For the Defense - Volume 2, Issue 4 - 2017 - 35

Amicus Matters
"AND NOW, this 28th day of September,
2017, this appeal is dismissed as
having been improvidently granted."
Commw. v. Ricker, per curiam order.
Barbara A. Zemlock

T

o the extent that a criminal defense attorney
was unaware of the Pennsylvania Supreme
Court's ability to dismiss as having been
"improvidently granted" a pending appeal that
was fully briefed and argued, an education as
to this authority was provided on September 28,
2017, when the Court dismissed the appeal in
Commonwealth v. Ricker via per curiam order.
With district attorneys across the Commonwealth
interpreting the 2013 amendments to
Pennsylvania Rule of Criminal Procedure 542(E)
as allowing a prima facie case to be established
at a preliminary hearing based solely on hearsay,
with many magisterial district judges and trial
judges following that interpretation, the status of
Ricker was followed closely, and the defense bar
anxiously awaited the Court's decision. With the
issuance of the September 28, 2017 per curiam
order, Ricker does not resolve the issue.
The Supreme Court has stated that "[w]here
we dismiss an appeal as improvidently granted,
the lower tribunal's opinion and order stand as a
decision of that court and this Court's order has
no precedential value." Commw. v. Tilghman, 543
Pa. 578, 590, 673 A.2d 898, 904 (1996)(emphasis
in original). Hence, all is not lost, despite the

Court's dismissal of the appeal. Criminal defense
practitioners who are faced with the "Ricker issue"
must review Justice Saylor's concurring statement
in Ricker for guidance as to the reasons why,
from his point of view, the appeal was dismissed
and to appropriately posture the case for review.
Furthermore, Justice Wecht issued a dissenting
statement which provides an excellent discussion
of the interrelated issues that are implicated in
the assessment of the Ricker issue; this dissenting
statement must also be carefully analyzed.
Additionally, Leonard Sosnov, of the Defender
Association of Philadelphia, prepared a memorandum which provides suggested strategies for
the continued litigation of the Ricker issue. That
guidance was posted on the PACDL listserver. If
you are a member of PACDL and do not have a
copy of Attorney Sosnov's suggested strategies
and related memorandum and would like a copy,
please contact Beth Winters at winters@pacdl.org.
Finally, there are at least two petitions for
allowance of appeal that are pending that we
hope will provide the framework which the Court
seeks to decide this issue. Until that time, however,
defense attorneys should continue to litigate and
preserve this very important issue.
Vol. 2, Issue 4 | For The Defense

35



Table of Contents for the Digital Edition of For the Defense - Volume 2, Issue 4 - 2017

Table of Contents
Commonwealth v. Jerome King and Beyond: Trial Counsel’s Obligation to Cooperate with an Ineffective Assistance of Counsel Claim
United States ex rel. Petratos v. Genentech Inc. – The Third Circuit Embraces A Rigorous Pleading Standard for Materiality In False Claims Act Suits, But Leaves Healthcare Industry Defendants Vulnerable On Medicare Claims
Changes in the DUI Landscape: Acts 33 and 30
Police Misconduct Resulting in Arrest: Weighing the Options
Dying with Dignity: Compassionate Release in Pennsylvania
Amicus Matters
Attorney Discipline
Finding the Hidden Data in Technology to Defend Your Client
For the Defense - Volume 2, Issue 4 - 2017 - 1
For the Defense - Volume 2, Issue 4 - 2017 - 2
For the Defense - Volume 2, Issue 4 - 2017 - Table of Contents
For the Defense - Volume 2, Issue 4 - 2017 - 4
For the Defense - Volume 2, Issue 4 - 2017 - Commonwealth v. Jerome King and Beyond: Trial Counsel’s Obligation to Cooperate with an Ineffective Assistance of Counsel Claim
For the Defense - Volume 2, Issue 4 - 2017 - 6
For the Defense - Volume 2, Issue 4 - 2017 - 7
For the Defense - Volume 2, Issue 4 - 2017 - 8
For the Defense - Volume 2, Issue 4 - 2017 - 9
For the Defense - Volume 2, Issue 4 - 2017 - 10
For the Defense - Volume 2, Issue 4 - 2017 - United States ex rel. Petratos v. Genentech Inc. – The Third Circuit Embraces A Rigorous Pleading Standard for Materiality In False Claims Act Suits, But Leaves Healthcare Industry Defendants Vulnerable On Medicare Claims
For the Defense - Volume 2, Issue 4 - 2017 - 12
For the Defense - Volume 2, Issue 4 - 2017 - 13
For the Defense - Volume 2, Issue 4 - 2017 - 14
For the Defense - Volume 2, Issue 4 - 2017 - 15
For the Defense - Volume 2, Issue 4 - 2017 - 16
For the Defense - Volume 2, Issue 4 - 2017 - 17
For the Defense - Volume 2, Issue 4 - 2017 - Changes in the DUI Landscape: Acts 33 and 30
For the Defense - Volume 2, Issue 4 - 2017 - 19
For the Defense - Volume 2, Issue 4 - 2017 - 20
For the Defense - Volume 2, Issue 4 - 2017 - 21
For the Defense - Volume 2, Issue 4 - 2017 - Police Misconduct Resulting in Arrest: Weighing the Options
For the Defense - Volume 2, Issue 4 - 2017 - 23
For the Defense - Volume 2, Issue 4 - 2017 - 24
For the Defense - Volume 2, Issue 4 - 2017 - 25
For the Defense - Volume 2, Issue 4 - 2017 - 26
For the Defense - Volume 2, Issue 4 - 2017 - 27
For the Defense - Volume 2, Issue 4 - 2017 - 28
For the Defense - Volume 2, Issue 4 - 2017 - Dying with Dignity: Compassionate Release in Pennsylvania
For the Defense - Volume 2, Issue 4 - 2017 - 30
For the Defense - Volume 2, Issue 4 - 2017 - 31
For the Defense - Volume 2, Issue 4 - 2017 - 32
For the Defense - Volume 2, Issue 4 - 2017 - 33
For the Defense - Volume 2, Issue 4 - 2017 - 34
For the Defense - Volume 2, Issue 4 - 2017 - Amicus Matters
For the Defense - Volume 2, Issue 4 - 2017 - 36
For the Defense - Volume 2, Issue 4 - 2017 - 37
For the Defense - Volume 2, Issue 4 - 2017 - 38
For the Defense - Volume 2, Issue 4 - 2017 - 39
For the Defense - Volume 2, Issue 4 - 2017 - Attorney Discipline
For the Defense - Volume 2, Issue 4 - 2017 - 41
For the Defense - Volume 2, Issue 4 - 2017 - 42
For the Defense - Volume 2, Issue 4 - 2017 - 43
For the Defense - Volume 2, Issue 4 - 2017 - Finding the Hidden Data in Technology to Defend Your Client
For the Defense - Volume 2, Issue 4 - 2017 - 45
For the Defense - Volume 2, Issue 4 - 2017 - 46
For the Defense - Volume 2, Issue 4 - 2017 - 47
For the Defense - Volume 2, Issue 4 - 2017 - 48
For the Defense - Volume 2, Issue 4 - 2017 - 49
For the Defense - Volume 2, Issue 4 - 2017 - 50
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