PA Supreme Court: “Two or More Convictions” Must Stem From Multiple Acts & Convictions to Trigger Lifetime Registration Requirement

Section 9799.14 of Pennsylvania's sex offender registration laws classifies the State's sexual offenses into three tiers: Tier 1 requiring a 15-year registration period, Tier 2 requiring a 25-year registration period, and Tier III requiring lifetime registration. Included under the Tier 3 designation is 9799.14(d)(16), which states:

"Two or more convictions of offenses listed as Tier I or Tier II sexual offenses."

On appeal, the PA Supreme Court in Commonwealth v. Gehris, 54 A.3d 862 (Pa. 2012) was tasked with deciding whether this statute meant that a person should be required to register for life if he or she was convicted of multiple Tier 1 or Tier II offenses arising from a single act and prosecution. Prior to this undertaking, the Superior Court ruled that the above language is unambiguous, and therefore a person in such a circumstance should indeed be required to register for life. Unfortunately, the PA Supreme Court in Gehris was evenly divided, and therefore the ruling of the Superior Court was affirmed.

Fortunately the PA Supreme Court in Commonwealth v. Lutz-Morrison revisited the issue, and yesterday (8-15-2016) came to a logical decision:  

"It is enough to note we hold that Section 9799.14, considered in the context of the statutory language as a whole, is susceptible to two reasonable constructions, and the statute, which sets forth a graduated (three-tier) scheme of registration, encompasses a recidivist philosophy. As such, the statute requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses otherwise subject to a fifteen- or twenty-five-year period of registration."

It's important to note that the same general ruling was made with respect to the “two or more convictions” language included in Megan's Law II (pre-SORNA). See A.S. v. Pa. State Police, 24 MAP 2014, J-36-2016 (Pa. filed Aug. 15, 2016):

"In accordance with the Gehris Opinion in Support of Reversal (OISR), as supplemented by our analysis below, we hold the provision, considered in the context of the statutory language as a whole, is amenable to two reasonable constructions; and we further hold the statute, which sets forth a graduated scheme of registration, encompasses a recidivist philosophy.2 We therefore conclude the statute requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses otherwise triggering a ten-year period of registration."

"Fourth and finally, and returning to the subject of predicate ambiguity, we note there is some validity in the point made in the dissent below that it would be absurd and unreasonable if a single act, giving rise to a single prosecution yielding two convictions for overlapping predicate offenses, subjected an offender to lifetime registration. In conclusion, we hold the statute requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses otherwise triggering a ten-year period of registration. Accordingly, the award of mandamus relief is hereby affirmed." 

CONCLUSION

Please note that our firm does not handle registration issues. If you believe that this case could afford you legal relief, please contact a local attorney. For those in the Pittsburgh area, you might contact the Law Offices of David J. Shrager.

DISCLAIMER

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Posted in SORNA |
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PA’s Tender Years Hearsay Act versus the 6th Amendment

A Trial Without Testimony

Constitutional_RightsIn a previous blog titled "Right To Confrontation is Sexual Abuse Cases", we discussed how the Crawford case strengthened one's right to confront his or her accuser during the criminal court process. Prior to this ruling, prosecutors relied upon the Roberts case to have out-of-court hearsay statements admitted at trial in lieu of live testimony, so therefore a defendant could be convicted without ever having an opportunity to have his or her lawyer cross examine the accuser.

Of course, in order for this to happen, the out-of-court statements first had to be admitted via a hearsay exception rule, such as Pennsylvania's Tender Years Hearsay Act (42 Pa.C.S. § 5985.1).  This particular hearsay exception allows out-of-court statements made by individuals 12 years of age or less to be entered into evidence under certain conditions. In order for the State to have such statements admitted into evidence in lieu of live testimony, the trial court had to find that a) the statements were relevant and reliable, and b) that the child was "unavailable" as a witness.  If such determinations were made, the out-of-court statements were admitted into evidence and the defendant would go to trial without the opportunity to have his or lawyer cross examine the child witness.

Crawford Changes Things

Unfortunately at that time, a 6th amendment confrontation challenge would have failed because the Roberts case gave no protection against the above described method – as long as a court determined that the out-of-court statements had adequate "indicia of reliability", and that the declarant was "unavailable", a confrontation challenge would fail under Roberts. However in 2004, approximately 24 years after the Roberts case was decided, the Crawford decision overruled the Roberts decision and changed the landscape – the U.S. Supreme Court ruled that, regardless of a finding of adequate "indicia of reliability", any out-of-court statement that is testimonial in nature is not admissible unless the defendant has had a full and fair opportunity to cross examine the declarant regarding these statements AND the declarant is unavailable as a witness. Therefore, even if the child witness (declarant) was deemed unavailable as a witness and his or her statements were deemed reliable, the statements could not be used at trial as a substitute for live testimony unless the defendant (defendant's attorney) had a previous opportunity to cross examine the child witness.

Prosecutors Dismantle Crawford's Protection

Since then, however, prosecutors have been finding ways to work around this prosecutorial "road block."  They focused in on the fact that the Crawford decision only grants confrontation rights in cases where the out-of-court statements are "testimonial" in nature. Therefore, if a court rules that the desired out-of-court statements are non-testimonial, the Crawford decision does not preclude these statements from being used at trial in lieu of live testimony. Unfortunately, the Crawford case gave little guidance as to how a statement should be analyzed to determine whether it is testimonial or non-testimonial.

Testimonial versus Non-Testimonial

Over the years, various courts have struggled to firmly define these words. In 2015 the U.S. Supreme Court (Ohio v. Clark, 135 S. Ct. 2173 (U.S. 2015)) summarized its prior analyses of testimonial versus non-testimonial, which were made in Davis v. Washington, 547 U.S. 813 (U.S. 2006) and Michigan v. Bryant, 562 U.S. 344 (U.S. 2011):

"We held that the statements in Hammon were testimonial, while the statements in Davis were not. Announcing what has come to be known as the “primary purpose” test, we explained: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”  Because the cases involved statements to law enforcement officers, we reserved the question whether similar statements to individuals other than law enforcement officers would raise similar issues under the Confrontation Clause.

In Michigan v. Bryant, 562 U.S. 344, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011), we further expounded on the primary purpose test. The inquiry, we emphasized, must consider “all of the relevant circumstances.”  And we reiterated our view in Davis that, when “the primary purpose of an interrogation is to respond to an ‘ongoing emergency,’ its purpose is not to create a record for trial and thus is not within the scope of the [Confrontation] Clause.”  At the same time, we noted that “there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony.” “[T]he existence vel non of an ongoing emergency is not the touchstone of the testimonial inquiry.” Instead, “whether an ongoing emergency exists is simply one factor . . . that informs the ultimate inquiry regarding the ‘primary purpose’ of an interrogation.”

One additional factor is “the informality of the situation and the interrogation.”  A “formal station-house interrogation,” like the questioning in Crawford, is more likely to provoke testimonial statements, while less formal questioning is less likely to reflect a primary purpose aimed at obtaining testimonial evidence against the accused.  And in determining whether a statement is testimonial, “standard rules of hearsay, designed to identify some statements as reliable, will be relevant.”  In the end, the question is whether, in light of all the circumstances, viewed objectively, the “primary purpose” of the conversation was to “creat[e] an out-of-court substitute for trial testimony.” 

Of particular importance from the Bryant case is the following statement, which suggests that statements, while initially "non-testimoninal" in nature, can evolve into "testimomnial" statements as the scope of the questioning changes:

"a conversation which begins as an interrogation to determine the need for emergency assistance" may "evolve into testimonial statements."

We also suggest reading the Pennsylvania Supreme Court's decisions in In re N.C., 105 A.3d 1199 (Pa. 2014) and Commonwealth v. Allshouse, 614 Pa. 229 (Pa. 2012). For defense attorneys, it is critical to gain a thorough understanding of the above analyses. Undoubtedly, prosecutors will attempt to bypass defendants' 6th amendment rights and convict using only non-testimonial out-of-court statements. They can legally accomplish this without violating the Crawford ruling; however, they still need to meet the requirements of the hearsay exception used to admit the statements into evidence. In Pennsylvania, the most commonly used exception is the Tender Year's Hearsay Act (42 Pa.C.S. § 5985.1).

Pennsylvania's Tender Years Hearsay Act (TYHA)

Pennsylvania's Tender Year's Hearsay Act (42 Pa.C.S. § 5985.1) is as follows:

(a)  General rule. — An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing any of the offenses enumerated in 18 Pa.C.S. Chs. 25 (relating to criminal homicide), 27 (relating to assault), 29 (relating to kidnapping), 31 (relating to sexual offenses), 35 (relating to burglary and other criminal intrusion) and 37 (relating to robbery), not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if:

(1)  the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and

(2)  the child either:

(i)  testifies at the proceeding; or

(ii)  is unavailable as a witness.

(a.1)  Emotional distress. — In order to make a finding under subsection (a)(2)(ii) that the child is unavailable as a witness, the court must determine, based on evidence presented to it, that testimony by the child as a witness will result in the child suffering serious emotional distress that would substantially impair the child’s ability to reasonably communicate. In making this determination, the court may do all of the following:

(1)  Observe and question the child, either inside or outside the courtroom.

(2)  Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child in a medical or therapeutic setting.

(a.2)  Counsel and confrontation. — If the court hears testimony in connection with making a finding under subsection (a)(2)(ii), all of the following apply:

(1)  Except as provided in paragraph (2), the defendant, the attorney for the defendant and the attorney for the Commonwealth or, in the case of a civil proceeding, the attorney for the plaintiff has the right to be present.

(2)  If the court observes or questions the child, the court shall not permit the defendant to be present.

(b)  Notice required. — A statement otherwise admissible under subsection (a) shall not be received into evidence unless the proponent of the statement notifies the adverse party of the proponent’s intention to offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence to provide the adverse party with a fair opportunity to prepare to meet the statement.

Pennsylvania's Tender Years Hearsay Act Combined with Dismantled Crawford

As previously mentioned, it the State wishes to admit out-of-court, non-testimonial statements made by a child in lieu of live testimony, it can do so without violating the defendant's 6th amendment right to confrontation. However, the State must first meet the requirements of the hearsay exception, which for purposes of this discussion will be Pennsylvania's Tender Year's Hearsay Act. To meet the requirements, prosecutors must establish that a) the statements are relevant and reliable, and b) that the child witness is "unavailable" as a witness.

In order to find that the statements are relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability, the PA Superior Court in Commonwealth v. Walter, 625 Pa. 522 (Pa. 2014) stated:

"In determining whether out-of-court statements of a child contain "particularized guarantees of trustworthiness surrounding the circumstances under which the statements were uttered to the person who is testifying," Delbridge, 855 A.2d at 45 [Attorney Tom Pavlinic’s case], and, therefore, are admissible under the TYHA, the focus is on the truthfulness of the statements, which is assessed by considering the spontaneity of the statements; the consistency in repetition; the mental state of the child; the use of terms unexpected in children of that age; and the lack of a motive to fabricate." 

It is important that attorneys understand that there is a clear legal distinction between competency and reliability, and therefore do not blend PA Rule 601 with 42 Pa.C.S. § 5985.1(a)(1) – the Court in Walter made clear that a child witness does not have to be declared competent to testify in order for his or her statement to meet the requirements 42 Pa.C.S. § 5985.1(a)(1):

"..we hold that a child need not be deemed competent to testify as a witness in order for the trial court to admit the child's out-of-court statements into evidence pursuant to the TYHA. "

Conclusion

In order to assure that a defendant receives a fair trial, it's imperative that his or her attorney stays current with recent rulings regarding the aforementioned issues. This article underscores the importance of hiring lawyer who has ample experience in the area of sex crimes defense. If this article is relevant to your case, or to the case of a loved one, please visit our Pennsylvania website page and/or contact our office immediately.

Disclaimer

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Posted in 6th Amendment Issues, Hearsay Exceptions |
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Tom Speaks Regarding Sex Crimes Defense at 2015 TN National Association of Criminal Defense Lawyers Conference

After over 40 years of experience as a criminal defense attorney, with the last 22 focusing exclusively on sex crimes defense, Attorney Tom Pavlinic shares his experiences and advice with fellow criminal lawyers at the 2015 TN National Association of Criminal Defense Lawyers conference.

Posted in Criminal Procedure |
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“On or About” in Texas Sex Crime Indictments

Being accused of a sex crime against a child is perhaps the most difficult accusation to defend yourself against in a court of law. We know that children and teens make false accusations – there are often stories in the news wherein the accusers later recant their stories, or DNA evidence exonerates the accused. Nevertheless, jurys often have a difficult time trying to understand why children or teens would fabricate such stories, and this mandates defendants to prove their innocence.

Proving Something Didn't Happen Numerous Years Ago

Defending yourself against allegations of sexual conduct that took place numerous years ago adds another layer of difficulty. You are tasked with proving that something DIDN'T happen, and quite often face numerous obstacles such as 1) deceased witnesses, 2) the inability to collect physical evidence, 3) the inability to interview the accuser at the time the allegations were made, and 4) faded memories. In such cases, the only evidence that you might be able to offer to the jury is your own statement denying that the conduct occurred. Having said that, you might be wondering about using where you were when the crime was alleged to have occurred as evidence. Well, because of the "on or about" language used in Texas indictments, using that evidence can be an impossibility.

Proving Where You Weren't "On or About"

When multiple instances of sexual conduct are alleged to have occurred numerous years ago, Texas does not expect the accusers to recollect the exact dates, or even months and years when the conduct allegedly occurred. Logically, it may be true that accusers sometimes cannot recall specific dates or specific instances, but how is one to defend himself if the State cannot even tie the alleged conduct to a date or specific instance (.e.g., a party)?

A typical Texas indictment may read something like this: "The defendant did engage in sexual intercourse with the victim on or about December 17, 2000." To a lay person, "on or about" would perhaps mean a couple of days, or even within a week.  Even if this were the legal definition, you would be tasked with proving your whereabouts during each of the days which were 15 years ago. This however, would be a luxury compared to what you really are tasked with under current Texas law.

The legal definition of "on or about" is construed to mean the following [Mireles v. State, 901 S.W.2d 458 (Tex. Crim. App. 1995) citing Abston v. State, 158 Tex. Crim. 88 (Tex. Crim. App. 1952)]:

"the State may prove that an offense was committed before, on, or after the date alleged in the information, so long as the date is anterior to the presentment of the information and not barred by limitation"

Tex. Code Crim. Proc. art. 21.02(6) provides:

"The time mentioned must be some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation."

This creates a nightmare for defense counsel as well as for the accused. Here is an example of how this works:

  1. the accuser alleges that she was sexually assaulted at least 20 times from 1997 to 2000
  2. the State charges the defendant with 20 counts of sexual assault of a child using arbitrary time frames with the "on or about" language
  3. during her testimony, the accuser gives no specific dates or instances that the defendant can challenge
  4. the jury is sent out to begin deliberations, and while it believes beyond a reasonable doubt that the defendant did have sexual intercourse with the accuser, it is unable to tie the alleged conduct to any specific timeframe in the indictment
  5. the jury reads the legal definition of "on or about", and learns that it means any time before the indictment was filed as long as the statute of limitation had not expired
  6. believing that it occurred at least once, the jury has no reason to believe that it did not happen 20 times, so they enter GUILTY verdicts for all counts
  7. although sentences arising from a single criminal episode are required to be concurrent, there is an exception for sexual offenses against a child, so the judge sentences the defendant consecutively for each count

Ever-Changing Statute of Limitation

At this point you might be wondering as to why the statute of limitation had not expired in this theoretical situation. The answer is because the clock for the statute of limitation resets each time the statute of limitation is amended under law, as long as the statute of limitation prior to that amendment has not expired (see Phillips v. State, 362 S.W.3d 606 (Tex. Crim. App. 2011).

"Texas courts have upheld the constitutionality of extending an unexpired criminal statute of limitations. Thus, a statute oflimitations may be extended by the legislature, but a prosecution within the new time period will be permitted only if the limitations period had not already run before the law was changed."

For example, let's say a crime was alleged to have occurred in April 1990 when the accuser was 8, and at that time the statute of limitation (SOL) for that crime was 10 years. Then in 1998 an amendment was made that change the SOL to 10 years after the 18th birthday of the victim. In 1998, prior to the amendment, the SOL was two years away, but because that SOL had not expired PRIOR to the amendment, the new SOL would now be 2010 (victim would be 18 in year 2000, and ten years after that birthday would be 2010.)  Furthermore, because there apparently is no need for the accuser to tie alleged conduct to a specific date or instance, the SOL could be intentionally avoided by the State simply by framing the indictment within the SOL.

Fuel for False Convictions

The aforementioned is just a taste of what someone faces when accused of committing a sex crime numerous years ago. Many of these laws have been fueled by public outcry to protect children, but in fact people are ignoring that these laws undoubtedly are fueling false convictions. Currently, Texas has no statute of limitation for sex crimes against a child. Imagine being falsely accused of such a crime and trying to defend yourself 20 years later. What evidence would you have? If you find yourself in this position, you MUST hire a lawyer with decades of experience in sex crimes defense. If you would like to speak with attorney Tom Pavlinic about your case, visit our Texas sex crimes defense website page to learn more or call him today for a free consultation.
 

Disclaimer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Posted in Criminal Procedure, Trials |
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Child Pornography Laws in Pennsylvania

iStock_000004232195SmallA conviction for a child pornography offense in Pennsylvania can lead to a severe prison sentence. The production of such pornography yields the most severe penalties (F2), followed by the dissemination of it (F3), and the possession of it (F3).  However, viewing it is also a felony of the 3rd degree. Below are some quick facts about the laws regarding these crimes, followed by the criminal statutes.

Quick Facts About Pennsylvania's Child Porn Laws

  1. The legal age of sexual consent in Pennsylvania is 16, which means that a 16-year-old can legally have consensual intercourse with anyone above the age of 16, despite the age gap. However, if anyone photographs or video records a person under the age of 18 engaged in a prohibited sex act (see statutes below for definition), he or she is committing a felony of the 2nd degree. (§6312(b)).
     
  2. In order for someone to be found guilty of viewing child pornography, the viewing must have been "deliberate, purposeful".  An accidental viewing of suspected child pornography is not punishable under §6312. (See definitions under §6312(g) below). 
     
  3. Not all nude images of persons under the age of 18 are considered to be child pornography. Such images are considered illegal "only when depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction." (See definitions under §6312(g) below; see also Commonwealth v. Davidson, 595 Pa. 1 (Pa. 2007)).
     
  4. Each image of child pornography constitutes a separate offense and does not implicate double jeopardy. (Commonwealth v. Davidson, 595 Pa. 1 (Pa. 2007); Commonwealth v. Baker, 621 Pa. 401 (Pa. 2013)).
     
  5. "Proof of age, like proof of any other material fact, can be accomplished by the use of either direct or circumstantial evidence, or both. The proof necessary to satisfy the element of age in a dissemination or possession of child pornography case is not limited to expert opinion testimony." (Commonwealth v. Robertson-Dewar, 2003 PA Super 280, P11 (Pa. Super. Ct. 2003)).
     
  6. Without consent, the searching of one's computer or cell phone is illegal without a search warrant. There are few exceptions to this. (Commonwealth v. Stem, 96 A.3d 407 (Pa. Super. Ct. 2014)).
     
  7. Law enforcement agents can ascertain, via peer-to-peer networks (e.g., Limewire, Gnutella) whether an individual is sharing child pornography on his or her computer. They often will download said materials to use as proof. Subsequently, they will obtain a warrant to search the computer with the IP address from which the material was downloaded. (Commonwealth v. Piasecki, 2010 Pa. Dist. & Cnty. Dec. LEXIS 618 (Pa. County Ct. 2010)).
     
  8. If one opts to speak with law enforcement agents upon their serving a warrant, anything that is said can be used in court UNLESS they are conducting a custodial interrogation. If the agent is conducting a custodial interrogation, a Miranda warning must be given. "The test for determining whether a suspect is being subjected to custodial interrogation so as to necessitate Miranda warnings is whether he is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation." (Commonwealth v. Schwing, 964 A.2d 8 (Pa. Super. Ct. 2008).
     
  9. Mistake as to age is not a defense for a charge of §6312(b) – Photographing, videotaping, depicting on computer or filming sexual acts.)  (§6312e.1).
     
  10. Violation of Section §6312 requires involvement of a real child rather than a computer-generated image. "In this case, the trial court interpreted 18 Pa. C.S.A. § 6312(d)(1) to require any computer depiction of child pornography to involve a real child rather than a computer-generated image." (Commonwealth v. Davidson, 2004 PA Super 396 (Pa. Super. Ct. 2004)).
     

PA Child Porn Statutes – § 6312. Sexual Abuse of Children

(a) Definition. — (Deleted by amendment).

(b) Photographing, videotaping, depicting on computer or filming sexual acts.

(1) Any person who causes or knowingly permits a child under the age of 18 years to engage in a prohibited sexual act or in the simulation of such act commits an offense if such person knows, has reason to know or intends that such act may be photographed, videotaped, depicted on computer or filmed.

(2) Any person who knowingly photographs, videotapes, depicts on computer or films a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such an act commits an offense. "

(c) Dissemination of photographs, videotapes, computer depictions and films. — Any person who knowingly sells, distributes, delivers, disseminates, transfers, displays or exhibits to others, or who possesses for the purpose of sale, distribution, delivery, dissemination, transfer, display or exhibition to others, any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act commits an offense.

(d) Child pornography. — Any person who intentionally views or knowingly possesses or controls any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act commits an offense.

(d.1) Grading. — The offenses shall be graded as follows:

(1) Except as provided in paragraph (3), an offense under subsection (b) is a felony of the second degree.
(2)
(i) Except as provided in paragraph (3), a first offense under subsection (c) or (d) is a felony of the third degree.
(ii) A second or subsequent offense under subsection (c) or (d) is a felony of the second degree.
(3) When a person commits an offense graded under paragraph (1) or (2)(i) and indecent contact with the child as defined in section 3101 (relating to definitions) is depicted, the grading of the offense shall be one grade higher than the grade specified in paragraph (1) or (2)(i).

(e) Evidence of age. — In the event a person involved in a prohibited sexual act is alleged to be a child under the age of 18 years, competent expert testimony shall be sufficient to establish the age of said person.

(e.1) Mistake as to age. — Under subsection (b) only, it is no defense that the defendant did not know the age of the child. Neither a misrepresentation of age by the child nor a bona fide belief that the person is over the specified age shall be a defense.

(f) Exceptions. — This section does not apply to any of the following:

(1) Any material that is viewed, possessed, controlled, brought or caused to be brought into this Commonwealth, or presented, for a bona fide educational, scientific, governmental or judicial purpose.
(2) Conduct prohibited under section 6321 (relating to transmission of sexually explicit images by minor), unless the conduct is specifically excluded by section 6321(d).
(3) An individual under 18 years of age who knowingly views, photographs, videotapes, depicts on a computer or films or possesses or intentionally views a visual depiction as defined in section 6321 of himself alone in a state of nudity as defined in section 6321.

(g) Definitions. — As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

"Intentionally views." –The deliberate, purposeful, voluntary viewing of material depicting a child under 18 years of age engaging in a prohibited sexual act or in the simulation of such act. The term shall not include the accidental or inadvertent viewing of such material.

"Prohibited sexual act." –Sexual intercourse as defined in section 3101 (relating to definitions), masturbation, sadism, masochism, bestiality, fellatio, cunnilingus, lewd exhibition of the genitals or nudity if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction.

DISCLAIMER

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Posted in Offenses |
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Extending Registration Period in PA Violates Contract Law

In December of 2013, we discussed the PA Superior Court's decision in Hainesworth, wherein the court found that the defendant was not required to register as a sex offender retroactively under SORNA because non-registration was a term of his plea contract. On September 9, 2014, the Superior Court expanded this legal rationale to include the extension of one's registration period. In Commonwealth v. Nase, 2014 (Pa. Super. Ct. 2014), the defendant accepted a plea bargain that required him to register under Megan's Law for a period of 10 years. Subsequent to the passage of the new version of Megan's Law on December 20, 2012, however, he was told that his registration period had been extended to 25 years. After being denied relief by the lower court, he appealed to the Superior Court of Pennsylvania. The Superior Court applied the same legal analysis used in Hainesworth, and was tasked with determining whether the "ten-year registration period was a material part of the plea agreement." It found that the record in the case did establish that a ten-year period of registration was part of Appellant's plea agreement, and that he "is entitled to the benefit of his bargain, and is not subject to additional registration beyond that envisioned by his plea agreement." It is not clear what the standard of proof is when determining whether registration, or a registration period was a condition of a plea agreement, but based upon the Hainesworth and Nase cases, one has a much better chance of winning this legal challenge if there is some mentioning of either condition in the plea transcript. This is not to say that a legal challenge could not be made based upon implicit evidence, however.

UPDATE DECEMBER 2016: See the most recent favorable verdicts regarding this issue:

1) http://cases.justia.com/pennsylvania/superior-court/2016-862-eda-2016.pdf?ts=1482358757

2) http://www.pacourts.us/assets/opinions/Supreme/out/J-29C-2016mo%20-%2010282682612021420.pdf?cb=1

Disclaimer

Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. If this ruling is applicable to your situation, you should contact and hire a criminal defense attorney in your area immediately.  If you or someone you know is currently being charged with a sex crime and needs legal assistance, please visit our website and contact us. The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Posted in SORNA |
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Maryland Registration: Federal Law Does Not Trump State Law

The Court of Appeals of Maryland has ruled that individuals who are not required to register with the State as a result of last years Doe decision, are not required to register with the State under federal laws.

Summary and Update of Doe

Constitutional_RightsIn March of 2013, the Court of Appeals of Maryland ruled that retroactive registration requirements imposed upon individuals as a result of the 2009 and 2010 amendments to the registration laws violate ex post facto laws contained in Article 17 of the Maryland Declaration of Rights (Doe v. Dep’t of Pub. Safety & Corr. Servs., 430 Md. 535 (Md. 2013)).

Although many people believe that this ruling should apply to any offender who was affected by these amendments, Maryland appears to be viewing this decision very narrowly – the State contends that the ruling only applies to individuals whose offenses were committed before October 1995, which is when the registry was established.  Defense Attorney Nancy S. Forster, who spearheaded the Doe case, has challenged this narrow view successfully at the circuit court level. The State has appealed the lower-court victories, so eventually clarification will come from the Court of Specials Appeals. Specifically, she contends that any individual who was required to register retroactively, or whose registration term was extended as a result of the amendments, should be afforded relief by the holding in Doe.

2014 Ruling Regarding Federal Requirements

Prior to the Doe ruling, the State contended in its brief that the federal Sex Offender Registration and Notification Act, SORNA, imposed upon Petitioner an “independent obligation to register as a Tier III sex offender.” However, the Court declined to address this issue because Defendant was only challenging the registration requirements under Maryland law. In its most recent decision, however, the Court of Appeals of Maryland did address this issue (Dep’t of Pub. Safety & Corr. Servs. v. Doe, 2014 Md. LEXIS 417). The Court concluded that SORNA does in fact create a “direct obligation on sex offenders to register in their home state, independent of that state’s implementation of SORNA”; however, “the state need not accept the registration if doing so would be contrary to state law.”

“Based on our holding in Doe I, Marylanders, like Hoosiers, enjoy “greater protection under the prohibition on ex post facto laws” of the Maryland Declaration of Rights. Andrews, 978 N.E.2d at 502. Where Appellees would only be required to register in Maryland, and where we have held that the retroactive application of the Maryland registry is unconstitutional, they, and individuals similarly situated in Maryland, cannot be required to register in Maryland.”

The Court also addressed whether circuit courts can order the removal of information from federal databases. In finding that they cannot, the Court noted that federal registration databases are “not in fact a separate registration system, but rather is a compilation of all state registries, allowing a member of the public to search all state records in one place.” Therefore, “although the State cannot directly remove information from ‘federal databases’, the State is responsible for notifying all relevant federal agencies when registration information is removed from Maryland’s registry.”

 Conclusion

****Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. If you believe you may be entitled to relief as a result of this decision, contact the Law Office of Nancy S. Forster in Towson, Maryland.

 Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

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Sting Calls in Maryland Sex Crimes Cases

Sting Calls“Sting calls” are often used by Maryland law enforcement agencies in sex crime cases to elicit statements from alleged perpetrators. Statements given in such calls can be misinterpreted, and used to wrongly convict individuals.

Prior to the initiation of such calls, the caller is instructed on how to act, and what questions to ask. Due to this guidance by law enforcement, one may never suspect that the call is actually a “sting call” and is being recorded. Additionally, some individuals wrongly believe that because Maryland is an all-party consent state, that they have nothing to worry about.

If the call is legally recorded or otherwise intercepted, the evidence obtained often can be difficult to overcome. Below you will find a discussion of the laws governing the legality of intercepting communication in Maryland, and also you will learn why these general laws usually do NOT apply to conversations involving evidence of sex crimes.

Maryland “Wire Tapping” Law

Generally, Maryland law requires consent from all parties before a conversation can be taped or otherwise intercepted in the absence of a court order authorizing such interception (Miles v. State, 365 Md. 488 (Md. 2001)). Its laws afford more protection to citizens compared to the federal law, which only requires the consent of at least one party. Maryland’s all-party consent law applies as long as at least one party to the conversation is physically located within the State during the phone call. The applicable laws are below:

Md. COURTS AND JUDICIAL PROCEEDINGS Code Ann. § 10-402

(a)  Unlawful acts. —  Except as otherwise specifically provided in this subtitle it is unlawful for any person to:
(1)  Willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
(2)  Willfully disclose, or endeavor to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle; or
(3)  Willfully use, or endeavor to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle.

*** “‘Intercept’ means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” (§ 10-401 (10)).

Exceptions to “Wire Tapping” in Sex Crime Cases

As with some other states, Maryland’s all-party consent laws do not apply to conversations that are elicited by law enforcement or persons collaborating with law enforcement (witnesses) in order to obtain evidence of certain sexual crimes (see Anderson v. State, 372 Md. 285 (Md. 2002) Part III). As long as one party gives consent, the interception of such conversations is not illegal under Maryland law (although privileged marital communications may be suppressed). The applicable laws are below:

§ 10-402 (2)  (i) This paragraph applies to an interception in which:
1.  The investigative or law enforcement officer or other person is a party to the communication; or
2.  One of the parties to the communication has given prior consent to the interception.

(ii)  It is lawful under this subtitle for an investigative or law enforcement officer acting in a criminal investigation or any other person acting at the prior direction and under the supervision of an investigative or law enforcement officer to intercept a wire, oral, or electronic communication in order to provide evidence:

1.  Of the commission of:
A.  Murder;
B.  Kidnapping;
C.  Rape;
D.  A sexual offense in the first or second degree;
E.  Child abuse in the first or second degree;
F.  Child pornography under § 11-207, § 11-208, or § 11-208.1 of the Criminal Law Article;
G.  Gambling;
H.  Robbery under § 3-402 or § 3-403 of the Criminal Law Article;
I.  A felony under Title 6, Subtitle 1 of the Criminal Law Article;
J.  Bribery;
K.  Extortion;
L.  Dealing in a controlled dangerous substance, including a violation of § 5-617 or § 5-619 of the Criminal Law Article;
M.  A fraudulent insurance act, as defined in Title 27, Subtitle 4 of the Insurance Article;
N.  An offense relating to destructive devices under § 4-503 of the Criminal Law Article;
O.  A human trafficking offense under § 11-303 of the Criminal Law Article;
P.  Sexual solicitation of a minor under § 3-324 of the Criminal Law Article;
Q.  An offense relating to obstructing justice under § 9-302, § 9-303, or § 9-305 of the Criminal Law Article;
R.  Sexual abuse of a minor under § 3-602 of the Criminal Law Article;
S.  A theft scheme or continuing course of conduct under § 7-103(f) of the Criminal Law Article involving an aggregate value of property or services of at least $ 10,000;
T.  Abuse or neglect of a vulnerable adult under § 3-604 or § 3-605 of the Criminal Law Article;
U.  An offense relating to Medicaid fraud under §§ 8-509 through 8-515 of the Criminal Law Article; or
V.  A conspiracy or solicitation to commit an offense listed in items A through U of this item; or

Conclusion

If you suspect that you may be under investigation for an alleged sex crime, do NOT speak to anyone about the allegations except for your lawyer. If you do not have a lawyer, you should consider retaining one so that you do not make irreversible mistakes that will be difficult to overcome should you be charged. To learn more about our law firm, and/or to speak with an experienced Maryland sex crimes lawyer, visit our website.

Disclaimer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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Cross Examination of Social Worker in Sexual Abuse Case

In sex crime trials, the prosecution sometimes will utilize the testimony of an “expert” witness. The extent to which the prosecution can use such witnesses varies by state. In the below case, Texas v. C.K. (2014), the prosecution called a social worker to discuss the generalities of sexual abuse and sexually abused children. Attorney Pavlinic objected to the witness because 1) the Defense was not notified in advance that the witness would testify; 2) the testimony was elicited after both parties rested instead of during the case-in-chief – this denied the Defense the ability to call its own expert to challenge the testimony; and 3) the witnesses testimony consisted of generalities, and was not directly related to the facts of the case

Despite the objections, the testimony was allowed by the court. Faced with this unexpected challenge, Attorney Pavlinic aggressively and methodically cross examined the State’s “expert” witness. In the end, the jury returned with a not-guilty verdict on all counts. We hope you enjoy reading this real-life trial testimony, and also hope that this instills in you the understanding that sex crime trials are often complex and unpredictable, and therefore it is imperative to hire a defense attorney with an abundance of experience in this specific area of the law.

Cross Examination Testimony

Q. Mr. Powers, you’re not a psychologist, are you?

A. I’m a clinical social worker.

Q. So the answer is, no, you’re not a psychologist?

A. No, I’m not a psychologist.

Q. Now, in coming here to testify today did you meet with Mr. Lewis and Ms. Miller to prepare your testimony?

A. Yes.

Q. And when did you first meet with them?

A. Probably yesterday. Yeah, yesterday.

Q. So you got involved in this case yesterday?

A. No, I wouldn’t say that. I mean, we’ve discussed the case prior to this, possibly, just peripherally. But we really prepared for trial yesterday and talked.

Q. I would like to know since I wasn’t there. First you said yesterday, then you said, maybe not yesterday. So when did you get involved in this case?

A. As far as getting involved in the case I met with them yesterday. We may have had discussions about the case that I just don’t recall specifics about other than, this case is coming up, we would like you to testify in this

Q. So you normally get involved in cases of this magnitude and this importance affecting all these people the day before you’re going to testify?

A. We’ve been working together for some time. And so, we’re able to meet together and discuss a case, and I think being at a place where we’re able to work together, yes, we do that.

Q. So you work all the time with the State; is that correct?

A. I wouldn’t say all the time, but quite frequently, yes.

Q. Well, how much is frequently? Once a month?

A. Maybe — at least once a month, yes.

Q. How many cases have you collaborated with the State on?

A. I’ve testified in, I’d say over — in my 15 years of being at the advocacy center over a hundred cases.

Q. So you pretty much have this script out; is that correct? You meet with them and you say, okay, this is the testimony I’m going to give in general about abused children and the characteristics of sex offenders; is that right?

A. Well, every case is a little bit different, so I wouldn’t say I have a script, no.

Q. Well, you — what’s different about this case than all the other cases that you’ve done?

A. Well, again, every case is a little bit different and the dynamics are different. Sometimes —

Q. Well, I’m asking you.

A. I’m trying to answer your question.

Q. All right. What is —

A. Sometimes the person who is accused of the crime is a family member. Sometimes they’re not a family member. Sometimes they may be somebody in that child’s life. Sometimes it may be a mother, it may be a father. The dynamics are different in every case.

Q. So you said sometimes the person is in the child’s life or is not in the child’s life, right?

A. That’s correct.

Q. What other possibility is there?

A. Well, again, it may be a female, may be a male, may be —

Q. Well, gender — (Indiscernible crosstalk)

A. — a sibling.

Q. Please listen. Please listen.

A. I’m trying to answer your question and you’re interrupting me, so…

Q. I’m asking you a question. I’m trying to ask the question. So you said he’s either in the life or is not in the life. What is the other possibility?

A. That’s the question I was trying to answer.

Q. Okay. So what is the answer?

A. There’s a number of factors. It could be a female, it could be a male, it could be a — it could be a sibling, it could be — it could be multiple offenders. There’s a lot of factors that go into it. It’s not strictly just one offender and one dynamic.

Q. I’m sorry, I’m having a misunderstanding. I can’t understand your response. If somebody is in your life or not in your life, it could be a female, it could be a sibling, it could be your father, it could be your mother, your relative, right?

A. That’s correct.

Q. So they’re either in your life or it’s a female, brother, father, somebody else, and they’re not in your life. What is the other alternative?

A. A stranger. I mean, you know, when —

Q. So that would be in the other, not in your life if it’s a stranger, right?

A. People who sexually abuse children, especially most —

Q. Okay. But the question —

A. I’m really trying to answer your question but you keep interrupting me.

Q. The question was, if you say it’s a stranger, yes or no, a stranger would be classified as a person not in their life?

A. Some strangers abuse children, yes.

Q. So I — that’s not a response to my question.

A. I’m not understanding your question.

Q. Strangers can abuse children. My question was, if it’s a stranger he falls in the classification that he’s not in the person’s life, yes or no?

A. Yes.

Q. Now, so you work with the State all the time. And is this the customary way that you testify, you come at the end of the case and you talk about abused children and about sex offenders and about all of these characteristics? Is this the normal way that you testify?

A. I wouldn’t say it’s a normal way. Sometimes I have a lot of involvement in the case itself. Sometimes I may have treated the child that is here. Sometimes I may have supervised the case. I have different involvement in different cases, so…

Q. Okay. Let’s talk about this case, okay. So you said sometimes. In this instance we know you didn’t treat anybody; is that correct?

A. That’s correct.

Q. All right. So when you come to testify is it — when you come to testify is it your custom that you come at the end of the case and give the testimony that you normally give?

A. Sometimes I testify in the case-in-chief and sometimes I come and testify in rebuttal.

Q. And what makes the difference? What makes determine whether you — what do you mean when you testify in the case-in-chief?

A. That means during the phase where evidence is being gathered and sometimes I have knowledge of a specific case where I need to provide that knowledge to the jury as part of my testimony.

Q. So when you testify in the presence — in the State’s case-in-chief we get to hear your testimony before we put on any evidence; is that correct?

A. Yes.

Q. So in this instance what made you choose to come in and testify at the conclusion of the case as opposed to during the case-in-chief?

MR. LEWIS: Your Honor, I’ll object. The witness —

THE COURT: Excuse me. I’ll allow you to redirect at a later point.

MR. LEWIS: Okay.

MR. PAVLINIC: I’m sorry, I didn’t hear you.

THE COURT: I said I would allow him to redirect at a later point.

MR. PAVLINIC: Redirect at a later time.

Q. (BY MR. PAVLINIC) So what made you make that determination?

A. Well, as the other witnesses, I received a subpoena and I come when I’m told to. I didn’t get to choose when I come.

Q. I see.

A. I don’t think any witness gets to choose when they come. I come when I’m instructed.

Q. And you’re an expert. Did you make any suggestions to Mr. Lewis about when you thought it might be appropriate to testify?

A. I come when they ask me to come.

Q. Okay. You come when they ask you. Why — you tell me to come and I’m there, right?

A. Yes.

Q. And you testified you taught ethics?

A. I do.

Q. Do you see any ethical concerns about coming in at the conclusion of the case and giving these opinions and talking about these things when the Defense has no opportunity to respond?

A. Well, I don’t agree with your statement that you don’t have an opportunity to respond because you’re asking me questions right now. So the answer would be no, I do not — (Indiscernible crosstalk)

Q. — evidence beyond my ability to ask you questions?

A. I’m sorry. You talked over me, I didn’t hear your question.

Q. How would we respond by putting on any other evidence other than asking you questions?

A. That’s up to you to do. I don’t — I don’t know what — you know, you get a chance to talk to me too. And that’s  (Indiscernible crosstalk)

Q. — I get a chance to talk to you, correct?

A. Yes.

Q. Yes?

A. I believe so, yes.

Q. So did you — you testified that you had an understanding of the facts of the case?

A. Yes.

Q. Okay. You didn’t look at Mariah’s videotaped interview?

A. No. Tonya

Q. Now, that’s an interview that’s conducted in your own agency, the agency that you’re the head of; is that correct?

A. I’m not the head of the agency.

Q. It’s an agency in which you work?

A. The forensic interview is conducted at the Children’s Advocacy Center, that’s correct.

Q. And you’re part of the Children’s Advocacy Center, are you not?

A. That’s correct.

Q. And does Lisa Martinez work for you?

A. She does not work for me.

Q. Do you have a supervisor in that agency or are you the head of the agency?

A. I’m not — as I said, I’m not the head of the agency. I’m in charge of our clinical services.

Q. And you have the ability at any time to look at that interview and see what she said; is that correct?

A. I’m not in charge of forensic interviews. That’s separate from me. And, no, I don’t have the ability just to —

Q. All right.

A. — you know, give me any interview to see.

Q. As coming to court as an expert you want to have the most facts available to you as possible, don’t you?

A. I come to answer the questions that the attorneys ask me.

Q. You want to be as prepared as you possibly can; is that correct? You have an ethical duty to the jurors and to the Court to be as prepared and to be as professional as possible, don’t you?

A. I do.

Q. Now, you have the access to that videotaped interview, don’t you?

A. I have access to the forensic interview.

Q. If you wanted to see the videotaped interview you could have seen it, couldn’t you?

A. If I wanted to see it, I could see it.

Q. Would that have been the best source of the factual knowledge about what Mariah was saying?

A. It would be one part of it, sure.

Q. Did you hear her testimony in court?

A. I was not here for her testimony.

Q. What other basis of knowledge would you have about the facts of this case if you didn’t hear her testimony in court and you didn’t look at the interview that was conducted by your very own agency? Where do you get the factual knowledge of this case?

A. From the questions that are asked today and talking with the attorneys.

Q. So during the course of this direct examination you became familiar with the case and that’s what you’re basing your testimony on, what Mr. Lewis was telling you happened in this case?

A. Well, I believe I’m answering questions regarding the dynamics of abuse. I haven’t really answered —

Q. I haven’t asked you about — we’re going to talk about that in a second. I was asking you, sir, specifically about your knowledge of the factual allegations in this case.

A. I don’t believe —

Q. It comes from what he was telling you in the courtroom today?

A. I don’t believe I’ve asked — been asked or answered any questions regarding the facts of this case.

Q. On his direct examination you said you did not look at Mariah’s tape and — but you had an understanding of the factual allegations. That was your — those were your words that Ms. Tonya can replay for you if you wanted to. Did you say you had an understanding of the factual allegations of the case, yes or no?

A. I have a understanding of the allegations of the case.

Q. All right. So where did you get your factual understanding of the facts of this case, from whom?

A. From the district attorneys.

Q. And when?

A. At length, yesterday and today.

Q. And what were you told about the case?

MR. LEWIS: Your Honor, I’m going to object to hearsay.

THE COURT: I’ll overrule that objection.

MR. PAVLINIC: Did you overrule?

THE COURT: Yes.

Q. (BY MR. PAVLINIC) What were you told?

A. I was told that this was a case related to a sexual assault of a child, a adult in that child’s life, as well as some dynamics involving that the child had made an outcry and wasn’t necessarily believed during that outcry.

Q. And what about the specifics, did you get any details about the nature and extend of the touching?

A. No.

Q. Do you understand that the years in which the touching was supposed to have occurred?

A. I have a vague knowledge that it —

Q. What is your vague knowledge?

A. That it appeared it happened over a length of time.

Q. What years?

A. I don’t know the specific years.

Q. How many years?

A. I don’t know.

Q. You don’t know whether it was one year, two years, ten years, fifteen years?

A. I said I did not know.

Q. Okay. You don’t know. Would that have made a difference about the testimony that you gave here about all these characteristics of abused children? Wouldn’t you want to know the facts about the child that you were talking about?

A. No. My testimony today is about the dynamics of abuse, and the dynamics are the dynamics. They don’t change related to the facts of the case.

Q. I see. So you talk about the dynamics of abuse. It doesn’t make any difference what Mariah said. It doesn’t make any difference your understanding of the facts. You’re going to come in here and tell the jury — you’re going to talk about the dynamics of abuse; is that what you’re saying?

A. I’m here to answer the questions asked of me, yes.

Q. Is that what you’re saying? I know you’re here to answer the questions because that’s what your requirement is as a witness. But I’m asking you, is that what you’re saying about the quality of your testimony, that you’re just here to talk about the dynamics of sexual abuse unrelated to the factual allegations that pertain to Mariah; yes or no?

A. I’m — Q. Yes or no?

A. Please ask that again. I’m not sure I understand. It was a long question. I’m sorry.

Q. You’re talking about the general dynamics of sexual abuse?

A. Yes.

Q. Without particular reference to the dynamics involving Mariah —–; yes or no?

A. Yes.

Q. And the reason you can’t talk about the dynamics with Mariah —– because you don’t know anything about the case other than what Mr. Lewis told you in the courtroom today or yesterday before you were going to come in and testify, right?

A. That’s correct.

Q. Did you ever reach out and talk to Carlos?

A. No.

Q. Did you ever say to him, Carlos, I want to give you a polygraph examination?

A. No.

Q. Did — do you know that polygraph examinations aren’t admissible in any court of law in any state in any federal jurisdiction in the entire United States?

A. Absolutely, yes.

Q. So your profession relies on inadmissible evidence, polygraph examinations that are considered in many jurisdictions to be nothing more than a hoax and voodoo?

A. A polygraph is a standard — it’s a standard practice for working with sex offenders —

Q. It’s not admissible–

A. — all over the United States.

Q. Okay. It’s not admissible in any court because it’s not scientifically reliable.

A. Okay.

Q. You don’t see any sex offenders in this courtroom, do you?

A. I couldn’t answer that question.

Q. You haven’t evaluated anybody, have you?

A. Nobody in this courtroom, no.

Q. You’re not the treating social worker for anybody in this case, are you?

A. I’m not.

Q. You haven’t even interacted with Mariah on a personal basis, have you?

A. No.

Q. Would you recognize her if she walked into this courtroom today?

A. Yes.

Q. From where would you recognize her?

A. From meeting her in the witness room prior to coming in here.

Q. And how long did you talk to her?

A. I was in there, maybe, for 15 minutes.

Q. Do you know anything about family dynamics, about the education of her parents and what they do?

A. No.

Q. Do you know anything about the social interaction between Mariah and her father and her mother and the visitation arrangements?

A. No.

Q. Do you know anything about the nature and extent of the relationship and the quality of the relationship that Mariah had with Carlos?

A. No.

Q. You didn’t find out anything about that information before you came into court today, did you?

A. I wasn’t asked to do that.

Q. In essence, you are here — do you know what the term “bolster” means?

A. I know what the term means.

Q. What does that mean?

A. “Bolster” is to impact in a positive way, to increase knowledge or increase the intensity of something.

Q. And that’s what you’re here to do, isn’t it? You’re here to bolster the State’s case because you are their guy to go to in these types of cases; isn’t that the truth, Mr. Powers?

A. I would not agree with that.

Q. How many times have you testified for the Defense?

A. In state court I’ve been subpoenaed by the Defense one time.

Q. One time. How many times have you testified for the State?

A. I said over a hundred.

Q. Over a hundred?

A. Yes.

Q. And what were the circumstances under which you  testified for the Defense?

A. It was a sexual assault case and the Defense attorney subpoenaed me to be there, so I was there.

Q. Did you — were you there as a hostile witness?

A. I’m never a hostile witness.

Q. I’m not meaning in terms of being aggressive, like I may be being aggressive with you, but hostile in the legal sense where you’re called by the opposing party because they’re calling you to give testimony that may be adverse to the other side.

A. Well, it’s important as a licensed professional I’m not on either side. I’m here to provide knowledge to the Court and the jury in a ethical way to ensure that they get the knowledge they need. If the Defense asks me the questions, I’m going to answer them the same way.

Q. Okay. Let’s talk about that ethical way to get the best knowledge to give to the jury. So what — what have you done to try to get some information from the Defense? Did you contact Ms. Barbieri?

A. She did not contact me.

Q. Did you contact her? You’re the expert. You’re the one that can reach out for information; isn’t that right? You were the expert and you can reach out for information; isn’t that right, if you wanted?

A. If I wanted to.

Q. Did you reach out to her; yes or no?

A. She did not reach out to me.

Q. Did you try — so we’ll assume that she didn’t reach out to you. The question was, again, so we have a clear answer on the record, did you reach out to her?

A. No.

Q. Okay. Now you want to say again she didn’t reach out to you?

A. She didn’t —

Q. How about —

A. — if she would have called me I would have talked with her.

Q. Did you ask for any information that pertained to Carlos about his job employment?

A. No.

Q. About the nature and extent of his relationship with his family?

A. No.

Q. About his siblings?

A. No.

Q. About his own son, Niko? Did you ever meet — do you even know who Niko is?

A. When he was talked about here in the case.

Q. Who is he?

A. I understand that’s his son.

Q. Did you ever meet him?

A. I have not met him.

Q. He’s sitting here in the courtroom, I think.  He’s outside. You never met him. Met anybody, any significant others or anything?

A. No.

Q. No information from the Defense, right?

A. No.

Q. Okay. Tell us what you know about false accusations of abuse.

A. I know a great deal about —

Q. Okay. Let’s — I’d like to hear it. What’s the most important thing you can tell about false accusations of abuse?

A. That they happen sometimes.

Q. Okay. Under what circumstances do they happen?

A. They can happen in a number of circumstances. One of the most common ways that we see them is in custody battles.

Q. How about in high conflict divorce cases?

A. They sometimes happen, yes.

Q. And you know that the effects of false accusations of abuse can be very damaging on people, can’t they?

A. Devastating, yes.

Q. They impact people, their ability to function in life, don’t they?

A. Absolutely.

Q. Impacts their finances, doesn’t it?

A. Absolutely.

Q. It impacts their jobs, doesn’t it?

A. Yes.

Q. It impacts how they interact with their family and their peers, doesn’t it?

A. Yes.

Q. Now, do think that there should be a search and inquiry to make a determination as to whether or not there was a factual — excuse me — a false accusation of abuse?

A. I believe there is, yes.

Q. The jury is to determine whether the allegations are true or false; isn’t that correct?

A. That’s correct.

Q. You’re not saying that [defendant] is a sexual offender, are you?

A. Absolutely not.

Q. You’re not saying that Mariah is a victim of sexual abuse, are you?

A. I have not said that.

Q. That’s not proper testimony for you to give, is it?

A. That’s true.

Q. Tell us about Dr. Caudill. How much professional interaction did you have with Dr. Caudill?

A. I just reviewed her records.

Q. For the first time — first time on these cases, the first professional interaction you had with her?

A. Was I reviewed her records, yes.

Q. Okay. Reading the records in this case was the first time you had any interaction with Dr. Caudill; is that correct?

A. I’ve heard her name. I’ve been practicing a long time. But we don’t have any real professional contact, no.

Q. You’ve never been to her office?

A. No.

Q. You’ve never conducted any seminars with her?

A. I couldn’t tell you whether she’s been in one of my seminars or not.

Q. The question was, did you conduct any seminars with her?

A. And my answer is, I don’t know if she was present during one of my seminars or not. There’s sometimes 2 or 300 people in the room, so…

Q. Did you and she ever engage in any joint seminars together?

A. No.

Q. Do you know what her practices and policies are with regard to how she interacts with her clients?

A. I don’t know her practices and policies.

Q. You obviously — you weren’t there in the interview with Carlos when he was there talking to Dr. Caudill, were you?

A. No.

Q. And you never got his version as to what happened, other than what you heard here in court today; is that correct?

A. That’s correct.

Q. And Dr. Caudill’s referral to Chris White is contingent upon Dr. Caudill’s understanding of what she was told by Carlos; isn’t that correct?

A. I would think so, yes.

Q. And if she didn’t understand correctly, she may  have referred him to an inappropriate therapist; isn’t that possible?

A. That’s possible.

Q. And shouldn’t a therapist take the time to allow their own patient the opportunity to explain and clarify? Should a professional allow a person that comes to them for help the opportunity to explain and clarify?

A. I would hope so.

Q. Is there a reason you would think that they should not have an opportunity to fully explain and clarify if they come to a professional for help?

A. I can’t think of a reason.

Q. Did you hear Dr. Caudill’s testimony about what happened?

A. I was —

Q. Were you here for her testimony?

A. I was not here for her testimony.

Q. Would it surprise you to learn that she said that in one instance that Carlos declined to give any explanation and then later on in her testimony said, well, he tried to clarify and I stopped him? Do you think that was good practice? Mr. Powers, is that good practice not to allow your patient to clarify?

A. I think it’s important to allow a patient to clarify.

Q. So you’re a clinician on occasion, right?

A. I am a clinician.

Q. If you have a client in your office, a patient in your office and you want that person to feel comfortable with you, they come to you in a trust position, didn’t they?

A. Yes. Trust is an important part.

Q. You want them to be free to tell you what’s on their mind?

A. Yes.

Q. Isn’t it?

A. Yes.

Q. And if she misunderstood what he said — the referral to Chris White is only as good as her understanding about the nature of the problem; isn’t that right?

A. That would be correct.

Q. And if she doesn’t understand the problem, she’s not making the correct referral, is she?

A. Correct.

Q. Did you ever get Chris White’s notes?

A. I have not seen Chris White’s notes.

Q. Did you learn that Carlos told Chris White he was there because he had a problem with pornography and his marriage was going bad?

A. I learned that here in the courtroom.

Q. Pardon?

A. I learned that here in the courtroom.

Q. So did you accept that as valid?

A. I accepted the —

Q. So if he’s there for —

A. — to the extent of the knowledge that I’ve learned about that, yes.

Q. If he’s there for problems that have to do with pornography and his marriage going bad, he has no business being in Chris White’s office then, does he?

A. Well, Chris White also is a licensed clinical social worker, he could treat those issues also.

Q. So he could treat him on other issues?

A. He could.

Q. So when you talked about Chris White you emphasized in your testimony only that he was a treatment provider for sexual predators?

A. No, I said he was a licensed clinical social worker and a licensed sex offender treatment provider.

Q. But you didn’t talk about his other aspects of the practice. You only talked about he was treating sexual offenders?

A. That’s a primary focus of his practice.

Q. So that’s the primary focus of his practice. That’s what stood out to you; is that correct?

A. That’s the question that was asked of me.

Q. All right. But you didn’t reach out to Chris White and say, hey, Mr. White, I know that you interviewed — you had a patient, Mr. —-, did you talk to him at all, get any of his records?

A. That would be inappropriate.

Q. Well, you could have gotten a HIPAA form release from Carlos, couldn’t you?

A. Mr. White couldn’t speak to me —

Q. Could you have gotten a HIPAA form release from Carlos if you asked for it?

A. If I asked for it?

Q. If he was willing to give it to you?

A. I suppose I could.

Q. Well, is there any reason that would have not enabled you to get it if you asked for it and said, here it is? Mr. Powers?

A. Yes.

Q. The answer is — I suppose is — the answer is not, I suppose I would. The answer is, yes, I could have —

A. I have no reason to —

Q. — gotten permission?

A. I have no reason to interact with Chris White, so I have no reason to get the HIPAA form.

Q. I see. So — but you had a reason to talk about Chris White, right?

A. Well, I answered the questions.

Q. So let’s — now, you talked about cutting, the children react — they’re going to cut themselves. Did you see any cuts? Did you look at her arms? Did you see any cuts on Mariah?

A. No.

Q. None. You didn’t see any, did you?

A. No.

Q. Did you get any of the medical records where she said she went to to treatment for being sexually abused?

A. No.

Q. You could have gotten a medical authorization from her family or from Mariah to get those records, couldn’t you?

A. If I was working with her, I would, yes.

Q. Well, you could have been able to testify more ethically and more completely if you had medical records; isn’t that right, Mr. Powers?

A. No, I don’t agree with you.

Q. Why?

A. I’m not testifying about Mariah, and so, I have no reason to get her medical records.

Q. Okay. So if none of this testimony that you gave was about Mariah, what’s the relevance of the testimony that doesn’t have to do with Mariah and the case?

A. I’m here to talk about the dynamics of abuse and sexual abuse and sex offenders.

Q. You’re here to talk the dynamics of sexual abuse in an effort to bolster the State’s case, to make Mariah seem more credible through your expertise; isn’t that right? Isn’t that right? You have to admit that, that’s what you’re here for.

A. I’m not here to bolster.

Q. So let’s just wind up by talking about people that — what about the children that make false accusations of abuse, teenagers? What happens to them if they make a false accusation of abuse?

A. Well, a number of things can happen. You know, they could be charged with a crime. They — you know, a number of consequences may happen within their family. But in the most extreme cases they could be charged with a crime.

Q. So what — you haven’t taken any independent investigation to determine whether the allegations in this case are true or false, have you?

A. No, that would be inappropriate.

Q. That’s not even your role, is it?

A. It’s not my role.

Q. So you didn’t do anything independent with regard to Mariah and her family, with regard to Carlos and his family; that’s the truth, isn’t it?

A. It’s not my role in this case.

Q. But you know — you know that your testimony can be used to influence a jury, can’t you?

A. My testimony is to educate the jury.

Q. And you know that you have an ethical responsibility to give the most objective testimony possible, don’t you, as an expert?

A. Absolutely.

Q. And, yet, you didn’t do anything to ensure the objectivity of your testimony, did you?

A. I believe I did.

Q. What did you do?

A. I provided the information that I was asked here in the courtroom.

Q. Yeah, from the State. What objective undertaking did you, as a professional, an ethical professional, say, I have an obligation, I’m an expert, I’m going to come into court and testify? What did you do?

A. I discussed it with the District Attorney’s Office and I came here to testify and answer the questions.

Q. And you know the consequences that people that get falsely convicted of abuse, don’t you?

A. There is some —

Q. They go to jail, don’t they?

A. They very well could, yes.

Q. They go on the sexual registry, don’t they?

A. Yes.

Q. And they go on the sexual registry, in some cases, for the rest of their lives, don’t they?

A. That’s correct.

Q. And they’re subject to mandatory prison, aren’t they? And that’s a pretty —

MR. LEWIS: Your Honor, I’m going to object to relevance and argumentative.

MR. PAVLINIC: Your Honor, everything —

THE COURT: Excuse me. I haven’t had a chance to rule yet.

MR. PAVLINIC: Pardon me?

THE COURT: I didn’t have a chance to rule yet.

MR. PAVLINIC: I’m sorry.

THE COURT: I’ll overrule the objection.

Q. (BY MR. PAVLINIC) They go for the rest of their lives?

A. You mentioned mandatory prison and not all sex offenders —

Q. Some sex offenses are mandatory sentences, aren’t they?

A. Some are.

Q. And so, therefore, when we’re doing these things everybody has an obligation here, you as the expert, the State as the prosecutor, the judge, the Defense to present this jury with the most objective and fair evidence so that they can make a determination about the credibility of these accusations, and not you, right?

A. Yes.

MR. PAVLINIC: If I may just have a minute, Your Honor?

THE COURT: Yes.

Q. (BY MR. PAVLINIC) Just one final area, adult pornography is legal?

A. Yes.

Q. Isn’t it?

A. Yes.

Q. And not everybody that uses adult pornography is a child molester, are they?

A. Absolutely.

Q. And not everybody who masturbates is a child molester, are they?

A. That’s correct.

Q. And there are many people that find their sexual stimulation in pornography and not in personal relationships, don’t they?

A. True.

Q. And there are many people that masturbate rather than have normal sexual relationships, don’t they?

A. True.

Q. And there’s no correlation, whosoever, in any of the literature between adult pornography and masturbation and any type of pedophilia, is there?

A. Not with pedophilia, no.

Q. And you heard Carlos testify that the only thing that he did, because his marriage was going bad, was to use adult pornography?

A. Yes.

Q. You didn’t hear him talk anything about child pornography, did you?

A. No, I did not.

Q. Would it surprise you to learn that Mariah said that the touching happened and it lasted a second?

A. It would not surprise me, no.

Q. That wouldn’t surprise you?

A. No.

Q. You would think there would be sexual gratification for an adult male if he touches a child for one second when she’s seven years old?

A. An adult can get sexually gratified from touching a child for one second, yes.

Q. From the facts of this case, the jury — they’re going to determine whether the facts of this case support that legal conclusion. Would it surprise you — you said it wouldn’t surprise you that it stopped for years at a time?

A. That would not surprise me.

Q. But you — of course you don’t know how many — you don’t know how many years it stopped for, do you?

A. Not in this specific case.

 

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Q. And you didn’t look at the tape, so you know that — you don’t know on the tape Mariah didn’t give any specifics about any year or any event at any time?

MR. LEWIS: Your Honor, I’m going to object to that as facts not in evidence, hasn’t been presented.

THE COURT: Sustain the objection.

MR. PAVLINIC: Your Honor.

THE COURT: I’ve sustained the objection as to the contents of the tape.

MR. PAVLINIC: I don’t think I have anymore questions of this witness.

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Corruption of Minors Misdemeanor Not Registrable Offense in PA

There has been much debate within the Pennsylvania judicial system as to whether a conviction for misdemeanor Corruption of Minors (18 Pa.C.S. § 6301(a)(1)) under former law qualifies as a registrable offense under current law, which was enacted December 20, 2011.

Legislative History

Prior to December 6, 2010 (under former law), Corruption of Minors did not contain the two subparagraphs (i and ii) that exist in current law, and was graded as a misdemeanor. The passage of Act 69 created the new subparagraphs, which gave legal distinction between acts involving a sexual element and acts that did not, (ii), and (i), respectively. It also categorized § 6301(a)(1)(i) as a misdemeanor, and § 6301(a)(1)(ii) as a felony.

Under the new law (Section 9799.14(b)), Corruption of Minors is listed as a Tier 1 offense; however, it is the felony count of this offense (18 Pa.C.S. § 6301(a)(1)(ii)), and not the misdemeanor (18 Pa.C.S. § 6301(a)(1)(i)).

The question that arose was whether Corruption of Minors (18 Pa.C.S. § 6301(a)(1)) under former law was a registrable offense as a result of Section 9799.14(b)(21) of the new law, which states that a "comparable military offense or similar offense under the laws of another jurisdiction or foreign country or under a former law of this Commonwealth," also constitutes a Tier I crime.

Recent Superior Court Decision

On April 11, 2014, a PA Superior Court panel in Commonwealth v. Sampolski, 2014 (Pa. Super. Ct. 2014) found that Corruption of Minors under former law is not "similar" to felony Corruption of Minors (18 Pa.C.S. § 6301(a)(1)(ii)) under current law, even when the factual basis for the conviction involved sexual conduct.

In its analysis, the Court found that they are distinct crimes with different elements.

1) "Corruption (Former) may be satisfied by a single action ("any act"), whereas Corruption (F3) requires multiple actions amounting to a 'course of conduct.'"

2) "Corruption (Former) is satisfied by any act that tends to corrupt the morals of a minor, whereas Corruption (F3) requires a more specific subset of actions — namely those that violate Chapter 31 (relating to sexual offenses)."

3) "Similarly, Corruption (Former) is violated if the person who "aids, abets, entices or encourages" a minor in the commission of any crime, whereas Corruption (F3) is more narrowly limited to aiding or encouraging a violation of a sexual offense under Chapter 31."

4) "…the two crimes are different because Corruption (Former) is a misdemeanor of the first degree, whereas Corruption (F3) is a felony of the third degree."

Conclusion

We suspect that are many individuals throughout Pennsylvania who are currently registered as a result of a conviction of Corruption of Minors (18 Pa.C.S. § 6301(a)(1)) who may be entitled to relief as a result of this ruling. Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. If this ruling is applicable to your situation, you should contact and hire a criminal defense attorney in your area immediately. If you reside in the Pittsburgh area, you might consider contacting The Law Offices of David S. Shrager who handles such issues.

Disclaimer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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