Posts tagged "Commonwealth"

Commonwealth v. Brown (Lawyers Weekly No. 10-042-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReportersjc.state.ma.us   SJC-12313   COMMONWEALTH  vs.  JOHNELLE M. BROWN.       Middlesex.     November 7, 2017. – March 16, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Assault and Battery.  Intimidation of Witness.  Witness, Intimidation.  District Court, Jurisdiction.  Practice, Criminal, New trial, Assistance of counsel, Instructions to jury, Sentence, Allocution, Restitution.  Restitution.       Complaint received and sworn to in the Cambridge Division of the District Court Department on May 2, 2014.   The case was tried before Michele B. Hogan, J.; a restitution hearing was held before Daniel C. Crane, J.; and a motion for postconviction relief was heard by Hogan, J.   The Supreme Judicial Court granted an application for direct appellate review.     Luke Rosseel for the defendant. Melissa Weisgold Johnsen, Assistant District Attorney, for the Commonwealth.          CYPHER, J.  A jury in the District Court convicted the defendant, Johnelle M. Brown, of assault and battery and witness intimidation.  After beginning the sentencing hearing, the trial judge revoked the defendant’s bail and delayed sentencing for four days.  After reconvening, the judge imposed a sentence of a one-year commitment to a house of correction, suspended for two years, probation, and restitution.  The defendant disputes the District Court’s jurisdiction over the witness intimidation prosecution.  The defendant also appeals from the denial of her motion for a new trial, revocation of bail, and order of payment of restitution.  We affirm. Facts.  We recite the facts as the jury could have found them, reserving certain facts for later discussion. Mahboobe Aria and Mehdi Aria[1] managed a restaurant.  On April 6, 2014, the restaurant closed at 2:30 A.M.  At approximately 2:40 A.M., Mahboobe and Mehdi were completing tasks relevant to closing the restaurant.  Mehdi was outside, cleaning the outdoor seating.  Mahboobe was inside. The defendant and a man arrived in an automobile and parked outside the restaurant.  The man was not identified by name at trial, but the defendant’s motion for a new trial, appellate brief, and affidavits identify this man as Tyrell Carr. Carr remained in the automobile while the defendant went into the restaurant.  Mahboobe was near the cash register when the defendant walked into the restaurant. Mahboobe told the defendant that the restaurant was closed.  The defendant said that she needed to use the bathroom.  Mahboobe refused to allow the defendant to […]

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Posted by Massachusetts Legal Resources - March 16, 2018 at 9:09 pm

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Commonwealth v. Wright (Lawyers Weekly No. 10-040-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReportersjc.state.ma.us   SJC-11950   COMMONWEALTH  vs.  JOSEPH WRIGHT.       Essex.     November 10, 2017. – March 15, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.     Homicide.  Constitutional Law, Admissions and confessions, Voluntariness of statement.  Evidence, Admissions and confessions, Voluntariness of statement, Expert opinion, Exculpatory, Intoxication.  Mental Impairment.  Intoxication.  Practice, Criminal, Capital case, Admissions and confessions, Voluntariness of statement, Discovery, Assistance of counsel, Preservation of evidence.  Witness, Expert.       Indictments found and returned in the Superior Court Department on June 28, 2012.   A pretrial motion to suppress evidence was heard by Richard E. Welch, III, J., and the cases were tried before Howard J. Whitehead, J.     David H. Mirsky (Joanne T. Petito also present) for the defendant. Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth.          CYPHER, J.  The defendant, Joseph Wright, appeals from two convictions of murder in the first degree.  He urges the reversal of his convictions on four grounds.  First, he contends that the pretrial motion judge erroneously denied his motion to suppress statements he made to Canadian law enforcement officers.  Second, he argues that the trial judge committed a reversible error in ordering the pretrial disclosure of the defendant’s mental health expert’s report regarding the defendant’s mental condition at the time of the crimes, which the prosecution had in its possession during its subsequent cross-examination of the defendant.  Third, the defendant argues that the evidence at trial demonstrates his lack of criminal responsibility for the murders, and relatedly, that his trial counsel’s failure to argue a lack of criminal responsibility defense before the jury constitutes ineffective assistance of counsel.  Fourth, he argues that State police investigators failed to collect certain evidence relevant to his intoxication at the time of the crimes, thereby denying the defendant his right to a “complete defense.”  Having considered the defendant’s arguments, and, more broadly, “the whole case on the law and the facts” pursuant to our duty under G. L. c. 278, § 33E, Commonwealth v. Howard, 469 Mass. 721, 747 (2014), we affirm the convictions. Factual and procedural background.  We recite the facts the jury could have found in the light most favorable to the Commonwealth, but we reserve certain details of the facts and proceedings for discussion of the individual issues. The defendant does not dispute that he killed […]

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Posted by Massachusetts Legal Resources - March 15, 2018 at 8:07 pm

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Commonwealth v. Gonzalez (Lawyers Weekly No. 11-028-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   16-P-1035                                       Appeals Court   COMMONWEALTH  vs.  RADHAMES GONZALEZ.     No. 16-P-1035.   Middlesex.     September 12, 2017. – March 12, 2018.   Present:  Rubin, Neyman, & Henry, JJ.     Controlled Substances.  Firearms.  Practice, Criminal, Motion to suppress, Confrontation of witnesses.  Constitutional Law, Search and seizure, Investigatory stop, Reasonable suspicion, Confrontation of witnesses.  Search and Seizure, Motor vehicle, Reasonable suspicion, Threshold police inquiry.  Threshold Police Inquiry.  Motor Vehicle, Firearms.  Witness, Expert.  Evidence, Expert opinion, Scientific test.     Indictments found and returned in the Superior Court Department on October 31, 2013.   A pretrial motion to suppress evidence was heard by Thomas P. Billings, J., and the cases were tried before him.     Steven J. Rappaport for the defendant. Clarence H. Brown, Assistant District Attorney, for the Commonwealth.     HENRY, J.  After a jury trial in Superior Court, the defendant, Radhames Gonzalez, was convicted of possession of cocaine with intent to distribute, carrying a firearm without a license, possession of ammunition without a firearm identification card, possession of a large capacity feeding device, and possession of a large capacity weapon during the commission of a felony.[1]  The defendant argues that (1) his motion to suppress should have been allowed because the information supplied by a confidential informant (CI) did not justify the investigatory stop of his motor vehicle; and (2) the admission in evidence of a substitute chemist’s testimony deprived the defendant of his right to “confront” the witness.  We affirm. Background.  We set forth the facts as found by the motion judge, supplemented where necessary with uncontroverted evidence drawn from the record of the suppression hearing.  See Commonwealth v. Watson, 430 Mass. 725, 726 n.5 (2000). Sergeant William West of the Billerica police department testified that he had been a patrol sergeant for two years, and that he had formerly been a detective in the criminal bureau for sixteen years.  As a detective, he had investigated all types of crimes including narcotics offenses and had worked with informants “no less than a hundred times.”  In June, 2013, about one year after he had become a sergeant, West was contacted by a CI with whom West had worked on more than one occasion when he was a detective. On this occasion, the CI provided a description of a man who went by the name of “Eddie,” later identified as the […]

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Posted by Massachusetts Legal Resources - March 12, 2018 at 8:33 pm

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Commonwealth v. Fredericq (Lawyers Weekly No. 11-029-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   16-P-1542                                       Appeals Court   COMMONWEALTH  vs.  Stanley Fredericq.[1]     No. 16-P-1542.   Plymouth.     December 1, 2017. – March 12, 2018.   Present:  Agnes, Blake, & McDonough, JJ.     Cellular Telephone.  Controlled Substances.  Constitutional Law, Search and seizure, Standing, Privacy, Probable cause.  Search and Seizure, Consent, Expectation of privacy, Fruits of illegal search, Multiple occupancy building, Probable cause, Warrant.  Privacy.  Probable Cause.  Consent.  Evidence, Result of illegal search, Business record.  Practice, Criminal, Motion to suppress, Standing, Warrant.       Indictments found and returned in the Superior Court Department on August 22, 2008.   A pretrial motion to suppress evidence was heard by Thomas J. McGuire, Jr., J.   An application for leave to prosecute an interlocutory appeal was allowed by Barbara A. Lenk, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court.     Nathaniel Kennedy, Assistant District Attorney, for the Commonwealth. Jason Benzaken for the defendant.     BLAKE, J.  As a result of information gathered in connection with a homicide, an interstate narcotics investigation began, which led police to discover cocaine and cash at 220-222 Howard Street in the city of Brockton.[2]  This is an interlocutory appeal by the Commonwealth from the order allowing the defendant’s motion to suppress evidence obtained as a result of a warrantless search.  We reverse in part and affirm in part. We set forth detailed facts and the procedural history of this case as they are necessary to the analysis.  The defendant was indicted for trafficking in two hundred grams or more of cocaine.  He has twice filed motions to suppress.  In his first motion, the defendant argued that the search at 220 Howard Street was conducted without a warrant and without his consent.  After a two-day evidentiary hearing, the first motion judge denied the motion on grounds that the defendant consented to the search.  In the defendant’s second, or so-called “amended” motion to suppress, he argued that the evidence seized from 220 Howard Street must be suppressed as the tainted fruit of the unlawfully obtained cellular site location information (CSLI).[3]  The same judge denied the motion after a nonevidentiary hearing and the defendant sought interlocutory review. A single justice of the Supreme Judicial Court, while retaining jurisdiction of the case, ordered an evidentiary hearing on the motion.  After […]

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Posted by Massachusetts Legal Resources - March 12, 2018 at 4:59 pm

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Commonwealth v. Howard (Lawyers Weekly No. 10-036-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12199   COMMONWEALTH  vs.  CLYDE HOWARD.       Middlesex.     December 8, 2017. – March 5, 2018.   Present:  Gants, C.J., Gaziano, Lowy, & Cypher, JJ.     Homicide.  Practice, Criminal, Instructions to jury, Lesser included offense, Capital case, Jury and jurors.  Jury and Jurors.  Evidence, Prior misconduct.       Indictment found and returned in the Superior Court Department on March 19, 2009.   Following review by this court, 469 Mass. 721 (2014), the case was tried before Brian A. Davis, J.     Sharon Dehmand for the defendant. Jamie Michael Charles, Assistant District Attorney, for the Commonwealth.     GAZIANO, J.  On January 28, 2009, a heated argument between the defendant and a coworker, Maurice Ricketts (victim), escalated into a fatal shooting.  At trial, there was no dispute that the defendant had shot the victim; the issue before the jury was the defendant’s state of mind and whether the shooting had been in response to some form of reasonable provocation. A Superior Court jury convicted the defendant of murder in the first degree on the theory of deliberate premeditation.[1]  In this direct appeal from his conviction, the defendant challenges the judge’s decision not to instruct the jury on the lesser included offense of voluntary manslaughter based on sudden combat; the adequacy of the instructions on reasonable provocation and lesser included offenses; the dismissal of an empanelled juror shortly before deliberations began; and the judge’s decision to allow the introduction of prior bad act evidence.[2]  The defendant also asks this court to exercise its extraordinary authority under G. L. c. 278, § 33E, and reduce the verdict to murder in the second degree or manslaughter.  For the reasons that follow, we affirm the defendant’s conviction and, after a thorough review of the entire trial record, decline to allow relief under G. L. c. 278, § 33E. Facts.  We recite the facts the jury could have found, reserving other facts for our discussion of specific issues.  In January, 2009, the defendant and the victim were coworkers at a pool supply distributor.  The defendant, a janitor and handyman, had been employed there for over eleven years.  In 2007, the distributor hired the victim to work as an “order puller”; this position involved working in the warehouse, assembling products to fill customer orders. Over the course of the victim’s employment, the defendant, who was sixty-five years old, and the […]

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Posted by Massachusetts Legal Resources - March 5, 2018 at 8:25 pm

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Sabree v. Commonwealth (Lawyers Weekly No. 10-037-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12300   SAIF SABREE[1] vs. COMMONWEALTH.     March 5, 2018.     Supreme Judicial Court, Superintendence of inferior courts.  Practice, Criminal, Sentence.     Saif Sabree appeals from the judgment of a single justice of this court, pursuant to G. L. c. 211, § 3, denying him relief from State prison sentences that he claims were illegal. We affirm.   The procedural history of Sabree’s case is extensive, and our summary is abbreviated.  On February 12, 1974, he was indicted on charges of rape, armed robbery, and armed assault in a dwelling.  See Commonwealth v. Nicholson, 4 Mass. App. Ct. 87, 88 (1976).  After a jury trial, he was convicted on all counts and sentenced to a life term for each offense, with the sentence for armed assault to run concurrently with the sentence for armed robbery, and the sentence for rape to run from and after the armed robbery sentence.[2]  For reasons that are not part of the record before us, the Appellate Division of the Superior Court reordered and amended the sentences by reducing the sentences for armed assault and armed robbery to concurrent terms of from six to ten years, and ordering that they take effect from and after the life sentence for rape.  The Appeals Court affirmed the convictions, see Nicholson, supra, as well as several subsequent orders denying his various motions for a new trial.  See Commonwealth v. Sabree, 73 Mass. App. Ct. 1105 (2008); Commonwealth v. Mitchell, 17 Mass. App. Ct. 1112 (1984); Commonwealth v. Mitchell, 9 Mass. App. Ct. 892 (1980).  Sabree also filed a petition pursuant to G. L. c. 211, § 3, which sought an order compelling the Superior Court to act on a pending motion.  That was denied because he failed to create a record to support his allegations.  See Sabree v. Commonwealth, 432 Mass. 1003, 1003 (2000).   In 2015, Sabree filed a motion in the Superior Court seeking substantially the same relief that he requested in the G. L. c.  211, § 3, petition now before us:  release from alleged unlawful restraint or correction of the sentences now being served, pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001).  He also sought an evidentiary hearing and other relief.  Although there is some indication that the motions were denied, the judge’s orders have not […]

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Posted by Massachusetts Legal Resources - March 5, 2018 at 4:51 pm

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Commonwealth v. Padua (Lawyers Weekly No. 10-035-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12321   COMMONWEALTH  vs.  EDWIN PADUA.     March 2, 2018.     Practice, Criminal, Sentence.  Moot Question.     In 2000, Edwin Padua pleaded guilty to two counts of threatening to commit a crime, and the charges were placed on file at that time.  In 2014, in connection with proceedings on a subsequent probation violation, a judge in the District Court brought the filed charges forward and sentenced Padua on them.  In an unpublished memorandum and order, the Appeals Court determined that the charges had been properly placed on file and then brought forward, but remanded the matter to give the sentencing judge an opportunity to explain the basis for the sentences he imposed.  After the judge responded, the Appeals Court issued an unpublished decision affirming the convictions on the filed charges but vacating the sentences and remanding for resentencing due to certain doubts it had concerning their propriety.  Commonwealth v. Padua, 90 Mass. App. Ct. 1123 (2016).  We allowed Padua’s application for further appellate review.   The sole issue before us is the proper disposition of the appeal where the Appeals Court determined that the charges were properly placed on file and then brought forward for sentencing, but remained in doubt as to the propriety of the sentences themselves.[1]  We reject Padua’s suggestion that it was improper to vacate the sentences without simultaneously vacating the convictions.  It is well established that an appellate court may do so where it concludes that the defendant was properly found guilty of an offense, but that the sentence was improper in some respect.  See, e.g., Commonwealth v. Penn, 472 Mass. 610, 628-629 (2015) (remanding for resentencing after invalidation of life sentence without possibility of parole for juvenile convicted of murder in first degree); Commonwealth v. Williams, 456 Mass. 857, 875 (2010) (remanding for resentencing where sentences exceeded statutory maximum); Commonwealth v. Pillai, 445 Mass. 175, 194 (2005) (remanding for resentencing after invalidation of term of lifetime community parole supervision).  Although, as we shall explain, remanding for resentencing was improper in this case, it is a valid disposition as a general matter.  Nothing in Commonwealth v. Simmons, 448 Mass. 687 (2007), is to the contrary:  the fact that “a judgment of conviction does not enter unless sentence is imposed,” id. at 688 n.2, in no way requires an appellate court to vacate a fair […]

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Posted by Massachusetts Legal Resources - March 3, 2018 at 12:29 am

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Commonwealth v. Proia (Lawyers Weekly No. 11-025-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   16-P-1191                                       Appeals Court   COMMONWEALTH  vs.  KAYLA M. PROIA.     No. 16-P-1191.   Barnstable.     October 4, 2017. – March 2, 2018.   Present:  Agnes, Sacks, & Lemire, JJ.     Controlled Substances.  Practice, Criminal, Failure to make objection, Waiver, Argument by prosecutor, Jury and jurors, Empanelment of jury.  Evidence, Prior misconduct, Constructive possession.  Jury and Jurors.       Complaint received and sworn to in the Barnstable Division of the District Court Department on February 17, 2015.   The case was tried before Christopher D. Welch, J.     Kerry A. Haberlin for the defendant. Elizabeth M. Carey, Assistant District Attorney, for the Commonwealth.     AGNES, J.  Following a jury trial, the defendant, Kayla Proia, was convicted of one count of possession of a class A substance.  G. L. c. 94C, § 34.  The defendant moved for a required finding of not guilty pursuant to Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979), at the close of all evidence.  The defendant’s motion was denied, and the case was submitted to the jury.  After the jury returned their guilty verdict, the defendant again moved for a required finding of not guilty, both orally and in a subsequent written motion, pursuant to Mass.R.Crim.P. 25(b)(2), 378 Mass. 8962 (1979).  The defendant’s motion for a required finding of not guilty was again denied. On appeal, the defendant argues that testimony relating to a prior search of her apartment was erroneously admitted at trial.  The defendant further argues that the Commonwealth failed to present sufficient evidence to convict her of possession of a class A substance.  The defendant also claims that the prosecutor made improper remarks in his closing argument and that the judge did not remain impartial during the jury empanelment process.  For the reasons set forth below, we affirm. Background.  The jury could have found the following facts. January, 2015, search of the defendant’s apartment.  In January, 2015, a search warrant (January warrant) was executed at the defendant’s apartment (January search or first search).  Although the January warrant is not included in the record on appeal, it is inferable from the evidence concerning the second warrant, discussed below, that Alan Carey[1] was named in the January warrant and was the target of the police investigation.  While conducting the January search, the police found approximately seventeen grams of heroin on top of the defendant’s kitchen cabinets, as […]

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Posted by Massachusetts Legal Resources - March 2, 2018 at 8:50 pm

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Commonwealth v. Pennsylvania Higher Education Assistance Agency (Lawyers Weekly No. 09-019-18)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1784CV02682-BLS2 ____________________ COMMONWEALTH OF MASSACHUSETTS v. PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY d/b/a FedLoan Servicing ____________________ MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS The Commonwealth of Massachusetts has sued the Pennsylvania Higher Education Assistance Agency (PHEAA) for engaging in allegedly unfair and deceptive acts and practices against Massachusetts student loan borrowers. It appears to be undisputed that PHEAA, although originally established to help provide student loans and grants for Pennsylvania residents, has become one of the largest student loan servicers in the country and now manages the federal student loan accounts of hundreds of thousands of Massachusetts residents under a contract with the United States Department of Education. The Commonwealth claims that PHEAA violated the federal Consumer Financial Protection Act and G.L. c. 93A by charging and collecting amounts not owed by borrowers, failing to process borrowers’ applications for income driven repayment plans in a timely and accurate manner, and failing to properly count borrowers’ qualifying payments under the Public Service Loan Forgiveness program. PHEAA has moved to dismiss this action on several grounds. The Court will DENY this motion because it is not convinced that PHEAA is an arm of the Commonwealth of Pennsylvania and shares in its sovereign immunity, that PHEAA cannot be sued under G.L. c. 93A or that its alleged misconduct is exempt from c. 93A because it is affirmatively permitted by federal law, or that the United States Department of Education is an indispensable party. 1. Background—PHEAA’s Enabling Act. Certain aspects of the enabling act that created PHEAA provide background relevant to PHEAA’s claims that it is entitled to invoke the Commonwealth of Pennsylvania’s sovereign immunity and that it cannot be sued under G.L. c. 93A because it is a public entity. – 2 – PHEAA was established by the Pennsylvania Legislature as “a public corporation and government instrumentality.” 24 Pa. Stat. § 5101. It is authorized to make, guarantee, and service student loans. Id. § 5104(3). By statute, PHEAA has substantial financial and operational independence from the Commonwealth of Pennsylvania. PHEAA can spend money “for any of its purposes” without needing any legislative appropriation. Id. § 5104(3). Although PHEAA must deposit its revenues “in the State Treasury,” it may use its funds whenever it wants “at the discretion of the board of directors for carrying out any of the corporate purposes of the agency.” Id.; see also id. § 5105.10 (PHEAA’s loan servicing, loan repayment, and other revenues are held within State Treasury in a segregated “Educational Loan Assistance Fund,” are all “appropriated to [PHEAA’s] board,” and “may be applied and reapplied as the board shall direct and shall not be subject to lapsing”). And PHEAA may […]

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Posted by Massachusetts Legal Resources - March 1, 2018 at 7:48 pm

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Commonwealth v. Manha (Lawyers Weekly No. 10-034-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12342   COMMONWEALTH  vs.  ANTHONY F. MANHA.       Suffolk.     December 5, 2017. – February 28, 2018.   Present:  Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Constitutional Law, Search and seizure, Investigatory stop, Reasonable suspicion. Search and Seizure, Reasonable suspicion, Threshold police inquiry, Protective sweep. Threshold Police Inquiry.       Complaint received and sworn to in the South Boston Division of the Boston Municipal Court Department on July 10, 2012.   A pretrial motion to suppress evidence was heard by Ernest L. Sarason, Jr., J., and following transfer to the Central Division of the Boston Municipal Court Department, the case was tried before Tracey-Lee Jones, J.   After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.     Leah Hook for the defendant. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.          BUDD, J.  Here we address the authority of the police to stop and perform a Terry-type search of a motor vehicle after an anonymous 911 caller reported that the driver of that vehicle threatened the caller, a fellow motorist, with a gun.  The driver, defendant Anthony F. Manha, appeals from a conviction of assault with a dangerous weapon.  The Appeals Court affirmed in an unpublished memorandum and order pursuant to its rule 1:28.  Commonwealth v. Manha, 91 Mass. App. Ct. 1105 (2017).  We granted the defendant’s application for further appellate review.  He claims that the police lacked probable cause to stop him and that, therefore, the pellet gun found subsequently in his vehicle should have been suppressed.  We conclude that, in these circumstances, the information that the police possessed gave them reasonable suspicion to stop and perform a protective sweep of the defendant’s motor vehicle, and that, given the officers’ safety concerns, reasonable suspicion was all that was required.  We therefore affirm the conviction. Background.  We present the facts as found by the motion judge.  On July 9, 2012, while on patrol, Trooper John Guest of the State police received a radio call of a then-ongoing 911 call from a motorist regarding a road rage incident.  According to the 911 caller, an individual in another motor vehicle had pointed a gun at her as she traveled southbound on Route 93 in Boston.  She described the gunman as a white male in […]

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Posted by Massachusetts Legal Resources - February 28, 2018 at 3:11 pm

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