per se rule in Pennsylvania

1987Justice Eagen’s concurring opinion in Commonwealth v. Tingle, 451 Pa. 241, 249 , 301 A.2d 701, 705 (1973), underscored the rule that the “operative question is what occurred within the delay.” (Italics in the original.) Tingle’s majority opinion held further that Futch did not establish a per se rule that “all evidence obtained during an unnecessary delay be excluded.

1987Justice Eagen’s concurring opinion in Commonwealth v. Tingle, 451 Pa. 241, 249 , 301 A.2d 701, 705 (1973), underscored the rule that the “operative question is what occurred within the delay.” (Italics in the original.) Tingle’s majority opinion held further that Futch did not establish a per se rule that “all evidence obtained during an unnecessary delay be excluded.

2015In discussing the discipline to be imposed, Justice Newman, writing for the court, and citing Office of Disciplinary Counsel v. Lucarini, 504 Pa. 271 , 472 A.2 186 (1983) said “While this court certainly does not condone acts of dishonesty, we have declined to adopt a per se rule requiring disbarment for specific acts of misconduct.” Office of Disciplinary Counsel v. Chung , at p. 407.

1990Such discretion is incompatible with the per se rule urged by Disciplinary Counsel.” Office of Disciplinary Counsel v. Lucarini, 504 Pa. 271 , 472 A.2d 186 (1983).

2020“This Court has declined to adopt a per se rule requiring disbarment for specific acts of misconduct.” Office of Disciplinary Counsel v. Chung, 695 A.2d 405 (Pa. 1997).

2015In discussing the discipline to be imposed, Justice Newman, writing for the court, and citing Office of Disciplinary Counsel v. Lucarini, 504 Pa. 271 , 472 A.2 186 (1983) said “While this court certainly does not condone acts of dishonesty, we have declined to adopt a per se rule requiring disbarment for specific acts of misconduct.” Office of Disciplinary Counsel v. Chung , at p. 407.

1981Expanding upon its holding one year earlier in Commonwealth v. Roane, 459 Pa. 389 , 329 A.2d 286 (1974), the court in a series of cases, Commonwealth v. Smith, 465 Pa. 310 , 350 A.2d 410 (1976); Commonwealth v. Stanton, 466 Pa. 143 , 351 A.2d 663 (1976); Commonwealth v. Starkes, 461 Pa. 178 , 335 A.2d 698 (1975); Commonwealth v. Webster, 466 Pa. 314 , 353 A.2d 372 (1975); Commonwealth v. Riggs, 465 Pa. 208 , 348 A.2d 420 (1975); Commonwealth v. Chaney, 465 Pa. 407 , 350 A.2d 829 (1975); and most notably in Commonwealth v. McCutchen, 463 Pa. 90 , 343 A.2d 669 (1975), clearly established such a

1981Expanding upon its holding one year earlier in Commonwealth v. Roane, 459 Pa. 389 , 329 A.2d 286 (1974), the court in a series of cases, Commonwealth v. Smith, 465 Pa. 310 , 350 A.2d 410 (1976); Commonwealth v. Stanton, 466 Pa. 143 , 351 A.2d 663 (1976); Commonwealth v. Starkes, 461 Pa. 178 , 335 A.2d 698 (1975); Commonwealth v. Webster, 466 Pa. 314 , 353 A.2d 372 (1975); Commonwealth v. Riggs, 465 Pa. 208 , 348 A.2d 420 (1975); Commonwealth v. Chaney, 465 Pa. 407 , 350 A.2d 829 (1975); and most notably in Commonwealth v. McCutchen, 463 Pa. 90 , 343 A.2d 669 (1975), clearly established such a

2024A fortiori, counsel’s failure to request a lineup or failure to object to identification testimony is not per se ineffective assistance. - 10 - J-S30036-23 Commonwealth v. Kenon, 482 A.2d 611, 613 (Pa. Super. 1984) (internal citation and quotations omitted).

2017Commonwealth v. Edwards, 2000 PA Super 330 , 762 A.2d 382, 391 (Pa. Super. 2000) (discussing Commonwealth v. Kenon, 333 Pa. Super. 366 , 482 A.2d 611, 613-14 (Pa.Super. 1984)) (citations omitted).

2023Rather, the Smith court primarily was concerned with prosecution tactics, which actually were designed to demean or subvert the truth seeking process.” Commonwealth v. Lambert, 765 A.2d 306, 327 (Pa. [ ] Super. 2000) (cleaned up).

2023Rather, the Smith [C]ourt primarily was concerned with prosecution tactics, which actually were designed to demean or subvert the truth seeking process.” Commonwealth v. Lambert, 765 A.2d 306, 327 (Pa. [ ] Super. 2000) (cleaned up).

2017However, this Court’s decision should not be read to suggest a per se rule that all -driveways are part of a home’s curti-lage, as “the Fourth Amendment does not generally tolerate per se rules, as- they are contrary to the standards of reasonableness and probable cause - built into the amendment’s text.” Commonwealth v. Shabezz, 166 A.3d 278, 291 (Pa. 2017) (Mundy, J., concurring); see also U.S. Const. amend.

2017However, this Court’s decision should not be read to suggest a per se rule that all -driveways are part of a home’s curti-lage, as “the Fourth Amendment does not generally tolerate per se rules, as- they are contrary to the standards of reasonableness and probable cause - built into the amendment’s text.” Commonwealth v. Shabezz, 166 A.3d 278, 291 (Pa. 2017) (Mundy, J., concurring); see also U.S. Const. amend.

2017IV; Commonwealth v. Smith, 621 Pa. 218 , 77 A.3d 562, 571 (2013) (stating, “[i]n Fourth Amendment/Article I, Section 8 cases, this Court and the United States Supreme Court have been equally dear that per se rules ... are extremely disfavored[ ]”). .

2017IV; Commonwealth v. Smith, 621 Pa. 218 , 77 A.3d 562, 571 (2013) (stating, “[i]n Fourth Amendment/Article I, Section 8 cases, this Court and the United States Supreme Court have been equally dear that per se rules ... are extremely disfavored[ ]”). .

2015See Glasser v. United States, 315 U.S. 60 , 62 S.Ct. 457 , 86 L.Ed. 680 (1942).

2015See Glasser v. United States, 315 U.S. 60 , 62 S.Ct. 457 , 86 L.Ed. 680 (1942).

2020“In other words, we acknowledge the legitimate perception of a per se rule arising from this Court’s decisions.” Id.

2019Islas, 156 A.3d at 1188 , quoting Carrasquillo 115 A.3d 1284, 1292 (Pa. 2015). "'In other words, we acknowledge the legitimate perception of a per se rule arising from this Court's decisions."' � The Carrasquillo Court acknowledged that '"[w]hile our Court shared this misimpression, ... we also observed that this per se approach was 'apparently an extremely unpopular rule with prosecutors and trial courts."' Islas, 156 A.3d at 1188-1189 , quoting Commonwealth v. Kirsch, 930 A.2d 1282, 1285 (Pa.Super. 2007).

2023In correspondence ____________________________________________ 3 The Pennsylvania Supreme Court has held that with respect to Section 9543.1's requirement for a showing of actual innocence, “a confession, even if previously and finally adjudicated as voluntary, does not constitute a per se bar to establishing a prima facie case [of actual innocence], and the convicted person may, therefore, obtain DNA testing under Section 9543.1 if he or she meets all of this statute's pertinent requirements.” Commonwealth v. Wright, 14 A.3d 798, 800 (Pa. 2011). -5- J-A28014-22 filed along with the PCRA court

2023However, even prior to the enactment of the amendment, in 2011, the Supreme Court held “a confession, in and of itself, is not a per se bar under Section 9543.1(c)(3) to a convicted individual establishing a prima facie case that DNA testing would establish actual innocence of the crime for which he or she was convicted, even if the voluntariness of that confession has been fully and finally litigated.” Commonwealth v. Wright, 14 A.3d 798, 817 (Pa. 2011).

2025“In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” 78 Although the dissipation of BAC evidence could contribute to a finding of exigency in certain cases, the McNeely Court reasoned that this was merely “a reason to decide each case on its facts, as we did in Schmerber, not to accept the ‘considerable overgeneralization’ that a per se rule would reflect.” 79 The Court additionally commented that blood testing

2025With the exigent circumstances doctrine unable to support a per se rule, a categorical exception quickly was sought, and soon granted, under another exception to the warrant requirement—the search-incident-to-arrest doctrine. 88 This rule, however, would come with a caveat: warrants are categorically excused only for breath testing, not for blood draws. 85 McNeely, 569 U.S. at 155 . 86 Id. at 165 . 87 Id. at 156 .

1981NOTES [1] Appellant's other argument, that the lower court erred in refusing to grant his motion to suppress the heroin as a product of an illegal search, is clearly without merit and will not be discussed except to note that the facts of the search in this case differ very little from those presented in this court's en banc decision in Commonwealth v. Thomas, 254 Pa.Super. 505 , 386 A.2d 64 (1978). [2] Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). [2a] In Fare v. Michael C., 442 U.S. 707 , 99 S.Ct. 2560 , 61 L.Ed.2d 197 (1979), the Supreme Court of the United State

1981NOTES [1] Appellant's other argument, that the lower court erred in refusing to grant his motion to suppress the heroin as a product of an illegal search, is clearly without merit and will not be discussed except to note that the facts of the search in this case differ very little from those presented in this court's en banc decision in Commonwealth v. Thomas, 254 Pa.Super. 505 , 386 A.2d 64 (1978). [2] Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). [2a] In Fare v. Michael C., 442 U.S. 707 , 99 S.Ct. 2560 , 61 L.Ed.2d 197 (1979), the Supreme Court of the United State

1983Subsequent adoption of the per se requirement rested upon the view that, “[bjecause of the unique disadvantage in the custodial interrogation process of the youthful accused due to his immaturity, ... merely a consideration of the fact of youth in the totality of the circumstances formulation ... was inadequate to insure that a juvenile’s waiver was indeed a knowing one.” Commonwealth v. Smith, 472 Pa. at 497-498 , 372 A.2d at 800 (footnote omitted).

1983Subsequent adoption of the per se requirement rested upon the view that, “[bjecause of the unique disadvantage in the custodial interrogation process of the youthful accused due to his immaturity, ... merely a consideration of the fact of youth in the totality of the circumstances formulation ... was inadequate to insure that a juvenile’s waiver was indeed a knowing one.” Commonwealth v. Smith, 472 Pa. at 497-498 , 372 A.2d at 800 (footnote omitted).

2023Since it could not “mitigate fairness over economy,” the Court adopted “a per se rule requiring the trial court to conduct a competency hearing in the absence of the jury.” Id.

2022Although our Supreme Court has adopted a per se rule requiring the trial court to conduct competency inquiries outside the hearing of the jury, see Commonwealth v. Washington, 722 A.2d 643, 647 (Pa. 1998), we agree with the trial court that, in this case, Appellant waived this issue since it was not raised and preserved at trial.6 See Pa.R.A.P. 302(a).

2018Q: In other words, did Lieutenant Caskey ask to speak to the boys individually? ____________________________________________ 1 We acknowledge, however, that “the per se requirement of the presence of an interested adult during a police interview of a juvenile is no longer required.” Knox, 50 A.3d at 746-47 (citation omitted).

2018We acknowledge, however, that "the per se requirement of the presence of an interested adult during a police interview of a juvenile is no longer required." Knox , 50 A.3d at 746-47 (citation omitted).

2020See Commonwealth v. Simone, 712 A.2d 770 (Pa. Super. 1998)….

2012See Commonwealth v. Simone, 712 A.2d 770 (Pa.Super.1998), appeal denied, 557 Pa. 628 , 732 A.2d 614 (1998).

1988As this Court stated in Department of Transportation, Bureau of Traffic Safety v. Day, 93 Pa. Commonwealth Ct. 49, 52 , 500 A.2d 214, 215 (1985): The cases discussing medical evidence do not indicate that such evidence is a per se requirement.

1988As this Court stated in Department of Transportation, Bureau of Traffic Safety v. Day, 93 Pa. Commonwealth Ct. 49, 52 , 500 A.2d 214, 215 (1985): The cases discussing medical evidence do not indicate that such evidence is a per se requirement.

2021Our Supreme Court has cautioned that courts must not act in a manner that would “constitute a paternalistic and unwarranted interference with the parties’ freedom to enter contracts.” Simeone v. Simeone, 581 A.2d 162, 166 (Pa. 1990) (concluding that, consistent with traditional principles of contract law, courts cannot impose a per se requirement that parties entering into a prenuptial agreement must obtain legal counsel).

2016Simeone v. Simeone, 581 A.2d 162, 166 (Pa. 1990) (“To impose a per se requirement that parties entering a prenuptial agreement must obtain independent legal counsel would be contrary to traditional principles of contract law, and would constitute a paternalistic and unwarranted interference with the parties’ freedom to enter contracts.”).4 Further, there is no evidence that Wife was prevented from having an attorney review the agreement.

1993We have held that “where Miranda rights are followed by a request to take a chemical test and no explanation is given that the Miranda rights are inapplicable to the testing procedure, a per se violation of the O’Connell rule exists.” Department of Transportation, Bureau of Driver Licensing v. Fiester, 136 Pa.Commonwealth Ct. 342, 347, 583 A.2d 31, 33-34 (1990), petition for allowance of appeal denied, 528 Pa. 632 , 598 A.2d 285 (1991).

1992Id., 136 Pa. Commw. 342 , 583 A.2d at 33 . (emphasis supplied) “[W]here Miranda rights are followed by a request to take a chemical test and no explanation is given that the Miranda rights are inapplicable to the testing procedure, a per se violation of the O'Connell rule exists.” Id., 136 Pa. Commw. 342 , 583 A.2d at 33 . (emphasis supplied) We found the film illustrates the following procedural steps were taken at the DUI Center: (1) Dempsey was read the implied consent law; (2) Then Dempsey was requested to take a test, which he refused; (3) Next, Dempsey was read his Miranda rights.

2024We rejected the per se standard because it would “remove any introspective discretion from the jurist … [and] would defeat the spirit of our judicial processes and undermine the legitimacy of our judges.” Id. at 109 .

2015The Supreme Court declined to create a per se rule requiring recusal in light of the trial court’s ostensible violation of Canon 3A(6) of the Code of Judicial Conduct, prohibiting public comment about a pending case. 32 The Court noted that a per se rule would “remove any introspective discretion from the jurist.” Id. at 109. “[Tjhis Commonwealth must continue to reserve faith in, and give due deference to our jurists, and allow them to address these initial challenges.

1997A.2d 1283 (1984), the Supreme Court stated: We now reject the application of a rebuttable presumption [announced in Commonwealth v. Christmas, 502 Pa. 218 , 465 A.2d 989 (1983), which relaxed the per se rule by establishing a rebuttable presumption that confession absent counsel and/or an interested adult is inadmissible] that a juvenile is incompetent to waive his constitutional rights without first having an opportunity to consult with an interested and informed adult.

1997A.2d 1283 (1984), the Supreme Court stated: We now reject the application of a rebuttable presumption [announced in Commonwealth v. Christmas, 502 Pa. 218 , 465 A.2d 989 (1983), which relaxed the per se rule by establishing a rebuttable presumption that confession absent counsel and/or an interested adult is inadmissible] that a juvenile is incompetent to waive his constitutional rights without first having an opportunity to consult with an interested and informed adult.

2020I do so reluctantly because, as set forth eloquently in the dissenting opinions of Chief Justice Nix and Justice (later Chief Justice) Zappala in Commonwealth v. Williams, 475 A.2d 1283 (Pa. 1984), Pennsylvania law took a wrong turn when it departed from the per se rule requiring the presence of an interested adult during a police interview of a juvenile in order for the juvenile's confession to be admissible.

2017The “interested adult” rule … provided that no person under the age of eighteen years could waive his right to remain silent and his right to the assistance of counsel without being provided an opportunity to consult with an interested adult, who is informed of the juvenile’s rights and is interested in the welfare of the juvenile.” Williams, 475 A.2d at 1286–87. …[T]he presence or absence of an interested adult is no longer a per se requirement, but one factor in determining the voluntariness of a juvenile’s waiver of his or her Miranda rights.