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Commonwealth v. Malone, 47 A.2d 445 (Pa. 1946) Supreme Court of Pennsylvania Filed: April 8th, 1946 Precedential Status: Precedential Citations: 47 A.2d 445, 354 Pa. 180 Docket Number: Unknown : James B. Drew, William B. Linn, George W. Maxey, Marion D. Patterson,Allen M. Stearne, Horace Stern Author: George W. Maxey

Argued April 8, 1946. This is an appeal from the judgment and sentence under a conviction of murder in the second degree. William H. Long, age 13 years, was killed by a shot from a 32-caliber revolver held against his right side by the defendant, then aged 17 years. These youths were on friendly at the time of the homicide. The defendant and his mother, while his father and brother were in the U.S. Armed Forces, were residing in Lancaster, Pa., with the family of William H. Long, whose son was the victim of the shooting. On the evening of February 26, 1945, when the defendant went to a moving picture theater, he carried in *Page 182 the pocket of his raincoat a revolver which he had obtained at the home of his uncle on the preceding day. In the afternoon preceding the shooting, the decedent procured a cartridge from his father's room and he and the defendant placed it in the revolver. After leaving the theater, the defendant went to a dairy store and there met the decedent. Both youths sat in the rear of the store ten minutes, during which period the defendant took the gun out of his pocket and loaded the chamber to the right of the firing pin and then closed the gun. A few minutes later, both youths sat on stools in front of the lunch counter and ate some food. The defendant suggested to the decedent that they play "Russian Poker".1 Long replied: "I don't care; go ahead". The defendant then placed the revolver against the right side of Long and pulled the trigger three times. The third pull resulted in a fatal wound to Long. The latter jumped off the stool and cried: "Oh! Oh! Oh!" and Malone said: "Did I hit you, Billy? Gee, Kid, I'm sorry." Long died from the wounds two days later. The defendant testified that the gun chamber he loaded was the first one to the right of the firing chamber and that when he pulled the trigger he did not "expect to have the gun go off". He declared he had no intention of harming Long, who was his friend and companion. The defendant was indicted for murder, tried and found guilty of murder in the second degree and sentenced to a term in the penitentiary for a period not less than five years and not exceeding ten years. A new trial was refused and after sentence was imposed, an appeal was taken. Appellant alleges certain errors in the charge of the court and also contends that the facts did not justify a *Page 183 conviction for any form of homicide except involuntary manslaughter. This contention we over-rule. A specific intent to take life is, under our law, an essential ingredient of murder in the first degree. At common law, the "grand criterion" which "distinguished murder from other killing" was malice on the part of the killer and this malice was not necessarily "malevolent to the deceased particularly" but "any evil design in general; the dictate of a wicked, depraved and malignant heart": 4 Blackstone 199. Among the examples that Blackstone cites of murder is "coolly discharging a gun among a multitude of people", causing the death of someone of the multitude. In Pennsylvania, the common law crime of murder is divided into two degrees, and murder of the second degree includes every element which enters into first degree murder except the intention to kill: Commonwealth v. Divomte, 262 Pa. 504, 507; 105 A. 821. When an individual commits an act of gross recklessness for which he must reasonably anticipate that death to another is likely to result, he exhibits that "wickedness of disposition; hardness of heart; cruelty; recklessness of consequences and a mind regardless of social duty" which proved that there was at that time in him "that state or frame of mind termed malice".2 This court has declared that if a driver "wantonly, recklessly and in disregard of consequences" hurls "his car against another or into a crowd" and death results from that act "he ought to face the same consequences that would be meted out to him if he had accomplished death by wantonly and wickedly firing a gun": Com. v. Mayberry, 290 Pa. 195,199; 138 A. 686, citing cases from four jurisdictions. In Com. v. Hillman, 189 Pa. 548; 42 A. 196, the charge of the court below was approved by this court. In that charge appears this statement: "Malice in law *Page 184 means a depraved and wicked heart that is reckless and disregards the rights of others. Reckless conduct that results in the death of another is malice. To illustrate that: If a man fires a gun into a crowd and kills another it is murder, because the fact of the reckless shooting of a gun into a crowd is malice in law. That wicked and depraved disposition and that recklessness and disregard of human life is malice." In Com. v. Knox, 262 Pa. 428; 105 A. 634, the following instructions by the trial judge in a murder case was held by this court not to be error: "When a man uses a gun loaded with powder and shot and aimed at a vital part of the body of another and discharges it, he must be presumed to know that death is likely to follow." In Com. v. Arnold, 292 Pa. 210 at 213; 140 A. 898, this court said: "Malice will be implied from conduct, recklessness of consequences, or the cruelty of the crime". Appellant has assigned for error certain excerpts from the charge of the court. The charge in its entirety affords no grounds for the reversal of the judgment and sentence. Certain excerpts if they stood alone might have misled the jury to the defendant's prejudice. For example, the trial judge said: "All felonious homicide or illegal or unlawful homicide is presumed to be malicious, that is, murder of some degree, until the contrary appears in the evidence." The second sentence after this one reads as follows: "Accordingly, when a felonious or unlawful homicide is proved, malice is presumed to have existed . . . as a presumption of fact". A homicide may be unlawfulwithout being presumably malicious. The homicide known as involuntary manslaughter occurs when death is caused by an unlawful act or by a lawful act done in an unlawful manner. While there do appear statements in some of the reports that "all unlawful homicide is presumed to be malicious and, therefore, murder", careful trial judges always qualify that statement, as Chief Justice AGNEW did in Com. v. Drum, 58 Pa. 9 at page 17 where he said: "All murder . . . includes *Page 185 all unlawful killing under circumstances of depravity of heart, and a disposition of mind regardless of social duty". Trial judges should make it clear to the jury that an unlawful killing in order to constitute murder must result from anintentional, felonious act and not merely from an inadvertent or negligent act. The trial judge in a sentence which intervened between the two sentences above quoted, stated the applicable principle of law correctly as follows: "This presumption of malice does not rise, however, until the Commonwealth has made out a prima faciecase of felonious homicide". This statement was in accord with what Mr. Justice STERN, speaking for this court, said in Com. v. Wucherer,351 Pa. 305 at 310; 41 A.2d 574, to wit: "It is important at the outset to bear in mind that the so-called presumption of malice does not arise until the Commonwealth has made out a prima facie case of felonious homicide". Defendant's rights were fully protected by the charge in its totality. However, the charge was in several respects prejudicial to the Commonwealth. For example, the trial judge said: "It is the duty of the Commonwealth to prove that the killing was unlawful and intentional, and if the evidence taken as a whole raises reasonable doubt in the minds of the jury as to whether the killing was accidental or intentional, you must acquit the accused, for the reason that the Commonwealth has failed to sustain its case." This instruction was tantamount to saying that the Commonwealth in order to obtain the conviction of the defendant of any crime included in the indictment had to prove him guilty of murder in the first degree, for if the killingwas intentional, it would have been murder in the first degree. The alternative presented to the jury by the instructions was limited to an intentionalkilling or to an accidental killing. The jury found that the killing was neither intentional nor accidental but that it was a malicious killing though without a specific intent in the killer to take life, and that, therefore, it was murder in the second degree. *Page 186 The trial judge also erred in charging that "A person on trial for murder cannot be convicted of any offense if the testimony shows that the death was accidental". Death may be accidental though it resulted from a malicious act intentionally committed. In such a case the means were not accidental; the result was.3 In the instant case if the defendant had by some negligent, unintentional act, caused Long to fall off the stool at which he was sitting in the store and if, as a result of that fall, Long had sustained a fatal injury, both the initial act and the death might be correctly characterized as accidental. But when the defendant knowing that a revolver had at least one loaded cartridge in it, pressed the muzzle of that revolver to the side of Long and pulled the trigger three times, his act cannot be characterized as accidental, even if his statement that he had no intentionto kill Long is accepted (as the jury accepted it). The way the trial judge used the word "accidental" throughout the charge must have been confusing to the jury and might easily have misled it into acquitting the accused on the theory that since the death of Long was accidental, "the defendant cannot be convicted of any offense", (as the trial judge said). The latter should have made it clear to the jury that even though Long's death might have been unintended and, therefore, accidental, the evidence showed that the act which caused the victim's death was not accidental. This was the view the jury took of the case despite the court's instructions. In another portion of the charge, the trial judge said to the jury: "If you believe the testimony of the defendant, that the shot was accidental and without intention *Page 187 on his part, and that the shot accidentally and without intention on his part struck the body of William H. Long, from the effects of which he afterwards died, then you should acquit the defendant". There was not in this record any evidence which would warrant a finding that "the shot was accidental". Later the judge instructed the jury that "If the killing was accidental, although done with a deadly weapon, it could not be said to be intentional or wilful; and, if neither intentional nor wilful, the crime of murder is not made out". What we have already said on this phase of the case sufficiently reveals the error in these instructions. Of such and similar errors, the appellant cannot complain; they were prejudicial only to the Commonwealth. This court said in Sears v. Birbeck, 321 Pa. 375, 383;184 A. 6: "It is a primary duty of the trial judge — a duty that must never be ignored — in charging a jury to clarify the issues so that the jury may comprehend the questions they are to decide." When the issues in either a criminal or a civil case are not clarified in the judge's charge, the charge is of very little value in the istration of justice though it may contain no prejudicial error. A charge may be technically correct and yet be to the jury meaningless and useless. Many trial judges employ concrete illustrations4 to help make clear to the jury what the issues are which the jury is to decide and *Page 188 how to apply legal principles to the facts so as to reach a just verdict. The killing of William H. Long by this defendant resulted from an act intentionally done by the latter, in reckless and wanton disregard of the consequences which were at least sixty per cent certain from his thrice attempted discharge of a gun known to contain one bullet and aimed at a vital part of Long's body. This killing was, therefore, murder, for malice in the sense of a wicked disposition is evidenced by the intentional doing of an uncalled-for act in callous disregard of its likely harmful effects on others. The fact that there was no motive for this homicide does not exculpate the accused. In a trial for murder proof of motive is always relevant but never necessary. All the assignments of error are over-ruled and the judgment is affirmed. The record is remitted to the court below so that the sentence imposed may be carried out. 1

It has been explained that "Russian poker" is a game in which the participants, in turn, place a single cartridge in one of the five chambers of a revolver cylinder, give the latter a quick twirl, place the muzzle of the gun against the temple and pull the trigger, leaving it to chance whether or not death results to the trigger puller. 2

These quoted phrases are from the opinion of Chief Justice AGNEW in Com. v. Drum, 58 Pa. 9.

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If A maliciously beats B intending to do him enormous bodily harm without killing him and B dies as result of the beating, A can be found guilty of murder in the second degree, though death was "accidental" in the sense that it was not intended by A. The difference between intentional means and "accidental"results is discussed in Arnstein v. Metropolitan L. Ins. Co.,329 Pa. 158 at 162; 196 A. 491, and in footnote 1, page 237 ofO'Neill et al., v. Met. Life Ins. Co., 345 Pa. 232;26 A.2d 898. 4

In the well-known case of Com. v. Harman, 4 Pa. 269, Chief Justice GIBSON in charging the jury used an illustration to make clear to the jury why evidence should not be discredited because it was circumstantial, and that even so-called "positive" evidence was to a certain degree inferential in nature, i.e., circumstantial. In the famous case of Com. v. Webster, 5 Cush. 295, 311, Chief Justice SHAW of Massachusetts used the following simple illustration to instruct the jury as to the nature and value of circumstantial evidence: "When footprints are discovered after a recent snow, it is certain that some animated being has ed over the snow since it fell; and, from the form and number of footprints, it can be determined with equal certainty, whether they are a man, a bird, or a quadruped."

Abstract Adolescence, between the ages of 10 and 19 years, is a unique period both physically and emotionally. During this time of life, individuals are known to experiment and engage in risky behavior, sometimes with unforeseen morbidity and mortality. We also see suicide emerge as a manner of death in this age group. The most common method is gunshot wound and sometimes in the form of Russian roulette. Few studies have looked at deaths by Russian roulette, the victims, and scenarios. In particular, no study examines the adolescent victim of Russian roulette. To better understand and classify this entity, adolescent Russian roulette autopsy cases over a 20-year period were examined looking at the victims, scenarios, autopsy findings, cause and manner of death, and the weapons. All victims were males, ages 13 to 19 years, with a Black-to-White ratio of 1:1. No victim had a previous psychiatric history. Toxicology was positive for alcohol and/or marijuana in 50% of the victims. Friends were present when the victim shot himself which occurred in the home the majority of the time. In all but 1 case, premeditation of the game was involved as the victim provided the weapon for the roulette. The cause of death was gunshot wound to the head (6 to the right side, 1 to the mouth, 1 to the forehead), and the manner of death was suicide in 6 cases and accident in 2 cases. A review of the literature discusses the adolescent victim, suicide, and Russian roulette.

Criminal Law Outline •

Basic Principles and Concepts o Hart Article – The Aims of Criminal Law; 4 characteristics of the criminal method ▪ Method operates by a series of commands or directions formulated in general , telling people what they must or must not do ▪ Commands are valid and binding upon those who fall w/in their whether or not they have been formulated in advance in a single authoritative set of words ▪ Commands are subject to one or more sanctions for disobedience which the community is prepared to enforce ▪ Criminal sanctions are distinguished from civil sanctions is the judgment of community condemnation o 4 basic elements of crime: actus reus, mens rea, causation, concurrence o Sources of criminal law: common law and Model Penal Code o Justifications for Punishment ▪ People v. Suitte – court looks at 4 main objectives of punishment • Deterrence (general and specific) • Rehabilitation • Retribution • Isolation o Presumption of Innocence and Proof Beyond a Reasonable Doubt ▪ Standard of proof – beyond a reasonable of doubt (level of certainty the fact-finder must reach before ruling for the party w/the burden of proof) ▪ In Re Winship – used proof beyond a reasonable doubt in juvenile court; higher standard than civil cases b/c personal liberty is at issue o Standards of Review ▪ Standard applied to D’s motion for directed verdict at close of prosecution’s case – whether the prosecution has introduced sufficient evidence such that a rational jury could decide that the prosecution has proved its case beyond a reasonable doubt ▪ Standard applied by an appellate court when reviewing the evidence ing a conviction – whether a rational jury could have, on the evidence presented, found D guilty beyond a reasonable doubt • If evidence is ambiguous, appellate court should give prosecution the benefit of the doubt • Curley v. United States o The Role of the Jury ▪ Right to a jury trial in criminal cases is guaranteed by the 6th Amendment – usually jury of 12 and verdict must be unanimous ▪ Jury nullification – returning a verdict contrary to law

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People v. Williams – judge’s decision to dismiss a juror b/c he acknowledged that he would not apply the law as instructed is valid even though the juror was exercising right to jury nullification o Statutory Interpretation ▪ United States v. Dauray – • Plain meaning – dictionary definition • Canons of construction o Noscitur a sociis – meaning of doubtful or phrases may be determined by reference to their relationship w/other associated words or phrases o Ejusdem generis – where general words follow a specific list, the general words should be limited to things similar to those specifically enumerated • Statutory structure – want to be consistent w/the rest of the statute and amendments • Avoid absurdity • Rule of lenity – if the statute is ambiguous after above analysis, must decide in favor of D o Doctrine of last resort: reserved for when there is a reasonable doubt about a statute’s intended scope after resort to above methods of interpretation Constitutional Limitations on the Power to Punish o 14th Amendment Due Process: Void for Vagueness Doctrine ▪ Duty of legislatures to draft statutes that are clearly understandable • Provides fair notice to citizens of what conduct is prohibited • Limits police discretion to arrest and jury discretion to imprison people they don’t like ▪ Papachristou v. City of Jacksonville – statute for vagrancy failed to give fair notice and encouraged arbitrary and erratic arrests and convictions – cast too large a net and increased police discretion ▪ Kolender v. Lawson – statute was precisely targeted but gave too much discretion to law enforcement in deciding what ‘credible and reliable identification’ would be • Gave fair notice that statute existed, but did not give fair notice in of what you would have to do in order to abide by the statute ▪ City of Chicago v. Morales – statute gave police too much discretion in deciding what kinds of loitering violated the statute, no minimal guidelines for enforcing the ordinance th o 8 Amendment: Cruel and Unusual Punishment and the Principle of Proportionality ▪ Coker v. Georgia – to determine whether death sentence for rape was excessive punishment court looks to history and precedent (if

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other states imposed death penalty for rape), what juries do w/similar cases, and legislative attitudes; held – disproportionate • Rule: punishment is excessive if (1) it makes no measurable contribution to the goals of punishment or (2) is grossly out of proportion to the severity of the crime ▪ Ramirez v. Castro – 25 to life sentence under 3 Strikes rule for three shoplifting offenses is so grossly disproportionate that it violates the 8th Amendment ▪ Ewing v. California – punishment under the 3 Strikes rules is not unconstitutional b/c it is not grossly disproportionate to the crime • Solem factors: gravity of offense and harshness of penalty, sentences imposed on other criminals in same jurisdiction, sentences imposed on other criminals is other jurisdictions o Equal Protection ▪ 14th Amendment – prohibits state gov’t from denying any person w/in its jurisdiction the equal protection of the laws • State cannot treat people differently based on their race unless it serves a compelling state interest and it is narrowly tailored ▪ McCleskey v. Kemp – D had to prove purposeful discrimination in his specific case to sustain an equal protection violation – death penalty affirmed ▪ State v. Russell – statute which distinguished b/t cocaine base and cocaine powder was unconstitutional b/c there was no rational basis for the distinction which had disproportionate impact on blacks – arbitrary distinction • Federal rational basis test: review of equal protection challenge requires (1) a legitimate purpose for the challenged legislation, and (2) that it was reasonable for the lawmakers to believe that use of the challenged classification would promote that purpose • State rational basis test: (1) distinctions must not be manifestly arbitrary but must be genuine and substantial, giving a reasonable basis to justify legislature adapted to peculiar conditions and needs, (2) classification must be genuine or relevant to the purpose of the law, and (3) the purpose of the statute must be one that the state can legitimately attempt to achieve • Creates an irrebuttable presumption of fact that if you have a certain amount of the drug, then you are a dealer Actus Reus o Five loosely related concepts o Acting vs. Thinking: The Proscription Against Thought Crimes ▪ Wisconsin v. Mitchell – whether a penalty enhancement punishing choosing a victim based on race punishes bigoted thoughts

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Not punishing the thought but the bigoted conduct – enhanced punishment b/c crime was thought to inflict greater social and individual harm o Acting on One’s Own vs. Acting Under State Compulsion: “Situational Offenses” ▪ Martin v. State – cannot be punished for being drunk in public when the police removed him from his home and put him in public o Acting Voluntarily vs. Acting Involuntarily: The Unconsciousness Defense ▪ State v. Decina – even though D was unconscious due to seizure during the act, still criminally liable b/c he was reckless in operating a car knowing that he was subject to seizures ▪ Issue of time frame: majority looks at broad time frame (D knew he could have a seizure when he got in the car) vs. dissent which looks at narrow time frame (D could not recklessly operate a car if he was unconscious at the time) o Acting vs. Failing to Act: Liability for Omissions ▪ 5 situations where an individual has a legal duty to act • Special relationship b/t D and victim, contractual obligation to act, statutory duty to act, if D creates the risk of harm to the victim, if D voluntarily assumes care of a person in need of help ▪ People v. Beardsley – no legal duty to get victim medical attention b/c D and victim were not married even though D knew victim ingested morphine ▪ Commonwealth v. Howard – mother had a legal duty to protect her child from being beaten by mother’s boyfriend; mother acted recklessly which directed resulted in child’s death ▪ Commonwealth v. Pestinikas – D entered an oral contract to care for victim, thus their failure to provide food and medical care which caused the death is grounds for criminal liability ▪ Generally, no duty to rescue a total stranger, but some states have Good Samaritan laws o Acting vs. Having a Status: “Status Crimes: ▪ Robinson v. California – statute which criminalizes being a narcotics addict is unconstitutional b/c it is possible to be convicted w/o performing any act w/in the state ▪ Powell v. Texas – statute criminalizing being drunk in public is constitutional b/c it penalizes an act and not the sole fact of being an alcoholic Mens Rea o Regina v. Cunningham – issue of defining ‘maliciously’; jury should have been instructed to decide whether D foresaw the removal of the gas meter as possibly causing injury but removed it anyway o Problems of Statutory Interpretation

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United States v. Yermian – issue of whether ‘willfully’ applied to knowing the falsity of the statements AND knowing the jurisdiction; held that b/c of plain language it only applied to knowing the falsity of the statements Holloway v. United States – whether ‘carjacking w/intent to cause death or serious bodily injury’ requires an unconditional intent to kill or intent to kill or harm if necessary to complete the carjacking; held that Congress intended to criminalize the broader scope of conduct

o Intent ▪ Inferring Intent from Circumstantial Evidence • State v. Fugate – intent to kill may be presumed where the natural and probable consequences of a wrongful act is to produce death • Virginia v. Black – statute was unconstitutional b/c the act of burning a cross was held to be prima facie evidence of the intent to intimidate ▪ Doctrine of Transferred Intent • People v. Scott – D can be held criminal liable for the attempted murder for the intended victim who survived and for the murder of the unintended victim who died ▪ The Specific Intent/General Intent Distinction • People v. Atkins – voluntary intoxication is only a valid defense when the crime requires specific intent o General – crime consists only of an act w/o reference to intent to do a further act or achieve a future consequence ▪ Example – rape is sexual intercourse committed by a male upon a female not his wife by force and w/o her consent ▪ Limited number of general intent crimes: rape, battery, arson, kidnapping, involuntary manslaughter o Specific – crime refers to Ds intent to do some further act or achieve some extra consequence ▪ Example – larceny is tressory taking. . .w/inten to permanently deprive the owner o Knowledge ▪ United States v. Jewell – to act knowingly is to act w/positive knowledge or w/an awareness of the high probability of the existence of the fact in question (willful blindness) • Willful blindness to drugs hidden in the car o Strict Liability Crimes ▪ Morissette v. United States – if a statute is silent as to mens rea, the ordinary presumption is that a mental state is required for criminal

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liability – silence does not necessarily mean that Congress intended that no mental state is required ▪ No defense for strict liability crimes Mistake and Ignorance o Mistakes of Fact ▪ Common law or MPC jurisdiction? • Common law → general/specific intent o If specific intent crime → honest/good faith belief o If general intent crime → honest and reasonable • MPC → doesn’t distinguish b/t general and specific intent o Defense if it negates the mental state required for the commission of the offense o Legal wrong doctrine – D will be found guiltyo f the charged offense but only punished at the penalty set for the other, lesser crime ▪ People v. Navarro – common law jurisdiction; mistake in good faith is a complete defense regardless of whether that believe was also reasonable • Theft is a specific intent crime – good faith belief defeats the mens rea element requirement ▪ Bell v. State – MPC jurisdiction; statute could constitutionally preclude mistake of age as a defense since the conduct would still be illegal o Mistakes of Law ▪ Generally ignorance is not excuse ▪ Official Interpretation of the Law (Entrapment by Estoppel) • People v. Marrero – D can only use mistake of law defense if he correctly read the statute and it was later found to be invalid (policy – don’t want D to get off by saying he misread the statute) o D relied on his own interpretation and not an official interpretation o Dissent – D would have to correctly read the statute and have it later invalidated in order to call upon the mistake of law defense • United States v. Clegg – D can use mistake of law defense since he relied on official interpretation of the US military o Dissent: D was smuggling guns before the military asked for his assistance and there was no official representation that D’s conduct was lawful • State v. Fridley – mistake of law defense is not applicable to offenses where proof of culpability is not required (i.e. strict liability crimes) ▪ Ignorance or Mistake that Negates the Mens Rea

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Cheek v. United States – good faith misunderstanding of the law does not have to be objectively reasonable in order to negate willfulness o Standard for willfulness – voluntary, intentional violation of a known legal duty • Bryan v. United States – ‘willfully’ only requires proof that D knew the conduct was unlawful, not proof that he knew of the statute creating the illegality Fair Notice and Due Process (the Lambert exception) • Lambert v. California – due process requires that a person have fair notice of what conduct is considered illegal o What will qualify something as a Lambert exception? ▪ Whether there was actual or constructive notice ▪ Whether D was given a chance to comply o Act violated due process since D did not know of her duty to and there is no proof of the probability of such knowledge and she was not given a chance to comply • State v. Bryant – sex offender registration statute was unconstitutional b/c it contained no provision for notification to out of state offenders that they must upon entered NC o D did not have actual notice from the form filled out in SC since it was ambiguous as to whether it applied to other states

Causation o Actual “But-For” Causation ▪ But for D’s voluntary act or omission where D had a duty to act, would the social harm have occurred when it did? o Proximate Causation ▪ Whether it is fair and just to hold D criminally liable ▪ If D’s conduct is the direct cause → likely to hold D liable ▪ If there is an intervening cause → • Dependent intervening cause (dependent upon or responsive to D’s voluntary act) → D is proximate cause unless the intervening cause is extremely unusual • Independent intervening cause (independent of or coincidental to D’s voluntary act) → D’s is relieved of criminal liability unless the intervening cause is foreseeable ▪ Commonwealth v. Rementer – it is unfair to hold D liable only if his actions are so remote and attenuated from the result – here D’s conduct was an operative link in the chain of events that caused the harm

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State v. Govan – D can still be held criminally liable even if a substantial amount of time has ed between the conduct causing the harm and the victim’s death (i.e. gunshot causing quadriplegia resulting in fatal bout of pneumonia five years later) Hendersen v. Kibbe – failure to instruct on causation was not an error per se b/c the jurors were informed about the causation issue by both parties – in determining that D acted recklessly, jury included a determination that the ultimate harm was foreseeable since recklessness requires D to be aware of and disregard a substantial risk

Concurrence o Temporal concurrence – D must possess the requisite mens rea at the same moment of the voluntary conduct which causes the harm o Motivational concurrence – mens rea must be the motivating force behind the actus reus o Thabo Meli v. Reginam – even though the act of hitting victim over the head w/the mens rea of intending to kill him did not result in death at that moment, D is still liable (death occurred when D rolled the body off a cliff believing he was already dead) o State v. Rose – not sure if death occurred when victim was initially hit by D’s car or when D drove on, dragging the victim under the car – if the unintentional hitting caused the death, then no mens rea at that time, but there was intent to harm when he drove on, dragging the victim Homicide o Definitional Issues ▪ Murder – unlawful killing of another w/malice aforethought ▪ Manslaughter – unlawful killing of another w/o malice aforethought o Categorizing Homicide ▪ Common law • Malice aforethought is present when o An intent to kill (inferred from circumstantial evidence or use of deadly weapon) o An intent to commit serious bodily injury o An ‘abandoned and malignant heart’ or ‘depraved heart’ o The felony murder rule applies • Voluntary manslaughter – intentional killing that would normally be 2nd degree murder but is reduced b/c of a partial defense (i.e. provocation, diminished capacity) • Involuntary manslaughter – brought about the death of another through ‘criminal negligence’ (sometimes defined as gross negligence or recklessness) • Vehicular manslaughter – recognized by some states as a separate category of homicidal crime ▪ MPC

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Criminal homicide – purposeful, knowing, reckless, or negligent death of another • Murder – when committed purposefully, knowingly or when it is committed recklessly under circumstances manifesting extreme indifference to human life (depraved heart equivalent) • Manslaughter is criminal homicide when o Committed recklessly but w/o extreme indifference to human life o Murder committed under extreme mental or emotional disturbance for which there is reasonable explanation or excuse (equivalent to doctrine of heat of ion) st o Degrees of Murder (1 Degree v. 2nd Degree Murder) ▪ Default – 2nd degree murder • Raised to 1st degree if o Involved premeditation and deliberation ▪ No particular length of time is required for premeditation ▪ Deliberation refers to having a cool head o Committed using a means specified in the first degree murder statute (i.e. lying in wait, poison) o Occurred during the commission or attempted commission of an enumerated felony • Voluntary manslaughter if there are mitigating circumstances → if enough mitigation then can be involuntary manslaughter ▪ State v. Brown – repeated blows the head cannot, on its own, be evidence of deliberation (to cause death); can a 2nd degree murder charge • Premeditation may be formed in an instant but deliberation requires some period of reflection ▪ State v. Bingham – manual strangulation (during a rape) which took 3-5 minutes does not indicate a sufficient time for deliberation • Strangulation may have been an attempt to quiet not kill ▪ Gilbert v. State – a mercy killing can be first degree murder since there was a period of calm reflection and a cool head o The Doctrine of Provocation (Voluntary Manslaughter) ▪ AKA ‘heat of ion’ defense • One who kills in response to legally adequate provocation is treated as having acted w/o malice aforethought ▪ The Early Common Law’s Approach to Provocation • Legally adequate provocation – response to: o An aggravated assault or battery o Observation of a serious crime against a close relative

o Illegal arrest o Mutual combat o Catching one’s wife in the act of adultery • Mere words rule – generally mere words are not enough to constitute legally adequate provocation • People v. Ambro – exception to mere words rule when there is a series of provoking statements regarding a wife’s infidelity, threats to take away D’s children, and goading D to kill her o Overruled – currently a wife’s confession of adultery does not constitute adequate provocation ▪ The Modern “Reasonable Person” Test • Reasonable Person test elements – both subjective and objective elements o D actually acted in the heat of ion o The heat of ion was provoked by an act or event that would have provoked a reasonable person in D’s shoes to lose self control o D did not have sufficient time to cool off o A reasonable person in D’s shoes would not have had sufficient time to cool off • Must be a connection b/t provocation, ion, and killing o Provocation is what actually provoked the killing and that the person killed is either the provoker or someone acting in concert w/the provoker • People v. Berry – given the length of time over which the series of provoking events occurred, D could still have been in the heat of ion after 20 hours of waiting for victim o Question of ‘cooling off’ is a jury question ▪ Who is “The Reasonable Person” • Reasonable person is a person having the power of self control to be expected of an ordinary person of D’s age • Commonwealth v. Carr – the sight of lesbian sex is not legally adequate provocation to mitigate murder to manslaughter; test is whether a reasonable person confronted w/the events would have become imioned to the extent that his mind was incapable of cool reflection o The Model Penal Code’s Extreme Emotional Disturbance ▪ Murder can be mitigated to manslaughter when it is committed under extreme mental or emotional disturbance for which there is a reasonable explanation • Reasonableness is determined from D’s viewpoint under the circumstances as D believes them to be • More subjective that modern reasonable person test

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State v. Dumlao – MPC allows jury to take D’s particular characteristics into and define reasonableness for his point of view • MPC does not require provocation to emanate from the victim • Having a cooling off period b/t provocation and murder does not negate the defense – distinguish from common law heat of ion doctrine o Depraved Heart Murder ▪ Usually treated as 2nd degree murder ▪ Malice will be implied when D acted w/gross recklessness and an extreme indifference to human life • D realized his actions created a substantial and unjustified risk of death and yet committed the act anyway • Distinguish – homicides involving only gross negligence or simple recklessness can only be punished as involuntary manslaughter ▪ Commonwealth v. Malone – pulling the trigger of a gun loaded with only one bullet three times created a substantial risk of death and thus D exhibited a depraved heart ▪ State v. Davidson – since D could have reasonably foreseen that her dogs would attack someone, her conduct in failing to contain the dogs can sustain a 2nd degree murder conviction since her recklessness displays an indifference to human life • Recklessness – realization of imminent danger and conscious disregard of that danger o Involuntary Manslaughter ▪ Most jurisdictions require criminal negligence (gross negligence or recklessness) • Minority – only require simple negligence • Difference b/t recklessness and negligence – whether D was aware of a substantial and unjustified risk and chose to disregard it (recklessness requires awareness of risk) ▪ Commonwealth v. Welansky – standard of wanton or reckless conduct – if an ordinary person in the same situation would realize the gravity of the situation in keeping the exit doors locked, D can be held criminally liable ▪ State v. Williams – simple negligence is the failure to exercise ordinary caution (that which a man of reasonable prudence would exercise under the same or similar conditions) • Since Ds were put on notice during the critical time of the child’s illness when an ordinarily prudent person would have sought medical care, they can be held liable o The Felony Murder Rule

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Common law felony murder rule – person who kills during the commission or attempted commission of a felony has committed 2nd degree murder • Can be elevated to 1st degree murder if it occurs during an enumerated felony (often rape, robbery, arson, kidnapping) • Covers accidental deaths ▪ People v. Stamp – a felon is strictly liable for all killings committed during the felony regardless of whether the killing is willful, deliberate and premeditated or merely accidental • Malice aforethought is inferred on the basis of committed a felony inherently dangerous to human life ▪ Inherently Dangerous Felony Limitation • People v. Patterson – inherently dangerous to life – offense carries a high probability that death will result o Limits the number of felonies that would qualify under common law felony murder rule • Hines v. State – drinking while hunting at night can turn illegal possession of a firearm by a convicted felon into an inherently dangerous felony ▪ The ‘Res Gestae’ Requirement • 2 elements o Felony and homicide must be close in time and distance o Must be a causal connection b/t felony and homicide • People v. Bodely – felony murder liability continues during the escape of burglar from the crime scene until he reaches a place of temporary safety o The homicide is committed in perpetration of the felony if the killing and the felony are parts of one continuous transaction • King v. Commonwealth – a death not caused by an act in furtherance of the felony does fall w/in felony murder rule o Only acts causing death which are committed by those involved in the felony can be the basis for a conviction o The act causing death must result from some effort to further the felony o There must be some act attributable to the felons which caused the death ▪ Should the Common Law Felony Murder Rule Be Abolished? • People v. Aaron – Michigan abolished common law felony murder rule – but there is still a 1st degree statutory felony murder rule Sexual Offenses o Introductory Material

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Statutory rape → strict liability crime • Sexual intercourse w/a person under a certain age • Consent and mistake of age are not defenses ▪ Forcible rape → general intent crime • Unlawful sexual intercourse w/a woman against her will • Consent may be a defense • Traditionally, P had to prove that there was no consent AND force or threat of force • Currently → no consent + force + resistance ▪ Time frame issues – how closely in time does the force/resistance have to occur in relation to the rape ▪ Mens rea – only intent required is the intent to have sex o Forcible Rape ▪ Element of Force or Threat of Force • Most jurisdictions have eliminated the resistance requirement • Rusk v. State – insufficient evidence to prove that D’s actions of taking her car keys and lightly choking P created a reasonable fear that she would be harmed if she resisted o Must be evidence that V resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety - overruled • State v. Alston – threats of force that were unrelated to the rape itself are insufficient to establish the requisite force • Commonwealth v. Berkowitz – look to the totality of the circumstances to establish sufficient force (age of parties, mental and physical conditions, positions of authority or dominance, presence of duress) o Forcible compulsion includes physical, moral, psychological, and intellectual force o Objective standard – look to how a reasonable person would have responded to the force ▪ What Counts as Consent? • Most jurisdictions recognize a mistake defense – D’s mistake as to victim’s consent must be honest and reasonable in order to be a complete defense • In re John Z. – withdrawal of consent nullifies any earlier consent and subjects the male to forcible rape charges if he persists o Forcible rape occurs during consensual sex when: (1) victim expresses an objection, (2) victim attempts to stop the act, and (3) D forcibly continues despite the objection o Statutory Rape ▪ MPC approach

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Similar to common law: presumes rape is a ‘he’ acting upon a ‘she’, martial immunity • Difference from common law: intercourse includes oral and anal penetration, focuses on D’s conduct instead of V’s lack of consent, does not require proof of resistance • Rejects the idea of strict liability in rape context – allows mistake of age defense Many states have moved towards limitations on strict liability nature of statutory rape • Some allow mistake of age defense when V is w/in a certain age range Garnett v. State – statutory rape is a strict liability crime and therefore mistake of age is not a defense – mens rea requirement was expressly rejected by the state legislature State v. Yanez – child molestation is a strict liability crime; plain language of statute does not include a mens rea element

Theft Offenses o Theft – theft crimes are specific intent crimes ▪ Larceny • Elements of larceny o Tresory – involves someone else’s possession w/o their consent o Taking o And carrying away ▪ Asportation – assertion of control over and some mov’t of the item no matter how slight o Of property o From possession of another o W/intent to permanently deprive owner of it ▪ This is the specific intent element ▪ Larceny by Trick • Elements of larceny by trick o Employee or agent (generally drops out) o Obtains custody of a thing ▪ When an employer delivers property to an employee to use, keep, or make a delivery ▪ When owner loses or mislays property and someone else finds it ▪ Owner delivers property to another as part of a transaction to be completed in the owner’s presence o Through deceit o And takes custody o W/intent to permanently deprive owner of it ▪ Embezzlement

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Elements of embezzlement o Intentional o Conversion – act that seriously interferes w/owner’s ability to use the property o Of the property of another o By someone who is already in lawful possession • Distinguished from larceny by trick (where initial taking is through deceit, not lawful possession) ▪ False Pretenses • Elements of false pretenses o False statement of fact o That causes victim to o title of property to D o D knows the statement is false and o Thereby intends to defraud the victim • Distinction → gains both possession and title through deception • Often involves exchanging counterfeit money o Aggravated Theft ▪ Burglary • Elements of burglary at common law (‘at night’ element has been removed in all states) o Breaking and o Entering o Of a dwelling house o Of another o At night o W/the intent to commit a felony therein • United States v. Eichman – D cannot be prosecuted for burglary if he did not enter w/in the four walls of the structure o Elements of burglary: (1) entry; (2) of a structure; (3) w/the knowledge that the entry is not licensed; (4) w/the intent to commit a crime w/in the structure • State v. Thibeault – burglary requires that the entry be w/knowledge that there is no license to enter; initial entry must be tresory o Elements: entry of a structure w/knowledge that the entry is not licensed and w/intent to commit a crime w/in the structure ▪ Robbery • Elements of robbery o Theft plus ▪ Taking from person or his immediate presence ▪ Accomplished by use of force or fear

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Distinguished from burglary – have to prove theft instead of just intent to commit a crime therein Crocker v. State – three elements of robbery o Felonious intent o Force or putting in fear as a means of effectuating the intent o By that means taking and carrying away the property of another from his person of in his presence Miller v. Superior Court – the element of ‘immediate presence’ and use of force can be supplied after D has gained possession of the victim’s property o Dissent: this would transform robbery from the crime of taking to one of taking OR retaining property

Defenses o Introduction ▪ Case in chief defense – when D argues that prosecutor failed to meet its burden of proof on at least one essential element of the crime; just has to raise a reasonable doubt • Mistake defenses ▪ Affirmative defense – D its gov’t established a case in chief but argues that D should be acquitted for another reason • Justification defense – D claims he did the right thing or took the most appropriate action under the circumstances o Focuses on justness of D’s action o If D is justified, then accomplices are not guilty • Excuse defense – D’s act is presumed to be wrongful but D asks to be excused for another reason o Focuses on individual D and whether he is blameworthy or culpable o Has no effect on accomplice liability • Usual evidentiary standard: preponderance of the evidence o Justification Defenses ▪ Self Defense • D must have an honest and reasonable belief that he is threatened w/imminent threat of unlawful force o Must believe that force against the perpetrator is necessary to repel the threat and the force is proportional to the threat o Belief does not have to be correct • Elements of self defense claim: (1) necessity, (2) imminence, (3) proportionality • Culverson v. State – D does not have to actually be in imminent danger of death or bodily harm, but must have an honest and reasonable belief that he is; also no duty to

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retreat if reasonable belief that D is about to be attacked w/deadly force o Majority rule in US: no retreat required before using deadly force o May be hard for a jury to determine whether a person reasonably believed there was an available avenue of escape o Cannot use self defense if you are the first aggressor unless you have communicated your withdrawal • People v. Goetz – use an objectively reasonable person standard in determining whether D’s belief that he was in danger was reasonable; reasonableness is based on the circumstances facing D in his situation • State v. Simon – reasonableness should be judged from an objective standard – reasonable belief implies a belief and existence of facts that would persuade a reasonable man to that belief • State v. Stewart – battered wife could not claim selfdefense when she killed her sleeping husband b/c she was not in imminent danger o 2 pronged test for self defense ▪ Subjective standard to determine whether D sincerely and honestly believed it was necessary to kill in order to defend herself ▪ Objective standard to determine whether D’s belief was necessary – whether a reasonable person in D’s circumstances would have perceived self defense as necessary o Jury must weigh evidence in light of how a reasonable person suffering from BWS would have perceived and reacted in view of the prolonged history of physical abuse • State v. Wanrow – necessity of self defense is to be evaluated in light of all facts and circumstances known to D, including those occurring substantially before the killing; jury should also use a subjective standard for judging D’s reasonable belief Imperfect Self Defense • Crime may be mitigated from murder to voluntary manslaughter if o Belief that force is necessary is honest but unreasonable OR o If attacked w/nondeadly force but respond by escalating to deadly force • Jury may convict D of a lesser included offense if D cannot prove all elements of full self defense

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MPC – when actor is reckless or negligent in the belief about the necessity of force, any justification defense is lost against prosecutions based on that recklessness or negligence Defense of Others • When a person uses force against another in order to defend a 3rd party he thinks is in imminent danger of attack • Elements: (1) 3rd person under imminent attack, (2) necessity, (3) proportionality, and (4) D must honestly and reasonably believe that force used was necessary to protect the 3rd person • Old common law approach o Act at peril rule – permitted use of force for defense of others only if 3rd person would have been permitted to use force to defend himself o Status rule – defense was only available if D was in a particular status relationship w/the 3rd party • People v. Young – right to defend another should not be greater than such person’s right to defend himself (decided under old common law approach w/act at peril rule) Defense of Habitation • Use of deadly force is not permissible for simple defense of property • Original common law – allowed deadly force if occupant reasonably believed the force was necessary to prevent an imminent unlawful entry o Modified approaches: (1) deadly force can only be used when there is a reasonable belief that such force is necessary to prevent imminent unlawful entry AND intruder intends to commit a felony or cause injury to one inside the dwelling; (2) if reasonable belief that such force is necessary to prevent entry and intruder intends to commit a forcible felony or kill or cause grievous bodily injury to the occupant or another inside • People v. Brown – entry onto an unenclosed porch does not equal entry into a dwelling – nature of the structure’s composition was not such that a reasonable person would expect some protection from unauthorized intrusions Defense of Property • People v. Ceballos – defense of property is not a justifiable defense for using a trap gun to defend a garage from possible burglary o Statute limited use of deadly force to prevention of an ‘atrocious’ felony

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o Preservation of life is valued more than the protection of property • Deadly force may be justified when a person is attempting to prevent a felony or is attempting to apprehend a fleeing felon • People v. Quesada – use of deadly force is not permitted to prevent the burglary of an unoccupied home and therefore it is not justified to apprehend such a criminal Necessity • See chart from class • Idea that sometimes the greater good is served by breaking the law rather than obeying it • Elements under common law approach: (1) harm sought to be avoided was greater than the harm likely to be caused by breaking the law; (2) legislature has not determined the matter in a way that goes against D; (3) causal connection b/t D’s illegal act and the harm sought to be avoided (must be reasonable for D to believe that his illegal act would abate the threatened harm); (4) no effective legal alternative was available; (5) D was seeking to avoid a clear and imminent danger; (6) D was not at fault for creating the dangerous situation • Elements under MPC approach: conduct that the actor believes to be necessary to avoid a harm or evil to himself or others is justified provided that (1) harm sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; (2) neither MPC or other law defining the offense provides exceptions to defenses dealing w/the specific situation involved; (3) a legislative purpose to exclude the justification claimed does not plainly appear o Difference from common law: (1) MPC has no imminence requirement; (2) possible to use defense of necessity to murder • United States v. Schoon – elements of necessity can never be met in cases of indirect civil disobedience – congressional policies are not a cognizable harm, single act of disobedience is unlikely to abate the evil b/c the act is indirect, and there will always be a legal alternative – petitioning Congress • Commonwealth v. Hutchins – necessity is not an available defense to medical use of marijuana b/c the alleviation of D’s symptoms does not outweigh the potential harm to the public of D’s cultivation o Balance harms and then look to the following factors: (1) D faced w/clear and imminent danger;

(2) D can reasonably expect that his action will be effective as a direct cause of abating the danger; (3) no legal alternative is available; (4) legislature has not precluded the defense • United States v. Oakland Cannabis Buyers’ Coop – medical necessity is not an available defense to violation of the Controlled Substances Act – statute reflects a congressional determination that marijuana has not medical benefits worthy of an exception • In re Eichorn – necessity defense is available to a homeless man who violated an ordinance by sleeping in a public place o Excuse Defenses ▪ Under some circumstances, even though D has broken the law and was not morally justified in doing so, D should still not be punished b/c he lacks moral responsibility for her actions ▪ Duress/Coercion • D claims he was threatened by another w/physical force unless he committed a specific crime • Elements under common law: (1) D acted in response to an imminent threat of death or serious bodily injury; (2) D had a reasonable fear that the threat would be carried out unless he committed a specific crime; (3) D had no reasonable opportunity to escape the threatened harm • MPC approach: excuses criminal conduct that was coerced by the use of, or threat of use of, unlawful force against the actor’s person or a 3rd person such that a person of reasonable firmness in his situation would have been unable to resist o Difference from common law: MPC is not limited to threats of death or serious bodily injury, no explicit imminence requirement (although incorporated into whether a person could resist it), defense to homicide is possible • Difference b/t necessity and duress o Necessity: response to a dire situation o Duress: response to a threat from a specific individual to commit the act that constitutes the crime • United States v. Contento-Pachon – threats to D’s family were sufficiently imminent and D has not opportunity to escape b/c he was being watched at all times – D also surrendered to authorities at the first chance by submitting to X-rays (followed common law) o Possible fourth element – D must submit to proper authorities after attaining a position of safety

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State v. Hunter – if the underlying felony was committed under duress, D should not lose the defense of duress to a felony murder charge if one of his threateners killed another during the felony o Defense is not available if D willfully or wantonly placed himself in the situation in which it is probable that he will be subject to compulsion or threat Insanity • See chart • Possible tests for insanity o M’Naghten test: (1) D suffered from a mental disease; (2) causing defect in his reasoning powers; (3) resulting in D lacking the ability at the time of his actions to either know that his act was wrong OR understand the nature and quality of his act ▪ Limitations: (1) doesn’t distinguish b/t those who know right from wrong but cannot control their behavior; (2) expert testimony is limited, jury hears limited information o Irresistible impulse test: (1) D suffered from a mental illness; (2) causing him to be unable to either control his actions OR conform his conduct to the law ▪ Limitations: impulse is misleading b/c the inability doesn’t have to come about suddenly o Durham test: (1) D suffered from a mental disease or defect; (2) and his crime was a product of it (but for the disease, D would not have committed the crime) ▪ Limitations: problems w/causation ▪ Benefit: eliminated right/wrong dichotomy o MPC/ALI test: (1) D suffered from a mental disease or defect; (2) resulting in D lacking substantial capacity to either appreciate the wrongfulness of his conduct OR conform his conduct to the law ▪ Benefits: ‘lacking capacity’ does not have to absolute, just substantial; ‘appreciate’ is more than just knowing the conduct is wrong • United States v. Freeman – uses MPC test; remanded to decide if toxic psychosis brought on by narcotics addiction was sufficient to establish insanity under the new test

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o Court emphasized that repeated criminal conduct or addition could not, on it’s own, be the sole basis for finding a mental disorder • State v. Crenshaw – no reversible error to instruct jury as to knowing the difference b/t right and wrong as the ‘legal’ as opposed to ‘moral’ right and wrong o Legal wrongs are a reflections of society’s moral wrongs ▪ Diminished Capacity • Evidence of mental illness to mitigate or eliminate criminal liability • Mens rea variant – mental disease or defect not amounting to insanity can show that D lacked the required mental state o Case in chief defense b/c it is attacking an element of the crime • Partial responsibility variant – D is less blameworthy b/c of mental disease or defect not amounting to insanity than others charged w/the same crime o Other Defenses ▪ Black Rage ▪ The Cultural Defense • People v. Aphaylath – trial court should have allowed expert testimony about Laotian culture and the difficulty in assimilating to American culture • Attempts o Introduction ▪ Common law – act done w/intent to commit a crime but failing to effect its commission ▪ MPC – requires a substantial step towards the culmination of the commission of the targeted offense (focuses on what D has done, rather than on what remains to be done) ▪ Elements of attempt • Specific intent to commit the crime (even if a general intent crime) • An overt act in furtherance of that intent o The Actus Reus Requirement ▪ People v. Rizzo – D did not attempt the crime of robbery b/c he was not presented with opportunity to actually commit the crime • Only acts which are so near to the crime’s accomplishment that in all reasonable probability the crime would have been committed but for timely interference ▪ People v. Staples – drilling holes through an office floor was sufficient to establish an attempt to rob the bank vault below • Acts went beyond mere preparation – began the breaking element of burglary

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MPC – examples of a substantial step, pg 1194: lying in wait, searching for or following the contemplated victim o The Mens Rea Requirement ▪ People v. Harris – to sustain a conviction for attempted murder there must be demonstrable intent to kill – intent to commit serious bodily harm is not sufficient for attempt even though it would be sufficient to convict for murder ▪ State v. Hinkhouse – sustained conviction of attempted murder when D purposefully did not disclose his HIV status and refused to use a condom except w/the woman he intended to marry • Pattern of behavior demonstrated that D was not acting on impulse or w/o the intent to harm b/c he had been warned that such behavior would be like murder • Attempt: D intentionally engages in conduct which constitutes a substantial step towards commission of the crime o The Defense of Impossibility ▪ United States v. Thomas – rejects legal/factual impossibility distinction and adopts MPC approach – victim did not need to be alive in order to convict D of attempted rape • MPC – D is guilty of attempt if he o Purposefully engages in conduct which would constitute the crime if circumstances were as D believed them to be o Does or omits to do anything w/purpose of causing a result that is the element of the crime o Does or omits to do anything which, under the circumstances as he believes them to be, is a substantial step in a course of conduct planned to culminate in the commission of the crime o Defense of Abandonment ▪ Generally not a defense ▪ MPC – withdrawal may be a defense IF it was fully voluntary and the attempt was completely abandoned Accomplice Liability o Accomplices must intentionally assist the principal actor in committing the crime o Pace v. State – mere presence is not enough to convict D as an accomplice – also look to whether there is a duty to act o State v. Parker – person can aid or abet by inaction (i.e. lookout) – look to actions surrounding the crime and knowledge that the crime was occurring Conspiracy o Introduction ▪ Crime is the agreement itself ▪ Collective criminality poses special dangers

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Conspiracy – agreement by two or more people to commit either one or more criminal acts, or one or more acts that are noncriminal but are corrupt, dishonest, fraudulent, immoral, and in that sense illegal ▪ Common law – jury can infer agreement from circumstantial evidence • Some jurisdictions require an overt act in furtherance of the conspiracy to demonstrate it’s existence ▪ MPC approach – merges conspiracy w/completed crime • Rationale – person entering a conspiracy has demonstrated a firm commitment to criminal activity and poses a greater threat of actual social harm • Conspiracy must have an actual crime as its object ▪ Wharton’s rule – look to see whether the definition of the crime requires two or more people to actually commit it The Agreement ▪ State v. Pacheco – cannot convict D of conspiracy when he agreed to commit a crime w/an undercover agent who only feigned agreement – required genuine bilateral agreement • Unilateral agreement is inconsistent w/rationale behind common law – greater danger of group criminal activity o But is consistent w/rationale behind MPC approach – D has firm commitment to criminal activity The Pinkerton Rule ▪ United States v. Mothersill – each party to a continuing conspiracy may be vicariously liable for substantial criminal offenses committed by a co-conspirator during the course and in the furtherance of the conspiracy, notwithstanding the party’s nonparticipation in the offenses or lack of knowledge thereof • Must prove that the crime was a reasonably foreseeable consequence of the conspiracy • Only applies to conspirators playing more than a minor role • Applies when crime was also a goal of the conspiracy and when the crime differs from the precise nature of the conspiracy but still facilitates the implementation of the conspiracy’s goals The Shape and Boundaries of Conspiracies ▪ Kotteakos v. United States – spokes in a wheel – should not have been charged as one, large conspiracy b/c individuals were only linked by one man’s connection to all of them • Other parties are disadvantaged by the prosecution being able to try all parties together in one courtroom ▪ United States v. Bruno – chain of events – jury could find there was one conspiracy b/c each group must have known that the conspiracy did not end with their individual transaction Special Defenses to Conspiracies: Withdrawal and Impossibility

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United States v. Read – withdrawal can become a complete defense when coupled w/defense of statute of limitations; D has burden of producing evidence that he withdrew and then prosecution has burden of disproving that evidence beyond a reasonable doubt • Still liable for acts occurring before the withdrawal if they are w/in the statute of limitations United States v. Recio – impossibility is not a valid defense to conspiracy – conspiracy related dangers will exist even when the object of the conspiracy is frustrated

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA Respondent, v.

WAYNE JAMES Defendant

) ) ) ) ) ) ) ) ) ) )

-51-CR-0014092-2011 -51-CR-0014093-2011 -51-CR-0014094-2011 -51-CR-0014095-2011 -51-CR-0014096-2011

Amended Post-Sentencing Motion

1.

Pursuant to Pa. R. Crim. P., 720, Defendant, Wayne James, by and through appointed counsel, Craig M. Cooley, files his Amended Post-Sentencing Motion. His motion is presented in good faith and based on the following points and authorities. Procedural History

1

2.

The Commonwealth charged James with the following offenses in connection with the June 26, 2011 shooting at the Genesis Tavern that resulted in one death (Carl Sharper’s) and four people being shot: murder (18 Pa. C.S.A. §2502); criminal attempt-murder (18 Pa. C.S.A. §901(a)); aggravated assault (18 Pa. C.S.A. §2702(a)); carrying a firearm without a license (18 Pa. C.S.A. §6108); and possession of an instrument of a crime (18 Pa. C.S.A. §907(a)).

3.

James’ case was assigned to the Honorable Teresa M. Sarmina (Court).

4.

The Defender’s Association initially represented James, but on June 17, 2013, the Defender’s Association withdrew as trial counsel and James A. Lammendola was appointed.

5.

On September 30, 2013, jury selection began.

6.

On October 1, 2013, after jury selection, James fired Lammendola and requested to represent himself.1 Before granting his request, the Court asked James: “Has anyone

NT, 10/01/2013, at 15-16, 25-27, 33, 41.

Commonwealth v. Wayne James

Amended PSM

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pressured… or threatened you or in any way made you give up your right to counsel.” 2 James answered no.3 7.

The Court granted his self-representation request, but denied his request to postpone the trial so he could prepare to represent himself: If you want to represent yourself, you do have a constitutional right to represent yourself. You can give up the right of having an attorney assist you in your defense. But we are not delaying the trial. You have had two years to put this together[.]4

8.

The Court also instructed James on the pitfalls of self-representation: If you wish to represent yourself under the United States constitution, you have the right to do so. However, you’re going to be saddled with whatever ineffectiveness you have of yourself because you’re not trained in law. But the law allows you to, if you wish to give up your right to have counsel, to represent yourself. …. As they say in the law… only a fool has himself as a lawyer. Okay, I’m not calling you a fool. I’m just telling you I don’t think it’s the wisest decision. You have a right to do it and I will not interfere with you exercising your rights if that’s what you wish to do.5

9.

During trial, the Court repeatedly advised James of the pitfalls of self-representation when he complained about having to represent himself: And Mr. James, you did not want backup counsel. You didn’t want any assistance. These are some of the pitfalls that happen when someone decides at the last moment to represent themselves. You have a constitutional right to do that, as I told you then. … But I told you, you are held to the same standards as any attorney [199] would be. And I also told you… only a fool has himself for a lawyer. And you chose to exercise your

2

NT, 10/01/2013, at 25. Id. 4 NT, 10/01/2013, at 15; see also id. at 18 (“You’re not getting time. This is your trial. You picked the jury.”); id. at 20 (“And we’re not starting an investigation during the trial, Mr. James.”). 5 NT, 10/01/2013, at 16. 3

Commonwealth v. Wayne James

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constitutional right to represent yourself but you’re still held to the same standard.6 10. Likewise, the Court advised James that rules of evidence and criminal procedure would apply to him in the same way they applied to experienced trial attorneys: And I will also advice you and tell the jury that you are held to the same standards as any attorney would be in court. So you have to follow the rules of court. They are rules and you can’t say I don’t know the rules. That’s why people usually do not represent themselves. But you’re held to the rules. And so when I tell you to do something, you will have to do it.7 11. At trial, the Commonwealth presented seven witnesses who saw a man get ejected from the Genesis bar and who saw the shooting ten to fifteen minutes after the man got ejected. Several witnesses identified James as the man who got ejected,8 while several identified him as the shooter.9 The Commonwealth also played the video from the Genesis bar for the jury.10 Lastly, the Commonwealth presented two forms of forensic identification evidence: fingerprints and cartridges: a. First, Scott Copeland, the Commonwealth’s fingerprint expert, examined a Guinness beer bottle collected from the bar near where James was seen on the video drinking, and identified a fingerprint that matched James’ fingerprint.11 b. Second, Lawrence Flagger, the Commonwealth’s firearms expert, said he examined the eleven cartridges collected from the bar and concluded that the same firearm discharged all eleven.12 The CSI team collected no evidence at the scene to suggest another firearm was discharged during the shooting. 12. James’ defense was not mistaken identity, but rather that someone else fired a weapon in the bar during the shooting, and it was this (unknown) individual’s firearm, that shot the fatal bullet that killed Carl Sharper.13 13. On October 7, 2013, the jury convicted James of one count of first-degree murder and four counts of aggravated assault.14 Immediately thereafter the Court, having no 6

NT, 10/01/2013, at 137, 198. NT, 10/01/2013, at 31. 8 NT, 10/01/2013, at 88, 95, 112 (Tamatha Robinson); id. at 182 (Jerrell Johnson); NT, 10/01/2013, at 41 (Charoletta McKee); id. at 78 (Curtis Aiken); NT, 10/03/2013, at 49 (Russell Kayan); id. at 238-239 (Kevin Brown). 9 NT, 10/01/2013, at 122-123 (Tamatha Robinson); id. at 182 (Jerrell Johnson); NT, 10/02/2013, at 56-57 (Charoletta McKee); id. at 84 (Curtis Aiken); NT, 10/03/2013, at 49 (Russell Kayan). 10 NT, 10/02/2013, at 207-235 (Detective Dunlap, who’s part of the DIVRT team, played the video for the jury). 11 NT, 10/02/2013, at 157, 171. 12 NT, 10/03/2013, at 145, 165. 13 NT, 10/07/2013, at 109, 113, 115, 117, 135-136. 14 NT, 10/07/2013, at 50-51. 7

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discretion to do otherwise, sentenced James to life without the possibility of parole (LWOP) for the first-degree murder conviction and 5 to 15 years for each of the four aggravated assault convictions.15 All sentences are to be served concurrently. 14. On October 8, 2013, undersigned counsel was appointed to represent James during the post-sentencing and appellate stages. 15. On October 15, 2013, undersigned counsel filed James’ Post-Sentencing Motion (PSM). Pursuant to 720(B)(3)(b), counsel requested a 30-day extension, allowing the Court to rule on his PSM within 150 days after sentencing, rather than 120 days. Counsel requested the extension to review the case file and trial testimony with the objective of filing a more comprehensive Amended PSM. 16. Counsel has read and digested the 1100 plus pages of transcripts and case material and now submits James’ Amended PSM Pa. R. Crim. P., 720 17. Pursuant to Rule 720(A)(1), James had ten days, after imposition of his sentence, to file his PSM. The Court sentenced James on October 7, 2013 and he filed his PSM on October 15, 2013. His PSM is timely, so too is his Amended PSM which he filed on January 23, 2014. Based on counsel’s 30-day extension request, the Court has until March 6, 2014 to issue a ruling; if one is not issued by March 6, 2004, the Amended PSM “shall be deemed denied by operation of law.” Pa. R. Crim. P. 720(B)(3)(b). 18. James makes the following post-sentencing motions: (1) motion for judgment of acquittal; (2) motion for new sentencing hearing; and (3) motion for a new trial. A.

Motion For Judgment of Acquittal

The Commonwealth Presented Insufficient Evidence To Prove Beyond a Reasonable Doubt That James Had The Specific Intent To Kill Carl Sharper. U.S. Const. Amends. V, VI, VIII, XIV; Pa. Const. Art. 1, §9. 19. The Commonwealth presented insufficient evidence to prove beyond a reasonable doubt that James had the specific intent to kill Carl Sharper when he returned to the Genesis bar and opened fire inside the bar randomly striking individuals he did not know. The appropriate conviction for James’s random, reckless, indifferent, and cruel act is thirddegree murder, not first-degree. 20. The Commonwealth charged James with murdering Carl Sharper (18 Pa. C.S.A. §2502), but did not specify the degree of murder in the Information. At trial, the

15

NT, 10/07/2013, at 55-56, 60-61.

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Commonwealth argued James’ actions warranted first-degree murder. See 18 Pa. C.S.A. §2502(a)).16 21. To convict James of first-degree murder the Commonwealth had to prove: (i) Carl Sharper was unlawfully killed; (2) James was responsible for the killing; and (3) James acted with malice and a specific intent to kill. See 18 Pa.C.S. §2502(a); Commonwealth v. Ho, 18 A.3d 1128, 1133 (Pa. 2011). In other words, the Commonwealth had to prove James “intentionally” killed Carl Sharper. Intentional killing is defined as a “willful, deliberate and premeditated killing.” 18 Pa.C.S. §2502(b); see also Commonwealth v. Taylor, 876 A.2d 916 (2005). Premeditation and deliberation “exist whenever the assailant possesses the conscious purpose to bring about death.” Commonwealth v. Drumheller, 808 A.2d 893, 910 (Pa. 2002). 22. The Court also instructed the jury on third-degree murder,17 which requires the Commonwealth to prove malice, but not specific intent. Malice requires “a unique state or frame of mind characterized by wickedness, hardness, cruelty, recklessness, and disregard of social duty.” Commonwealth v. Ludwig, 874 A.2d 623, 631-632 (Pa. 2005). Malice has been characterized as exhibiting an “extreme indifference to human life,” Commonwealth v. Gardner, 416 A.2d 1007, 1008 (Pa. 1980). 23. The Court distinguished first- and third-degree by emphasizing “first degree murder… requires the jury to unanimously find that there was in fact a specific intent to kill Carl Sharper.”18 24. Midway through jury deliberations, the jury requested additional clarification between first- and third-degree murder.19 It also asked, “Is first degree the killing of Carl Sharper or could it be the killing of anyone?”20 25. The Commonwealth argued that “based upon the facts of the case, it would be the killing of anyone[.]”21 Specifically, it was the Commonwealth’s belief James intended to kill Kevin Brown, the bouncer who ejected him from the bar: “I believe that the intended target… was certainly Mr. Brown.”22 The Court disagreed: The question is is first degree murder the killing of Carl Sharper or could it be the killing of anyone? I don’t know that there’s anything in the case that would be the killing of anyone. No one else is dead.23

16

NT, 10/01/2013, at 77, 82 (Commonwealth’s opening statements); NT, 10/04/2013, 138, 139, 141 (Commonwealth’s closing arguments). 17 NT, 10/07/2013, at 24-26. 18 Id. at 26. 19 Id. at 41. 20 Id. at 41. 21 Id. at 43. 22 Id. at 44. 23 Id. at 45.

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26. The Commonwealth argued transferred intent, but the Court rejected that line of thinking because the Commonwealth never requested a transferred intent instruction: “It might be but it’s not a charge that you asked me to give. It’s not a charge when I was done with the charge that you said, oh, we missed transferred intent.”24 The Court also emphasized the Commonwealth never argued James returned to the bar with the specific intent of killing Kevin Brown: “You didn’t argue in your closing that he came back gunning for Mr. Brown and that that was the intended victim. There was nothing in any of the testimony.”25 27. The Court re-instructed the jury that, to find James guilty of first-degree murder, it had to unanimously find that, when James returned to the bar, he had the specific intent of killing Carl Sharper.26 28. Once re-instructed, the jury returned guilty verdicts for first-degree murder and four counts of aggravated assaulted.27 29. Despite the jury’s verdict, there is insufficient evidence to prove beyond a reasonable doubt that, when James returned to the bar, he did so with the specific intent to kill Carl Sharper.28 The Commonwealth presented no evidence that James specifically targeted anyone, let alone Carl Sharper, when he returned to the bar. The Commonwealth conceded as much during opening statements when the prosecutor described how the shooting played out: Well that’s enough. He leaves the location quickly. Gets a gun. Comes back with a nine-millimeter. Steps in the front door and fires until that gun is empty. He hits the girl, the first witness in this case, Ms. Robinson, who is standing at the bar having a drink. Dancing a little bit. Shot multiple times as he puts the gun into the bar. The victim on the other side of the bar, the murder victim on the other side of the bar. Shot right through the bar.29 30. The testimony of the bar patrons bolsters this point, as each said that, once James entered the bar, he randomly shot at people.30 As does the fact James had never met Carl Sharper and had no idea he would be in the food service area waiting to pick-up his 24

Id. at 45-46. Id. at 46. 26 Id. at 46. 27 Id. at 50-51. 28 James concedes the Commonwealth proved malice, but first-degree murder requires the Commonwealth to prove malice plus specific intent. See Commonwealth v. Ho, 18 A.3d at 1133. If specific intent cannot be proved beyond a reasonable doubt, the appropriate conviction is third-degree murder. See NT, 10/07/2013, at 25 (“As to third degree murder, the malice is not obviously a specific intent to kill. It is the intent to inflict serious bodily injury.”). 29 NT, 10/01/2013, at 80. 30 NT, 10/1/2013, at 91 (Tamatha Robinson), 166-168 (Jerrell Johnson); NT, 10/02/2013, at 42 (Charoletta McKee), 89 (Curtis Aiken); NT, 10/03/2013, at 48 (Russell Kayan), 115 (Albert Saboleh), 239 (Kevin Brown). 25

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takeout order. If James did not know Sharper, and he had no clue Sharper would be at the bar, how could he have possibly formed the requisite premeditation and specific intent to kill him? 31. Additionally, James never said a word during or after the shooting indicating he intended to kill Sharper or anyone else for that matter.31 Furthermore, if James had the specific intent to kill Kevin Brown, his actions did not show it; rather than methodically seeking out Brown once inside the bar, James immediately opened fire, randomly shooting in all directions. While the bullets he fired struck several bar patrons and killed Carl Sharper, his actions do not prove beyond a reasonable doubt he had the specific intent to kill anyone, including Carl Sharper. 32. James concedes the “law does not require a lengthy period of premeditation” and that the “design to kill can be formulated in a fraction of a second.” Commonwealth v. Jordan, 65 A.3d 318, 323 (Pa. 2013). This may be so, but when James haphazardly fired his gun inside the bar, particularly the shot that killed Carl Sharper, he did not premeditate Sharper’s death and he did not have the specific intent to bring about his death. Walking into a crowded bar, especially one James had never been to before,32 and opening fire immediately upon entering without taking inventory of who was at the bar, demonstrates extreme indifference to human life, but it does not prove beyond a reasonable doubt that James specifically intended to bring about a particular person’s death. 33. The Commonwealth, however, believed James acted with specific intent because he used a deadly weapon on a vital part of Carl Sharper’s body: [W]hen you take a deadly weapon and use it on a vital part of the body, you can infer… that the person with that deadly weapon possessed the specific intent to kill… If you possessed a deadly weapon and use it on a vital part of someone’s body, the head, and you fire a bullet directly into someone’s head, then you can infer… that the shoot had the specific intent to kill.33 34. The “specific intent to kill and malice are properly implied when a deadly weapon is directed to a vital part of the body.” Commonwealth v. Austin, 575 A.2d 141, 144 (Pa. Super. 1990) (emphasis in original); accord Commonwealth v. Roberts, 437 A.2d 948, 951-952 (Pa. 1981); Commonwealth v. Carter, 393 A.2d 13, 15 (Pa. 1978); Commonwealth v. Palmer, 292 A.2d 921, 923 (Pa. 1972); Commonwealth v. O’Searo, 352 A.2d 30, 35-36 (Pa. 1976); Commonwealth v. Bricker, 326 A.2d 279, 281 (Pa. 1974). Likewise, “the specific intent necessary for a first degree murder conviction may be inferred from the use of a deadly weapon upon a vital part of the victim’s 31

NT, Suppression Hrg, 06/06/2013, at 68-69, 86-88. NT, 10/03/2013, at 113. 33 NT, 10/01/2013, at 75-76. The prosecutor made the same argument during closing arguments. See NT, 10/04/2013, at 139-140. 32

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body.” Commonwealth v. McAndrews, 430 A.2d 1165, 1166 (Pa. 1981) (emphasis added); accord Commonwealth v. Holzer, 389 A.2d 101, 104 (Pa. 1978); Commonwealth v. Agie, 296 A.2d 741 (Pa. 1972). 35. James does not dispute the principle behind these holdings; what he disputes, is whether the facts in his case fall within the parameters of this principle. He believes they do not, and recent cases his position. See Commonwealth v. Padilla, 2013 WL 5848693 at *2, 5 (Pa., Oct. 31, 2013); Commonwealth v. Bryant, 67 A.3d 716, 722-723 (Pa. 2013); Commonwealth v. Jordan, 65 A.3d 318, 321, 324 (Pa. 2013); Commonwealth v. Thomas, 54 A.3d 332, 335, 336, 338 (Pa. 2012); Commonwealth v. Ho, 18 A.3d 1128, 1131-1132 (Pa. 2011); Commonwealth v. Briggs, 12 A.3d 291, 301, 307 (Pa. 2011); Commonwealth v. Smith, 985 A.2d 886, 896 (Pa. 2009); Commonwealth v. Rega, 933 A.2d 997, 1009-1010 (Pa. 2007); Commonwealth v. DeJeus, 880 A.2d 608, 611613 (Pa. 2005); Commonwealth v. Cruz, 919 A.2d 279, 280, 281 (Pa. Super. 2007); Commonwealth v. Randall, 758 A.2d 669, 675 (Pa. Super. 2000). a. For instance, a specific intent to kill can be inferred when a defendant repeatedly shot the victim(s) at close range in a vital organ. See, e.g., Commonwealth v. Padilla, 2013 WL 5848693 at *2, 5 (defendant shot three victims, killing all three; one victim was shot thrice another was shot four times); Commonwealth v. Bryant, 67 A.3d at 722-723 (victim shot “multiple” times at close range in back seat of car); Commonwealth v. Thomas, 54 A.3d at 335, 336, 338 (victim shot four times); Commonwealth v. Ho, 18 A.3d at 1131-1132 (victim police officer shot twice at close range); Commonwealth v. Briggs, 12 A.3d 291, at 307 (two police officers shot twice at close range); Commonwealth v. Smith, 985 A.2d at 896 (victim shot seven times); Commonwealth v. Rega, 933 A.2d at 1009-1010 (victim shot three times in head); Commonwealth v. Randall, 758 A.2d at 675 (victim shot three times). b. Similarly, a specific intent to kill can be inferred when the defendant uses a firearm against law enforcement officers at close range to evade arrest. See, e.g., Commonwealth v. Jordan, 65 A.3d at 321, 324 (defendant shot police officer in forehead at close range to evade arrest after the officer confronted him during a robbery); Commonwealth v. Ho, 18 A.3d at 1131-1132 (defendant shot police officer in head and abdomen at close range as officer tried to take him into custody for failing to appear for his rape trial); Commonwealth v. Briggs, 12 A.3d at 301, 307 (defendant shot two police officers twice, in the head and abdomen, as they tried serving an arrest warrant on him). Likewise, a specific intent to kill can be inferred when the defendant shoots the victim multiple times at close range to evade detection. See Commonwealth v. Rega, 933 A.2d at 1009-1010 (defendant shot victim three times in the head after he and his co-defendants botched an attempted robbery). c. A specific intent to kill can also be inferred in the murder-for-hire context, i.e., where the defendant is compensated to shoot and kill a particular person or persons. See, e.g., Commonwealth v. Bryant, 67 A.3d at 722-723 (defendant shot Commonwealth v. Wayne James

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two victims, one being Chanta Wright, multiple times at close range in the back seat of a car at the behest of defendant’s friend, Hakeem Bey, to prevent Wright from testifying at Bey’s murder trial); Commonwealth v. Thomas, 54 A.3d at 335, 336, 338 (defendant shot the victim at the behest of defendant’s friend, Kareem Glass, because the victim identified Glass as the individual responsible for the shooting death of victim’s cousin, Tyreek Gaymon, in 2004). d. Lastly, a specific intent to kill can be inferred when there is evidence the defendant/shooter sought out the victim. See, .e.g., Commonwealth v. DeJeus, 880 A.2d at 611-613 (defendant had an ongoing dispute with Capone, and when defendant believed he spotted Capone, he grabbed his AK-47, raced to the top of his apartment building, and repeatedly fired at the individual he believed to be Capone; the victim, unfortunately, was not Capone); Commonwealth v. Cruz, 919 A.2d at 280, 281 (defendant and victim agreed to a fist fight at a local 7-11, but during the fight defendant grabbed a gun, chased the victim down, and shot him at close range in the back). 36. Here, James: (1) did not shoot Carl Sharper multiple times at close range; (2) did not shoot Sharper to evade arrest; (3) did not seek out Sharper before shooting him; and (4) was not compensated for shooting Sharper. Thus, despite the fact James shot Sharper in the forehead, the circumstances leading to the shooting fail to demonstrate that James premeditated Sharper’s death or that he had the specific intent to kill Shaper.34 37. James may have had the specific intent to seriously harm bar patrons, but intending to inflict serious injuries is much different than acting with premeditation and a specific intent to kill. Here, the weight of the evidence, as it relates to Carl Sharper’s death, s third-degree murder, not first-degree, because the facts a finding of malice, but not specific intent. Here, James acted with “gross recklessness,” Commonwealth v. Malone, 47 A.2d 445, 447 (Pa. 1946), because firing into a crowded bar plainly demonstrates “extreme indifference to the value of human life.” Commonwealth v. Taylor, 337 A.2d 545, 548 (Pa. 1975).

34

The transferred intent doctrine is inapplicable here because the Commonwealth failed to prove James returned to the bar with the specific intent of killing anyone, let alone Carl Sharper. Indeed, the Court explained the transferred intent doctrine to James early on during the trial: It’s when a particular individual is killed… That you killed him. And that you did so with the specific intent to kill. There is nothing in the law that requires that I specifically intend to kill the person who is killed. So right now I closed my eye and pulled out a gun and started shooting and I hit you directly in the forehead… and you dropped down dead… So if you intended to kill the bouncer… and you ended up killing Mr. Sharper, that intent followed the bullet. So it doesn’t matter who you killed if it was you. NT, 10/01/2013, at 204-205.

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B. Motion For New Sentencing Hearing James LWOP Sentence Violates State and Federal Law Because, Pursuant To 18 Pa.C.S. §1102, The Court Has No Discretion To Consider Mitigating Evidence Calling For a Sentence Less Than LWOP, Despite the Fact an LWOP Sentence is Equivalent to a Death Sentence. U.S. Const. Amends. V, VI, VIII, & XIV; Pa. Const., Art. 1, §§8, 9, 13. 38. Pursuant to 18 Pa.C.S. §1102, a person convicted of first-degree murder “shall” be sentenced to LWOP. The Court, as a result, had no discretion to sentence James to anything but LWOP.35 An LWOP sentence, however, is equivalent to a death sentence because James will die in prison: As for the punishment, life without parole is ‘the second most severe penalty permitted by law.’ It is true that a death sentence is ‘unique in its severity and irrevocability,’; yet life without parole sentences share some characteristics with death sentences that are shared by no other sentences. The State does not execute the offender sentenced to life without parole, but the sentence alters the offender’s life by a forfeiture that is irrevocable. It deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency— the remote possibility of which does not mitigate the harshness of the sentence. As one court observed… this sentence ‘means denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of [the convict], he will remain in prison for the rest of his days. Graham v. Florida, 130 S.Ct. 2011, 2027 (2010); accord Miller v. Alabama, 132 S.Ct. 2455, 2463 (2012) (“Graham further likened life without parole… to the death penalty itself[.]”). 39. In other words, first-degree murder in Pennsylvania brings about an automatic death sentence, regardless of the circumstances of the offense and the defendant’s social history. The U.S. Supreme Court outlawed automatic death sentences in Woodson v. North Carolina, 428 U.S. 280, 303 (1976), and reaffirmed Woodson’s holding in Sumner v. Shuman, 483 U.S. 66, 74–76 (1987). Subsequent decisions have elaborated on the requirement that defendants who face a potential sentence where their life will surely end in prison, must be afforded the opportunity to advance, and the judge or jury a chance to assess, any mitigating factors, so that the “most severe punishment,” Miller v. Alabama, 132 S.Ct. 2466, is reserved only for the most culpable defendants committing the most serious offenses. See, e.g., Abdul-Kabir v. Quarterman, 127 S.Ct.

35

NT, 10/07/2013, at 55-56 (“There is no real benefit to be gained by ordering a presentence report since it is a mandatory sentence of life imprisonment which I am required to impose.”).

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1654, 1664-1670 (2007); Eddings v. Oklahoma, 455 U.S. 104, 110–112 (1982); Lockett v. Ohio, 438 U.S., 586, 597–609 (1978). 40. That James could not present, and the Court (or jury) could not consider, mitigating circumstances regarding the offense or James’ social history, renders 18 Pa.C.S. §1102 as well as James’ LWOP sentence unconstitutional. See U.S. Const. Amends. V, VI, VIII, & XIV; Pa. Const., Art. 1, §§8, 9, 13. 41. If James’ first-degree murder conviction stands,36 he is entitled to a new sentencing hearing where he can present mitigating evidence calling for a sentence less than LWOP (i.e., death). C.

Motion For A New Trial

The Court Erred When It Concluded The Police Had Probable Cause To Arrest James On July 28, 2011. U.S. Const. Amends. IV, XIV; Pa. Const., Art. 1, §§ 8, 9. 42. Following the shooting, the police interviewed twelve people who witnessed the shooting, none of whom identified or named James as the shooter.37 43. On July 27, 2011, the day after the shooting, police released the bar surveillance video, which captured the shooting, to the local media.38 44. On the night of July 27, 2011, between 8 and 8:30 p.m., Leonard Waysone approached two police officers on a North Philadelphia street corner and said he saw the video on the news and thought the shooter looked like his cousin–Wayne James.39 Likewise, shortly before Waysone approached police, an anonymous caller ed the police and said the shooter’s name was Wayne James and that James lived at 1114 Wagner Street.40 45. After receiving these tips, police did not re-interview the bar patrons who witnessed the shooting and have them view a photo array with James’ photograph to determine if any could possibly identify him as the shooter.41 46. Based on Waysome’s and the anonymous caller’s tips, Detective Williams Holmes–the lead investigator–prepared a search warrant for 1114 Wagner,42 but not an arrest warrant for James.43 Likewise, based on this information, Detective Holmes tasked

36

Which it should not because James’ conduct warrants third-degree murder, not first-degree. NT, Suppression Hrg, 06/06/2013, at 73. 38 Id. at 74. 39 Id. at 13, 15. 40 Id. at 24. 41 Id. at 73. 42 Id. at 63, 83. 43 Id. at 40, 83. 37

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Detective Derrick Jacobs with surveying 1114 Wagner Street during the early morning hours of June 28, 2011.44 47. After surveying 1114 Wagner Street for a short period, Detective Jacobs spotted James when he parked and exited a silver Suzuki near 1114 Wagner and then entered 1114 Wagner Street.45 Detective Jacobs relayed this information to Detective Holmes who was still in the process of completing the search warrant application, but not an arrest warrant.46 48. A few hours later, at 8:00 a.m., Detective Holmes executed the search warrant with the Homicide Fugitive Task Force and U.S. Marshalls.47 As they executed the search warrant, they arrested James,48 placed him in a police cruiser, and transported him to the Homicide Division for questioning.49 49. Later in the day, the District Attorney’s Office approved the charges against James.50 50. When James moved to throw out his arrest, because the police lacked probable cause, the Court held a suppression hearing on June 6, 2013. At the hearing’s conclusion, the Court said the police had probable cause to arrest James.51 The Court erred. 51. The probable cause standard is met when, at the moment of arrest, the facts and circumstances within the arresting officer’s knowledge, and of which he or she has reasonably trustworthy information, were sufficient to warrant a prudent person in believing that the person arrested had committed an offense. See Florida v. Harris, 133 S. Ct. 1050, 1055 (2013) (listing cases defining “probable cause”); Commonwealth v. Rogers, 849 A.2d 1185, 1192 (Pa. 2004). In evaluating whether the Commonwealth has met this standard, courts examine the “totality of the circumstances.” See, e.g., Maryland v. Pringle, 540 US 366, 371 (2003); Illinois v. Gates, 462 U.S. 213, 232 (1983); Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985).52 Moreover, because the Commonwealth did not obtain an arrest warrant, probable cause must have existed prior to James’ arrest. See Commonwealth v. Evans, 685 A.2d 535, 537 (Pa. 1998). In other words, hindsight cannot supply probable cause that was lacking at the time of his arrest.

44

Id. at 34-35, 57. Id. at 37. 46 Id. at 35. 47 Id. at 41. 48 The Commonwealth conceded James was not free to go when authorities executed the search warrant. See id. at 50. 49 Id. at 64. 50 Id. at 70. 51 NT, Suppression Hrg., 06/06/2013, at 102. 52 “The protection against unreasonable searches and seizures afforded by the Pennsylvania Constitution is broader than that under the federal Constitution.” Commonwealth v. Jackson, 698 A.2d 571, 573 (Pa. 1997); Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991). 45

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52. Here, based on the information the police had before arresting James, no person of reasonable caution would belief James was the shooter simply because Waysone and one anonymous caller alleged that James looked like the shooter. 53. When the source of the information is an anonymous call, that presents with no or few indicia of reliability, courts have recognized that such tips should be treated with “particular suspicion.” Commonwealth v. Jackson, 698 A.2d 571, 573 (Pa. 1997); Adams v. Williams, 407 U.S. 143, 146–147 (1972); Cf. Commonwealth v. Anderson, 392 A.2d 1298, 1300 (Pa. 1978); Commonwealth v. Kue, 692 A.2d 1076, 1078 (Pa. 1997); Commonwealth v. Hawkins, 692 A.2d 1068, 1070 (Pa. 1997). Indeed, the anonymous calls in Anderson, Kue, and Hawkins, standing alone, did not provide adequate justification for a Terry-stop based on the (lower) reasonable suspicion threshold. 54. The U.S. Supreme Court in Alabama v. White, for instance, “recognized that an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity inasmuch as ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations and given that the veracity of persons supplying anonymous tips is ‘by hypothesis largely unknown, and unknowable.’” 496 U.S. 325, 329 (1990) (quoting Illinois v. Gates, 462 U.S. at 237); accord Florida v. J.L., 529 U.S. 266, 270 (2000) (“Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity”) (quotations and citations omitted); Adams v. Williams, 407 U.S. at 147 (“Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized”). 55. Although reasonable suspicion cases, Anderson, Kue, and Hawkins are applicable here. In each case, the police had no “independent reason,” outside the anonymous calls, to believe the arrestee may have been involved in criminal activity. See Commonwealth v. Kue, 692 A.2d at 1078; Commonwealth v. Hawkins, 692 A.2d at 1070. In other words, before acting on an anonymous tip containing no indicia of reliability, the police must conduct their own investigation to develop evidence corroborating the caller’s statement(s)/allegation(s). See Commonwealth v. Carlisle, 501 A.2d 664, 666 (Pa. Super. 1985), aff’d 534 A.2d 469 (Pa. 1987) (“[A] ‘tip’ from an unnamed informant can properly form the basis for probable cause, provided there is adequate evidence of the informant’s credibility.”); Commonwealth v. Miller, 483 A.2d 498, 501 (Pa. Super. 1984). In the probable cause context, more importantly, the independent evidence must give a reasonably cautious investigator the belief that the person he or she intends to arrest committed a criminal offense. See Florida v. Harris, 133 S. Ct. at 1055. 56. Here, the caller provided no verifiable information as to how and why he knew or suspected James to be the shooter. See Florida v. J.L., 529 U.S. at 271 (finding that anonymous tip did not establish reasonable suspicion because the caller “provided no predictive information and therefore left the police without means to test the informant's Commonwealth v. Wayne James

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knowledge or credibility.”).53 For instance, there is no evidence the caller ever saw the video on any of the local news outlets. Likewise, he (or she) did not mention they were at the bar and witnessed the shooting. Lastly, for all we know, Waysone could have been the anonymous caller; it is plausible Waysone called in the anonymous tip at 8:00 p.m. on June 28, 2011, and shortly thereafter approached Officer Switaj and his partner to voice his suspicion in person. If this is true, and it very well may be, the supposed collective and corroborative impact of Waynsone’s statement and the anonymous call is a mirage. 57. Regardless of whether Waysone is the anonymous caller or not, the lack of verifiable information regarding the caller and the basis for his or her belief that James was the shooter, renders the caller and the information he or she provided unreliable, unless, of course, the police conducted their own investigation and developed independent evidence implicating James in the Genesis bar. See, e.g., Florida v. J.L., 529 U.S. at 271; Alabama v. White, 496 U.S. at 330 (“Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.”). 58. That Waysone and the anonymous caller provided the correct address and description of the Black Volvo proves nothing; it merely shows Waysone and the caller are familiar with James’ address and vehicle, but these facts are irrelevant as to whether James actually committed the shooting. In other words, while these facts may have been accurate, they failed to create a nexus between James and the shooting. 59. Likewise, that Waysone said he was James’ cousin does not change the analysis. a. First, there is no evidence the police attempted to the familial relationship between James and Waysone. For all we know, Waysone could have been enemies and Waysone wanted to falsely implicate James in the shooting. The police took Waysone’s word hook, line, and sinker without conducting any sort of investigation as to his alleged familial connection to James. b. Second, Waysone’s statement–that the shooter looked like James–was nothing other than mere speculation and conjecture, see Commonwealth v. Torres, 764 A.2d 532, 540 (Pa. 2001), that required additional investigation to transform it into a reliable piece of information that could form the foundation of a probable cause. 60. The police, however, conducted no investigation whatsoever, and as a result, did not develop independent evidence implicating James in the shooting. The police, for instance, could have easily presented photo arrays to the twelve bar patrons and employees who witnessed the shooting to see if any could identify James as the shooter. Likewise, they could have wired Waysone and had him strike up a conversation with James to see if he (James) would implicate himself in the shooting. The police did neither. 53

Id. at 30-32.

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61. Instead, within hours of learning of James’ name and address, the police went to 1114 Wagner Street with a search warrant and arrested him. Notably, when James exited the silver Suzuki and walked into the 1114 Wagner Street residence, he was not engaged in any sort of criminal activity. See Commonwealth v. Anderson, 392 A.2d at 1301 (“Moreover, there was nothing observable in his conduct in the officers’ presence to suggest that he was in anyway involved in criminal activity or that he was the person they were seeking. In fact the only basis for the officers’ belief that a crime had occurred rested upon unverified information supplied by the unidentified informer.”). Observing someone exit a vehicle and enter a residence, that is presumably his, can hardly be considered the type of investigation needed to develop independent evidence implicating that person in a crime, particularly a homicide. Thus, once James entered his residence, the quantity and quality of information the police had on him remained the same: all they knew was Waysone and an anonymous caller thought James looked like the shooter. See United States v. Cortez, 449 U.S. 411, 417, (1981) (holding that both factors—quantity and quality—are considered in the totality of the circumstances analysis). These facts, standing alone, were insufficient to establish probable cause, especially when acknowledges the unreliability of eyewitness identification. 62. In short, the police lacked probable cause to arrest James. Prayer For Relief 63. WHEREFORE, James respectfully prays for the following relief: a. His first-degree murder conviction be vacated due to insufficient evidence proving beyond a reasonable doubt that he acted with specific intent when he fired the bullet that killed Carl Sharper. b. If his first-degree murder conviction is not vacated, he requests a new sentencing hearing so he may develop and introduce mitigation evidence calling for a sentence less than LWOP (i.e., death). c. That his conviction be quashed because the police lacked probable cause when they arrested him on June 28, 2011. d. Any other relief the Court deems fit in the interest of justice.54

54

The Court should note counsel withdrew three claims raised in James’ initial PSM: (1) there was insufficient evidence warranting James’ aggravated assault convictions; (2) James did not knowingly and voluntarily waive his right to counsel; and (3) the Court’s LWOP and aggravated assault sentences were excessive. After reviewing the record and transcripts, counsel concluded these issues were meritless prompting him to drop them from the Amended PSM.

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Respectfully submitted this the 23rd day of January, 2014

Cooley Law Office 1528 Walnut Street, Ste. 1902 Philadelphia, PA 19102 Pa. Bar. No. 315673 773-620-7610 [email protected] www.pa-criminal-appeals.com Date Mailed: January 21, 2014

Certificate of Service On January 21, 2014, undersigned counsel served (via U.S. mail) a copy of the aforementioned motion to: Philadelphia County District Attorney’s Office Attn: ADA Brendan O’Malley 3 South Penn Square Philadelphia, PA 19107 /s/Craig M. Cooley Craig M. Cooley Cooley Law Office 1528 Walnut Street, Ste. 1902 Philadelphia, PA 19102 Pa. Bar. No. 315673 773-620-7610 [email protected]

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