June 9, 2021 • 28 mins
Host Corrie Woods interviews fellow appellate attorney Brian McNeil of the York County Office of the Public Defender to discuss his victory in Commonwealth v. Peck, where he doggedly appealed to SCOPA despite the lower courts' swift dismissal of his close reading of PA's Drug Delivery Resulting in Death statute (DDRD). Fortunately, SCOPA agreed with his arguments, thus saving his client 20-40 years from life behind bars.
Show Notes:
- Justice Donohue's Opinion
- Justice Wecht's Concurring Opinion
- Article from the York Daily Record
- Article: Pennsylvania Uses the Charge of "Drug Delivery Resulting in Death" More Than Any Other State
- The Appeal blog
Read more about Commonwealth v. Peck and all of SCOPA's cases on SCOPAblog.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Intro (00:00):
The Supreme Court of Pennsylvania is the highest
court in the Commonwealth andthe oldest appellate court in
the nation, an institution thatshapes our practice our laws and
our lives. This is a podcast byattorneys and for attorneys who
argue before Pennsylvania'scourt of final appeal. Welcome
to The Standard of Review bySCOPAblog.
Corrie Woods (00:26):
Hi, everyone, and welcome to The Standard of
Review by SCOPAblog. I'm yourhost Corrie Woods, and we'll be
talking today with attorneyBrian McNeil of the York County
Office of the Public Defender.
Brian recently argued and wonthe case of Commonwealth vs.
Peck, in which the court heldthat Pennsylvania's criminal
statute prohibiting drugdeliveries resulting in death,
or DDRD, applies only to drugdeliveries occurring in
(00:47):
Pennsylvania. Brian's argumentrested on the fact that the
statute provides that a deliverymust violate Pennsylvania's drug
statutes, which it incorporatesby reference. And the fact that
whether or not the GeneralAssembly knew it when they
adopted the statute prohibitingDDRD, those statutes prohibit
only drug activity inPennsylvania. Brian's argument
in this regard demonstrated anextremely close reading of the
(01:10):
statute and solicitude for therules of statutory construction,
both touchstones of greatcriminal appellate advocacy, and
saved his client from serving 20to 40 years of his life in a
State Correctional Institution.
Let's listen. Our guest today isBrian McNeil, a career public
defender specializing in appealshe studied at the University of
(01:32):
Iowa College of Law andafterwards spent 11 years as an
assistant appellate defender inChicago. Brian currently serves
as an attorney at the AppellateUnit of the York County Office
of the public defender. Welcome,Brian, and thanks for talking
with me today.
Brian McNeil (01:46):
Thanks very much.
Thanks for having me today.
Corrie Woods (01:49):
So Brian, before we get into the case itself, can
you just tell me a little bitabout sort of why you became an
attorney, and how you came toyour current practice?
Brian McNeil (01:58):
This may not be terribly inspiring, but the
reality is, I am not one ofthose people who always thought
you know, since I was indiapers, I'm going to be the
best lawyer of all time. Infact, I never really planned to
go to law school until aftergraduating college and after,
frankly, floundering for alittle bit. And one of my
(02:19):
buddies, however, was going tolaw school and basically told
me, "Hey, you should go to lawschool too." And to be honest, I
did not really have a very goodanswer to that. And that's in
many, in many respects, why Iended up in law school was
because I didn't really haveanother plan.
Corrie Woods (02:36):
And so how did you go from sort of law school to
not the most glamorous work inthe world of public defense and
more specifically, appellatepublic defense?
Brian McNeil (02:45):
I, as you noted, I went to law school at University
of Iowa. And I made my way toChicago pretty quickly after
that, largely because I had alot more contacts and a lot more
people there. And I initiallygot involved in commercial
litigation. And I just hated it.
It was clearly not for me, itwas not my skill set, it was not
my comfort zone. I didn't feelinspired by it. But you know,
(03:08):
you got to pay the bills. So Istuck with it for about a year
and a half. And then at somepoint along the way, I got
handed an appeal. It was acommercial litigation appeal.
But it was appeal, as opposed towhat I had been doing, which is
going into court and givingludicrous justifications for
failure to comply with perfectlyvalid discovery requests. And
the appeal I really enjoyed, Ifelt like, this is more like
(03:34):
kind of what I thoughtpracticing law would be about,
like, sort of, more civilized,more lofty, you know, you take
the time to consider thearguments, read all these cases
and everything like that. It wasjust I liked it a lot better.
And it was just a much betterfit for me. And so around that
time, I applied for thisposition with the Office of the
State Appellate Defender inChicago. And it took forever,
(03:56):
but I eventually did get aninterview, and then thankfully,
got hired there.
Corrie Woods (04:03):
And so, from Chicago to York County, how did
that happen?
Brian McNeil (04:07):
Yeah, that's not a common trajectory. My wife is
from here. And so we were inChicago, when, you know, I was,
I was still very happy with mycareer and everything like that.
But we had two very smallchildren. And long story short,
raising children in Chicago istough, especially if you don't
(04:28):
really have any family outthere, which neither of us
really did. And so it kind ofmade a lot of sense to move here
just to you know, get assistancewith the kids kind of slow
things down a little bit.
Corrie Woods (04:40):
So, before we talk about the case, let's talk a
little bit about thePennsylvania law. That really is
at issue here. That would be thestatute prohibiting drug
delivery resulting in death. Canyou give a little bit of
background about the statute andsort of where it came from and
you know what it's for?
Brian McNeil (04:57):
Well, it's been a while since I looked that
closely at it but myunderstanding is it's it was
passed in roughly 1987 or so ina radically different form, from
where it stands now. And it wasactually pretty hastily written,
it appears, or at least maybeyou'd say, badly written, such
that it was, I believe it wasstruck in 1996 by the Supreme
(05:21):
Court in the Hihawk case forbeing unconstitutionally vague
or not putting people on noticeof what it was that it was
actually, you know, prohibitingit, what it was at what the
actual sentence was. And so Ithink it's gone through several
different incarnations sincethen can't remember the exact
date of the most recent, youknow, most significant
amendments, but it has gone froma fairly loose and amorphous
(05:44):
statute to a much clearer, welldefined statute that obviously
covers an awful lot of conduct.
It's very far reaching in thatit applies to any delivery that
results in death.
Corrie Woods (05:56):
Yeah, and actually, it's my understanding
that the statute was still sortof challenged as vague with
respect to well, you know, it'sone thing to say, resulting in
death. But it's another thing toactually look at what kind of
conduct that would encompass,because if you can trace the
causal chain back far enough,ostensibly, you could you could
(06:18):
find every every drugmanufacturer in the United
States to be a first degreefelon.
Brian McNeil (06:23):
I think that's right. And I think that's worth
stressing as far as just how farreaching at least potentially
is. I think there's a case, Ibelieve it's Story. I get them
mixed up, because there's threebig cases from the Superior
Court and kind of the 2015through 2017 range. There's
Cochancam, Proctor and Story, Ithink Story is the one where it
(06:44):
was kind of attenuated from whatthe defendant had actually done.
I think he gave it to someonewho gave it to someone else, who
then took it and overdosed. Andhe challenged the conviction on
the grounds that, "Hey, I didnot directly deliver this drug."
And the court actually said,"Nope, doesn't matter, the way
(07:05):
the statute is drafted, itactually reaches your conduct."
And in a bit of irony, it sortof suggested that, you know, if
you get far enough down thechain, like what like what you
were just talking about, like,you know, a drug manufacturer or
something like that, or, youknow, six, seven steps removed
from the person who actuallyoverdoses. Yeah, then maybe you
(07:25):
got an argument, maybe you couldsay that that's just too far
removed from your actual conductto warrant being brought in
under the statute. The reason Isay that's a bit of irony is
because a lot of this chatter onthe statute and the people who
are in favor of it have havesaid, this is a great way to go
after drug kingpins, we'rereally going to get these, you
know, these big wigs. And that'snot how it's been used at all.
(07:48):
And in fact, if they did try togo after real kingpins like
that, I think the kingpins underthat case would have a pretty
good argument that, hey, you'reso far removed from me down the
chain, that the statute actuallydoesn't apply to my conduct.
Maybe you can get one of myunderlings. But you can't get me
with this statute.
Corrie Woods (08:04):
Yeah. And actually, it's my understanding
that Pennsylvania has the most,there's a lot of states that
have similar statutes. But thatPennsylvania has the most
prosecutions for drug deliveryresulting in death in the
country.
Brian McNeil (08:17):
That's what I've heard I there's a blog called
The Appeal that I've read fromtime to time that has very
useful information on this.
Joshua Vaughn, I believe, is hisname writes a lot of these
stories, just kind of compilinguseful data on this, and it does
paint a picture of Pennsylvaniaas kind of leading the league in
bringing prosecutions under thistype of statute.
Corrie Woods (08:40):
So let's turn to the the case itself here. What
are the essential allegationsthat Commonwealth made to
sustain the prosecution?
Brian McNeil (08:47):
Pretty simple.
That my client delivered heroinand that the decedent took the
heroin and overdosed and that hedied as a result of that
overdose.
Corrie Woods (09:00):
And did the Commonwealth allege specifically
that that delivery occurred inPennsylvania?
Brian McNeil (09:06):
I don't think they did, because I think they were
well aware at all times that itdidn't. I think they sort of
alighted any particularallegation with regard to where
it took place.
Corrie Woods (09:16):
And so that fact sort of became the central fact
for your claim, first, beforethe trial court and ultimately
on appeal. Can you explain sortof how you came to develop that
claim?
Brian McNeil (09:27):
Well, first, I should note that Joshua
Neiderhiser was trial counsel inthis case. He also worked with
our office, he no longer does,but he was with our office at
that time. And he raised anargument similar to what I made
not exactly the same thingbefore the trial court after the
conviction. And at that time, itwas sort of, I'm gonna say
swiftly rejected, but inreviewing the record for the
appeal, once I got the case, Inoted that he had made that
(09:50):
argument and after justreviewing the text of the
statute, it's pretty glaring tome that the statute requires a
delivery in violation of theControlled Substance, Drug
Device and Cosmetic Act. Andthen if you take a look at that
language, it also jumps off thepage that only applies to events
(10:10):
occurring within theCommonwealth of Pennsylvania.
Corrie Woods (10:13):
Right. And so just to just to tease together the
claim, the issue is that if thisdelivery occurred outside of
Pennsylvania, because the DDRDstatute incorporates the Drug
Act by reference, and the DrugAct itself refers to deliveries
in Pennsylvania, becauseostensibly, Pennsylvania can't
be criminalizing drugtransactions occurring outside
(10:35):
the state.
Brian McNeil (10:36):
Would hope not
Corrie Woods (10:37):
One imagines not anyway. That somehow the
statutes incorporation of thatlanguage, which includes that
subset of language inPennsylvania, goes all the way
up the chain and makes thelocation of the delivery and
elements of DDRD, right.
Brian McNeil (10:57):
Pretty much yeah, it's it's kind of a it's really
a confluence of two statutesthat provide the relevant
framework, in my opinion, it'ssection 2506, or the DDRD
statute requires violation ofthe Act. And that's pretty
uncontroversial no one reallyever argued otherwise. But then
you have to answer the separatequestion of whether there's a
(11:19):
violation of the Act. Andthere's sort of a preamble
Section of the Act that says thefollowing actions within the
Commonwealth are herebyprohibited or something to that
effect. And so it's that withinthe Commonwealth language, that
it makes kind of a specificgeographic restriction right out
of the gate, as far as what isactually being prohibited under
the Act. And so in light ofthat, in light of the fact that
(11:41):
you have to have a violation ofthe Act, it just is a fairly
simple syllogism that only aviolation of the Act that takes
place within the Commonwealth ofPennsylvania, or only a delivery
that takes place within theCommonwealth of Pennsylvania,
can give rise to a DDRDconviction.
Corrie Woods (12:00):
Seems I mean, it's a close reading of the statute,
which has an appellate advocate,you know, you're to be commended
for, but it seems prettystraightforward. Once you
actually look at the text. Whatwas the Commonwealth position?
And and what were its arguments,
Brian McNeil (12:13):
The Commonwealth.
The hardest part about thiscase, has been trying to keep it
simple and trying to explainwhat it is that we're actually
arguing, and fending offsuggestions that we're arguing
something else. And so theCommonwealth's position, pretty
much from the the outset, oncewe started raising this argument
(12:33):
was, "Hey, we have jurisdictionover this offense. So why are we
even talking about this?" And soI tried to explain on numerous
occasions, basically, we're notchallenging jurisdiction. We
embrace that there wasjurisdiction in this case,
because under Section 102 of thecrimes code, one of the elements
(12:53):
of the offense, the death of Mr.
Hunt, did take place inPennsylvania, and therefore
there is jurisdiction. So whileacknowledging that, the hard
part has been kind ofexplaining, but what I'm really
saying is it's not ajurisdictional issue. It's an
issue of the statutory language,and what that language requires
(13:16):
in terms of the elements of theoffense. And so the related
concepts, certainly anytimeyou're talking about, you know,
geography, it's totallyunderstandable that people would
think you're talking aboutjurisdiction or would gravitate
toward that sort of, you know,mindset, but basically, laboring
to explain that we're not reallychallenging jurisdiction has
been one of the biggestchallenges.
Corrie Woods (13:35):
Yeah, so it's just very difficult conceptually to
separate "may the GeneralAssembly prohibit this conduct"
from "well, did they?"
Brian McNeil (13:43):
That's right. And in in large part that was kind
of the Commonwealth's positionwas "There's jurisdiction over
this. And because there'sjurisdiction, anything else, the
statute or you know, the DrugAct says about territory or
geography doesn't matter.
Because there was jurisdiction,then this makes sense." And then
the counter argument to thatreally was "Not really, because
(14:03):
the jurisdiction means you canbring a prosecution? Yes. It
does not mean that a prosecutionthat requires a specific
location, ie inside theCommonwealth, doesn't mean you
can prove all the elements ofthat offense."
Corrie Woods (14:22):
Right.
Brian McNeil (14:22):
And this was actually a big part of the oral
argument before the SupremeCourt was Justice Donahue, asked
me several questions about thiskind of trying to nail down the
contours of that and thedistinctions between that and
jurisdiction.
Corrie Woods (14:34):
Right. So how was the argument received in the
trial court and then at theSuperior Court?
Brian McNeil (14:39):
I can't speak to what happened in the trial court
because frankly, I wasn't there.
That is something Mr.
Neiderheiser handled. And Idon't recall it being a big
centerpiece argument at thetrial court level because it
like I said, I don't think thatthe argument was actually
advanced until after theconviction. So I believe it was
in motion for a new trial, orthe post sentence motion but I
don't think there was a wholelot of discussion about it at
(15:01):
that time. So the first time itreally got much focus, I think
was probably in the trialcourt's rule 1925 A opinion
responding to my raising in thein the 1925 b statement. And I
think that's where you see thefirst instance of the trial
court saying that's absurd, thelegislature could not possibly
have intended that result. Andthat was, I think, the principal
(15:22):
reason for the 1925 A opinion.
And then you getto the Superior Court. And
Corrie Woods (15:24):
Yeah again, like I said, I viewed one
of my main challenges in thiscase, is just trying to trying
to make clear what I was arguingand what I wasn't arguing. And
this was sort of interesting andsort of frustrating, I happen to
argue the case on the same dayas the Jerry Sandusky PCRA case
was being orally argued. And soas you might expect, I think
(15:45):
that took up an awful lot of thejudge's attention. It was one of
those arguments that I don'tknow if you've had these, where
I did not really get a lot ofhard questions, or at least I
didn't think I did. But I feltat the end of it. Like, I'm not
sure they're really hearing mewhere I'm trying to go with
this.
Sometimes noquestions are far worse than all
the questions.
Brian McNeil (16:04):
Exactly. Like cause it betrays either just
sort of, I'm not gonna I'm notgonna say they didn't understand
it. I mean, like, they'reobviously very intelligent
judges, they know what's goingon. But I think that they may
not have been focusing on theright things, at least from my
perspective. And so yeah, so Ididn't get a whole lot of
questions that I thoughtbetrayed, like a real engagement
with the issue to the extentthat I would have liked.
Corrie Woods (16:26):
And so what was the rationale? I believe they
affirmed, what was theirrationale for affirming the
conviction?
Brian McNeil (16:32):
They. It's been a while since I read the Superior
Court opinion. But myrecollection is they kind of
bought into the jurisdictionalthing that, you know, they I
don't think they went so far asto say like, well, there was
jurisdiction, and therefore, youknow, what are you talking
about? There's no issue. But Ithink they did kind of blur what
I was arguing with somejurisdictional principles and
(16:54):
say, basically, because otherSuperior Court decisions have
cited the two principal elementsof the offense as delivery and a
death, we've got a delivery,we've got a death, we've got
jurisdiction. What's theproblem?
Corrie Woods (17:08):
Okay, so after the affirmance, presumably, you file
a petition for allowance ofappeal, and that is granted.
Just out of curiosity, did youraise that issue alone? Or did
you raise other issues?
Brian McNeil (17:17):
I actually raised the sentencing issue as well.
Corrie Woods (17:19):
Okay. Did they grant both, or just one?
Brian McNeil (17:21):
Just the main issue, which, you know,
obviously, I'm turned out in away that I'm happy with. But the
sentencing issue i thought wasinteresting, too, in that my
client got the maximum sentencefor what, in my opinion, were a
litany of factors that wereinherent in the offense of DDRD,
as far as you know, the death ofMr. Hunt, the fact that
(17:43):
dangerous drugs were sold,things like that. And so I was
sort of hoping the Supreme Courtwould be interested in that. But
I recognize that sentencingissues are completely barred
from review in somecircumstances.
Corrie Woods (17:55):
So what happens at the Supreme Court?
Brian McNeil (17:56):
Fairly standard stuff, except for COVID
probably. You know, filed abrief, Commonwealth filed its
brief making, you know,basically what I expected in
light of the round of briefingwe'd had in the Superior Court.
And I think, I think the daybefore I filed my reply brief,
or no I'm sorry, the day that Idid file my reply brief was the
day before everything startedreally going crazy with COVID,
(18:18):
at least where I was at. So Ithink I filed that like the day
the day that all happened, andthen there's a little bit of a
break in oral argument, justbecause I don't I think they
were just kind of setting up howthey were going to proceed under
COVID. But ultimately, I arguedit from my basement via, you
know, the web technology. And soI don't know, I I felt that like
(18:42):
the argument went very well. AsI noted earlier, I had that
exchange with Justice Donahuewhere it's not that it was
wasn't an unpleasant exchange oranything but it you know, she
asked me some tough questions asfar as well, is there a conflict
between the jurisdictionalprovision of the crimes code and
what this statute says? Butmostly, I felt it went well, I
(19:02):
felt they understood what I was,was arguing and Justice Wecht
was borderline mean to theprosecutor on the case, which I
almost felt bad for him. But hecertainly didn't have any tough
questions for me or anything. Infact, I don't think he had any
questions for me at all.
Corrie Woods (19:19):
So the that was argued, I believe in May, that
must have been one of the firstsort of COVID oral arguments.
Brian McNeil (19:24):
I think it was in that first like, it was the
first stretch of them. It mighthave been It was one of the last
arguments in that session, Ithink, but it was I think that
was the first session that wasdone remotely.
Corrie Woods (19:35):
So they hold on to the case from May til December.
And essentially they agree withyou, right?
Brian McNeil (19:40):
Yeah. You know, it was it was sort of funny,
because it was something thathappened at the beginning of the
oral argument was I that waswhen they were first doing that
format, where instead of justyou know, a normal oral argument
where you just kind of make yourargument they interrupt you
whenever they feel like it, theyhad it sort of more stratified
where you got a certain numberof minutes to make, like kind of
an opening statement. And thenthey would sort of open the
(20:03):
floor to questions. And I saidsomething in that opening part
about it being a simple case.
And then before they startedasking questions Justice Saylor,
Chief Justice Saylor saidsomething about, you know, sort
of joked, "Thanks for thanks forgiving us a simple case, we get
so many hard ones." And then itturned out from, you know, from
reading their opinion that Ithink that that's that's how
they saw it, which which, youknow, obviously doesn't surprise
(20:25):
me because I felt like it was aclear case of, you know, the
statutory language. But itseemed that it was a very
straightforward. Well, this iswhat the statute says. And there
you go.
Corrie Woods (20:37):
Yeah. And one, one point that I always try to bring
up in situations like this isthis sort of very plain meaning
approach is traditionally viewedas a conservative judicial
methodology. But that doesn'talways lead to what we would
view as politically conservativeresults. I mean, here we have
very conservative judicialmethodology. That just goes to
(21:00):
what I think it would think isthat extremely liberal outcome.
Brian McNeil (21:02):
I think that's exactly right. And, you know, I,
as much as people who areliberal, and I, you know, I
consider myself very liberaltoo, criticize Justice Scalia
and Justice Thomas for, youknow, textualism. And, you know,
being rigidly you know, weddedto the text. I do think they, in
many cases, were prettyconsistent and would sometimes
(21:23):
deliver results like this. Evenif you would think that, hey,
he's an extremely conservativeguy. And yet here he is throwing
this guy's conviction out.
Corrie Woods (21:32):
Yeah.
Brian McNeil (21:32):
And so I do find myself in cases like this
sometimes quoting JusticeScalia, because he has fantastic
opinions on the subject. Heasked, I even quote some things
from his oral argumentsometimes. There's one in I
think it was King v. Burwell orsomething where he asks, or he
just it's more like an aside atsome point that he said
something, "Well, hey, it maynot be the statute intended,
(21:55):
they intended. The question iswhether it's the statute they
wrote," and I kind of love thatin cases like this, obviously,
because if I'm saying the textis the text is the text, and
nothing else really matters. Heprovides all kinds of, you know,
beautiful authority for thatproposition.
Corrie Woods (22:12):
Yeah. But which is a great point, right? Because if
if our goal is to determinelegislative intent, that is the
institutional intent of theGeneral Assembly, as opposed to
legislators' intent, I thinkthat the courts kind of stand
there for the proposition of,hey, if you want to make a rule,
you have to have to just useyour words, you know, it's not-
Brian McNeil (22:32):
Yeah
Corrie Woods (22:33):
It's not sufficient to, you know, just
throw some legislative reportsin, in the record and ask us to
do your dirty work for you.
Yeah, I think the reference toScalia and Garner is
particularly interesting here.
And I wonder if you could talk alittle bit about how Justice
Wecht in his concurring opinionreally takes the Commonwealth to
task to some degree on its useof the absurdity canon.
Brian McNeil (22:54):
I really liked that, you know, well, obviously,
I'm a little biased in light ofthe result. But I really like to
just from the standpoint that Ithis is one of the things I love
about the Pennsylvania SupremeCourt, and it's one of the
reasons I love Justice Wecht, inparticular, in some of his
opinions on these things is hemakes these hard opinions. He's
He's not afraid. I mean, JusticeDonahue, wrote the majority, of
(23:16):
course, but this is consistentwith a lot of things that
Justice Wecht has done too, Ithink he is willing to apply the
law. And you know that thatconcurrence is an excellent
explication of what a judge'sjob is, and that, yes, if you're
going to go the consequentialistroute, which I think he refers
to at one point in hisconcurrence, then sure, if you
(23:39):
look at this, the result here,if you would ask the the General
Assembly, should this guy'sconviction be thrown out? On
this particular reason? Theyprobably would have said, No,
they probably would have said,No, of course, this, of course,
we want the statute to apply tohim. However, as Justice Wecht
noted very ably that's not theway we do it. We have to look at
(23:59):
what the law actually says thereare certain canons in place that
help us, you know, glean theintent. And if the law says
something, the certain statutorylanguage is used, that language
is supposed to be applied asit's written, regardless of the
result.
Corrie Woods (24:15):
Yeah, and he has a really good passage, in the
opinion, I try to avoid quotingtoo much on the podcast here,
but he really sort of tears intothe idea that everything that
that seems to lead to relief fora criminal defendant is absurd
or is contrary to the onlypossible legislative intent. And
the line is where the criminallaws are concerned, courts
(24:37):
should disabuse themselves ofthe notion that a consequence is
unintended, and thus absurd,merely because it is not
maximally punitive. I thoughtthat was a really great way to
put that. And I think it'sparticularly interesting because
in my experience, I think a lotof times, and this is civil and
criminal practitioners alike,when they want to interpret a
statute, and they don't want togo through the entirety of Well,
(25:00):
is this is this ambiguous? Or isthis plain? And if it's
ambiguous now I have to do, youknow, research at the law
library instead of sitting onWestlaw. I'm just gonna say it's
absurd and file the thing. And Ithink I think he does a really
good job of saying, no, if youwant to say that something is
absurd, that can't be justshorthand for Oh, come on the
legislature wouldn't want to dothis.
Brian McNeil (25:22):
No, I that's, I think that's absolutely right.
And I think that it's that's animportant thing that I think is
sometimes lost, that the absurdresults doctrine is not just a
way to get out of doing thedoing the hard work of applying
the law, as it's written, youcan't just you can't just make
your own subjective assessment,like, like you said, you know,
come on, and, you know, throwout, throw everything else out
(25:43):
the window. Yes, there arecertain limited circumstances
under which the absurd resultsdoctrine can come into play. And
he explained, you know, veryclearly what those are, but it's
not just a snap your fingers, wecan throw this argument away,
because I mean, come on. It'sridiculous, right?
Corrie Woods (25:59):
Yeah. So I guess well, first of all, what are the
results of this decision interms of your client had the
maximum sentence of I believe 20to 40 years imprisonment? What
what are the results for him?
Brian McNeil (26:10):
The results are his conviction and sentence were
thrown out, and he was releasedfrom prison.
Corrie Woods (26:16):
So certainly a big deal for him. And where do you
think this holding goes? Interms of future cases? Do you
think that suddenly, every cop,every district attorney in
Pennsylvania, is now forced topresent evidence of the locus of
a drug delivery, and everysingle DDRD case, or, frankly,
possession with intent todeliver case at that.
Brian McNeil (26:36):
Um, you know, I think you could, you could
certainly make an argument tothat effect. I think that
argument would be a lot moreeffective in situations where
you know, where it's somehow indoubt, if it's, you know, if
you're in dead center,Pennsylvania, and it's, uh, you
know, hand to hand delivery at aconvenience store, I'm not sure
how much you're really going toget need to get into official
(26:57):
proof that this was in theconfines of Pennsylvania. But if
you have cases like in YorkCounty, for example, where you
know, a lot of there's a lot ofsort of cross border activity
taking place, or you know, anyother place along the border, I
do think that, at least in somecases, you're definitely gonna
have to look into making surethat you prove that.
Corrie Woods (27:16):
And, you know, I think a lot of a lot of cases in
the sort of DDRD sphere, thedelivery is not, because as you
said, a lot of times, it's notthe sort of big drug kingpins
that are prosecuted, it's, oh,this this sort of small time
dealer or even a friend orcohort of some kind, give
someone some drugs, a lot oftimes they're proven by
(27:37):
circumstantial evidence, right?
So there'll be text messagesfrom before and after the
transaction that suggests, hey,this must have happened at this
point. But a lot of times, it'sjust sort of pieced together
after the fact, where you don'thave, you know, as you say, like
a hand to hand delivery in viewof a police officer. And I think
the import of this case is, itdoes seem to suggest that, boy,
(28:00):
the DA has got a heck of a lotharder time proving his case in
those scenarios, because youreally have no idea what
happened.
Brian McNeil (28:09):
I mean, that's a very good point. I mean, you
know, certainly text messagesare absolute killers for the
clients on these and arefrequently, you know, with the
possible exception of thetoxicology report, the most
damning evidence that that ispresented and really, you know,
sinks the client, but yeah,that's a very good point that
you have message coming fromphone X to phone Y, and unless
(28:34):
you're gonna bring, you know,cell tower evidence or something
like that into the equation, alot of the time that you might
really have no idea where eitherperson was when, when this sort
of thing took place.
Corrie Woods (28:45):
Brian, it's been a pleasure speaking with you, and
thank you again for joining metoday.
Brian McNeil (28:50):
It's been my pleasure. Thanks very much.
Outro (28:52):
Thanks for listening to The Standard of Review by
SCOPAblog. This episode has beenbrought to you by Woods Law
Offices, Raising the Bar forPennsylvania Appeals. Check them
out at www.WoodsLawOffices.com.
The Supreme Court of Pennsylvania is the highest
court in the Commonwealth andthe oldest appellate court in
the nation, an institution thatshapes our practice our laws and
our lives. This is a podcast byattorneys and for attorneys who
argue before Pennsylvania'scourt of final appeal. Welcome
to The Standard of Review bySCOPAblog.
Corrie Woods (00:26):
Hi, everyone, and welcome to The Standard of
Review by SCOPAblog. I'm yourhost Corrie Woods, and we'll be
talking today with attorneyBrian McNeil of the York County
Office of the Public Defender.
Brian recently argued and wonthe case of Commonwealth vs.
Peck, in which the court heldthat Pennsylvania's criminal
statute prohibiting drugdeliveries resulting in death,
or DDRD, applies only to drugdeliveries occurring in
(00:47):
Pennsylvania. Brian's argumentrested on the fact that the
statute provides that a deliverymust violate Pennsylvania's drug
statutes, which it incorporatesby reference. And the fact that
whether or not the GeneralAssembly knew it when they
adopted the statute prohibitingDDRD, those statutes prohibit
only drug activity inPennsylvania. Brian's argument
in this regard demonstrated anextremely close reading of the
(01:10):
statute and solicitude for therules of statutory construction,
both touchstones of greatcriminal appellate advocacy, and
saved his client from serving 20to 40 years of his life in a
State Correctional Institution.
Let's listen. Our guest today isBrian McNeil, a career public
defender specializing in appealshe studied at the University of
(01:32):
Iowa College of Law andafterwards spent 11 years as an
assistant appellate defender inChicago. Brian currently serves
as an attorney at the AppellateUnit of the York County Office
of the public defender. Welcome,Brian, and thanks for talking
with me today.
Brian McNeil (01:46):
Thanks very much.
Thanks for having me today.
Corrie Woods (01:49):
So Brian, before we get into the case itself, can
you just tell me a little bitabout sort of why you became an
attorney, and how you came toyour current practice?
Brian McNeil (01:58):
This may not be terribly inspiring, but the
reality is, I am not one ofthose people who always thought
you know, since I was indiapers, I'm going to be the
best lawyer of all time. Infact, I never really planned to
go to law school until aftergraduating college and after,
frankly, floundering for alittle bit. And one of my
(02:19):
buddies, however, was going tolaw school and basically told
me, "Hey, you should go to lawschool too." And to be honest, I
did not really have a very goodanswer to that. And that's in
many, in many respects, why Iended up in law school was
because I didn't really haveanother plan.
Corrie Woods (02:36):
And so how did you go from sort of law school to
not the most glamorous work inthe world of public defense and
more specifically, appellatepublic defense?
Brian McNeil (02:45):
I, as you noted, I went to law school at University
of Iowa. And I made my way toChicago pretty quickly after
that, largely because I had alot more contacts and a lot more
people there. And I initiallygot involved in commercial
litigation. And I just hated it.
It was clearly not for me, itwas not my skill set, it was not
my comfort zone. I didn't feelinspired by it. But you know,
(03:08):
you got to pay the bills. So Istuck with it for about a year
and a half. And then at somepoint along the way, I got
handed an appeal. It was acommercial litigation appeal.
But it was appeal, as opposed towhat I had been doing, which is
going into court and givingludicrous justifications for
failure to comply with perfectlyvalid discovery requests. And
the appeal I really enjoyed, Ifelt like, this is more like
(03:34):
kind of what I thoughtpracticing law would be about,
like, sort of, more civilized,more lofty, you know, you take
the time to consider thearguments, read all these cases
and everything like that. It wasjust I liked it a lot better.
And it was just a much betterfit for me. And so around that
time, I applied for thisposition with the Office of the
State Appellate Defender inChicago. And it took forever,
(03:56):
but I eventually did get aninterview, and then thankfully,
got hired there.
Corrie Woods (04:03):
And so, from Chicago to York County, how did
that happen?
Brian McNeil (04:07):
Yeah, that's not a common trajectory. My wife is
from here. And so we were inChicago, when, you know, I was,
I was still very happy with mycareer and everything like that.
But we had two very smallchildren. And long story short,
raising children in Chicago istough, especially if you don't
(04:28):
really have any family outthere, which neither of us
really did. And so it kind ofmade a lot of sense to move here
just to you know, get assistancewith the kids kind of slow
things down a little bit.
Corrie Woods (04:40):
So, before we talk about the case, let's talk a
little bit about thePennsylvania law. That really is
at issue here. That would be thestatute prohibiting drug
delivery resulting in death. Canyou give a little bit of
background about the statute andsort of where it came from and
you know what it's for?
Brian McNeil (04:57):
Well, it's been a while since I looked that
closely at it but myunderstanding is it's it was
passed in roughly 1987 or so ina radically different form, from
where it stands now. And it wasactually pretty hastily written,
it appears, or at least maybeyou'd say, badly written, such
that it was, I believe it wasstruck in 1996 by the Supreme
(05:21):
Court in the Hihawk case forbeing unconstitutionally vague
or not putting people on noticeof what it was that it was
actually, you know, prohibitingit, what it was at what the
actual sentence was. And so Ithink it's gone through several
different incarnations sincethen can't remember the exact
date of the most recent, youknow, most significant
amendments, but it has gone froma fairly loose and amorphous
(05:44):
statute to a much clearer, welldefined statute that obviously
covers an awful lot of conduct.
It's very far reaching in thatit applies to any delivery that
results in death.
Corrie Woods (05:56):
Yeah, and actually, it's my understanding
that the statute was still sortof challenged as vague with
respect to well, you know, it'sone thing to say, resulting in
death. But it's another thing toactually look at what kind of
conduct that would encompass,because if you can trace the
causal chain back far enough,ostensibly, you could you could
(06:18):
find every every drugmanufacturer in the United
States to be a first degreefelon.
Brian McNeil (06:23):
I think that's right. And I think that's worth
stressing as far as just how farreaching at least potentially
is. I think there's a case, Ibelieve it's Story. I get them
mixed up, because there's threebig cases from the Superior
Court and kind of the 2015through 2017 range. There's
Cochancam, Proctor and Story, Ithink Story is the one where it
(06:44):
was kind of attenuated from whatthe defendant had actually done.
I think he gave it to someonewho gave it to someone else, who
then took it and overdosed. Andhe challenged the conviction on
the grounds that, "Hey, I didnot directly deliver this drug."
And the court actually said,"Nope, doesn't matter, the way
(07:05):
the statute is drafted, itactually reaches your conduct."
And in a bit of irony, it sortof suggested that, you know, if
you get far enough down thechain, like what like what you
were just talking about, like,you know, a drug manufacturer or
something like that, or, youknow, six, seven steps removed
from the person who actuallyoverdoses. Yeah, then maybe you
(07:25):
got an argument, maybe you couldsay that that's just too far
removed from your actual conductto warrant being brought in
under the statute. The reason Isay that's a bit of irony is
because a lot of this chatter onthe statute and the people who
are in favor of it have havesaid, this is a great way to go
after drug kingpins, we'rereally going to get these, you
know, these big wigs. And that'snot how it's been used at all.
(07:48):
And in fact, if they did try togo after real kingpins like
that, I think the kingpins underthat case would have a pretty
good argument that, hey, you'reso far removed from me down the
chain, that the statute actuallydoesn't apply to my conduct.
Maybe you can get one of myunderlings. But you can't get me
with this statute.
Corrie Woods (08:04):
Yeah. And actually, it's my understanding
that Pennsylvania has the most,there's a lot of states that
have similar statutes. But thatPennsylvania has the most
prosecutions for drug deliveryresulting in death in the
country.
Brian McNeil (08:17):
That's what I've heard I there's a blog called
The Appeal that I've read fromtime to time that has very
useful information on this.
Joshua Vaughn, I believe, is hisname writes a lot of these
stories, just kind of compilinguseful data on this, and it does
paint a picture of Pennsylvaniaas kind of leading the league in
bringing prosecutions under thistype of statute.
Corrie Woods (08:40):
So let's turn to the the case itself here. What
are the essential allegationsthat Commonwealth made to
sustain the prosecution?
Brian McNeil (08:47):
Pretty simple.
That my client delivered heroinand that the decedent took the
heroin and overdosed and that hedied as a result of that
overdose.
Corrie Woods (09:00):
And did the Commonwealth allege specifically
that that delivery occurred inPennsylvania?
Brian McNeil (09:06):
I don't think they did, because I think they were
well aware at all times that itdidn't. I think they sort of
alighted any particularallegation with regard to where
it took place.
Corrie Woods (09:16):
And so that fact sort of became the central fact
for your claim, first, beforethe trial court and ultimately
on appeal. Can you explain sortof how you came to develop that
claim?
Brian McNeil (09:27):
Well, first, I should note that Joshua
Neiderhiser was trial counsel inthis case. He also worked with
our office, he no longer does,but he was with our office at
that time. And he raised anargument similar to what I made
not exactly the same thingbefore the trial court after the
conviction. And at that time, itwas sort of, I'm gonna say
swiftly rejected, but inreviewing the record for the
appeal, once I got the case, Inoted that he had made that
(09:50):
argument and after justreviewing the text of the
statute, it's pretty glaring tome that the statute requires a
delivery in violation of theControlled Substance, Drug
Device and Cosmetic Act. Andthen if you take a look at that
language, it also jumps off thepage that only applies to events
(10:10):
occurring within theCommonwealth of Pennsylvania.
Corrie Woods (10:13):
Right. And so just to just to tease together the
claim, the issue is that if thisdelivery occurred outside of
Pennsylvania, because the DDRDstatute incorporates the Drug
Act by reference, and the DrugAct itself refers to deliveries
in Pennsylvania, becauseostensibly, Pennsylvania can't
be criminalizing drugtransactions occurring outside
(10:35):
the state.
Brian McNeil (10:36):
Would hope not
Corrie Woods (10:37):
One imagines not anyway. That somehow the
statutes incorporation of thatlanguage, which includes that
subset of language inPennsylvania, goes all the way
up the chain and makes thelocation of the delivery and
elements of DDRD, right.
Brian McNeil (10:57):
Pretty much yeah, it's it's kind of a it's really
a confluence of two statutesthat provide the relevant
framework, in my opinion, it'ssection 2506, or the DDRD
statute requires violation ofthe Act. And that's pretty
uncontroversial no one reallyever argued otherwise. But then
you have to answer the separatequestion of whether there's a
(11:19):
violation of the Act. Andthere's sort of a preamble
Section of the Act that says thefollowing actions within the
Commonwealth are herebyprohibited or something to that
effect. And so it's that withinthe Commonwealth language, that
it makes kind of a specificgeographic restriction right out
of the gate, as far as what isactually being prohibited under
the Act. And so in light ofthat, in light of the fact that
(11:41):
you have to have a violation ofthe Act, it just is a fairly
simple syllogism that only aviolation of the Act that takes
place within the Commonwealth ofPennsylvania, or only a delivery
that takes place within theCommonwealth of Pennsylvania,
can give rise to a DDRDconviction.
Corrie Woods (12:00):
Seems I mean, it's a close reading of the statute,
which has an appellate advocate,you know, you're to be commended
for, but it seems prettystraightforward. Once you
actually look at the text. Whatwas the Commonwealth position?
And and what were its arguments,
Brian McNeil (12:13):
The Commonwealth.
The hardest part about thiscase, has been trying to keep it
simple and trying to explainwhat it is that we're actually
arguing, and fending offsuggestions that we're arguing
something else. And so theCommonwealth's position, pretty
much from the the outset, oncewe started raising this argument
(12:33):
was, "Hey, we have jurisdictionover this offense. So why are we
even talking about this?" And soI tried to explain on numerous
occasions, basically, we're notchallenging jurisdiction. We
embrace that there wasjurisdiction in this case,
because under Section 102 of thecrimes code, one of the elements
(12:53):
of the offense, the death of Mr.
Hunt, did take place inPennsylvania, and therefore
there is jurisdiction. So whileacknowledging that, the hard
part has been kind ofexplaining, but what I'm really
saying is it's not ajurisdictional issue. It's an
issue of the statutory language,and what that language requires
(13:16):
in terms of the elements of theoffense. And so the related
concepts, certainly anytimeyou're talking about, you know,
geography, it's totallyunderstandable that people would
think you're talking aboutjurisdiction or would gravitate
toward that sort of, you know,mindset, but basically, laboring
to explain that we're not reallychallenging jurisdiction has
been one of the biggestchallenges.
Corrie Woods (13:35):
Yeah, so it's just very difficult conceptually to
separate "may the GeneralAssembly prohibit this conduct"
from "well, did they?"
Brian McNeil (13:43):
That's right. And in in large part that was kind
of the Commonwealth's positionwas "There's jurisdiction over
this. And because there'sjurisdiction, anything else, the
statute or you know, the DrugAct says about territory or
geography doesn't matter.
Because there was jurisdiction,then this makes sense." And then
the counter argument to thatreally was "Not really, because
(14:03):
the jurisdiction means you canbring a prosecution? Yes. It
does not mean that a prosecutionthat requires a specific
location, ie inside theCommonwealth, doesn't mean you
can prove all the elements ofthat offense."
Corrie Woods (14:22):
Right.
Brian McNeil (14:22):
And this was actually a big part of the oral
argument before the SupremeCourt was Justice Donahue, asked
me several questions about thiskind of trying to nail down the
contours of that and thedistinctions between that and
jurisdiction.
Corrie Woods (14:34):
Right. So how was the argument received in the
trial court and then at theSuperior Court?
Brian McNeil (14:39):
I can't speak to what happened in the trial court
because frankly, I wasn't there.
That is something Mr.
Neiderheiser handled. And Idon't recall it being a big
centerpiece argument at thetrial court level because it
like I said, I don't think thatthe argument was actually
advanced until after theconviction. So I believe it was
in motion for a new trial, orthe post sentence motion but I
don't think there was a wholelot of discussion about it at
(15:01):
that time. So the first time itreally got much focus, I think
was probably in the trialcourt's rule 1925 A opinion
responding to my raising in thein the 1925 b statement. And I
think that's where you see thefirst instance of the trial
court saying that's absurd, thelegislature could not possibly
have intended that result. Andthat was, I think, the principal
(15:22):
reason for the 1925 A opinion.
And then you getto the Superior Court. And
Corrie Woods (15:24):
Yeah again, like I said, I viewed one
of my main challenges in thiscase, is just trying to trying
to make clear what I was arguingand what I wasn't arguing. And
this was sort of interesting andsort of frustrating, I happen to
argue the case on the same dayas the Jerry Sandusky PCRA case
was being orally argued. And soas you might expect, I think
(15:45):
that took up an awful lot of thejudge's attention. It was one of
those arguments that I don'tknow if you've had these, where
I did not really get a lot ofhard questions, or at least I
didn't think I did. But I feltat the end of it. Like, I'm not
sure they're really hearing mewhere I'm trying to go with
this.
Sometimes noquestions are far worse than all
the questions.
Brian McNeil (16:04):
Exactly. Like cause it betrays either just
sort of, I'm not gonna I'm notgonna say they didn't understand
it. I mean, like, they'reobviously very intelligent
judges, they know what's goingon. But I think that they may
not have been focusing on theright things, at least from my
perspective. And so yeah, so Ididn't get a whole lot of
questions that I thoughtbetrayed, like a real engagement
with the issue to the extentthat I would have liked.
Corrie Woods (16:26):
And so what was the rationale? I believe they
affirmed, what was theirrationale for affirming the
conviction?
Brian McNeil (16:32):
They. It's been a while since I read the Superior
Court opinion. But myrecollection is they kind of
bought into the jurisdictionalthing that, you know, they I
don't think they went so far asto say like, well, there was
jurisdiction, and therefore, youknow, what are you talking
about? There's no issue. But Ithink they did kind of blur what
I was arguing with somejurisdictional principles and
(16:54):
say, basically, because otherSuperior Court decisions have
cited the two principal elementsof the offense as delivery and a
death, we've got a delivery,we've got a death, we've got
jurisdiction. What's theproblem?
Corrie Woods (17:08):
Okay, so after the affirmance, presumably, you file
a petition for allowance ofappeal, and that is granted.
Just out of curiosity, did youraise that issue alone? Or did
you raise other issues?
Brian McNeil (17:17):
I actually raised the sentencing issue as well.
Corrie Woods (17:19):
Okay. Did they grant both, or just one?
Brian McNeil (17:21):
Just the main issue, which, you know,
obviously, I'm turned out in away that I'm happy with. But the
sentencing issue i thought wasinteresting, too, in that my
client got the maximum sentencefor what, in my opinion, were a
litany of factors that wereinherent in the offense of DDRD,
as far as you know, the death ofMr. Hunt, the fact that
(17:43):
dangerous drugs were sold,things like that. And so I was
sort of hoping the Supreme Courtwould be interested in that. But
I recognize that sentencingissues are completely barred
from review in somecircumstances.
Corrie Woods (17:55):
So what happens at the Supreme Court?
Brian McNeil (17:56):
Fairly standard stuff, except for COVID
probably. You know, filed abrief, Commonwealth filed its
brief making, you know,basically what I expected in
light of the round of briefingwe'd had in the Superior Court.
And I think, I think the daybefore I filed my reply brief,
or no I'm sorry, the day that Idid file my reply brief was the
day before everything startedreally going crazy with COVID,
(18:18):
at least where I was at. So Ithink I filed that like the day
the day that all happened, andthen there's a little bit of a
break in oral argument, justbecause I don't I think they
were just kind of setting up howthey were going to proceed under
COVID. But ultimately, I arguedit from my basement via, you
know, the web technology. And soI don't know, I I felt that like
(18:42):
the argument went very well. AsI noted earlier, I had that
exchange with Justice Donahuewhere it's not that it was
wasn't an unpleasant exchange oranything but it you know, she
asked me some tough questions asfar as well, is there a conflict
between the jurisdictionalprovision of the crimes code and
what this statute says? Butmostly, I felt it went well, I
(19:02):
felt they understood what I was,was arguing and Justice Wecht
was borderline mean to theprosecutor on the case, which I
almost felt bad for him. But hecertainly didn't have any tough
questions for me or anything. Infact, I don't think he had any
questions for me at all.
Corrie Woods (19:19):
So the that was argued, I believe in May, that
must have been one of the firstsort of COVID oral arguments.
Brian McNeil (19:24):
I think it was in that first like, it was the
first stretch of them. It mighthave been It was one of the last
arguments in that session, Ithink, but it was I think that
was the first session that wasdone remotely.
Corrie Woods (19:35):
So they hold on to the case from May til December.
And essentially they agree withyou, right?
Brian McNeil (19:40):
Yeah. You know, it was it was sort of funny,
because it was something thathappened at the beginning of the
oral argument was I that waswhen they were first doing that
format, where instead of justyou know, a normal oral argument
where you just kind of make yourargument they interrupt you
whenever they feel like it, theyhad it sort of more stratified
where you got a certain numberof minutes to make, like kind of
an opening statement. And thenthey would sort of open the
(20:03):
floor to questions. And I saidsomething in that opening part
about it being a simple case.
And then before they startedasking questions Justice Saylor,
Chief Justice Saylor saidsomething about, you know, sort
of joked, "Thanks for thanks forgiving us a simple case, we get
so many hard ones." And then itturned out from, you know, from
reading their opinion that Ithink that that's that's how
they saw it, which which, youknow, obviously doesn't surprise
(20:25):
me because I felt like it was aclear case of, you know, the
statutory language. But itseemed that it was a very
straightforward. Well, this iswhat the statute says. And there
you go.
Corrie Woods (20:37):
Yeah. And one, one point that I always try to bring
up in situations like this isthis sort of very plain meaning
approach is traditionally viewedas a conservative judicial
methodology. But that doesn'talways lead to what we would
view as politically conservativeresults. I mean, here we have
very conservative judicialmethodology. That just goes to
(21:00):
what I think it would think isthat extremely liberal outcome.
Brian McNeil (21:02):
I think that's exactly right. And, you know, I,
as much as people who areliberal, and I, you know, I
consider myself very liberaltoo, criticize Justice Scalia
and Justice Thomas for, youknow, textualism. And, you know,
being rigidly you know, weddedto the text. I do think they, in
many cases, were prettyconsistent and would sometimes
(21:23):
deliver results like this. Evenif you would think that, hey,
he's an extremely conservativeguy. And yet here he is throwing
this guy's conviction out.
Corrie Woods (21:32):
Yeah.
Brian McNeil (21:32):
And so I do find myself in cases like this
sometimes quoting JusticeScalia, because he has fantastic
opinions on the subject. Heasked, I even quote some things
from his oral argumentsometimes. There's one in I
think it was King v. Burwell orsomething where he asks, or he
just it's more like an aside atsome point that he said
something, "Well, hey, it maynot be the statute intended,
(21:55):
they intended. The question iswhether it's the statute they
wrote," and I kind of love thatin cases like this, obviously,
because if I'm saying the textis the text is the text, and
nothing else really matters. Heprovides all kinds of, you know,
beautiful authority for thatproposition.
Corrie Woods (22:12):
Yeah. But which is a great point, right? Because if
if our goal is to determinelegislative intent, that is the
institutional intent of theGeneral Assembly, as opposed to
legislators' intent, I thinkthat the courts kind of stand
there for the proposition of,hey, if you want to make a rule,
you have to have to just useyour words, you know, it's not-
Brian McNeil (22:32):
Yeah
Corrie Woods (22:33):
It's not sufficient to, you know, just
throw some legislative reportsin, in the record and ask us to
do your dirty work for you.
Yeah, I think the reference toScalia and Garner is
particularly interesting here.
And I wonder if you could talk alittle bit about how Justice
Wecht in his concurring opinionreally takes the Commonwealth to
task to some degree on its useof the absurdity canon.
Brian McNeil (22:54):
I really liked that, you know, well, obviously,
I'm a little biased in light ofthe result. But I really like to
just from the standpoint that Ithis is one of the things I love
about the Pennsylvania SupremeCourt, and it's one of the
reasons I love Justice Wecht, inparticular, in some of his
opinions on these things is hemakes these hard opinions. He's
He's not afraid. I mean, JusticeDonahue, wrote the majority, of
(23:16):
course, but this is consistentwith a lot of things that
Justice Wecht has done too, Ithink he is willing to apply the
law. And you know that thatconcurrence is an excellent
explication of what a judge'sjob is, and that, yes, if you're
going to go the consequentialistroute, which I think he refers
to at one point in hisconcurrence, then sure, if you
(23:39):
look at this, the result here,if you would ask the the General
Assembly, should this guy'sconviction be thrown out? On
this particular reason? Theyprobably would have said, No,
they probably would have said,No, of course, this, of course,
we want the statute to apply tohim. However, as Justice Wecht
noted very ably that's not theway we do it. We have to look at
(23:59):
what the law actually says thereare certain canons in place that
help us, you know, glean theintent. And if the law says
something, the certain statutorylanguage is used, that language
is supposed to be applied asit's written, regardless of the
result.
Corrie Woods (24:15):
Yeah, and he has a really good passage, in the
opinion, I try to avoid quotingtoo much on the podcast here,
but he really sort of tears intothe idea that everything that
that seems to lead to relief fora criminal defendant is absurd
or is contrary to the onlypossible legislative intent. And
the line is where the criminallaws are concerned, courts
(24:37):
should disabuse themselves ofthe notion that a consequence is
unintended, and thus absurd,merely because it is not
maximally punitive. I thoughtthat was a really great way to
put that. And I think it'sparticularly interesting because
in my experience, I think a lotof times, and this is civil and
criminal practitioners alike,when they want to interpret a
statute, and they don't want togo through the entirety of Well,
(25:00):
is this is this ambiguous? Or isthis plain? And if it's
ambiguous now I have to do, youknow, research at the law
library instead of sitting onWestlaw. I'm just gonna say it's
absurd and file the thing. And Ithink I think he does a really
good job of saying, no, if youwant to say that something is
absurd, that can't be justshorthand for Oh, come on the
legislature wouldn't want to dothis.
Brian McNeil (25:22):
No, I that's, I think that's absolutely right.
And I think that it's that's animportant thing that I think is
sometimes lost, that the absurdresults doctrine is not just a
way to get out of doing thedoing the hard work of applying
the law, as it's written, youcan't just you can't just make
your own subjective assessment,like, like you said, you know,
come on, and, you know, throwout, throw everything else out
(25:43):
the window. Yes, there arecertain limited circumstances
under which the absurd resultsdoctrine can come into play. And
he explained, you know, veryclearly what those are, but it's
not just a snap your fingers, wecan throw this argument away,
because I mean, come on. It'sridiculous, right?
Corrie Woods (25:59):
Yeah. So I guess well, first of all, what are the
results of this decision interms of your client had the
maximum sentence of I believe 20to 40 years imprisonment? What
what are the results for him?
Brian McNeil (26:10):
The results are his conviction and sentence were
thrown out, and he was releasedfrom prison.
Corrie Woods (26:16):
So certainly a big deal for him. And where do you
think this holding goes? Interms of future cases? Do you
think that suddenly, every cop,every district attorney in
Pennsylvania, is now forced topresent evidence of the locus of
a drug delivery, and everysingle DDRD case, or, frankly,
possession with intent todeliver case at that.
Brian McNeil (26:36):
Um, you know, I think you could, you could
certainly make an argument tothat effect. I think that
argument would be a lot moreeffective in situations where
you know, where it's somehow indoubt, if it's, you know, if
you're in dead center,Pennsylvania, and it's, uh, you
know, hand to hand delivery at aconvenience store, I'm not sure
how much you're really going toget need to get into official
(26:57):
proof that this was in theconfines of Pennsylvania. But if
you have cases like in YorkCounty, for example, where you
know, a lot of there's a lot ofsort of cross border activity
taking place, or you know, anyother place along the border, I
do think that, at least in somecases, you're definitely gonna
have to look into making surethat you prove that.
Corrie Woods (27:16):
And, you know, I think a lot of a lot of cases in
the sort of DDRD sphere, thedelivery is not, because as you
said, a lot of times, it's notthe sort of big drug kingpins
that are prosecuted, it's, oh,this this sort of small time
dealer or even a friend orcohort of some kind, give
someone some drugs, a lot oftimes they're proven by
(27:37):
circumstantial evidence, right?
So there'll be text messagesfrom before and after the
transaction that suggests, hey,this must have happened at this
point. But a lot of times, it'sjust sort of pieced together
after the fact, where you don'thave, you know, as you say, like
a hand to hand delivery in viewof a police officer. And I think
the import of this case is, itdoes seem to suggest that, boy,
(28:00):
the DA has got a heck of a lotharder time proving his case in
those scenarios, because youreally have no idea what
happened.
Brian McNeil (28:09):
I mean, that's a very good point. I mean, you
know, certainly text messagesare absolute killers for the
clients on these and arefrequently, you know, with the
possible exception of thetoxicology report, the most
damning evidence that that ispresented and really, you know,
sinks the client, but yeah,that's a very good point that
you have message coming fromphone X to phone Y, and unless
(28:34):
you're gonna bring, you know,cell tower evidence or something
like that into the equation, alot of the time that you might
really have no idea where eitherperson was when, when this sort
of thing took place.
Corrie Woods (28:45):
Brian, it's been a pleasure speaking with you, and
thank you again for joining metoday.
Brian McNeil (28:50):
It's been my pleasure. Thanks very much.
Outro (28:52):
Thanks for listening to The Standard of Review by
SCOPAblog. This episode has beenbrought to you by Woods Law
Offices, Raising the Bar forPennsylvania Appeals. Check them
out at www.WoodsLawOffices.com.
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