For the Defense - Vol. 6 Issue 3 - 29

Commonwealth v. Brozenick, 1 WAP 2021 (January 5,
2021)
Whether the Superior Court
misinterpreted
this
Honorable
Court's
decision in Commonwealth v. Tharp, 575
A.2d 557 (Pa. 1990), and, therefore, erred in
concluding that the trial court did not abuse
its discretion in denying Mr. Brozenick's
Motion for Judgment of Acquittal, and
allowing the Commonwealth to reopen
the record where the Commonwealth
manifestly failed to present sufficient
evidence in its case-in-chief to sustain three
counts of Simple Assault and three counts
of Terroristic Threats?
the Commonwealth rested in Brozenick's
jury trial for simple assault and terroristic threats,
defense counsel moved for judgment of acquittal as
to the counts pertaining to three victims named in the
information who did not testify at trial despite their
appearance in the courtroom. Instead of granting
the motion, the trial court asked the prosecutor
numerous times if the Commonwealth would like to
reopen the record to introduce the testimony of the
non-testifying witnesses. In declining to grant relief
on the defendant's claim that the trial court abused
its discretion by encouraging and permitting the
Commonwealth to reopen the record, the Superior
Court relied on Commonwealth v. Tharp, which held
that a trial court has the discretion to reopen a case
for either side, prior to the entry of final judgment,
in order to prevent a failure or miscarriage of justice.
After
Commonwealth v. Green, 6 MAP 2021 (January 25,
2021)
Was the search warrant issued for the
defendant's home and electronic devices
overbroad, and did the affidavit fail to
establish probable cause?
In Commonwealth v. Johnson,4
a case decided last
year, SCOPA was asked to consider the permissible
scope of a warrant under the Pennsylvania Constitution
to search an individual's cell phone for evidence of
criminal activity. The Johnson Court decided the case
on much narrower grounds: that the search warrant
was so lacking in probable cause that any search of the
phone was unjustified. SCOPA's acceptance of Green
signals its interest in expounding upon the overbreadth
and particularity doctrines under the Pennsylvania
Constitution, which provide greater protections than
their federal counterparts.5
Commonwealth v. Edwards, 6 EAP 2021 (January 26,
2021)
Does the reasoning and rationale
contained within this Honorable Court's
recent decision (May 19, 2020) in
Commonwealth v. [] Johnson, [231 A.3d
807 (Pa. 2020)], apply to a Batson violation,
thereby precluding a retrial based upon
double jeopardy principles?
In Commonwealth v. Johnson,6
SCOPA held that
the Double Jeopardy Clause of the Pennsylvania
Constitution bars retrial not only where prosecutorial
misconduct is undertaken intentionally to deprive
a defendant of a fair trial, but also where such
misconduct is undertaken recklessly; that is, with a
conscious disregard that an unfair trial will result. The
Superior Court granted Edwards a new trial in 2018
after it found that the Commonwealth demonstrated
discriminatory intent in its exercise of peremptory
challenges during jury selection in violation of Batson
v. Kentucky.7
On remand, Edwards filed a motion
to dismiss on double jeopardy grounds. When the
trial court denied the motion, Edwards filed this
interlocutory appeal. On appeal, Edwards recognizes
the Superior Court precedent set in Commonwealth v.
Basemore,8
which held that a Batson violation does
not per se bar retrial on double jeopardy grounds but
asks SCOPA to reconsider Basemore's reasoning in light
of Johnson.
Commonwealth v. DiStefano, 7 WAP 2021 (February
26, 2021)
Did the Superior Court err in reversing
the order entered November 14, 2019, by
departing from [the] standard of review
for the admission or exclusion of evidence
and so conflicted with binding precedent
inasmuch as the Superior Court engaged in
a de novo examination of the challenged
evidence rather than reviewing the [t]rial
[c]ourt's exercise of discretion?
After a homicide charge was dismissed due to
the Commonwealth's failure to present prima facie
evidence, DiStefano moved to exclude all evidence of
the decedent's death during his trial for aggravated
assault. The trial court entered an order stating
that the prosecution " shall be permitted to present
evidence that the victim is deceased to explain to the
jury his absence at trial and why the expert testimony
from a forensic pathologist is being presented. The
homicide charge has been dismissed, therefore, no
evidence shall be permitted to prove that [DiStefano]
caused the victim's death. " The Commonwealth
Vol. 6, Issue 3 l For The Defense 29
For the Defense - Vol. 6 Issue 3

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