For the Defense - Vol. 4, Issue 4 - 51

authorized by the statue are unconstitutional
when based on a refusal to submit to a
warrantless blood test."
It should be noted that the DUI statute has
been amended in an effort to address Birchfield
and its progeny.
Commonwealth v. Bell: 211 A.3d 761 (Pa.
2019); Amicus filed June 13, 2018, case decided
July 17, 2019.
This case questioned whether it was a violation
of the defendant's rights under the Fourth
Amendment to the United States Constitution
and Article 1, §8 of the Constitution of the
Commonwealth to permit the Commonwealth
to introduce evidence at defendant's trial on
the charge of DUI that the defendant refused to
submit to chemical testing. The majority found
that the defendant waived his argument under
Article 1, §8. As to the Fourth Amendment claim,
the majority concluded that the "evidentiary
consequences" provided by statute "for refusing
to submit to a warrantless blood test-the
admission of that refusal at a subsequent trial for
DUI-remains constitutionally permissible postBirchfield." The majority opinion was authored
by Justice Dougherty and was joined by Chief
Justice Saylor and Justices Baer, Todd and Mundy;
Justice Mundy filed a concurring opinion in which
Justice Todd joined.
Justice Wecht authored a dissenting opinion
in which Justice Donohue joined. Justice
Wecht concluded that the defendant "...had a
constitutional right to refuse to consent to [the
warrantless search of his blood], and the use
of his refusal as evidence of his guilt placed an
impermissible burden upon the exercise of [the
defendant's] Fourth Amendment rights."
Commonwealth v. King: 212 A.3d 507 (Pa.
2019); Amicus filed October 11, 2018, case
decided July 17, 2019.
The PCRA Court granted PCRA counsel's
motion to preclude the Commonwealth from
privately interviewing trial counsel, who allegedly
refused to cooperate with PCRA counsel's
attempt to prepare for the PCRA litigation
and who allegedly was collaborating with the
Commonwealth. The Superior Court affirmed the
entry of that order.

The Supreme Court, in a narrow decision, held
that, "...when a PCRA court is presented with
a request to limit the Commonwealth's access
to trial counsel, it is incumbent upon the court
to consider the totality of the circumstances
and carefully exercise its discretion to craft an
order that balances the interest of the parties."
The Court observed that "...nothing in the law
specifically prohibits the Commonwealth from
interviewing trial counsel when that counsel's
representation of a PCRA petitioner is under
scrutiny, and there is no blanket rule that
establishes that the Commonwealth should
have unconstrained access to trial counsel." The
Court stated that "...it is jurisprudentially sound
to place such matters in the discretion of PCRA
courts." Based on the facts before it, the majority
found no abuse of discretion by the PCRA Court.
The majority opinion was authored by Justice
Baer and joined by Chief Justice Saylor and
Justices Todd and Mundy.
Justice Donohue authored a concurring
opinion. Although Justice Donohue agreed
with the result, Justice Donohue observed that
the case offers an opportunity to clarify the
substantive law in this area, and that such an
analysis is consistent with the issue on which
allowance of appeal was granted. Justice
Donohue's concurring opinion provides a succinct
framework for such analysis.
Justice Mundy filed a concurring opinion,
noting that the decision "...should not be
read to stand for the proposition that the
Commonwealth is generally prohibited
from communicating with trial counsel in
preparation for an evidentiary hearing.
Precluding such communication would hinder the
Commonwealth's ability to prepare for a hearing
or potentially resolve claims in advance of one."
Justice Dougherty filed a dissent. Justice
Dougherty stated that he "...would hold the
PCRA court abused its discretion by precluding
the Commonwealth from privately interviewing
trial counsel based on an unfounded
presumption trial counsel would divulge stillprivileged information."
Commonwealth v. Ford: ___A.3d____(Pa.
2019); Amicus filed February 26, 2019, case
decided September 26, 2019.

Vol. 4, Issue 4

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For The Defense

51



For the Defense - Vol. 4, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 4, Issue 4

Contents
For the Defense - Vol. 4, Issue 4 - 1
For the Defense - Vol. 4, Issue 4 - 2
For the Defense - Vol. 4, Issue 4 - Contents
For the Defense - Vol. 4, Issue 4 - 4
For the Defense - Vol. 4, Issue 4 - 5
For the Defense - Vol. 4, Issue 4 - 6
For the Defense - Vol. 4, Issue 4 - 7
For the Defense - Vol. 4, Issue 4 - 8
For the Defense - Vol. 4, Issue 4 - 9
For the Defense - Vol. 4, Issue 4 - 10
For the Defense - Vol. 4, Issue 4 - 11
For the Defense - Vol. 4, Issue 4 - 12
For the Defense - Vol. 4, Issue 4 - 13
For the Defense - Vol. 4, Issue 4 - 14
For the Defense - Vol. 4, Issue 4 - 15
For the Defense - Vol. 4, Issue 4 - 16
For the Defense - Vol. 4, Issue 4 - 17
For the Defense - Vol. 4, Issue 4 - 18
For the Defense - Vol. 4, Issue 4 - 19
For the Defense - Vol. 4, Issue 4 - 20
For the Defense - Vol. 4, Issue 4 - 21
For the Defense - Vol. 4, Issue 4 - 22
For the Defense - Vol. 4, Issue 4 - 23
For the Defense - Vol. 4, Issue 4 - 24
For the Defense - Vol. 4, Issue 4 - 25
For the Defense - Vol. 4, Issue 4 - 26
For the Defense - Vol. 4, Issue 4 - 27
For the Defense - Vol. 4, Issue 4 - 28
For the Defense - Vol. 4, Issue 4 - 29
For the Defense - Vol. 4, Issue 4 - 30
For the Defense - Vol. 4, Issue 4 - 31
For the Defense - Vol. 4, Issue 4 - 32
For the Defense - Vol. 4, Issue 4 - 33
For the Defense - Vol. 4, Issue 4 - 34
For the Defense - Vol. 4, Issue 4 - 35
For the Defense - Vol. 4, Issue 4 - 36
For the Defense - Vol. 4, Issue 4 - 37
For the Defense - Vol. 4, Issue 4 - 38
For the Defense - Vol. 4, Issue 4 - 39
For the Defense - Vol. 4, Issue 4 - 40
For the Defense - Vol. 4, Issue 4 - 41
For the Defense - Vol. 4, Issue 4 - 42
For the Defense - Vol. 4, Issue 4 - 43
For the Defense - Vol. 4, Issue 4 - 44
For the Defense - Vol. 4, Issue 4 - 45
For the Defense - Vol. 4, Issue 4 - 46
For the Defense - Vol. 4, Issue 4 - 47
For the Defense - Vol. 4, Issue 4 - 48
For the Defense - Vol. 4, Issue 4 - 49
For the Defense - Vol. 4, Issue 4 - 50
For the Defense - Vol. 4, Issue 4 - 51
For the Defense - Vol. 4, Issue 4 - 52
For the Defense - Vol. 4, Issue 4 - 53
For the Defense - Vol. 4, Issue 4 - 54
For the Defense - Vol. 4, Issue 4 - 55
For the Defense - Vol. 4, Issue 4 - 56
For the Defense - Vol. 4, Issue 4 - 57
For the Defense - Vol. 4, Issue 4 - 58
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue1_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue4_2020
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue2_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue1_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue4_2019
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue2_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue1_2018
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue4_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue3_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue2_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue1_2017
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue4_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue3_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue2_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue1_2016
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