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iHeld: Because the decision announced in Scamone fid notinvolve not a new rule. no issue of retroactivity is oresent, andPiore's continued incarceration violates due - orocess. The SateSupreme Court's answer to the above question was: "Scdqone did notannounce a new rule of law. Onr nlling merely clariOed the plain Ian-page of the statnte. . . . Our interpretation of [§6018.401(a)I inScarpone fi~rnishes the proper statement of law at the date Fiore's convictionbecame Enal." Piore u. Wte, 562 Pa. 634,646, 757 A. 2d 842,848-4349 (2000) Court reasons that because Smqone was not newlaw, this case presents no issue of retroactivity; mther, question is simplywhether Pennsylvania can, consistently with the Fede~al Due ProcessClause, conviet Fiore for conduct that its criminal statute, as properlyinterpreted, does not prohibit. Court'sprecedents make clear that Piore'sconviction and continned incarceration on this charge violate dueprocess. "We have held that tbe Dne Process Clause of the FourteenthAmendment forbids aState to convict a person of a cdme without pmvingthe elements of that crime beyond a reasonable doubt." Here, Statefalled to prove the essential element that Piore dld not possess a permit.Judgment is therefore reversed, and meis remanded to 3~~ Circuit forfurther proceedings.EfiENSION 0% TRAPPIC STOP - US4 u. JONES baANL7L, No. 9-11z5o (1v2onooo).Defendants were stoppedfor tr&cviolations. A records checkwns run on both the driver and passenger, which was negati~e. The officerreturned the driver's license to I~I, but continued questioning boththe driver md passenger. He then obtained consent to sea~ch the vehicle,and recovered drugs. The ofacer attempted to establish reasonable suspicionfor the continued detention based on the allegedly ioconsistentresponses about employn~ent, and the fact that Daniels admitted he hadbeen previously arrested for a mck cocaine charge The court chamcterizedthe inconsistencies as trivial, and humaterial. The coua alsofound Dauiel's prior arrest did not establish reasonable suspicion.Therefore, the continued detention was illegal. Because of the close temporalproximity between the illegal detention and the consent, the courtEnds it was not volunt~. Court reverses the District Court's order denyingthe defendant's motions to suppress.HABBAS CORPUS - TIMBLINBSS OF NOTICE OP APPEaWIlKBNS u, JOMYSO.V, No. 99-41180 (1/4/2001).On June 18,1999, the Diswict Court entered an order denyingthe petition for writ of habeas corpus. Petitioner's altorney claimed hedid not receive a copy of the order until September 7, 1999, wlten it wasfaxed to him. He srrbsoquentlyBled amotion to Ble alate notice of appealon October 4,1999, whicl~ was granted. No attempt was made to assertthe notice was not timely Bled, but the court tookup the issue on its own.Rule r 4 allows a pwty to file a motion to Ble a late notice of appeal within30 days of the date notice is due. Where noticeis not received, apactymHe such a motion with 7 days of receipt of such notice, or 180 daysafte entry of judgment, wluchever is earlier. Here, the motion was nottimely under either exception. The issue was whether was the bxed copyof the petition was sufficient, which the court l~olds it was. Asa result, theappeal was dismissed far lack of jurisdiction.CONFRONTATION CLAUSE AND THE DENIAL OF COUNSEL:Defendant originally obtained relief based m a confrontationclaw violation. (An ofacer effectively testiM to what a confidentialinformant had told him). COA revnsed, Ending there was no caIh.onta-Uon clanse violation. Not to be detemd the District Court again grantedrelief, this time Ending the state's use of 11eaivay testimony constituted aconstructive denial of counsel, based on tbe failure to object to the teshmonyand move for disclosure of the informant COA holds a fmding ofineffective assistance is foreclosed by the prior decision concluding anyerror was harmless. Constnlctive denial of counsel is limited to thosecases where the ineffectiveness is so egregious that the defendant isdenled any m&~Bful assistance. Since counsel rendered at least somemeaningfd assistance, the District Court was agaio reversed.JURlSDICTrONAL REQUIREMBNT FOR MURDER FOR HIRR USAU. II&QRBKb CIS-, NO. 98-40568 &98-40955 (V4/2001)C~III? gmted rellearing en banc to determine the jurisdictionalrequirementsof the murder for hire statute. The issue was whetherint~wstate use of an interstate facility is snfEcient. Inbfamk, the defendantused Western Union to wire money in state. The eourt holds that is suttlcient,construing the statute to be sati&d as a long as a facility in interstatecommerce is used.PDR OPINIONS:ERRORTO EXCLUDE EVIDENW RBLBVkhTTO DURESS DBEBNSB:DLIL&SLfT?LIGIflWYMILLEU u. State, No. 1939-%,Appellant's PDRfmm Travis County; Reversed, OV17?01; Offense: Deliveq of Less than1 gm Cocaine; Sentence: 6 yrs (2 prior felonies); COA: Mrmed (W-No. 03-99-00040-CR, Austin 9/10/99); Opinion: Holland, joined byKeller, Illeyers, P~ice, Johnson, Keasler, Hervey & Holcomb; ConcurringOpinion: WomackAppellant delivered cocaine to an undermver cop. Herdefense was dnress: she tesaed that a man named James Magee hadthreatened to beat her up if she did not dehr the coke, that she was&id of Magee, and that her Me wasin danger. She wanted to admitfurtherer3dence that shortly dter cdssion of the offense, Magee did infact, assault her. The trial cow sustdned the State's objection that thisevidence was irrelevant because it occurred after commission of theoffense, and COA agreed. Appellant's PDR was gxnted to determinewhether exclusion of this testimony in support of her duress defense wasproperHeld: The-gthe testimony as irrelevant based on when the assault occurred;the evidence w relevant under TRAP 402. Due process guaranteesa defendant "a meaningful opporhmiiy to present a completedefense!' The principle applies to cases not only where witnesses havebeen intimidaied into silence, but where trial courts have eududed evidence.The defendant has a fi~ndamental right present evidence of adefense as long as it is relevant and not excluded by an established evidentlaynde. To be relewt, evidence must be material and probative."Material" means any fact that is of consequence to the determination ofthe action. "Probative" mems it nmst tend to make the existence of thefact more or less probable than it would be without the evidence.
Here, Appellant iaisedthe af$math.c defense ofdoress and thetrial court histructed the jury accordingly. Question is whether Magee'smault on Appellant would have any tendency to make it mom probablethat Appellant reasonably believed that she was compelled to debver thecoke by threat of serious bodily injury or death, or at least more probablethan it would have been wiIhout the evidence of assrmlt, even thoughit occurred &r the deli~q. W telied w a 5th Circuit opinlon, USl v.McClure, 546 EZd 670 t5lh Cir. 1977), which held coercive threatswerenot irrelevaot merely because they took place after the defendant hadconunilted the offensefor which hewas on trial. There, Court found thatthe j~y could not properly convict defendant absent tlie opportunity toI I he ~ proffered testimony bearing on the defeusive theoly and weighits credibility along wnh the other widence presented. Here, CCA concludesthat arational jury could find the evidence that Magee putsued andassaulted Appellant shortly after the offense (as he had threatened)helped prove that Appellant was under a constant state of duress fromMagee when she delivered the coke, that thls duress made her fat forher safety, aud that her fm was reasonable. The testimony that Magee~ssaulted her tended to make the existence of a consequeutial k t moreprobable, namely that Appellant had delivered the coke under durnthan it was without the adu~tssion of the testimony, thus it was relevant.CCA also Finds tlie evidence relevant under TRAP 402 because there wasnothing to impede its admission Even if trial court had held it inadnlissibleunder TRAP 403, that would have been an abuse of discretion.Judgn~ent is revmsed, and causeis remanded to COA for a h m malpis.FINAL CONVICTION REQUIRED TO ENHANCE STBTB JAIL FELONY:BRICKBNYATrA JORl2AN u. Slate, No. 156-99, State's PDR from BellCountr, AJ&mecl, 1/17/00, Meiise: UUMV; Sentence: 2 yrs; COA:Revelxed (9791n5- Ausfin 1998); Opinion: Keller, joined by Holland,Womack, Keasler, Hemey & Holcomb; Concurring Opinion: Price, joinedby Meyen & Johnson.Appellant got deferred in 1995 for delivering less than 4 gmsof cocaine, but der a heating, his connuunity supenision was rwkdIn the same proceeding he pled guilty to Uie instant offense, a state jailfehy, and his delivery offense wvas used under TCCP 42.12 5 15 to authorizea 2-y term of con8nenient. Without the prior conviction, tlie trialcourt would have been required to place Appellant on probation. State'sPDR concerns whether theprioE usedto edimceastate jail felony under42.12 g 15 must be a 'Pinal" couviction, even though that nvrd is notused in the statute.Held: A prior conviction must be final to be used under42.12.&% Using n~les of statuto~y constnlction and an analysis of itsprior case law, CCA deteimines that it \To~~d be illogical to iniposc sentencebased on a pending, non-final conviction. nial courts should notbe placed in a position of having to predictwhat an appellate court woulddo, nor should courts be placed in a position having their judgmentsoverturned because of subsequent events that may occnr in a pendingcase. When the case becomes final, it becon~es "official" in the sense thatagencies and courts can routinely rely on it. Having said this, CCA thenconcludes the prior conviction in tllis case, a probated sentence, notfinal. Generally, a convictiou is not final until the appellate court &msthe conviction and issues its mandate, W~th a probation, however, theconvictioll (for purposes of enhaucemenl) is not hal until revoked.Under Pffl??klin, 523//947 (CCA 1975), if there is an appeal or motionfor new uial pendiug in arevoked "regulaf' probation that does not pertaiuto the original proceedings (ie, appeal of revocation, not impositionof probation), the conviction is Bnd for p~irposes of determining proba-tion in a new weunder TCCP 42.12 $4(a). Such a conviction is consideredfinal even if pmbation is never revoked, or revocation is onappeal. Only an appeal of the originalconviction proceedings (or motionfor new tdal, which has the potential to undo the proceedings) can renderthe conviction nonhal. However, inn deferred case, onlyupon revocationthe conviction become final for purposes of dete mining thedefendant's eliibility for probation io a new we. The defendant m o tappeal the original plea or decision to adjudicate. After revocation, however,he can file a motion for new trial, and ifgrantedithe convictioncould become nonfinal. Hew, when Appellant was sentenced to stace jailfor the primary offense, he still had time to Ble a motton for new trialinthe prior conviction proceeding. Therefore the prior was not final, andcould not be used to deny him community pmbation in the p~imaryoffense,PRESERVATION OF RULING ON SUPPRBSSION MOTION: LOUISAN421ONY GUTlBRRBZ v. State, No. 693.00, Appellant's PDR fromHarris County; Vaeated & Remanded, lI3lIOl; Offensc: FOG;Sentence: (not in opinion); COA: AfGrmed (NP - Houston 114'11999); Opinion: Meyers (unanimous)Appellant pled guilty, but appealed the denfal of his motion tosuppress the evidence. The trial court conducted a hmring, then resetthe case to allow Appellant and the State time to Ble briefs. Appellant'snotice of appeal, dated the same day his pleaw entered, recites that themotion to suppress was ove~ruled by the tdal court on August 8,1996.The notice, signed by defense counsel ad Appellant, also stated that anapped bond had heen set, and the judge's signature appeared below thebond notation. COA held that because the record failed to rellect a rulingon the molio~~ to sappress, Appellant h:td hiled BJ prwne this errorfor purpose of xppcdl, re1)111g on Cltrciu, RX7//862 (CCI\ 1994). PI)Kw&granted to determiue whether this n~ling was co~rect.Held: COA erred in failing to consider whether trfalcourt's ruling was implicit. as provided bv TBx.R.APP.PRo.Gnr~in const~iwdformer Rule 552a), wvhichreq~dred only thaia party obth "a ruling" in order to preserve a con~plaint for npped.Current Rule 33.l(a) allows for a 111ling by the t~lal court that is "eitherqre~sly or impliedlf made. Because COA relied on old law, and didnot consider whether the trial court's ruling was implicit, case is senthck so that COA may consider the question within nmling of Rtde33.16&CHARGIl NOT ERRONEOUS FOR FAILING TO INCLUDE PARTlESUi~UC1'ION: ZBRICKMARWS v. State, No. 1994-99, State's PDRfrom Harris County; Reversed, 1/31/01; Offense: Murder; Sentence: 75yrs; COA: Reversed (3///68 - Houston [14~~'] 1999); Opinion: Johson,joined by Keller, Meyers, Holland, Womack, Ke.lsler, Hervcy & Holconib;Concurring Opinion: Price, joined by Tomack as to pt,IAppellant and another man shot and killed the victim after aguntight involving the three of them. Appellant (who himself was shotduring the fight) clai~ed he shot in se!f-defense. The victim suffered teng~msliot wounds, 4 of which were from Appellant's gun. COA reversedbecause, although the charge contained an abstiact insuuction on the lawof parlia, it did not apply the law to the facts. COA reasoned that actingas apartyrequired more Illan an appeamce of acting together; thus, justbecause Appellant and tlie other shooter appmed to be acting togetherdid not mean theywere actingas parties. Consequently, COA held that theState's burden of proof was lowered, and the evidence was legally insuBicient.As no objection was raised to the charge, COAa~ialyzed the erro-
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