29 - 14.816 Reading the statute that says if the victim discovers the thought,

01:29 - 19.296 I mean, that's what the statute says, then it's our job is not to write the law.

01:29 - 22.066 Our job is to interpret it. The General Assembly's.

01:29 - 25.093 And if we interpret the law to mean that,

01:29 - 30.531 then that is a free pass to hide bodies and freezers, to not report crime,

01:29 - 35.312 to hide any misconduct, and with no consequence.

01:29 - 37.114 That's not the interpretation.

01:29 - 39.983 That's an absurd result for that here at all.

01:29 - 44.321 All it means that there's no extension of the five year statute of limitations.

01:29 - 49.283 You're arguing that the statute of limitations began to run in, what, 2019?

01:29 - 51.962 From 2019

01:29 - 55.966 to 2018, the earliest, I would say it would begin.

01:29 - 59.103 And for Kennedy, the court be 2018 the latest.

01:29 - 01.171 I think it would run is the identification.

01:30 - 04.041 I think you could pick any date within there, and it would be a

01:30 - 08.746 justified starting point, either when the deception ends because she loses

01:30 - 13.975 control over the body in 2019 upon this discovery,

01:30 - 18.021 or in 2020, when it's when lanes are identified for Canada.

01:30 - 19.890 The court, I think you can make legitimate

01:30 - 22.917 and supportable arguments for all those at start points.

01:30 - 26.387 Regardless, 11 days after she's identified charges are filed,

01:30 - 29.299 all of that would be within the extension.

01:30 - 31.668 But I would also note that I'm not asking for an extension.

01:30 - 33.237 I'm saying the fraud.

01:30 - 36.197 I, I should clarify that statement asking for an,

01:30 - 38.776 mediation or three years.

01:30 - 39.377 Correct.

01:30 - 44.581 I'm asking for the basic principle that when you have a death by deception

01:30 - 46.583 with an ongoing deception,

01:30 - 49.644 the statute of limitations start when the deception is uncovered,

01:30 - 53.514 as is part of the elements that have to be proven as the statute,

01:30 - 56.493 say, victim or aggrieved party.

01:30 - 59.520 Maybe that's the same thing, but

01:31 - 03.324 if the victim discovers the fraud after,

01:31 - 06.570 I don't have the statue in front of me, but I will defer.

01:31 - 09.564 Obviously, I think, Justice Donahue does.

01:31 - 12.242 Which that you can.

01:31 - 15.269 So I'm looking I'm looking at the

01:31 - 18.282 65, 65 to see.

01:31 - 20.751 Excuse

01:31 - 23.754 aggrieved party grace and great party.

01:31 - 28.292 Well, and it's aggrieved party or by a person who has a legal duty

01:31 - 33.354 to represent an aggrieved party and who is themselves not a party

01:31 - 36.567 to the offense.

01:31 - 37.268 Okay.

01:31 - 39.436 Well, we have a lot to look at here.

01:31 - 41.205 And, I thank you both.

01:31 - 43.240 Very well argued.

01:31 - 46.143 Our next case is State College Area School District

01:31 - 49.170 versus the Pennsylvania Department of Human Services.

01:31 - 52.783 This case asks the Pennsylvania Supreme Court to decide

01:31 - 56.744 whether a public school district's before and after enrichment program

01:31 - 01.115 must be licensed by the Department of Human Services, like a daycare,

01:32 - 05.286 or whether it operates independently under the public school code.

01:32 - 10.324 The program at the center of this case is called seal C.L.,

01:32 - 13.694 short for Community Education Extended Learning.

01:32 - 17.765 The State College area School District launched it in 2013

01:32 - 20.902 as an after school enrichment program for elementary students.

01:32 - 25.349 Seal offers a mix of academic support, recreation

01:32 - 29.844 and cultural activities, as well as giving homework help for its students.

01:32 - 33.524 It's designed for families who want their children

01:32 - 37.885 to remain at school for structured learning after the school day ends.

01:32 - 42.423 In 2016, inspectors from the Department of Human Services

01:32 - 45.669 visited several seal sites and observed that

01:32 - 49.230 the program involved groups of seven or more unrelated children.

01:32 - 54.878 DHS therefore concluded that Seal was operating as a child care facility

01:32 - 57.905 without an appropriate license by the Department.

01:32 - 01.485 The department issued cease and desist letters

01:33 - 04.612 directing the district to apply for child care licensure.

01:33 - 09.493 The district challenge that, arguing that seal was not child care,

01:33 - 13.354 but rather an educational program governed by the public school code.

01:33 - 17.701 After several rounds of administrative review,

01:33 - 21.672 the Pennsylvania Commonwealth Court sided with the department, ruling

01:33 - 25.967 that Seal met the statutory definition of a children's institution,

01:33 - 29.370 an entity that must be licensed by the Department.

01:33 - 33.474 The State College Area School District has now appealed to the Supreme Court

01:33 - 35.052 with two questions

01:33 - 38.846 whether the school district, as a political governmental subdivision,

01:33 - 44.552 is exempt from DHS regulation, and whether the public school code itself

01:33 - 47.722 independently authorizes programs like Seal.

01:33 - 52.269 The district argues that the school code gives it broad authority

01:33 - 55.363 to operate programs for education and recreation.

01:33 - 59.142 The provision, known as section 502,

01:33 - 03.170 allows districts to establish such other schools or departments

01:34 - 07.618 as the directors of the school district may see proper language.

01:34 - 12.122 The district, the district says, clearly covers enrichment programs like.

01:34 - 17.227 Seal, pointing then to the Human Services Code, that which gives the department

01:34 - 20.888 the authority to regulate organizations, corporations and agencies.

01:34 - 25.202 The district argues that because it is its own governmental political

01:34 - 30.364 subdivision, that the Department has no statutory authority to regulate it.

01:34 - 33.977 Rather, the department only has authority over

01:34 - 37.004 non-governmental entities such as corporations.

01:34 - 40.751 In the district's view, seal is an extension

01:34 - 43.778 of the school day, not a private daycare.

01:34 - 48.315 And the Commonwealth Court's decision against that undermines local control

01:34 - 50.284 over community education.

01:34 - 51.729 The district

01:34 - 55.289 also warns that the decision if this decision stands.

01:34 - 59.427 Every after school activity, from chess club to homework help

01:34 - 02.763 could require a DHS license.

01:35 - 06.777 The Department of Human Services and Response

01:35 - 09.937 defends its oversight for four key reasons.

01:35 - 14.942 First, DHS says that seal clearly fits the statutory definition

01:35 - 19.022 of a children's institution, a term that includes public agencies

01:35 - 22.750 or corporations that receive or care for children.

01:35 - 25.829 Second, even if a school district were viewed

01:35 - 29.790 as a governmental political subdivision rather than a public agency,

01:35 - 32.803 DHS urges the court

01:35 - 36.530 to read the definition in the Human Services Code broadly,

01:35 - 40.301 since seal functions as a child care under the code.

01:35 - 44.681 The department notes that the program receives no oversight

01:35 - 47.050 from the Pennsylvania Department of Education

01:35 - 50.211 and is not explicitly authorized under the public school Code.

01:35 - 54.648 Third, the US argues that the public school code itself

01:35 - 57.394 does not authorize seal.

01:35 - 00.955 And the department emphasizes that PD has agreed

01:36 - 04.158 that there is no regulatory authority over Seal,

01:36 - 08.796 confirming that jurisdiction rests with the Department of Human Services.

01:36 - 10.874 And finally,

01:36 - 13.901 even if the public school code does authorize the program,

01:36 - 17.080 the Department of Human Services contends that nothing in the code

01:36 - 20.141 exempts the district from state licensure.

01:36 - 22.319 The statutes can coexist.

01:36 - 25.813 According to DHS, the district may run Seal,

01:36 - 29.049 and DHS may still require a license.

01:36 - 32.596 The Supreme Court's ruling here will determine whether Pennsylvania's

01:36 - 36.466 school districts can run before and after school programs, with

01:36 - 39.727 or without a Department of Human Services license.

01:36 - 44.975 With that background, the court will now hear oral argument in State College Area.

01:36 - 48.836 School District versus the Pennsylvania Department of Human Services.

01:36 - 50.782 Good morning.

01:36 - 52.149 Your honors may have pleased the court.

01:36 - 53.583 My name is Timothy Edward Gill.

01:36 - 56.686 Spock and I have the privilege of representing the State College Area.

01:36 - 57.587 School District.

01:36 - 58.356 Present with me

01:36 - 02.249 is my co-counsel as well as the solicitor for the school district, Scott Eder.

01:37 - 05.028 This case involves overreach

01:37 - 08.956 in a regulatory manner by the Department of Human Services.

01:37 - 13.527 In an effort to try and regulate an after school educational program

01:37 - 16.931 that included.

01:37 - 19.242 Homework assistance, Stem

01:37 - 24.104 programs, cheat sheet teaching students, Chinese teaching students, and art,

01:37 - 27.675 as well as instruction in martial arts that was created.

01:37 - 31.221 The record is clear in response to requests from families

01:37 - 34.448 within the district for additional educational programing.

01:37 - 34.926 What?

01:37 - 39.253 Why is it overreach when 498 other school districts

01:37 - 45.793 are, comply with DHS, the authority for these after school programs?

01:37 - 49.739 I mean, are you seriously representing to this court

01:37 - 55.111 that, the, that the Center county, the State College Area.

01:37 - 58.305 School District has reinvented the wheel and created,

01:37 - 02.919 you know, the state of the art, I guess Chinese language program.

01:38 - 06.847 I guess you're telling us, that is unlike any other.

01:38 - 11.385 And like, unlike any other after school program in our commonwealth.

01:38 - 15.632 Your honor, the there is nothing in the record about those other programs,

01:38 - 18.692 so I can't speak to what those programs do or do not involve.

01:38 - 21.829 However, it is our understanding that no one has ever challenged it.

01:38 - 25.432 And if I may give a hypothetical and back the along

01:38 - 28.445 the back of my property is an alleyway that backs up

01:38 - 31.472 against a variety of properties and people, people park there.

01:38 - 35.142 And if I were to start issuing citation because I don't like where they're parking

01:38 - 38.321 and say the first five people say, well, Gil's box, a lawyer,

01:38 - 40.690 he must know what he's doing, and they pay me the citation.

01:38 - 44.084 But then that's the sixth or seventh or the ten person says, well, now

01:38 - 46.162 that's not quite right. And they challenge it.

01:38 - 48.798 That's not evidence that I have the legal authority to do it.

01:38 - 51.892 We look to the statute to say, does the statute provide someone

01:38 - 53.370 the authority to do that?

01:38 - 56.434 And in this circumstance, the mere fact that other school entities have said,

01:38 - 59.910 maybe it's just the easiest way to go for any number of reasons.

01:38 - 02.812 In addition to that, we don't have any of the details about these.

01:39 - 04.481 We don't know if they're educationally based.

01:39 - 07.484 We don't know if they're operated solely by school districts,

01:39 - 09.219 or if they're in conjunction with other entities

01:39 - 11.054 that may fall under the jurisdiction.

01:39 - 15.082 This this particular program is operated solely by the school district.

01:39 - 18.285 So it's hard to sort of we're not sure if we're comparing apples to oranges,

01:39 - 21.598 but even if it were the same thing, the mere fact that someone else

01:39 - 24.625 hasn't challenged this doesn't give the department the authority,

01:39 - 27.828 the statute is what we look to to determine who has the authority here.

01:39 - 31.675 Clarify for me your position, if I understand

01:39 - 35.536 you correctly, is this program is based upon 502.

01:39 - 36.980 Correct? Correct.

01:39 - 40.574 And in 502, the specific language at the end said

01:39 - 46.723 said additional schools or departments, when established, shall be an integral

01:39 - 49.883 part of the public school system in such school,

01:39 - 54.521 in such school district, and shall be so administered

01:39 - 59.660 if it's a part of the public school system and public schools are free.

01:39 - 03.697 Why are you charging people money to attend this

01:40 - 06.934 integral part of a free public school system?

01:40 - 11.748 I'm. The

01:40 - 14.851 short answer is I'm not sure that that issue was litigated below,

01:40 - 17.620 so I'm not sure that any of the long term practice of the statute

01:40 - 19.756 is going to influence how I make the case.

01:40 - 24.585 Considering DHS has regulations for child care agencies.

01:40 - 29.623 Also, my understanding is this program that your school district is running

01:40 - 32.902 doesn't require mandatory attendance, such

01:40 - 35.896 as attending a public school does.

01:40 - 38.174 Correct. Correct.

01:40 - 42.136 So how is that an integral part of the public school system

01:40 - 46.883 when you're not filing the petitions for truancy,

01:40 - 51.512 for failing to attend these integral part of your public school system?

01:40 - 55.025 Sure. I'm having problems digesting. Sure.

01:40 - 58.052 And I think the the school code provides

01:40 - 01.731 school districts a vast authority to procreate programs.

01:41 - 03.099 And and first of all, I don't know that

01:41 - 06.126 the fact that they charge a cost is is the answer here.

01:41 - 08.571 I think let me give you another another analogy.

01:41 - 12.142 Every school district in the Commonwealth has invites middle school students

01:41 - 14.577 to a middle school dance. They charge a fee for that.

01:41 - 15.246 You're free to go.

01:41 - 17.814 You're free not to do your activity.

01:41 - 18.815 It's not mandated.

01:41 - 21.842 And it's not a public school mandated program.

01:41 - 24.721 And it's not integral to the public school system.

01:41 - 27.748 So that I don't see that argument even a little bit.

01:41 - 29.492 Okay. I understood, Your Honor.

01:41 - 32.062 And the one other question along those.

01:41 - 32.696 Sure.

01:41 - 37.891 There's no mandatory educational component to this program.

01:41 - 40.561 Correct. In the sense of students

01:41 - 42.606 in any sense.

01:41 - 43.940 I mean, kids don't. Yes.

01:41 - 46.042 And that and that's it in that sense.

01:41 - 49.012 I mean, you know, you see, your question is

01:41 - 52.239 there is no requirement that any student has to go to this program

01:41 - 57.244 that in that sense, you or any, any student who's enrolled in this program

01:41 - 02.349 doesn't have to take any of the educational programs that are offered.

01:42 - 06.887 That is that is correct.

01:42 - 11.024 While they're there, if they're participating,

01:42 - 14.370 is I sorry

01:42 - 17.631 mandatory that they participate in the programs offered while

01:42 - 20.877 it is my understanding that the record creates

01:42 - 23.980 that there was a set schedule and that if students who are there

01:42 - 27.074 participate in the activities occurring at that time frame,

01:42 - 30.820 except that their parents could pick them up and take them home.

01:42 - 33.847 Even if an educational program is ongoing,

01:42 - 36.650 they don't have to stay for the educational program.

01:42 - 39.929 That is my understanding of the program.

01:42 - 40.164 Correct.

01:42 - 43.857 There is no mandatory educational component to this program.

01:42 - 48.938 I agree with that, but I do not believe that section

01:42 - 53.066 502 of the school code is so limited as to has to require,

01:42 - 57.447 and only that it must be exclusively educational.

01:42 - 01.217 For example, inspect or any and just visit one school.

01:43 - 03.052 We visited six.

01:43 - 05.455 The fact that he saw moms and dads

01:43 - 08.758 picking kids up, and kids playing board games

01:43 - 12.286 and kids playing in the playground and all these other things.

01:43 - 17.391 Isn't that, highly suggestive of child care?

01:43 - 19.702 And not schooling?

01:43 - 20.737 I disagree.

01:43 - 24.474 I think because the program provides educational opportunities,

01:43 - 26.242 it is far wider than that.

01:43 - 29.045 In addition to the opportunities exist.

01:43 - 32.406 And in addition to that, section 502 of the school code

01:43 - 36.219 also provides, for example, that that schools

01:43 - 40.681 can establish libraries, gymnasiums, playgrounds.

01:43 - 44.561 Those provisions are specifically in that version

01:43 - 47.564 of the code things apropos of what Justice Daugherty was saying.

01:43 - 51.100 These are things that are adjacent to recognized

01:43 - 54.928 components of the school day.

01:43 - 58.641 Even a nap nap time is in kindergarten.

01:43 - 59.976 So, you know,

01:44 - 03.136 nobody's getting a lesson during nap time, but it's part of the school day.

01:44 - 07.650 But this looks a lot like, looks a heck of a lot

01:44 - 12.613 like after school childcare for moms and dads who are working,

01:44 - 16.116 like, goes on all over the Commonwealth, probably all over the country.

01:44 - 19.429 And then they can come and get their child,

01:44 - 22.456 when they're back from work and they pay for this.

01:44 - 24.801 Why is it not that? Why?

01:44 - 26.769 Why is what you have.

01:44 - 29.796 You know, the the newest thing under the sun.

01:44 - 33.009 I again, I can't comment on other programs.

01:44 - 36.503 What other programs are doing that's not in the record, so I can't comment on that.

01:44 - 40.016 I can tell you that the program that was established by my client

01:44 - 43.043 in this case, was an after school program

01:44 - 47.423 specifically designed to provide educational opportunities.

01:44 - 50.617 And the record is quite clear that was the intent of this program.

01:44 - 54.087 And certainly whether it's to, again, whether families are using it

01:44 - 57.567 partially as a, as a day sort of to have their children

01:44 - 59.902 stay after school for purposes of childcare.

01:44 - 03.797 The program is designed as an educational program.

01:45 - 06.442 And again, the record is quite clear on that.

01:45 - 09.312 You know, and again, I'll, I'll point to, you know,

01:45 - 12.339 the department takes a rather bizarre position

01:45 - 17.177 that section 502 of the school code is the Third Circuit has said permits us

01:45 - 21.081 to create a condom distribution program and say that's educational.

01:45 - 24.518 I'm sorry. The the, I apologize.

01:45 - 28.532 Sure.

01:45 - 31.558 The department takes the rather bizarre position

01:45 - 34.537 that the third, as a Third circuit has acknowledged in section

01:45 - 37.840 502 of the school code, permits us as a school district

01:45 - 41.802 to create a condom distribution program, because apparently that's educational.

01:45 - 44.414 That's educational enough in that case.

01:45 - 45.715 So, counsel, is it not?

01:45 - 49.109 I mean, part and parcel of that kind of distribution program

01:45 - 52.822 was a requirement that kids who were getting condoms

01:45 - 56.950 had to be educated on abstinence and how to use the condoms.

01:45 - 59.462 That was part and parcel of that program.

01:45 - 03.357 No Cline, no education on use and abstinence, no condoms.

01:46 - 07.994 I mean, that was there was an educational element to that program.

01:46 - 11.231 And I would suggest that this has an educational component as well.

01:46 - 14.544 It has an educational component that uses a wide variety of programs

01:46 - 16.679 to students who are present for the programing.

01:46 - 19.423 What do they charge? I'm sorry, what did they charge for the condoms?

01:46 - 22.885 I don't know the answer to that.

01:46 - 25.288 And I.

01:46 - 28.191 I and again, I don't think in your honor I understand your position,

01:46 - 31.127 but there's nothing in the school code that indicates that

01:46 - 34.254 a charge or not a charge is the decisive factor.

01:46 - 37.266 And for example, there's a thin line between

01:46 - 41.027 childcare, daycare, after school care

01:46 - 45.942 and an educational program in this case is an example of that.

01:46 - 48.969 But it seems that the,

01:46 - 52.849 facts here

01:46 - 56.786 dictate that it's truly an after school program.

01:46 - 00.414 It's truly a child care program with some educational opportunities.

01:47 - 03.559 And, you know, and I think if you take a look at the factual history

01:47 - 06.787 of this case, that the district had been operating

01:47 - 10.867 through traditional childcare programs, through other agencies

01:47 - 14.270 and ended those programs in response to concerns from parents

01:47 - 17.497 who said they wanted more educational opportunities.

01:47 - 20.543 And the record is very clear that that was the deciding factor

01:47 - 21.811 for what the school district did.

01:47 - 24.480 In this case, the program that was being functioned

01:47 - 28.084 operating was not responsive to families like because families

01:47 - 29.619 wanted educational purposes.

01:47 - 32.203 And so I guess you could have extended the school day by an hour.

01:47 - 34.357 I mean,

01:47 - 37.384 right, there's nothing that requires you to

01:47 - 38.728 create an after school program.

01:47 - 41.464 You could just stand at the school day.

01:47 - 45.158 Certainly the school district would have the authority to do that, whether or not

01:47 - 49.105 whether or not families would be other families might be unhappy with that.

01:47 - 50.807 Well, but isn't that the point in that?

01:47 - 52.942 That's the point is it's optional.

01:47 - 54.811 Is is that's kind of the point.

01:47 - 57.847 But I, we spent a lot of time on this idea

01:47 - 01.141 that you have the authority to do this, but we're really not.

01:48 - 04.644 I think the more interesting question is what is the department's authority?

01:48 - 06.856 You know, your authority is interesting.

01:48 - 09.725 Their authority, I think, is dispositive.

01:48 - 13.820 So if you go to the definitions in section in article nine,

01:48 - 17.691 child care

01:48 - 21.771 means care in lieu of parental care given for part of the 24 hour day

01:48 - 25.174 to a child under 16 years of age away from the child's home,

01:48 - 26.442 but does not include child care.

01:48 - 29.469 Furnished in a place of worship during religious services.

01:48 - 31.304 All schools would meet that definition right?

01:48 - 34.417 I would also, but under that

01:48 - 38.011 definition, all schools provide child care even during the school day, right?

01:48 - 38.655 Okay.

01:48 - 41.324 And that would be that that's sort of the concern we have.

01:48 - 44.193 What I think is interesting about that definition in article nine is

01:48 - 47.220 it does not appear in the definition of children's institution.

01:48 - 49.131 The words child care do not appear

01:48 - 52.592 in the definition of children's institution, at least at least not alone.

01:48 - 56.172 So I think the argument here is.

01:48 - 59.299 DHS is of the view that the school, that all school districts

01:48 - 03.713 are children's institutions and that they have supervision

01:49 - 07.116 over all school districts because they're children's institutions.

01:49 - 09.652 Is that your understanding of their argument?

01:49 - 11.087 That would have to be their argument.

01:49 - 11.922 Your okay. Yes.

01:49 - 14.881 So tell me why you're not a children's institution.

01:49 - 17.994 Well, for starters, because

01:49 - 22.198 the state legislature did not include anything in there in, in that provision

01:49 - 24.200 that would indicate this includes school districts

01:49 - 26.469 or for let's talk let's talk about the definition.

01:49 - 29.872 Is the school district and incorporated

01:49 - 32.866 or unincorporated organization.

01:49 - 37.079 There have been cases where the courts have recognized them in that capacity.

01:49 - 40.449 But I don't believe traditionally, no, not in a sense.

01:49 - 42.318 What do you mean, in what capacity?

01:49 - 43.386 You said incorporated.

01:49 - 48.515 I think it says no means any incorporated or unincorporated organization.

01:49 - 50.560 Does a school district fall in there?

01:49 - 52.194 I don't think they're arguing that you fall in there.

01:49 - 55.131 But do that. Do. Yeah. Okay.

01:49 - 56.532 Is it a society?

01:49 - 58.401 It is not.

01:49 - 01.237 Is it a corporation?

01:50 - 01.805 It is not.

01:50 - 05.065 It is a body corporate government, government entity.

01:50 - 09.035 Is it a public agency?

01:50 - 10.379 Arguably, yes.

01:50 - 12.982 We are a public agency in the sense of our government agency.

01:50 - 14.350 Well, are you a public agency?

01:50 - 17.377 Is the school board the public agency

01:50 - 18.021 with.

01:50 - 20.690 I'm, I'm not sure I'm following your question.

01:50 - 23.292 Well, I'm school districts and school

01:50 - 26.720 boards are somewhat independent, aren't they?

01:50 - 29.932 The school board is considered the local education agency.

01:50 - 33.827 The earlier the school district is a body corporate.

01:50 - 36.872 Yes. Okay.

01:50 - 39.642 So I think that's really where it comes down to

01:50 - 42.211 because you definitely care for children.

01:50 - 46.215 So this case seems to me to rise and fall on

01:50 - 48.351 whether you're an unincorporated, unknown corporate

01:50 - 51.645 organization, a society, a corporation or agency, public or private.

01:50 - 55.982 And if you are, you're subject to the supervision of DHS and article nine.

01:50 - 59.729 And I think the position I would take on that, though,

01:50 - 01.833 and if you are, by the way, every school district is.

01:51 - 03.900 I understood.

01:51 - 07.670 And but I think the, the, the problem with that definition is with

01:51 - 10.697 that approach is quite frankly, at least to an absurd result.

01:51 - 11.340 One does that.

01:51 - 12.209 It does.

01:51 - 14.510 DHS have authority over the entire school day.

01:51 - 18.538 There's nothing in the statute that suggests that it should be absurd.

01:51 - 21.951 The absurd result argument is always interesting to me,

01:51 - 26.255 because there is nothing we don't get to strike down.

01:51 - 28.024 Absurd statutes.

01:51 - 31.527 We use the absurd result paradigm in case of any of two,

01:51 - 33.696 potentially two reasonable interpretations.

01:51 - 36.198 And we, you know, or we throw out the absurd one.

01:51 - 39.802 But the General Assembly is entitled

01:51 - 42.796 to pass absurd statutes, and they do.

01:51 - 46.475 I think the position I would take

01:51 - 49.502 is that when the state legislature

01:51 - 51.213 passed this provision,

01:51 - 55.308 it had already given very broad authority to school districts

01:51 - 59.855 to function and to operate as they as they seem set to meet the needs as this

01:51 - 04.317 the RPI client did in this case, of the people who live in that district

01:52 - 07.163 and had they intended to include

01:52 - 10.156 school districts in this provision, they would have said so.

01:52 - 13.502 In addition to that, the position taken by the department,

01:52 - 16.663 as well as the Commonwealth Court, that school district,

01:52 - 19.766 our children's institutions, some of the time, not all of the time.

01:52 - 21.010 I don't think they can have that.

01:52 - 23.379 I think that I think you're either a child,

01:52 - 25.414 I think you're either a children's institution or you're not.

01:52 - 28.484 But I'm struggling with the definitions of DHS, and I realize

01:52 - 31.511 they're not specific to schools, but they're general.

01:52 - 35.124 And and, you know, if we can read the clear language

01:52 - 38.360 and we can read the definition of child care that say, okay, schools

01:52 - 41.354 fall within child care, they're providing they're providing child care,

01:52 - 44.333 and they fall within the definition of an institution.

01:52 - 45.801 It's over that you get.

01:52 - 49.038 You're regulated not only by the Department of Education

01:52 - 50.873 when it comes to your educational programs,

01:52 - 54.977 but in terms of your in terms of the things that can be supervised

01:52 - 57.913 under article nine. DHS also regulates you.

01:52 - 01.484 And I don't know how how that's a I don't know how it's necessarily absurd.

01:53 - 04.320 There's plenty of entities and organizations that are regulated

01:53 - 06.522 by multiple state agencies at any one time.

01:53 - 08.891 And and this just happens to be one of them.

01:53 - 11.327 And I think my response to that would be several fold.

01:53 - 16.389 And I think the department PSB filed a brief as well and outlines

01:53 - 21.437 how having DHS have authority over apparently everything that goes on on

01:53 - 25.365 schools could not possibly be with a legislature doesn't make any sense.

01:53 - 27.443 They we already have a Department of Education

01:53 - 31.271 that has regulatory authority over schools in a variety of ways,

01:53 - 34.641 different of education, regulate bathroom size.

01:53 - 36.819 There are certain regulations about school buildings

01:53 - 38.687 I don't know about specifically bathroom sizes,

01:53 - 41.423 but there are regulations related to school buildings that they have.

01:53 - 43.459 That's the odd, isn't it? Isn't it?

01:53 - 47.086 Analogous to your hypothetical about you

01:53 - 50.657 purporting to cite neighbors for parking in the alley.

01:53 - 54.594 The fact that only one out of ten, so to speak,

01:53 - 59.909 raised, an objection to this doesn't mean that all of them couldn't.

01:53 - 05.371 So it if that that that DHS might, in theory,

01:54 - 09.451 have a certain authority doesn't mean it's going to exercise it

01:54 - 12.478 in all, you know, 500 school districts or whatever.

01:54 - 16.816 But I think that comes to the second point I was going to make, which is

01:54 - 18.928 the state legislature.

01:54 - 22.464 First of all, that kind of approach would be inconsistent with what the state

01:54 - 25.725 legislature has done in terms of school districts by creation of the school,

01:54 - 30.063 because it has provided school districts authority to wait to

01:54 - 33.209 to pass regulations and policies.

01:54 - 37.313 If at the end of the day, either the Department of Education

01:54 - 39.748 or the Department of,

01:54 - 42.685 DHS is going to control every aspect, or

01:54 - 45.945 has the authority to control every aspect of what occurs in a school district.

01:54 - 49.091 Why would you give school district school boards any authority to do that?

01:54 - 50.359 They gave them that authority

01:54 - 53.386 because they invested that authority for them to make the decisions,

01:54 - 56.689 understanding that there's going to be certain areas in which

01:54 - 00.260 there may not necessarily be a need for state regulation.

01:55 - 04.240 In addition to that, if the depart, if the state legislature looked

01:55 - 07.344 at this and said, we have all these school districts operating these programs,

01:55 - 11.013 they could have given the authority to the department.

01:55 - 12.181 They didn't.

01:55 - 15.875 And in our interpretation, we don't believe that school districts

01:55 - 18.520 qualify as a chosen institution,

01:55 - 21.547 especially since when you start talking about

01:55 - 26.019 they're asking you to read into that, not only that, school districts qualify,

01:55 - 29.698 but also apparently there's all kinds of temporal limits to that.

01:55 - 32.568 That only applies to after school that they can't get.

01:55 - 35.704 I mean, I'm assuming the department is not taking the position.

01:55 - 38.731 They get to regulate the traditional school day.

01:55 - 41.710 But there's nothing in the statute that would indicate

01:55 - 44.880 that if you're a children's institution, you're only a children's institution.

01:55 - 47.983 From 3 p.m. in the afternoon until 8 a.m.

01:55 - 51.544 in the morning, when you're when you're not functioning as a traditional school.

01:55 - 52.788 All right. Because I in council.

01:55 - 57.016 Well, is it your position that your client is not a children's institution?

01:55 - 58.495 We do not believe that.

01:55 - 00.520 That's your best argument, that you're not

01:56 - 02.098 the statute.

01:56 - 05.401 The statute as defined doesn't include us in one it

01:56 - 08.504 they include a a wide variety of entities.

01:56 - 12.198 In addition to that, we have been unable to locate any case

01:56 - 16.669 anywhere or anyone has said that a Children's Institute class

01:56 - 20.707 that identifies a school district or for that matter, a political subdivision

01:56 - 23.218 as a children's institution.

01:56 - 27.122 But but I thought you I suggested earlier that,

01:56 - 30.149 your client was a public agency.

01:56 - 32.861 I would have to double

01:56 - 35.898 check the definition of public agency as it relates to this statute.

01:56 - 39.425 I think, in a general sense of a layperson's term of that.

01:56 - 41.770 I think government agency didn't. Yeah.

01:56 - 42.905 What did you call it?

01:56 - 47.500 I think a government agency would be a fair or fair qualification of what we are.

01:56 - 49.411 All right. Any other questions?

01:56 - 50.113 Thank you.

01:56 - 52.857 Thank you, your Honor. Your argument. Let's hear from the department.

01:57 - 03.392 Good morning, Your Honor. Is.

01:57 - 04.626 And may it please the court.

01:57 - 08.564 My name is Brandy Lynn Mazur, and I, along with my co-counsel, Thomas.

01:57 - 11.567 Carr, represent the department in this case.

01:57 - 13.936 The department submits that petitioners before

01:57 - 16.972 and after school child care programs are children's institutions.

01:57 - 21.143 Because whether they're a school district, whether they're a political subdivision,

01:57 - 24.646 whether they're an agency, a bodies corporate or corporation or a quasi

01:57 - 28.541 corporation, they meet the definition that that Justice Robson was describing.

01:57 - 30.853 Excuse me, under section 901.

01:57 - 32.354 Can I just pause you for a second?

01:57 - 35.157 I'm sorry. Justice.

01:57 - 38.184 You just you just said their program

01:57 - 40.863 is a children's institution,

01:57 - 45.067 but the children's institution definition does not refer to programs.

01:57 - 47.603 It refers to entities. Correct.

01:57 - 49.905 Why are you qualifying it?

01:57 - 52.841 Either the school district is a children's institution

01:57 - 55.844 or the school district isn't a children's institution.

01:57 - 58.847 Correct, Your honor, but so to be a children's institution

01:57 - 01.850 that has supervisory authority over the department,

01:58 - 04.286 they have to be engaging in some kind of child care.

01:58 - 05.310 Where do you get that?

01:58 - 09.291 I believe that comes from the definition of children's institution.

01:58 - 10.325 We shall have supervision

01:58 - 13.386 over all children's institutions who are providing child care.

01:58 - 18.033 Okay, so child care means care in lieu of parental care given for part of the 24

01:58 - 21.928 hour day to a child under 16 years of age away from the child's home,

01:58 - 23.672 but does not include child care

01:58 - 26.699 furnished in a place of worship during religious services.

01:58 - 28.777 Does in a school district.

01:58 - 32.238 By definition, always qualify as child care?

01:58 - 35.417 No, Your Honor, because during the school day

01:58 - 39.521 they are providing statutorily required education.

01:58 - 41.256 They are not providing child care.

01:58 - 44.917 So we don't have a doctrine of parents patriots for school districts.

01:58 - 49.555 During the time when the school when the children are being

01:58 - 55.204 in custody of the of the schools, in lieu of the parents parents.

01:58 - 57.306 Patrick is out the window.

01:58 - 59.541 No, Your honor, the department submits that

01:58 - 02.568 that falls under the supervision of the Department of Education.

01:59 - 04.904 So you're set. Okay, so, I mean, I think that's.

01:59 - 06.416 I think

01:59 - 09.809 that's an interesting answer is you're your your parsing jurisdiction,

01:59 - 11.386 which is not really what we're

01:59 - 14.447 talking about, mean definitions, but your position is

01:59 - 19.261 child care provided in the educational setting as required by the school

01:59 - 23.489 code is not child care under the definition in section 901.

01:59 - 26.635 Can you restate your question, please? Yeah.

01:59 - 29.805 Well child care, do you believe that our school districts

01:59 - 32.832 are taking care of our children?

01:59 - 34.176 Yes. I also believe

01:59 - 37.279 they're providing state required education.

01:59 - 39.281 The children are required to doing both.

01:59 - 40.549 Yes, they are doing both.

01:59 - 43.552 There is a lot of overlap between the Department of Education,

01:59 - 45.020 the Department of Human Services.

01:59 - 46.889 That's fair. And our regulations.

01:59 - 48.790 Yeah, I think that's fair. I'm trying to understand.

01:59 - 53.929 I'm trying to understand why the school district is not providing child care.

01:59 - 57.733 Is this is broadly defined in section 901 during the school year, during

01:59 - 02.795 during the school day, or I guess that athletic events, school dances,

02:00 - 07.166 any other time that the that we are entrusting our children

02:00 - 10.436 to the protective sphere of our school districts.

02:00 - 13.982 And so, your honor, the department's position

02:00 - 18.620 in those situations where there is dual overlap, there are certain circumstances

02:00 - 21.647 where for efficiency, either the Department of Education takes it,

02:00 - 25.618 even though both entities can license and regulate

02:00 - 29.989 one or the other can and may well very well do regulate.

02:00 - 33.926 Counselor, based upon your argument, am I understanding that to mean

02:00 - 40.142 that if we were to follow your position that every after school program

02:00 - 43.178 or extracurricular activity held by any

02:00 - 46.205 school would require DHS regulations?

02:00 - 49.851 No, Your Honor, there are in the regulations set

02:00 - 51.853 exemptions for certain types of programs.

02:00 - 55.081 So let's say, for example, the school districts, like most school

02:00 - 58.384 school districts, do operate a basketball program.

02:00 - 02.855 There is an exemption under 55, 32, 70.

02:01 - 04.967 It's a it's a statement of policy.

02:01 - 07.636 So it's a subsection A,

02:01 - 10.372 and it provides for a single purpose exception.

02:01 - 14.600 If there is a program being provided for a single for a single purpose

02:01 - 18.838 preschool age program, those programs are exempt from DHS licensure.

02:01 - 20.816 But those are not those okay.

02:01 - 22.041 So those are not

02:01 - 25.120 this program specific thing

02:01 - 28.414 that you're coming up with, though, is not in the code or in the statute.

02:01 - 30.092 The statute doesn't talk about programs.

02:01 - 32.527 It talks about entities.

02:01 - 35.697 And you're you're parsing it to support your position by saying,

02:01 - 37.432 oh, no, we don't regulate entities.

02:01 - 39.334 We regulate programs.

02:01 - 43.796 And if the program, regardless of who the who the entity is, if it's a program,

02:01 - 46.875 then it falls under section 901 as opposed to

02:01 - 50.136 an article nine as opposed to, an entity.

02:01 - 54.907 But we regulate the entities that oversee and operate the programs.

02:01 - 00.489 And here I think the distinction for the the regular school day versus the before

02:02 - 04.960 and after child care programs is one of them is required under the law.

02:02 - 07.429 The other one, the school district, decides

02:02 - 10.432 it has the discretion to decide whether or not they're going to operate.

02:02 - 15.961 But I'll stop asking the question where in 901

02:02 - 20.333 does did the General Assembly pass it the way that you're parsing it?

02:02 - 23.045 And that's is that the General Assembly did not pass it?

02:02 - 26.815 The General Assembly's intent, by using the words in section

02:02 - 28.016 starting in section 902,

02:02 - 30.952 where the definition of children's institution is first stated,

02:02 - 35.348 DHS shall have supervisory authority over all children's institutions

02:02 - 36.958 and then the definition

02:02 - 41.229 of children's institution, which as you said, is in section 901 states.

02:02 - 44.256 Any organization, any agency, any corporation,

02:02 - 47.436 the General Assembly intended for that to be read broadly,

02:02 - 52.007 to include all programs unless you just it again, you just did it again.

02:02 - 54.776 All entities, all entities. Entities. Yes.

02:02 - 55.445 You put it this way.

02:02 - 59.114 I think you make a very reasonable argument

02:02 - 02.141 from the perspective of administrative policy.

02:03 - 04.477 But I but the point is that,

02:03 - 10.349 that the your argument seems to be that,

02:03 - 13.428 or it seems that your, your

02:03 - 16.455 essentially saying that,

02:03 - 19.558 it's a, children's institution

02:03 - 23.629 for purposes of the, after school program,

02:03 - 27.075 but then it transforms into a,

02:03 - 31.704 something else, a not children's institution during the school day,

02:03 - 35.374 because we have to we have to apply the statute.

02:03 - 38.978 So it's either a children's institution

02:03 - 41.957 or it's not.

02:03 - 43.125 You see the problem? Yes.

02:03 - 48.287 It's sort of the same problem as saying, it's an after school.

02:03 - 51.590 It's a that, it's a, it's an

02:03 - 56.772 that, it's a children's institution after school program

02:03 - 58.807 during the school year.

02:03 - 01.834 But it's not in the summertime.

02:04 - 04.546 So something it either is or it isn't.

02:04 - 05.314 Correct, Your Honor.

02:04 - 09.608 And from that position then a school district is a children's institution.

02:04 - 13.479 And if that children's institution does me

02:04 - 16.324 so if it again, if it's a children's institution, it's required

02:04 - 19.418 to be licensed by DHS unless there is some sort of exemption.

02:04 - 21.097 Well, that's what I hear.

02:04 - 23.832 The again, that's why I understand why you're not just taking that position

02:04 - 27.593 that the, the the the straightforward position is. Yes.

02:04 - 31.897 Schools provide child care by the definition of 901

02:04 - 33.809 because they provide child care.

02:04 - 36.912 And there are public agencies, they are a children's institution,

02:04 - 39.972 and we have the authority to regulate them under article nine, period.

02:04 - 44.586 There's there's no there's nothing else in article nine

02:04 - 49.391 that says you have this power except when it goes to school districts,

02:04 - 51.693 because they're regulated by the Department of Education.

02:04 - 54.720 Now, this may this may not be what the General Assembly intended.

02:04 - 58.467 But it's it seems to be what was written in article nine.

02:04 - 00.669 So why aren't you just taking that position?

02:05 - 02.704 Why aren't you saying yes?

02:05 - 06.332 We regulate child care at public schools,

02:05 - 10.703 and yes, we do regulate child care at public schools.

02:05 - 12.214 Now, there are.

02:05 - 12.815 Or maybe you

02:05 - 15.851 maybe you have some kind of a agreement with the Department of Education

02:05 - 20.746 where you say, we're not going to touch the instructional side of this,

02:05 - 24.216 we're not going to talk, talk about HoCo or prom

02:05 - 28.263 or your lunch program, nap time or even nap time.

02:05 - 30.332 We're not going to we're not going to mess with that.

02:05 - 33.759 But if, if, if you do any of this other and we're not going to do

02:05 - 37.096 we're not going to talk about athletics because the AA regulates that.

02:05 - 39.040 We're only going to focus on that now.

02:05 - 42.611 That's a matter of prosecutorial discretion with the agency.

02:05 - 44.246 And you can make that call.

02:05 - 46.572 But I'm not sure you can just say

02:05 - 48.818 there are only

02:05 - 53.379 children's institutions when we want them to be.

02:05 - 54.723 Does that make sense?

02:05 - 55.424 Yes, Your Honor,

02:05 - 59.194 and so I think I was taking the long, long winded way of saying just that.

02:05 - 00.695 They are children's institution.

02:06 - 03.865 The department has exercised, for lack of a better term,

02:06 - 08.027 prosecutorial discretion in what part of the day they regulate.

02:06 - 13.708 But per the definition and per section 902, the school, the school districts

02:06 - 17.303 do meet that definition and therefore they should be regulated by DHS.

02:06 - 20.749 Let's go back to 901.

02:06 - 23.251 Sure. Definition of children's institution.

02:06 - 28.514 Any incorporated or unincorporated organization, society,

02:06 - 32.318 corporation or agency, public or private,

02:06 - 35.864 which may receive or care for children

02:06 - 38.891 or place them in foster family homes,

02:06 - 43.262 either at board wages or free, where any individual who,

02:06 - 47.333 for a higher gain and reward, receives for a care of a child

02:06 - 51.880 unless he is related to such child by blood or marriage within the second

02:06 - 57.076 degree, or any individual not in the regular employ of the court or

02:06 - 00.813 or of an organization, society, association

02:07 - 05.050 or agency duly certified by the Department,

02:07 - 10.389 who in any matter becomes a party to the placing of children in foster home.

02:07 - 12.167 Unless he is related.

02:07 - 16.161 The term should not include a family care home or a child care center.

02:07 - 20.132 Operated for profit and subject to the provisions of article six.

02:07 - 21.767 When I read that,

02:07 - 24.512 that's sharing with me

02:07 - 27.539 that these are classic programs

02:07 - 32.878 created and approved by the Department of Human Services and they are funded

02:07 - 37.983 through the needs based budget, which is a separate financial institution.

02:07 - 40.962 Then the Department of Education, who's paying for

02:07 - 44.323 education and extracurricular activities?

02:07 - 49.094 The question I have for you, where again, how are you gleaning

02:07 - 53.165 from this specific human service code provision

02:07 - 56.344 that is related to child

02:07 - 59.371 welfare programs only

02:08 - 03.475 for the school district, which is not a child welfare agency,

02:08 - 06.845 and its funding does not come from the needs based budget.

02:08 - 14.195 So, Your Honor, the definition itself says.

02:08 - 17.790 And so the definition can be broken into three parts, the last two applying

02:08 - 19.000 to different types of foster.

02:08 - 25.064 I don't mean to cut you off, but are you saying that 901 is not relegated

02:08 - 30.469 to those programs operated and funded by the Department of Human Services?

02:08 - 33.138 Only foster care

02:08 - 36.351 group homes,

02:08 - 38.453 aftercare programs,

02:08 - 41.680 those things that are normally funded through needs based.

02:08 - 42.992 Is that what you're saying?

02:08 - 45.126 I'm saying they are also regulated.

02:08 - 48.063 So the way that the article nine and article ten are

02:08 - 51.266 split is based on for profit versus profit facilities.

02:08 - 54.836 And so the exceptions that I was discussing below is because article

02:08 - 58.697 ten already covers the for profit programs and has a different set of rules.

02:08 - 01.242 Article nine is what is intended to apply to

02:09 - 03.144 just those programs that you had mentioned.

02:09 - 06.171 Programs that are they are funded by the state.

02:09 - 11.677 They are again funded by a separate income stream, the needs based budget.

02:09 - 14.880 The school district is funded through the Department of Education.

02:09 - 17.892 That's a two distinct issue.

02:09 - 20.628 I'm still struggling.

02:09 - 24.056 How under the Human Services code provision.

02:09 - 26.034 You are glob.

02:09 - 29.361 You're you're you're bringing the school district into that.

02:09 - 34.099 Because if that's then everything the school district does must receive.

02:09 - 38.012 DHS regulation

02:09 - 41.039 for being subject to DHS regulation.

02:09 - 45.053 And we're talking about rule 3038.

02:09 - 50.048 Hundreds cover, certain types of, I think, where as a residential facility,

02:09 - 53.685 if there are under the DHS human Services code, right.

02:09 - 54.864 Correct.

02:09 - 57.799 And that means they're going to those programs

02:09 - 01.794 that have been historically child welfare, juvenile justice.

02:10 - 03.638 Yes. And so, yes.

02:10 - 07.408 And the school district is not part of the child welfare juvenile

02:10 - 11.346 justice system is not report does not have to report to DHS.

02:10 - 13.715 Correct? They do not. Okay.

02:10 - 16.918 However, there are types of educational programs that do fall under

02:10 - 21.022 section 901 that are regulated, such as private academic schools.

02:10 - 25.226 In fact, there's a regulation at 55, code 3270

02:10 - 28.797 that addresses dual licensure between both PD and octal.

02:10 - 32.634 So it is not entirely outrageous to believe that both entities

02:10 - 35.661 can come together and regulate a program.

02:10 - 38.730 In fact, excuse me.

02:10 - 40.275 In fact,

02:10 - 43.478 I mean octal itself, which is the agency I'm representing today,

02:10 - 47.615 the Office of Child Development and Early Learning, is dual certified

02:10 - 50.742 between both the Department of Education and the Department of Human Services.

02:10 - 54.255 So it is not outside the realm of possibility that both it

02:10 - 57.292 that both agencies are working together to protect the health and safety

02:10 - 58.316 of children.

02:10 - 01.062 I'm still trying to

02:11 - 04.332 understand how the school districts extended

02:11 - 07.359 they program falls within

02:11 - 10.395 901 children's institution.

02:11 - 14.733 Unless you're saying it is a part of the child welfare system

02:11 - 17.870 such that it's mandated

02:11 - 19.347 so it makes sense to you or.

02:11 - 22.350 No, I think so. So

02:11 - 25.477 my attempt to answer that is so the first part of the definition of a

02:11 - 29.290 of a children's institution, because it can be broken into three

02:11 - 35.454 parts, says any organization incorporated or unincorporated

02:11 - 39.892 agency, corporation when receiving or caring for children.

02:11 - 43.872 I see that separate from the federally mandated where the funding is involved,

02:11 - 45.406 I see that section as separate,

02:11 - 48.276 and I see that it's exactly where the school districts are.

02:11 - 51.679 The school districts authority to vote for DHS is authority to license

02:11 - 53.481 the school districts comes from.

02:11 - 56.718 And why would it be under the public school code, as opposed to the.

02:11 - 57.843 Human Services Code?

02:12 - 02.757 Well, so in this case, and there are cases

02:12 - 07.486 where the public school code, the public school will extend its day,

02:12 - 08.497 and then it's

02:12 - 11.766 outside of the hours of instruction and then inside the hours of instruction

02:12 - 14.335 where the Department of Human Services would not have authority.

02:12 - 15.204 Well, here in

02:12 - 18.172 this case might not have authority because you've chosen not to exercise.

02:12 - 18.973 Correct.

02:12 - 19.341 But you work.

02:12 - 22.410 But under your construction of the statute, you have the authority.

02:12 - 25.437 You're just choosing not to exercise it during the instruction day.

02:12 - 28.740 Yes. Your honor.

02:12 - 29.885 Is going back

02:12 - 33.821 to your question, I think, because and as was admitted, school

02:12 - 37.215 districts are an agency that when providing care for children

02:12 - 40.628 or a children's institution that is under

02:12 - 43.731 the supervisory authority of DHS, and where is that?

02:12 - 45.833 Is that what you're gleaning from 901?

02:12 - 46.268 From that?

02:12 - 47.602 From yes, from section 901,

02:12 - 51.630 where it says any agency, any corporation, any organization,

02:12 - 54.275 public or private.

02:12 - 57.712 And I mean, case law has interchangeably referred to school districts

02:12 - 59.347 as local education agencies.

02:12 - 04.242 I submitted several cases in my brief, the local education agencies,

02:13 - 07.989 and I know we were I when the appellant was discussing

02:13 - 11.249 the case, there was a distinction with public agency.

02:13 - 12.994 There's a difference in that.

02:13 - 15.129 The case the statute here is clear.

02:13 - 16.431 It says any agency.

02:13 - 17.665 So it's intended to be broad

02:13 - 22.094 to not just include public, it's intended to public, public or private agency.

02:13 - 24.472 I mean, the school district would be a public agency here.

02:13 - 27.075 So what about it would be a local education agency?

02:13 - 28.643 Well, local education agency.

02:13 - 31.779 The definition, if I understand it correctly, refers to the school district

02:13 - 34.806 board, the board of directors, I think

02:13 - 37.609 I think that may not be it, but what

02:13 - 40.989 you're saying we should we can look to any definition

02:13 - 44.826 because there are multiple definitions of agency and various statutes.

02:13 - 46.794 Do we look to the Statutory Construction Act?

02:13 - 49.297 Although I don't think they have a definition there.

02:13 - 52.967 Do we look to the administrative agency law and title two for a definition.

02:13 - 55.136 Is it a Commonwealth agency or a local agency?

02:13 - 59.240 Which statutory definition should we look to to see what school

02:13 - 01.175 district falls within the definition of an agency.

02:14 - 04.379 So the school, the school I mean, the public school code itself,

02:14 - 06.447 which regulates school district, is instructive.

02:14 - 11.085 And that definition of a local education agency is within the public school code.

02:14 - 11.253 Right.

02:14 - 13.354 But I think if you read that definition, you might see it's

02:14 - 15.818 referring to the school board, not the actual school district.

02:14 - 18.960 And then case law has further interpreted,

02:14 - 22.630 in my understanding, to apply it to the school district as well.

02:14 - 26.267 To provide the school district with responsibilities is that so?

02:14 - 29.404 You would if if we would determine that it does not meet that

02:14 - 32.431 definition.

02:14 - 33.841 It's not an agency.

02:14 - 35.510 Is that the only definition we should look to know?

02:14 - 39.247 Your honor, the case law also defines corporate case law, and statute

02:14 - 42.274 also define school districts as bodies corporate.

02:14 - 45.253 They define them as quasi corporations, whereas

02:14 - 48.280 I corporation means it looks like one, but it isn't one.

02:14 - 50.525 But if it has the if it has the properties

02:14 - 53.552 of a corporation, isn't it still a corporation?

02:14 - 55.063 Well, I think that's a question.

02:14 - 55.564 And that's

02:14 - 56.798 and so the definition

02:14 - 00.225 I think that definition of that's the question I should be asking you

02:15 - 03.104 for. Yeah.

02:15 - 05.106 And so section 901 is pretty broad.

02:15 - 07.775 And then it says any corporation it's section 901.

02:15 - 09.644 The General Assembly intended for it to be broad

02:15 - 12.647 to include by using language such as any and all.

02:15 - 15.774 So I see it as broad to include rather than narrow to exclude.

02:15 - 19.854 But even if you were to accept petitioners arguments, face value

02:15 - 22.881 that they are only a political subdivision

02:15 - 25.660 or a school or a school district.

02:15 - 30.589 The department submits that the language of section 901 is broad enough to include

02:15 - 35.903 any to include any organization and organization as a body of the group.

02:15 - 39.764 A group of individuals united for a basically a purpose.

02:15 - 41.476 That is what a school district is.

02:15 - 43.444 That is what a political subdivision is.

02:15 - 47.248 The Department of Human Services has regulated many of these types of programs.

02:15 - 51.519 We do regulate political subdivisions as well, such as municipalities who,

02:15 - 54.789 when they make the decision to open a rec center and operate

02:15 - 58.250 a daycare type of program, we require them to become licensed.

02:15 - 59.428 All right.

02:15 - 01.496 Well argued by both sides.

02:16 - 03.822 Thank you very much. Thank you for your time, Your Honor.

02:16 - 05.767 The next case

02:16 - 09.094 the court will hear is Commonwealth versus Michael Osman.

02:16 - 13.908 This appeal asks the court to determine whether a person convicted

02:16 - 19.471 of two different sexual sexual offenses at the same time, in the same trial

02:16 - 24.509 is automatically subject to a mandatory three year probation term after prison,

02:16 - 28.189 or whether that rule only applies to repeat

02:16 - 31.216 offenders with prior convictions.

02:16 - 33.861 The case turns on how the court will interpret.

02:16 - 38.190 Pennsylvania's Sexual Offender Registration and Notification Act,

02:16 - 42.127 or Sorna, and a companion sentencing statute

02:16 - 47.599 42 takes section 9718.5,

02:16 - 51.803 which sets out mandatory probation for certain sex crimes.

02:16 - 56.384 Michael Osman was convicted in Dauphin County

02:16 - 00.745 of two offenses involving the same victim corruption of minors

02:17 - 06.017 and indecent assault of a person under 16 years of age under Sorna.

02:17 - 10.622 These crimes are classified as tier one and tier two offenses.

02:17 - 14.368 At sentencing, the trial court ruled that because Mr.

02:17 - 18.830 Osman had been convicted of both a tier one and a tier two sentence,

02:17 - 23.802 he therefore met the definition of the most serious tier three offender,

02:17 - 29.050 which carries lifetime sexual offender registration and a mandatory

02:17 - 33.278 three year probationary term after any prison sentence has ended.

02:17 - 36.514 Under section 97 and 18.5,

02:17 - 39.594 Mr. Osman appealed,

02:17 - 42.954 arguing that he should remain a tier two registrant

02:17 - 46.591 because both of his offenses arose from the same case

02:17 - 51.429 and not one case and then another case with a repeat conviction.

02:17 - 55.200 The Superior Court disagreed, upheld the sentence,

02:17 - 00.205 finding the two or more sexual convictions even in the same case,

02:18 - 03.508 trigger the tier three concerns.

02:18 - 07.379 The Pennsylvania Supreme Court has agreed to hear this case,

02:18 - 11.025 with the central issue of whether two or more convictions

02:18 - 16.254 in Pennsylvania's sex offender laws apply only to offenders with prior convictions.

02:18 - 18.366 Or does it apply, like Mr.

02:18 - 22.661 Osman, to multiple convictions from the same criminal proceeding?

02:18 - 28.643 Mr. Osman argues that the plain text and precedent of Pennsylvania law shows

02:18 - 32.637 that the three year probationary term only applies to recidivists.

02:18 - 36.207 That is, to people who re-offend after a prior conviction.

02:18 - 39.811 He relies on two earlier Supreme Court cases

02:18 - 43.348 where the court held that two or more convictions under Sorna

02:18 - 47.886 means a conviction, followed by another offense committed later.

02:18 - 53.401 Those decisions, he says, established that a tier three status requires

02:18 - 59.130 a second subsequent act, not two charges tried in the same trial.

02:19 - 02.877 Mr. Osman contends that the legislature

02:19 - 07.172 has since revised Sorna several times without changing that language,

02:19 - 11.309 suggesting that it accepted the court's prior decisions and interpretation.

02:19 - 16.414 He also argues that because Sorna and section 97 and 18.5

02:19 - 20.752 both increased punishment, any ambiguity must be resolved

02:19 - 24.389 in favor of him as the defendant under the rule of law.

02:19 - 29.670 Finally, he says that extending tier three and mandatory probation to people

02:19 - 32.773 convicted in a single case would go beyond

02:19 - 35.800 what the legislature intended.

02:19 - 39.871 The Commonwealth responds that the statutory language is unambiguous

02:19 - 43.141 and should be applied literally and strictly.

02:19 - 47.345 The text of the statute defines a tier three offense

02:19 - 50.591 as two or more convictions of tier one

02:19 - 53.527 or tier two sexual offenses.

02:19 - 57.288 The statute does not specify whether those convictions must arise

02:19 - 00.468 in separate cases at different times,

02:20 - 03.495 or whether they can occur in the same case.

02:20 - 06.374 Prosecutors argue that the legislature must have

02:20 - 10.077 intentionally broadened the statute to cover anyone

02:20 - 13.838 with two qualifying convictions, even from the same incident,

02:20 - 18.510 to protect the public and ensure supervision of serious sex offenders.

02:20 - 20.756 They also point to

02:20 - 24.115 the legislative history of section 9718.5,

02:20 - 29.220 which was designed to extend supervision of high risk offenders

02:20 - 33.758 who might otherwise leave prison without parole or probation oversight.

02:20 - 37.004 The Commonwealth emphasizes that the law in question

02:20 - 41.108 reflects public safety concerns, not punishment, and should be read

02:20 - 45.870 as mandatory and preventative, not discretionary or punitive.

02:20 - 49.950 This case will determine how Pennsylvania defines repeat

02:20 - 54.045 sexual offenders under its registration and sentencing laws.

02:20 - 58.450 Regardless of the decision, the court's decision will clarify

02:20 - 00.327 how far the legislature's reach

02:21 - 03.955 can extend in supervising sex offenders after release

02:21 - 08.460 and whether longstanding precedent cited by the defendant still governs.

02:21 - 12.263 With that background, the court will now hear oral argument

02:21 - 15.333 in Commonwealth versus Michael Osman.

02:21 - 17.678 Thank you, Madam Chief Justice.

02:21 - 18.746 And may it please the court.

02:21 - 23.374 Spencer Bradley with the Dauphin County Public Defender's office as your honors.

02:21 - 25.286 As Your Honor stated, Mr.

02:21 - 30.124 Osman was convicted of three offenses, one of which is a tier one offense.

02:21 - 34.195 Corruption of minors, tier two offenses, indecent assault slash unlawful

02:21 - 39.557 content act under this court's prior precedent, and ass and lots more.

02:21 - 41.635 And that should be the end of the matter.

02:21 - 45.330 This court has previously interpreted the referential statute

02:21 - 49.767 cure statute of 9799.14,

02:21 - 53.881 and the operable language that we're dealing with right now,

02:21 - 57.342 which is two or more convictions, two or more convictions of offenses

02:21 - 00.545 listed as tier one or tier two sexual offenses.

02:22 - 02.691 The Superior.

02:22 - 06.594 Court aired by failing to even analyze or distinguish

02:22 - 09.930 as and lots from the controlling interpretation.

02:22 - 12.957 This language essentially doing a

02:22 - 17.371 very, plain reading of the statute without

02:22 - 21.232 acknowledging the case law in this area and thus aired.

02:22 - 24.378 We are seeking that this court vacate

02:22 - 27.414 the three year mandatory period of probation for Mr.

02:22 - 32.443 Osman, because he simply doesn't qualify under that statute.

02:22 - 36.690 Does it matter, counsel, that this this case is in the context of a,

02:22 - 41.753 criminal sentence and ass and let's Morrisson were registration cases.

02:22 - 43.998 I do believe it does, Your Honor.

02:22 - 46.991 For a very specific reason in that

02:22 - 51.896 it is one of the big things that this court tackled in dare

02:22 - 54.975 and as in Lutz Morrison was.

02:22 - 57.611 Well, is it an ambiguity?

02:22 - 00.114 Is it a penal statute here?

02:23 - 01.482 It is a penal statute.

02:23 - 07.579 9718.5 is specifically a penal statute because it's imposing a sentence.

02:23 - 13.460 Mr. Osman, if he qualifies for that, has to have that period of probation.

02:23 - 18.423 And in fact, and this is a matter for a different period of time,

02:23 - 22.536 the authority of the court is to impose a period of probation,

02:23 - 26.297 even if it was in excess of the statutory maximum.

02:23 - 30.835 So hypothetical, someone's convicted of idiocy, which,

02:23 - 34.415 is appropriate given that that was acquitted conduct

02:23 - 38.052 trial court can say, you know what, I'm going to sentence you to 5 to 20 years

02:23 - 41.079 and I have to put the consecutive three on you.

02:23 - 45.016 There's no if, ands or buts if a trial court failed to do that.

02:23 - 47.361 I'm sure my friend, and on the other side

02:23 - 50.688 would seek an appeal of that order, because that would be an illegal sentence.

02:23 - 53.934 One of the issues with that in this statute in particular,

02:23 - 58.272 and some of the ambiguities within it, is, well, hypothetically,

02:23 - 02.376 what would happen if that, defendant violated that probation?

02:24 - 03.944 What could they be sentenced to?

02:24 - 07.414 But that, of course, is a matter for a different, time.

02:24 - 12.319 But the statute in question here, a person who is convicted in a court

02:24 - 15.589 of this commonwealth of an offense, okay,

02:24 - 19.660 an offense and is one that's, you know, a an offense,

02:24 - 22.920 that's how you modify, a word that begins with a vowel.

02:24 - 28.660 So then when we go to the referential statute 99.1 for D,

02:24 - 32.263 we get a list of offenses, specific ones.

02:24 - 34.942 And then we get to the problem here.

02:24 - 36.267 Two or more convictions.

02:24 - 39.747 That creates the ambiguity at issue.

02:24 - 44.108 Well if if the one is if an offense is an ambiguous, how is the conviction of

02:24 - 48.046 we say that somebody is either convicted or acquitted of an offense?

02:24 - 51.125 And so if you're getting

02:24 - 54.152 two convictions, you're getting two convictions.

02:24 - 58.623 So and that would go that ambiguous the prior.

02:24 - 02.970 Well this is the issue that this court dealt with in A.S.

02:25 - 06.240 and lots in that it depends on how you read it in context.

02:25 - 10.401 If you just read it, as Your Honor has previously read it,

02:25 - 14.648 in Your Honor's dissent in, as then.

02:25 - 14.983 Sure.

02:25 - 17.718 That could be the end of the month just reading the English language.

02:25 - 20.745 I mean, tell me if you read it differently.

02:25 - 24.949 Two, two or more convictions.

02:25 - 29.020 I mean, you represent a client in court tomorrow,

02:25 - 32.666 and the court returns two convictions.

02:25 - 34.992 There are two convictions.

02:25 - 39.006 I would say, actually, Your Honor,

02:25 - 41.608 they have been convicted of distinct counts.

02:25 - 43.444 However, that is not, you know,

02:25 - 46.771 whether someone has been convicted or not convicted is determined.

02:25 - 48.449 It's based off of when their sentence.

02:25 - 53.311 Well, I didn't even give you the whole, two or more convictions of offenses

02:25 - 56.323 listed as tier one or tier two sexual offenses.

02:25 - 00.051 So you go to court tomorrow, you have a, you know, Multi-county,

02:26 - 04.431 case, and the verdict comes in

02:26 - 09.927 and your client draws, two convictions of offenses listed,

02:26 - 13.664 and then maybe three, three acquittals, whatever.

02:26 - 15.375 So you have two convictions, right?

02:26 - 16.244 You don't have one.

02:26 - 17.778 You have two. Correct.

02:26 - 19.947 Two convictions of offenses. Right?

02:26 - 22.149 I would I would agree with you so far, Your Honor.

02:26 - 27.321 I think the problem then lies in reading it in its overall context,

02:26 - 31.692 in the statutes place and the creation of these tiered structures.

02:26 - 34.128 And by way of example, I'll give you one.

02:26 - 36.988 If an individual, for example, was convicted of,

02:26 - 41.425 offenses that would merge, for example,

02:26 - 44.738 they would have those two convictions that you just posited.

02:26 - 48.733 But under that very plain reading of the statute

02:26 - 52.837 now, they would only have a tier one or tier two,

02:26 - 54.748 you know, whatever the lead charge

02:26 - 58.442 was, registration requirement, their period of time, they have to register,

02:26 - 01.879 but now they have a sentence saying,

02:27 - 06.026 punishment that is different.

02:27 - 07.928 There is that tension there.

02:27 - 11.298 If you just read it in its plain language, why don't

02:27 - 13.233 we just let the legislature fix that?

02:27 - 17.004 I mean, since is there words where we're just not making up words,

02:27 - 20.207 we're just applying their words, which are, they told us two

02:27 - 23.177 or more consecutive convictions of offenses listed.

02:27 - 24.645 We're not making stuff up.

02:27 - 28.182 And if it creates, an absurd result,

02:27 - 31.209 then why isn't it their job to rewrite it rather than us?

02:27 - 32.710 Well, Your Honor, I,

02:27 - 36.757 I think the legislative

02:27 - 40.284 history of Sorna actually supports this in the sense of

02:27 - 44.922 this was Your Honor's exact point in, as in lots

02:27 - 49.927 that, you know, as Your Honor noted, your reading of the statute was,

02:27 - 53.264 you know, in conflict with, mine in the majority.

02:27 - 57.535 But what then happened is this court decided Muniz

02:27 - 59.880 and all of Sorna was thrown out.

02:27 - 02.907 The legislature then chose to reenact.

02:28 - 04.218 And it's the same language.

02:28 - 08.012 Two or, you know, two or more convictions of a tier one or a tier two

02:28 - 09.357 sexual offense.

02:28 - 14.361 They didn't change it after this court's decision in Lutz Morrison.

02:28 - 18.189 And as they stuck with the same words

02:28 - 22.536 consistently in the past ten years since that decision.

02:28 - 26.931 And so the legislature and as much as Your Honor, is positing that,

02:28 - 30.077 you know, it was, you know, if there's that conflict

02:28 - 33.070 between their intent, I would submit, Your Honor,

02:28 - 38.075 that they saw what this court did in those cases and said, that's right.

02:28 - 39.253 You guys got it right.

02:28 - 43.056 You are very hopeful that they had the patience to comb

02:28 - 45.592 through all of those opinions. God bless them.

02:28 - 49.263 I would, Your honor, and I and I would submit they do do that

02:28 - 52.399 because in response to this court's, recent

02:28 - 56.904 case, holding that Ardi is, you know, does

02:28 - 01.341 not count as a, you know, prior offense for DUI legislation.

02:29 - 02.943 And I'll circle back to DUIs there

02:29 - 06.203 in a moment because I think that statutory framework supports this point.

02:29 - 10.107 They have there are bills in committee that could do this and this.

02:29 - 14.045 And again, Sorna again, Muniz struck it down.

02:29 - 17.224 There are other decisions in the Superior Court that modify

02:29 - 20.761 different aspects of Sorna, the legislature, when it wants to.

02:29 - 23.597 And it seems like the area of, sex offenses

02:29 - 27.868 and the registration of sexual offenders, they act on it.

02:29 - 33.106 And it's not just this particular language or the, response

02:29 - 37.311 to the constitutional concerns in Muniz that they respond to.

02:29 - 41.772 They add offenses to the tier system, they change

02:29 - 46.687 what tier system offenses reside in.

02:29 - 49.914 So I would I would push back a little bit about the idea that, well,

02:29 - 52.926 the legislature could have, chosen otherwise.

02:29 - 56.830 I do read that ambiguity, into that language

02:29 - 00.500 because of its placement within a tiered structure.

02:30 - 06.073 If the legislature wanted to say a, you know, one offense and another offense

02:30 - 10.901 are essentially predicates of each other for purposes of it being

02:30 - 13.480 a second or

02:30 - 17.718 subsequent type of, conviction, they know how to do it.

02:30 - 19.586 They did it in the DUI statutes.

02:30 - 22.622 The DUI statutes are clearly written

02:30 - 25.783 that if you go out and get a DUI,

02:30 - 29.220 get arrested, get processed, get cut loose,

02:30 - 32.766 commit another DUI, and you walk into court

02:30 - 35.793 and you plead both of those at the same time,

02:30 - 40.107 whichever one is second, you know, whichever guilty plea is taken.

02:30 - 44.201 Second is the second offense, for purposes of what your sentencing,

02:30 - 47.538 requirements are so.

02:30 - 51.342 So, yes, Your Honor, is there any way that we could affirm

02:30 - 57.124 the Superior Court without reversing our decisions?

02:30 - 58.392 And let's more it's.

02:30 - 01.428 And and I don't believe you can't, your honor.

02:31 - 06.566 I believe the precedent, because it squarely interprets that that language.

02:31 - 07.502 It's the same language.

02:31 - 10.804 Those cases are control, and there's nothing to distinguish.

02:31 - 14.708 If anything, this is more,

02:31 - 18.445 relevant in the context because this is a penal statute, correct?

02:31 - 22.239 Your honor, I think the penal nature of the statute is what,

02:31 - 27.244 you know, drives, you know, any form of questioning here in that

02:31 - 31.358 if there's an ambiguity, if I'm really, you know, and I am kind of hyper

02:31 - 34.852 focusing on the referential statute to,

02:31 - 38.198 sort of create a independent line

02:31 - 42.927 to an ambiguous interpretation, I think this case can candidly be resolved

02:31 - 48.299 solely on let's, Morrison and as it should have been analyzed,

02:31 - 54.004 my friend, cites to this court's, you know, dissenting opinions.

02:31 - 56.883 Essentially

02:31 - 00.377 asking this court to Adelanto reverse those cases

02:32 - 06.517 with no compelling reason to reverse precedent interpreting the statute

02:32 - 09.863 other than other than his view that they're wrong, correct.

02:32 - 12.499 And Chief Justice Hart and I are correct.

02:32 - 14.568 Correct. And let me ask you a question.

02:32 - 17.137 Reasonable minds can defer offense as defense counsel.

02:32 - 18.605 And obviously you do a lot of these cases.

02:32 - 23.610 So you have a, any concern about like be careful.

02:32 - 27.771 What you wish for type phenomenon is, is when, if if this court,

02:32 - 33.511 were to, persist in reading statutes

02:32 - 38.282 in ways that are at variance with the plain meaning of two or more,

02:32 - 42.195 you acknowledge that sometimes such a practice

02:32 - 45.222 might cut against the defendant.

02:32 - 53.574 Perhaps I'm

02:32 - 56.600 not following, your question just as well.

02:32 - 59.579 If you if you were given your druthers, would you prefer that

02:32 - 04.642 we just read the crimes code according to actually the actual words,

02:33 - 07.954 or that we start

02:33 - 11.515 searching for context and, policy?

02:33 - 13.727 I, as a

02:33 - 18.098 defense lawyer, as a defense lawyer, I would candidly, Your Honor,

02:33 - 21.792 and I'm a little strange compared to some of my colleagues.

02:33 - 25.906 I would push back on the policy angle because trying to divine

02:33 - 30.744 the legislators intent or picking out what one person

02:33 - 35.739 said, the reason behind the statute is, is always a dangerous game.

02:33 - 40.678 So policy I don't want to necessarily go down with you like a recidivist policy.

02:33 - 45.392 Well, there's the other aspect of it is a recidivist policy

02:33 - 48.595 I think is distinct in our legal system.

02:33 - 53.200 I mean, when I say policy, I'm thinking something like encouraging,

02:33 - 55.869 you know, first time offenders to have a second,

02:33 - 59.239 you know, bite at the apple through the third kind of process.

02:33 - 02.342 Because sometimes I think that, presumes

02:34 - 05.369 they were guilty anyway, right here,

02:34 - 09.683 I think the contextual interpretation

02:34 - 14.111 of things reveals whether or not something could be ambiguous,

02:34 - 18.382 whether or not it's placement within a overall statutory framework.

02:34 - 21.828 A reading is consistent with that framework,

02:34 - 26.600 with what is happening within that statute, because otherwise,

02:34 - 31.929 you know, your honor, candidly, you run into a situation where

02:34 - 34.074 you have

02:34 - 38.502 very often now, if the plain text of the rule, the,

02:34 - 44.308 reading of the statute as your advancing is the one that is adopted,

02:34 - 47.287 the entire tier system

02:34 - 50.056 is essentially, a legal fiction

02:34 - 53.860 because you are now at the mercy,

02:34 - 56.887 because many of these offenses have.

02:34 - 59.899 I don't want to say one.

02:34 - 01.368 Some of them could merge, you know,

02:35 - 05.405 institutional sexual assault and indecent assault, would likely merge.

02:35 - 07.207 So you would have a tier one and a tier two.

02:35 - 07.708 They merge.

02:35 - 11.578 You can only get sentenced for one, but, oh, now you're a tier three registrant.

02:35 - 13.079 When the plain language of the statute

02:35 - 16.106 says that person should be a tier two registrant.

02:35 - 22.780 To to finally respond to that specific point,

02:35 - 27.685 I think when we read the text of the statute, if I hand you a book

02:35 - 32.122 and I say, read this page and tell me what this book is about,

02:35 - 36.536 you're not going to be able to, because you only know that very small snapshot.

02:35 - 40.807 Whenever you have a full statute, you have to look at the entire statute

02:35 - 42.942 and what the words within the statute mean.

02:35 - 46.870 Within that context and within the context of this tiered system

02:35 - 50.684 of multiple offenses and the types of offenses that are also

02:35 - 52.376 included in tier three,

02:35 - 54.655 I would submit you

02:35 - 57.657 do get to the recidivist analysis,

02:35 - 01.719 but whether or not that was a good reading of the rule or not,

02:36 - 04.822 you know, obviously this court then,

02:36 - 07.958 deferred obviously the Commonwealth and I differ on this.

02:36 - 10.970 There's no compelling reason to jettison

02:36 - 14.164 ass and Lutz, as precedent.

02:36 - 16.776 The Commonwealth wants it to be essentially overruled.

02:36 - 17.211 Excellent.

02:36 - 20.771 Though, when the precedent that those cases

02:36 - 25.342 created, it's been ten years of that legal regime through,

02:36 - 29.689 I'll say, about one and a half different versions of Sorna,

02:36 - 33.093 the version of Sorna that was then ruled unconstitutional.

02:36 - 36.029 Immunize. And then now it's been working.

02:36 - 36.964 It's predictable.

02:36 - 40.758 We're able to determine, you know, just based off of what the highest,

02:36 - 44.104 offense that someone was convicted

02:36 - 47.131 of, what their registration requirements are.

02:36 - 48.908 The Commonwealth knows what that does.

02:36 - 50.910 Judges know what to do.

02:36 - 52.979 Defense counsel know how to advise their clients.

02:36 - 56.106 It's predictable and it's certain and it's workable.

02:36 - 00.387 The types of considerations that this court has announced

02:37 - 04.557 in Commonwealth we Alexander to when we consider

02:37 - 08.185 what precedents to overrule or not overruled.

02:37 - 12.532 They're just not here other than the Commonwealth is advancing

02:37 - 17.036 that the dissent had the you know write opinion on the day.

02:37 - 19.038 And again reasonable minds can differ.

02:37 - 22.266 I don't I think the fact that there is

02:37 - 26.112 multiple readings of it that is apparent within the court's

02:37 - 30.541 opinions suggests it's, ambiguity therein,

02:37 - 34.487 but. Turning

02:37 - 38.391 to, the, you know, facts of the case,

02:37 - 41.418 just very briefly, there were three incidents charged.

02:37 - 43.129 He was acquitted of two of them.

02:37 - 47.357 The one incident that he was charged with is what his sentences were.

02:37 - 51.070 And I don't think we can, you know, get around this case

02:37 - 54.198 without the, you know, overruling prior precedent.

02:37 - 58.311 I think it controls so much the court has any further questions.

02:37 - 01.347 I would respectfully request this court vacate Mr.

02:38 - 05.351 Grossman's three year probationary sentence and holds that two

02:38 - 09.313 or more, convictions of offenses listed as tier one or tier two

02:38 - 14.384 for purposes of 971.5, requires

02:38 - 18.822 convictions after someone has already been convicted of prior sexual offenses.

02:38 - 19.933 Thank you.

02:38 - 20.233 All right.

02:38 - 21.035 Thank you very much.

02:38 - 22.769 Let's hear from the Commonwealth, Mr.

02:38 - 24.070 Lysaght.

02:38 - 27.097 Good morning, Your Honors.

02:38 - 30.109 May it please the court? Ryan lace it.

02:38 - 33.403 Here from the Dauphin County District Attorney's Office on behalf of the plea.

02:38 - 37.750 The Commonwealth of Pennsylvania, US, or any facet of this.

02:38 - 41.979 Your honors would like me to jump into, off the bat.

02:38 - 44.924 Are you asking us to overrule as.

02:38 - 46.759 And, what's the version?

02:38 - 49.429 I don't know that they're necessarily relevant.

02:38 - 52.623 Here, because that dealt with a registration.

02:38 - 53.634 Application.

02:38 - 56.970 This deals with a more of a sentence, a probationary sentence.

02:38 - 00.197 So, I don't know that the,

02:39 - 04.077 reasoning from that case needs to be extended,

02:39 - 08.005 to the probation and to a penal context.

02:39 - 13.277 Isn't it sort of the opposite of that, as argued by your opposing counsel?

02:39 - 18.015 And so while this is probation and by definition, penal,

02:39 - 21.227 and looking at the legislative history,

02:39 - 24.254 how this three year probationary tale came about,

02:39 - 29.793 the effect is to essentially ensure that this offender,

02:39 - 34.274 who is maxing out his sentence because he is not accepting responsibility

02:39 - 38.735 or she, or availing him or herself of treatment,

02:39 - 42.205 and rehabilitation options while incarcerated,

02:39 - 44.384 are getting out and therefore

02:39 - 48.078 there are a higher likelihood, to re-offend and pose a danger to society.

02:39 - 52.992 So this three year probationary tale is to ensure that this individual,

02:39 - 58.097 once he or she hits the streets, is successfully reintegrating into society

02:39 - 03.260 and not exhibiting behaviors or not complying with court mandated

02:40 - 07.064 you know, hoops to jump through to basically

02:40 - 09.409 provide an extra layer of protection to the public.

02:40 - 10.311 And if this individual

02:40 - 13.947 successfully demonstrates to either the Pennsylvania Port of Probation

02:40 - 18.084 and Parole or to the trial court judge, if he retains, jurisdiction

02:40 - 21.311 over the probation supervision, they can be closed out early.

02:40 - 27.226 And so while it is penal, the legislative intent is not penal here.

02:40 - 30.129 It's protection of the public and rehabilitation of the offenders.

02:40 - 33.132 And that with registration is designed to do so.

02:40 - 37.604 It may be said to do that, but I think that there's only so much

02:40 - 41.031 that registration can do, in terms of notify the public,

02:40 - 44.243 let them know where this person resides, but it does

02:40 - 47.471 not do anything for rehabilitation of the offender.

02:40 - 49.373 The registration requirement.

02:40 - 56.389 Oh, sure.

02:40 - 57.091 Thank you, Your Honor.

02:40 - 01.251 I believe, as your honor and, as,

02:41 - 06.599 the learned justice worked, wrote and as, the plain language controls

02:41 - 12.963 here, it is not like those increasing, penal schemes for recidivists.

02:41 - 18.535 Where each time there's a new conviction, it goes up and scale.

02:41 - 21.047 Well, I'm not sure why you're talking.

02:41 - 22.982 Didn't you just say so?

02:41 - 25.551 Now I'm confused. Yeah.

02:41 - 29.756 Your brief says as is relevant, and you then

02:41 - 34.227 go into your brief to basically block quote the dissents and argue.

02:41 - 35.862 I agree with the dissent.

02:41 - 38.889 Now, you just said as isn't relevant,

02:41 - 42.135 but now you're going to talk about the sentence.

02:41 - 45.338 Well, we can use the concepts that were talked about an ass

02:41 - 48.408 in terms of whether the plain language controls here or whether we need

02:41 - 51.535 to read it in context with, the rest of the statute.

02:41 - 53.479 But by arguing that the dissent controls, you're

02:41 - 56.506 basically arguing that the majority got it wrong. Yes.

02:41 - 57.818 And so you're asking us

02:41 - 01.378 to overrule those two cases, which was my first question to you.

02:42 - 05.625 I don't know how that would necessarily affect a probationary sentence here

02:42 - 08.061 in terms of like we're dealing with a registration question.

02:42 - 08.696 There.

02:42 - 10.630 I don't necessarily know that they need to be overturned,

02:42 - 12.174 but I think they should be overturned.

02:42 - 15.468 So I didn't intend to speak

02:42 - 17.603 out of both sides of my mouth if that is how it came out.

02:42 - 21.441 Yeah, I well, I, I, I won't characterize it as that.

02:42 - 23.810 I just think that

02:42 - 26.379 we can't what now you seem to be saying

02:42 - 29.382 is that for purposes of probation,

02:42 - 32.409 we should interpret the statutory language one way,

02:42 - 35.988 and for purposes of registration, we should interpret it

02:42 - 39.783 another way, even though it's the same language, is the same language.

02:42 - 45.231 You know, registration deals with a different kind of concept,

02:42 - 50.060 and it's, we should notify the public as to where the offender resides.

02:42 - 54.664 The probationary statute is to, in a sense, punish the individual,

02:42 - 57.677 but also rehabilitate the individual and protect the public

02:42 - 01.848 and further protect the public than what occurred through registration.

02:43 - 06.119 So your argument is that that difference justifies the dissents approach.

02:43 - 09.579 And as here, whereas it wasn't justified

02:43 - 12.425 or at least didn't prevail in the other one,

02:43 - 15.452 which is why you're saying we wouldn't have to overrule us,

02:43 - 19.599 because the differences justify different resolutions of the exact

02:43 - 20.724 same statutory language.

02:43 - 26.839 When you put it like that, no, I think the dissent should, you know,

02:43 - 30.834 carry the day there and and overturning that case as well as today.

02:43 - 34.480 And I apologize for say it again, I'm sorry.

02:43 - 37.717 I think the dissent in those cases should carry the day in those cases

02:43 - 38.718 as well as for today.

02:43 - 41.988 So you're asking us to overrule those two cases.

02:43 - 44.223 Back to my first question. I do agree with the dissent.

02:43 - 48.027 And therefore I would say, in the utmost respectful way that they're

02:43 - 51.054 potentially wrongly decided.

02:43 - 53.901 All right.

02:43 - 55.535 Go ahead and,

02:43 - 57.737 court's indulgence.

02:43 - 58.338 You're on our way.

02:43 - 03.433 I wrote a lot smaller than I should have here when I was taking, notes.

02:44 - 07.980 I think the, legislative history is quite clear.

02:44 - 11.007 This would be my final point that,

02:44 - 14.120 the recidivism doesn't even come into play.

02:44 - 14.988 Giving these people

02:44 - 19.482 the opportunity to get out of jail and then determine whether they have been,

02:44 - 23.053 corrected their behavior and before they commit another offense.

02:44 - 27.190 Clearly, the legislative history in this probationary statute cites,

02:44 - 29.235 a study come by,

02:44 - 32.262 conducted by the Sentencing Commission that shows that these people

02:44 - 36.609 there is no rehabilitation, really, for these people when they are in, prison

02:44 - 37.977 because they are maxing out

02:44 - 39.779 because they are not accepting responsibility,

02:44 - 41.614 because they are not engaging in programing.

02:44 - 46.152 So I don't think the recidivist approach in interpreting the statute would

02:44 - 47.744 be applicable whatsoever.

02:44 - 50.424 And I would

02:44 - 53.650 respectfully rest on my brief for the remainder of the portions,

02:44 - 55.394 unless Your Honors have any other questions.

02:44 - 56.028 Thank you.

02:44 - 56.330 All right.

02:44 - 57.463 Thank you very much.

02:44 - 00.132 Thank you, Your Honor.

02:45 - 01.734 The next case the court will hear

02:45 - 04.861 is Commonwealth versus Joseph Fitzpatrick, the third.

02:45 - 10.176 This appeal arises from a long and complex prosecution that has already been

02:45 - 13.203 before Pennsylvania's appellate courts several times.

02:45 - 17.107 At its core, the case now asks the Supreme Court to decide

02:45 - 20.152 whether a forensic pathologist

02:45 - 23.823 may testify that a death was a homicide, using

02:45 - 26.850 only a more likely than not standard,

02:45 - 32.422 or whether Pennsylvania law requires this to be expert testimony

02:45 - 36.135 such that it must be stated by the expert to a reasonable

02:45 - 39.162 degree of medical or scientific certainty.

02:45 - 44.134 The case stems from the 2012 death of Anna Marie Fitzpatrick,

02:45 - 48.071 who drowned in a creek behind her home in York County.

02:45 - 50.017 Her husband,

02:45 - 55.712 Joseph Fitzpatrick, the third, told police that that the two were riding in an ATV

02:45 - 59.759 that accidentally went into the water, but investigators

02:45 - 04.220 became suspicious after discovering that the couple's marriage was strained.

02:46 - 09.035 Mr. Fitzpatrick was having an affair and that he was the beneficiary

02:46 - 12.138 of over $1.7 million in life

02:46 - 15.165 insurance policies on his wife.

02:46 - 17.944 Based on this evidence, a jury convicted Mr.

02:46 - 21.071 Fitzpatrick of first degree murder in 2015,

02:46 - 24.474 but the trial court later set aside that verdict.

02:46 - 28.745 The Superior Court reversed, reinstating the conviction and life sentence.

02:46 - 34.360 But then in 2021, the Pennsylvania Supreme Court granted a new trial, ruling

02:46 - 39.022 that a handwritten note by the victim should not have been admitted at trial.

02:46 - 42.802 As the Commonwealth prepared for retrial, it

02:46 - 46.896 sought to introduce new expert testimony from Doctor James Caruso,

02:46 - 51.001 a forensic pathologist, specialist in aquatic deaths.

02:46 - 56.506 Doctor Caruso planned to testify that the manner of death was in fact homicide,

02:46 - 00.419 but he acknowledged that his opinion was held only to a

02:47 - 02.412 more likely than not standard

02:47 - 04.424 and not the

02:47 - 07.426 reasonable degree of medical certainty standard

02:47 - 11.054 typically required in Pennsylvania courts for expert testimony.

02:47 - 15.759 The trial court therefore barred the testimony, ruling it to speculative.

02:47 - 20.239 The Superior Court, however, reversed, concluding that manner of death

02:47 - 24.844 determinations are required to be probable and not definitive.

02:47 - 27.346 Under Pennsylvania's statutory law.

02:47 - 29.815 The Commonwealth's position prevailed there,

02:47 - 32.842 and the case is now before the Supreme Court.

02:47 - 35.488 The court will decide

02:47 - 38.515 two related issues in this oral argument

02:47 - 43.863 whether a forensic expert may testify that the manner of death was a homicide

02:47 - 48.191 without holding that opinion to a reasonable degree of scientific certainty,

02:47 - 52.996 and whether the probable standard used in coroner reports

02:47 - 57.000 can be applied to expert testimony at a criminal trial.

02:47 - 00.203 As Doctor Caruso wanted to do here,

02:48 - 03.382 these questions will clarify how far expert witnesses

02:48 - 07.077 can go in expressing professional judgment in criminal cases.

02:48 - 11.290 Mr. Fitzpatrick argues that the Superior Court

02:48 - 14.751 departed from decades of settled law regarding expert testimony.

02:48 - 18.731 He points out that Pennsylvania courts have consistently required

02:48 - 21.758 expert witnesses, including medical examiners,

02:48 - 25.795 to express opinions to a reasonable degree of professional certainty,

02:48 - 30.667 citing cases such as Commonwealth versus Floyd and Commonwealth versus Edmiston.

02:48 - 34.747 The reasonable degree threshold is particularly necessary

02:48 - 39.175 with a manner of death determination, because that opinion goes to the heart

02:48 - 43.155 of a jury's guilt, innocent finding, and manner of death.

02:48 - 46.983 Opinions are often less scientific and more prone to air.

02:48 - 52.355 His attorneys emphasize that Doctor Caruso explicitly testified

02:48 - 54.366 that his that his decision

02:48 - 57.827 was not to be held to a reasonable degree of medical certainty.

02:48 - 01.131 Rather, it's more likely than not.

02:49 - 05.978 Mr. Fitzpatrick argues that allowing such testimony would open the door

02:49 - 09.739 to speculation, replacing established evidentiary standards

02:49 - 12.885 with subjective probability.

02:49 - 17.280 The Commonwealth will counter that the Superior Court's ruling was correct,

02:49 - 21.227 and that the trial court abused its discretion by excluding

02:49 - 22.852 relevant expert evidence.

02:49 - 25.998 Prosecutors will emphasize

02:49 - 31.003 that Doctor Caruso is a highly qualified medical examiner whose opinion was based

02:49 - 35.832 on extensive review of autopsy findings, photographs and crime scene evidence.

02:49 - 40.880 The Commonwealth then points to prior cases where manner of death, that is,

02:49 - 46.543 whether a person died by homicide, suicide or accident are medical opinions

02:49 - 50.280 that a jury may be able to determine without expert testimony,

02:49 - 53.759 as opposed to cause of death, which requires

02:49 - 56.786 more specialized testimony.

02:49 - 00.023 The Commonwealth points out that under various statutes,

02:50 - 04.870 coroners are statutorily required to determine a manner of death

02:50 - 09.332 as probable, and that courts have long accepted such terminology

02:50 - 12.635 as professional judgment rather than speculation.

02:50 - 16.849 According to the Commonwealth doctor, Caruso's use of more likely

02:50 - 21.854 than not satisfies those statutes and the scientific reliability

02:50 - 25.949 required under rule 702 of the Pennsylvania Rules of Evidence.

02:50 - 28.427 They urged the court

02:50 - 33.223 to affirm the Superior Court's decision, and allow juries to hear expert opinions

02:50 - 36.793 that reflect the reality of medical science,

02:50 - 40.663 which often deals in degrees of probability and not certainty.

02:50 - 43.676 The Supreme Court's ruling in this case will determine

02:50 - 47.503 the threshold of certainty required for expert medical testimony.

02:50 - 48.915 A ruling from Mr.

02:50 - 51.941 Fitzpatrick could have reaffirmed the traditional rule

02:50 - 55.411 that expert witnesses must testify to opinions

02:50 - 58.581 to a reasonable degree of professional certainty,

02:50 - 02.252 whereas a finding for the Commonwealth could bring a more flexible,

02:51 - 06.055 probability based standard in cases involving

02:51 - 09.325 the testimony of medical examiners or coroners.

02:51 - 12.705 With that background, the court will now hear oral argument

02:51 - 15.732 in Commonwealth versus Fitzpatrick.

02:51 - 18.811 Yes, madam Chief justice, may it please the court.

02:51 - 21.313 Jules Epstein, on behalf of Mr.

02:51 - 25.251 Fitzpatrick, bringing us a case we've been familiar with

02:51 - 27.644 for several years now. Yes.

02:51 - 32.291 When this expert testified at

02:51 - 36.219 an extensive hearing in front of senior Judge Ren

02:51 - 40.490 and they were asked, what do you mean by the word consistent?

02:51 - 44.160 They said, well, I can't rule it out.

02:51 - 47.163 It's possible to some degree.

02:51 - 50.633 And then asked expressly,

02:51 - 55.247 are you holding this to a reasonable degree of certainty?

02:51 - 58.574 Their answer was it's not held.

02:51 - 02.945 In other words, their manner of death, opinion, quote,

02:52 - 08.284 it's not held to a reasonable degree of medical certainty.

02:52 - 11.654 It's more likely than not.

02:52 - 15.401 I suggestion is simple

02:52 - 18.237 that when the judge said, I'll let you testify

02:52 - 21.373 about the physical facts and I'll let you testify

02:52 - 24.710 about cause of death, and I'll let you testify

02:52 - 28.738 what might or might not cause an injury to the kidneys.

02:52 - 30.105 That's all fine.

02:52 - 32.285 But I will not

02:52 - 35.778 let you give an opinion on one issue.

02:52 - 37.489 Manner of death.

02:52 - 39.591 Calling it homicide.

02:52 - 43.286 That that was not only not an abuse of discretion.

02:52 - 48.558 That was an absolutely correct application of law

02:52 - 51.994 on that very narrow holding.

02:52 - 54.973 The Superior Court,

02:52 - 59.135 from which Judge Lazarus dissented on this issue,

02:53 - 02.748 said twice

02:53 - 05.775 when an expert is giving an opinion

02:53 - 08.854 as opposed to fact,

02:53 - 11.881 that only needs to be probable.

02:53 - 16.695 And I suggest to this court that that is contrary

02:53 - 19.698 to every precedential holding

02:53 - 22.534 on manner and cause of death.

02:53 - 25.003 It is contrary to every holding

02:53 - 27.940 on any type of expert,

02:53 - 30.967 whether it's medical accounting,

02:53 - 34.804 legal malpractice, you name it.

02:53 - 38.174 Drunk driving, relating back.

02:53 - 41.344 It's contrary to rule 702

02:53 - 45.023 and in particular to the commentary.

02:53 - 48.050 And the case was cited in seven and two.

02:53 - 51.154 In its commentary, a case called McMahon.

02:53 - 55.534 And when you get

02:53 - 58.594 my opponent, when they filed their brief,

02:53 - 03.299 declined to even acknowledge most of that precedent.

02:54 - 07.437 It is literally not mentioned in their brief.

02:54 - 11.617 I would suggest to the court

02:54 - 14.644 that there may be 4 or 5 cases

02:54 - 17.780 that really wrap this up.

02:54 - 23.529 One is cold spots, spotty sick because in spots there's a

02:54 - 27.032 very specific issue was reasonable

02:54 - 30.059 degree of certainty for manner of death.

02:54 - 35.741 Some of the other cold cases are cause of death, manner of death, but in spots

02:54 - 39.411 in particular, the defendant objected

02:54 - 42.414 and said, well, you didn't use those words.

02:54 - 45.250 And the court said, you don't have to use the words, but

02:54 - 48.845 you have to have to have that level of certainty.

02:54 - 53.349 It's the no magic words, but give us that level of certainty.

02:54 - 56.619 And again, if I were to turn to the language

02:54 - 00.256 that the expert used in this case,

02:55 - 04.694 that's exactly not that level of certainty.

02:55 - 09.432 Another case of particular importance is called Edmundston.

02:55 - 13.236 Edmundston was cause of death not minor,

02:55 - 17.406 but obviously in there the expert testified to both.

02:55 - 20.752 What is particularly important is language

02:55 - 26.015 in Edmundston that a medical opinion has to be,

02:55 - 30.152 to a degree of medical or scientific certainty.

02:55 - 33.923 I urge you to find that particularly important

02:55 - 36.902 because my opponent, in their brief,

02:55 - 39.929 said what this witness was giving

02:55 - 43.666 was medical opinion, testimony.

02:55 - 45.912 If one were to

02:55 - 49.005 turn to the commentary to rule 702,

02:55 - 52.675 because work Knowledge rule 702 itself

02:55 - 57.747 never mentions the words reasonable degree of certainty, it's our free standard,

02:55 - 00.759 but the commentary makes clear

02:56 - 04.887 that Pennsylvania retains a reasonable degree of certainty.

02:56 - 08.691 And then it cites to a case called McMann,

02:56 - 11.794 not a criminal case, a civil case

02:56 - 15.040 like Mann actually says.

02:56 - 17.943 You don't have it in this case,

02:56 - 20.970 because the expert in McMann

02:56 - 23.849 used the word probably,

02:56 - 26.218 so probably doesn't cut it.

02:56 - 30.546 I again suggest it's possible to some degree

02:56 - 34.083 really cannot.

02:56 - 39.498 Have two points there because

02:56 - 41.700 I traveled a long way to come here.

02:56 - 44.570 Really want to talk to you for a while.

02:56 - 48.631 But but I suggest respectfully, that's mostly the case.

02:56 - 52.702 It's.

02:56 - 58.641 I could find not a single case on any type of expert.

02:56 - 59.919 Forgive me.

02:56 - 03.746 Issue in Pennsylvania, where this has been tolerated.

02:57 - 07.817 It just doesn't happen.

02:57 - 13.956 And when the Superior Court majority

02:57 - 16.969 said, well, it's okay

02:57 - 19.996 because there's this case called Smith

02:57 - 23.942 and Smith cited to a case

02:57 - 26.969 from the 1930s called Lederer

02:57 - 32.575 letter was a civil case about whether a coroner's report

02:57 - 37.013 was admissible in an insurance dispute case.

02:57 - 39.291 Case does not translate to this case.

02:57 - 41.960 I would suggest that's exactly right.

02:57 - 44.987 And so I suggest to this court

02:57 - 49.225 that little or nothing does God's counsel.

02:57 - 52.304 Yes. You travel to far away and travel as far as you.

02:57 - 55.331 But I'll ask a question I appreciate.

02:57 - 57.009 I figured you would.

02:57 - 00.879 So if I were to try to put, I think, the best spin

02:58 - 03.873 on the Commonwealth's argument here, and I'd like you to respond to it, is

02:58 - 06.852 under the free test, reasonable degree of professional

02:58 - 10.079 certainty is sort of this umbrella.

02:58 - 12.214 But depending on the professional

02:58 - 15.894 and what is reasonable in that profession

02:58 - 19.588 might be different than other professions.

02:58 - 23.168 And I think what they seem to be arguing

02:58 - 27.096 is that in the area of coroners,

02:58 - 30.366 and medical examiners,

02:58 - 34.937 their reasonable degree of professional certainty is more likely than not.

02:58 - 38.074 And that's therefore compliant with Frye.

02:58 - 40.218 How do you respond to that?

02:58 - 41.286 A couple of ways.

02:58 - 44.289 Justice, perhaps, and number one,

02:58 - 49.885 that comes from our statute, the coroner's statute,

02:58 - 53.889 which explains the role of the coroner

02:58 - 59.195 not in a criminal case, but in making an assessment of

02:58 - 02.441 how do I initially classify a case?

02:59 - 05.410 Do I send it on to a prosecutor?

02:59 - 08.437 What do I put on a death certificate?

02:59 - 12.541 I suggest that's apples to oranges.

02:59 - 13.785 Well, you said criminal case.

02:59 - 16.688 It would be, it would be apples to oranges.

02:59 - 18.824 Under your view, in a civil case as well.

02:59 - 21.884 There's no separate 702 standard for civil and criminal.

02:59 - 22.729 I'm sorry.

02:59 - 28.324 So I should say, actually, in an initial coroner's proceeding, not at a trial.

02:59 - 29.135 You are correct.

02:59 - 31.536 And I appreciate that correction.

02:59 - 33.295 The second is

02:59 - 36.675 this court has said

02:59 - 39.902 that's not acceptable for manner of death.

02:59 - 42.215 Okay.

02:59 - 44.583 And that's why I decided to spot.

02:59 - 45.851 The third is I have to tell you

02:59 - 49.712 that my understanding is that this expert is from Colorado.

02:59 - 53.749 I went and looked at Colorado cases just to see.

02:59 - 56.228 Gee, they they were different.

02:59 - 58.263 I couldn't find any different.

02:59 - 01.290 The one case I could find about manner of death

03:00 - 04.293 was a reasonable degree of certainty. And.

03:00 - 10.966 I really do understand the nuance of your question,

03:00 - 14.679 but I want you to have a chance to respond to it, because I really do

03:00 - 15.548 think that's the.

03:00 - 17.649 As I understand, the Commonwealth's position, that's our position.

03:00 - 20.676 Okay. And.

03:00 - 25.724 If it is more likely than not,

03:00 - 28.460 then that's a level of

03:00 - 31.487 whether we call it certainty or uncertainty

03:00 - 35.457 that this court has simply said we don't tolerate.

03:00 - 39.528 And that doesn't belong, particularly in a criminal case.

03:00 - 43.999 And if I may just follow up with one final point there.

03:00 - 45.710 What are we talking about here?

03:00 - 49.138 At the end of the day, this jury has to decide what happened.

03:00 - 54.476 Jurors decide cause of death even when there's an expert opinion,

03:00 - 58.414 because we could have experts who disagree about causes of death.

03:00 - 01.726 Someone could say, it was the heart attack.

03:01 - 04.529 Someone could say no, it was something else. Okay.

03:01 - 05.921 They have to decide that.

03:01 - 09.892 And they also decide manner of death.

03:01 - 13.896 But then there's an expert coming into court

03:01 - 17.175 who says it's kind of iffy,

03:01 - 20.078 but I'm going to put my imprimatur

03:01 - 23.105 or my thumb on the scale,

03:01 - 26.151 let them give the facts.

03:01 - 29.178 But until their opinion

03:01 - 32.248 has some substance to it,

03:01 - 35.985 they should not be able to add that opinion.

03:01 - 38.997 Jurors can define certain

03:01 - 42.024 things from facts I've referenced earlier.

03:01 - 45.370 I think it was the injuries to the kidneys.

03:01 - 48.898 And the expert was saying, I don't think it could have happened this way.

03:01 - 51.643 I really think it could only happen that way.

03:01 - 54.613 Totally fair testimony.

03:01 - 58.583 But don't tell the jury how to think about it when you're actually

03:01 - 02.787 at a level of uncertainty yourself in that sense, or I can give you.

03:02 - 05.147 I'm sorry, I totally see your testimony.

03:02 - 09.518 If there is a scientific

03:02 - 12.631 basis for saying

03:02 - 15.658 so, if I get a bruise on my elbow,

03:02 - 20.505 could I have gotten that from leaning here absent?

03:02 - 22.474 Maybe some blood disease?

03:02 - 23.475 Probably not.

03:02 - 26.511 So it might be reasonable to say so.

03:02 - 30.439 You can't get it from leaning unless you have a blood condition.

03:02 - 33.118 You can get it from banking.

03:02 - 39.324 I'm assuming that there would be a scientific basis to explain

03:02 - 42.918 the possible mechanisms of an injury, and whether

03:02 - 46.164 it would be plausible

03:02 - 49.191 that it happened in manner, ex, or manner. Why?

03:02 - 53.195 Because I think, Justice Donoghue, that can be good science.

03:02 - 56.441 I'm assuming, hopefully that it's

03:02 - 59.435 okay and would be based on good science.

03:02 - 04.749 And I think that Judge Ren was ready recognizing that when they're

03:03 - 08.644 talking about causes of death, because that's the physical equivalent.

03:03 - 12.314 That's part of this interests me because,

03:03 - 15.460 it use the facts of this case.

03:03 - 20.131 Tell me, tell me what the jury had from

03:03 - 25.394 which I could draw a conclusion without an expert

03:03 - 30.475 drawing the conclusion for them so they could draw a conclusion.

03:03 - 32.444 If I understand this, number

03:03 - 36.271 one, the causes of death, whichever one agrees is drowning,

03:03 - 40.485 they could draw a conclusion based.

03:03 - 44.289 Assume the expert could say the kidney injuries are less likely

03:03 - 48.117 from this kind of a fall than that kind of a fall.

03:03 - 52.797 And they could say that without a reasonable degree of medical certainty

03:03 - 53.466 basis.

03:03 - 56.725 No, I think that is reasonable degree of medical certainty.

03:03 - 01.163 What they can say is in this part, I'm sorry because

03:04 - 05.300 they already have that in this record that it was a medical

03:04 - 08.013 to a reasonable degree of medical certainty.

03:04 - 11.440 But that's part of what the cause of death testimony. Yes.

03:04 - 14.486 And so I was not clear.

03:04 - 17.513 Justice Donohue, I apologize.

03:04 - 19.524 I am assuming that

03:04 - 22.551 when an expert gives an opinion,

03:04 - 25.497 not just the global opinion

03:04 - 31.036 of cause of death is drowning, but subsidiary of pagans

03:04 - 35.440 such as, the lack of particularly.

03:04 - 38.243 I mean, acts something like that.

03:04 - 41.904 Those are all to a degree of medical certainty.

03:04 - 47.676 The one thing they cannot do is now do this incredible extrapolation.

03:04 - 50.622 That's what I'm saying about.

03:04 - 53.882 And the manner had to have been homicide.

03:04 - 58.520 So if they have good science as to each subordinate fact

03:04 - 03.101 and gives those to a reasonable degree of certainty, that's fine.

03:05 - 06.204 And I think that what they they can

03:05 - 09.231 and they can interpret the, the,

03:05 - 13.478 the fact that he was in an affair with someone else or sort of an affair

03:05 - 17.673 with someone else and his story changed or didn't change.

03:05 - 22.754 We did not appeal the Superior Court

03:05 - 27.349 reversal of Judge Ren on the admissibility of this,

03:05 - 30.862 experiment, demonstration

03:05 - 36.158 using another ATV and seeing how bodies fall or downfall.

03:05 - 41.206 So there will be a lot of facts for the jury to weigh.

03:05 - 44.542 And of course, for a judge at the end of the Commonwealth's case

03:05 - 50.239 to make a legal determination of is there sufficient evidence to go to a jury?

03:05 - 55.144 But we don't need magic words of manner of death

03:05 - 59.414 when they're not scientifically supported.

03:06 - 04.553 Okay.

03:06 - 05.664 I did enjoy

03:06 - 10.025 traveling this great distance, and I do want to send them a personal note.

03:06 - 12.937 Thank you for talking about the justices.

03:06 - 17.032 I had the privilege of appearing in front of every one of those that you mentioned.

03:06 - 18.243 Really? Going back to Robert.

03:06 - 21.470 Stephen, I'm an old knight and justice that.

03:06 - 22.915 Yes, sir.

03:06 - 25.941 I started in 1978.

03:06 - 27.218 Thank you.

03:06 - 28.187 Person.

03:06 - 31.613 Audio presentation I was fascinated.

03:06 - 33.549 Did we all? We did. That's right.

03:06 - 35.760 Thank you for

03:06 - 38.787 your kindness and listening to me.

03:06 - 41.966 Welcome back.

03:06 - 44.993 Yes. If you aren't sick of me yet.

03:06 - 47.840 Welcome, judges.

03:06 - 50.899 I remain Stefflon Barnum for the York County DA's office.

03:06 - 56.438 I have been part of this case since 2013.

03:06 - 00.752 Like you guys, I am very much in the weeds of this case.

03:07 - 03.588 It's facts and it's procedural history.

03:07 - 05.290 You're up a creek, as it were.

03:07 - 08.317 Oh, I am in a creek with an ATV on me.

03:07 - 10.962 But Your Honors were here

03:07 - 14.423 not for what I did or didn't respond to in a brief.

03:07 - 19.470 We're here to discuss manner of death, its interplay

03:07 - 24.766 with our rules, and, more importantly, its relevance to cases like this.

03:07 - 27.679 Let's be very clear what this case is about.

03:07 - 29.147 No one disputes cause of death.

03:07 - 30.748 Cause of death is drowning.

03:07 - 33.551 The issue for the jury to consider is,

03:07 - 36.688 was this drowning at the hands of another

03:07 - 40.649 or state a differently not self-inflicted or

03:07 - 45.087 that's accident or homicide. Be.

03:07 - 50.025 Some type of peaceful great violence and

03:07 - 54.029 it should be expressed all

03:07 - 55.907 the jurors.

03:07 - 58.576 So when that has happened, when a manner of death

03:07 - 01.603 opinion has been made, and we've seen this in capital cases,

03:08 - 06.875 in particular Daniel Jacobs out of York, and Eric Woodard out of York,

03:08 - 10.078 they were accompanied by limiting instructions from the judge.

03:08 - 12.090 And those limiting instructions were very clear.

03:08 - 15.159 And how the jury was to orient themselves to the presentation

03:08 - 18.253 of that evidence and what they were not to draw from that.

03:08 - 21.990 I believe the one instruction was that it is a medical opinion only.

03:08 - 24.469 You were the ultimate determiner of the.

03:08 - 28.196 It's a standard instruction, regardless of instructions.

03:08 - 33.068 What what basis

03:08 - 38.316 do you and the Superior Court have for saying that expert testimony

03:08 - 42.778 in this case is different from expert testimony in every other case

03:08 - 46.357 in Pennsylvania, everybody here was trained

03:08 - 49.384 under the reasonable degree of certainty, standard

03:08 - 53.689 that we now have something invented by this panel that's called sturdy,

03:08 - 56.668 which I've never I've never heard of.

03:08 - 59.570 Can you give me some basis for this, for sturdy?

03:08 - 01.029 No, but I can,

03:09 - 05.600 dovetail off of, Justice Robson's

03:09 - 08.637 summation of my chief argument.

03:09 - 11.916 When we look at the coroner, who in Pennsylvania

03:09 - 15.877 is the person authorized to make manner of death determinations, and that's

03:09 - 20.082 what their job is, that they're part of their part of their job.

03:09 - 21.359 Part of their job.

03:09 - 25.053 Their standard is probable.

03:09 - 28.790 More likely than not, that is their professional standard.

03:09 - 31.803 Part of it is related to

03:09 - 36.574 how Pennsylvania Alexis, coroners not a coroner is not required

03:09 - 40.669 to have a medical background, a mental gray medical experience.

03:09 - 45.707 They could be, for a while, our coroner in York County was a registered nurse.

03:09 - 48.319 But you could be a police chief.

03:09 - 50.221 You could be a dentist.

03:09 - 53.124 You could be a administrator for grants.

03:09 - 57.786 The Coroners Act is not require any kind of specialized knowledge.

03:09 - 02.657 What they require it that remarkably comma

03:10 - 06.261 the Coroners Act does not require specialized.

03:10 - 08.940 I will not comment on the legislature's decision

03:10 - 13.911 to have the coroner's act written as it is, but that's the statute

03:10 - 17.439 as it exists, and that is the guidelines that they follow.

03:10 - 22.511 To ask them to have the magic buzzwords, so to speak,

03:10 - 27.449 is essentially to say that your professional standard doesn't cut it.

03:10 - 30.328 Well, you're, you're you're talking apples and oranges here.

03:10 - 33.789 You're you're telling us something about how coroners are selected,

03:10 - 38.059 and then you're jumping from that to,

03:10 - 43.174 to our rules about admissibility of experts

03:10 - 47.936 consistent with rule 702 and the cases like McMann, etc., under it.

03:10 - 51.048 So there there are all kinds of things out there

03:10 - 54.242 in the world that are probable or likely or whatever.

03:10 - 58.547 And that may have some may have statutes that speak to them,

03:10 - 03.685 but when they come into court to testify and to get an expert opinion to a jury,

03:11 - 09.658 everybody knows from law students forward, it has to be to a reasonable degree

03:11 - 14.739 of medical or accounting or or or, you know, whatever certainty.

03:11 - 18.366 I mean, that's that that's why this case is so shocking.

03:11 - 22.604 I don't think I've ever seen anything like this from the Superior Court.

03:11 - 26.417 Why don't why don't you respond and tell me why I'm wrong?

03:11 - 29.053 Your honor, I, I was thinking about what you said.

03:11 - 32.080 A reasonable degree of medical or accounting.

03:11 - 33.724 We could rephrase this.

03:11 - 36.751 A reasonable breach of coroner

03:11 - 39.730 of training. It would be the same.

03:11 - 42.733 It wouldn't, because there's no such thing as,

03:11 - 46.404 being qualified as a coroner expert.

03:11 - 48.272 As you just pointed out, you could be a carpenter.

03:11 - 52.009 We used to have a carpenter, before my dad was coroner.

03:11 - 55.513 There was a carpenter, and then there was, like, a general practice

03:11 - 58.649 doctor, and I mean, there you can have anybody.

03:11 - 59.650 You just said so.

03:11 - 03.879 And Carpenter come in and testify to a reasonable degree of coroner certainty.

03:12 - 06.491 Has any court ever heard that testimony?

03:12 - 09.784 Your honor, every case I've looked at for manner of death and cause of death,

03:12 - 13.822 because they become intertwined so often in the case law.

03:12 - 15.433 And I don't know if that's just because

03:12 - 18.994 of how the issues were raised or how the decisions fallen.

03:12 - 22.640 Every time I've seen manner of death testify to and I have seen it

03:12 - 26.201 testified to, it's been accompanied with an instruction,

03:12 - 29.313 and there have been discussions on its relevancy.

03:12 - 34.910 And that relevancy has not been necessitated by a disagreement in,

03:12 - 37.823 I say accident.

03:12 - 42.584 You say homicide, but does it make it more helpful for the jury?

03:12 - 45.730 I think that's a large part of 702.

03:12 - 50.492 Is is this expert's testimony going to make evidence

03:12 - 54.996 more accessible, for lack of a better word to the jury?

03:12 - 56.208 I understand what Your Honor is.

03:12 - 59.234 You're saying he testifies probably homicide.

03:13 - 03.514 I think he would say that based on his review of the evidence.

03:13 - 05.616 You just said you just got done a whole litany of cases.

03:13 - 07.418 You've looked at any of the cases

03:13 - 10.445 you've looked at where it's where convictions have been sustained.

03:13 - 13.090 Have you ever seen a medical expert testified?

03:13 - 15.059 Probably

03:13 - 18.696 every case I said to you has been affirmed, I understand that.

03:13 - 21.966 Has anyone ever been affirmed because the test expert testified that

03:13 - 25.627 it was probably a homicide or more likely than not, it was a homicide.

03:13 - 29.040 The case that comes closest to what

03:13 - 32.934 the fact pattern you're asking about is, I believe, oh my goodness, out of York.

03:13 - 37.181 It in my brief,

03:13 - 40.208 but there was a,

03:13 - 43.454 the, was the thing was the pathologist

03:13 - 46.481 in that case rendered the opinion,

03:13 - 49.651 the instruction was given, everything was affirmed.

03:13 - 53.622 And now, mind you testified it was probably a homicide.

03:13 - 55.266 I don't believe a coroner testified.

03:13 - 58.469 And that's one of the issues, is in a lot of these cases, full

03:13 - 02.974 disclosure to the court, it's usually a forensic pathologist who has made those.

03:14 - 06.911 However, you will also find cases where the forensic pathologist

03:14 - 12.984 will decline or defer the, testimony on manner of death to the coroner,

03:14 - 18.856 as that is the agency, the person tasked with making that determination.

03:14 - 23.260 If that happens, I don't I'm not aware of any case

03:14 - 27.956 where a court has allowed a lay coroner to come in and testify

03:14 - 31.369 to a reasonable degree of medical certainty or any other kind of

03:14 - 35.830 certainty, which, you know, underscores the problem here,

03:14 - 40.535 because if you don't have that, I guess you come up with something like sturdy.

03:14 - 45.750 I mean, can you explain to this court the difference between expert testimony

03:14 - 50.245 that is sturdy and expert testimony that's not sturdy?

03:14 - 55.183 No. Here's what I can tell you.

03:14 - 59.754 I think what Superior Court is trying to get out

03:15 - 03.634 is that there's a difference in opinion that is equivocal,

03:15 - 07.538 that is noncommittal, that is wishy washy.

03:15 - 11.008 Pick any of those synonyms versus testimony

03:15 - 14.035 that is consistent within the bounds of its standard.

03:15 - 18.115 And I think when you have testimony that is consistent within the bounds

03:15 - 22.277 of its standard, that would be reliable, that would be sturdy.

03:15 - 25.747 We make we make room for different

03:15 - 29.326 like, Frye makes room

03:15 - 32.353 for you to consider what an expert

03:15 - 35.332 would rely on in their particular industry,

03:15 - 39.970 whether it's medical or coroner, things like that's where

03:15 - 45.876 sort of the industry by industry aspect to it comes into play is what is something

03:15 - 49.204 that people in my profession look at to make these conclusions.

03:15 - 53.384 You're taking it a step further, which is says and we're going to

03:15 - 54.252 look at what they

03:15 - 59.690 what they look at to do what they do on a daily basis, as also the reasonable

03:15 - 01.692 degree of professional certainty that we required. Or.

03:16 - 06.263 702 that's a leap further, that's suggesting that reasonable

03:16 - 10.759 degree of professional certainty is in some cases certain

03:16 - 14.562 and in some cases more likely than not.

03:16 - 18.609 And I think that's the problem we're having, is you want to make the case

03:16 - 21.946 about, cause of death

03:16 - 26.283 and manner of death for me, you could have had the case

03:16 - 30.612 about pink fuzzy hats or bullpen ball, you know, pens or pencils.

03:16 - 34.315 To me, the issue is how is our rule supposed to apply,

03:16 - 38.229 regardless of what the expert purported expert testimony is?

03:16 - 40.889 And that's where I'm that's where I'm struggling. So if you could

03:16 - 43.134 talk about pink fuzzy

03:16 - 46.161 hats or shag carpet or whatever you want to talk about,

03:16 - 49.907 not medical testimony, how do we how do we interpret

03:16 - 53.210 702 under the going forward, under the Superior Court's rubric?

03:16 - 56.237 And what you're arguing?

03:16 - 59.607 So looking at how Supreme Court broke it down,

03:17 - 03.511 they looked at the expert in terms of its overall qualifications.

03:17 - 06.757 Was he even qualified to make an opinion?

03:17 - 09.059 I think we start at the basics of 702.

03:17 - 11.996 Is the person able to render the opinion

03:17 - 15.023 or make the determination that he or she is making?

03:17 - 19.270 So if we look at that, in this case, step one, I think there isn't a dispute

03:17 - 23.331 that Doctor Caruso is a qualified medical examiner.

03:17 - 26.110 Able to make that determination.

03:17 - 29.137 I don't think that's a problem in this case.

03:17 - 32.307 So then we pop down the 702 list.

03:17 - 34.943 I give you one minute so I can pull out the 702 list.

03:17 - 40.558 But he's qualified to make the opinion.

03:17 - 42.560 You start there.

03:17 - 44.662 Second thing we look at is

03:17 - 48.890 his knowledge specialized helpful to the jury.

03:17 - 51.068 We look at that.

03:17 - 55.172 And I think that dovetails with is this the type of evidence

03:17 - 56.807 that would be helpful?

03:17 - 00.001 I am recalling a case from Pennsylvania Superior Court

03:18 - 04.248 where they were discussing a quarter or medical examiner coming

03:18 - 08.052 in, and this was a case of, you know, it was an accident.

03:18 - 08.920 Was it homicide?

03:18 - 11.055 Was it how did this death occurred?

03:18 - 13.324 There was no dispute on death.

03:18 - 17.785 And what they noted was it would be weird to have someone or not weird, but

03:18 - 21.198 difficult for the jury to have someone go in.

03:18 - 24.225 Describe all these circumstances

03:18 - 27.404 and then not have a conclusion.

03:18 - 32.300 Would that be more challenging for the jury to hear all of this and then stop?

03:18 - 33.911 But that goes to with justice.

03:18 - 37.372 One they asked earlier, it's not the matter in my mind,

03:18 - 40.174 as somebody who's been on both sides, you

03:18 - 43.721 the manner of death, the cause of death is drowning.

03:18 - 45.956 Everybody knows that there could have been a stipulation to that effect.

03:18 - 47.458 I think the problem comes in

03:18 - 51.028 when you ask the juror at yes, they the expert to give an opinion.

03:18 - 52.997 And he said probably a homicide.

03:18 - 55.633 First of all, I look at that as an invasion on the province of the jury.

03:18 - 57.768 More importantly, if we accept your argument

03:18 - 00.862 that it's allowable, it's almost like you're creating the

03:19 - 03.908 the expert to be a super juror because he's now

03:19 - 06.968 sitting in the box giving an opinion that, yeah, probably was a homicide.

03:19 - 10.881 In my mind, if I'm trying the case, that question doesn't even get asked,

03:19 - 11.949 because you can

03:19 - 15.152 I could bring in all of the other evidence that was presented in this particular

03:19 - 17.755 case, the email, everything else that came in

03:19 - 19.790 and then argued to the jury, they didn't tell me,

03:19 - 22.693 you don't have anybody here who says it's a homicide, but you know, who does?

03:19 - 24.728 The victim, the is telling you these things.

03:19 - 27.431 And and I understand the victim can't say that.

03:19 - 29.324 Can't say that at all. But my that's not real.

03:19 - 32.002 We tried to get into the back door.

03:19 - 34.438 You couldn't get in through the front door.

03:19 - 35.973 Part of this, Your Honor, is relevant.

03:19 - 38.108 Related to. And I hear exactly what you're saying.

03:19 - 42.070 Part of this is related to the history of this case, and it's procedural posture.

03:19 - 44.014 As your honor, you're well aware.

03:19 - 48.485 First go around jury convicts, and the trial judge overturns

03:19 - 53.147 the conviction because in his written opinion, we didn't prove matter of death.

03:19 - 56.160 Okay, that gets reversed.

03:19 - 00.021 We go to a second round of appeals, we come back, there's a bail hearing.

03:20 - 03.467 Bail is granted because we didn't show manner of death.

03:20 - 07.662 I think you're seeing the scene here and we go into now

03:20 - 10.898 having to produce manner of death evidence,

03:20 - 14.135 because our judge has now twice said you haven't shown it.

03:20 - 17.381 We present manner of death evidence,

03:20 - 21.418 and now we are told he can't testify because it's not relevant.

03:20 - 23.187 The jury can figure that out.

03:20 - 25.656 You can see where the Commonwealth might be a little confused.

03:20 - 30.785 Well, I'm a man or gets it confused or frustrated or whatever.

03:20 - 34.665 Doesn't allow for, the Commonwealth

03:20 - 38.493 or the Superior Court to change the law.

03:20 - 42.997 And so, so my, my question, I guess, is this,

03:20 - 46.701 do you not recognize that

03:20 - 51.939 that a premise of expert testimony is if we're going to allow this person

03:20 - 55.910 to get up in the witness box and look at the jury

03:20 - 01.049 and give an opinion as an expert with all the, the,

03:21 - 05.086 the weight that that entails and the credentialing and all that,

03:21 - 08.065 that, that we need them to be able

03:21 - 13.261 to give that to a reasonable degree of certainty in their discipline

03:21 - 18.633 medicine, accounting, pathology, orthopedics or whatever.

03:21 - 24.005 And that once we break that wall down and say probably or sturdy is fine,

03:21 - 27.251 you know, we're not just giving you a break so you can get it. Mr.

03:21 - 32.413 Fitzpatrick, we've then, you know, run a bulldozer through Pennsylvania law.

03:21 - 36.393 And now we have a tidal wave of cases with all kinds of quacks

03:21 - 39.420 coming in and saying what's probable or sturdy.

03:21 - 41.532 Don't you see the slippery slope problem?

03:21 - 43.300 I see it, and I respect that.

03:21 - 49.773 There is an obvious, I think, tension in 702 and it's language and requirements.

03:21 - 51.708 And I fully here what the court is saying.

03:21 - 54.812 I'm not pretending that 702 does not have a requirement

03:21 - 56.747 of reasonable degree of certainty.

03:21 - 00.575 What I am acknowledging is that there is tension between

03:22 - 05.313 what standards the coroner's use and the requirements of. 702.

03:22 - 07.758 I don't think I can get around that.

03:22 - 09.693 I understand, and that's where you're hanging your hat,

03:22 - 11.428 and I can understand why you're hanging your hat there.

03:22 - 14.832 But the but the and what you're asking us to say

03:22 - 18.960 is that when a coroner in the course of issuing a death certificate

03:22 - 23.407 makes a manner not at not a, a certificate that determines

03:22 - 26.551 whether someone is going to go to jail, potentially for the rest of their life.

03:22 - 30.380 They have to make a call, or they say it's inconclusive.

03:22 - 31.682 I suppose they can do that.

03:22 - 34.809 They can't say undetermined or something would need more investigation.

03:22 - 38.779 But you're saying that when when they apply that standard

03:22 - 41.792 to an administrative function,

03:22 - 44.819 non adjudicatory function, administrative function,

03:22 - 48.832 that they get that an expert testing to a reasonable degree of,

03:22 - 52.593 of professional certainty gets to draw upon

03:22 - 56.740 that standard in the administrative context and bring it into a court

03:22 - 00.134 proceeding in a criminal context or civil context or otherwise.

03:23 - 03.638 And I guess going back to my question about 702B,

03:23 - 09.443 tell me how an expert test, expert opinion

03:23 - 13.657 of more probable than not

03:23 - 19.353 aids a Trier of fact to determine a fact in issue

03:23 - 22.499 meaning manner of death

03:23 - 25.102 beyond a reasonable doubt.

03:23 - 28.863 How does more probable than not help a jury

03:23 - 32.600 determine that same fact as beyond a reasonable doubt?

03:23 - 37.505 It allows the jury to hear the evidence in context

03:23 - 41.075 with each other and with other parts of the investigation.

03:23 - 47.014 For example, one of the issues that Doctor Caruso looked at in this case

03:23 - 52.053 was the statement by defendant that he and the victim were on the ATV together,

03:23 - 57.358 and he observed her multiple injuries and noted his lack of injuries.

03:23 - 01.963 So as part of his assessment of the whole investigation,

03:24 - 06.934 he looked at, you know, how can that be, for lack of a better statement

03:24 - 11.572 and put that in the context of if this were an accident,

03:24 - 15.943 this is not a reasonable outcome for that accident.

03:24 - 20.891 He also looked at the statements made by defendant in conjunction

03:24 - 25.953 with other elements that were shown, for example, the missing cell phone,

03:24 - 28.166 the various

03:24 - 31.192 statements that morphed and changed over time.

03:24 - 35.739 So it's a matter of looking at each of the individual

03:24 - 39.900 injuries, looking at the circumstances and putting them into a context.

03:24 - 42.679 Vis-a-vis could it have been an accident?

03:24 - 45.315 Could it have been homicide

03:24 - 48.151 and weighing those in the totality of the case?

03:24 - 50.053 Then that's that's great.

03:24 - 53.781 And then had all of those things led him, in his professional judgment,

03:24 - 57.261 to conclude to a reasonable degree of forensic

03:24 - 00.921 pathology, certainty that the manner of death was homicide.

03:25 - 01.698 That would be fine.

03:25 - 02.100 And Mr.

03:25 - 05.259 Epstein or his colleague would cross and they would go to the jury.

03:25 - 08.829 But but having considered all of those things and everything else,

03:25 - 12.609 he still couldn't get you a reasonable degree of certainty

03:25 - 15.536 so that that should have been eliminated. Problem for you. I

03:25 - 18.048 do you say eliminate or limit?

03:25 - 20.384 Thank you. I'm so sorry.

03:25 - 24.288 I will point out, Your Honor, just for clarity, that he was

03:25 - 28.759 doctor Caruso was asked about standard, and he did say medical examiners

03:25 - 29.594 and coroners.

03:25 - 31.295 This is the standard they use.

03:25 - 33.797 That's what he testified to.

03:25 - 36.824 It is, given Doctor Caruso's

03:25 - 41.095 expertise, his background in aquatic deaths.

03:25 - 46.734 It puts us in a difficult position because we are not a medical examiner state.

03:25 - 50.681 We are a coroner state, and I know I keep coming back

03:25 - 53.617 to their roles and responsibilities, but that's where the attention to me is.

03:25 - 59.613 Are you saying it's impossible for a medical examiner or coroner

03:26 - 03.017 to give an expert opinion

03:26 - 04.995 beyond more probable than not?

03:26 - 05.463 Is that

03:26 - 08.632 are you saying that it's impossible under the rules of professional ethics

03:26 - 11.001 that govern them from being able to do that?

03:26 - 14.795 That is my understanding, and I'm not definitely an incorrect understanding.

03:26 - 20.201 I can tell you, I will represent that happens all the time.

03:26 - 24.705 So for you to stand here and say, I know you're

03:26 - 28.943 honestly saying what you're saying, but it's just factually incorrect to say that

03:26 - 34.291 that in this nation, forensic pathologists are not testifying

03:26 - 37.828 to manner of death to a reasonable degree of certainty every day.

03:26 - 40.855 You're just happened to be incorrect. No.

03:26 - 42.733 And I appreciate what you're saying.

03:26 - 44.234 But just one more thing.

03:26 - 48.271 The fact that this Commonwealth may have mostly coroners

03:26 - 52.233 and a at least two, I think more than two now, medical examiners,

03:26 - 56.837 Allegheny and Philly being to I think is immaterial

03:26 - 01.709 because you can find experts as you did here, legitimately an expert from Colorado

03:27 - 04.755 who unquestionable has unquestionably

03:27 - 07.882 has the credentials and can give testimony.

03:27 - 10.360 I'm sure there are many cases.

03:27 - 14.030 Would you agree that Doctor Caruso could have testified

03:27 - 18.568 and probably has to a reasonable degree of forensic, pathological certainty

03:27 - 19.593 as to manner of death?

03:27 - 23.998 I haven't looked up his extensive history in testimony.

03:27 - 27.978 I can tell you, based on the transcripts he did in this case, when he was posed

03:27 - 32.139 that question, he said this is the standard that Emmys and coroners use.

03:27 - 34.451 I can only go by the record that is before you.

03:27 - 35.286 So that's the record.

03:27 - 39.547 I'm, but I think your argument is I if I'm understanding your argument,

03:27 - 41.725 your argument is

03:27 - 45.386 he is testifying to a reasonable degree of professional certainty.

03:27 - 49.399 And every coroner Emmy that has done it has done it to the same level

03:27 - 51.067 that he's done it. That's what you're saying.

03:27 - 55.563 Whenever, whenever a coroner walks in record or walks into a bar,

03:27 - 59.633 you know, whenever a coroner walks in, the coroner is going to testify.

03:27 - 00.044 Yeah.

03:28 - 03.237 And all the cases, a reasonable degree of professional certainty,

03:28 - 06.807 manner of death was why you translate that into.

03:28 - 10.120 Well, because coroners only ever talk about.

03:28 - 12.556 More likely than not, that's what they mean.

03:28 - 14.024 That's kind of your argument.

03:28 - 16.359 Your argument is it's all code.

03:28 - 19.196 That's and I hate to say it essentially, but

03:28 - 22.223 they're testifying to the standard that they would hold their opinion to.

03:28 - 27.137 So to it's a weird argument to make because we all have an understanding

03:28 - 30.631 of what a reasonable degree of professional certainty is,

03:28 - 33.343 but their professional certainty

03:28 - 37.314 is not to the level we would put to a medical exam or,

03:28 - 41.451 excuse me, a forensic pathologist, I understand that, but I what?

03:28 - 45.980 I don't want this court to take away is that no coroner

03:28 - 50.651 could ever testify in a criminal case to interrupt for a moment.

03:28 - 51.728 Worse.

03:28 - 55.265 I'm confused because the expert that you are

03:28 - 58.292 using here is a forensic pathologist.

03:28 - 02.162 He is not the coroner in this case.

03:29 - 08.002 You bring in an expert in forensic pathology from another jurisdiction,

03:29 - 11.672 and somehow you impose

03:29 - 18.188 or surround him with a standard of care that has nothing to do with who he is.

03:29 - 21.515 He is a forensic pathologist who's been brought in

03:29 - 23.793 to examine the facts of this case.

03:29 - 26.854 The standard of care for a forensic pathologist

03:29 - 30.124 is within a reasonable degree of medical certainty.

03:29 - 33.336 Superimposing coroner statutes

03:29 - 38.432 and duties, and what they do has nothing to do with what happened here,

03:29 - 41.778 if I may, to help kind of clear up some of the confusion.

03:29 - 43.480 We did bring in Doctor Caruso.

03:29 - 46.740 He is a medical examiner out of, I think, Colorado.

03:29 - 49.853 He is board certified in

03:29 - 53.480 pathology and he certainly could be a forensic pathologist.

03:29 - 56.192 His role is of a medical examiner.

03:29 - 59.553 And when we brought him here, it was in that capacity.

03:29 - 04.000 And he reviewed the manner in the same way our coroner would,

03:30 - 07.461 as that would be the equivalent to what he would have done in Colorado.

03:30 - 11.098 Why would he do that in a court of law?

03:30 - 17.104 What why would he do that in a context that has nothing to do with the functions

03:30 - 20.274 of a coroner on a day to day basis?

03:30 - 22.920 I'm not sure on so long.

03:30 - 25.088 And I apologize.

03:30 - 28.058 This expert was brought in.

03:30 - 31.552 You're saying as a medical examiner. Yes.

03:30 - 35.799 Why would he not be bound

03:30 - 38.826 by the standard of care

03:30 - 42.830 in which he is certified, which is forensic pathology?

03:30 - 47.310 Why are you morphing him into into.

03:30 - 49.036 Oh, well, you're just like a coroner here.

03:30 - 54.851 I'm not trying to morph him

03:30 - 57.878 into a comparable Pennsylvania role.

03:30 - 03.460 I am acknowledging what he said his standard is and how he would use that

03:31 - 07.388 standard, and the determinations he made based on the standard that he would use.

03:31 - 09.099 But it's not a conversation you have.

03:31 - 11.601 If we hire an expert, I'm not going to hire an expert.

03:31 - 15.663 That's going to say probably it's homicide, especially not one from Colorado

03:31 - 19.009 if that that expert Doctor Caruso is probably testified.

03:31 - 20.343 I'm sure you found the guy.

03:31 - 23.370 He's probably testified in hundreds, if not thousands of cases.

03:31 - 26.149 And in those cases, he's used the same exact standard,

03:31 - 29.410 which is to a reasonable degree of medical or scientific certainty.

03:31 - 32.756 You hired a guy from Colorado to come in here and testify, probably

03:31 - 34.014 in Pennsylvania law is

03:31 - 38.328 to a reasonable degree of medical certainty.

03:31 - 40.130 Yet he didn't touch on that standard.

03:31 - 41.464 He didn't testify that standard.

03:31 - 43.633 So I'm just wondering why even hire the guy

03:31 - 46.660 if he's not going to give you what you need in front of the jury?

03:31 - 50.440 We hired him because of his expertise in aquatic deaths.

03:31 - 52.642 Full disclosure that was a large part.

03:31 - 54.778 This is an aquatic death case, right?

03:31 - 55.746 Because that.

03:31 - 58.906 But to follow up on justice Donoghue and Justice McCaffrey, you.

03:31 - 03.186 I think you're well, I guess you're forced to be here creative here.

03:32 - 06.990 But I'm his discipline is discipline.

03:32 - 09.159 His board certification.

03:32 - 12.186 He's board certified in forensic pathology.

03:32 - 16.890 There is no such thing as board certification in medical examiners.

03:32 - 22.372 So to try to transmogrified him into into giving expert

03:32 - 27.835 testimony on Pennsylvania's coroner statute is is a non is a nonstarter.

03:32 - 31.815 You brought him here for his expertise in forensic pathology.

03:32 - 34.551 You couldn't get him because he's being candid.

03:32 - 38.021 Obviously he can't get to a reasonable degree of certainty.

03:32 - 40.948 And that's your problem here, it seems to me. Why am I wrong?

03:32 - 47.630 I'm formulating response.

03:32 - 48.998 It's been a long day.

03:32 - 52.702 It's a reasonable concern, I think, beyond reasonable doubt.

03:32 - 54.671 It's been a long day.

03:32 - 55.939 I hear what Your Honor saying.

03:32 - 57.474 I really do.

03:32 - 00.501 But I think where the disconnect for all of us is happening

03:33 - 04.671 is, at the end of the day, tech Caruso and his

03:33 - 10.120 out of Colorado take him out of any place that isn't York, Pennsylvania.

03:33 - 11.287 Let's call him.

03:33 - 13.356 And at this so I can prove my my point.

03:33 - 15.959 I understand I'm kind of changing the hypo here.

03:33 - 19.820 If he were to come in same qualifications, but he's the elected coroner,

03:33 - 26.293 he would still make the same decisions based on the same standard.

03:33 - 28.972 That does not change.

03:33 - 32.666 But though he has additional qualifications

03:33 - 38.539 and it's great that he has additional qualifications, that doesn't change

03:33 - 43.219 the ultimate standard by which the manner of death determination.

03:33 - 46.547 I believe counsel that that that I think,

03:33 - 48.558 digs your whole deeper.

03:33 - 48.759 Right.

03:33 - 54.564 Because suppose Doctor Caruso happened in addition to being, you know, board

03:33 - 58.935 certified forensic pathologist happened also to be the coroner or M.E.

03:33 - 01.962 in Denver or or Colorado Springs or whatever.

03:34 - 06.500 He would still in York County Common Pleas Court

03:34 - 11.815 be asked to testify to a reasonable degree of forensic pathology testimony

03:34 - 17.544 and not to a reasonable degree of coroner or medical examiner testimony, you see,

03:34 - 22.382 so that his value, if to the extent there's value to his testimony,

03:34 - 25.595 is that he can look at that

03:34 - 29.022 jury and, and and teach them

03:34 - 34.637 about his discipline board certified forensic pathology,

03:34 - 38.966 not get up there and say what he thinks about Pennsylvania's coroner statute.

03:34 - 42.002 Am I wrong?

03:34 - 46.373 I think, gosh, so here's where I'm at.

03:34 - 49.042 Just a select and.

03:34 - 52.655 I'm asking him to come in

03:34 - 56.550 and go through the same investigative process

03:34 - 59.953 that the coroner would do in a manner of death termination.

03:35 - 00.631 I don't think you and

03:35 - 03.657 I are in disagreement that that is the investigation he's doing.

03:35 - 06.269 And let me stop you there.

03:35 - 09.038 Aren't you, in some respects, looking at it

03:35 - 12.332 as if this is a malpractice case and he's going to talk.

03:35 - 15.211 Talk about what?

03:35 - 20.750 Reasonable medical examiners in, you know, Carbon County would have done

03:35 - 25.321 or what, reasonable doctor at a children's hospital will have done.

03:35 - 26.589 That's not this case.

03:35 - 32.119 This case is about cause and manner of death in a criminal homicide case.

03:35 - 37.567 So I think we're crossing over a little bit what you're trying to establish.

03:35 - 39.293 But maybe you'll straighten me out on that.

03:35 - 42.338 I think part of our

03:35 - 46.066 difficulty is going back to 1939, at least as far as I could see.

03:35 - 49.670 And in looking at this court's definitions

03:35 - 53.373 of cause of death, manner of death, and recognizing they are different,

03:35 - 57.377 one is, you know, the cause of death is

03:35 - 00.814 mechanism of death has a medical basis,

03:36 - 03.660 reasonable degree of uncertainty.

03:36 - 05.762 No one is disputing that.

03:36 - 09.189 And then we look at manner of death, which we all agree is a different

03:36 - 11.968 kettle of fish. It is an orange to an apple.

03:36 - 16.830 It is not the same assessment because you're looking at the circumstances

03:36 - 20.600 and the totality of those circumstances as it involves death.

03:36 - 25.205 It is an opinion, but not in the same respect

03:36 - 28.442 and manner that cause of death is.

03:36 - 32.446 I go back to the Smith's case, which has remained the law

03:36 - 35.716 when it said manner of death is probable.

03:36 - 39.686 So that has been the case law in Pennsylvania, going back to Smith.

03:36 - 41.030 Apples and oranges.

03:36 - 45.034 Aren't you talking about a case letter from 1939

03:36 - 46.936 was talking about death certificates.

03:36 - 53.009 Letter is cited only for the proposition that going back to 1939, that that was

03:36 - 57.404 been our understanding of the degree necessary to find manner of death.

03:36 - 00.874 I'm not saying that letter is a perfectly on point case,

03:37 - 03.820 and it's, you know, directly on point.

03:37 - 07.481 I'm using it for its persuasive value that in going back

03:37 - 10.493 decades, this is how we viewed manner of death.

03:37 - 11.995 It is not a new concept.

03:37 - 14.254 That manner of death is probably

03:37 - 17.433 what is the what is the evidentiary weight

03:37 - 21.094 of a coroner's certificate in a criminal proceeding?

03:37 - 23.940 Whatever weight the jury wants to give it.

03:37 - 28.978 So you would you would offer the court, you could offer the coroner's certificate,

03:37 - 31.881 or the defense could come forward and say, here's the coroner's certificates.

03:37 - 32.749 It's undetermined.

03:37 - 33.350 Absolutely.

03:37 - 35.485 And the the jury could

03:37 - 38.755 look at that and say, oh, well, the coroner said it was undetermined.

03:37 - 40.356 It can't be homicide.

03:37 - 43.383 From what I'm marking today, that'd be a perfectly valid defense.

03:37 - 45.261 And I'm not going to say no.

03:37 - 49.298 Only the Commonwealth can bring stuff in if there is something that is exculpatory

03:37 - 54.337 or potentially exculpatory and it's relevant, then it comes in under 41402.

03:37 - 56.606 I just briefly follow up on that.

03:37 - 59.900 Because, I think that's a good point, that that,

03:37 - 04.514 in these cases, death certificates come in.

03:38 - 07.050 And by the way, they get amended sometimes. Absolutely.

03:38 - 11.621 It can come in as a manner of death, undetermined, and the case gets tried

03:38 - 16.116 and they return to guilty on homicide, on murder. So,

03:38 - 20.463 regardless of what's going on with the death certificate

03:38 - 23.657 or not going on with the death certificate or whether the whether the

03:38 - 27.294 pathologist changes his opinion and there's a new certificate,

03:38 - 29.205 the jury's still going to be deciding

03:38 - 33.109 based on admissible expert testimony and the rest of the evidence.

03:38 - 34.377 Right.

03:38 - 37.814 None of that changes the standard we have under rule

03:38 - 41.675 702 for the judge to allow the jury to hear that expert right.

03:38 - 44.253 That's still whatever the standard is.

03:38 - 47.280 Isn't that a separate matter?

03:38 - 52.161 Let me make sure I understand the question.

03:38 - 55.188 Are you asking if.

03:38 - 57.333 What a way I put it this way.

03:38 - 01.361 Whatever the case is with the death certificate, whether there's just one

03:39 - 05.374 or historically, the certificates been changed or whatever

03:39 - 10.570 it says undetermined or it says homicide, whatever it it still doesn't

03:39 - 15.542 alter whatever the law is that we require

03:39 - 19.412 before we let that expert look at that jury and give an opinion

03:39 - 22.925 on cause and manner of death in the courtroom, isn't that right?

03:39 - 24.460 I would have to agree with you.

03:39 - 30.032 What my argument is, is when your standard is probable,