5 A.3d 353
Superior Court of Pennsylvania.
COMMONWEALTH of Pennsylvania
v.
James Howard NEIMAN, Jr., Appellant.

Argued March 11, 2010.Filed Sept. 8, 2010.

Jeffrey B. Engle, Attorney for Appellant

Synopsis

Megan's Law III Statute deemed unconstitutional

Background: Defendant was convicted in the Court of Common Pleas, Schuylkill County, Criminal Division, Nos. CP-54-CR-0001870-2005, CP-54-CR-0001871-2005, Baldwin, J., of numerous sexual offenses against two child victims, was sentenced to aggregate term of 13 ½ to 27 years imprisonment, was found to be a sexually violent predator, and was ordered to comply with lifetime registration obligations under "Megan's Law." Defendant appealed.

Holdings: The Superior Court, No. 1747 MDA 2007, Ford Elliott, P.J., held that:

1 Senate bill that amended Deficiency Judgment Act and also contained Megan's Law violated single-subject rule; but

2 Megan's Law would be preserved by striking extraneous provisions of Senate bill not germane to the regulation of sexual predators.

Affirmed.

On December 17, 2013, the Pennsylvania Supreme Court reversed this decision in part and held that the entire statute (Act 152 of 2004) violated the single subject rule of Article I, Section 3 as argued by Attorney Engle, therefore, was unconstitutional. ( See link to opinion posted by the Supreme Court ). The "single subject" rule is a constitutional provision in which the same or similar subjects must be passed in a single piece of legislation. The purpose for this rule is to provide community notification for the contents of a single bill, allow legislators to comprehend the subjects contained in one bill and to avoid "log rolling." Log rolling occurs when legislators vote on several pieces of legislation in an effort to assist each other in passing an otherwise unfavorable piece of legislation by embedding it into another more favorable piece of legislation. Because Megan 's Law III was added to a piece of legislation that really had no single unifying subject to Megan's Law III, the entire statute was deemed to be unconstitutional.


U.S. v. Alcide Fraguela-Casanova and Juan Carlo Almaguer

U.S. District Court for the Middle District of Pennsylvania; 1:10-CR-0330

Attorney Elisabeth K.H. Pasqualini

Federal Charges: Conspiracy to Transport Stolen Goods in Interstate Commerce; Transportation of Contraband Cigarettes; Interstate Transportation of Stolen Goods

Synopsis:

Commercial vehicle was stopped for traffic violations. Driver and occupant were detained at the scene for 134 minutes while officer ran "warrant checks." Those checks admittedly provided information that driver was "not to be detained" because of a Florida parole status. Passenger was likewise detained along with vehicle. Consent to search was later provided. Police found 22,500 stolen cartons of untaxed cigarettes. Attorney Pasqualini filed a suppression motion challenging the stop, search and seizure of the evidence based upon the extended delay by police at the scene.

Holding:

Motion to suppress granted. Police exceeded the bounds of a lawful Terry Stop and extended it to an arrest. No probable cause for arrest was present. Further, subsequent consent did not vitiate the taint of the unlawful arrest.


Commonwealth of Pennsylvania,

Perry County, 246-CR-2011

v.

Tara Keener

Attorney Jeffrey B. Engle

Charge: Unauthorized Entry onto a School Bus, 18 PaC.S.A. §5517

Tara Keener, a married, registered nurse and mother of two young boys, found herself in a terrible situation after an incident at her home in December 2010. Her oldest son, Xander, age 5, was being dropped off that afternoon by Dum's Bus Service at their house in New Bloomfield, Perry County. As she approached the bus, the doors opened, she could hear two other children yelling that they "couldn't wake him up!" and "he wasn't moving!" The driver yelled twice for the child, to no avail. Tara, relying on her training as an emergency room nurse, realized that there could be any number of scenarios that would cause her child to be unresponsive. Could it be a seizure, is he choking, is his blood sugar low and he passed out? The potential problems raced through her mind. After all, the child had an individual education plan (IEP) for speech and language deficits. There was a history of hypoglycemia and diabetes in the family, but Xander never had any problems...or did he? As she raced through the open bus door and onto the bus her mind raced.

The driver apparently told her she was not permitted to be on the bus. Something Tara vaguely recalls, although her mind was focused on seat number 9, Xander's assigned seat on the bus. The two other children, a third and fourth grader, appeared shocked. "He wasn't moving!" Tara shook the child vigorously and shouted his name. He was only sleeping. Evidently, the child had fallen asleep on the bus before, something the driver for Dum's never reported to Tara or her husband. She escorted young Xander off the bus without incident.

Immediately after arriving in the house, she called the school to report the incident. At the same time, the driver was also reporting the incident. Not because she was concerned for Xander, but because Tara Keener had committed a crime! The PA State Police at Newport contacted Tara to investigate the case. Tara reported the scenario relayed above. She was told in early January 2011 that the trooper had discussed the case with the District Attorney of Perry County, Charles F. Chenot, III and he felt charges were not appropriate. All was well. At least that's what Tara thought.

On April 2, 2011, the PA State Police reversed course and filed a criminal complaint against Tara Keener. The charge- Unlawful Entry onto a School Bus, a misdemeanor of the third degree, punishable by up to one (1) year in jail and a $2,500 fine. The registered nurse was now an accused criminal . She had to report to the Newport State Police barracks for fingerprinting and a mug shot. Her name appeared in the 'In Brief' section of the newspaper. She had to tell her employer about the incident, as was the employer's internal policy. If she didn't and they found out, she would be terminated. Her character and good name was now tarnished.

But what had happened from January 2011 to April 2011 that made the police and the District Attorney change their minds about pursuing criminal prosecution? The District Attorney says he was only pursuing the case because "the bus company was pushing it." The bus company spokesperson, Pamala Schaeffer, says "that's not true, we only report the crime, from there it's out of our hands." There was a disconnect.

How we used the media to solve this case

This case was a shock to the local community. An emergency room nurse charged with trying to help her own son? I received a flurry of letters in my office supporting Tara. I spoke to the District Attorney about dropping the case without success. He was intransigent. I decided to try the case in the Court of Public Opinion instead. If the District Attorney was refusing to listen to sound reason from me, perhaps he'd be willing to listen to others in the community, like the ones that were writing to me on a daily basis.

We leaked the story to a local newspaper. The Patriot News reported on the incident in July 2011. The story garnered front page coverage on July 26 and July 28, 2011. 'Pennlive,' a local blogsite for the Patriot News, had over 170 comments and 700 'Facebook' hits because of the story in one day. Local TV news outlets also picked up the story. ABC news 27, Fox news 43, and CBS news 21 all interviewed Tara at my office. This case was a real 'head scratcher.' We contacted national media outlets as well. There was interest from the folks at the 'Today Show,' 'Fox N Friends' and MSNBC.

The story hit the national scene on Wednesday, July 27 on 'Fox N Friends' during their morning news segment. By 12:57 p.m. that same day, the District Attorney had filed an application with the court for a nolle prosequi (a request to drop the charge). We went on national TV live on the morning of July 28, 2011 at 8:15 am and reported on 'Fox N Friends' that the District Attorney had now reversed course, once again. He was dropping the charges.

More questions unanswered

But why had he chosen to file charges in the first place? He had adequate facts to begin with, didn't he? My client was cooperative with the PA State Trooper in December and told him her side of things. She called the school and the bus company to explain what occurred. He knew that she was a nurse and was trying to assist her own son. No one was interfered with on the bus. There are more questions that need to be answered. Had Dum's Transportation asserted undue influence on the District Attorney? Was Dennis Dum in touch with the DA after January 2011? Did the DA owe Mr. Dum a favor? Was Dum concerned there was some liability for him? Liability that would be lessened if Tara Keener was an accused or convicted criminal? Was the DA looking to make a name for himself during 2011, an election year for his Office?

The case is now over for my client, Tara Keener. This case is not yet over for me.


Commonwealth of Pennsylvania, Dauphin County

CR-3469-2009

v.

Edwin Summerlin

September 16, 2010, Dauphin County, PA

Attorney Elisabeth K.H. Pasqualini

The jury returned a verdict of Not Guilty on the charges of Rape and Intimidation of a Witness/Victim following a three-day trial before Judge Deborah Essis Curcillo. Attorney Elisabeth K. H. Pasqualini defended Harrisburg resident Edwin Summerlin against charges brought by his estranged girl-friend, Tracy Solomon. Ms. Solomon accused Mr. Summerlin of forcing his way into her house, sexually assaulting her, and leaving threatening messages on her voicemail. Testimony was presented that Ms. Solomon invited Mr. Summerlin into her home, had consensual relations with him and only reported the alleged rape several days later when Mr. Summerlin made it clear that the relationship had ended. Judge Essis Curcillo charged the jury on Thursday morning and the jury returned with their verdict shortly after lunch the same day.


965 A.2d 280
Superior Court of Pennsylvania.
COMMONWEALTH of Pennsylvania, Appellee
v.
Eugene Clinton JACKSON, Appellant.

Submitted July 21, 2008.Filed Jan. 30, 2009.

Jeffrey B. Engle, Attorney for Appellant

Synopsis

Background: Following appellate affirmance of conviction, 844 A.2d 1281, and denial of first petition under the Post Conviction Relief Act (PCRA), 890 A.2d 1100, petitioner filed second PCRA petition. The Court of Common Pleas dismissed petition. Petitioner appealed. The Superior Court, 928 A.2d 1123, reversed and remanded. Following evidentiary hearing, the Court of Common Pleas, Dauphin County, Criminal Division, No. CP-22-CR-0001248-2002, Kleinfelter, J., again dismissed petition. Petitioner appealed.

Holding: The Superior Court, Nos. 2001 MDA 2007, 2031 MDA 2007, Fitzgerald, J., held that where counsel was appointed for an evidentiary hearing on a second petition under the Post Conviction Relief Act (PCRA), petitioner's right to representation extended throughout the appeals process.

Case remanded with instructions.


846 A.2d 730
Superior Court of Pennsylvania.
COMMONWEALTH of Pennsylvania, Appellee,
v.
Sherman WRIGHT, Appellant.

Submitted Jan. 5, 2004.Filed March 26, 2004.

Jeffrey B. Engle, Attorney for Appellant

Synopsis

Background: Defendant convicted of possession with intent to deliver controlled substance, possession of marijuana, and possession of drug paraphernalia filed petition for post-conviction relief. The Court of Common Pleas granted relief by reinstating defendant's right of direct appeal nunc pro tunc. Defendant then filed post-sentence motion. The Court of Common Pleas, Dauphin County, Criminal Division, No. 2924 CR 2001, Bratton, J., denied motion, and defendant appealed.

Holdings: Appointed counsel filed Anders motion to withdraw. The Superior Court, No. 839 MDA 2003, Joyce, J., held that:

1 trial court lacked authority to entertain defendant's untimely post-sentence motion after post-conviction court entered order that reinstated only right to direct appeal nunc pro tunc;

2 once defendant's right to direct appeal was reinstated nunc pro tunc, he had 30 days in which to file appeal;

3 Superior Court would consider merits of appeal filed more than 30 days after sentence for drug offenses was imposed;

4 defendant was not entitled to new trial; and

5 evidence was sufficient to support convictions.

Affirmed; motion to withdraw granted.


750 A.2d 872
Superior Court of Pennsylvania.
COMMONWEALTH of Pennsylvania, Appellee,
v.
Paul B. OWENS, Appellant.

Submitted Jan. 18, 2000.Filed April 3, 2000.

Jeffrey B. Engle, Attorney for Appellee

Synopsis

Movant, whose convictions for unlawful delivery of a controlled substance and unlawful possession of drug paraphernalia were affirmed on direct appeal, sought postconviction relief. The Court of Common Pleas denied the petition, and movant appealed. The Superior Court reversed, 718 A.2d 330. On remand, the Court of Common Pleas, Dauphin County, Criminal Division, Nos. 3121, 3122, 3123 CD 1993, Kleinfelter, J., denied the petition. Movant appealed. The Superior Court, No. 1123 MDA 1999, Tamilia, J., held that waiver of trial counsel was invalid, where defendant was not informed during the waiver of counsel colloquy of the permissible range of sentences for the crimes charged.

Reversed and remanded.


780 A.2d 721
Superior Court of Pennsylvania.
COMMONWEALTH of Pennsylvania, Appellant,
v.
Thomas Lee EDRINGTON, Appellee.

Commonwealth of Pennsylvania, Appellee,
v.
Thomas Lee Edrington, Appellant.

Submitted March 19, 2001.Filed July 20, 2001.

Jeffrey B. Engle, Attorney for Appellant

Synopsis

After defendant pled guilty to aggravated assault and other charges, the Court of Common Pleas, Dauphin County, Criminal Division, No. 3974 C.D. 1999, Hoover, J., sentenced defendant to 10 to 20 years' incarceration on aggravated assault charge. Commonwealth appealed, and defendant cross-appealed. The Superior Court, Nos. 1651 MDA 2000 and 1897 MDA 2000, Kelly, J., held that: (1) Commonwealth's challenge to legality of sentence was cognizable on appeal, despite Commonwealth's failure to file a concise statement of matters complained of; (2) defendant was third-time violent offender subject to mandatory prison term of no less than 25 years; and (3) defendant's failure to timely file notice of cross-appeal divested court of jurisdiction.

Judgment of sentence vacated; case remanded; jurisdiction relinquished.


932 A.2d 1261
Supreme Court of Pennsylvania.
COMMONWEALTH of Pennsylvania, Appellant
v.
Alfonso F. CARTER, Appellee.

Argued May 8, 2006.Decided Oct. 17, 2007.

Jeffrey B. Engle, Attorney for Appellee

Synopsis

Background: After defendant's conviction for possession of a controlled substance with intent to deliver was affirmed, defendant petitioned for post conviction relief. The Court of Common Pleas, Dauphin County, Criminal Division, No. 1683 CD 1998, Todd A. Hoover, J., denied the petition. Defendant appealed. The Superior Court, No. 912 MDA 2002, Bender, J., 861 A.2d 957, reversed and remanded. Commonwealth petitioned for review.

Holdings: The Supreme Court, No. 66 MAP 2005, Eakin, J., held that:

1 police crime lab report fell within business record exception to hearsay rule, and thus admission of report did not violate Confrontation Clause, and

2 report was also admissible as an official record.

Order of Superior Court reversed and remanded.

Saylor, J., concurred in part and in result and filed opinion.

Cappy, C.J., dissented and filed opinion.


746 A.2d 592
Supreme Court of Pennsylvania.
COMMONWEALTH of Pennsylvania, Appellee,
v.
Joseph Daniel MILLER, Appellant.

Submitted Jan. 12, 1999.Decided Feb. 24, 2000.Reargument Denied April 28, 2000.

Jeffrey B. Engle, Attorney for Appellee

Synopsis

After defendant's first-degree murder convictions and death sentence were affirmed, 541 Pa. 531, 664 A.2d 1310, defendant petitioned for postconviction relief. The Court of Common Pleas, Dauphin County, Criminal Division, Nos. 2775 and 2787 C.D. 1992, Jeannine Turgeon, J., denied relief. Defendant appealed. The Supreme Court, No. 236 Capital Appeal Dkt., Castille, J., held that: (1) counsel rendered effective assistance; (2) prosecutor did not make improper comments at guilt or penalty phases; (3) sentencing verdict form was appropriate; and (4) proportionality review of death sentence did not violate defendant's due process rights.

Affirmed.

Saylor, J., concurred and filed opinion.


COMMONWEALTH of Pennsylvania,
Dauphin County
v.
Earlston

Jury Verdict, May 19, 2011

Elisabeth K. H. Pasqualini, Attorney for Defendant

Attorney Pasqualini won a Not Guilty verdict for her client J.E. today in Dauphin County court on two felony gun charges. A gun was found under the passenger seat, where her client, Earlston, had been seated, during a search of a car following a traffic stop. Only Earlston and the driver were in the car at the time it was stopped.

On cross examination, the judge refused to allow Ms. Pasqualini to question the officer about the driver's then pending gun charge and a juvenile gun arrest. The officer cited the driver's history as the reasoning for the "sweep" of the car in an earlier proceeding.

The Commonwealth was permitted to argue that Earlston must have known the gun was under the seat because an officer said he tried to run from the scene, yet Earlston was denied the right to testify that he knew the driver had a history with guns and that his reason for leaving the scene was that he was afraid of what the driver might have had in the car.

Although a defendant has no obligation to take the stand to tell his side of the story, Earlston wanted to testify and explain why he tried to leave the scene. Aside from seeming nervous, his alleged flight was the only thing that set him apart from the driver, who wasn't charged but also was in arm's length of the gun.

Even without the defendant's very relevant testimony in this matter, the jury took approximately 20 minutes to return with a verdict of "Not Guilty."