For the Defense - Vol. 5, Issue 3 - 29

	 the parties;
2. The trial court erroneously disregarded
	 SCRAM evidence at Defendant's probation
	 violation hearing;8
3.	 The Trial Court erred in allowing Defendant
	 to violate the terms of Defendant's plea
	 agreement, wherein Defendant agreed to
	 abide by SCRAM monitoring; and
4.	 The trial court abused its discretion in
	 dismissing Defendant's probation violation.

The Superior Court Consolidated Matters 2 and 3
and determined that Matter 4 was a restatement of
the newly combined Matters 2 and 3, and, therefore,
provided an opinion as to the Frye issue and whether
the trial court disregarded evidence of a violation.
With regards to the Frye issue, the Superior Court
held that the Commonwealth had sufficient notice.
In the instant case, the trial court continued the first
IP Violation Hearing by clearly telling the parties:
"[E]verybody involved in [the SCRAM] report is going
to show up the next time we're going to have the
hearing . . . . We're going to have a full evidentiary
hearing. We won't have any hearsay. We'll have first
person testimony ...."9
Moreover, the Superior Court concluded that even
if there was no notice, there would be no relief.10 It
stated,
Our Supreme Court has emphasized that, "the
proponent of expert scientific evidence bears
the burden of establishing all of the elements for
its admission under Pa.R.E. 702, which includes
showing that the Frye rule is satisfied." Grady,
supra at 1045. "Whether a witness is qualified
to render opinions and whether his testimony
passes the Frye test are two distinct inquiries
that must be raised and developed separately
by the parties and ruled upon separately by
the trial courts." Id. at 1045-46 (citation and
footnote omitted).11
The most important part of the Superior Court's
analysis of the Frye issue may have taken place in a
footnote. Specifically, Footnote 5 reads,
Furthermore, the Commonwealth offers no
binding authority to support its claim that
SCRAM monitors are not novel science and,
thus, the Frye test is inapplicable." (See
Commonwealth's Brief, at 19-26). Although
arguing that certain parts of the SCRAM monitor
system, infrared lasers and transdermal alcohol
detection, are widely accepted within the
scientific community, the Commonwealth fails
to prove that SCRAM monitors are not novel
scientific evidence. (See id.). Thus, it has not
met its burden under our standard of review to

show that the trial court abused its discretion
in conducting a full evidentiary hearing with
respect to the SCRAM monitor report. See
Dengler, supra at 379.12
As for whether the trial court disregarded evidence
of a violation, the Commonwealth's position was that
if the Vigilnet Rep. testified to a violation, that is
enough. To support this argument, they reasoned that
his testimony was prima facie evidence and they could
use to prove a violation by a preponderance of the
evidence.13 The Superior Court disagreed, again, in an
explanatory footnote:
The Commonwealth asserts that it may use
prima facie evidence to prove a violation
by a preponderance of the evidence. (See
Commonwealth's Brief, at 16, 18). However, in
support of this argument, the Commonwealth
relies on two cases wherein this Court held that
prima facie evidence would be sufficient, but
only where the defendant did not challenge
the violation. (See id.) (citing Commonwealth
v. Gochenaur, 480 A.2d 307, 309 (Pa. Super.
1984) (Prima facie evidence of simple assault
proved violation by preponderance of
evidence where Appellant corroborated he
was bound for court on simple assault charge);
Commonwealth v. Kates, 305 A.2d 701, 708 (Pa.
1973)). Here, Appellee opposed the tampering
violation; therefore the prima facie standard
does not apply."14
Additionally, although the trial court admitted the
SCRAM report, it nevertheless found that without
the underlying science it was not sufficient to meet
the Commonwealth's burden. Therefore, the Superior
Court Affirmed the Order dismissing the IP violation.

Thoughts and Considerations
First, make sure your client is aware that should
he or she choose to challenge a violation based on
SCRAM monitoring, that the law is not well settled
and there could be substantial cost in pursuing a
challenge. One of the things that came up in the
instant matter was the Commonwealth's position that
if they bring someone from SCRAM Monitoring, Inc. to
testify about what was done, or a scientific expert to
deal with the science, the related expenses would be a
cost of prosecution, to be borne by Ms. Manzi. While
not necessary in the instant case, it may be possible to
challenge this on the theory that the Commonwealth
is presenting new science and, therefore, should pay
its own costs.
Next, start gathering information as soon as you
can if you intend to contest the violation. This will be
even more important if you intend to have your own

Vol. 5, Issue 3 l For The Defense

29
For the Defense - Vol. 5, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 5, Issue 3
