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Tuesday, March 13, 2012

New Statute Prohibiting Text-Based Communications

On March 8, 2012, Pennsylvania's new anti-texting legislation went into effect.  75 Pa.C.S. § 3316.  I've been getting a fair number of questions about the new law—the full text of which is included after the jump—so I thought I'd put down a few thoughts.

First off, the bill does exactly what it sounds like: it prohibits texting.  That doesn't include fiddling with your radio, dialing a phone number to make a call, or using your GPS.

If you get stopped, the police aren't permitted to take your phone under this statute, although they are not prohibited from doing so for some other appropriate purpose.  The ticket is for $50 and carries no points for non-commercial drivers, nor will it appear on your driving record.  There are no enhanced penalties for second or subsequent offenses.

One of the most interesting facets of this statute is that it expressly " supersedes and preempts all ordinances of any municipality with regard to the use of an interactive wireless communications device by the driver of a motor vehicle."  That strongly suggests that the Philadelphia ban on voice calls while driving is no longer good law. 

Another implication of the statute is that it gives rise to greater civil liability for drivers by exposing them to suit under a theory of negligence per se.  Consider, for instance, the relative liability of a driver who stops suddenly while texting, and is then struck from behind.  Under prior Pennsylvania law, fault for the rear-end accident is (nearly) always placed on the rear vehicle, on the theory that all drivers should be prepared to stop when necessary.  With the aid of the new texting statute, the rear vehicle could argue that the other driver was negligent per se by breaking the new texting law.

The theory hasn't been tested yet—after all, the law is just a few days old—but it'd be worth requesting texting records during discovery in auto-accident cases all the same.

Friday, March 9, 2012

DNC v. RNC 09-4615 (3d Cir. 2012)

Seal of the RNC
During the 1981 New Jersey gubernatorial election, the DNC, the New Jersey Democratic State Committee (“DSC”), Virginia L. Peggins, and Lynette Monroe brought an action against the RNC, the New Jersey Republican State Committee (“RSC”), John A. Kelly, Ronald Kaufman, and Alex Hurtado, alleging that the RNC and RSC targeted minority voters in an effort to intimidate them in violation of the Voting Rights Act of 1965 (“VRA”), 42 U.S.C. §§ 1971, 1973, and the Fourteenth and Fifteenth Amendments to the Constitution of the United States. The RNC allegedly created a voter challenge list by mailing sample ballots to individuals in precincts with a high percentage of racial or ethnic minority registered voters and, then, including individuals whose postcards were returned as undeliverable on a list of voters to challenge at the polls. The RNC also allegedly enlisted the help of off-duty sheriffs and police officers to intimidate voters by standing at polling places in minority precincts during voting with “National Ballot Security Task Force” armbands. Some of the officers allegedly wore firearms in a visible manner.

To settle the lawsuit, the RNC and RSC entered into a consent decree.  Therein, both committees agreed to abide by all local and national election laws, not to communicate  and, fundamentally, to not be racists.*

Friday, March 2, 2012

Commonwealth v. Burwell, 2012 Pa. Super. 55

Read the Full-Text of the Opinion.

Ronald Burwell appeals from his judgment of sentence imposed after a jury found him guilty of aggravated assault for twice striking the victim, a caretaker at the Erie County Amtrak station, in the face and wrist with an electric guitar.  The victim suffered a broken wrist and cracked eye socket; he required seven stitches as a result of the incident and suffered numbness on the left side of his face for two months following the assault. At the time of trial he was still suffering facial tenderness.

The Honorable Shad Connelly applied the deadly weapon enhancement and sentenced Burwell to a high-end standard-range sentence of 120-240 months’ imprisonment, with costs and restitution to the victim in the amount of $2,800 for lost wages.  Burwell filed a postsentence motion asking the court to reconsider/reduce his sentence. Burwell filed post-sentence motions which were denied on June 8, 2009, without a hearing or accompanying Rule 1925(a) opinion, by the trial court.

Burwell filed a notice of appeal, and trial counsel then filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967).  Although the usual procedure in Pennsylvania is for the trial court to issue an opinion following receipt of a notice of appeal, it chose not to do so in this case.  The Superior Court took exception to this failure, and remanded the case for a trial court opinion.

Instead, the Public Defender petitioned the Supreme Court of Pennsylvania for permission to withdraw from the matter without either merits briefing or a trial court opinion.  The Supreme Court denied the petition and the matter was remanded to the trial court, which issued a one-paragraph opinion.  The Superior Court found this insufficient, and remanded the matter for an additional opinion; the trial court then issued a second one-paragraph opinion adopting the previously filed no-merit brief.

In a published opinion, the Superior Court scolded the trial court for its failure:
Judge Connelly’s reliance, after our second remand, on the arguments set forth in counsel’s Anders brief suggests nothing less than an unacceptable shirking of his judicial obligations. The rules of appellate procedure do not direct trial courts to submit opinions simply as an exercise in expository writing. Rather, the trial court opinion is a necessary component of appellate review, providing the reviewing court with a reasoned basis for the lower court’s decisions and enabling it to engage in a thorough consideration of the issues raised by an appellant.
Ultimately, the Court found that two of the defendant's issues were not wholly frivolous, and—for a third time—remanded the matter for briefing.

Wednesday, February 29, 2012

Commonwealth v. Rivera-Rodriguez 2012 Pa. Super. 43

Read the Full-Text of the Opinion.

On the night of January 17, 2004, Rivera Rodriguez was walking alone when Mr. Gardina stopped his car beside him and asked if he knew where to purchase a small amount of marijuana. Rivera Rodriguez told the victim he could obtain marijuana for him and, after entering the victim’s vehicle, directed him to a friend named Sanchez. After Sanchez entered the car, Rivera Rodriguez told him, in Spanish, that he wanted to take Mr. Gardina to the lot behind Sanchez’s residence, rob him, and kill him. When they arrived at their destination, Rivera-Rodriguez held down the victim while Sanchez stabbed him to death. The two men then robbed the victim's body, and fled.

Rivera-Rodriguez was asked to come to the police station where he gave a signed confession to the foregoing.  He was charged with capital murder, and the District Attorney of Lancaster County began proceedings to impose the death penalty.  In exchange for foregoing imposition of the death penalty in the event of a conviction, Rivera-Rodriguez waived his right to a jury trial.  He was convicted of first degree murder, robbery, and related offenses, and sentenced to an aggregate term of imprisonment of life plus 23-to-46 years.  At the time of the murder and throughout the trial both the Commonwealth and the defense agreed that Rivera-Rodriguez' IQ was 58.

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