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2022

Article I, Section 1:

Diop v. Bureau of Professional and Occupational Affairs, 2022 WL 619575 (Pa. Commw. Ct. 2022) (Mar. 3, 2022), per Leavitt, J., the Pennsylvania Commonwealth Court held that a law requiring a license to engage in commercial natural hair braiding did not violate Article I, Section 1 of the Pennsylvania Constitution. Although Petitioners demonstrated why the licensing requirement was unreasonable when applied to experienced hairdressers, Petitioners failed to establish why the licensing requirement was unreasonable when applied to individuals with little to no experience. The court held that the requirement was not facially unconstitutional. The court also found that allowing licensed cosmetologists to engage in natural hair braiding without any training does not violate the equal protection clause in Article I, Section 26 of the Pennsylvania Constitution, both facially and as applied to them. The court reasoned that licensed cosmetologists were required to go through extensive training at an accredited school, and were therefore not similarly situated.

Markey v. Treasury Department, 2022 WL 1669093, (Pa. Commw. Ct.) (May 26, 2022), per Ceisler, J., the Commonwealth Court ruled that the personal contact information of those making Right to Know requests was exempt from disclosure under the Right to Know law. The right to privacy afforded by Article I, Section 1 of the Pennsylvania Constitution is not absolute, but the requester must identify a public interest beyond a desire to know the contact information being requested.

Article I, Section 3:

In re Passmore, 2022 WL 1154711 (Pa. Super. Ct. 2022) (Apr. 19, 2022), per McCaffery, J., the Pennsylvania Superior Court held that the state’s prohibition on name changes for those convicted of certain crimes, including murder, does not violate Article I, Section 3 when a name change requested on religious grounds is denied. The Petitioner failed to demonstrate any tenet of his religion, nor did he describe how the name change statute placed a substantial burden on his religious exercise. The court found that, because the Pennsylvania Constitution provides no broader protections for the free exercise of religion than the First Amendment of the United States Constitution, the statute could not be found to violate the Petitioner’s religious rights under either.

Article I, Section 7:

Oberholzer v. Galapo, 2022 WL 678839 (Pa. Super. Ct. 2022) (Mar. 7, 2022), per Nichols, J., the Pennsylvania Superior Court held that an injunction requiring an individual to re-position yard signs should be subject to the heightened level of scrutiny under Madsen. The trial court originally applied the time, place, and manner analysis. However, because an injunction could further the significant government interest in one’s right to residential privacy, the trial court should have tailored its injunction to ensure it “burdened no more speech than necessary to serve Pennsylvania’s right to residential privacy.”

Article I, Section 8:

Commonwealth v. Pownall, 2022 WL 2824741, 278 A.3d 885 (Pa. 2022) (July 20, 2022), per Dougherty, J., the Supreme Court ruled that the question of the constitutionality of a statute that would potentially provide a defense for a police officer criminally charged with killing a person could not be separated from the merits of the prosecution and therefore barred the district attorney from seeking interlocutory appeal. A court ruling on whether a statute regarding the use of deadly force was unconstitutional under the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution could result in a change to the substantive law in the underlying trial, and so the interlocutory appeal was quashed.

Commonwealth v. Small,

Commonwealth v. McFarland, 2022 WL 2336619 (Pa. Super. Ct. 2022) (June 29, 2022), per Murray, J., the Superior Court ruled that the National Precursor Log Exchange (NPLEX), which tracks attempted purchases of over-the-counter methamphetamine precursor medications, is retail purchase information, not protected health information, and therefore neither Article I, Section 8 of the Pennsylvania Constitution nor the Fourth Amendment of the United States Constitution protect against warrantless search of these records. There is no expectation of privacy when a retail customer enters a public business, openly requests to purchase a substance that can be used to manufacture illegal controlled substances, and voluntarily provides personal information in order to complete the purchase.

Commonwealth v. McMahon, 2022 WL 2312525 (Pa. Super. Ct.) (June 28, 2022), per Murray, J., the Superior Court ruled that Commonwealth v. Alexander’s limitations on warrantless searches of vehicles did not apply to a search conducted due to clearly visible marijuana cigarettes in the center cupholder of an automobile. The plain view exception gave police the right to access the marijuana cigarettes, and other drugs found while securing the car were therefore lawfully seized.

Commonwealth v. DeCarlo, 2022 WL 1166543 (Pa. Super. Ct. 2022) (Apr. 20, 2022), per King, J., the Pennsylvania Superior Court held that there is no “good faith” exception to the exclusionary rule under Article I, Section 8 of the Pennsylvania Constitution. The warrantless search of Respondent’s automobile was performed pursuant to Commonwealth v. Gary, but Gary was subsequently overturned by the Pennsylvania Supreme Court in Commonwealth v. Alexander, which the court applied retroactively in this case. The court held that the fact that the officer could have discovered contraband had he applied for a warrant was insufficient. The court affirmed its prior position that there is no “good faith” exception to the exclusionary rule when an officer incorrectly believes that they are conducting a legal search.

Commonwealth v. Saleem, 2022 WL 1102152 (Pa. Super. Ct. 2022) (Apr. 13, 2022), per Bowes, J., the Superior Court held that under Article I, Section 8 of the Pennsylvania Constitution, a search warrant targeting cell phone data should be read together with an incorporated affidavit of probable cause when determining the warrant’s specificity. The language of the warrant alone, covering “all data” held by Petitioner’s digital devices, was constitutionally problematic. However, by specifically incorporating the affidavit listing the crimes under investigation, the warrant had a sufficiently narrow scope.

Commonwealth v. Thomas, 2022 WL 1088625 (Pa. Super. Ct. 2022) (Apr. 12, 2022), per Stevens, J., the Superior Court held that a police officer’s request that a cyclist “hold up a second” to talk constituted a mere encounter that did not require reasonable suspicion. The court reviewed the protections under the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution together in deciding that the nature of the officer’s interactions did not require any level of suspicion; therefore an illegal search did not occur when the officer recovered a firearm discarded by Appellant as he fled.

Commonwealth v. Curry, 2022 WL 1053283 (Pa. Super. Ct. 2022) (Ap. 8, 2022), per Nichols, J., the Superior Court held that because Appellant’s vehicle would have been impounded and inventoried, contraband found in the center console through an illegal search would have been inevitably discovered and was therefore admissible. Despite the trial court’s holding that Article I, Section 8 of the Pennsylvania Constitution requires stricter showing of inevitable discovery than does the Fourth Amendment of the United States Constitution, the Superior Court determined that Pennsylvania law requires the same preponderance of evidence standard used by the United States Supreme Court in Nix v. Williams in determining inevitability exceptions to the exclusionary rule.

Commonwealth v. Anderson, 2022 WL 1655380 (Pa. Super. Ct.) (May 25, 2022), per McCaffery, J., the Superior Court held that an officer requesting identification of a person followed by additional questioning constituted a substantial escalating factor, raising the encounter to the level of an investigative detention. The officer testified that he was “curious” about an “unusual” situation, but this was insufficient to show reasonable, particularized suspicion. The officer did not have the reasonable suspicion necessary to justify the detention, and evidence gathered from that encounter was properly suppressed under Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution.

Article I, Section 9:

Commonwealth v. Heyboer, 2022 WL 2921369 (Pa. Super. Ct. 2022) (July 26, 2022), per Stabile, J., the Superior Court ruled that the death of an appellant was good cause for absence from an appellate trial de novo, and the death was therefore not grounds for dismissal of pending appellate action. Additionally, in cases in which the appellant appeals and is entitled to a trial de novo, but dies before it can take place, Rule 602 of the Rules of Criminal Procedure provides protections above and beyond the constitutional right of a defendant to be present at trial. While the constitutional right requires that a defendant show that absence from trial would undermine fairness, Rule 602 requires that the defendant be present at every stage of the trial unless there is no good cause for the absence. The death of the defendant constitutes good cause and the continuation of proceedings would be a violation of the defendant’s rights. Criminal charges against the deceased appellant were returned to the trial court for abatement upon certification of the appellant’s death.

Commonwealth v. Washington, 2022 WL 288221 (Pa. Super. Ct. 2022) (Feb. 1, 2022), per King, J., The Pennsylvania Superior Court found that an attorney’s unreasonable advice that a client not testify on their own behalf was sufficient to raise an ineffective counsel defense. The attorney advised her client not to testify because she did not want the client to be impeached with evidence of his past aggravated assault convictions. However, the aggravated assault was inadmissible and counsel had no other reasonable basis to instruct her client to waive his right to testify. Article I, Section 9 of the Pennsylvania Constitution guarantees the accused the right to testify on his behalf and the commonwealth bears the burden of proving a waiver of that right. Further, a criminal defendant must understand his decision not to testify. Because the defendant waived his right due to ineffective advice of counsel, the court vacated the sentence and remanded the case for a new trial. 

Commonwealth v. Dixon, 2022 WL 1670726 (Pa. Commw. Ct.) (May 26, 2022), per Lazarus, J., the Commonwealth Court ruled that witnesses being prohibited from removing their masks at trial did not violate the right to confront witnesses guaranteed by Article I, Section 9 of the Pennsylvania Constitution and the Sixth Amendment of the United States Constitution. The jury was still able to observe the witnesses and assess their credibility despite the facial coverings, and defense counsel was still permitted to cross-examine the witnesses, so the defendant’s right to physical face-to-face confrontation was not denied.

Commonwealth v. Cuevas, 2022 WL 2112998 (Pa. Commw. Ct.)(June 13, 2022), per Kunselman, J., the Commonwealth Court reaffirmed the constitutionality of the Tender Years Hearsay Act under both the United States and Pennsylvania constitutions. Admitting evidence from out-of-court statements made by a child witness after the witness testified in open court that the prior statements were truthful was a constitutionally-based mandate, not a violation of the defendant’s rights under Article I, Section 9 of the Pennsylvania Constitution.

Article I, Section 10:

Commonwealth v. Statler, 2022 WL 2952338 (Pa. Super. Ct. 2022) (July 26, 2022), per Bender, J., the Superior Court ruled that the double jeopardy protections of the Pennsylvania Constitution does not prevent retrying a case in which the prosecutor chose to withhold a confession from the defense. The prosecutor’s mistaken belief that he did not need to produce evidence not intended to be used during trial did not rise to the level of recklessly depriving the defendant of a fair trial, and therefore the case could be retried when the initial jury was unable to reach a verdict.

Commonwealth v. Edwards, 2022 WL 1087179 (Pa. 2022) (Apr. 12, 2022), per Baer, J., the Pennsylvania Supreme Court held that a retrial following a Batson violation did not constitute double jeopardy under the Pennsylvania Constitution. A prosecutor’s discriminatory strike of an African American juror did not rise to the level of “overwhelming and egregious prosecutorial misconduct” necessary to trigger double jeopardy protections under Article I, Section 10. Therefore, the court determined that a new trial was permissible despite Pennsylvania double jeopardy protections.

Article I, Section 11:

MFW Wine Co., LLC v. Pennsylvania Liquor Control Bd., 2022 WL 1698703 (Pa. Commw. Ct.) (May 27, 2022), per Covey, J., the Commonwealth Court held that the Pennsylvania Liquor Control Board is a person for the purposes of mandamus and can be liable for damages from its failure to perform a duty required of it by law. Mandamus cases are not barred by sovereign immunity per 42 Pa.C.S. § 8303, which allows recovery by aggrieved parties in accordance with Article I Section 11 of the Pennsylvania constitution.

Article I, Section 13:

Commonwealth v. Felder, 2022 WL 529338 (Pa. 2022) (Feb. 23, 2022), per Dougherty, J., the Pennsylvania Supreme Court withdrew sentencing requirements for a juvenile subject to life in prison without parole in light of Jones v. Mississippi. The court held that the sentencing procedures adopted by Pennsylvania courts in Batts II no longer “carry the protections of the Eighth Amendment.” Batts II required a presumption against sentencing a juvenile homicide offender to life without parole and imposed upon the Commonwealth the burden of proving beyond a reasonable doubt that the juvenile is permanently incorrigible. These procedures were consistent with interpreting Article I, Section 13 of the Pennsylvania Constitution as coterminous with the Eighth Amendment. However, the Supreme Court in Jones recently held that a life-without-parole sentence for a juvenile murderer is constitutional so long as the sentencer has discretion. In a dissenting statement, Justice Wecht argued that the question presented by Felder is moot and the case should be dismissed as “improvidently granted.”

Commonwealth v. Ishankulov, 2022 WL 1161356 (Pa. Super. Ct. 2022) (Apr. 20, 2022), per Dubow, J., the Pennsylvania Superior Court affirmed its position that Article I, Section 13 of the Pennsylvania Constitution is coextensive with the Eight Amendment of the United States Constitution and provides no broader protection against excessive sentences. The court ruled that a fine of $10,200 for operating a tractor-trailer on a bridge in violation of the stated weight limit ordinance was reasonable, as the fine was a deterrent in addition to a punishment and could therefore be whatever amount was necessary to deter future violation of the law.

Article I, Section 18:

Commonwealth v. Watts, 2022 WL 2952339 (Pa. Super. Ct. 2022) (July 26, 2022), per Kunselman, J., the Superior court ruled that Act 33, which requires that a minor over 15 accused of certain crimes utilizing a deadly weapon be tried in criminal court, does not violate due process by placing the burden of proof on a juvenile seeking decertification to juvenile court and there is no violation of either the Pennsylvania constitution or the United States Constitution. The Court states that any changes to the law must be addressed either by the General Assembly or the Supreme Court.

Article I, Section 21:

Firearm Owners Against Crime v. City of Pittsburgh, 2022 WL 1698851 (Pa. Commw. Ct.) (May 27, 2022), per McCullough, J., the Commonwealth Court held that Pittsburgh’s city ordinances, which placed limits on the use of certain firearms in public places and possession of firearms by those with dangerous propensities, was preempted by the state’s Uniform Firearms Act (“UFA”). The Court ruled that the UFA preempts all attempts at firearm regulation by any township in Pennsylvania. Article IX Section 2 of the Pennsylvania Constitution grants municipalities only those powers not denied by the Constitution or the General Assembly, and firearm regulation is preempted by both Article I Section 21 of the Constitution and the legislature’s UFA.

Crawford v. Commonwealth, 562 M.D. 2020, 2022 WL 1792829 (Pa. Commw. Ct.) (May 26, 2022), per McCullough, J., the Commonwealth Court ruled in favor of the General Assembly in response to a Petition for Review that challenged the validity of Section 6120(a) of the Pennsylvania Uniform Firearms Act. The court ruled that there is no constitutional duty for the state to protect citizens from gun violence. Furthermore, it ruled that the constitutional protections to firearm ownership under Article I Section 21 make the regulation of firearms a matter of concern for all citizens of the state, and therefore regulation is under the purview of the General Assembly, not individual city councils.

Article I, Section 26:

DuBoise v. Rumcik, 2022 WL 2030082 (Pa. Commw. Ct.) (June 7, 2022), per Covey, J., the Commonwealth Court ruled that prisoners do not have a right to access their mental health records, even after treatment has concluded, under the equal protection rights afforded by Article I, Section 26 of the Pennsylvania Constitution and the Fourteenth Amendment of the United States Constitution. The court ruled that denying inmates access to mental health opinions and evaluations served a legitimate interest by promoting the efficacy of treatment and accuracy of observations made by mental health professionals. The possibility that a previously treated inmate may need future treatment justifies the government’s interest in not providing the records.

Sargent v. School District of Philadelphia, 2022 WL 3155408 (E.D. Pa. 2022) (August 8, 2022), per Kennedy, J., the District Court denied a request for a preliminary injunction to halt a zip-code based advantage in a school’s admission lottery system. Analyzing the state constitutional claims under the United States Supreme Court equal protection standard of review, the court ruled that comments from the school board stating that the number of qualified minority students would increase did not constitute racial classification. The zip codes selected had the lowest percentage of first-time ninth graders, demonstrating a legitimate state interest in providing a preference in the admission lottery system. Further, there was no evidence that the system created a racially discriminatory impact. The preliminary injunction was denied because the school’s admission system was likely to pass rational basis review.

Article I, Section 27:

Pennsylvania Environmental Defense Foundation v. Commonwealth, 2022 WL 3133921 (Pa. 2022) (August 5, 2022), per Baer, J., the Supreme Court held that the General Assembly did not violate Article I, Section 27 by using the oil and gas royalties in the Lease Fund for the general operations of the Department of Conservation and Natural Resources, commingling other funds into the Lease Fund, or transferring non-trust funds used by the DCNR to non-environmental projects. The General Assembly can fulfill its trustee duties by segregating money from different funds and keeping proper accounting records so long as the Lease Fund is used solely for the purposes of conservation, recreation, dams, or flood control.

Article VI, Section 7:

Montemuro v. Jim Thorpe Area School District, 2022 WL 2345916 (M.D. Pa. 2022) (June 29, 2022), per Mariani, J., the District Court ruled that removal of an appointed civil officer is not an unfettered power, as it requires that they behave in a manner not befitting the trust placed in them by the appointing power. Article VI, Section 7 limits the power of a school board to remove the president without a hearing. The court denied certification for interlocutory appeal on this question, but stayed its proceedings until the Third Circuit rules on the question of qualified immunity.

Article VII, Section 1:

Commonwealth v. McLinko, 2022 WL 3039295 (Pa. 2022) (August 2, 2022), per Donohue, J., the Supreme Court held that universal mail-in voting does not violate the Pennsylvania Constitution and that the term “offer to vote” does not mandate in-person voting. The 1862 decision that interpreted that term to require in-person voting was based on the ballot voting requirement of the 1838 Constitution, which was amended in 1901 to allow for alternative methods of voting.

Methodological Provisions:

Henry v. York County, 2022 WL 696469 (M.D. Pa. 2022) (Mar. 8, 2022), per Robert D. Mariani, J., the court held that there is no private cause of action for damages under the Pennsylvania Constitution and dismissed the claim of an inmate who sought damages for negligent medical treatment while incarcerated.

McLinko v. Department of State, 2022 WL 257659 (Pa. Commw. Ct. 2022) (Jan. 28, 2022), per Leavitt, J., the Commonwealth Court struck down Act 77 that would allow no-excuse mail-in voting, reasoning that the act violates three sections of the Pennsylvania Constitution. Currently, the Pennsylvania Constitution requires in-person voting, and that requirement can only be waived where the elector’s absence is for reasons of occupation, physical incapacity, religious observance, or Election Day duties. The court noted that there must be a constitutional amendment to remove the requirement of in-person voting. 

Edmondson v. Pennsylvania Parole Board, 2022 WL 2713204 (Pa. Commw. Ct. 2022) (July 13, 2022), per Wallace, J., the Commonwealth Court ruled that because the 1968 Constitution amended the 1874 Constitution through a limited constitutional convention, the 1874 Constitution was never completely abrogated. The court also denied that the adoption of the 1968 Constitution could have rendered the Crimes Code and Parole Code void despite not containing a “savings schedule” because both laws were codified after the 1968 Constitution.