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DAVE SUNDAY, DISTRICT ATTORNEYISSUE 130 JUNE, 2022LETTER OF THE LAWLaw Enforcement Officers, I would like to introduce you to the first volume of the revamped YorkCounty District Attorney’s Office Police Update. This quarterly newsletter ismeant to provide relevant and accurate information directly to you from theOffice of the District Attorney.Topics will primarily be driven by new case law, law enforcement inquiriesand issues that come to my attention through prosecutors in this office.Additionally, you will see that the newsletter itself is published in an easy toview format.As District Attorney, I have the distinct privilege of working alongside manydedicated, public servants such as yourself. With total confidence, I canstate that many people do not understand how difficult the job of a policeofficer truly is. With each passing day, society puts you in the tenuouspositions of protector, defender, servant, and social case worker – all at amoment’s notice; many times, all within an eight-hour shift. You areexpected to have the answer to every question and the solution to everyproblem. Far too often, these efforts go unseen. I see it and I want to thankyou.Sincerely, Dave SundayYork County District AttorneyMESSAGE FROM DA SUNDAYHearsay at Preliminary HearingsNight-Time Search WarrantsOut-of-County Search WarrantsIN THIS EDITIONWWW.YORKDA.COM

Use of Hearsay atPreliminaryHearingsPA Appellate Courts continue toaddress the role of hearsay atpreliminary hearings. Both thePennsylvania Supreme Court andSuperior Court reviewed thestandards provided in Rule of CriminalProcedure 542. See Commonwealth v.McClelland, 233 A.3d 717 (Pa. 2020);Commonwealth v. Merced, 265 A.3d786 (Pa.Super. 2021); andCommonwealth v. Harris, 269 A.3d534 (Pa.Super. 2022). These cases establish the followinggeneral rules: 1. A hearsay objection impactsadmissibility of evidence at trial and isirrelevant at the pretrial stage; 2. Hearsay alone cannot be used toestablish a prima facie showing of allelements of all crimes; 3. Hearsay alone cannot be used toestablish a prima facie showing thatthe defendant committed the crimescharged; Hearsay continues on 3 Specific LanguageNeeded To BeIncluded In Night-Time SearchWarrants Rule of Criminal Procedure 203(E) states, “No search warrantshall authorize a nighttime searchunless the affidavits showreasonable cause for suchnighttime search.”Rule 206 (7)adds, “if a ‘nighttime’ search isrequested (i.e., 10 p.m. to 6 a.m.),state additional reasonable causefor seeking permission to searchin nighttime.” Night-Time continues on 4

continued from 2Hearsay4. Some hearsay may be used toestablish one or more elements ofoffenses when offered inconjunction with other legallycompetent, non-hearsay evidence; 5. In determining whether a primafacie case exists, the court shouldrely upon both hearsay and otherlegally competent, non-hearsayevidence; 6. Rule 542 (E) continues to relievevictims of property offenses fromhaving to attend preliminaryhearings simply to establish theownership of, nonpermissive useof, damage to, or value of stolenproperty; 7. Lab reports and records remainappropriate for considerationwithout live testimony from theanalyst or a custodian of records. Bottom Line: Do NOT base yourprima facie case at preliminaryhearing solely upon hearsay.Make sure you subpoenaenough witnesses to presentlegally competent, non-hearsayevidence of the elements of thecrimes and that the defendantcommitted those crimes.Also,make sure to include on thesubpoena list witnesses that mayonly be called at the trial leveland let the MDJ know that theyare not to be subpoenaed forthe preliminary hearing. Finally,err on the side of caution—better one too many witnesssubpoenaed for the preliminaryhearing than not enoughwitnesses to establish yourprima facie case.

Night-Timecontinued from 2These requirements for a nighttime searchwarrant support “the traditional doctrinethat nighttime intrusion into a citizen’sprivacy requires greater justification than anintrusion during normal business hours.”SeePa.R.Crim.P. 203 (E), Cmt.The Superior Courtsummarized these mandates as follows: “Putsimply, the affidavit for a warrant authorizinga nighttime search must show bothprobable cause and some reason why thesearch cannot wait until morning.”Commonwealth v. Bowmaster, 101 A.3d 789,794 (Pa.Super. 2014) (internal citationsomitted). The usual reasons for needing a nighttimesearch warrant are similar to traditionalexigency considerations: 1. Evidence will be lost, degraded, ordestroyed if a nighttime search does notoccur; 2. One or more individuals will be in greaterdanger without a nighttime search; 3. Mere convenience for law enforcementwithout some expression of exigency orurgency will not support the issuance of anighttime search warrant. Nighttime searches are frequentlynecessary to obtain a blood draw from aTarget 25 DUI suspect who refusesfollowing implied consent warnings(19.08% of all Target 25 Offendersrefused following DL-26 warnings). Thefollowing language meets the criteria forissuance of a nighttime search warrantfor a blood draw: “Your affiant requests a search warrant toconduct a blood draw from [suspect’name] and seize his blood fortoxicological testing in order to determinethe identification and quantification ofany impairing substance, i.e. alcohol ordrugs contained therein. Due to thecircumstances regarding the late hourand degradation or loss of toxicologicalevidence if the search and seizure doesnot occur as soon as possible, we arerequesting a nighttime search warrant.” The language can easily be adapted toany area to be searched and items to beseized where the evidence in question isin a location where it can be easilydestroyed, lost, degraded, orcontaminated, making the collection istime-sensitive. Bottom line: Regardless ofwhy you need a nighttime search, youmust plainly state the reasons why youneed it in the affidavit of probable causeor your request must be denied underthe law.

Out-Of-CountySearch WarrantsPennsylvania Rule ofCriminal Procedure 200states, “A search warrantmay be issued by anyissuing authority within thejudicial district wherein islocated either the person orplace to be searched.”Under this Rule, an MDJ hascountywide jurisdiction toissue a search warrant upona person or propertylocated within the countyserved by the MDJ, even ifthe location is outside of thespecific magisterial districtwithin the county. On theother hand, an MDJ doesnot have jurisdiction to issuea search warrant concerninga person or propertyoutside of the county wherean MDJ sits. If you need a search warrant for aperson or property outside of YorkCounty, you cannot obtain a searchwarrant from an MDJ located withinYork County. This applies toobtaining documents or electronicdata held outside of York County. The appropriate issuing authority ofa search warrant for an out-of-county person or property willdepend upon the items to besearched and seized. Many times, asearch warrant and/or order fromthe Court of Common Pleas will berequired, for which an ADA willmake arrangements with the Courtof Common Pleas and assist youwith obtaining the searchwarrant/court order. Please contactour office and an ADA will assist youwith doing so.

Contact the DA's Office at (717) 771-9600. M-F 8 am - 4:30 pmor 911 for the on-call DA for afterhour emergencies.