Commonwealth v. Green

87 A.3d 336, 2014 Pa. Super. 42, 2014 WL 868627, 2014 Pa. Super. LEXIS 113
CourtSuperior Court of Pennsylvania
DecidedMarch 5, 2014
StatusPublished
Cited by1 cases

This text of 87 A.3d 336 (Commonwealth v. Green) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Green, 87 A.3d 336, 2014 Pa. Super. 42, 2014 WL 868627, 2014 Pa. Super. LEXIS 113 (Pa. Ct. App. 2014).

Opinion

OPINION BY

PLATT, J.

Appellant, Len Allen Green, appeals from the judgment of sentence entered following his negotiated guilty plea to one count of theft by unlawful taking.1 We vacate the order of the trial court and remand for resentencing.

On February 25, 2018, Appellant entered a negotiated guilty plea to the above-stated offense. The charge stems from Appellant’s theft of several personal property items, including jewelry, artwork, and china, with an approximate total value of $99,152.00, from Diane Giambalvo’s residence on November 7, 2011. On April 18, 2013, the trial court sentenced Appellant to a term of not less than eleven and a half nor more than twenty-three months’ partial confinement, followed by three years’ probation. The trial court ordered Appellant to pay Diane Giambalvo $98,552.00 in restitution. In addition, at the Commonwealth’s request and over Appellant’s objection, the court ordered Appellant to disclose the location(s) where he disposed of the stolen items as a condition of probation.2

On April 19, 2013, Appellant filed a post-sentence motion challenging the probation condition, arguing that it is an unconstitutional infringement on his right against self-incrimination. (See Trial Court Opinion, 7/25/13, at unnumbered page 1). The trial court denied the motion by order entered June 4, 2013. This timely appeal followed.3

Appellant raises one issue for' our review:

I. Did the [trial] court err and abuse its discretion when it imposed a condition of probation that requires [Appellant] to disclose the location of items he took from the victim without appropriate Fifth Amendment safeguards?

(Appellant’s Brief, at 4). .

An appeal challenging the legality of a probation condition presents a question of law. See Commonwealth v. Wilson, — Pa. -, 67 A.3d 736, 741 (2013). Therefore, our scope of review is plenary and our standard of review is de novo. See id.

In his sole issue on' appeal, Appellant argues that the probation condition requiring him to disclose the location of the stolen items violates his Fifth Amendment right against self-incrimination. (See Appellant’s Brief, at 12-17). Appellant acknowledges that the trial court imposed the condition to require disclosure of information regarding only the underlying offense, (see Appellant’s Brief, at 16), but argues that such disclosure could lead to identification of the person to whom the items were sold, criminal investigations relating to other stolen items, and potential exposure to prosecution in other jurisdictions. (See id. at 14, 17). Relying on Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), and Commonwealth v. Fink, 990 A.2d 751 (Pa.Super.2010), he contends that the con[338]*338dition is illegal and must be vacated. (See id. at 12-18). We agree.

The Fifth Amendment to the United States Constitution provides, in relevant part, that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. Amend. V. In Murphy, supra, the United States Supreme Court addressed the significance of the Fifth Amendment with regard to probationers, and stated that the Amendment applies not only at criminal trials, but in “any other proceeding, civil or criminal, formal or informal, where the answers might incriminate [the defendant] in future criminal proceedings.” Murphy, supra at 426, 104 S.Ct. 1186 (citation omitted). In addition, “our Supreme Court has held that the protections afforded against self-incrimination by Article I, § 9 of the Pennsylvania Constitution provide no greater rights than the Fifth Amendment to the United States Constitution.” Commonwealth v. Shrawder, 940 A.2d 436, 440 (Pa.Super.2007) (citing Commonwealth v. Arroyo, 555 Pa. 125, 728 A.2d 162, 166-67 (1999)).

In Murphy, supra, the defendant’s sentence of probation included a condition that he participate in a sexual offenders’ treatment program and report to his probation officer, being truthful “in all matters.” Murphy, supra at 422, 104 S.Ct. 1136. During a meeting with his probation officer, the defendant admitted to committing a rape and murder. See id. at 424, 104 S.Ct. 1136. The state then indicted him for those crimes, and the defendant unsuccessfully sought suppression of his confession. See id. at 425, 104 S.Ct. 1136. The United States Supreme Court analyzed whether the defendant’s Fifth Amendment right was violated by the admission into evidence at trial of the statements he made to his probation officer. See id. at 426, 104 S.Ct. 1136. The Court concluded that, since the defendant voluntarily revealed incriminating information instead of timely asserting his Fifth Amendment privilege, his disclosures were not compelled incriminations. See id. at 440, 104 S.Ct. 1136. However, the Court explained:

the nature of probation is such that probationers should expect to be questioned on a wide range of topics relating to their past criminality....
* * '!*
A state may require a probationer to appear and discuss matters that affect his probationary status; such a requirement, without more, does not give rise to a self-executing privilege. The result may be different if the questions put to the probationer, however relevant to his probationary status, call for answers that would incriminate him in a pending or later criminal prosecution. There is thus a substantial basis in our cases for concluding that if the state, either expressly or by implication, asserts that invocation of the privilege would lead to revocation of probation, it would have created the classic penalty situation, the failure to assert the privilege would be excused, and the probationer’s answers would be deemed compelled and inadmissible in a criminal prosecution.
* * *
Our decisions have made clear that [a] State c[an] not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege.

Id. at 432, 435, 438, 104 S.Ct. 1136 (emphasis added, footnote omitted). The Murphy Court also noted that a state may validly insist on answers even to incriminating questions as long as it recognizes that the required answers may not be used in a [339]*339criminal proceeding, thus eliminating the threat of incrimination. See id. at 435 n. 7, 104 S.Ct. 1136.

In Fink, supra, the defendant was required to participate in a sex-offender counseling program as a condition of his parole and probation. See Fink, supra at 753. He was discharged from the counseling program following his refusal to complete a disclosure questionnaire that made specific inquiries about his past sexual conduct, without regard to whether that conduct had resulted in criminal charges. See id. The questionnaire asked for information regarding prior sexual assaults, but did not require disclosure of the victims’ names. See id.

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Cite This Page — Counsel Stack

Bluebook (online)
87 A.3d 336, 2014 Pa. Super. 42, 2014 WL 868627, 2014 Pa. Super. LEXIS 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-green-pasuperct-2014.