00:03 - Oh yeah, oh yeah.

00:04 - Oh, yeah.

00:05 - All manner of persons who stand down by reconnaissance,

00:08 - who otherwise have business before this working out here in.

00:11 - They shall be heard.

00:12 - God save the Commonwealth in this hour.

00:14 - Please be seated.

00:18 - Good morning everyone.

00:20 - Welcome to the third day of our spring

00:23 - oral argument session here in beautiful downtown Pittsburgh.

00:27 - As you may know, the Pennsylvania Supreme Court

00:30 - is the oldest appellate court in North America.

00:33 - Our roots date back to William Penn's

00:36 - Provincial Court of 1684, and our Supreme Court

00:41 - was formally established pursuant to the Pennsylvania

00:44 - Judiciary Act of 1722.

00:48 - In 2022, we celebrated our court's historic 300th anniversary

00:54 - in Philadelphia.

00:56 - We on this court are very proud of our rich history.

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

01:05 - of hanging oil portraits of former

01:08 - Chief justices in our courtroom space.

01:12 - Today, I'd just like to touch on some of the portraits here

01:15 - in our Pittsburgh courtroom.

01:17 - And I thank our court crier, Bryan Minner, for taking an interest

01:22 - in our court's history and compiling these biographies.

01:26 - Starting with the portrait hanging to my immediate left.

01:30 - Portrayed with glasses.

01:32 - Chief Justice Drew suffered from poor vision for most of his life.

01:38 - His doctors advised him to quit Columbia Law School

01:43 - because of the effect of reading lengthy opinions had on his eyesight,

01:47 - but he was undeterred, and he rose to the highest position

01:50 - in Pennsylvania's courts, likely because of his poor eyesight.

01:55 - Chief Justice Drew limited the length of his opinions, and joked

02:00 - that the legislature should charge judges for the printing cost

02:04 - of any opinions over three pages.

02:07 - To Drew's left is Chief Justice James Sterrett.

02:12 - He began his public service on the Allegheny County Common Pleas

02:16 - bench before his appointment to this court by Governor John Hart Craft.

02:21 - Justice Sterrett lost the following election, but ran again

02:25 - and won a seat on this bench.

02:26 - He became Chief Justice in 1893

02:30 - and served until his retirement in 1900.

02:34 - To Starrett, left, is Chief Justice Robert Frazier.

02:38 - Frazier also served as an Allegheny County Common

02:42 - Pleas Court judge before his election to this court in 1915.

02:47 - He became Chief Justice in 1930 and served

02:51 - until his retirement in 1936 at the age of 86.

02:56 - With a legal career spanning 62 years, 40 of those serving as a judge.

03:02 - In 1961, Governor David L

03:05 - Lawrence appointed Pennsylvania's Attorney General an exceptional person

03:10 - to become this court's first female justice.

03:14 - However, in order to win a full term, she had to run for election

03:19 - and she had to defeat Henry X O'Brien.

03:23 - The next portrait in the general election

03:26 - that same year, Alpen lost in a contentious election.

03:30 - During O'Brien's term on this court, he established the Lawyer

03:35 - Client Security Fund to reimburse

03:38 - clients that were defrauded by their lawyer.

03:41 - O'Brien served as Chief Justice

03:44 - from 1980 to 1983.

03:49 - I'd like to, give some brief

03:51 - instructions to counsel before we hear the first case.

03:56 - Appellant's counsel, please approach the podium when your case is called.

04:00 - I will then give a short summary of the case.

04:03 - Please begin by introducing yourself and your co-counsel

04:07 - and identifying the party you represent.

04:10 - The justices are familiar with your cases.

04:13 - So we ask that you avoid any unnecessary recitation of facts or procedural history,

04:19 - and instead focus on the main issues on which we granted review.

04:24 - Counsel is welcome to rely on their brief for any particular issues.

04:29 - In cases in which there are multiple parties represented by separate counsel.

04:34 - Council should avoid repeating the same arguments as prior counsel.

04:38 - Please try not to interrupt the justices when they are asking you a question.

04:43 - Justice, this question is not meant to trip you up.

04:46 - Rather, it indicates there are particular issues we wish to explore further.

04:51 - I also remind you that we do not permit rebuttal.

04:55 - Finally, while we have no set time limit for argument in our court,

05:00 - I will advise counsel when the court is satisfied

05:03 - that all of its questions have been answered.

05:06 - And at that time, I will ask that you conclude your argument.

05:10 - Mr. Miller, please call the first case.

05:14 - The next case is Commonwealth versus Ivory King,

05:16 - which presents the issue of whether a de facto life sentence

05:19 - for juvenile offenders who have been found to have the capacity

05:23 - to be rehabilitated, violates the prohibition on cruel

05:27 - and unusual punishment in the Eighth Amendment to the Constitution

05:30 - of the United States, or the prohibition on cruel punishments

05:34 - set forth in article one, section 13 of the Pennsylvania Constitution.

05:39 - In 1998, a then 17 year old

05:42 - king shot and killed four individuals at a party.

05:45 - He pled guilty and was convicted of four counts of first degree murder

05:49 - and related offenses, and was sentenced to four terms of life

05:52 - imprisonment without the possibility of parole for the murder.

05:56 - Offenses.

05:57 - In the early 20 tens, based on several United States Supreme Court

06:00 - decisions requiring individualized sentencing for juvenile offenders.

06:05 - He was resentenced to four consecutive

06:08 - terms of 20 years to life imprisonment,

06:11 - or a total of 80 years to life imprisonment.

06:15 - King appealed to the Superior Court, arguing that his sentence was a de facto

06:19 - life sentence and that such sentences as applied to defendants found capable

06:23 - of rehabilitation violate the Eighth Amendment and Article one, section 13.

06:29 - The Superior Court looked to an earlier decision in a case called Foust,

06:32 - rejecting the notion that courts should consider aggregate sentences

06:36 - in this context and rejecting the notion that de facto life sentences

06:40 - violate the Eighth Amendment.

06:42 - Based on Foust, the court rejected King's claim.

06:45 - Now, before the Supreme Court, King maintains that sentences

06:49 - should be evaluated with respect to the individual, not formalistic,

06:53 - and that both the Eighth Amendment in article one, section 13,

06:56 - forbid life sentences for those capable of rehabilitation.

07:01 - The Commonwealth argues that the resentencing court's finding that

07:04 - King had the capacity for rehabilitation was constitutionally unnecessary,

07:08 - and that force correctly recognized that courts should not aggregate sentences,

07:12 - because doing so would give criminal defendants, quote, volume discounts,

07:16 - unquote.

07:17 - The Commonwealth further contends that the US Supreme Court

07:21 - has rejected the notion that the Eighth Amendment requires any particular

07:24 - finding with respect to rehabilitation to justify a life sentence,

07:28 - and that this court should follow suit with respect to article one, section 13,

07:32 - particularly in light of Pennsylvania's long history

07:35 - of treating juveniles like adults when it comes to murder.

07:39 - Let's see the argument.

07:41 - Heller is a come on, Mr.

07:43 - Johnson.

07:46 - In this discretionary appeal,

07:49 - appellant was 17 years old when he shot and killed

07:53 - four people who were attending a memorial day party in 1998.

07:58 - Appellant pled guilty and was initially given four

08:01 - consecutive sentences of life without possibility of parole,

08:06 - but his sentence was vacated after the United

08:09 - Supreme Court held in Miller versus Alabama.

08:13 - That categorical life sentences for juveniles

08:16 - violated the prohibition against cruel and unusual

08:20 - punishment in the Eighth Amendment to the United States Constitution.

08:24 - Because such categorical sentences fail to account for the prospect

08:29 - that a juvenile was capable of rehabilitation.

08:33 - On re sentencing, the trial judge found that appellant

08:37 - was capable of rehabilitation, but nevertheless

08:40 - imposed a new sentence of 20 years to life for each murder

08:45 - and ordered those sentences to run consecutively, resulting in appellant

08:50 - receiving an aggregate sentence of 80 years to life.

08:54 - We are asked to address whether such a sentence constitutes cruel

08:59 - punishment under article one, section 13 of the Pennsylvania Constitution.

09:04 - Given the trial court's determination that appellant was capable

09:08 - of rehabilitation and whether in making this determination,

09:13 - his sentences should be considered in the aggregate or separately.

09:18 - Additionally, we are asked to determine if such a sentence constitutes an as

09:23 - applied violation of the Eighth Amendment to the United States Constitution.

09:29 - Good morning. Good morning,

09:32 - justices of the Supreme Court.

09:34 - Madam Chief Justice, may it please the court.

09:37 - My name is Caroline Heller from the law firm Greenberg Traurig.

09:40 - And here today with me are my co-counsel, Marsha Levick from the Juvenile

09:44 - Law Center and Bradley Bridge from the Philadelphia defender's office.

09:47 - Welcome.

09:48 - Together, we are pro bono counsel to appellant Ivory King.

09:54 - Just about a month ago,

09:56 - in Commonwealth Lee, this court held that the prohibition

10:00 - against cruel punishments in section 13 of the Pennsylvania Constitution

10:04 - is broader than the cruel and unusual punishments

10:08 - provision in the Eighth Amendment of the United States Constitution.

10:12 - In doing so, this court did not define cruel punishments

10:15 - or provide an exhaustive list of what constitutes a cruel punishment.

10:18 - However, this court did find that section 13 is founded

10:22 - on enlightenment principles of reformation and deterrence, and that punishments

10:27 - that exceed penal logical justifications for punishment

10:31 - are considered cruel because they go beyond what is necessary to punish.

10:36 - The court also

10:37 - found that concepts of what is cruel or what is necessary

10:40 - may change over time, based upon scientific advancements.

10:44 - In this case, based upon that holding

10:47 - ivory, King's sentence is considered a cruel punishment

10:51 - because it goes beyond the penal, logical justifications

10:54 - for punishing a child capable of change and rehabilitation.

10:59 - Counsel recommend.

11:03 - Several things.

11:04 - First, to hold that it is unconstitutional to punish a child capable of change

11:10 - and rehabilitation by imposing a sentence of actual life,

11:14 - or a sentence that is so long that it is unlikely

11:17 - the child will ever live to see the parole board.

11:20 - Second, to find that in evaluating the constitutionality

11:23 - of sentences for a child capable of change and rehabilitation,

11:27 - if there's a consecutive sentence or sentence that in the aggregate

11:32 - exceeds the life expectancy of the child, whereby the child will not get a chance

11:36 - to see the parole board that is to is unconstitutional.

11:41 - The problem?

11:42 - Oh, go ahead, Joseph.

11:43 - Here's my concern, my concern in Commonwealth versus Lee.

11:46 - We took the men's right into play.

11:49 - The fact that a juvenile mind is not as matured until age 21.

11:53 - This case is not about mens rea or the intent.

11:56 - The defendant here killed four people.

11:59 - The question before this court is, could we aggregate those ranges?

12:03 - And if we're aggregating them, why should we treat a juvenile defendant

12:06 - who murdered four people

12:08 - at 17.5, compared to an 18 year old who could have killed four people?

12:12 - And his follow up is

12:14 - then how many people have to die before they could get a de facto life sentence?

12:18 - So there are a couple of questions there.

12:20 - I'm going to try to take them in turn,

12:21 - and if I forget to get to one of them, please remind me.

12:24 - Let's talk about why this court should aggregate sentences for a juvenile

12:28 - who has been found guilty of several First-Degree murders.

12:33 - There are a bunch of reasons.

12:34 - The first is that section 13 is broader than the Eighth Amendment.

12:37 - So let's talk about what the Eighth Amendment guarantees first,

12:40 - and what those Eighth Amendment cases found in Miller and Graham Montgomery.

12:44 - All those cases, the courts did not focus on the nature of the crime.

12:49 - They focused on the nature of the child and how all children are different

12:53 - than adults because they aren't as mature and because their brain is developing.

12:57 - The court didn't say that

12:58 - children's brains are developing solely if they commit one crime.

13:02 - They focused on the child, not the crimes.

13:05 - In fact, for example, in Roper,

13:07 - the court didn't say death penalty is unconstitutional only as to one murder.

13:11 - But if it's two, then you could have the death penalty for the second.

13:13 - And that's again, they focused on the child.

13:16 - So in state court cases.

13:18 - So at the very least, the Eighth Amendment protecting children

13:22 - based upon their nature of their nature and not the nature of the crime.

13:26 - Section 13 has to be as protective.

13:28 - In fact, a lot of state court cases that have found that you have to aggregate

13:32 - when we're talking about child

13:34 - in extending Miller and those other cases agree.

13:37 - They say we're still dealing with the child,

13:39 - whether it's a child who's committed one murder or a child

13:43 - who's committed an extremely heinous series of crimes.

13:46 - It's necessary to aggregate because children, whatever the crime is,

13:50 - are capable of change if they're capable of change and rehabilitation.

13:53 - It violates the Eighth Amendment to sentence them to a term of years.

13:57 - They're with us.

13:57 - How that correlates to what we are to consider as judges in the sentencing

14:02 - phase, in the view, in the sentencing phase, courts would need to consider.

14:07 - And here the court did it consider the fact that ivory killed

14:11 - four people in concluding, despite that, based upon all the expert

14:15 - evidence and evidence from police, sorry, not police

14:18 - dock employees, he was still capable of change and rehabilitation.

14:22 - And under the Eighth amendment, which is less broad than section 13,

14:28 - it's a cruel and unusual punishment to sentence a child who is capable

14:31 - of change to a term of years, but they will never see the parole board.

14:35 - Section 13 is broader than that.

14:37 - This court has made that determination. So what does that mean?

14:40 - That broadness has to have some meaning in the case of children,

14:44 - whether it's one murder or two or many, what if it's 50 murders?

14:48 - What if he's a serial killer?

14:49 - What if he killed a whole congregation?

14:52 - Under your theory, we have to view it all the same way we'd view one crime.

14:58 - Well, yes, but here's the way a court would go about considering it.

15:01 - The first step is having the hearing to determine whether or not

15:05 - this is a juvenile capable of change in rehabilitation.

15:08 - At that point,

15:09 - the court may take into consideration the fact that it was 50 murders.

15:13 - And that fact alone may be enough, along with whatever testimony is presented

15:18 - for court to say, you know what this child is not capable of?

15:22 - Rehabilitation needs to be individualized.

15:25 - Yes. I mean, each hearing

15:26 - would have process for each of these defendants, a process

15:31 - which takes Miller into account as well as all other factors

15:34 - on an individualized basis.

15:35 - Yes, with the rule that if a court determines

15:39 - the child is capable of change in rehabilitation, it must set a sentence

15:44 - or impose sentences, but in the aggregate allow the child to see a parole board.

15:48 - And that's actually the second is.

15:49 - Can I just briefly follow up on that? Yes, for a moment.

15:52 - Is it is it

15:55 - is there

15:55 - an analytical inconsistency or is it just,

15:58 - interesting irony that you,

16:02 - you want categorical treatment hearkening back to justice Socrates

16:07 - observation about his age being 17.5 at the time of these murders.

16:12 - You want a categorical line drawing consistent with Skoda's

16:15 - jurisprudence at 18, but you would abhor

16:20 - any categorical treatment as far as sentencing.

16:24 - Is there any problem there?

16:25 - Well, I don't know that we're necessarily rejecting a categorical treatment

16:30 - at sentencing

16:31 - because the categorical treatment at sentencing is courts, regardless of the

16:35 - the nature of the crime,

16:36 - have to determine whether the child is capable of changing rehabilitation.

16:39 - So it's an individualized sentence.

16:40 - But that's the categorical rule.

16:43 - And section 13 prohibiting cruel punishments.

16:47 - And consistent with the the founding of section 13 and why

16:51 - it was written that way.

16:53 - The categorical rule is that if in an individualized sentencing,

16:57 - there's a determination the child is capable of change and rehabilitation,

17:00 - that child should have a sentence that allows them to see a parole board.

17:03 - And what guidance should we, suppose you win?

17:07 - And, what guidance are you asking us to provide

17:11 - sentencing courts on these sentencings or prospectively on sentencings?

17:17 - As far as that parole eligibility, because,

17:23 - what's the actuarial line you want us to draw?

17:27 - As far as determining or decreeing what's a de facto sentence, life sentence.

17:32 - So a few things.

17:33 - First, the court would have to take into consideration the Miller factors.

17:37 - I think that section 13 would subsume the Miller factors.

17:40 - Then a court would have to make a determination whether or not the child

17:43 - is capable of change in rehabilitation or whether it's that rare

17:46 - if that child even exists, incorrigible child who is forever

17:51 - solidified in their criminal behavior and their manner of thinking.

17:55 - And then thirdly, to the nature of the sentence,

17:58 - what we proposed in the brief is that children should not get

18:02 - more than 35 years as a sentence, either individual in the aggregate.

18:06 - So the first chance that any child who is capable of change in rehabilitation

18:10 - should be able to see a parole board would be at 35 years.

18:13 - And that's consistent with states that have banned juvenile life sentences.

18:17 - I think there are 15 states that have banned juvenile life sentences.

18:22 - And this is all in our brief also.

18:24 - So I don't have the same idea at the top of my head.

18:26 - I don't know that the statutes address whether it's in the aggregate or not.

18:30 - That's that's why we're here, though, because you're not contending that the 20

18:33 - to 20 year minimum sentences

18:37 - individually violate the Cruel Punishments Clause.

18:41 - Correct. And I can get to to that.

18:43 - Well, I was addressing what we would be asking the courts to be instructed.

18:46 - But I also want to clarify though, this, this idea of,

18:49 - capable of rehabilitation, that is a miller factor.

18:53 - It's not a separate standalone factor.

18:54 - It's part of the statutory factors that the General Assembly set forth.

19:01 - I have to look at the list in 1102

19:03 - 1.1, which he wasn't sentenced under, but children would be sentenced under go.

19:08 - And it's basically a statutory compilation of the Miller factors.

19:12 - But the issue with that is that, that statute

19:16 - is that it doesn't require a finding of Anchorage ability.

19:19 - And yes, I understand this goes back to Felder that reversed that.

19:23 - But Felder came down because of Jones.

19:26 - But in this case, where we are in a new world where there is a, where

19:30 - there is a holding, that section 13 is broader than the Eighth Amendment.

19:34 - Well, this is the question Justice Donohue envisioned in her Felder dissent.

19:38 - Right. It is. Well, I think it was.

19:40 - Is it a concurrence? It was a concurrence. Yeah.

19:42 - But I mean, that's that's now we're here.

19:44 - That's exactly what we're here to address now. Yes.

19:47 - And what are you asking us to do with the, that's two factors

19:52 - and about two holding what we which we abrogated

19:57 - based upon the, principle

20:00 - that we needed a constitutional mooring

20:04 - in order to instruct trial courts

20:07 - to do what we told them to do in bat.

20:09 - And, with the Jones decision that constitutional mooring with Kline,

20:14 - your argument is we have now have a constitutional mooring.

20:19 - Yes, absolutely.

20:20 - Well, and I think that I think the question is important because although

20:24 - we have a trial court here who made findings of fact on the record, there's no

20:32 - requirement that that be done.

20:34 - So, I mean, unless we put

20:39 - appellate courts in a situation where they know what they are reviewing,

20:43 - which was the purpose of bats to enunciate the reasons for, that decision.

20:48 - Unless unless we go back to a system,

20:52 - that requires that type of,

20:55 - fact finding, I'm not sure,

20:58 - that we could ever effectuate what you're asking us to do.

21:01 - I agree, I think that it would be necessary to more

21:05 - to to effectuate a finding in Ivory's favor.

21:10 - There would have to be a requirement that there be a finding on the record

21:13 - of Anchorage ability or capable of change and rehabilitation.

21:16 - I think that's right.

21:17 - Let me ask you the next question.

21:20 - That was part of Bats.

21:22 - No longer exists.

21:24 - Whose burden is it to establish?

21:26 - The, fact that the,

21:30 - juvenile is not incorrigible?

21:33 - The it should be consistent with batch two, in which the burden was on the state.

21:37 - There was. Oh, we would have to go back to all of that.

21:38 - Is what you are suggesting?

21:40 - I mean, I'm straight out.

21:42 - Are you asking us to rejuvenate back bats

21:45 - to enter the moorings of article one, section 13?

21:48 - We would agree with that.

21:49 - I think there are ways in which

21:50 - you could come out in Ivory's favor that you wouldn't have to, but two. If.

21:53 - Yes, I'm asking you what you want.

21:55 - Yes, that's what we want.

21:56 - Yes. Wouldn't that be wouldn't that be a, quote, clean unquote way?

22:01 - Efficient?

22:02 - Well, let me just erase that.

22:05 - Would would that be a reasonable disposition,

22:08 - in your view of this case, for us to say, now post Jones and post Lee,

22:14 - we're reinstating bats two, and he gets his hearing.

22:19 - And by the way, and in that regard,

22:23 - regardless of what senior Judge Boylan said

22:27 - in the lower court at this new hearing, all avenues would be open.

22:32 - In other words, you could lose in this analysis in the trial court.

22:36 - Right.

22:36 - Well, I think when it comes to Avery's case,

22:38 - the answer would be no, because he did have his sentencing hearing

22:41 - and the Commonwealth did have an opportunity

22:43 - to present an expert whether or not

22:45 - they were required to under bats to they still had the opportunity to.

22:49 - And that was the time for them to present evidence.

22:51 - That's not that. Is that is that appropriate?

22:53 - I mean, now we're in the weeds, but, shouldn't the both sides,

22:58 - the Commonwealth and the defendant in that remand context

23:02 - have the full and fair opportunity to litigate

23:04 - according to the new rules of the road because it could affect

23:08 - strategy, could affect presentation, witnesses, etc., that that's fair.

23:12 - And I'd say for the majority of cases, yes,

23:14 - I would just say for Ivory's case in particular,

23:16 - the Commonwealth conceded Miller, and that he was capable of change

23:20 - and rehabilitation in his closing argument.

23:21 - And the court told the court to that to give him credit for all of those things.

23:25 - So I think they'd be in a difficult position to argue

23:27 - they should be allowed to present evidence.

23:29 - But I take your point.

23:30 - It would be fair for other cases and be being remanded for sentencing.

23:35 - To have that opportunity, I want to address one thing, Justice Bronson.

23:39 - You raised that. I don't think I got to answer completely.

23:41 - And then also, Chief Justice Todd, on the aggregate issues,

23:46 - the Court of Appeals in Alaska did address this in

23:50 - I think it was state v Fletcher or Fletcher v state, one of those

23:53 - in that case, the defendant, a young girl, had was convicted

23:58 - of two first degree murders and one second degree murder.

24:01 - And the court did take into consider and it was aggregated.

24:03 - I think she had 45 years to life consecutive.

24:05 - And it was aggregated.

24:07 - And that court went to analysis

24:09 - about how its constitution is broader than the Eighth Amendment.

24:14 - And for that reason, it's very core.

24:16 - If we look at the Eighth Amendment cases,

24:18 - none of them spoke to the number of crimes as being the dispositive factor.

24:22 - It was the nature of the crimes.

24:24 - I mean, that the nature of the child.

24:25 - And you have to look at the fact that children are less culpable

24:28 - because they are capable of change, whether it's one crime or more.

24:31 - Do you worry?

24:32 - And maybe this this may not have any relevance,

24:36 - but I just wonder this, this idea of a another, yet another resentencing.

24:40 - If we adopt your view that any time

24:44 - a trial court makes a determination applying the Miller factors that that

24:48 - that the juvenile that the, convicted juvenile,

24:53 - is capable of rehabilitation cannot,

24:57 - issue a de facto license,

25:01 - de facto life without parole in the aggregate that

25:07 - in particularly heinous crimes

25:09 - and situations, particularly like this, a trial court judge may

25:14 - either be silent on that finding

25:16 - or might find that they are not capable.

25:19 - And and what happens if that happens?

25:22 - Do you appeal under an abuse of discretion or.

25:25 - I mean, is that is that where this is going to go?

25:28 - Well, if we were in a world in which we got the relief that we sought

25:32 - and a trial court judge did find, based upon the evidence presented to him

25:36 - or to her, this child is not capable of change and rehabilitation,

25:40 - then that would be a constitutional sentence.

25:42 - Under the question presented today.

25:44 - We haven't argued.

25:45 - This is not a case about it's going to become a battle of the experts

25:49 - and and on rehabilitation or, and a trial judge will be pretty much free

25:54 - to select which expert the trial judge wants to pick.

25:57 - Well, they may be, but what do you mean?

25:59 - What do you I mean, I mean, yes, they would be,

26:02 - but I think that that happens all the time.

26:04 - All the time anyway.

26:06 - And so I think that that case from the child who studied

26:10 - the case of the child, who argues that that finding was improper is not before

26:14 - us today, and that will be a case that this court may see another day.

26:18 - We're starting from the beginning, which is that now that section 13

26:22 - is determined to have more meaning, how do we effectuate that for children?

26:25 - So that that may happen.

26:27 - And again, a case for another day.

26:29 - But we're no experts in,

26:31 - this case where there, there were a, there were three allegation.

26:34 - Yes. Well, yeah, there were three.

26:36 - So this case originally supposed to go to sentencing hearing and this is important

26:41 - regarding another issue in 2018, it got stayed pending Felder and Foust.

26:46 - And it was something we had asked for.

26:47 - So I'm not saying the Commonwealth did that.

26:49 - Before that happened, we did submit

26:53 - three expert reports to the judge and to the Commonwealth.

26:57 - One was, forensic, psychologist.

27:00 - Is that part of the record? Yes, it's part of the record is King's.

27:03 - Is your client's sentencing memorandum part of the record as well?

27:07 - Think the sentencing memorandum is in the.

27:10 - It's not part of the record.

27:11 - It is in the docket.

27:12 - We do refer to the docket section.

27:15 - Doctor. Timmy. Doctor. Robin.

27:16 - Timmy who is the forensic psychologist.

27:18 - His report is in the record, and I can find it if you need it.

27:21 - As well as his testimony at the sentencing hearing.

27:24 - And he concluded that, Ivory is capable of rehabilitation

27:29 - and that all of the Miller factors applied in his case.

27:32 - We had a second expert, Kathy, know she is a prison adjustment expert.

27:37 - She reviewed his entire prison record

27:40 - and based upon prison record, post-conviction.

27:43 - Yes. Post-Conviction that we should that matter for purposes of sentencing.

27:47 - If you kind of go back to the time of the crime,

27:50 - why should the post crime period be relevant to sentencing?

27:55 - It was relevant for all of the juvenile lifers who were eligible for release

27:59 - post Miller, that that's what courts did because it did

28:03 - give them some evidence of okay, well, we know what the child did.

28:07 - We know what the evidence was at the time of the trial.

28:09 - What do we know now about the child?

28:11 - And has the child changed?

28:13 - And are they capable of somehow integrating as a productive

28:16 - member of society, good behavior while their appeal is pending?

28:21 - For. I'm sorry, could you good behavior

28:24 - by the juvenile in detention while their appeal is pending. Yes.

28:27 - It relevant it could be relevant, yes.

28:29 - But this was seven years worth of.

28:32 - Yeah.

28:32 - This this was seven years worth of experience.

28:36 - 2226 years with your client though.

28:38 - I mean, there was me. Yes. Yeah.

28:40 - I'm pretty Miller behavior even.

28:41 - Yeah. Yeah. No.

28:42 - Although it is relevant it is relevant.

28:44 - And the judge did take into consideration his prison record

28:48 - from the time he was incarcerated all the way up to the time of the hearing.

28:51 - And so, Miss Garner,

28:52 - what she did is based upon her experience working at the Department of Corrections.

28:59 - Is, she concluded that he had done a lot of programing

29:03 - and did everything he could in prison to rehabilitate himself.

29:06 - And then there was a mitigation specialist,

29:07 - and the Commonwealth did have the opportunity to present an expert.

29:10 - They had our reports for four years before the new sentencing hearing,

29:14 - and they chose not to call one.

29:16 - Yes, I just this Monday, I looked at that part of the testimony and,

29:22 - it seems to me it's just maybe a little bit gratuitous

29:25 - about the rehabilitation only because the trial judge,

29:30 - said it in conjunction with his past offenses while in prison.

29:35 - So it wasn't really quite clear to me.

29:37 - And I may be wrong that his rehabilitation was as being a successful

29:43 - or less problematic, prisoner going forward, or truly whether

29:48 - the judge thought he was rehabilitated enough to move out into society.

29:53 - Well, I'm glad you raised that.

29:54 - And to be clear and candid, because you can read the record.

29:57 - The judge said he was not rehabilitated yet,

30:00 - but the yet part is the critical part.

30:03 - And there is something I do want to address in conjunction

30:05 - with that, because I'm quite sure the Commonwealth will raise it.

30:07 - The judge also found that the crime was not due to transient immaturity.

30:13 - So the Commonwealth, I'm sure will say, well,

30:15 - if it wasn't due to transcend immaturity, then he's not capable of rehabilitation.

30:18 - So I want to address that.

30:20 - What the try just framing that.

30:22 - Yes. It be before you just framing this for for the court.

30:26 - Regardless of of that sort of granular stuff,

30:30 - if you went on the larger question and we order a hearing

30:35 - that everybody has an opportunity to litigate,

30:38 - you know, ab initio, this could all be sussed out later.

30:42 - And he could win or lose, right?

30:43 - I mean, the bigger issue is that is

30:46 - what brought us all here, this de facto, right? Yes.

30:50 - Whether whether Mr.

30:50 - King, you know, gets out or Mr.

30:53 - King doesn't get out is very important to you,

30:55 - but doesn't have to be so important to us as

30:58 - the larger question is important to us, am I right?

31:01 - That is correct.

31:02 - And I would also say that all we're asking for

31:05 - is that this court give children a chance to see the parole board.

31:09 - It may be that whether it's ivory or another juvenile who gets a term of years

31:13 - where they first see the parole board, they may never get paroled

31:15 - and the court even acknowledge this in the opinions and concurrence.

31:19 - And, Lee, you're not making a decision about who should get out.

31:22 - That's left for the parole board.

31:24 - All this is about is a giving opportunity for children who are less

31:27 - couple, who can change a chance to see a parole board

31:31 - that could be raised by the Commonwealth, or people who decide your decision,

31:37 - is that despite the number of victims, the maximum should be 35 years

31:45 - in essence.

31:46 - So does that not create a perverse incentive for a youth

31:50 - to kill more than one? Perfect. Now, hey, I'm going to.

31:53 - I could shoot out my classroom,

31:54 - but I think I'm going to go after the next in a couple.

31:57 - So no, I don't think so, because one of the elements of youth is that

32:02 - they don't think ahead, they don't think about the consequences of their actions.

32:06 - And when, for example, when Roper came down, or mill or any of these cases

32:11 - that found that children are different

32:12 - and so there shouldn't have the most severe punishments,

32:15 - there wasn't all of a sudden a spike in juvenile crime.

32:17 - So I don't think that's a legitimate concern

32:20 - of responsibility and being concerned about safety in the community

32:24 - when they work, when we have our judges are providing the same.

32:28 - It's just not the mental state of the juvenile.

32:31 - We have to look

32:32 - at the totality of the fact that we're a yes, that's absolutely true.

32:35 - All of the penal logical factors do apply.

32:38 - However, when we're talking about children,

32:41 - those penal logical factors are diminished.

32:44 - And in terms of the safety of the community,

32:46 - that's something a parole board will deal with.

32:48 - Parole board seats a child that after 35 years or maybe earlier,

32:52 - depending on the sentence, and might say, no, this is not this kid is not ready.

32:56 - This kid is still a danger to the community.

32:58 - So the court does have that responsibility.

33:02 - But we'll take that into consideration in imposing a sentence

33:07 - that requires the child to seek the parole board.

33:10 - Now, let me, along those lines, let me raise

33:12 - an issue that I'm certain, opposing counsel were issue.

33:15 - What about the,

33:19 - concept of retribution?

33:21 - Yeah, I think that how how does what you're suggesting

33:25 - I give

33:29 - weight.

33:31 - To that particular factor,

33:34 - which is an allowable consideration in the sentencing scheme.

33:38 - It is an allowable consideration. So.

33:40 - So what's your response to what your opposing counsel

33:43 - is undoubtedly going to say about that issue?

33:45 - Of course.

33:46 - I would refer to this court's decision in Lee

33:50 - where this court talked about, retribution and cited ground.

33:55 - And what this court said is that

33:59 - pardon me, I need these now.

34:02 - Yeah.

34:03 - While society may impose severe

34:05 - sanctions to express its condemnation of a crime and seek to restore

34:10 - and seek restoration of a moral balance, even with which retribution

34:14 - there is a proportionality principle as, quote, the heart of the retribution

34:19 - rationale is that a criminal sentence must be directly related

34:23 - to the personal culpability of the criminal offender, citing Graham,

34:27 - and as we know, the personal culpability of children is reduced.

34:31 - I don't I don't want to minimize this here.

34:34 - The impact to

34:35 - the families in this case, it's unimaginable.

34:39 - The impact to any family that loses a loved one to violence is unimaginable.

34:44 - But what we're here to decide, what we've asked this court to decide is

34:50 - what does the Constitution of Pennsylvania require

34:54 - in terms of humanity in sentencing and the parole board?

34:58 - Consider the retribution factor.

35:02 - I am not familiar with whether that's one of the requirements, but

35:05 - I think that generally the parole board can consider whatever they, they like.

35:09 - And as this court also pointed out in Lee,

35:11 - the parole decision is not appealable.

35:14 - So that is something that,

35:17 - is critical to remember for those rare children

35:20 - who may not rehabilitate, who may remain a danger, I'm not sure I want.

35:24 - I'm not sure I'm right on this. You can correct me if I'm wrong.

35:26 - I think they are reviewable on the

35:28 - in the limited sense of if there's a constitutional violation

35:33 - that may be correct.

35:33 - They're not their discretion is not reviewable as an abuse of discretion.

35:37 - But if they can,

35:38 - if they violate a constitutional right, perhaps don't parole somebody

35:41 - because it would be cruel not to parole them.

35:45 - You know, I'm just wondering how far that goes.

35:48 - Not the question before this court.

35:49 - I tend I tend to think down the road a little bit.

35:53 - I that is totally fair.

35:54 - I tried to think down the road also of all of the different,

35:59 - things that could be asked.

36:00 - I don't know the answer to that, but I think that that would be,

36:04 - yeah, a question for another day.

36:07 - But, you know,

36:08 - Justice Donoghue, to your point, I think, yes, retribution is considered.

36:12 - However, when we're talking about children, retribution

36:15 - is diminished analogical justification, just as the others are.

36:19 - I did want to mention, though, what I do think the Commonwealth will bring up,

36:22 - although justice work to your point it, you know,

36:24 - you're thinking about sort of a broad rule as opposed to just my client.

36:28 - They may bring up the fact that the court said

36:31 - that the crime was not one of transient immaturity.

36:34 - And I just wanted to remind the court that when the Supreme Court talked

36:38 - about transient nature of childhood, they were talking about the things

36:42 - that made children different, the things that are changeable.

36:45 - And so, for example, and not the specific crime.

36:49 - Yes. So, for example, in bats two, this court dealt with that.

36:53 - The trial judge in that case had also similarly found

36:57 - that the crime wasn't one of transient immaturity.

36:58 - And this court said, you know, you're talking about the fact that this crime

37:02 - was premeditated, which it has to be for, for First-Degree murder.

37:05 - However, Miller and all the other Supreme Court cases,

37:08 - those were all First-Degree murder cases.

37:10 - And more importantly, the judge said not once, but twice.

37:13 - First, when she imposed a sentence on the record, he can change.

37:18 - And then when she issued her,

37:21 - 1925 opinion, she said, hold on.

37:28 - This court did and she underlined, did

37:31 - find appellant was capable of rehabilitation based on defense expert

37:36 - and other testimony summarized earlier in this opinion,

37:39 - and that she had referred back to the expert testimony,

37:42 - as well as the testimony from two prison employees

37:45 - who testified about all the good work he'd done in prison,

37:48 - and how they felt that he was really a model inmate

37:52 - when faced a except for that time he put a guy in the hospital.

37:55 - Well, yes.

37:55 - And and by the way, both of those dock employees knew him at the time,

37:59 - and they did testify about their understanding of that situation

38:03 - as well as their view of ivory, regardless of that situation.

38:06 - But also, more importantly, the judge took that into consideration.

38:10 - Your client benefit greatly by the passage of time.

38:14 - My client, like most children,

38:18 - took time and matured.

38:20 - And he continues, while it's not in the record,

38:22 - you know, he's we're all works in progress.

38:24 - He continues to work on that to this day.

38:28 - His case, as were all the juvenile lifer cases,

38:32 - demonstrations about how children do change and how well

38:34 - the juvenile lifers have done once they have been paroled.

38:38 - The recidivism rate, which we quote in our brief, is minimal.

38:41 - And that's one showing that children do change in to showing

38:44 - that the parole board is making good decisions.

38:46 - So at the risk of asking another down the road question,

38:51 - let's say you prevail here

38:53 - and we send it back.

38:56 - Does it go back for a new hearing

39:00 - for Ivory's case?

39:01 - We have asked that the court vacate his sentences and remand

39:06 - with instructions to the court to impose a sentence

39:08 - not to exceed 35 years within the aggregate. Or,

39:12 - if she decides to run the Commonwealth, if we're going to issue a new

39:17 - ruling,

39:18 - shouldn't the Commonwealth get the benefit of a new sentencing hearing?

39:22 - I would say no.

39:24 - Because they did have the opportunity to present expert testimony.

39:28 - They had our expert reports in this case.

39:30 - Other cases may be. Yes, another case. Yeah.

39:32 - I'm only speaking of Ivory's case based upon the unique circumstances.

39:36 - In other cases, the answer would be yes or no.

39:38 - You would basically not give the trial court judge.

39:41 - You're not.

39:41 - We're going to set a new standard, not give the Commonwealth Court

39:45 - the the the Common Pleas Court judge another opportunity.

39:49 - You're saying law the case findings or findings that were done in Ivory's case?

39:53 - Yes. That's what we're asking for.

39:54 - I recognize this court may make a different decision

39:57 - based upon your question, but that's what we're asking for.

40:00 - My don't take my question for what this court will do

40:03 - if we spare if we sent it back for a hearing.

40:06 - And I mean, I understand you're asking us not to do that, but,

40:10 - under the, protocols that we've discussed, the burden

40:13 - would be on the Commonwealth, to establish. Yes.

40:17 - You can't.

40:18 - And and, they may forego doing that, or maybe not.

40:23 - I mean, because what what you're asking us to do

40:25 - is to really, adopt or re adopt

40:30 - a rule that we once had in place.

40:31 - So the evidence might be different.

40:34 - Yes, that is true.

40:35 - And take that a consideration that it may make sense

40:37 - for all of the remanded sentences to have a new sentence.

40:41 - New sentencing hearing, interested in and having,

40:48 - It put back to before Jones

40:51 - that all juvenile murderers are presumed capable of rehabilitation, right?

40:56 - Yes. The burden on the Commonwealth to prove otherwise. Yes.

40:59 - Because section 13 being broader

41:02 - when when And there's not a dichotomy of any difference

41:07 - whether it's a single murder or whether it's 4 or 5 or 6 or 7.

41:12 - Same test. Correct? Same test.

41:14 - And that would make sense, because in bats two, what bats

41:17 - two was a bats two, as you know, was trying to implement

41:22 - the substantive findings of Miller and Montgomery

41:25 - and then in Felder found that Jones gutted those.

41:29 - But here the argument we're making is that cruel punishment means something bigger.

41:34 - And so to effectuate a prohibition on cruel punishment,

41:38 - the bats two, procedures would need to be reimplemented.

41:43 - Miss Heller, I don't want to cut you off

41:44 - on the Pennsylvania constitutional argument

41:47 - if you have more to say, but at some point, I.

41:49 - I don't want to lose sight of your second argument regarding the,

41:52 - as applied challenge under the Eighth amendment of the U.S.

41:56 - Constitution.

41:57 - Yeah.

41:58 - I mean, I think there and, I'm happy to answer any questions about it.

42:02 - I think we can rest on the briefs, but the argument that we've made

42:06 - is that while Jones fine, there doesn't have to be a finding in this case,

42:10 - the court made the choice to make a finding.

42:12 - And under that finding, the substantive rule of Miller

42:16 - and Montgomery requires that ivory not spend the rest of his life in prison.

42:21 - And I'm comfortable asking any questions, but can rest on our papers on that.

42:26 - All right.

42:26 - Any other questions?

42:28 - Yes. Very, very well done. Thank you.

42:30 - Thank you.

42:31 - Let's hear from the district attorney's office.

42:34 - Mr. Fegley.

42:38 - Good morning,

42:38 - Madam Chief Justice, Justice John Fegley from the Bucks

42:42 - County District Attorney's Office on behalf of the Commonwealth.

42:45 - There is nothing cruel about making a mass murderer.

42:48 - Have their sentence account for each of their victims.

42:52 - That is a Commonwealth policy of not affording volume discounts.

42:54 - It has been for a long time in this Commonwealth.

42:57 - Well, how I know we tossed that, and some people tossed

43:01 - that term around volume discount, but,

43:05 - look,

43:06 - is there anything that would stop a court?

43:09 - Let's say this case goes back,

43:12 - is there anything that would bar

43:14 - the Common Pleas judge from taking account of each of these,

43:19 - each of these victims,

43:21 - individually and,

43:25 - and, sentencing accordingly,

43:28 - while still recognizing that humans don't live forever.

43:33 - Well, in this case remanding it, that would be possible for

43:37 - the judge to do.

43:38 - But based on the number that was thrown out today of 35 years,

43:41 - you're talking about eight, eight years per defendant,

43:45 - that absolutely devalues the human life taken.

43:48 - You're talking about a sentence

43:50 - that equates to a robbery for a First-Degree murder.

43:54 - But in every case, going forward, there's a mandatory minimum of 35 years

43:57 - for a 17 year old that commits First-Degree murder.

43:59 - So there's not a mandatory minimum.

44:02 - Well, there's, Yeah.

44:03 - I'm sorry, there's not a there's not a bar

44:07 - on, a de facto life

44:10 - sentence in their formulation.

44:13 - There's a bar on a categorical imposition of that.

44:16 - Right. Well, there would be a bar.

44:19 - 11 02.1 it's a mandatory minimum of 35 years.

44:23 - So if they killed more than one person, it would have to be a concurrent sentence,

44:26 - and they would not be able to account for each victim.

44:28 - With that sentence.

44:29 - For every case sentenced after 2012, what would be the problem,

44:34 - that you would have with individualized consideration of such cases?

44:39 - Because presumably then, the judge would have the ability to determine

44:44 - that this particular defendant, for any number of reasons,

44:49 - including the volume of killings he did,

44:52 - was not, amenable to release.

44:56 - Well, first of all, I believe that determination was made here.

45:00 - They did take the defendant as an individual, and they applied

45:03 - all the individualized sentencing factors under title 42.

45:07 - And they came up with 20 years, which was a mitigated sentence

45:10 - under, under the law and deemed it to be consecutive

45:14 - to get to the number that took into account all those factors.

45:17 - But again, going forward, if there's going to be the rule adopted,

45:20 - that no juvenile murderer should get a sentence over 35 years,

45:23 - that's removed because that's the mandatory minimum.

45:26 - That's not the rule.

45:26 - I mean, there's the crucial element to the determination

45:31 - that the juvenile is capable of rehabilitation may not be the case

45:36 - in all cases, although certainly Miller would anticipate that it would be unusual.

45:40 - But I think it's incorrect

45:42 - to start with the proposition that all juveniles are entitled.

45:46 - Sure.

45:46 - No, I was I'm just dealing with the rule requested.

45:49 - Under those facts.

45:51 - There would be no ability to take into account anything else.

45:55 - And to be clear,

45:56 - 35 that you're talking about is the minimum, right? Yes.

45:59 - Well, there'd be no, the maximum could still be life, right?

46:03 - Right. Yes.

46:04 - But I was and so, so yeah, I think I think we have to be careful because I can

46:08 - sometimes get this messed up in my head when we stand up and we simply say,

46:11 - oh, 35 years is only eight years per person.

46:14 - That's the minimum for parole eligibility, right?

46:17 - You can still be sentenced to life.

46:18 - This, this, this defendant and other juvenile

46:20 - defendants could still spend the rest of their life in prison.

46:23 - Sure.

46:23 - Now, I was asking the question about what would stop a sentencing court

46:27 - from taking into account each individual victim

46:31 - if they found capable of reaching the point.

46:33 - But the point is that, even if sentencing is aggregated

46:37 - rather than individual, there's no disability on the judge.

46:43 - In in, in in finding on an appropriate record

46:47 - that this is the worst of the worst and we're keeping him in right.

46:52 - Correct.

46:52 - If they found made the appropriate findings.

46:55 - But that's without if we accept Miss Heller's argument,

46:58 - that's without consideration of the number of victims. Yes.

47:02 - Well, I also want to be clear that that's.

47:04 - No, I. I don't think that's right. Is it?

47:06 - I mean, other words, that universe of fact findings that could be done by the court

47:12 - on the remand, well, here would be remand.

47:14 - But on the sentencing, would take

47:19 - into account the whole, the whole world of what happened in the case.

47:23 - And in such a case, could very well include

47:27 - how many people that this person murdered.

47:29 - Right.

47:30 - Well, just before you answer that, I think

47:32 - the focus was on the nature of the child, not the nature of the offenses.

47:36 - So that's a different your expert, your expert opinion

47:40 - on, whether or not the child is, permanently incorrigible

47:45 - would certainly take into account the nature of the crime.

47:50 - I, I mean, that that, I mean, and that's why that's why I think,

47:55 - you know, it's important that that there be a remand in this case because,

48:00 - it's going to be your burden slash opportunity

48:03 - to establish that, given the nature of the crime,

48:06 - and other elements, of course, this, individual, this juvenile,

48:12 - is one of those, rare juveniles who is incapable of rehabilitation.

48:18 - I mean, you know, I mean, there there are many cases

48:21 - that talk about the difference between maybe a case like this

48:25 - where you have a, two

48:29 - or 3 or 4 incidents that happened in rapid succession

48:33 - versus the situation where a juvenile goes on a crime spree

48:37 - that, goes over the course of, months or even a year or so.

48:42 - Certainly that evidences something different about the child's psyche.

48:48 - And, I mean, that's what experts take into account.

48:52 - So, I mean, I don't see that the,

48:56 - number of victims, is really eliminated from the, equation.

49:01 - I just think that in terms of an expert analysis of the case,

49:05 - it has a different place in the analysis that would be presented, to the court.

49:11 - Now, you have three questions to date.

49:13 - So let me start off by saying, first, if there was a remand in this case,

49:17 - I do believe it's out of fundamental fairness

49:19 - necessary to have a new hearing, because the Commonwealth was presenting

49:22 - evidence based on Felder's decision that we're only applying.

49:26 - Chapter 42 is considerations and not anything else.

49:29 - And the evidence was tailored to that.

49:30 - And its decision to not seek a life without parole sentence was tailored to that.

49:35 - To speak to the

49:35 - facts about what the experts may or may not take into consideration.

49:39 - That just makes the number of victims

49:42 - one factor to consider

49:45 - in the expert's determination

49:47 - of whether or not a child psychologically is capable of change,

49:50 - it does not put it within the sentencing judge's discretion, to craft a sentence

49:55 - under the sentencing code of a sentence that takes account

49:59 - after making its findings of the impact on the victims and society.

50:03 - So why?

50:04 - That would be

50:04 - a one factor to be considered on the capable of rehabilitation question.

50:08 - It would not be ultimately

50:09 - a sentencing factor if it was outweighed by other considerations.

50:13 - But if I'm understanding their position correctly,

50:16 - the appellant's position correctly, and tell me if I'm wrong,

50:19 - if if after this remand hearing,

50:22 - the sentencing judge determines that, that the,

50:27 - juvenile offender is not incorrigible as capable of repetition

50:32 - the highest minimum,

50:34 - individually or in the aggregate, that could be imposed as 35 years.

50:38 - That is the rule they're asking for.

50:40 - Okay, under this case, you're saying.

50:42 - You're saying the problem with that is that

50:45 - because it's it's that is it

50:48 - the only discretion that the court would have to take into account

50:52 - multiple victims is to go all the way up to the 35 minimum.

50:56 - Correct.

50:56 - But you you I think that's fair.

51:00 - The follow up question then is, what is the reason why you lack confidence

51:06 - in the court's ability, at that 35 year mark,

51:12 - assuming it's the 35

51:13 - years to, take into account holistically everything,

51:17 - including the multiplicity of victims at the time of the crimes.

51:22 - Well, for the court, again, to take that into consideration,

51:26 - if we put this hypothetical cap of 35 years, the

51:30 - the math it would have to do to divide to get that number,

51:34 - now comes to the point where we're devaluing the human life.

51:37 - We did that before, though, and the dividing thing is where I think

51:41 - I'm having a problem following you is the rule simply is

51:47 - 35 if if, no matter how many you talked about the volume discount,

51:52 - no matter how many, heinous murders there were,

51:56 - if the trial court finds the mandatory, if the trial court finds that

52:01 - the juvenile is capable of rehabilitation as a matter of law,

52:05 - the minimum for all of those cannot exceed 35.

52:10 - Now, then you want to do this division aspect.

52:12 - And I understand that, but but it's a minimum of 35 to life.

52:16 - So if you're going to do the division you got to do the division on both ends,

52:19 - because it's entirely possible that the parole board may say,

52:22 - you know, no, we're not letting we're not letting him or her out.

52:25 - Well, that's the decision for the parole board.

52:27 - Now, you keep looking at the minimum, and I understand

52:29 - why you're looking at the name,

52:30 - but the only purpose of the minimum is to make you parole eligible.

52:33 - It's not. It's it's that's the only purpose of it.

52:36 - Well, the minimum is what the victim sees for sentencing.

52:38 - Hearing the minimum.

52:39 - I know, and we may need to do a better job at educating the victims on that.

52:42 - Or instead of talking about the minimum.

52:43 - But but, I mean, district attorneys all over the Commonwealth of Pennsylvania

52:46 - understand the difference between a minimum a maximum, certainly.

52:50 - But again, it's the minimum is what takes into account

52:55 - the impact on the community and the victim by statute.

52:57 - It's not necessarily the whole choice that the parole board is making.

53:01 - And so if I make.

53:04 - We're here today to determine

53:06 - whether the departure claim, which we found in Lee,

53:10 - should be applicable to juvenile sentencings today.

53:14 - The question I have for you is,

53:17 - did you believe or what's your feeling as to

53:20 - whether the defense even preserved the claim

53:24 - before us pursuant to our decision in Commonwealth versus bishop,

53:29 - which I believe was 2019, saying, if you're going to make

53:32 - a constitutional challenge, it must be explicitly

53:36 - briefed and discussed, which is not in the defense's position.

53:40 - So, Commonwealth, the bishop said, you have to do more than just state

53:44 - the Pennsylvania claim and say there's more.

53:46 - There's a footnote in Commonwealth,

53:48 - the Alexander that said it a little differently.

53:50 - And I believe the question that deals with that

53:52 - tension is presently before the court.

53:53 - And shivers, which is pending decision with regard to this case.

53:58 - Do you have a position?

53:59 - Does the Commonwealth have a position

54:00 - as to whether the defense raised the departure claim?

54:04 - Yes. The Commonwealth argued in its brief before the Superior Court

54:07 - and this court that it was not properly preserved under Bishop

54:10 - and it was not properly preserved in the 1925, concise statement

54:14 - that there was no request for greater protection.

54:18 - There was various as applied request, but there was for

54:21 - either one under in the trial court or in the 1925.

54:24 - It was not properly

54:24 - preserved for a departure. So departure claim,

54:26 - I thought we're talking about the Eighth Amendment issue now.

54:30 - Well, the question of of viewing de facto sentences in the aggregate is a departure

54:35 - claim because the federal courts have held that it does not matter under Jones

54:41 - being that there's no specific fact finding.

54:43 - The Third Circuit,

54:44 - specifically in Grant, followed that even if there's a gratuitous finding,

54:48 - it does not matter in the aggregate if it's de facto.

54:50 - So that portion of asking us to change basically change force and overrule

54:54 - it was a departure request.

55:00 - But if I could also add, if there's not any more questions on that,

55:05 - the the question of capable of rehabilitation was not alone.

55:08 - What Miller talked about, that was a factor in Miller.

55:12 - Miller itself asked, and Montgomery and Jones stated that the question is

55:16 - whether the nature of the crime reflected transient immaturity.

55:20 - It didn't say whether the defendant as a whole was capable of rehabilitation.

55:24 - That was one factor to consider.

55:26 - And when they issued Miller and Montgomery, they did not contemplate

55:30 - retroactively looking at 40 years later of behavior.

55:34 - So that was not the sole factor at issue in those cases.

55:37 - And I would argue that the judge's decision in this case

55:40 - of finding capable of rehabilitation in just considering those factors,

55:44 - is not outcome determinative on the question of whether the crime

55:48 - reflected transient immaturity, the trial court found to the opposite.

55:52 - And that is actually the question which Miller said to ask.

55:55 - So on that basis, there is no Eighth Amendment violation,

55:58 - and there would be no cruel and unusual because the finding of, again,

56:03 - chapter 97, in title 42, capable of rehabilitation concerns

56:07 - was not an Eighth Amendment finding.

56:10 - And the trial court was clear that it was not making Eighth Amendment findings.

56:14 - After that two was dissolved,

56:16 - it was making general findings under the discretionary sentencing.

56:20 - So the court's finding here is not binding on the constitutional question.

56:24 - Is it irrelevant?

56:25 - I wouldn't say it's irrelevant.

56:27 - It's I mean, it's why it found the discretion to impose

56:31 - consecutive sentences and the number that it ultimately concluded on, it was.

56:34 - So it's relevant towards the question that Felder told the court to ask

56:39 - was consider all of the normal statutory factors in exercising your discretion.

56:45 - So it was relevant towards that.

56:46 - Are you saying then that, in a scenario where you did have to go back

56:51 - with this case and have that hearing, that none of that could come in?

56:56 - So none of the evidence

56:57 - for rehabilitation prior to the rehabilitate,

57:00 - the rehabilitative efforts to the extent they existed during the years inside,

57:05 - I would say it would it would come in and it would be a factor,

57:08 - but the judge would not be bound by its decision of capable of re of

57:12 - visitation, because that was not the question.

57:13 - It was answering the question of permanently incorrigible.

57:16 - And does the crime

57:17 - ask whether or not the child or does it reflect transient immaturity?

57:21 - And the child was not before the court?

57:24 - So the court would make new findings, considering even that factor,

57:28 - and then answer the ultimate question of Miller and, the statutory factors

57:33 - that were taken from bats to allow, you know, to think that ultimate

57:37 - determination is, I'm sorry, what is that ultimate determination?

57:41 - You said the court will then make the ultimate determination.

57:44 - So you're asking me to predict the sentencing court's after I'm saying

57:47 - what what is the realm of possibility there, in your view?

57:50 - I mean, the realm of possibility is going to be the trial court

57:53 - still finding that the crimes itself, the heinous nature of the crimes

57:57 - and killing four people and wounding severely, a fifth person,

58:00 - still outweighs what he has done in prison since then, and that the crimes itself,

58:04 - taking everything into consideration, may still not reflect transit, immaturity.

58:09 - I don't know, I mean, you know, the

58:12 - the whole notion underlying Miller that

58:18 - the juveniles diminished capacity,

58:21 - and heightened, capacity for change,

58:27 - I mean, Jones said they were merely,

58:30 - mitigating factors.

58:35 - We are talking about

58:37 - that issue, that fact as an eligibility requirement.

58:41 - So if if in fact, there is a finding

58:46 - that the child is capable child B, the juvenile was capable,

58:51 - of rehabilitation and change,

58:55 - that would preclude, a sentence

58:59 - that would not allow that individual to ever potentially see the light of day.

59:04 - And keep in mind, that's what we're talking about.

59:07 - You're talking about 35 years as the date on which,

59:10 - a juvenile walks out of the prison doors.

59:13 - That's not yet. That's not what Miller requires.

59:15 - That's not what they're arguing.

59:17 - The, Pennsylvania Constitution requires.

59:20 - They're arguing that what that individual is entitled to

59:24 - is just maybe the possibility of walking out of prison.

59:29 - Understood.

59:29 - So, I don't I don't know if a judge can find,

59:36 - the capacity for rehabilitation

59:38 - and also, in transient,

59:44 - well, the judge also heard evidence here and

59:47 - credited that evidence that as late as 2010,

59:50 - when participating in, in courses with the victims, he was still disclaiming

59:54 - any remorse for killing

59:56 - 830 at least one of his victims, and that when he was talking to the guards

01:00 - 04.000 and in his classes, he was still lying about the nature of the charges

01:00 - 06.436 as to what happened. You could certainly lose.

01:00 - 07.937 I mean, you could, sir. I'm sorry.

01:00 - 10.173 I meant the the defendant, Mr.

01:00 - 12.575 King, could certainly lose.

01:00 - 15.578 I mean, supposing this goes back

01:00 - 19.248 and he gets a hearing, and the trial

01:00 - 22.318 judges, you know, like justice Kennedy wrote in Harmon,

01:00 - 26.255 there's there's no one dispositive factor in their proportionality review.

01:00 - 29.726 There's there's certainly a very good chance that

01:00 - 32.962 that the judge would say, yeah, we're going to keep this guy inside.

01:00 - 35.231 We're not satisfied he lose it.

01:00 - 37.200 In other words, my point is,

01:00 - 41.304 isn't it the case that that Mr.

01:00 - 43.740 King could win on the process?

01:00 - 47.043 Question but ultimately down the line

01:00 - 50.313 lose on the outcome question.

01:00 - 54.517 You follow my you follow what I'm saying by the outcome being the ultimate instance

01:00 - 57.387 or the determination of parole. His sentence, in other words.

01:00 - 00.023 In other words, suppose

01:01 - 03.026 you lose on the first two questions here

01:01 - 06.362 in this goes back there and,

01:01 - 09.332 and the judge has does have to aggregate, you know,

01:01 - 12.802 look at the real world impact on on years and all that

01:01 - 18.241 could still find this guy loses and I'm keeping him in.

01:01 - 22.979 I'm not satisfied under a proportionality analysis,

01:01 - 27.850 looking at all the factors, including how many he killed and everything else.

01:01 - 31.821 That he is not getting out, but

01:01 - 36.426 but that can that can that outcome can coexist

01:01 - 40.797 with a, a finding, a ruling by the court

01:01 - 46.636 that these de facto, categorical sentences are unconstitutional.

01:01 - 48.071 Isn't that correct? Yeah.

01:01 - 50.606 I'm having trouble as well.

01:01 - 52.241 When you say he could lose.

01:01 - 55.712 Are we day in stay in for life de facto judge.

01:01 - 59.115 Could we sentence him to exactly what he was sentenced here? Yes.

01:02 - 01.184 That could happen. Yes.

01:02 - 03.419 After the outcome of a new hearing, a new factual. Fine.

01:02 - 05.922 That's that's my that's my question.

01:02 - 08.491 You would concede that that could eventuate, right?

01:02 - 08.958 It could.

01:02 - 11.961 Yes, but but the the issue here is that

01:02 - 15.031 and this goes to my point about,

01:02 - 19.702 what one Common Pleas Court judge may do or, and may not do based on our decision

01:02 - 23.206 here, that in order for the judge to do that, in order for the judge

01:02 - 26.943 to give primary weight to the offense,

01:02 - 31.948 the judge would have to necessarily

01:02 - 36.285 find that the defendant is incorrigible and incapable of rehabilitation.

01:02 - 38.955 That's the under their theory, that's the only way

01:02 - 41.491 you could have the most heinous crime in the world.

01:02 - 46.162 But if a judge says, he's capable of rehabilitation,

01:02 - 50.633 been doing really well in prison, leading a prayer group, all these things.

01:02 - 53.870 If the judge makes that magic, finding,

01:02 - 56.873 doesn't matter how heinous the crime is.

01:02 - 59.475 That's the argument, I think. Am I wrong?

01:02 - 01.043 But that is the bright line rule there.

01:03 - 04.113 Advocating for, ultimately would be what this court held.

01:03 - 07.283 Ultimately, whether or not that rule was adopted.

01:03 - 11.053 And so there's no balancing test that that becomes the predominant factor

01:03 - 13.322 for purposes of establishing the floor of the sentence.

01:03 - 16.292 And the proof is in the Commonwealth's hands.

01:03 - 19.729 I mean, that's why the burden is on the Commonwealth, given

01:03 - 24.867 the presumption of, juvenile having the, capacity to change

01:03 - 29.839 what you would offer, you would have offer evidence to the contrary to the film,

01:03 - 33.643 which you didn't do, in this last round,

01:03 - 35.778 because there was no reason for you to do it. Correct.

01:03 - 38.314 But I

01:03 - 41.317 would also argue, as we're here talking about the departure claims,

01:03 - 44.353 Lee was not dispositive on this claim before the court.

01:03 - 46.989 Much like the search and seizure jurisprudence.

01:03 - 49.826 It's a question by question, doctrine by doctrine basis.

01:03 - 51.160 It's not wholesale.

01:03 - 52.829 Everything gets greater protection.

01:03 - 57.266 So while the history and the text questions have been discussed

01:03 - 00.603 at length by Lee, there are still remaining considerations.

01:04 - 04.173 And it's the, you know, the public policy of Pennsylvania specifically,

01:04 - 07.610 discussion of other cases and the ultimate text

01:04 - 10.546 of the meaning of cruel as applied to this case.

01:04 - 13.449 And Lee specifically limited its decisions of cruel

01:04 - 17.253 to, instances where there is not a specific intent to kill.

01:04 - 21.457 So while Miller talked about even specific intent

01:04 - 24.861 to kill being diminished, it did not rule them to be zero.

01:04 - 30.266 So it is not again, necessarily cruel because they have diminished capacity

01:04 - 32.134 to multiply that by the four people

01:04 - 35.137 whose lives were taken and the fifth who was severely wounded.

01:04 - 39.075 As for the other states, there was many talked about by the appellate court.

01:04 - 41.210 The states are split on this.

01:04 - 43.112 There is not a clear rule.

01:04 - 46.115 And Lee has indicated when they're split, it's not a heavy factor.

01:04 - 50.620 So the ultimate claim here that will be carrying the most weight

01:04 - 54.790 is the specific public policies of Pennsylvania and public policy.

01:04 - 56.893 And Pennsylvania has historically not afforded

01:04 - 00.496 special protections to juveniles accused of First-Degree murder.

01:05 - 03.132 They were excluded from the juvenile Act.

01:05 - 05.301 They were treated like adults.

01:05 - 07.770 And, Justice Todd, when she was on the Superior Court,

01:05 - 11.073 authored a law review article outlining how historically,

01:05 - 14.076 children were not granted special protections at all.

01:05 - 16.412 Which justice had opined was why we had such

01:05 - 19.582 lenient sentences for child predators in 2004.

01:05 - 24.020 So the history of Pennsylvania, as articulated in the brief with the case

01:05 - 29.625 law, does not weigh in the juveniles favor to depart from the Eighth Amendment

01:05 - 33.462 claim here and to view these sentences in the aggregate.

01:05 - 36.232 Rather, Pennsylvania

01:05 - 39.902 has a strong volume discount, a strong history of protecting the victims

01:05 - 43.906 individually and viewing sentences as they protect the public policy,

01:05 - 48.144 which also is to deter future mass killings.

01:05 - 51.914 While they indicated that

01:05 - 55.818 juveniles don't have forethought and therefore deterrence system

01:05 - 56.686 strong factor,

01:05 - 59.655 no one has opined that they never have forethought

01:05 - 01.357 and they never think of consequences.

01:06 - 03.559 It might be diminished, but it is still a factor.

01:06 - 08.431 And so, regardless of the history of the Pennsylvania Constitution,

01:06 - 13.803 aren't we not bound by Eighth Amendment, jurisprudence?

01:06 - 18.908 That's predicated on a the fact that juveniles

01:06 - 22.144 have a, diminished capacity

01:06 - 25.147 and the capacity for change.

01:06 - 27.183 I mean, how do we get around?

01:06 - 30.319 How do we get around that predicate notion?

01:06 - 33.322 Well, the diminished capacity, again, it's diminished.

01:06 - 34.557 It's not zero.

01:06 - 37.193 And that's why and and that's why you consider

01:06 - 40.229 the, the possibility for change. Yes.

01:06 - 43.132 But that's also why in Graham, they said it was doubly diminished

01:06 - 46.135 because it was not a specific intent to kill.

01:06 - 48.237 It's not gone. It's not zero.

01:06 - 52.541 It is a factor that they have culpability and they have the ability for foresight.

01:06 - 55.578 And Miller said they can't get mandatory life

01:06 - 57.613 based on that.

01:06 - 02.051 It does not say that if you keep killing, if you keep committing crimes,

01:07 - 05.054 your sentence cannot be increased accordingly.

01:07 - 09.625 It says it has to be considered and you can't get a mandatory life sentence.

01:07 - 12.128 What's the difference? And that's what I mean.

01:07 - 15.031 Back to the whole core of the case.

01:07 - 18.834 I mean, are we required to close our eyes to the fact that,

01:07 - 23.406 80 years or whatever aggregated is life?

01:07 - 26.409 Again, whether whether or not that's judged

01:07 - 29.412 appropriate in an individualized hearing is another matter.

01:07 - 34.083 But are we supposed to ignore the fact that that it is life?

01:07 - 37.319 Well, for Eighth Amendment purposes,

01:07 - 40.689 it's it's not life without parole with

01:07 - 42.625 a mandatory sentence.

01:07 - 45.261 The Eighth Amendment said they have to have a discretionary hearing.

01:07 - 49.231 Jones clarified a discretionary hearing where the court was able to take in youth

01:07 - 53.202 and all the all the factors that come with use in their ability to change

01:07 - 55.538 before it imposes a sentence.

01:07 - 58.307 And they just can't give life without parole without doing that.

01:07 - 02.178 Well, and isn't part of your argument is it's part of your argument

01:08 - 05.481 that the individual crimes, the sentence for each

01:08 - 08.617 murder was not, cruel or unusual.

01:08 - 10.886 It was not cruel punishment under Pennsylvania

01:08 - 14.757 because one murder should be looked at as one sentence.

01:08 - 15.524 Absolutely.

01:08 - 17.827 And for each murder he received a mitigated sentence

01:08 - 20.896 because of those factors, the fact that he chose to

01:08 - 23.966 continue killing is what got him the sentence he was.

01:08 - 26.702 The sentencing court gave great consideration

01:08 - 29.705 to all the evidence presented, and it factored that in.

01:08 - 31.073 When it started with the 35

01:08 - 34.076 as bats, two commanded and deviated downward based on those.

01:08 - 38.280 But the fact that he continued to keep killing is what got him where he was.

01:08 - 40.883 And Miller does not present that, and Jones is not preventable.

01:08 - 41.717 But that's why we're here.

01:08 - 46.388 And isn't that isn't that the that's that that's the crux of their issue.

01:08 - 51.827 I'm not saying nub inside joke. The

01:08 - 53.796 the issue

01:08 - 58.134 here is they they don't want just a miller factor sentence.

01:08 - 02.204 They want to elevate the rehabilitative

01:09 - 05.207 aspect to the primary factor

01:09 - 09.178 that makes the sentence constitutional or unconstitutional.

01:09 - 10.880 Under the Pennsylvania Constitution.

01:09 - 12.815 Well, they want a bright line rule.

01:09 - 14.450 Well, but they want to take one of the factors

01:09 - 15.751 and make it the primary factor.

01:09 - 17.987 And if if that exists, it doesn't matter.

01:09 - 19.755 The other factors don't matter.

01:09 - 21.357 That's pretty much what they're asking for.

01:09 - 22.925 Yes, they're asking for a bright line rule

01:09 - 25.494 that does not exist under the Eighth Amendment.

01:09 - 27.062 Well, I know because they want it under our care.

01:09 - 28.831 They're asking for it for departure.

01:09 - 32.635 And our argument is that even following Lee in this specific realm,

01:09 - 36.705 there is not grounds for departure based on the four factor consideration.

01:09 - 38.941 Okay.

01:09 - 40.976 All right, Mr. Fegley. Thank you.

01:09 - 45.080 Before you, before you both leave, those were outstanding

01:09 - 48.617 arguments by attorney Fegley and attorney Heller.

01:09 - 53.222 And I just want to point out that our court always encourages,

01:09 - 56.225 when we speak to the bar around the state,

01:09 - 00.029 we always encourage public service and pro bono service.

01:10 - 04.033 And the two attorneys who argued here today really exemplify

01:10 - 09.705 that public service as a district attorney and pro bono service as defense counsel.

01:10 - 11.974 And the court commends both of you.

01:10 - 14.977 Thank you, thank you, thank you.

01:10 - 19.348 For doing it.

01:10 - 20.583 Call the next case, Mr.

01:10 - 23.586 minor.

01:10 - 26.689 The next case is CBM ministries

01:10 - 29.692 versus the Pennsylvania Department of Transportation.

01:10 - 34.230 This case involves whether or not the Department of Transportation

01:10 - 39.535 may apply Pennsylvania's school bus safety regulations to busses owned and operated

01:10 - 42.571 by a really religious organization

01:10 - 46.408 that transports public school students during the school day.

01:10 - 51.780 CBM Ministries of South Central Pennsylvania

01:10 - 55.317 CBM is a religious nonprofit organization

01:10 - 59.021 that transports approximately 3100

01:10 - 04.293 to 3600 public school students from 87 public schools

01:11 - 08.063 each week, using a fleet of privately owned busses.

01:11 - 11.267 The Pennsylvania

01:11 - 14.236 Department of Transportation believes that these busses

01:11 - 17.239 should be regulated as school busses.

01:11 - 20.242 CBM position is that

01:11 - 23.245 it is not a school and under the vehicle code.

01:11 - 24.380 Pennsylvania.

01:11 - 28.450 The Pennsylvania Department of Transportation's regulations do not apply.

01:11 - 31.387 Its busses are not school busses.

01:11 - 34.390 They are multi-functional school activity busses

01:11 - 38.761 and because they are not owned by or under contract by any public,

01:11 - 42.665 private or parochial school, the regulations do not apply.

01:11 - 48.971 The Commonwealth argues that CBM functions as a private or parochial school,

01:11 - 52.608 and because it provides organized instruction during the school day

01:11 - 55.744 and under the statutory authorization,

01:11 - 58.781 they should be regulated as such,

01:11 - 03.552 the Commonwealth Court decided that C cbm is not a school

01:12 - 06.922 within the meaning of the Vehicle Code or school bus regulations.

01:12 - 10.993 CBM busses are not school busses or multi-function school

01:12 - 14.496 activity busses and do not transport school children.

01:12 - 17.733 The Pennsylvania Department of Transportation has appealed

01:12 - 19.935 that ruling here to the Supreme Court.

01:12 - 20.969 Let's go to the argument

01:12 - 23.105 released.

01:12 - 27.409 Time is a statutory program in which public school students

01:12 - 32.214 are voluntarily released from school to receive religious education

01:12 - 36.752 during the school day for up to 36 hours per school year.

01:12 - 41.990 CBM ministries, Inc., doing business as Joy L

01:12 - 46.762 ministries, is a nonprofit religious organization that operates

01:12 - 52.267 87 released time programs in eight Pennsylvania counties.

01:12 - 58.474 CBM provides release time transportation to public school students with vehicles

01:12 - 03.379 that it owns, transporting students from their schools to nearby churches

01:13 - 07.316 for the release time program, and then back to school.

01:13 - 13.122 In September 2015, the Pennsylvania State Police cited CBM

01:13 - 17.993 for failing to comply with PennDOT School Bus regulations,

01:13 - 21.130 including the lack of identification as a school bus

01:13 - 24.800 and the fact that the busses were not painted.

01:13 - 27.436 National School Bus yellow.

01:13 - 31.039 We granted review to address whether CBM busses

01:13 - 34.209 are subject to PennDOT school bus regulations,

01:13 - 38.480 and in doing so, to address whether under the relevant laws,

01:13 - 42.151 CBM is the school, whether CBM

01:13 - 45.287 busses, transport school children

01:13 - 48.991 and whether CBM busses are school busses.

01:13 - 50.559 Please proceed.

01:13 - 54.296 Madam Chief Justice, other justices of this court, may it please the court.

01:13 - 57.533 Jacob Fresh, on behalf of appellants, the Department

01:13 - 01.303 of Transportation, its Secretary, the State Police and its Commissioner,

01:14 - 06.275 a casual observer watching the third, fourth and fifth

01:14 - 09.745 graders out of their public school in the middle of the school day.

01:14 - 13.081 On to CMS busses and then an hour later,

01:14 - 16.718 walk back from CMS busses back to their public school.

01:14 - 21.089 Still, during the school day, would likely agree that those children

01:14 - 24.092 walking along our schoolchildren,

01:14 - 26.161 the parents of those children, especially

01:14 - 29.264 if they knew that the General Assembly had told PennDOT

01:14 - 33.101 to ensure the safety of vehicles transporting schoolchildren,

01:14 - 37.139 would likely assume that PennDOT could, for example,

01:14 - 42.845 tell CBM that its wooden the wooden floors of its busses can't have rotting holes

01:14 - 47.282 in them, that the seats on the busses have to be firmly bolted to that floor,

01:14 - 52.087 and that the emergency exits have to be functioning properly on those busses.

01:14 - 54.656 The Commonwealth Court, of course, concluded

01:14 - 58.460 that CMS busses were not subject to these regulations,

01:14 - 03.031 and that PDA that PennDOT in fact, was powerless to subject

01:15 - 06.502 CMS busses to these regulations.

01:15 - 08.337 But as we explained in the brief.

01:15 - 11.406 So PennDOT has the authority to regulate these busses, both

01:15 - 14.943 because CVM operates a school and because CMS,

01:15 - 17.946 the children on CMS busses are school children,

01:15 - 23.552 and because the vehicles that CBM uses walk like, quack like,

01:15 - 28.290 and are in fact school busses, the Commonwealth courts

01:15 - 30.092 conclusion

01:15 - 33.362 erroneous conclusion rested on two flawed presumptions.

01:15 - 36.765 First, it believed that CBM could not be operating a school

01:15 - 40.903 simply because it was teaching solely religious subjects.

01:15 - 45.007 And it relied on Supreme Court precedent saying that

01:15 - 48.477 those subjects, those classes couldn't be held in public school.

01:15 - 50.012 Well, that could be this.

01:15 - 53.448 That could be said as well, of parochial schools, which the General

01:15 - 56.852 Assembly explicitly instructed PennDOT to regulate.

01:15 - 00.255 So here's I mean, this this

01:16 - 03.825 what what do you think a school is?

01:16 - 06.795 Because, I mean, you represent PennDOT, right?

01:16 - 10.332 The General Assembly passed this law you're from

01:16 - 11.967 you live in a world of regulation.

01:16 - 14.536 You live in a world of government.

01:16 - 17.005 Do you really think that the General Assembly,

01:16 - 20.876 when they use the term school in the statute, when they passed

01:16 - 25.113 any number of statutes and regulations that talk about parochial schools

01:16 - 29.051 and private schools in the academic context, that they also meant to regulate,

01:16 - 32.487 a ministry that provides religious classes.

01:16 - 36.825 I certainly think it meant to regulate the vehicles owned by.

01:16 - 39.294 Well, but in order for that to happen, it has to be a school.

01:16 - 43.265 And that's, that's that's where I'm struggling because you seem to adopt

01:16 - 45.901 this definition of school. That is wherever there is instruction

01:16 - 48.003 on anything not

01:16 - 52.240 acting, not math, not science, not history, not English,

01:16 - 55.877 or any other academic subject.

01:16 - 59.247 If if someone is teaching something somewhere,

01:16 - 02.551 it's a school.

01:17 - 06.088 I think someone teaching somewhere or something can be a school.

01:17 - 09.224 I think within what makes it a school.

01:17 - 12.761 Well, the fact that they're teaching someone somewhere, something that happens

01:17 - 15.764 in every in every house of worship,

01:17 - 19.468 it is the follow up,

01:17 - 23.071 if I may, because you you might you might have a

01:17 - 26.808 you might have a situation where it's a school bus

01:17 - 30.012 because it's taking them to or from the school, you know, the school

01:17 - 33.015 they were taken out from to get these religious instructions right.

01:17 - 37.619 And there might be school children and but you

01:17 - 41.456 you might not be able to convince us that this CBM

01:17 - 45.560 is a school because it by

01:17 - 47.329 by extension,

01:17 - 50.332 aren't you necessarily taking the position

01:17 - 54.603 that every house of worship of any faith is a school?

01:17 - 58.874 I don't think a house of worship is necessarily a school.

01:17 - 02.611 I think that that might be they might provide

01:18 - 06.081 educational programs, which might mean they're operating a school.

01:18 - 10.252 But I also want to say, well, is it a school that if they're providing

01:18 - 12.554 an educational program, of course it does it.

01:18 - 17.125 I'm not aware of any that don't, but it's not an educational program.

01:18 - 20.128 But it has to be a class for instruction.

01:18 - 22.998 Yeah, the program is indoctrination

01:18 - 26.001 or teaching there the fundamental precepts of that religion.

01:18 - 29.604 The question I have for you, it's similar with my college

01:18 - 34.076 is your position that this bus is a multi-functional school,

01:18 - 38.013 but it is the position of our clients, that is it a multi-function school

01:18 - 41.650 activity bus, the language, the school bus used to transport

01:18 - 45.754 food is one field trips, athletic trip trips

01:18 - 50.792 or other curricular for extra curricular, extra curricular activities.

01:18 - 54.296 But not you for to and from your take

01:18 - 56.998 I read that

01:18 - 01.336 as indicating the child is participating in school activity.

01:19 - 05.607 It's required now for

01:19 - 08.977 the religious instruction to have a parent's

01:19 - 11.980 consent and significant.

01:19 - 15.417 Have you placed

01:19 - 19.454 the use of a parent's consent and signature to have their child

01:19 - 23.692 educated in their religious belief, with no other quote

01:19 - 26.695 unquote, educational instruction?

01:19 - 29.965 How does that fit within the plain text

01:19 - 32.868 of multi-functional school activities?

01:19 - 33.502 At a minimum,

01:19 - 38.373 these are extracurricular activities and the phrase extracurricular activities,

01:19 - 41.376 if you're talking about a college application, can include anything.

01:19 - 45.480 Adolescents soccer doesn't have to be that's that's what the word

01:19 - 46.982 the prefix extra. Yes.

01:19 - 50.385 Right outside the curriculum of a school you're enhancing.

01:19 - 55.023 So when you follow that your position be your extracurricular

01:19 - 58.160 activity is the state public school.

01:19 - 02.097 Educating children in a religious school

01:20 - 05.300 doesn't that they just

01:20 - 07.169 I'm not sure I understand your question.

01:20 - 10.172 You're saying I'm taking your child?

01:20 - 12.974 A parent comes in and says, I'm taking my child.

01:20 - 14.409 He's going to CCD class.

01:20 - 16.444 I want him to be a Catholic.

01:20 - 19.447 He picks a child up and take this CCD.

01:20 - 23.251 They're only instructed about 2000.

01:20 - 25.320 Nothing.

01:20 - 28.824 Are you telling me that personal, familiar instruction

01:20 - 32.961 in extracurricular activity of the public school?

01:20 - 37.232 I think, respectfully, I think that your question assumes

01:20 - 40.969 that the extracurricular activity has to have a connection to the public school.

01:20 - 41.937 Why would it not?

01:20 - 45.407 That's there's an extra, school activity for

01:20 - 49.678 the the definition of multi-function school activity bus,

01:20 - 51.112 a bus used to transport

01:20 - 54.583 students on field trips, which are connected to schools, school bus,

01:20 - 55.917 not a bus.

01:20 - 59.187 Well, and to be clear, all of these all of these busses

01:20 - 02.524 that Cbmm owns and operates were manufactured as school busses.

01:21 - 05.627 And they meet the Partridge Family was manufactured as a school bus.

01:21 - 07.062 That's correct.

01:21 - 11.733 And they met the they met the industry definition showing your age just as well.

01:21 - 14.769 And this I'm glad you brought this up

01:21 - 17.772 because they meet the industry definition of a school bus.

01:21 - 19.007 No but type.

01:21 - 21.776 Could you read the rest of the definition that you were reading?

01:21 - 23.845 Multi-function school

01:21 - 27.682 activity bus field trips, which would be connected to a school.

01:21 - 31.553 Athletic trips which may or may not be connected to a school?

01:21 - 34.556 There could be extra school type athletic leagues.

01:21 - 38.193 Curricular activities certainly would be put back.

01:21 - 41.196 You're saying that when

01:21 - 43.565 they don't, that puts its students,

01:21 - 46.501 the basketball players, off

01:21 - 48.737 so they can go play a Villanova

01:21 - 51.740 sponsored activity

01:21 - 55.410 back to school, but an individual

01:21 - 57.946 being taken out of school

01:21 - 00.649 so that they could get specific classes,

01:22 - 06.421 that is a school athletic, athletic trip.

01:22 - 09.557 I'm confused with your your definition.

01:22 - 12.594 It is an extracurricular activity.

01:22 - 17.265 The word extracurricular means outside the curriculum of a school, right?

01:22 - 21.970 So if I again, if I'm applying to a college, I'm a little old for that.

01:22 - 23.571 But if I'm applying to a college,

01:22 - 27.642 maybe it lists extracurricular activities, I might list piano lessons.

01:22 - 29.344 They weren't given by my school.

01:22 - 31.680 They weren't given by any school.

01:22 - 34.082 They were given by a gentleman in his house.

01:22 - 36.351 That would be a school under your definition.

01:22 - 39.054 It would be.

01:22 - 42.157 In fact, I have total it would be a school.

01:22 - 45.060 Now the question there's a separate question here.

01:22 - 49.230 If the court is not inclined to rule that CBM is a school, it doesn't have to.

01:22 - 51.366 Well, but let's stick. Let's stick with the extracurriculars.

01:22 - 53.001 I jumped in and got off of it.

01:22 - 56.237 But, you know, travel sports

01:22 - 59.574 have predominated since I was in school.

01:22 - 03.178 Not that I was a great athlete or anything like that, but yes, you were.

01:23 - 06.247 There are all these travel teams

01:23 - 09.250 now travel, softball, travel, soccer, travel, baseball.

01:23 - 14.255 And if after school, you know, a bunch of students

01:23 - 19.294 and their parents want their athletes to go to train at a particular facility,

01:23 - 23.465 that is one of these travel programs, not run by any school, a travel program.

01:23 - 26.334 I mean, if by your definition, it might be a school,

01:23 - 28.737 you consider that an extracurricular activity

01:23 - 31.840 where if the travel organization or even the parents for that

01:23 - 35.777 matter secured that security bus, it would be a school bus.

01:23 - 42.917 Yes. If that's transporting, that's for transporting.

01:23 - 46.621 Well, hold on, if it were transporting schoolchildren, which is in the definition

01:23 - 50.892 of school bus, which are multi-function school activity bus must be first

01:23 - 54.963 if it were transporting school children to or from their public

01:23 - 58.066 or private or parochial school or events related to those.

01:23 - 58.967 But extracurricular,

01:23 - 02.003 by your definition, means anything not affiliated with the school.

01:24 - 04.773 That's correct. That which means extracurricular.

01:24 - 05.173 It could be.

01:24 - 09.577 I you know, I I'm going to take my son or daughter out to dinner later

01:24 - 12.847 and we're going to talk about our religious faith,

01:24 - 15.617 which takes me into a school, which means the transportation

01:24 - 17.886 is extracurricular, which means I need a school bus.

01:24 - 20.221 So I think I think that's Brook.

01:24 - 22.924 We're confusing some of the definitions a little bit.

01:24 - 25.927 So that doesn't make you a school.

01:24 - 27.762 Why not? I'm teaching.

01:24 - 28.496 Well, you might be.

01:24 - 30.365 You might be teaching, and you

01:24 - 33.635 maybe you are considering that you're operating a school for your children.

01:24 - 37.105 And the question is whether the government

01:24 - 38.440 believes I'm operating a school.

01:24 - 40.208 That's that goes back to my original question.

01:24 - 42.544 I have a hard time where I'm struggling with your case,

01:24 - 43.778 and I try to make these very simple

01:24 - 47.348 because I don't, you know, I don't consider myself very smart, is

01:24 - 50.685 I think this case rises and falls on whether Cbrm is a school

01:24 - 52.854 and and if you

01:24 - 55.890 can't convince, you know, four justices up here

01:24 - 00.061 that Cbrm is a school, as the General Assembly intended.

01:25 - 04.666 The use of the word in this statute, where it's used it all over the place

01:25 - 08.002 in other statutes, that if you can't convince us

01:25 - 11.005 that Cbrm is a school, you can't win, right?

01:25 - 14.476 Well, first, I don't believe that I have to convince you

01:25 - 18.646 the Cbrm is a school, because I believe that the second sentence of 4551 A

01:25 - 20.115 independently gives PennDOT

01:25 - 23.118 to ensure the safety of transportation of schoolchildren,

01:25 - 26.654 whether they're on a vehicle owned by a school bus or by a school or not.

01:25 - 30.658 Let's bring this back to the 1546 release of public school

01:25 - 34.295 public release of pupils for Religious instruction.

01:25 - 37.899 The superintendent of the school district shall,

01:25 - 42.137 upon written request of a parent or other person in a local parent.

01:25 - 48.443 I excuse any student who is the child of that parent or person from school.

01:25 - 50.778 Attendance for religious instruction.

01:25 - 54.315 We're

01:25 - 58.987 that language specifically, said the school is advocating its

01:25 - 04.292 responsibility for a maximum of 36 hours per week to a parent.

01:26 - 08.429 Should that parent desire to have that child

01:26 - 11.933 educated in their fundamental beliefs?

01:26 - 15.703 How do you distinguish a school bus

01:26 - 18.840 from a statute that says school district

01:26 - 24.445 shall mandate an excuse absence from the school?

01:26 - 28.983 It's not an extracurricular activity engaged by the school.

01:26 - 32.987 It is an excused request of a parent exercising

01:26 - 36.991 their constitutional right to have their child religiously rights.

01:26 - 39.360 I'm I'm really confused.

01:26 - 42.864 Tell me how we're supposed to read that interrogatory.

01:26 - 48.469 I'm not sure I understand the question, but I think what we present

01:26 - 53.208 1546 specifically requires a parent

01:26 - 57.278 to seek permission from the school district

01:26 - 00.915 for their child to be excused from school

01:27 - 04.586 related activity for a maximum of 36 hours,

01:27 - 08.223 so that that parent can educate the child religiously

01:27 - 13.695 so that we keep, a separation of church and state that what that says.

01:27 - 16.931 Tell me why we should not follow that.

01:27 - 19.934 Well, how is that different from your application,

01:27 - 25.039 that this extra curricular activity, religious instruction only,

01:27 - 30.211 is school activity because you initially made a comment

01:27 - 34.282 like a parochial school, being parochial, parochial, educated,

01:27 - 41.556 we also had math and religion and geography

01:27 - 46.561 and all the other curricular requirements of a public school.

01:27 - 48.396 You pay.

01:27 - 51.399 But we were a parochial school.

01:27 - 54.535 When you're taking your child separately

01:27 - 58.306 for religious instruction, that's exactly what it is.

01:27 - 59.641 And it's to be considered today.

01:27 - 04.245 5046 but I'm asking you if share with you or us

01:28 - 07.882 how you were 71, 71 through

01:28 - 10.985 definition 12 within 54.

01:28 - 13.254 Well, I think this is a great point about CCD

01:28 - 16.257 because I was raised Catholic, but I went to the public school

01:28 - 19.627 and once a week the busses from the elementary

01:28 - 23.731 parochial school came to our school and picked us up.

01:28 - 27.001 It took us for an hour and we messed up their desks,

01:28 - 30.038 you know, put gum underneath and then brought us back.

01:28 - 33.641 Did they have a contract with the public school, the bus company?

01:28 - 36.110 In my case, or in this case?

01:28 - 37.679 In your case? Oh, I don't know.

01:28 - 39.113 But my point is

01:28 - 43.217 that parochial school still had to follow the school bus regulations.

01:28 - 44.252 Of course they did.

01:28 - 44.585 It didn't.

01:28 - 47.121 Were a parochial school or a school right.

01:28 - 48.489 It didn't make them not a school.

01:28 - 52.327 But again, as I'm understanding, I understood your question to say

01:28 - 55.496 that if they are taken out pursuant to the release time statute,

01:28 - 59.967 all of a sudden they can't be regulated as school children or on a school bus.

01:29 - 03.571 But if that's if that religious instruction

01:29 - 06.040 and the maximum of 36 hours a week.

01:29 - 10.345 But but if that's the case, then the busses that came to pick me

01:29 - 12.647 up in elementary school couldn't have been regulated.

01:29 - 13.648 And that can. We were.

01:29 - 15.850 Well, they were no.

01:29 - 19.987 But we're here today to discuss decide what is parallel

01:29 - 24.692 what and in your analogy or your remembrance,

01:29 - 28.596 your busses were parochial school busses that were already in use

01:29 - 30.298 for the parochial school.

01:29 - 31.332 That's correct.

01:29 - 31.566 Yeah.

01:29 - 36.003 I was just making the point that if we if the release time statute, I understood

01:29 - 39.440 you'd be reading the release time statute as once they're off for release

01:29 - 40.308 time cannot be.

01:29 - 42.643 Well, this is what I think Justice Daugherty is asking you.

01:29 - 45.113 And I want to put words in his mouth.

01:29 - 48.116 But he raises a very interesting point.

01:29 - 50.818 If I if I schedule

01:29 - 53.821 a dentist appointment for my child during the school day

01:29 - 57.191 and I go in and I say, excuse my child from school

01:29 - 00.294 for this hour, we have a doctor's appointment

01:30 - 03.931 while I am at the doctor's appointment, does my child still meet the definition

01:30 - 04.832 of a school child?

01:30 - 08.770 I think it does if it's during school day.

01:30 - 09.637 If they're planning on.

01:30 - 11.873 When does my child stop being a school child?

01:30 - 14.642 Well, the descent below would believe that your child does not

01:30 - 17.612 stop being the school child until he or she graduates.

01:30 - 20.181 I don't think the court has to go this far.

01:30 - 23.751 The facts of this case, I mean, this is all about in local practice.

01:30 - 25.887 This is all about all these regulations.

01:30 - 28.890 And things were like that are designed to protect the schools

01:30 - 32.660 because they are in loco parentis for the children.

01:30 - 36.631 And they are today, when the parents turn the kids over to the school,

01:30 - 40.935 all these regulations exist to protect the children with the school.

01:30 - 44.539 You seem to extending them to extending those protections.

01:30 - 47.875 The situations where the parents voluntarily remove their children

01:30 - 51.813 from the school and put them somewhere else, authorized by law,

01:30 - 55.817 not for an education, not for math, science,

01:30 - 59.754 reading, academic things that we licensed schools in Pennsylvania for.

01:30 - 02.990 But for something else, maybe it's a Scout troop,

01:31 - 06.561 maybe it's a cooking class, maybe it's something.

01:31 - 10.631 But at that point in time, when the parent says, give me my child

01:31 - 15.169 back, I'm taking my child somewhere else, they cease to be within the control

01:31 - 18.406 of the school, and therefore the school shouldn't be able to regulate them.

01:31 - 19.807 Well, the

01:31 - 23.211 statute explicitly says that PennDOT has the authority

01:31 - 27.181 to regulate vehicles engaged in the transportation of school children.

01:31 - 28.716 Period.

01:31 - 33.321 And on the facts of this case, during school hours, they're saying

01:31 - 37.024 the parents during the school hours, the parents said, I want my child back.

01:31 - 38.059 That's correct.

01:31 - 41.963 They they are selected because they're public school children.

01:31 - 44.298 They're selected under a provision of the public school code.

01:31 - 48.002 They're going from and to their public school during in the middle of the day.

01:31 - 51.806 There has to be some verification once the program is over.

01:31 - 53.174 Back to the public school.

01:31 - 55.743 Yes, we did what we told you to say on this.

01:31 - 57.278 Now we're giving them back to you.

01:31 - 00.882 But on the on the facts of this case, and as I started out, a casual observer

01:32 - 03.851 watching those children is going to say, yeah, those are school children,

01:32 - 06.220 I don't know.

01:32 - 07.755 Okay.

01:32 - 10.358 You and I, you and I just may have a fundamental disagreement about it.

01:32 - 13.361 I think it's very interesting that PennDOT is so interested

01:32 - 18.432 in this situation, but showed it hasn't at least that I didn't show any interest

01:32 - 22.570 when school districts were transporting children under the age of ten

01:32 - 26.107 by, public transportation.

01:32 - 28.376 I can't speak to that.

01:32 - 29.143 I will point out,

01:32 - 33.347 no, you can't speak to it because but but it really isn't relevant to this case.

01:32 - 36.784 But I just I find it's just so curious that that that,

01:32 - 39.954 you know, we'll put them on, we'll put them on a Septa bus

01:32 - 42.990 or a public transportation bus with any number of people.

01:32 - 44.158 We have no idea who they are.

01:32 - 46.193 They could be on the registry for all we know.

01:32 - 49.063 But here you're worried about this.

01:32 - 52.266 That leads me to an interesting point, which is 4553.

01:32 - 53.534 I believe it is.

01:32 - 54.302 Oh, I'm aware of it.

01:32 - 58.072 If if a school child can only be a school child

01:32 - 03.611 when they're in custody of the school, that would make the provisions of,

01:33 - 07.982 I believe it's 4553 that talk about school children on mass transit vehicles.

01:33 - 10.051 Nonsensical.

01:33 - 12.520 No, because the statute requires

01:33 - 16.724 school districts to provide transportation for at the option of the parents.

01:33 - 19.727 By the way, it's an optional thing that the parents can avail themselves to,

01:33 - 23.564 but it talks about the school children on the mass transit vehicles.

01:33 - 26.567 I know, and they're not in the custody of the school at that point.

01:33 - 29.270 No, but they're on school provided transportation

01:33 - 33.140 on busses that are not painted yellow.

01:33 - 35.876 And, and, and these would be an essential child

01:33 - 38.879 with, with potential people on the registry.

01:33 - 41.849 That's for another case I suppose.

01:33 - 44.785 There I go, there I go again.

01:33 - 46.387 That's it. Your argument breakdown.

01:33 - 49.690 If you look at the discussion the definition of school bus,

01:33 - 53.527 it's 7170 1.2,

01:33 - 56.897 a motor vehicle designed to carry 11 passengers or more,

01:33 - 00.701 including the driver and used for the transportation of pre-primary,

01:34 - 03.704 primary or secondary school students

01:34 - 07.241 to and from public, private or parochial schools

01:34 - 11.812 or events related to these schools or school related activities.

01:34 - 15.916 This is in the school bus well,

01:34 - 20.021 the busses are going to pick up primary school students at their school.

01:34 - 23.224 They're taking them somewhere else for an hour.

01:34 - 27.361 They are not taken to an event related to these schools or school

01:34 - 31.198 related activities, but they're taking them to or from their private school.

01:34 - 36.270 To or from public, private or parochial schools.

01:34 - 39.273 It doesn't even say they're private or parochial schools.

01:34 - 43.411 Events related to these schools or school related activities.

01:34 - 44.912 Right?

01:34 - 48.582 They are going in the middle of the day to and from their public school.

01:34 - 51.686 Then why do we need parental consent pursuant to the other statute?

01:34 - 54.822 Why do we need parental consent?

01:34 - 57.825 Because the General Assembly says we do exactly.

01:34 - 02.463 But again, that doesn't mean that the parents couldn't

01:35 - 03.631 consent to these children

01:35 - 07.501 going to the the parochial elementary school down the street.

01:35 - 10.471 And that wouldn't mean that that parochial elementary school

01:35 - 13.974 busses did not have to conform to these regulations, which, by the way,

01:35 - 17.111 are designed to ensure the safety

01:35 - 20.314 of vehicles manufactured as school busses.

01:35 - 23.317 CBM brings up these situations where mothers

01:35 - 26.320 driving their children in a Mercedes or something

01:35 - 29.757 is going to have to get an S designation or an S endorsement on their license.

01:35 - 34.562 A Mercedes is not a school bus, a type A, type B, type C, type D.

01:35 - 35.830 Why is it what.

01:35 - 39.900 Because it's it's not manufactured as a well, the definition of school

01:35 - 42.570 bus doesn't have a manufacturer. It has a capacity.

01:35 - 46.173 Oh no it has has a type type A, B, C or D.

01:35 - 47.341 It must be one of those types.

01:35 - 48.142 I thought there was one

01:35 - 52.046 that said something about any, any vehicle that can carry more than 11 people.

01:35 - 53.748 That's what the General Assembly said.

01:35 - 55.549 Whoa.

01:35 - 57.151 Well, I mean, who should I listen to?

01:35 - 01.322 Well, so the General Assembly thinks that that maybe these regulations

01:36 - 04.325 can be even broader than what PennDOT is promulgating,

01:36 - 06.427 what? You can't

01:36 - 09.430 you can't promulgate a regulation that is inconsistent with the statute.

01:36 - 15.102 Well, the statute defines school bus as 11 plus passenger right

01:36 - 18.472 and used for the transportation of certain types of students.

01:36 - 22.676 PennDOT has interpreted that to mean when the General Assembly said school bus,

01:36 - 27.148 they meant vehicles that are manufactured, a school bus type A, B, C, and D.

01:36 - 30.217 What authorities you have to do that you talk about what they have

01:36 - 33.220 the authority to interpret their own statute.

01:36 - 35.756 Okay.

01:36 - 36.490 All right.

01:36 - 38.058 You know, we really do get it.

01:36 - 41.228 And we're going in some circles I think at this point.

01:36 - 42.897 So I thank you very much.

01:36 - 45.633 Let's hear from Mr. Reb. Thank you.

01:36 - 46.834 Are you ready?

01:36 - 49.970 How many times do you have to hear that in your life?

01:36 - 51.172 That all the time you're on?

01:36 - 53.073 Yeah. Good morning.

01:36 - 55.242 Madam Chief Justice may please the court. My name is Joe.

01:36 - 55.743 Will read.

01:36 - 57.545 It is spelled ready, and I'm here.

01:36 - 59.313 Oh, I mispronounced it.

01:36 - 59.980 That's okay.

01:36 - 01.081 I'm from reading, Pennsylvania,

01:37 - 03.651 which also usually gets mispronounced, and so it's very confusing.

01:37 - 04.919 Thank you, Mr. Reidy.

01:37 - 05.686 Pleasure to be here.

01:37 - 06.887 I'm from Cornerstone Law Firm,

01:37 - 09.757 and my co-counsel, Randy Wanger, is here alongside me as well.

01:37 - 13.561 I represent CBM ministries of South Central Pennsylvania, better known as Joy

01:37 - 18.065 out. Section 4551 commands PennDOT to create heightened

01:37 - 22.169 regulations and a unique appearance and color scheme for school busses.

01:37 - 26.774 Section 4551 goes on to restrict those regulations only to school busses

01:37 - 28.442 that are owned by or under contract

01:37 - 32.046 with the school district, or parochial or private school and enabling statute.

01:37 - 33.347 That's correct, Your Honor.

01:37 - 35.649 And it does so for two compelling reasons.

01:37 - 38.586 One is the mandatory nature of education in Pennsylvania,

01:37 - 42.756 and the second is the unique place that school owned and operated busses have

01:37 - 46.460 in this in terms of their powers to operate on the road in Pennsylvania.

01:37 - 50.231 Number one, we require parents to send their kids to school.

01:37 - 52.199 If I don't send my kids to school,

01:37 - 55.803 I not only get fined, they refer to me to CBS for a dependency hearing.

01:37 - 57.104 They will take my children away

01:37 - 00.507 on only the second offense of refusing to send my kids to school.

01:38 - 01.475 As a result,

01:38 - 05.646 for most working parents in Pennsylvania, they have to rely on the public schools

01:38 - 09.717 running of a system to get those kids to school to comply with that statute.

01:38 - 11.919 When you drop your kids at the school bus bus stop,

01:38 - 13.921 you don't get to ask questions of the driver.

01:38 - 15.789 You don't get to interview him and find out who he is.

01:38 - 17.124 You don't get to inspect the busses.

01:38 - 20.127 And as a result, PennDOT powers are at its absolute height

01:38 - 23.797 when it comes to this unique situation where we essentially take children

01:38 - 25.833 by force from their children

01:38 - 28.502 and then return them after school at the end of the day.

01:38 - 31.338 That's why the statute refers to these school districts or parochial

01:38 - 32.573 or private schools.

01:38 - 36.310 But second, school busses are also unique on the Commonwealth's roads.

01:38 - 38.545 School bus drivers have the power.

01:38 - 40.414 They're the only non-emergency vehicle, by the way,

01:38 - 43.150 that has the power to stop traffic in all directions

01:38 - 46.153 until they offload or on board a passenger.

01:38 - 49.623 School bus drivers have the power to write tickets based on their own

01:38 - 53.994 observations of violations of the school bus stop sign, and that ticket comes

01:38 - 57.831 with a mandatory, non-negotiable 60 day license suspension.

01:38 - 01.602 We give the school bus drivers extraordinary power because we assume

01:39 - 05.072 they are operating for a state mandated educational program.

01:39 - 07.141 Now, my friends on the other side of attempted

01:39 - 10.411 to expand the definition of school, I think, beyond its limits,

01:39 - 12.713 but I don't think that holds up to close inspection.

01:39 - 15.082 Inspection of the statute for a few reasons.

01:39 - 18.452 First, if you look at the actual phrase, school is not the phrase

01:39 - 21.989 that appears in the statute, it is school districts or parochial or private school.

01:39 - 25.292 No one would think in general that that refers to a dance academy,

01:39 - 29.163 a flight school, a person going out doing a driving test,

01:39 - 31.231 a Vacation Bible school,

01:39 - 34.201 or the number of other examples that we've heard here today.

01:39 - 38.038 But also second, if you look within the statutes themselves, they back this up.

01:39 - 39.173 Just one example.

01:39 - 44.278 4552 gee, requires that every school, district administration

01:39 - 47.514 or the administration of any private school in the Commonwealth

01:39 - 51.452 must do two fire drills a year with all of their students

01:39 - 54.121 to make sure they know how to get on and off the busses.

01:39 - 58.926 Enjoy a case if their camp is a school, and during the summer they run to pick up

01:39 - 02.596 kids an hour and a half away at a church parking lot and bring them to the camp.

01:40 - 05.733 And then at the end of the week, they take them back to that church parking lot.

01:40 - 08.802 If you read the statute the way my friends on the other side want to read it,

01:40 - 12.006 they would have to figure out how to do two fire drills and that week to make sure

01:40 - 15.009 that these kids know how to get on and off of this school bus.

01:40 - 17.911 I think that actually it is,

01:40 - 20.714 I think the safety issue actually moves in our direction on this.

01:40 - 23.717 I heard about rotted out floorboards, and I want to be totally clear about

01:40 - 24.651 three things.

01:40 - 27.921 Number one, our busses all comply with PennDOT regulations already.

01:40 - 29.223 They get inspected every year,

01:40 - 32.192 and if there were rotting floorboards, they would be required to correct them.

01:40 - 33.994 Your car can't have a rotting floorboard.

01:40 - 35.996 Our bus can't have a rotting floorboard.

01:40 - 38.565 Number two, we comply with all the federal regulations,

01:40 - 42.369 which includes regulations that govern vehicles over 26,000 pounds.

01:40 - 46.206 There are things we have to do and our our client number three

01:40 - 47.174 goes out of its way

01:40 - 51.412 to take these busses in every six months for additional optional inspections.

01:40 - 54.048 They did that well before this case happened.

01:40 - 56.717 Started 11 years ago. They've been doing that for decades.

01:40 - 59.253 They get anything repaired that they're told to repair,

01:40 - 03.090 but they do things that these regulations tell them they can't do, such as putting

01:41 - 06.827 a big logo on the bus or an advertisement for their upcoming programs.

01:41 - 10.731 Recently, in the last three months, we got tickets for the font

01:41 - 11.632 on the side of the bus.

01:41 - 14.401 Not being within the regulations that are in the statute,

01:41 - 17.404 the font and the size of the black lettering were wrong.

01:41 - 21.742 Some of our busses, what are they used for other than transporting school students?

01:41 - 25.412 We would argue they're not transporting school students,

01:41 - 31.618 but they're used for other than moving children from school to their facility

01:41 - 36.023 and then back, they are used for the summer camp program in the summer.

01:41 - 38.459 So they go to perhaps a church or another location

01:41 - 40.594 where people have congregated to get picked up.

01:41 - 44.364 They're used during the summer camp, sometimes for an outing, some kind of,

01:41 - 44.698 you know,

01:41 - 46.133 I, I'm not totally sure where they go,

01:41 - 48.469 but if they go anywhere, the busses would, would take them.

01:41 - 52.039 But those are the main uses for these busses for children, correct.

01:41 - 52.606 For children.

01:41 - 53.340 And by the way,

01:41 - 56.877 those those small human beings, those are school children, aren't they?

01:41 - 57.744 They are not, Your Honor.

01:41 - 58.779 They're not school children.

01:41 - 01.782 Not contrary to all appearances.

01:42 - 06.653 You know, if it looks like a school child and talks and walks like a school child,

01:42 - 10.624 experience teaches us it probably is a school child.

01:42 - 13.694 So can you explain to this court why,

01:42 - 17.097 we should find that these are not school children.

01:42 - 18.432 I'll do my best, Your Honor.

01:42 - 19.800 I'll give you three reasons.

01:42 - 22.636 First, I would just point you to some of the internal language in the statute.

01:42 - 28.642 4553 A2 describes situations where public transportation picks up these kids.

01:42 - 32.379 And in those cases, when the school district is entering into a contract

01:42 - 35.382 with one of these organizations to pick up the kids,

01:42 - 38.385 then they're allowed to put a stop arm or a swinging control arm

01:42 - 39.253 or things like that.

01:42 - 40.454 I don't think

01:42 - 41.788 I don't think my friends on the other side

01:42 - 43.757 are serious, that if a Port Authority bus picks up

01:42 - 47.027 a group of tourists from Philadelphia today, that it's now a school bus

01:42 - 50.797 and it makes them not a school, what what makes the child

01:42 - 54.434 not a school child, or what makes this

01:42 - 58.906 not a school children case about the bus.

01:42 - 01.041 Forget about what the vehicle looks like. Sure.

01:43 - 04.444 Middle of the day, the go to school.

01:43 - 10.150 They're allowed to go to special instruction during the course

01:43 - 14.888 of the day, on the proviso that they're brought back to school.

01:43 - 18.859 And the additional proviso that somebody has to verify

01:43 - 21.562 that said in struction was given and what it was.

01:43 - 25.632 So where in that passage do they stop being school children

01:43 - 27.568 when they're released from the schools custody?

01:43 - 32.039 And 1546 where the school district required a written consent

01:43 - 35.509 to be excused from being a school student.

01:43 - 39.580 That's familiar families, religious indoctrination.

01:43 - 41.548 That's correct, Your Honor. That's our position.

01:43 - 43.517 And we think that the school doesn't want them to be school

01:43 - 45.686 children during that time because it creates

01:43 - 48.822 when we talk about appearances, I don't think we want it to appear

01:43 - 49.289 that mean.

01:43 - 53.160 Imagine that we, the motorist, follows that bus down the road and watches

01:43 - 54.828 as the school children, with the school district's

01:43 - 57.831 labeling on the side, drops all the kids in the church parking lot,

01:43 - 59.600 and they carry their Bibles in for Bible study.

01:43 - 02.035 I don't think anybody in this room wants that to be happening.

01:44 - 02.903 Isn't your distinction.

01:44 - 05.405 You're drawing a distinction between school children

01:44 - 08.875 as sort of a possessor or a thing, like they're the children of the school

01:44 - 12.579 at a certain period of time versus school age children.

01:44 - 13.347 That's correct.

01:44 - 15.382 Draw a distinction between those two. I do, Your Honor.

01:44 - 18.785 And I also, if you'll see in our brief, we've cited a number of instances

01:44 - 20.287 where the code goes out of its way

01:44 - 23.423 to refer to kids as opposed to pupils, or as opposed to students.

01:44 - 26.593 When the code uses pupils or school students, it's typically talking

01:44 - 29.663 about it in a school environment and their relationship to the school.

01:44 - 31.698 And there's actually a

01:44 - 34.701 good reason we want these busses to be visually distinct.

01:44 - 38.272 First of all, it's for motorists on the road who are seeing a bus that is a

01:44 - 42.109 traditional school bus or that is carrying school kids on a related school

01:44 - 45.445 outing, knows that at any point this thing could throw out a stop arm.

01:44 - 47.447 They know that it could end up in a school zone.

01:44 - 50.450 There's a lot of reasons that that school bus,

01:44 - 52.352 excuse me should look like that.

01:44 - 54.855 But second, it's for parents in front of my house at home.

01:44 - 56.957 There's a there's a school bus stop, and parents

01:44 - 58.659 from all over the neighborhood bring their kids down

01:44 - 00.294 and they drop them off in the morning.

01:45 - 03.297 And when the bus pulls out and it throws out its stop arm

01:45 - 06.233 and the swinging thing comes around, suddenly all of these PennDOT

01:45 - 07.267 regulations make sense.

01:45 - 11.305 The cleanliness standard on the outside, which is one of the regulations, the,

01:45 - 13.240 the requirement that the lettering be a certain size,

01:45 - 16.276 a certain font, a certain color, the national school bus yellow,

01:45 - 18.845 the fact that there are no logos, no advertisements.

01:45 - 21.915 Parents know at that point, the guy sitting in the front seat of that bus,

01:45 - 24.651 he's hired by or under contract to a school district.

01:45 - 27.087 I can put my kid on the bus and not think about it.

01:45 - 28.455 When Joel is coming to pick up

01:45 - 31.458 kids, parents should ask Joel about the safety of their busses.

01:45 - 33.794 They should ask the dance studio about the safety of the bus.

01:45 - 37.297 They should ask the travel baseball team, well, who are you hiring to do this?

01:45 - 39.299 They should ask and can ask those questions.

01:45 - 41.702 And if they don't like the answers, they can say, never mind.

01:45 - 42.869 You can have my kid.

01:45 - 46.306 They cannot do that with the local school district or parochial or private school.

01:45 - 49.843 I understand the school children question, and I would just note,

01:45 - 53.447 for example, in 4552 H, which they've cited in their brief,

01:45 - 57.150 it says that, that they have to ensure the maximum

01:45 - 58.852 safety of schoolchildren, but they've

01:45 - 01.021 they've not noted the beginning and the end of that sentence.

01:46 - 04.691 The beginning says in ways not inconsistent with this section.

01:46 - 08.228 And after that it says school children furnish transportation.

01:46 - 11.231 We're talking about school children who are being given this transportation.

01:46 - 13.967 Otherwise there is no in principle here.

01:46 - 16.703 My friends on the other side have no way to limit this.

01:46 - 20.006 A limo taking kids to prom is a school bus because it's capable of carrying

01:46 - 22.142 more than 11 children, and it has a school child on it.

01:46 - 23.410 Well, how do you respond to their point

01:46 - 26.947 that their regulations limited what the statute that the statute

01:46 - 30.617 would cover the limo, but that it's a matter of grace in their regulations?

01:46 - 32.319 They've limited the reach of the statute.

01:46 - 34.087 Respectfully, I think it's the opposite.

01:46 - 37.157 I think that the statute says that it has to be owned by

01:46 - 38.392 or under contract to a school

01:46 - 42.195 for this reason, because we didn't want limos and large vehicles swept in,

01:46 - 45.799 just because of the nature of their size or having a school child on board.

01:46 - 47.901 It also reaches very absurd results.

01:46 - 51.071 A single school child on on the bus downtown makes it a school bus.

01:46 - 53.940 That's obviously not what the legislature intended.

01:46 - 57.277 I don't think they can regulate outside of what the what the,

01:46 - 58.478 the legislature gave us.

01:46 - 01.982 So council doesn't the entire argument and to begin with, the enabling statute

01:47 - 02.582 and the statute

01:47 - 06.019 that Justice Daugherty gave you, which was 1546, which created the program,

01:47 - 08.855 because we keep coming back and answering these different questions.

01:47 - 12.025 But the fact of the matter is, it's not owned by or under contract

01:47 - 13.193 with the school district, right?

01:47 - 13.827 That's correct.

01:47 - 18.231 And number two, 1546 specifically exempts and excuses children

01:47 - 22.002 who were being released for religious instruction as students.

01:47 - 22.803 That's correct, Your Honor.

01:47 - 25.605 We believe that that's all you need to decide on this case.

01:47 - 29.643 But that's all premised on the fact that, your client is not,

01:47 - 32.979 a private or

01:47 - 36.249 parochial school for purposes of this analysis. So.

01:47 - 36.583 Correct.

01:47 - 41.154 Your position would be unless a private, entity

01:47 - 47.060 or parochial entity, provides a full spectrum of,

01:47 - 52.132 curricula that's required under Pennsylvania law for children.

01:47 - 53.433 They are not in school.

01:47 - 55.869 I would say maybe only slightly differently.

01:47 - 58.004 I would just say that the school district or parochial

01:47 - 01.308 or private school is referring to K through 12 mandatory education.

01:48 - 02.809 And where do you get that?

01:48 - 05.579 I get that from just that my plain understanding of that term, I

01:48 - 08.849 if I look at a dictionary and look up the word school

01:48 - 12.419 and I look up the word private, I would ask you to two things.

01:48 - 14.187 First, I would ask you to look up the term school

01:48 - 16.590 district or parochial school or private school,

01:48 - 18.325 which I think is different from school.

01:48 - 19.860 Again, a flight school can be a secret.

01:48 - 25.265 I said you would say a parochial or private school cannot be a parochial

01:48 - 30.403 or private school unless they provide a full curriculum of subject matter.

01:48 - 33.139 That that certainly would be one way to define it.

01:48 - 36.343 And I think you all have to define it that way, because otherwise,

01:48 - 41.515 your client is providing instruction on a subject matter,

01:48 - 46.520 just not every subject matter that's covered within what

01:48 - 51.191 your definition of a school, private or parochial, would do.

01:48 - 53.927 That is correct, Your Honor, and I do agree with

01:48 - 56.963 they would have to offer the full gamut of, of education to be considered

01:48 - 00.600 a school district or parochial that is statutorily based in what

01:49 - 04.538 that is based just in, in section 45, 51 A,

01:49 - 08.475 and also in the way that the rest of 45, 52 and 53

01:49 - 10.610 talk about school districts and school administrations.

01:49 - 11.945 But that's not what this is talking about.

01:49 - 15.882 This is talking about under contract with any parochial school

01:49 - 20.854 or private school you're saying cannot apply unless that

01:49 - 25.292 school provides a full curriculum of study

01:49 - 30.931 instruction on one subject matter or two subject matters.

01:49 - 35.035 Even three is not sufficient unless they are providing the full

01:49 - 40.774 spectrum of instruction that's required under Pennsylvania law.

01:49 - 41.641 Correct?

01:49 - 44.878 I would pin it to what's required for it to satisfy the mandatory

01:49 - 46.079 educational requirements.

01:49 - 49.015 And then again, where in where in the statute

01:49 - 50.584 would I find that definition?

01:49 - 52.652 I'll give you two tips to it to answer that.

01:49 - 54.554 One is that this statute and we've traced this in

01:49 - 56.656 our brief was broken out of title 24.

01:49 - 58.258 So this used to be part of the school code,

01:49 - 01.861 and it was referring to the schools as defined there in the school code

01:50 - 04.197 and their mandatory educational programing.

01:50 - 07.767 But second, to the degree that it remains undefined that I understand that

01:50 - 08.401 then we have to

01:50 - 10.470 to granted a definition, I would just ask the court

01:50 - 13.673 to look at the way that school districts and their administrations

01:50 - 14.741 are referred to throughout.

01:50 - 18.778 4552, especially when you can read them in period material with the school code.

01:50 - 21.281 Yes. Can can CBM

01:50 - 23.750 can CBM get

01:50 - 26.720 a CBM license to the for private or parochial school they or not?

01:50 - 28.955 Because their private and parochial schools are licensed

01:50 - 30.857 by the Commonwealth of Pennsylvania, they are correct.

01:50 - 31.591 Could they be?

01:50 - 33.893 No, I don't believe I mean, no, not at this time.

01:50 - 36.096 You could not be because you never tried to be.

01:50 - 36.997 Well, you don't offer a

01:50 - 40.100 you don't offer the academic things that the parochial and private schools

01:50 - 42.902 must offer to get a license. There's absolutely no math at all. Jill.

01:50 - 44.871 Yes. That's right. Right. Yes.

01:50 - 46.439 You know, that's you wouldn't be able to get a license

01:50 - 48.908 because you don't offer the mandatory minimum education requirement.

01:50 - 49.476 That's correct.

01:50 - 52.979 We could not get like that's true of parochial schools as well.

01:50 - 54.314 Sure.

01:50 - 56.683 I mean, whether it is I am a perfect example.

01:50 - 00.387 And I would note, Justice Donahue, I mean, we have also, you know, home schooling

01:51 - 01.888 co-ops that have the same thing.

01:51 - 04.424 They have to meet a certain mandatory educational requirement,

01:51 - 08.461 whether, you know, and there's all sorts of ways that parents can do that.

01:51 - 10.330 But this program is just not one of them.

01:51 - 12.332 All right.

01:51 - 14.367 Any other questions from the justices?

01:51 - 16.136 Thank you both very Well-argued.

01:51 - 17.737 Thank you. Thank you.

01:51 - 20.674 Next is Commonwealth versus Tyrone Bercy.

01:51 - 21.841 The case involves the proper

01:51 - 26.079 interpretation of the word altered as used in Pennsylvania's criminal offense

01:51 - 29.149 for tampering with evidence, which makes it a crime for a person.

01:51 - 33.353 Quote, believing that an official proceeding or investigation is pending

01:51 - 39.659 or is about to be instituted, unquote, to quote, alter, destroy, conceal,

01:51 - 44.297 or remove any record, document or thing with intent to impair

01:51 - 48.134 its verity or availability in such proceeding or investigation.

01:51 - 51.004 In 2022, an officer approached Mr.

01:51 - 54.007 Bercy on a public street while he was carrying a firearm.

01:51 - 58.111 Bercy fled and while in flight remove the magazine from the firearm,

01:51 - 01.381 tossed the firearm into some bushes and threw the magazine

01:52 - 02.782 in a different direction.

01:52 - 03.850 The Commonwealth charged him

01:52 - 06.853 with tampering with evidence, and he was ultimately convicted

01:52 - 07.887 and sentenced to three

01:52 - 11.191 and a half to seven years imprisonment plus two years probation.

01:52 - 15.195 First, he appealed to the Superior Court, arguing that this court's

01:52 - 19.599 decision and Commonwealth versus Delgado, which held that discarding drug

01:52 - 24.270 contraband in flight, was merely, quote, abandonment of evidence and did not rise

01:52 - 28.875 to the level of tampering with evidence, required his conviction to be vacated.

01:52 - 32.278 The Superior Court determined that Delgado did not apply,

01:52 - 33.179 because Bernoulli's

01:52 - 37.684 act of separating the magazine and firearm and throwing them in different places

01:52 - 42.522 rose above the level of the conduct at issue, and Delgado now before the court.

01:52 - 47.227 Bercy contends that Delgado controls emphasizing other of its applications

01:52 - 48.294 in the lower courts.

01:52 - 52.265 The model statute that the offense is based on, and cases from other

01:52 - 53.299 jurisdictions.

01:52 - 56.402 The Commonwealth contends that the Superior Court got it right.

01:52 - 57.871 Let's watch the argument.

01:53 - 03.610 Good afternoon everyone.

01:53 - 06.613 Please call the next case misdemeanor

01:53 - 11.551 versus primary versus the first is no part

01:53 - 15.622 of this.

01:53 - 16.723 Under section

01:53 - 20.059 4910 sub one of the crimes code,

01:53 - 24.164 an individual commits the offense of tampering with evidence.

01:53 - 27.233 If believing that an official proceeding or investigation

01:53 - 30.236 is pending or about to be instituted,

01:53 - 33.840 he or she alters, destroys, conceals,

01:53 - 38.945 or removes any record, document, or thing with the intent

01:53 - 44.717 to impair its verity or availability in such proceedings or investigation.

01:53 - 50.557 In this discretionary appeal, we must determine whether a defendant,

01:53 - 55.061 by discarding a firearm and detached magazine in plain

01:53 - 59.833 sight of police officers from whom he was actively fleeing,

01:54 - 04.604 altered the firearm within the meaning of the statute.

01:54 - 06.706 Please proceed.

01:54 - 09.142 Good afternoon. Justices of the court.

01:54 - 12.512 Madam Chief Justice, may it please this honorable court, Isabella

01:54 - 15.982 Bedard of the Allegheny County Public Defender's Office, on behalf of Mr.

01:54 - 17.550 Tyrone Bearse,

01:54 - 20.587 we are here to determine the meaning of alter within the tampering

01:54 - 22.055 with physical evidence statute.

01:54 - 25.058 In light of this honorable court's holding in Delgado.

01:54 - 27.794 Alter under this section means

01:54 - 30.797 to materially change from its original form,

01:54 - 35.134 as noted in several opinions, and by the Superior Court.

01:54 - 40.006 Altered is not defined in section 4910, nor is it defined in the Crimes Code.

01:54 - 43.743 Therefore, we must turn to the common definition of the word

01:54 - 47.380 to change or modify to some degree.

01:54 - 52.485 Here, the firearm with a detached magazine was not modified or changed in any way.

01:54 - 57.156 It was still the bodyguard 380 pistol, and the magazine.

01:54 - 00.960 Being detached does not alter it in any sort of a firearm.

01:55 - 02.061 Correct?

01:55 - 03.229 It does not change in any way.

01:55 - 06.065 In fact, it's still operable without the magazine in it.

01:55 - 09.903 So under various sections 6106 carrying without a license

01:55 - 14.040 and 6105 a person not to possess, it meets the definition of a firearm.

01:55 - 18.144 Still regardless, and in conjunction with that

01:55 - 22.882 tossing the firearm in plain view of police while attempting to initiate

01:55 - 27.053 here and arrest he was not tampering with physical evidence

01:55 - 31.090 whenever he tossed the gun and the magazine came out separately.

01:55 - 36.229 Be this honorable court held in Delgado in 1996

01:55 - 40.733 that, abandoning contraband in plain view of police while they were attempting

01:55 - 42.335 during an investigation.

01:55 - 46.773 And while the subject of the investigation knows that some sort of investigation

01:55 - 51.044 was about to be instituted, is just abandoning the contraband that not that I'm

01:55 - 54.814 wondering whether we should revisit that.

01:55 - 57.750 I mean, because,

01:55 - 59.852 perhaps this conviction should be affirmed

01:55 - 02.822 by the alternative crown then concealed

01:56 - 06.426 and, with

01:56 - 09.662 what if we suspect,

01:56 - 12.665 throws the weapon?

01:56 - 16.002 Into, Bush or onto a room

01:56 - 20.073 or, somewhere,

01:56 - 21.341 somewhere.

01:56 - 24.344 Why is it that the defendant can see a woman

01:56 - 28.381 snatching,

01:56 - 30.850 why the criminal complaint here?

01:56 - 33.619 Does, use the language from the statute,

01:56 - 38.024 including the word conceal and the judge gave the charge,

01:56 - 42.662 on the section, including the word conceal. Why?

01:56 - 46.265 Why should we not,

01:56 - 48.935 allow for the possibility

01:56 - 51.938 with this jury returned a guilty verdict

01:56 - 55.174 on a concealment theory.

01:56 - 57.677 Your honor,

01:56 - 58.244 respectfully.

01:56 - 59.979 With concealment, it's

01:56 - 03.683 pretty hard to conceal something in plain view of somebody else.

01:57 - 06.152 That is what Delgado contemplated.

01:57 - 10.323 And the General Assembly meant the the the verity,

01:57 - 14.861 or the the ability to present the evidence at,

01:57 - 17.864 subsequent trial or proceeding concealment

01:57 - 21.768 in, in that case, is inapplicable.

01:57 - 24.771 I would say in, in this case, tossing a firearm.

01:57 - 25.938 And the detectives,

01:57 - 29.442 both detectives, even noted that they were able to find it easily.

01:57 - 31.411 He was simply in a wooded area,

01:57 - 34.747 urban brush in the Homewood neighborhood of Pittsburgh.

01:57 - 36.449 And to be

01:57 - 39.652 to be, criminalized within the meaning

01:57 - 43.689 of the tampering statute, the concealment has to be successful.

01:57 - 47.193 It has to be a successful concealment.

01:57 - 51.697 No, Your Honor, it doesn't necessarily have to be a successful concealment.

01:57 - 56.235 But again, with that, if I were to hide something

01:57 - 00.673 outside of this room versus try to hide something in front of you right here,

01:58 - 04.243 you would know where it is that concealment wouldn't be completed

01:58 - 07.246 for purposes of the concealment

01:58 - 10.249 from the tampering statute.

01:58 - 12.919 Supposing that the

01:58 - 15.922 the fleeing suspect tosses the gun,

01:58 - 18.391 the applicability of

01:58 - 22.662 of the statute in that context depends on whether the officer

01:58 - 26.199 immediately recovers the gun or not.

01:58 - 30.303 The recovery here is not what's actually necessary.

01:58 - 32.171 They still have the circumstantial evidence

01:58 - 36.209 or testimonial evidence that there was a firearm present,

01:58 - 42.014 and that, all of that can be attributed to the underlying,

01:58 - 46.185 larger issue of concealing a firearm,

01:58 - 50.123 or, you know, having an illegal firearm at that point.

01:58 - 53.459 And I'm asking you, belaboring this a little, is that

01:58 - 56.329 Delgado?

01:58 - 59.332 Delgado is, one, one page of analysis.

01:58 - 02.869 Two page, maybe with one page of analysis, maybe less.

01:59 - 05.171 Less actually.

01:59 - 08.174 And, I

01:59 - 11.310 there's no, it there's no discussion

01:59 - 14.313 by the court.

01:59 - 17.850 Why it's abandonment and not concealment.

01:59 - 21.187 And I guess let me just try that

01:59 - 24.190 in my line of questioning with you, with this

01:59 - 26.826 what to the extent the court chooses

01:59 - 30.296 to treat the concealment aspect in this, maybe one,

01:59 - 35.001 can you offer up a test that we can provide for guidance

01:59 - 39.272 of what the distinction is between abandonment and concealment?

01:59 - 44.177 Again, I think I do think Delgado perfectly encapsulates that.

01:59 - 47.480 You are in front of the investigating body.

01:59 - 50.082 The investigating body can present that against you.

01:59 - 52.852 And, they saw it happen.

01:59 - 56.355 When someone abandons evidence in plain view

01:59 - 59.959 that evidence is presentable, it's circumstantial or physically.

02:00 - 04.664 Here, I would also say that the concealment, element is not met.

02:00 - 07.099 It was partial concealment. Detective.

02:00 - 09.602 Donnelly was able to locate it immediately.

02:00 - 10.636 She knew exactly where it went.

02:00 - 13.039 It was on top of debris and bushes.

02:00 - 16.542 In fact, it was.

02:00 - 18.945 She stated it was laying on top of dirt and debris,

02:00 - 21.981 right inside a little patch of bushes that we observed him throw it into.

02:00 - 23.182 That's on page 57.

02:00 - 25.117 And volume two of the transcript,

02:00 - 27.853 to show you that it was concealed would mean she would have to

02:00 - 30.256 have necessarily gone

02:00 - 33.593 into, some sort of bush that she couldn't reach into.

02:00 - 35.061 There's no evidence of that here.

02:00 - 39.065 And are you suggesting, I mean, is this is this immense Ray a question?

02:00 - 42.902 Is it a when I chuck a thing of drugs,

02:00 - 46.272 or I chuck a firearm or a piece of a firearm?

02:00 - 50.810 I have to do so under circumstances

02:00 - 53.813 that I believe the officers can't see me.

02:00 - 56.582 That is one that is one of the elements.

02:00 - 58.317 Yes, Your Honor, so that would be part of it.

02:00 - 02.321 So you're saying you're saying in Delgado, as in here, you're saying the facts

02:01 - 08.527 don't show that he had the intent to conceal, correct,

02:01 - 12.365 that he did have the intent to discard or abandoned,

02:01 - 16.969 but because he was in plain view, a jury could say

02:01 - 20.072 he was in plain view.

02:01 - 20.706 He either

02:01 - 25.244 was stupid, I guess that or something like that.

02:01 - 27.079 But he couldn't have formed the intent to conceal

02:01 - 28.547 because he knew police officers were looking.

02:01 - 30.583 Police officers were looking at him. Correct.

02:01 - 32.485 I would agree with that, Your Honor. Yes.

02:01 - 35.488 That is the only yes. Yes.

02:01 - 39.492 It it goes to the intent.

02:01 - 44.063 But it also goes to, you know, whether the

02:01 - 47.066 the investigating body was, was there able to see it?

02:01 - 51.470 There's, there's got to be an intent to, to

02:01 - 54.640 preclude its use as that or evidentiary value.

02:01 - 57.643 I mean, that's the second half of the statute, correct.

02:01 - 58.978 This isn't just an concealment.

02:01 - 02.548 I mean, you take out a magazine from a gun and you throw it somewhere in a gun,

02:02 - 03.449 throw some somewhere else.

02:02 - 04.350 The evidentiary value

02:02 - 08.120 in this particular case of of even if you concealed the magazine,

02:02 - 11.791 it doesn't impair the evidentiary value of the gun, does it?

02:02 - 13.559 No, it does not.

02:02 - 17.263 That's the that's the Delgado holding, which is it's basically

02:02 - 19.131 trying to distance yourself from contraband.

02:02 - 21.167 I I've got a more granular question.

02:02 - 22.234 If you don't mind me asking.

02:02 - 27.006 When does contraband become evidence?

02:02 - 30.009 Because the statute concerns itself with evidence.

02:02 - 35.014 I mean, is all contraband evidence has an evidentiary value

02:02 - 36.115 because it seems to me

02:02 - 40.152 that this particular statute tampering or fabricating with physical evidence,

02:02 - 45.825 the intent is to impair its use or evidentiary value at trial,

02:02 - 48.828 as opposed to distancing yourself from the from the object.

02:02 - 50.996 Correct.

02:02 - 54.233 Your honor, I would also say that another prong of the

02:02 - 58.404 the three factor test is that the the suspect would know that,

02:02 - 02.308 it would have been, important to the investigation or it could have been

02:03 - 07.246 part of the investigation knowing an investigation was about to be instituted.

02:03 - 09.515 If I grabbed your pocketbook and put it in my book bag,

02:03 - 11.517 and I'm running down the street and a police officer sees me,

02:03 - 14.754 if I take my book, bag the pocket book out of the book bag

02:03 - 18.424 and just drop my book bag, does that mean I've concealed evidence?

02:03 - 22.261 I mean, it was used to if it's used in the commission of a crime.

02:03 - 25.231 Sure. But is that contraband or is that evidence?

02:03 - 27.800 When does in other words, when does contraband become evidence

02:03 - 29.502 for purposes of this tampering statute?

02:03 - 34.440 Your honor, I

02:03 - 37.443 believe that that would be kind of a fact intensive question.

02:03 - 40.179 As are most of these things.

02:03 - 45.551 The difference in, being, you know, next to a river and tossing

02:03 - 49.622 a gun versus just being 50ft from the officer maximum and tossing

02:03 - 54.326 a gun to the side of you, is is pretty fact intensive.

02:03 - 55.394 But where contraband,

02:03 - 59.298 I think contraband itself explains that it could become evidence at any point.

02:04 - 03.235 Much like the possession of an instrument of a crime statute.

02:04 - 05.204 I think that is analogous to your question.

02:04 - 08.974 When does an AirTag become a possession and an instrument of a crime

02:04 - 11.977 versus simply having an AirTag on you?

02:04 - 15.014 I think that sort of question

02:04 - 19.185 that sort of analysis comes after the fact, after the investigation,

02:04 - 23.155 when it's presented at proceedings, those, those things,

02:04 - 26.358 when it's used to come to some sort of answer

02:04 - 30.463 or theory, then it's back to intensive, as you just said.

02:04 - 32.998 But doesn't that suggest it's for the jury?

02:04 - 37.336 Yes and no.

02:04 - 40.339 Your honor, I would say in this case,

02:04 - 43.576 it could be for the jury if,

02:04 - 46.946 I would say it's it's

02:04 - 49.949 for the jury to determine,

02:04 - 57.122 Whether or not, this sort of evidence could have been prevented

02:04 - 00.693 from being brought forward, not necessarily just tossed to the side.

02:05 - 04.497 And abandoned this way that the the false

02:05 - 07.967 1 or 2 page opinion, it

02:05 - 11.670 comes down to basically one sentence where the court says,

02:05 - 15.608 well, there's concealment and abandonment.

02:05 - 17.910 We think it's abandonment.

02:05 - 20.045 This is a bag of cocaine is what it was.

02:05 - 22.681 Wasn't a gun.

02:05 - 24.683 Why why is that?

02:05 - 28.988 For a court to declare rather than for a jury to determine,

02:05 - 32.491 given the language of this statute.

02:05 - 41.066 I would say the difference, for the court to declare

02:05 - 44.870 that that is different, it would be in the situation where,

02:05 - 50.042 because it is so fact intensive and so granular and it's so legal.

02:05 - 53.279 It goes a lot of things into that, like,

02:05 - 58.417 Whether or not,

02:05 - 01.287 again, if it's held that you're just simply abandoning evidence

02:06 - 05.190 versus tampering with it, I would say that it's, a legal determination

02:06 - 08.160 by the judge to show that,

02:06 - 13.232 in that case, that this is not an illegal act to toss something next to you,

02:06 - 17.636 versus smashing a gun, obliterating a serial number,

02:06 - 21.140 smashing a crack pipe in front of you, or swallowing a packet of drugs

02:06 - 24.944 where you double down on the ability to control it.

02:06 - 29.148 And get it away from the investigating by saying that you're saying the death

02:06 - 32.952 and the words in the statute are legal terms of art, that the judge

02:06 - 36.121 has to instruct on what those words mean, basically is what you're saying.

02:06 - 36.889 Exactly. Yes.

02:06 - 39.391 Your honor, can we go to your river analogy?

02:06 - 39.925 Because I think

02:06 - 43.262 that goes back to this question that Justice Wecht and I were asking about

02:06 - 45.230 what is concealment and what is abandonment?

02:06 - 47.466 You said, well, obviously, if he does it in plain view,

02:06 - 50.569 what if he throws the gun into the river in plain view?

02:06 - 55.407 That could be

02:06 - 59.311 considered tampering because it fully, again,

02:06 - 04.149 doubles down on the suspect's ability to control the evidence.

02:07 - 07.319 So so it's really not a question of plain view.

02:07 - 11.223 It's a question of concealment would be an act

02:07 - 15.861 that renders or tends to render the evidence

02:07 - 18.864 not available.

02:07 - 20.366 It doesn't really matter

02:07 - 23.435 if if the police officer saw them do the concealment.

02:07 - 26.805 It matters what the effect or intended effect of the concealment was.

02:07 - 31.610 I would say that that could be a factor that can be considered, in that case.

02:07 - 34.013 So then why wasn't Delgado wrong?

02:07 - 36.949 Because it's not like he just dropped it next to him.

02:07 - 39.952 He threw it up.

02:07 - 43.922 Presumably to try and prevent the police from getting it.

02:07 - 44.890 He didn't just drop it

02:07 - 47.192 at that point.

02:07 - 49.662 I would say it's because it's easily recoverable.

02:07 - 52.264 Which is whether we like it or not.

02:07 - 54.800 Concealer. But where does that come into the statute?

02:07 - 55.334 You can't.

02:07 - 59.071 You keep focusing in response to the questions on this issue of control,

02:07 - 02.241 where does the statute have anything to do with control?

02:08 - 04.610 It's, the ability to impair

02:08 - 08.380 its verity, or truthfulness that verity and useful.

02:08 - 09.481 That's what I said to you beforehand.

02:08 - 12.851 The usefulness of evidence that at a, at an evidentiary hearing

02:08 - 15.854 or trial doesn't have anything to do with control them.

02:08 - 18.991 I mean, if I'm standing on a corner and I got a vial of crack

02:08 - 21.794 and I see a cop car coming down the street and I put it in my pocket,

02:08 - 23.362 am I guilty with tampering of evidence

02:08 - 26.265 because I've concealed it in my pocket?

02:08 - 30.102 I would say no because there's no, You have no reason to believe that a,

02:08 - 34.006 investigation we're about to be instituted.

02:08 - 36.608 Or if I see a police officer rolling down the street in the marked vehicle,

02:08 - 40.179 and I'm about to engage in a narcotics transaction,

02:08 - 42.514 and I put the drugs in my pocket f and I concealed it.

02:08 - 45.317 Is that tampering with evidence?

02:08 - 46.719 No, I would I would say that.

02:08 - 49.722 But under justice in response, the question is concealing

02:08 - 53.092 any concealment whatsoever, putting it in your pocket, putting it in the bush.

02:08 - 57.296 Philadelphia back in the day, they used to actually use a stash location.

02:08 - 59.565 Somebody would walk up to him, they would walk over,

02:08 - 02.568 you know, inside of a, you know, car, abandoned house, trashcan.

02:09 - 05.671 They would get a vial, a crack out, and they walk up putting it back.

02:09 - 08.073 I mean, if I put the you know, I think they still do that.

02:09 - 09.241 They still do. Yeah.

02:09 - 12.077 I said back in the day, I look back in the day.

02:09 - 13.712 I mean, it's that concealment.

02:09 - 14.880 I would say regarding concealment,

02:09 - 17.883 we do have, case law that's instructive on that.

02:09 - 21.053 Both in Montgomery that was decided by this honorable court, which showed that

02:09 - 26.391 if you're kind of aware of what it is, then that's not necessarily concealing it,

02:09 - 30.395 having the the butt of a gun, if it's, you know, kind of in your front pocket

02:09 - 33.031 and everyone's apprized of what that can be again,

02:09 - 35.801 like here, tossing it into a bush, the officers knew what it was

02:09 - 38.971 and were able to see it easily, really wouldn't be concealed.

02:09 - 40.773 He he tossed it into a bush.

02:09 - 43.475 They found it on top of a pile of debris.

02:09 - 46.044 It would it wouldn't be concealed.

02:09 - 46.912 Based on the record.

02:09 - 49.948 All right.

02:09 - 52.951 Any other questions for Miss Bedford?

02:09 - 54.553 Thank you very much.

02:09 - 57.489 Let's hear from Miss Constantine.

02:09 - 58.590 You must like it here.

02:09 - 01.593 Keep coming back for the time this week.

02:10 - 04.563 Good morning. Good afternoon, Your Honor.

02:10 - 06.465 Amy Constantine, on behalf of the Allegheny

02:10 - 08.066 County District Attorney's Office.

02:10 - 10.135 Thank you. Would you pull the mic closer?

02:10 - 13.138 Thank thanks. As the appellate in this case,

02:10 - 17.009 I would note that this court recently decided the case of Williams,

02:10 - 21.613 wherein this court decided what all term means and, specifically,

02:10 - 24.750 this court determined that it means to make different

02:10 - 30.055 and some particular assize style course or the like, or to modify

02:10 - 33.725 the Commonwealth's image viewed through this lens,

02:10 - 38.630 the Superior Court perhaps not er in determining that appellant altered

02:10 - 44.369 the firearm in this case, that is a rather broad description of the term alter.

02:10 - 46.238 And that's come on submits that it very well

02:10 - 49.441 could include the separation of the magazine from the firearm.

02:10 - 52.010 In this case. How did that impair its ability to be used

02:10 - 55.180 to be of evidentiary value?

02:10 - 57.382 I'm not sure that that's the standard, Your Honor.

02:10 - 59.051 The standard would be statute.

02:10 - 00.419 The statute said it

02:11 - 03.422 alters, destroys, conceals, or removes any record, document or thing.

02:11 - 06.458 And then the second part is with intent to impair its have

02:11 - 09.461 already were availability in such proceeding or investigation.

02:11 - 12.831 Well, the success isn't his success.

02:11 - 16.301 And in doing that that that did not occur,

02:11 - 20.138 I don't think affects the fact that he attempted to or had the intent

02:11 - 23.942 clearly tell from magazine alter, destroy or conceal it or

02:11 - 28.113 isn't it still a firearm?

02:11 - 32.017 It's a firearm, but it's been altered pursuant to this court's definition.

02:11 - 33.018 And Williams.

02:11 - 36.021 So if I if I have a pen and I take the cap off the pen,

02:11 - 38.924 have I altered the pen? Yes.

02:11 - 41.193 But it becomes absurd, doesn't it?

02:11 - 44.463 It mean if I, I mean, if.

02:11 - 49.501 You see how the, the this can go to an extreme

02:11 - 51.970 that that rapidly becomes ludicrous.

02:11 - 53.272 Right.

02:11 - 55.874 It could, Your Honor, but under the facts of this case,

02:11 - 59.211 the Commonwealth submits that that this alteration

02:11 - 02.214 occurred in the Superior Court can't be determined to have aired.

02:12 - 05.550 And determining that in this regard, if the if in Smith

02:12 - 09.221 if the serial numbers being scratched,

02:12 - 13.325 did not constitute an alteration.

02:12 - 18.363 Why does having a magazine detached

02:12 - 21.466 from the gun

02:12 - 24.469 constitute an alteration, particularly since

02:12 - 27.406 if you had a if you had a firearm, you were sitting at home

02:12 - 30.409 cleaning it or whatever, so you didn't have the magazine in it

02:12 - 34.179 and the firearms sitting there in your, in your room.

02:12 - 38.083 It's still a firearm, isn't it?

02:12 - 40.052 It's still a firearm.

02:12 - 43.088 But I haven't done anything to try

02:12 - 47.292 to preclude its availability as evidence in an investigation.

02:12 - 50.095 And in

02:12 - 53.665 the Commonwealth, that trial argued not only,

02:12 - 58.136 referred to the scratch serial number as an alteration,

02:12 - 01.673 but also proceeded on the theory that appellant removed

02:13 - 05.210 or concealed the firearm pursuant to the tampering statute.

02:13 - 07.112 You know, about this case or Smith.

02:13 - 10.082 This case.

02:13 - 13.785 The alteration has the potential.

02:13 - 17.756 I don't think the statute says that, Your Honor, and nor does

02:13 - 20.759 it did it, nor did this court be appointed.

02:13 - 25.030 Not in this affidavit

02:13 - 29.234 for criminal culpability.

02:13 - 31.570 Not necessarily.

02:13 - 35.207 But it's not an attempt you haven't charged attempt at 9 or 3.

02:13 - 37.776 I mean, you haven't charged the attempt.

02:13 - 40.412 You've charged the crime. Right?

02:13 - 42.781 So you could have charged the maybe you did.

02:13 - 44.850 I don't know, but that's not before us.

02:13 - 46.251 I've got the complaint here.

02:13 - 51.056 But criminal attempt is one thing.

02:13 - 54.559 Tampering is another. Would you agree? Yes.

02:13 - 00.732 Interestingly, in Williams,

02:14 - 03.869 it was the addition of a file

02:14 - 07.272 that in my opinion, said

02:14 - 11.743 was portrayed in this particular case, following the Gargano

02:14 - 15.247 philosophy that abandoning of a gun

02:14 - 19.484 is an can amount to that charge.

02:14 - 23.922 You're asking us to criminalize the removal

02:14 - 28.860 or the disengagement of the, magazine, correct.

02:14 - 32.397 To the extent it constitutes concealment or removal of evidence.

02:14 - 37.269 But we're here on alter your specific this specific issue was altered.

02:14 - 40.772 So what I'm sharing with you or I'm asking you,

02:14 - 44.376 is that you you're the fact that if

02:14 - 47.712 he just threw away the gun,

02:14 - 50.715 there would be no such charge based upon the God of

02:14 - 52.717 what you're using.

02:14 - 56.721 The Williams case, which was the addition of evidence, not the removal of evidence.

02:14 - 00.692 You want us now to criminalize the

02:15 - 05.230 the disengaging of a magazine from the firearm when both are thrown?

02:15 - 07.632 Yes, because it was done with

02:15 - 10.735 the intent to impair that evidence

02:15 - 14.739 from being used as evidence against him in his possession.

02:15 - 16.041 Evidence of what?

02:15 - 17.642 What what is the magazine evidence?

02:15 - 20.011 Evidence of his illegal possession of a firearm.

02:15 - 21.480 But he had the firearm.

02:15 - 22.781 He discarded it.

02:15 - 25.350 Well, say you didn't let me just go down the road.

02:15 - 26.685 So you just took the magazine out

02:15 - 29.688 through the magazine and still had the gun on his belt.

02:15 - 34.159 You discarded the same exact fact pattern.

02:15 - 36.161 You're talking about a magazine here.

02:15 - 38.563 What evidence does that impair?

02:15 - 41.566 I would submit in that case, it could be a different outcome.

02:15 - 45.003 I would also submit that Delgado doesn't provide

02:15 - 48.373 a lot of guidance as far as it uses the term abandonment.

02:15 - 52.511 And when a defendant is abandoning evidence, it strains

02:15 - 56.581 credulity to believe that that is done with any other intent.

02:15 - 59.184 I'm just trying to I mean, I'm thinking down the road,

02:16 - 01.052 essentially.

02:16 - 06.124 What if we determine that this constitutes concealment or alteration?

02:16 - 09.694 It's almost like we're telling every criminal defendant out there that,

02:16 - 12.564 you know, you can't distance yourself from contraband.

02:16 - 14.966 In other words, you've got to just cooperate from the police.

02:16 - 16.234 You got an illegally possessed gun.

02:16 - 18.370 You just got to turn it over. You got some crack on you.

02:16 - 19.704 You just got to pull it out of your pocket

02:16 - 21.973 and show it to the police officers on the scene.

02:16 - 24.976 I don't how do we draw a line?

02:16 - 29.614 I'm not sure that that's such a bad thing to tell it.

02:16 - 32.117 That suggestion is better suggested.

02:16 - 34.653 Or maybe a Fifth Amendment issue.

02:16 - 37.622 Well, I think I think I think the problem is,

02:16 - 41.826 you know, the you hit it on the head, which is Delgado doesn't the take out,

02:16 - 44.829 it creates this distinction between abandonment

02:16 - 48.333 and, concealment

02:16 - 51.836 without much discussion about when one abandons

02:16 - 54.839 but doesn't conceal or when one conceals but doesn't abandon.

02:16 - 57.342 And I think that's so.

02:16 - 00.045 It's taking Delgado out of the equation.

02:17 - 03.782 Do you believe if this defendant had been running

02:17 - 07.118 on a football field away from police officers,

02:17 - 10.755 and the police officers were five feet behind him,

02:17 - 13.858 and he threw the gun

02:17 - 16.895 as far as he possibly

02:17 - 19.898 could, maybe into the first rows of bleachers.

02:17 - 22.934 Is that concealment? Yes.

02:17 - 23.969 Okay.

02:17 - 26.538 So you have a problem with Delgado?

02:17 - 27.739 Yes. Okay.

02:17 - 30.742 But you haven't argued for us to overrule Delgado.

02:17 - 32.777 You're distinguishing it, aren't you?

02:17 - 35.280 I think that Delgado,

02:17 - 39.017 in addition to the fact that it does not discuss the sufficiency of evidence

02:17 - 44.556 and does not provide any guidance about what would constitute the, relevant

02:17 - 48.426 conduct under the statute, also stated

02:17 - 51.563 that he did not believe that the legislature and that

02:17 - 55.233 pursuant to the facts of that case, it did not believe that the legislature

02:17 - 58.970 intended for that defendant to suffer a harsher penalty

02:17 - 02.307 for a tampering charge than the underlying charge.

02:18 - 05.277 So he was. But in your in your non Delgado world,

02:18 - 08.113 every time a

02:18 - 13.318 person in flight from law enforcement for engaging in an illegal activity

02:18 - 18.523 of which they possess evidence, throws it away

02:18 - 21.760 during the course of flight, which happens quite frequently.

02:18 - 24.763 Cell phones, drugs, guns, happens all the time.

02:18 - 29.501 That would automatically prompt or could, in a matter of prosecutorial

02:18 - 33.672 discretion, could automatically prompt a charge for tampering.

02:18 - 37.108 I think that's a reasonable interpretation,

02:18 - 41.146 and I do think that Delgado needs to be revisited, as this court has it.

02:18 - 44.215 But you've argued you've argued here and it

02:18 - 46.851 because of the question granted

02:18 - 49.254 on an alteration theory,

02:18 - 51.990 you haven't argued on a concealment theory.

02:18 - 54.993 Well, the Superior Court ruled on an alteration theory,

02:18 - 59.197 but at trial, the Commonwealth argued that there was concealment and removal.

02:18 - 03.168 But the fact is that, excuse me, just as what the question

02:19 - 06.871 we accepted for review dealt with alteration, right?

02:19 - 09.941 Correct. So again, I rely on Williams.

02:19 - 12.377 But what I was going to ask and follow up is

02:19 - 16.414 standing here today.

02:19 - 18.450 Do you think this conviction

02:19 - 21.453 is stronger on a concealment theory

02:19 - 24.556 or on an alteration theory, a concealment theory.

02:19 - 27.692 And as a Commonwealth also requested in its brief,

02:19 - 32.630 to affirm on any other basis, affirm on another basis, the Commonwealth

02:19 - 35.633 submitted that that was a possibility in this case as well.

02:19 - 40.605 To affirm on another reason.

02:19 - 41.072 All right.

02:19 - 42.374 Any other questions from us?

02:19 - 44.909 Constantly I do okay.

02:19 - 48.580 We granted on precisely the issue you asked us to grant.

02:19 - 50.682 Well, I didn't ask.

02:19 - 53.351 I'm sorry we granted on that.

02:19 - 56.354 And part of it is,

02:19 - 59.891 a challenge to the, Superior

02:19 - 03.895 Court, interpretation of Joe Delgado.

02:20 - 06.898 Do you think the Superior Court got it right or wrong?

02:20 - 08.900 Its interpretation?

02:20 - 13.671 I think it was probably correct to the extent that it didn't rely on Delgado.

02:20 - 16.508 All right.

02:20 - 17.709 Thank you very much.

02:20 - 22.180 And, Miss Constantine, we see a lot of you in this court.

02:20 - 24.349 I don't recall seeing this better before.

02:20 - 27.352 Is this your first Supreme Court argument?

02:20 - 29.354 Well, you did a very nice job.

02:20 - 31.723 Thank you for being here. Welcome. Thank you.

02:20 - 33.958 Bye bye.

02:20 - 34.192 Manner.

02:20 - 37.195 What you call the next case.

02:20 - 39.898 The next case is Cunningham

02:20 - 42.901 Township versus the Public Utility Commission.

02:20 - 46.070 This case is to decide whether the Pennsylvania

02:20 - 49.941 Public Utility Commission, the PUC, has jurisdiction

02:20 - 55.313 to require a municipal authority organized under the Municipal Authorities Act,

02:20 - 59.617 Ma, to obtain a certificate of public convenience.

02:20 - 02.821 When the authority provides water,

02:21 - 06.224 when the authority provides wastewater service

02:21 - 09.928 outside of the boundaries of its incorporating municipality

02:21 - 13.798 or whether the weather jurisdiction

02:21 - 18.002 over the question lies exclusively with the Court of Common Pleas.

02:21 - 19.838 Under the Ma, a,

02:21 - 22.440 in this case

02:21 - 26.311 the Sanitary Sewer Authority of the Borough of Shinny,

02:21 - 30.281 the SSA base is a municipal

02:21 - 33.284 authority created under the Ma.

02:21 - 34.953 The SSA.

02:21 - 38.223 ABS provides wastewater treatment for the borough

02:21 - 41.259 and portions of Ingham Township.

02:21 - 45.029 Previously, there was an agreement between the township

02:21 - 49.734 and the SSA ABS, which was canceled

02:21 - 52.837 and now the Sabs bills

02:21 - 56.541 its consumers directly.

02:21 - 59.777 The township is appealing to the Supreme Court,

02:21 - 04.916 asking them to hold that the PUC has jurisdiction

02:22 - 08.152 over the SS, ABS

02:22 - 11.556 by directly billing outside residents outside of Chicago.

02:22 - 14.626 Any SSA ABS has acted

02:22 - 18.029 as a public utility, and therefore is the position

02:22 - 22.166 of Cunningham Township that the PUC has jurisdiction.

02:22 - 25.670 It is the position of the PUC

02:22 - 29.941 that it does not have jurisdiction over rates and services,

02:22 - 33.778 including extensions and extraterritorial services.

02:22 - 38.583 Let's go to the argument.

02:22 - 45.056 No. In this appeal by allowance, we are asked to determine

02:22 - 49.427 whether a borough sanitary sewer authority, which also provides

02:22 - 52.430 sewer services to an adjacent township,

02:22 - 57.502 is required under the Public Utility Code to obtain a certificate of convenience

02:22 - 01.973 from the public Utility Commission to operate outside

02:23 - 04.976 its municipal boundaries, please proceed.

02:23 - 08.346 Good afternoon, Chief Justice Tod

02:23 - 11.516 and fellow justices of the Pennsylvania Supreme Court.

02:23 - 13.751 May it please the court.

02:23 - 16.888 My name is James a Mullins, and I represent the appellant

02:23 - 20.291 in these proceedings, the Pennsylvania Public Utility Commission.

02:23 - 20.692 Right.

02:23 - 22.060 Could you pull the mic up here?

02:23 - 24.929 So taller than our last council? Certainly.

02:23 - 28.499 With me today, I have, co-counsel, Sharon Webb.

02:23 - 34.339 My presentation today centers on one premise

02:23 - 39.544 and that premises, the court below paints a picture,

02:23 - 44.182 Court of Common Pleas jurisdiction over municipal authorities

02:23 - 47.752 that is much less extensive than such jurisdiction.

02:23 - 48.553 Actually is.

02:23 - 50.622 Now, the court

02:23 - 53.858 concedes that the Municipal Authorities Act establishes

02:23 - 57.962 that the Court of Common Pleas shall have exclusive jurisdiction

02:23 - 02.834 to determine questions involving rights or services of municipal authorities.

02:24 - 08.006 So in the order below, the court asserts that there is a segment of complaints

02:24 - 12.810 against municipal authorities that does not involve rates or services,

02:24 - 17.348 and for this segment of complaints, the court asserts that the PUC

02:24 - 20.551 therefore has jurisdiction.

02:24 - 23.521 Now that such complaints exist

02:24 - 26.591 is implausible.

02:24 - 30.962 Any municipal authority providing a service will assess a fee for

02:24 - 32.864 that service,

02:24 - 35.867 that they will be reduced to a recoverable rate.

02:24 - 40.972 Thus, for the court below the state, that there's a segment of complaints

02:24 - 45.410 against municipal authorities that does not at least indirectly

02:24 - 49.414 raise issues as to rates or services is inconceivable.

02:24 - 50.815 Well,

02:24 - 53.785 how do we reconcile the two statutes in

02:24 - 56.888 we're supposed to give effect to everything the General Assembly

02:24 - 00.725 has passed into law with the governor's assent.

02:25 - 05.463 And you're talking to us about the the MRA.

02:25 - 09.067 What about the PUC

02:25 - 12.470 that does these, two statutes,

02:25 - 14.906 cover the same area?

02:25 - 19.944 How are what are we to make of and council, just to be clear,

02:25 - 25.483 I'm referring to the language in 66 packs 1501 which reads, quote,

02:25 - 31.155 any public utility service being furnished or rendered by a municipal corporation

02:25 - 36.360 beyond its corporate limits shall be subject to regulation and control

02:25 - 42.533 by the Commission as to service and extensions with the same force,

02:25 - 47.371 and in like manner as if such service were rendered by a public utility.

02:25 - 53.277 So, Your Honor, there there are several components

02:25 - 57.048 encompassed in that question.

02:25 - 58.783 I think we first have to start

02:25 - 01.786 with a chronological examination of the two legs.

02:26 - 06.624 So what we're talking about here is the 1945 Municipal Authorities Act.

02:26 - 10.161 And pursuant to that act,

02:26 - 13.664 any entity established under that act.

02:26 - 19.771 Is under the sole jurisdiction of the Court of Common Pleas.

02:26 - 23.941 Now, where we run into

02:26 - 27.712 complications, I'll say is that

02:26 - 30.715 from the definition you just read,

02:26 - 33.184 the definition of a municipal corporation

02:26 - 37.655 does include authority, but does not know it does.

02:26 - 39.724 The task definition I'm going to be clear on.

02:26 - 40.057 All right.

02:26 - 43.294 So but we're we're talking about two different animals here.

02:26 - 46.397 And that you can you can have an authority

02:26 - 49.400 that the commission would in fact have jurisdiction over.

02:26 - 52.503 But if we're talking about an authority

02:26 - 55.706 that was, established under the MRA,

02:26 - 57.975 that's a different beast.

02:26 - 00.611 And the commission does not have any authority whatsoever.

02:27 - 04.682 My question and I appreciate all that, but my question is, I know

02:27 - 07.652 that's what you want us to interpret, but

02:27 - 10.755 what's the what's the,

02:27 - 14.358 the tool or the, guiding principle

02:27 - 19.931 that allows us to privilege the Ma in this context over the piece?

02:27 - 25.903 I think it's a simple matter of statutory construction, and that the 1937

02:27 - 29.340 Public Service law

02:27 - 32.109 established the definition of a municipal corporation.

02:27 - 35.112 That definition also included authority in the definition.

02:27 - 41.652 In 1945, the NRA was established and the NRA, once again

02:27 - 46.691 the General Assembly determined that for entities

02:27 - 49.794 established under that act,

02:27 - 52.797 the Court of Common Pleas would have exclusive jurisdiction.

02:27 - 57.568 Now, in 1978, the Public Utility Code

02:27 - 00.872 was enacted

02:28 - 03.875 and contained the exact same definition

02:28 - 08.045 of municipal corporation as the 1937 Public Service Law.

02:28 - 11.949 So the 1945 act

02:28 - 14.886 supersede it.

02:28 - 18.623 The definition of municipal corporation

02:28 - 23.027 that's currently in the code, and that was currently in effect in 1937.

02:28 - 24.362 What?

02:28 - 27.198 Well, wouldn't it guess what?

02:28 - 28.499 Maybe it's superseded.

02:28 - 30.568 Maybe it didn't,

02:28 - 33.304 but it seemed to me that where you were going was

02:28 - 39.176 you were going to argue that when the, this provision, 1501 was put into the

02:28 - 43.080 into the public utility code, the MRA did not exist.

02:28 - 46.584 Well.

02:28 - 48.452 What we can't lose sight of is the fact

02:28 - 51.455 that we're still talking about two separate entities.

02:28 - 54.592 No, I'm just trying to understand you were making a chronology argument.

02:28 - 55.960 I understand the chronology.

02:28 - 59.397 Are you saying that when the definition

02:28 - 03.567 of municipal corporation was placed in the public utility code,

02:29 - 07.405 that Ma, that the Ma did not exist

02:29 - 12.243 with the public service law at that point, the Ma did not exist.

02:29 - 13.477 In 1978,

02:29 - 17.615 obviously the Ma when they created the the public utility code in 1978. But.

02:29 - 17.882 Right.

02:29 - 21.218 So in 1978, when they created the public utility code,

02:29 - 22.053 I know you're saying that

02:29 - 25.189 they incorporated a definition from a law that predated the Ma,

02:29 - 26.724 but the General Assembly was very aware

02:29 - 29.393 when it created the public utility code of the MDA.

02:29 - 30.361 Right? Right.

02:29 - 33.631 Yes. It did. It did. So it didn't.

02:29 - 37.201 Knowing that the Ma was in existence, it nonetheless brought forward

02:29 - 40.171 the definition, brought it forward, and made it applicable.

02:29 - 43.274 At the time, the PUC code was the public utility.

02:29 - 46.043 You got to be careful not PUC its public utility.

02:29 - 47.478 By the time the code was enacted.

02:29 - 50.881 Yes, it could have incorporated the Ma and say,

02:29 - 56.120 except for municipal authorities, created under the Ma,

02:29 - 59.824 which presumably they knew about when they created the public utility code.

02:29 - 01.826 You see that? Yes. And that's why we're here.

02:30 - 05.696 Because that that that word authority still remains in the current definition.

02:30 - 09.367 But you want to relate it back, but we can't really relate it back.

02:30 - 11.602 We have to look at what the intent of the General Assembly

02:30 - 15.172 was when they created the public utility code in 1978,

02:30 - 19.844 but once again, at the time they knew about the provisions

02:30 - 23.280 in the Ma, about rates and service being in the Court of Common Pleas.

02:30 - 27.018 But they nonetheless chose to include this provision, 1501

02:30 - 31.122 and they chose to use the definition of municipal corporation. Yes.

02:30 - 33.057 But again,

02:30 - 36.260 if you take the the East

02:30 - 41.799 Dunkirk case, which was cited in the, appellate brief, in that particular case,

02:30 - 44.935 you had a, an entity

02:30 - 48.039 that when the complaint was brought against the entity,

02:30 - 51.942 it was an authority, not not a municipal

02:30 - 54.945 authority created under the act, but a simple authority.

02:30 - 57.948 And the argument was, does

02:30 - 01.218 the Commission have jurisdiction over this particular entity?

02:31 - 04.922 And the courts below

02:31 - 08.426 answer the question in the affirmative that this is an authority.

02:31 - 13.297 This authority is undertaking public utility service actions,

02:31 - 17.068 so the Commission can in fact regulate this entity.

02:31 - 21.972 Now, subsequent to the the end of that case,

02:31 - 25.409 the East Dunker Authority

02:31 - 28.546 then established itself under the Ma.

02:31 - 31.415 And at that point the Commission said, well, now that you've established

02:31 - 34.752 yourself under this particular act, we have no jurisdiction over you.

02:31 - 36.420 Look, I, I'm not disagreeing with you.

02:31 - 39.390 If the PAC's position is aligned with you.

02:31 - 42.793 The we're not here about that.

02:31 - 45.362 We're here about whether the PUC position is correct.

02:31 - 47.832 And the Commonwealth Court said that it wasn't.

02:31 - 49.867 So we're looking at the law.

02:31 - 52.303 The fact that the PUC has taken

02:31 - 55.473 that interpretation doesn't really matter that much to us.

02:31 - 58.809 We're looking at the statute,

02:31 - 03.080 and based on the principle, such court construction, I am aware of,

02:32 - 05.416 the General Assembly was presumed

02:32 - 09.520 to know about the Ma at the time it passed the public utility code.

02:32 - 13.090 Well, if we want to focus on the general Assembly,

02:32 - 18.195 then we also have to take into account the fact that in 2017, in 2018,

02:32 - 25.202 one of those years, HB 798 was proposed by a member of the House

02:32 - 31.242 and that law would have brought all municipal

02:32 - 35.212 authorities established under the Ma within the purview of the Commission.

02:32 - 40.351 Now, that particular bill languished in committee.

02:32 - 43.020 Now, there was a hearing, but it languished in committee

02:32 - 44.522 until the time of the GA.

02:32 - 45.789 The Assembly ended.

02:32 - 48.792 So the General Assembly was well aware

02:32 - 52.730 that the Commission has never exercised jurisdiction over these entities.

02:32 - 55.032 And when the General Assembly had the opportunity

02:32 - 58.802 to bring them within the Commission's jurisdiction, it chose not to.

02:32 - 00.704 Well, but we don't know why it chose not to.

02:33 - 02.673 It could have chose not to, because they could have said,

02:33 - 06.610 we don't need to amend it, because this is because that's the problem.

02:33 - 08.479 How do we know why they chose not to?

02:33 - 11.749 Well, I think I think that coupled with the fact

02:33 - 15.452 that since at least 1993,

02:33 - 19.423 the Commission has consistently ruled that it has no jurisdiction

02:33 - 24.361 over these particular entities, lends credence to the fact that the Assembly has

02:33 - 27.765 well known that this is how we treat our lack of jurisdiction.

02:33 - 30.568 For what principle of statutory construction are you?

02:33 - 33.337 Because I'm aware of the one that says when the highest court interprets

02:33 - 37.741 a statute that the General Assembly is presumed to know that, where are you?

02:33 - 38.576 Where is the principle

02:33 - 41.579 that when the PUC interprets a statute, the General Assembly

02:33 - 42.479 is presumed to know it?

02:33 - 46.483 It's it's just a matter of consistency on on behalf of the agency.

02:33 - 49.820 And that in the case below, we've, we've consistently held

02:33 - 53.190 that we do not have jurisdiction over these entities.

02:33 - 58.462 The current chairman of the commission back in 2017 and 2018 made the same point.

02:33 - 00.464 You know, we simply do not have jurisdiction

02:34 - 01.765 over these particular entities.

02:34 - 05.069 So so I think I think you're arguing the converse of what Justice Propst

02:34 - 08.806 is asking you, because in 1978, when a general assembly passes

02:34 - 12.910 the public utility code, they imported the definitions from 1937,

02:34 - 15.913 which defined municipal corporations to include authorities.

02:34 - 20.317 But they were also well aware of the fact that the 1945 Municipal Authorities

02:34 - 23.821 Act created jurisdiction exclusively with the Court of Common Pleas.

02:34 - 25.456 Right, and it would have been.

02:34 - 26.757 The converse is true as well.

02:34 - 29.493 So I guess you're looking at basically at,

02:34 - 33.230 they could have accepted one, but they didn't.

02:34 - 35.566 They could have included one, but they didn't.

02:34 - 39.670 And I think, I think we we have to not lose sight of the fact that

02:34 - 44.675 the, the cases

02:34 - 50.147 that were subsequent to 1945, were they all they all hold that municipal

02:34 - 53.250 authorities are best of a jurisdiction in the Court of Common Pleas,

02:34 - 56.553 not through the PUC right.

02:34 - 00.691 So you've got you've got the 1945 act.

02:35 - 03.827 You've got you've got ample case law to the effect that

02:35 - 06.964 when it comes to race and services and, and for, for that matter,

02:35 - 11.735 any and all complaints that that an entity or a complainant were bring before

02:35 - 15.139 the courts of conduct doesn't necessarily guide our interpretation of the act.

02:35 - 17.675 This is more of a situation where you've just got

02:35 - 19.910 the General Assembly importing one definition,

02:35 - 24.114 recognizing that it had previously defined

02:35 - 28.552 municipal corporations to include authorities into the 1976 PUC.

02:35 - 32.489 But by the same token, it was also well aware of the 1945 Municipal Authorities

02:35 - 35.793 Act, which vested jurisdiction exclusively in the Court of Common Pleas.

02:35 - 37.594 They didn't do anything to import

02:35 - 40.597 that definition, nor did they do anything to exclude it.

02:35 - 44.101 I think I think it may have been a matter of

02:35 - 46.437 there can still exist entities

02:35 - 49.440 that have authority in the name.

02:35 - 54.144 That's that's yeah, that's you're going exactly where my thought process is.

02:35 - 55.946 You give us an example of one.

02:35 - 58.949 Is, is Duncan at that point, if there's a,

02:35 - 01.285 there's authority was an authority, capital authority,

02:36 - 04.221 which our civil authorities created under the municipal authority act.

02:36 - 07.224 I mean, I, I did a fair amount of my private look,

02:36 - 10.761 prior experience, right, representing municipal authorities,

02:36 - 14.765 all of which, anytime there was an issue, went to the Court of Common Pleas.

02:36 - 17.901 I've never even heard of the PUC being involved in a municipal authority.

02:36 - 18.469 Exactly.

02:36 - 19.870 And there, and to this day,

02:36 - 22.172 there can be authorities out there that we're unaware of.

02:36 - 25.476 Well, but let's let's let's be clear what we're talking about here,

02:36 - 29.480 because isn't there a we're not talking about regulating the rates and services

02:36 - 32.483 that a municipal authority and the mayor is providing

02:36 - 35.686 to the municipalities that sign on to or have an agreement with them.

02:36 - 37.621 We're talking about a municipal authority

02:36 - 41.658 that is going outside of any connection to any of its charter,

02:36 - 45.362 original charter, and the organizations that have contracted with it.

02:36 - 49.566 So if if this was a pure rates and service case about the services

02:36 - 52.803 that that municipal authority or the MTA was providing

02:36 - 56.473 to the municipalities that were a sign on member of the authority,

02:36 - 00.444 we would definitely be in the Common Pleas Court.

02:37 - 05.349 But the question is, does 1501 kick in when a municipality withdraws

02:37 - 09.787 from the joint municipal authority and the municipal authority says, well,

02:37 - 13.123 we're just going to continue to provide service to that municipality anyway.

02:37 - 18.195 There's still two different and distinct entities, and that for

02:37 - 21.632 municipal authorities created under the the act,

02:37 - 23.333 they can serve anywhere within the Commonwealth.

02:37 - 25.936 Where do you get that in the act itself?

02:37 - 30.541 I can sense 50 if you 56 or 70 says they have no territorial limits.

02:37 - 32.643 No, not not within the Commonwealth. No.

02:37 - 34.344 Absolutely not.

02:37 - 36.580 I didn't see that line 56 what it says

02:37 - 39.583 607 expressly says they have no territorial limits.

02:37 - 43.187 They, they whenever a complainant

02:37 - 47.191 has an issue with a particular municipal authority,

02:37 - 50.327 that complainant can either file a suit

02:37 - 54.364 within the Court of Common Pleas, in which

02:37 - 58.335 the the entity was created, or the

02:38 - 02.973 other jurisdiction in which it operates.

02:38 - 05.476 Principal office of the project. Right.

02:38 - 06.210 Okay.

02:38 - 08.846 I'm sorry, I just want to but that didn't the.

02:38 - 09.780 Now you're backtracking.

02:38 - 13.350 Well, if I look at 5607, does it say words to the effect of.

02:38 - 15.118 And a municipal authority created under

02:38 - 17.187 this act can operate anywhere in the Commonwealth

02:38 - 20.257 it wants to not explicitly, but it's it's

02:38 - 23.360 certainly I can now look at 5607.

02:38 - 26.563 I just I mean that would be an obvious if then if it said that

02:38 - 28.532 we probably wouldn't be here and there.

02:38 - 31.535 There's case law as well that that says for this court though,

02:38 - 34.805 right.

02:38 - 36.006 I would have to check that

02:38 - 39.009 I do have I mean, 5607

02:38 - 44.348 5679 says apropos Justice Robson's question,

02:38 - 47.985 the county where the project is located or if it's in more than one

02:38 - 51.355 county, the Court of Common Pleas, where the principal office of the project

02:38 - 53.056 is located.

02:38 - 56.627 Well, let me ask you, counsel, is it could be another county.

02:38 - 57.261 It could be.

02:38 - 00.364 And many of them do operate in more than one county, which which is set

02:39 - 04.301 forth and, you know, there are cases where there are cases

02:39 - 10.474 where we're forced to decide that somehow the General Assembly has,

02:39 - 14.211 implicitly superseded one statute with another.

02:39 - 17.281 You know, this is a conflict that cannot be avoided.

02:39 - 20.250 But here the,

02:39 - 24.021 Commonwealth Court reconciled these statutes,

02:39 - 28.725 the Public Utilities Code and the Ma,

02:39 - 31.728 by, determining this was not a service.

02:39 - 36.700 So, if you're correct, sir, then

02:39 - 40.571 it there's there's no case.

02:39 - 43.840 Is there any conceivable kind of regulation

02:39 - 47.311 that's not a service?

02:39 - 52.549 That I think that was my initial point.

02:39 - 54.551 And that,

02:39 - 58.822 first of all, the the proceeding below did in fact address services

02:39 - 03.660 because the, the, the whole, the whole, the crux of the complaint

02:40 - 09.166 was that this particular entity cannot serve township customers directly.

02:40 - 12.703 So it was a question as to them exceeding

02:40 - 16.173 their authority, their service authority, as it were.

02:40 - 21.278 And as I've said before, any any case that is brought

02:40 - 24.748 against a municipal authority is going to involve their rates and services.

02:40 - 27.517 So obtaining a CPC,

02:40 - 30.420 obtaining a CPC is a service.

02:40 - 34.191 Well, when the commission issues

02:40 - 40.197 a CPC to a municipal well, I take a step back

02:40 - 43.233 for municipal any municipal that serves within

02:40 - 46.770 its boundaries is not subject to commission jurisdiction.

02:40 - 50.774 Municipal I mean, it's corporations, municipal corporation parties, right.

02:40 - 52.442 Municipal. Municipal corporations.

02:40 - 55.646 That's make that distinction because you're you're you're about to walk into a.

02:40 - 01.018 So when that particular entity serves outside

02:41 - 04.521 of its boundaries, the commission does have authority to regulate.

02:41 - 10.160 For municipal authorities created under the act, there is

02:41 - 13.263 you don't have that same dichotomy and that once again, they can serve

02:41 - 16.266 anywhere within the Commonwealth.

02:41 - 25.942 We spoke briefly about the

02:41 - 29.946 legal justification

02:41 - 32.649 for the court's determination below,

02:41 - 35.686 and the court relied upon

02:41 - 39.990 two panel decisions that were unreported

02:41 - 43.860 and as justification for deciding as it did now.

02:41 - 47.164 The first one is the Middle Smithfield

02:41 - 51.268 case, and in Middle Smithfield,

02:41 - 55.639 the court below states that, quote, the Commission has in

02:41 - 58.909 fact issued a CPC to a municipal authority.

02:41 - 02.312 Now, in that particular case,

02:42 - 05.182 the PUC issued the CPC

02:42 - 07.918 to a privately owned corporation.

02:42 - 10.020 Now that particular corporation shirked

02:42 - 14.658 its duties to such a degree that the PUC had to file an enforcement action

02:42 - 17.961 against it before the Commonwealth Court.

02:42 - 21.598 At the same time, the Pennsylvania Department of Environmental Protection

02:42 - 24.968 ordered the Middle Smithfield Municipal Authority

02:42 - 27.938 to take over the operations of that corporation.

02:42 - 30.674 At that point, the municipal authority

02:42 - 33.477 sought a certificate from the PUC

02:42 - 37.380 for the private corporation to abandon services.

02:42 - 42.652 In other words, the

02:42 - 47.324 Commission sought to rescind the CPC of the original holder

02:42 - 51.061 so and not rescind reassign right

02:42 - 53.930 now will be reassigned to a municipal authority because

02:42 - 56.933 municipal authorities aren't required to obtain a CPC.

02:42 - 00.604 In this particular unique circumstance, the court ordered them to take over

02:43 - 03.206 the municipal corporation's rates and services,

02:43 - 05.842 and that's why they were required that it did to obtain the CPC.

02:43 - 06.443 Right?

02:43 - 10.514 Well, the the CPC was, was to allow for the private corporation

02:43 - 11.448 to abandon service.

02:43 - 14.451 And then obviously the industrial authority took over the service.

02:43 - 18.221 But the point I wanted to make was that was under a court order right

02:43 - 21.024 then the court to tell the municipal authority to take over that

02:43 - 24.060 because they were either incompetent or they weren't.

02:43 - 28.198 If if it wasn't a court, it was another body of authority

02:43 - 30.901 that told them that you can't operate this system anymore.

02:43 - 33.904 It has to be taken over and run effectively and efficiently.

02:43 - 35.539 Only half of the customers.

02:43 - 39.543 But but the point I was trying to make was that it wasn't a, it wasn't a case

02:43 - 43.747 where the the commission granted a CPC to commence service.

02:43 - 45.749 It was it was a CPC granted to

02:43 - 48.518 abandoned service

02:43 - 52.155 for the for the, the original

02:43 - 55.158 hold on the right.

02:43 - 57.060 The East Dunker case, as I said

02:43 - 00.263 before, was, you know, the court the court sided to that.

02:44 - 03.800 But again, the facts of that case are that

02:44 - 06.870 when the

02:44 - 09.873 initial determination of PUC jurisdiction was made,

02:44 - 13.276 that entity had not been established under the Ma.

02:44 - 16.279 So it wasn't an apples to apples comparison.

02:44 - 19.382 Finally, that like to direct the court's attention

02:44 - 23.787 to the 1993 Snyder versus new Wilmington Water Authority case.

02:44 - 27.490 That case is set forth or cited in the in the Commission's brief.

02:44 - 33.296 That case, was ignored by the appellate as well as the amicus OCA.

02:44 - 39.202 And in Snyder, the PUC issued an order which, as in the proceedings

02:44 - 43.473 below, unequivocally states that the PUC has no jurisdiction

02:44 - 48.311 over municipal authorities as a result of the Ma since Snyder.

02:44 - 50.180 Once again, the Commission has been consistent

02:44 - 54.084 in making that determination each and every time that that question

02:44 - 54.885 has come before it.

02:44 - 59.923 In summation, as the NEA clearly confers

02:44 - 03.660 jurisdiction to the Court of Common Pleas as to the complaint below,

02:45 - 06.796 the Commonwealth Court committed reversible error in the holding

02:45 - 09.799 that the PUC had jurisdiction over the complaint.

02:45 - 12.636 As such, the order below should be reversed.

02:45 - 15.438 I'll take my seat unless there are any further questions from the bench.

02:45 - 16.306 Thank you.

02:45 - 17.374 Thank you, Mr. Mullins.

02:45 - 18.241 Let's hear from Mr.

02:45 - 21.244 DeLuca.

02:45 - 27.751 May it please the court.

02:45 - 30.887 Counsel. My name is Vito DeLuca.

02:45 - 34.024 I represent, Cunningham

02:45 - 37.027 Township, the appellee in this matter.

02:45 - 42.365 I'm going to start, because there was some discussion

02:45 - 46.770 about the Commonwealth Court, relying on those two unreported cases,

02:45 - 52.509 one being Dunkirk and the other being, Middle Smithfield.

02:45 - 55.679 And just to correct, I believe what,

02:45 - 58.581 may have been an incomplete,

02:45 - 00.216 summary of

02:46 - 03.219 of what happened in those two cases.

02:46 - 06.122 In, in Smithfield.

02:46 - 11.461 It was actually a, filing for a certificate,

02:46 - 14.497 public convenience to abandon it,

02:46 - 18.668 because a private corporation had been running, running the system.

02:46 - 20.136 Excuse me.

02:46 - 24.541 And, when the EPA ordered, the,

02:46 - 29.846 Smith Middle Smithfield Authority to take over those operations.

02:46 - 32.916 That was a necessary process,

02:46 - 36.619 to abandon that original certificate with that,

02:46 - 40.824 private provider of wasteful of services.

02:46 - 45.328 The thing is, though, in the first instance,

02:46 - 49.132 that case doesn't help us one way or another because Middle Smithfield

02:46 - 52.135 was serving its own residents anyway.

02:46 - 55.839 It would have never needed a certificate of public convenience either.

02:46 - 00.410 Even under the reading that that we have and that the Commonwealth Court,

02:47 - 04.114 had a 5607 D9.

02:47 - 07.517 So Middle Smithfield

02:47 - 10.520 isn't necessarily helpful except to,

02:47 - 14.190 the point that the PUC

02:47 - 18.061 did issue a certificate of public convenience, but,

02:47 - 21.931 it was at the request of the Middle Smithfield Authority.

02:47 - 25.635 But the Middle Smithfield Authority didn't need one to begin with.

02:47 - 29.672 They that the operation that they were taking over

02:47 - 31.408 was within their own boundaries.

02:47 - 35.512 Anyway, so that technically that case, I wouldn't

02:47 - 39.082 I didn't even I don't believe I addressed it, because it

02:47 - 43.019 it really is not I don't believe it's completely relevant here.

02:47 - 46.089 Now, the Duncan case is different.

02:47 - 51.728 The Duncan case was a case where, they were

02:47 - 55.365 they had taken over a private entity that had been operating

02:47 - 58.134 in multiple jurisdictions.

02:47 - 01.905 And when they took it over, the Bureau of Enforcement got involved

02:48 - 06.076 and said, hey, you're operating and all these other municipal entities

02:48 - 09.212 and you don't have a certificate of public convenience.

02:48 - 13.616 So Bureau of Enforcement went through, with, action.

02:48 - 17.187 They were required to get by,

02:48 - 20.223 the PUC to get a certificate of public convenience.

02:48 - 23.660 And if when I looked at the,

02:48 - 27.430 what happened after the case was remanded because that was cited,

02:48 - 31.768 in, in the PUC brief,

02:48 - 35.638 what they the, the Dunkirk

02:48 - 39.042 authority did is they went out and they got consent from each

02:48 - 43.046 one of those authorities, and it's actually listed in the exceptions

02:48 - 47.617 that were filed when they were asking to reduce the fine for what they did.

02:48 - 50.987 By operating in, in,

02:48 - 53.022 outside their municipal boundaries.

02:48 - 56.626 They said we went through and we did all that was necessary,

02:48 - 01.131 to be able to, basically to, to,

02:49 - 05.401 now eliminate the need for PUC

02:49 - 08.638 oversight and jurisdiction because they got the consent

02:49 - 13.076 of each one of the municipalities that that weren't involved with that.

02:49 - 19.215 So Dunkirk actually helps us because they acknowledge Dunkirk acknowledged.

02:49 - 22.218 They actually did go out and get a certificate for public convenience.

02:49 - 26.289 And they resolve that by

02:49 - 29.926 getting the consent of the municipalities that they were serving.

02:49 - 30.527 Counsel.

02:49 - 35.431 What what statute determines I'm assuming you disagree with,

02:49 - 38.501 appellants, counsel,

02:49 - 41.204 that municipal authorities have no jurisdictional boundaries.

02:49 - 46.209 I have to say,

02:49 - 50.079 I have been struggling from the beginning of this litigation to understand

02:49 - 53.650 what their position is with regard to

02:49 - 58.354 municipal authorities, with a small municipal authorities with a big A.

02:49 - 59.455 Well, let's let's just stick with

02:49 - 59.856 the let's

02:49 - 00.557 just stick to their

02:50 - 02.058 their municipal authority,

02:50 - 04.727 you agree, is formulated under the Miscible Authorities Act. Right.

02:50 - 06.696 Not there though. The one we're talking about. Right.

02:50 - 10.066 Formulated they I mean, yes, under the Ma is a municipal authority

02:50 - 11.201 formed under the Ma.

02:50 - 14.204 Have any jurisdictional boundaries?

02:50 - 18.174 There is a statement, I believe, in Ma

02:50 - 21.177 that says that they they're basically given corporate,

02:50 - 24.581 status.

02:50 - 27.584 But there are limitations within the Ma

02:50 - 31.187 that limit what they're allowed to do and what they're not allowed to do.

02:50 - 34.691 So if there are jurisdictional limits

02:50 - 37.727 to the services that a municipal authority formed

02:50 - 42.432 and the Ma can provide, those jurisdictional limits would be in the Ma.

02:50 - 43.633 Absolutely.

02:50 - 46.636 If those jurisdictional limits are in the Ma,

02:50 - 50.073 then why doesn't the Commonwealth, the Court of Common Pleas, exclusive

02:50 - 54.510 jurisdiction kick in as to questions about where they may engage in service,

02:50 - 57.647 and you have to go to the Common Pleas Court to determine,

02:50 - 00.750 are they engaging in service beyond their territorial limits,

02:51 - 02.285 as authorized under the Ma?

02:51 - 06.656 It's not a dispute that they're operating beyond their territorial limit.

02:51 - 08.124 I think it's very much in dispute

02:51 - 10.226 because they're saying there are no territorial limits.

02:51 - 14.130 That's that that's what this whole case is about.

02:51 - 17.000 You say they are outside their territorial limits.

02:51 - 19.969 The PUC says they have no territorial limits,

02:51 - 22.639 therefore they don't need a certify in.

02:51 - 23.439 That's what I'm trying to.

02:51 - 25.575 Questions of rates or service.

02:51 - 26.943 Isn't your authority

02:51 - 30.780 under the Ma to operate provide a service in a part of the Commonwealth?

02:51 - 34.517 A question about service under the Ma, I think and

02:51 - 38.021 every time we talk about question, it's questions

02:51 - 41.024 regarding the reasonableness of rates and services.

02:51 - 42.825 That's the jurisdiction

02:51 - 46.629 that I admit and agree is conveyed to the Common Pleas Court.

02:51 - 50.033 It would be unreasonable to provide a service in a jurisdiction that the Ma

02:51 - 53.303 doesn't authorize you to to provide.

02:51 - 56.706 They would be ultra virus, which would be unreasonable,

02:51 - 59.876 which would not be under the Ma and would not be subject to

02:52 - 03.980 subject to that provision of D9.

02:52 - 07.517 And that's that's where I'm finally, I believe, understanding

02:52 - 10.853 maybe what the position is here.

02:52 - 13.523 The Dunkirk authority was ultra vires.

02:52 - 17.460 They were acting, without any authority under the Ma.

02:52 - 20.463 So how could they get protection under the Ma

02:52 - 24.834 if they were acting outside of the provisions of the Ma,

02:52 - 28.304 which would give them authority to be under the act in the first place?

02:52 - 31.307 When you say protections under the Mag, what are you talking about?

02:52 - 36.379 Because protection of the Ma by not having to have, PSC, oversight.

02:52 - 36.713 Yeah.

02:52 - 37.613 But under the Ma,

02:52 - 40.483 if you're a municipal authority, you're responsible to your ratepayers.

02:52 - 43.486 I mean, municipal authorities and municipal corporations are

02:52 - 44.654 there.

02:52 - 47.223 Enabling legislation is completely different.

02:52 - 52.328 A municipal authorities established by an act of the township or governing body.

02:52 - 56.199 So in other words, a township can decide townships,

02:52 - 58.768 elected officials can decide, you know, what we want to

02:52 - 01.771 we want to incorporate or create a municipal authority.

02:53 - 05.074 Those municipal authority board members are then

02:53 - 08.578 the authority itself is created under the act of 1945,

02:53 - 11.814 and then their board members are appointed by the township officials.

02:53 - 12.181 They are

02:53 - 15.918 then responsible to the ratepayers to establish the rates and circumstances.

02:53 - 19.288 And if they're not providing the services and the rates that they want to.

02:53 - 23.393 The Ma 1945 says, you got to go to the Court of Common Pleas

02:53 - 26.462 within which you exist, for any kind of dispute on rates

02:53 - 30.333 and services, municipal corporations or private corporations that are formed

02:53 - 33.870 to operate within a certain jurisdictional boundary.

02:53 - 37.173 They're subject to regulation by the PUC, which is

02:53 - 40.743 I mean, this is how I've always seen it in this particular case,

02:53 - 44.847 the township forms municipal authority.

02:53 - 47.850 If the municipal authority decides to provide services

02:53 - 52.388 to customers outside of the geographic boundaries of that particular township,

02:53 - 56.225 there's got to be an agreement somewhere under G 19, correct?

02:53 - 57.660 You can't just say,

02:53 - 00.763 hey, we're just going to scoop in this particular neighborhood

02:54 - 03.166 and provide you with rate routes and certain rates and services.

02:54 - 05.635 That's we've got you've got adjoining townships.

02:54 - 08.404 But my point is that the township municipal authority

02:54 - 11.507 doesn't just give services and set the rates unilaterally.

02:54 - 14.710 There has to be a negotiation between them and adjoining township,

02:54 - 17.079 your Honor, that's why we're here.

02:54 - 20.183 My township does not have a member on that board.

02:54 - 23.186 I understand, but we're here to decide that the jurisdiction.

02:54 - 25.321 Where does the dispute go? To the PUC.

02:54 - 29.392 And they're saying we've never we've never regulated or overseen

02:54 - 32.595 a municipal authority, but we have overseen rates

02:54 - 35.598 and services disputes as to municipal corporations.

02:54 - 39.001 So that's I think that's what we're here to decide.

02:54 - 39.769 I believe that,

02:54 - 44.140 that the General Assembly, in its choice of words

02:54 - 49.412 and D9 when it said questions about the reasonableness,

02:54 - 54.917 of the rates or services provided, go to the Court of Common Pleas.

02:54 - 59.522 It didn't say just services and rates, which actually it seems to be as,

02:55 - 04.360 as it's trying to be portrayed as anything related to rates and services.

02:55 - 09.432 Basically, they could have easily just said Court of Common

02:55 - 13.002 Pleas have complete regulatory jurisdiction over municipalities.

02:55 - 14.470 Well, that's not so what?

02:55 - 17.340 So what do you want us to

02:55 - 20.643 how do you want us to define service going forward?

02:55 - 24.647 To try to give effect to both of these statutes?

02:55 - 26.315 Yeah. How do we make sense of this?

02:55 - 29.585 And where do we delineate between rates and services?

02:55 - 33.422 On the one hand, and whatever else there might be,

02:55 - 37.159 if there is anything else, I take it the PUC thinks there isn't.

02:55 - 37.693 Right.

02:55 - 42.331 So the Court of Common Pleas jurisdiction, my position,

02:55 - 46.769 and I believe the position of the Common Pleas Court is to address

02:55 - 49.872 questions of the reasonableness of rates and services.

02:55 - 53.175 It doesn't regulate municipal authorities

02:55 - 57.446 in the first instance, which is billing practices, which is,

02:55 - 03.152 all the other regulatory things that go along with what the PUC does

02:56 - 07.990 when a public utility gets a certificate of public convenience.

02:56 - 11.260 They have audits, they have financial requirements.

02:56 - 13.329 They make sure that the infrastructure

02:56 - 16.332 is safe for the the residents that it serving.

02:56 - 19.235 They require them to produce report.

02:56 - 22.104 There are reporting requirements for when there's accidents

02:56 - 25.174 that have to be reported to the PUC, literally.

02:56 - 28.411 And if you think about it this way, when we're talking about statutory

02:56 - 32.448 construction, and I trust me, this is I've seen more statutory

02:56 - 35.718 construction in this case than I did in 35 years.

02:56 - 37.086 And I'm not an expert at it.

02:56 - 41.157 But I could say this what the one part of the statutory

02:56 - 46.295 construction Act that I looked at was the absurdity of, of the situation

02:56 - 51.500 where we could have had a borough, six city borough do the same thing,

02:56 - 57.440 and they would have to, under the PUC code, secure a certificate

02:56 - 01.577 of public convenience and be subject to every one of the protections

02:57 - 05.047 that the PUC code provides to residents.

02:57 - 08.351 And instead, by the mere act,

02:57 - 13.823 by the mere act of taking that project and putting it into an authority,

02:57 - 18.628 a municipal authority, somehow they're able to avoid complete oversight.

02:57 - 21.697 But that's why authorities are created,

02:57 - 25.134 because the township's not in the business of running a water and sewer authority.

02:57 - 28.571 So they create an authority and they staff it with experts.

02:57 - 31.807 Those experts are the ones who basically have to run the system,

02:57 - 33.876 so the township officials don't have to worry

02:57 - 36.312 about regulatory compliance and all the rest of the issue.

02:57 - 37.613 It goes to the authority.

02:57 - 41.183 I'm speaking of, your honor, from a statutory construction perspective

02:57 - 46.522 of the absurdity of to believe that the General Assembly would

02:57 - 50.493 somehow just based on the nature

02:57 - 53.462 of the form of the, entity,

02:57 - 58.801 completely eliminate protections to my residents and Cunningham Township

02:57 - 03.973 for a very potentially catastrophic and dangerous public utility service.

02:58 - 05.508 And that's what happened.

02:58 - 07.977 Well, that's not really what that's not really what this is about.

02:58 - 11.480 This is about you were a member of this authority or you had a contract.

02:58 - 13.683 We did have a contract, okay?

02:58 - 14.884 You were a member of this authority.

02:58 - 16.919 You had a contract with this authority.

02:58 - 19.922 You withdrew. No you didn't.

02:58 - 22.124 They unilaterally terminated the agreement.

02:58 - 23.993 I began, and that's it.

02:58 - 27.329 We had an agreement under D9 1050 607.

02:58 - 28.297 So they terminated it.

02:58 - 29.632 But they're still somehow

02:58 - 32.702 providing services in your municipality, and you want to stop them from doing that.

02:58 - 35.971 It's not about they're providing them unsafely or their rates

02:58 - 38.941 are excessive or well, you had a contract with them.

02:58 - 42.478 So presumably you felt someone for breach of contract

02:58 - 46.382 or terminate the contract we would prefer.

02:58 - 49.018 And our residents would prefer to have the PUC,

02:58 - 52.621 they're experts in regulatory oversight.

02:58 - 55.157 We are not experts in that.

02:58 - 58.761 They provided bulk service under D9 ten

02:58 - 03.966 to raise it to our our sewer authority and Cunningham Township.

02:59 - 05.935 They unilaterally

02:59 - 10.072 terminated the agreement, no successor agreement,

02:59 - 13.743 and they began billing Cunningham Township residents directly.

02:59 - 17.313 And really, the only reason that my township itself,

02:59 - 22.218 I had standing to file the PUC action in the first place

02:59 - 25.387 was because they build us to

02:59 - 28.057 they build our our municipal building.

02:59 - 31.894 So we were a customer. So.

02:59 - 34.964 I can't

02:59 - 38.934 imagine a GM General Assembly would have imagined that, that

02:59 - 42.438 that language in D9 would be intended

02:59 - 48.043 to completely supplant the protections that are provided by the PUC.

02:59 - 51.080 But but they're not is what I'm trying to explain.

02:59 - 55.951 You're your towns, your client, and the residents of your township

02:59 - 00.289 have a contract for provide services if you're not happy with those services,

03:00 - 04.126 if you think if somebody believes, if somebody starts putting on water

03:00 - 06.896 and you're getting rushed out of it, you're getting other problems,

03:00 - 09.965 you're free to go out and basically terminate the contract.

03:00 - 14.637 Or better yet, get a water analysis done to see whether or not this is dangerous.

03:00 - 16.472 There's dangers, lead levels or anything else,

03:00 - 19.441 and sue the municipal authority in the Court of Common Pleas,

03:00 - 23.279 not through the PUC, but it's a contractual matter.

03:00 - 26.315 So you're free to go to the Court of Common Pleas if you think they're

03:00 - 30.319 they're providing you services that are dangerous, that are problematic,

03:00 - 34.056 that are not fair, terminate the contract to go out and hire your own expert

03:00 - 36.826 and sue them in the Court of Common Pleas, as opposed to the PUC.

03:00 - 40.095 All of the protections that you're talking about that the PUC exercises,

03:00 - 41.630 you can exercise yourself.

03:00 - 44.200 It's a monopoly, Your Honor.

03:00 - 44.433 Right.

03:00 - 46.101 They they sort of

03:00 - 48.571 go out and you can go out and get another municipal authority

03:00 - 49.605 and say, you know what?

03:00 - 51.473 Their rates and services are horrible.

03:00 - 54.043 Would you guys be willing to compete against us?

03:00 - 56.579 And we'll terminate the contract, and you can provide us with the goods

03:00 - 00.149 and services and that other company, whatever that company is,

03:01 - 04.620 whether it's another municipal authority or another private municipal corporation,

03:01 - 07.623 they're free to come out and give you an analysis and say, you know what,

03:01 - 11.694 we want these 15,000 customers and we're going to charge them X rate,

03:01 - 14.864 and we'll make the connection rate whatever the connection cost us,

03:01 - 18.300 we'll make that back over our rates over the next 5 or 6 years and amortize it

03:01 - 20.536 that that's,

03:01 - 22.371 it's,

03:01 - 25.374 we are directly connected to their system.

03:01 - 29.178 So our options, were to try to sue

03:01 - 32.181 for some sort of breach of contract

03:01 - 35.818 or to require them to, to do what

03:01 - 40.389 extraterritorial municipal authorities should be required to do,

03:01 - 45.861 which is to secure a certificate of public convenience, be regulated by the

03:01 - 49.498 the Public Utility Commission, and provide our residents,

03:01 - 52.935 our 200 residents, going out and getting that.

03:01 - 54.403 How many are 200 on it?

03:01 - 57.406 I think we had 200 customers on on their system.

03:01 - 02.011 And then so again, this is a matter of

03:02 - 05.147 did the General Assembly intend that

03:02 - 08.550 the Court of Common Pleas would somehow be,

03:02 - 13.555 you know, six to a half a dozen in comparison

03:02 - 17.359 to the type of oversight that the PUC provides.

03:02 - 20.362 And it can't it shouldn't at least.

03:02 - 26.035 All right.

03:02 - 29.038 Any other questions?

03:02 - 30.406 Thank you both very much.

03:02 - 33.208 Well done.

03:02 - 35.110 You call the next case Mr.

03:02 - 37.112 Minor?

03:02 - 40.082 The next case is Commonwealth versus Megan Wetzel.

03:02 - 43.252 The case involves the authority of a court in cases in

03:02 - 46.889 which a defendant is charged with driving under the influence or DUI,

03:02 - 50.993 and entered into alternative rehabilitative disposition, or ARD.

03:02 - 54.330 The question is whether when a defendant violates

03:02 - 59.201 the terms of ARD, the court must or merely may terminate ARD.

03:03 - 02.972 It depends largely on the intersection of two statutes

03:03 - 07.977 first section 3807 of the Vehicle Code, which governs DUI ard

03:03 - 12.781 and indicates that a court quote shall find a violation

03:03 - 16.352 and directs the Commonwealth to proceed, quote as prescribed in the Rules

03:03 - 21.857 of Criminal Procedure and second rule 318 of the Rules of Criminal Procedure,

03:03 - 25.027 which gives trial court's discretion over whether to terminate ARD.

03:03 - 29.465 In this case, where Zoll was charged with DUI and related offenses

03:03 - 32.501 and admitted into the ARD program for six months,

03:03 - 35.771 which included a requirement that she not consume alcohol

03:03 - 39.508 a few weeks before the end of her term, she underwent a drug test,

03:03 - 42.811 revealing that she had consumed alcohol, which she admitted to.

03:03 - 45.914 The Commonwealth filed a motion to terminate ARD,

03:03 - 49.184 and the trial court found that she had violated that condition.

03:03 - 53.822 But instead of terminating ARD, the trial court, relying on rule 318,

03:03 - 56.959 added an additional 90 day period of ARD.

03:03 - 59.962 The Commonwealth attempted to prosecute Yoursel,

03:03 - 02.765 but she sought and obtained dismissal of the charges.

03:04 - 05.501 The Commonwealth appealed to the Superior Court, arguing that

03:04 - 09.238 section 37 required the court to terminate ARD

03:04 - 13.142 and superseded rule 318 and the trial court's discretion.

03:04 - 17.346 In other cases, the Superior Court found section 37

03:04 - 20.649 reference to the Rules of Criminal Procedure, which include rule

03:04 - 24.987 318, rendered it ambiguous on the point and found that giving courts

03:04 - 28.857 discretion to terminate ARD, among other rehabilitative sanctions,

03:04 - 32.861 was more consistent with the flexible rehabilitative purpose of ARD

03:04 - 36.799 and traditional notions of a trial court's supervisory power

03:04 - 41.804 over defendants in rehabilitative settings like ARD, probation and parole.

03:04 - 43.906 Now before the Supreme Court,

03:04 - 47.776 the Commonwealth reiterates its argument that section 37 is mandatory,

03:04 - 51.880 not instructive, or Zel claims that the Superior Court got it right.

03:04 - 53.248 Let's see the argument.

03:04 - 55.884 Your honor,

03:04 - 59.922 the legislature, the General Assembly has enacted 3807,

03:05 - 04.059 to control dui ard cases here in the Commonwealth.

03:05 - 07.996 With that, they put out certain conditions that the legislature wanted to impose.

03:05 - 12.701 They've allowed the Court of Common Pleas to impose additional conditions.

03:05 - 18.373 Along with that, in 3807, they enacted subsection E two

03:05 - 23.679 which talks about violations of either a failure to complete,

03:05 - 29.118 the legislative conditions, two being charged with a criminal offense

03:05 - 35.491 under the crimes Code or violation of a condition imposed by the court.

03:05 - 40.195 With that, the legislature has indicated if either of those three here

03:05 - 43.866 specifically a violation imposed by the court to refrain

03:05 - 48.971 from the consumption of alcohol, that the Court of Common Pleas shall direct

03:05 - 52.808 the attorney for the Commonwealth to proceed on the criminal charges,

03:05 - 58.180 under the rules of criminal procedure, and ask you a question about that part.

03:05 - 58.680 Counsel.

03:06 - 01.817 You, as you know, very

03:06 - 05.220 well, we're we're to strive to avoid,

03:06 - 10.959 finding a constitutional conflict or a separation of powers clash.

03:06 - 12.928 Right.

03:06 - 15.330 Doesn't the,

03:06 - 20.903 legislature's placement of those words in the statute that they wrote,

03:06 - 24.506 as prescribed

03:06 - 27.509 in the rules of Criminal Procedure,

03:06 - 29.311 tell us

03:06 - 33.282 that, they want the court to adjudicate

03:06 - 36.852 versus purporting to tell the court

03:06 - 41.290 what the result of its adjudication must be.

03:06 - 43.692 Well, I would suggest this, Your Honor.

03:06 - 46.395 The legislature here has not told the court

03:06 - 49.665 that there has to be a violation in this case.

03:06 - 54.536 It's if the court finds a violation of the court imposed conditions,

03:06 - 59.541 then with that, it just dictates, not the procedure, how the court goes about that

03:06 - 04.012 or whether the court finds that, it just dictates what happens after that.

03:07 - 08.717 So similarly, a court may adjudicate, a case,

03:07 - 12.955 a criminal case that precedes, to sentencing.

03:07 - 16.558 And the legislature can certainly indicate to the court to

03:07 - 21.163 you have to impose this punishment, under a minimum mandatory sentence.

03:07 - 23.765 I understand that may be a question now after Lee,

03:07 - 26.768 but as the law stands now, it can dictate to the court

03:07 - 30.072 what the court is to do upon to find a violation,

03:07 - 33.175 of the law of a statute.

03:07 - 35.010 So I suggest with that it would.

03:07 - 39.648 We're not I don't suggest we're not here for the constitutional issue here today.

03:07 - 42.751 If this court reverses and sends it back to the Superior Court,

03:07 - 47.289 that may be a question, but that would be, my argument

03:07 - 51.526 that that's why it would survive, constitutional scrutiny.

03:07 - 54.563 Well, before we get there, don't we have to decide whether or not 3802

03:07 - 58.066 is as according to what justice work just the issue is substantive or procedural?

03:07 - 01.103 Does it create a substantive right on behalf of defendant,

03:08 - 04.940 or is it a procedural rule that this court has authority to recognize?

03:08 - 07.142 I'm sorry, justice.

03:08 - 08.810 You mean 3807?

03:08 - 10.445 I say 38 02I thought so.

03:08 - 13.815 3807 E2 I'd suggest

03:08 - 16.818 that the procedure of the violation is controlled,

03:08 - 21.023 by the rules of criminal procedure under section 318.

03:08 - 22.557 We bring it to the court.

03:08 - 25.527 The court reviews it to determine if there's been

03:08 - 27.596 a violation of the court order.

03:08 - 29.131 So that's the procedure.

03:08 - 33.035 It's just the substantive outcome after a finding of violation,

03:08 - 37.172 I'd suggest that the legislature, has directly control.

03:08 - 38.140 Okay.

03:08 - 41.143 Just it seems to me that the Superior Court's decision assumed

03:08 - 44.112 the 3807 E2 was a procedural statute.

03:08 - 47.049 Well,

03:08 - 50.152 I suggest what the Superior Court did was they didn't really

03:08 - 51.219 look at the text of it.

03:08 - 54.823 What they said is, well, the operation of it in conjunction

03:08 - 58.393 with the rules of criminal procedure, they didn't really just

03:08 - 01.396 look at the text and say, what does the text say?

03:09 - 06.768 They just went right to the operation of the statute, together with 318.

03:09 - 10.405 And I understand that Superior Court wrote this.

03:09 - 16.378 It is not the Commonwealth's suggestion that DUI cases are not controlled

03:09 - 20.582 by the rules of criminal procedure to section 300 chapter.

03:09 - 24.019 My suggestion is that DUI

03:09 - 27.022 cases for one of the three here,

03:09 - 29.257 if there's found to be a violation,

03:09 - 32.060 the control is then you have to proceed.

03:09 - 36.298 In other cases, such as the ones we go through

03:09 - 36.832 Pike County

03:09 - 40.902 regularly, small amount of marijuana, retail theft, things of that nature,

03:09 - 45.941 whether to remove the defendant from the ARD program

03:09 - 51.113 is then by 318, in the discretion of the trial court.

03:09 - 54.182 You see no discretion in this situation.

03:09 - 57.586 In this situation, I'd suggest that the legislature has to remove that,

03:09 - 59.187 and I cannot remove it.

03:10 - 01.022 I suggest that

03:10 - 05.727 it can I I'd suggest that the legislature can remove that discretion,

03:10 - 09.364 just like it can remove the discretion to impose a minimum mandatory sentence.

03:10 - 11.199 But it's not procedural.

03:10 - 14.202 It's it didn't say this is how the court has to go about

03:10 - 17.439 looking at the violation itself.

03:10 - 19.841 It hasn't said this is the process.

03:10 - 22.544 It hasn't said that the court has to find a violation.

03:10 - 27.215 What the legislature said is if the court finds a violation, this is the outcome.

03:10 - 31.186 Similar to if someone's found guilty of DUI,

03:10 - 35.290 say A, B, or C, either

03:10 - 39.561 the court has to impose 48 hours imprisonment or 72 hours imprisonment.

03:10 - 42.798 So it's outcome based, not how to go about it.

03:10 - 45.400 Not that there has to be, that finding.

03:10 - 46.468 So I think we can't.

03:10 - 49.871 But why wouldn't we read it, as the following way.

03:10 - 52.340 We're told that the court shall direct the attorney.

03:10 - 56.511 That's you to proceed as prescribed in the rules, right?

03:10 - 58.213 That's what the legislature said.

03:10 - 00.015 And then we turn to the rules.

03:11 - 03.385 And the rules say the judge may order when appropriate.

03:11 - 04.486 And that's what happened here.

03:11 - 07.122 He decided whether and he ultimately decided

03:11 - 10.125 it was appropriate to give her this, you know, relief or whatever.

03:11 - 13.495 Why isn't that the way to read it

03:11 - 17.532 rather than because the way the way you want to read us to read it,

03:11 - 20.635 number one, sets up a potential

03:11 - 24.773 constitutional conflict, separation of powers, conflict number one,

03:11 - 29.511 and number two, it has a double disabling of discretion.

03:11 - 32.514 It disables your discretion as the D.A.

03:11 - 36.251 disables it, takes it away, and it disables the court.

03:11 - 39.187 The court's discretion.

03:11 - 44.659 Why would we interpret, why would we go so far in our interpretive endeavors?

03:11 - 47.696 I would suggest justice work.

03:11 - 51.366 In Jenkins, you authored a concurring opinion

03:11 - 54.603 saying that 3807 is unambiguous.

03:11 - 57.639 So, like in Jenkins,

03:11 - 01.443 there wasn't a finding of a violation, so you can't remove somebody.

03:12 - 04.012 Well, this is just the opposite end of that spectrum.

03:12 - 07.549 If there is a finding of a violation, then you have to remove them.

03:12 - 10.685 And I'd also suggest more directly to your question.

03:12 - 12.487 That's phrase two.

03:12 - 15.690 Proceed under the rules of criminal procedure.

03:12 - 19.327 Remember where we are and the case is held in abeyance.

03:12 - 22.764 Now if there's a violation, it's to proceed.

03:12 - 25.033 Well, well, it it's more than that.

03:12 - 28.236 It's not just to proceed under the rules of criminal procedure, which would seem

03:12 - 33.475 to leave all of the panoply of what what justice work is talking about

03:12 - 36.778 to evaluate, keeping them in the program or not keeping it.

03:12 - 41.483 It says to proceed on the charges that language is specifically in there. We

03:12 - 44.419 I think the

03:12 - 47.722 I think the argument from the other side is probably stronger

03:12 - 49.424 if it didn't say on the charges,

03:12 - 53.295 if it just said proceed as prescribed under the rules of criminal procedure.

03:12 - 54.229 Right?

03:12 - 56.064 I agree, just so, but

03:12 - 59.935 but I was going to raise Justice Wex point if we don't read it the way

03:13 - 03.271 the Superior Court read it, you have no discretion.

03:13 - 06.107 You must prosecute.

03:13 - 09.811 Well, we might have discretion to plead the case to something else.

03:13 - 13.348 Under the rules of criminal procedure we're proceeding under.

03:13 - 15.283 If they don't, let's say they don't want to plea.

03:13 - 17.252 Let's say. But you you have no discretion.

03:13 - 20.255 You either secure a plea or,

03:13 - 23.291 you can't you can't drop the charges.

03:13 - 27.062 You can't, you can't you can't do anything other than proceed on the charges

03:13 - 28.330 and get a conviction or a plea.

03:13 - 30.332 You go with that.

03:13 - 31.366 The DA's association.

03:13 - 33.401 Good with that, I would suggest.

03:13 - 36.771 I would suggest we would be because under the rules of criminal procedure,

03:13 - 38.540 we can eventually just move to

03:13 - 42.611 dismiss a case or no process in the case and say we don't think it has merit.

03:13 - 44.112 I'd suggest you wouldn't.

03:13 - 46.047 But if they wouldn't be honored if you didn't have merit.

03:13 - 47.515 Right. Well, right.

03:13 - 52.253 So if we get back to it, we have agreed to allow someone in today

03:13 - 55.590 to not have to go through the process, either us or them.

03:13 - 00.495 The cases that I handle regularly, with ard,

03:14 - 05.400 we would otherwise prosecute them, and as many,

03:14 - 08.870 DA's around the state and as this court has struggled,

03:14 - 12.140 they are litigation from Shiflett to Jenkins.

03:14 - 14.643 And maybe now, here to worse.

03:14 - 19.547 So it's kind of back and forth, you know, I didn't take the stand

03:14 - 22.183 that some DA's did and Shiflett and ended ard,

03:14 - 25.186 I will tell you after this case from the spirit court and Shiflett

03:14 - 28.323 and it's been remedied now, I took a closer look at them,

03:14 - 33.428 to see, based on whether they should enter into it,

03:14 - 36.998 but otherwise it would remove our, our discretion that were to proceed

03:14 - 40.402 on the charges under the rules of, of criminal procedure.

03:14 - 44.139 So can I just ask if it makes a difference,

03:14 - 48.710 or should make a difference in our analysis and interpretation here

03:14 - 53.281 that when, 38 07E was enacted

03:14 - 59.120 and it refers to as prescribed by the rules of criminal procedure,

03:14 - 02.724 there was an extent rule of civil procedure.

03:15 - 08.129 Criminal procedure, in fact, the exact rule that we're talking about here

03:15 - 12.200 that allowed the discretion of the trial court

03:15 - 17.072 and to the circumstances, why wouldn't we assume that the legislature knew

03:15 - 23.044 what the rules of criminal procedure prescribed when they enacted?

03:15 - 27.949 3807 well, I would suggest that you, would presume that they would do that,

03:15 - 31.653 but that gets away, as I understand it, interpreting it for statutory instruction.

03:15 - 33.288 Then that gets away.

03:15 - 37.726 If you find that the statute is not, unambiguous, as I suggest,

03:15 - 40.929 has been referenced in the concurrence in, in Jenkins,

03:15 - 45.700 then we start looking at the nature of the statute and the reasons, for it, it's

03:15 - 47.102 I'm not even doing that.

03:15 - 51.539 I'm looking at a statute that refers to uses

03:15 - 55.210 the phrase as prescribed in the rules of criminal procedure.

03:15 - 58.413 There was a prescribed

03:15 - 02.183 procedure in the rules of criminal procedure.

03:16 - 07.422 When this was enacted, that allowed the discretion that we're talking about here.

03:16 - 11.493 But, I mean, I don't see there is a, separation

03:16 - 14.462 of powers, the issue or anything of that nature.

03:16 - 17.332 I think it's just a question

03:16 - 22.437 of looking at 3807 and the rules of criminal procedure.

03:16 - 24.305 At the time, it was enacted.

03:16 - 29.377 And seeing that there was discretion afforded to the Court of Common Pleas.

03:16 - 31.246 That's correct by rule.

03:16 - 33.882 I'd suggest to see which the statute refers to.

03:16 - 37.652 Well, it refers generally to it refers to the rules

03:16 - 39.454 of criminal procedure generally.

03:16 - 42.657 But as Justice Robson pointed out, to proceed

03:16 - 46.294 on the charges ar.d the charges are held in abeyance.

03:16 - 50.999 So I'd suggest what the legislature said here is to proceed on the charges.

03:16 - 55.470 Under the rules of criminal procedure, for example, in Pike County,

03:16 - 00.542 regularly for Ards, particularly DUIs, we do not file a criminal information,

03:17 - 03.745 as allowed by rule 314.

03:17 - 06.581 So we don't have to go to the process of filing criminal information,

03:17 - 09.951 having the person arraigned and then allowing them to proceed under ARD.

03:17 - 12.287 It's short and work on my staff.

03:17 - 17.325 So to proceed to proceed on the charges, I'd suggest the legislature

03:17 - 20.495 would mean then Commonwealth go file the criminal information.

03:17 - 24.933 The person gets arraigned and then goes through, an adjudication process.

03:17 - 28.069 Would you would agree that, there would be a hearing?

03:17 - 29.604 Absolutely.

03:17 - 29.804 Okay.

03:17 - 34.175 What you see, but that's exactly what 318 said

03:17 - 37.846 at the time, 3807 was enacted

03:17 - 40.949 following your analysis.

03:17 - 42.884 You don't find any fault with that.

03:17 - 45.720 There's a failure to complete, maybe.

03:17 - 47.222 And I'd like to talk to you about that

03:17 - 49.490 a little bit, but there's a failure to complete.

03:17 - 51.759 And then what happens? What then happens?

03:17 - 57.565 The court shall direct to the Commonwealth to proceed on the charges as prescribed.

03:17 - 00.602 You look at 318. It says, have a hearing

03:18 - 01.970 for it.

03:18 - 02.904 Have a hearing.

03:18 - 06.708 And the judge shall afford the opportunity to be heard.

03:18 - 10.078 You would agree that would happen under any rule of procedure.

03:18 - 13.114 This one just specifically goes on to say.

03:18 - 13.681 And then.

03:18 - 17.252 Then if the judge finds your ways, the commission of the violation,

03:18 - 21.890 the judge may order when appropriate and then it goes on to completion.

03:18 - 24.926 I don't see how this rule

03:18 - 28.763 is inconsistent with any part of 3807.

03:18 - 30.231 I'd suggest, Your honor,

03:18 - 34.636 if you look at the rules of statutory construction, if we're saying,

03:18 - 38.773 that it may have some ambiguity in it, which I understand,

03:18 - 40.909 the justice to be indicating,

03:18 - 43.912 then we look at for the occasion and necessity for the statute.

03:18 - 47.682 So given the danger that drunk drivers

03:18 - 50.885 pose, I'm not suggesting there's an ambiguity.

03:18 - 53.888 Okay, I think I'm suggesting the contrary.

03:18 - 57.926 I mean, I'm suggesting what this statute tells

03:18 - 03.031 a reader to do is look to the rules of criminal procedure.

03:19 - 07.135 And I am looking at rule 3318,

03:19 - 10.138 which was enacted in 1972.

03:19 - 13.207 This statute was enacted in 2001.

03:19 - 19.614 Why doesn't why, why don't why do we need an ambiguity to look at rule 318?

03:19 - 22.917 I'd suggest the statute is enacted, I believe, in 2003,

03:19 - 26.454 and to take place to take effect in 2004.

03:19 - 29.691 However, I mean, this is the process, right?

03:19 - 33.328 So we follow rules, the 300 rules 318,

03:19 - 36.531 we file a petition or a motion to

03:19 - 38.533 terminate.

03:19 - 42.103 From there, the court determines whether there's a violation or not

03:19 - 44.405 or whether a failure to complete the program.

03:19 - 45.840 Then I'd suggest

03:19 - 50.278 then if there is a fining violation or if the person has been charged.

03:19 - 52.747 I listen to Jenkins again, and there was a lot in Jenkins

03:19 - 55.683 about whether an individual had been arrested or charged.

03:19 - 57.652 That was that was a distinction here.

03:19 - 03.257 The legislature says charge, under title 18 or violates one of their rules.

03:20 - 07.795 Then you shall proceed on the charges pursuant to the rules.

03:20 - 09.731 I'd suggest your interpretation.

03:20 - 13.634 Justice would be it's not proceeding on the charges.

03:20 - 14.936 The charges are in abeyance.

03:20 - 17.138 You'd still be holding them in abeyance.

03:20 - 19.807 It means that then there's no finding.

03:20 - 23.778 There's no proceeding on the charges of.

03:20 - 25.680 And the charges not.

03:20 - 27.281 Okay. We're going to hold them in abeyance.

03:20 - 28.883 We're going to keep the charges in abeyance.

03:20 - 31.886 That means you're not proceeding on the charges.

03:20 - 32.553 Let me ask you

03:20 - 36.457 one other question, and I'm sure that you will know the answer to this.

03:20 - 40.895 Does the court have the ability to modify,

03:20 - 44.565 the, conditions of the,

03:20 - 48.469 the sentence, so to speak, of the R.D.,

03:20 - 52.040 I mean, this this is an odd

03:20 - 55.843 situation because, the

03:20 - 00.515 admission to drinking out alcohol,

03:21 - 06.821 occurred prior to the conclusion of the, and

03:21 - 12.193 and so the trial court at that point,

03:21 - 17.031 if the erred was not completed, the trial court

03:21 - 20.435 decided that it was going to extend the term

03:21 - 23.438 of the RD0 problem with that.

03:21 - 28.810 First, I'd suggest in this case, likely not, because it was,

03:21 - 33.848 counsel for, Megan Wurtzel that asked for that is.

03:21 - 35.850 And what would be wrong with that?

03:21 - 38.886 Why why do we if we look at it that way?

03:21 - 41.522 The r d was not completed.

03:21 - 46.127 We aren't looking at an r d that, it had been terminated.

03:21 - 49.397 She didn't serve the full term of at

03:21 - 52.633 the trial court looks at the situation where she had met.

03:21 - 57.872 She has a hearing and decides I'm going to extend the term of the r d

03:21 - 02.410 as long as the extension is not beyond the term that's permitted.

03:22 - 07.648 Why isn't that an appropriate thing for the court to do?

03:22 - 13.621 When do these circumstances without triggering this notion,

03:22 - 17.425 as you are discussing it, as needing at that point in time

03:22 - 21.896 to immediately to proceed on the charges, I would just kind of just extend that.

03:22 - 24.432 I would just suggest that was for the legislature to determine.

03:22 - 25.900 And that's what they decided.

03:22 - 28.903 And then what what about this situation,

03:22 - 31.139 precludes the

03:22 - 34.142 court from just extending the term

03:22 - 37.645 because the term had not been completed.

03:22 - 41.949 There are two weeks remaining on the term at that juncture.

03:22 - 46.654 Is there something in the statute that precludes the court from saying,

03:22 - 48.823 I'm going to give her 90 more days?

03:22 - 52.793 I would say that the statute requires that the court

03:22 - 56.130 direct the Commonwealth to proceed on the charges

03:22 - 59.867 and to move forward on those charges that were held in abeyance.

03:22 - 02.236 So it's a strict liability concept.

03:23 - 04.772 She one made that mistake and that's it.

03:23 - 06.741 Well, it's not a strict liability.

03:23 - 09.911 That would be, requiring the finding

03:23 - 12.914 of a violation of strict liability.

03:23 - 15.550 This is just a consequence.

03:23 - 18.686 It's a strict consequence of that's a minor violation.

03:23 - 20.988 Discretion. Yeah, that's a better way of saying I think.

03:23 - 22.857 I think what you're setting up, though, and you have to realize

03:23 - 28.429 you might be setting this up, which we could side with you, but a Common

03:23 - 33.301 Pleas Court judge hearing this exact scenario might go, I'm not violating her.

03:23 - 36.304 Yeah, I'm not in which violation?

03:23 - 36.804 Well, that's.

03:23 - 38.339 Yeah, you're not I'm not violating her.

03:23 - 40.808 And that's pretty much what you're setting up. We're going to have,

03:23 - 43.611 which I guess isn't a problem.

03:23 - 46.380 I mean, judges are going to decide because we know what

03:23 - 49.350 the consequence of a violation is,

03:23 - 51.719 even though you're presenting me with what is technically

03:23 - 54.755 meets the definition of violation, I am not going to violate her.

03:23 - 58.226 Because if I do, I'm going to have to order you to proceed on the charges.

03:23 - 59.093 And I don't want to do that.

03:23 - 00.194 So I'm not going to violate her,

03:24 - 02.463 but I'm going to tack on 90 additional days,

03:24 - 03.931 and then the defendant's going to be, well,

03:24 - 05.933 you can't do that because you're not violating me.

03:24 - 06.834 Then the judge is going to go,

03:24 - 08.970 okay, I'll violate you, and then you have to go on the charges.

03:24 - 12.840 That's the that's the follow through of of your your position here.

03:24 - 15.209 Well, I understand, but there may be another follow through.

03:24 - 18.713 In other words, let's say that, the statute says we should have proceeded

03:24 - 22.183 on the charges now another 90 days and it's not here.

03:24 - 25.786 But looking into the future justice now there's another violation.

03:24 - 28.789 And then the defendant comes in and says, well, judge,

03:24 - 30.458 you couldn't have continued this.

03:24 - 33.227 You should have done this a long time ago. Now I'm out.

03:24 - 36.697 Now we're outside the original six months now.

03:24 - 37.832 You can't do anything.

03:24 - 43.404 Good, good.

03:24 - 45.506 And then

03:24 - 49.210 I, I'm not sure I'm following your, I'm not sure I'm following your, your,

03:24 - 54.382 your hypo I guess, I guess all I'm saying is I'm wondering whether this really is

03:24 - 58.819 that big of a deal because unlike Shiflett there's really no workaround.

03:24 - 00.721 We needed a legislative workaround.

03:25 - 04.492 But the workaround here, which seems to be within the authority of the courts

03:25 - 08.796 because you agree that whether to find a violation is purely discretionary.

03:25 - 12.266 If we issue the decision you issue, nothing's going to change

03:25 - 13.801 judges.

03:25 - 16.037 You're just going to be more careful about finding violations

03:25 - 18.806 where they think it's sort of a nominal or de minimis situation.

03:25 - 20.775 No, perhaps they you can't appeal that.

03:25 - 22.710 Perhaps they will.

03:25 - 26.213 Well, I mean, we could talk about that a little bit, right.

03:25 - 29.350 Because we might say then they didn't successfully complete

03:25 - 32.820 and that's really well, that's going to be up to the judge.

03:25 - 34.889 Well, that may be later on. Do you see it?

03:25 - 37.892 I mean, and that may be an argument whether they successfully completed it.

03:25 - 40.194 But I guess I'll try to stay to clear.

03:25 - 45.466 Take, for instance, Miss Wurtzel six months.

03:25 - 48.269 She's granted ARD for six months.

03:25 - 50.438 The judge says, you know what?

03:25 - 52.673 I'm not going to find a violation.

03:25 - 53.941 Okay?

03:25 - 57.478 But I'm extending it for another 30 days or 90 days.

03:25 - 01.582 Well, then, can the judge even do that without the finding of violation?

03:26 - 05.653 Because there was six months could have been given 12 at the beginning,

03:26 - 06.987 but says, you know what, I'm

03:26 - 10.991 not going to find any violation, but I'm going to move it out.

03:26 - 15.096 But isn't that inherent in trial court discretion to do that?

03:26 - 18.299 Now, if I may, Kimberly,

03:26 - 21.669 my complete argument is it's not at this point

03:26 - 25.840 if there's a finding of a violation, but then a defendant could come in and say,

03:26 - 27.208 you know what?

03:26 - 28.976 You didn't find a violation.

03:26 - 32.880 You had no authority to extend this because your original order

03:26 - 34.048 was six months.

03:26 - 34.982 Yeah, but see, that's not what's going to

03:26 - 36.951 that's not what's going to happen under my hypothetical.

03:26 - 39.920 Under my hypothetical, the Common Pleas Court judge is going to have

03:26 - 43.691 the defendant there, and the Common Pleas court judge is going to be like, look,

03:26 - 47.762 if I find a violation here, these charges are moving forward.

03:26 - 52.900 The other option here is for you to agree to stay in this program for three months,

03:26 - 56.804 waive any challenge you have to that and I will not find a violation.

03:26 - 58.606 Put that all on the record.

03:26 - 04.111 And I'd suggest, even as the Superior Court suggests, this is a work together

03:27 - 07.081 with the Commonwealth because we originally move.

03:27 - 12.186 And that's part of the concern here, is we move the defendant into a r d right.

03:27 - 15.956 They have a r d there's a violation of a third.

03:27 - 18.592 Now all of a sudden we're out of it.

03:27 - 20.461 It's completely up to the courts.

03:27 - 25.633 It starts kind of as a partnership suggested by the Superior Court.

03:27 - 28.803 And then all of a sudden we're out of it.

03:27 - 32.273 So two out of it normally once a day kicks in

03:27 - 37.845 or what what role does the prosecutor play once the defendant is,

03:27 - 42.016 placed in a DD bringing to the court attention to violations.

03:27 - 45.753 So, counsel, permit me, in this particular case,

03:27 - 48.756 what you're asking us is an application of strict liability.

03:27 - 54.061 And what it also doing is deferring the honesty of a defendant

03:27 - 58.232 should the defendant choose to be honest to the court, that being hypothetically

03:27 - 00.301 the order

03:28 - 03.304 I order, you're not allowed to drink alcohol.

03:28 - 06.540 The client is standing in front of me, is under my art watch

03:28 - 09.944 because he has a chronic, severe alcoholic.

03:28 - 14.248 He comes in because there's a violation.

03:28 - 17.985 During the course of the violation, I say, hey, Mr.

03:28 - 20.654 Smith, that you drink alcohol.

03:28 - 24.658 And he said, Judge Doc, you've been around me a long time.

03:28 - 25.826 I'm an alcoholic.

03:28 - 27.428 My son killed himself.

03:28 - 30.431 And yes, I got drunk

03:28 - 33.601 and he says, but

03:28 - 37.137 the services you provided me are incredibly helpful.

03:28 - 40.808 But now I need some counseling for grief.

03:28 - 44.912 Can you give me grief counseling under that fact scenario?

03:28 - 48.015 With your interpretation of the law, I have no choice

03:28 - 51.385 but to force you to prosecute him.

03:28 - 52.720 Is that what you're saying?

03:28 - 58.025 And if so, how does that not fly in the face of judicial discretion?

03:28 - 00.294 I'd say two things. Justice.

03:29 - 01.462 I would say it's not strict

03:29 - 05.199 liability in terms of there still has to be a finding of a violation.

03:29 - 06.667 I find that a violation.

03:29 - 07.701 He said.

03:29 - 12.506 I drink, doc, and and so then I suggest that's correct.

03:29 - 15.976 That's what the legislature wanted in DUI cases.

03:29 - 17.778 They didn't do it in retail theft.

03:29 - 19.680 They didn't do it in marijuana cases.

03:29 - 23.250 But DUI cases, because of the I'd suggest the nature

03:29 - 26.787 and danger that drunk drivers pose to,

03:29 - 32.192 the motoring public that the legislature could look and say, you know what?

03:29 - 35.329 We're giving you this chance through a r d abide

03:29 - 38.332 by the rules, and everybody goes home happy.

03:29 - 40.935 Because it'll be expunged.

03:29 - 42.236 You won't have a record.

03:29 - 43.671 You won't have to go to jail.

03:29 - 47.007 You won't have to be under stricter supervision of conditions of probation,

03:29 - 50.511 even if it's a set in a sentence of probation with restrictive conditions.

03:29 - 53.180 I suggested the legislature.

03:29 - 55.282 That's what they wrote

03:29 - 57.451 in the statute.

03:29 - 59.520 I understand,

03:29 - 02.356 but that then that really suggests

03:30 - 05.359 that the statute is ambiguous.

03:30 - 08.429 And then getting to the reasons of it, which is what

03:30 - 11.865 the Superior Court did, we interpret the statute as being absurd.

03:30 - 15.402 The concept of D is rehabilitative.

03:30 - 20.074 The facts before the court is that a person is in need of rehabilitation

03:30 - 23.077 and requesting additional treatment,

03:30 - 26.013 and that flies in the face of the concept that they are they.

03:30 - 29.016 But you're putting words of a statute over

03:30 - 34.188 the the General Assembly's policy that we can provide

03:30 - 38.626 diversionary programs to assist as opposed to her.

03:30 - 42.663 It's been a it's been or the person's already attempted to be diverted.

03:30 - 44.632 That's what has happened.

03:30 - 47.635 They've attempted to be diverted.

03:30 - 48.702 Right?

03:30 - 50.337 That's that's the way you're interpreting

03:30 - 52.606 it is one shot only for those certain things.

03:30 - 56.677 If there's a finding of a violation, I suggest that I mean, you know, when does

03:30 - 00.814 when does it end of if they haven't gone to alcohol highway safety school.

03:31 - 02.116 That's one of the conditions.

03:31 - 05.819 If they haven't done that like when when is when does it end

03:31 - 08.989 in terms of they haven't availed themselves of rehabilitation.

03:31 - 09.556 Do you see it?

03:31 - 12.559 I mean, and they say, well, I haven't gotten there, but

03:31 - 15.896 I want to and I'm going to continue my rehabilitation.

03:31 - 18.165 Well, well, when when does that end?

03:31 - 22.236 One has to take into consideration the extent of the individual being an hour

03:31 - 25.639 a day, the application or the compliance with the r d conditions

03:31 - 30.310 and and the, the I guess the discretion of the judge.

03:31 - 34.882 That's the whole concept of it ends when the judge says it ends in 99,

03:31 - 36.750 90 times out of 100. You're going to win that.

03:31 - 39.620 Maybe yes, maybe no.

03:31 - 42.723 And I suggested, Justice Robson's earlier

03:31 - 45.726 question.

03:31 - 48.829 In terms of, well, judges aren't going to find a violation.

03:31 - 51.298 I mean, if DA's know that it's always

03:31 - 54.301 going to be up to the judge and somebody can come in with a story.

03:31 - 56.904 Right? And again, we're not talking about a small amount of marijuana.

03:31 - 58.472 We're not talking about retail theft.

03:31 - 01.308 We're talking about somebody that pose a danger on the highways.

03:32 - 01.742 Right.

03:32 - 05.579 These may be more or more reluctant to even move somebody in, right,

03:32 - 08.582 to look at it and say, you know what?

03:32 - 11.485 They had an underage drinking nine years ago.

03:32 - 14.922 I'm not so sure they had an alcohol problem before.

03:32 - 18.692 I'd suggesting that I'm probably not abusing my discretion if I don't move

03:32 - 21.361 because I think, I'm going to give them this shot.

03:32 - 22.863 And if they're good, they're good.

03:32 - 25.733 But maybe I won't give them the shot because I know.

03:32 - 27.367 Well, then it's just up to the judge.

03:32 - 29.837 What is your call? Yeah, it's your call whether to do it or not.

03:32 - 30.571 Sure, but.

03:32 - 33.173 But what I just, like just.

03:32 - 35.342 Does Pike County have a DUI court?

03:32 - 39.513 No, we don't have a drug court either.

03:32 - 41.715 But what I would suggest would be separate from.

03:32 - 43.383 So for somebody who has a chronic

03:32 - 48.155 encounter with law enforcement for DUI activities, that would be something beyond

03:32 - 51.592 RDA that a county, if they had a DUI court, could provide. Yes.

03:32 - 53.160 And we have subject to these

03:32 - 56.597 are these restrictions, which can seem to some to be draconian.

03:32 - 00.334 A, a court run DUI program

03:33 - 04.104 could provide that continued support if a court had one.

03:33 - 05.405 That's correct.

03:33 - 08.342 And I would suggest while we don't have a DUI court,

03:33 - 11.945 what we do have is what's called pay care, and it's the criminal addiction

03:33 - 13.080 response effort.

03:33 - 16.950 That's that's where many second offense DUIs go.

03:33 - 19.920 That is really probation with restrictive conditions.

03:33 - 22.823 We use sober link a lot to monitor them.

03:33 - 25.692 In, in that program,

03:33 - 29.563 really to deter them from drinking and to monitor their drinking ability.

03:33 - 32.566 So it's not a court where they appear all the time.

03:33 - 34.802 But, there's an effort.

03:33 - 36.637 They have to be employed similar of that nature.

03:33 - 40.007 It's really just monitored more closely by the probation

03:33 - 43.544 office for a period of time, rather than appearing in court.

03:33 - 45.379 So there has been attempts at that.

03:33 - 48.715 It's just not a not it's not a treatment court per se.

03:33 - 49.550 That's correct.

03:33 - 53.020 Mr. District Attorney, I think we understand your position.

03:33 - 54.855 Let's hear from Mr. McIntyre.

03:33 - 02.563 Yeah.

03:34 - 08.101 Good afternoon, Madam Chief Justice.

03:34 - 08.902 Good afternoon.

03:34 - 11.905 Associate Justice, thank you for the opportunity to be here today.

03:34 - 15.175 My name is Nicholas J. McIntyre.

03:34 - 20.280 I am, partner for order and McIntyre, located in Milford, Pennsylvania.

03:34 - 23.584 And I've had the pleasure of representing Miss Morsell throughout this process.

03:34 - 27.588 The question before the your honors today