For the Defense - Vol. 8, Issue 3 - 68

Amicus
Matters
T
Donna Walsh
and Brian McNeil
he Amicus Committee plays a pivotal role in advocacy at
the appellate level. The Committee filed several briefs
in recent months advancing policy issues relevant to
criminal defense practice. Highlights of those amicus briefs
are below.
Commonwealth v. Berry, 16 EAP 2023 and 17
EAP 2023
Amicus Authors: Professor Jules Epstein, Temple University,
Beasley School of Law and Emily Mirsky, Delaware County
Office of the Public Defender
Filing Date: July 5, 2023
PACDL submitted a brief in support of an appeal to the
Pennsylvania Supreme Court from a sentence that deviated
upward from the sentencing guidelines based in part on
the defendant's arrest record. The trial court acknowledged
the defendant's lack of any prior criminal conviction, but
nonetheless took prior arrests into account in deciding to
impose a sentence above the guidelines. The Superior Court
found no abuse of discretion in the trial court's consideration
of mere arrest records because the arrests did not factor into
the defendant's prior record score and because it deemed
the arrests relevant to amenability to rehabilitation.
In its brief, PACDL argued that consideration of an arrest
when determining a criminal sentence is incompatible with
settled Pennsylvania law and violates due process. The
mere fact of an arrest does not indicate that a person is
likely to commit a future crime. Arrests are not sufficient to
support revocation of probation or parole, cannot be used
to impeach the credibility of a witness, and do not support
adverse action in other contexts against a defendant who
was accepted into ARD after an arrest. Moreover, it is a
violation of due process to consider unreliable information
in deciding upon a criminal sentence. Uncharged conduct
68 For The Defense l Vol. 8, Issue 3
(which is similar to the fact of an arrest) has been held to be
an acceptable sentencing consideration only when there is
evidentiary proof linking the defendant to the conduct.
Beyond the problem of an arrest being equally consistent
with either guilt or innocence, arrests are disproportionately
visited upon people of color. The PACDL brief cites to
compelling data demonstrating that police disproportionately
arrested people of color relative to the rates at which black
people and white people commit crimes. Reliance on arrests
at sentencing results in harsher punishments for people of
color.
PACDL urged the Supreme Court to ban consideration of
arrest records at sentencing.
Commonwealth v. Richards, 25 MAP 2023
Amicus Author: Brian McNeil, York County Public Defender's
Office
Filing Date: May 30, 2023
PACDL's amicus filing in Richards urges the Supreme Court
to reverse the en banc decision of the Superior Court which
overruled Commonwealth v. Chichkin.1
Chichkin held that it
was unconstitutional to treat acceptance of ARD as a prior
offense under the Pennsylvania statutory which triggers
enhanced punishment for subsequent DUI offenses.2
In
Commonwealth v. Verbeck, the Supreme Court evenly divided
over whether Chichkin was correctly decided.3
The Supreme
Court's decision in Richards is expected to settle the issue.
PACDL argued that the Superior Court got it right in
Chichkin and its decision in Richards should be overruled.
The brief argues that Alleyne, Apprendi, and substantive
due process prohibit using a prior ARD resolution as a basis
for increasing the grading of a DUI offense and imposing
a mandatory-minimum sentence. PACDL further asked the

For the Defense - Vol. 8, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 8, Issue 3

Contents
For the Defense - Vol. 8, Issue 3 - 1
For the Defense - Vol. 8, Issue 3 - 2
For the Defense - Vol. 8, Issue 3 - Contents
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