Defense asks Superior Court to throw out appeal
Less than a month after Fayette County prosecutors belatedly filed a brief in a case lodged against a man accused of injuring an off-duty state police trooper, the office once again stands accused of not filing paperwork on time. Defense attorney Samuel J. Davis, who represents Donald Earl Miller, has asked the state Superior Court for the second time to throw out an appeal filed by District Attorney Nancy D. Vernon. In a brief filed before the high court, Davis contends that Vernon did not include the Standard of Scope and Review in her brief. That paperwork essentially defines what points are being argued in court.
Without that paperwork, Davis wrote in his filing that prosecutors deprived both him and the Superior Court judges of “the ability to prepare, argue and review the issues raised in the immediate appeal.”
Vernon, earlier this year, appealed Judge Gerald R. Solomon’s ruling to throw out three charges lodged against Miller, 61, of Fayette City. She filed the Standard of Scope and Review on June 7, the day after Davis filed his brief noting the lacking paperwork.
State police allege that Miller hit Jeffrey Jones, while Jones was on his way to the Uniontown barracks from his home in Elizabeth to work midnight shift on June 19, 2000. Police allege Miller turned in front of Jones’ motorcycle along Route 51 in Perryopolis, and then fled the scene of the accident.
A short time later, police arrested Miller, and a later test showed his blood-alcohol content (BAC) at .119 percent. Motorists in Pennsylvania are considered illegally intoxicated if they have a BAC of .10 or higher.
Miller was charged with aggravated assault while driving under the influence of alcohol (DUI), careless driving, and turning movements required signals, accidents involving serious bodily injury, DUI and duty to give information or render aid.
However, Davis successfully argued that there was not enough evidence to support the first three charges, and Solomon threw them out. The most serious of those was aggravated assault while DUI, a felony of the second degree that could have resulted in significant jail time if Miller were convicted.
At the urging of Jones’ parents, Vernon filed an appeal of Solomon’s decision to the state Superior Court. She believes that Solomon dismissed the charges in error because there is evidence to support them.
The commonwealth’s brief, which is the document used to argue specific reasons for prosecutors’ beliefs in their point, was due at the beginning of May. Vernon missed that filing deadline, prompting Davis to ask the court to dismiss the appeal for that reason.
The Superior Court denied that request, and allowed Vernon, who blamed the belated filing on a “clerical miscalculation,” to file her brief. But when the brief was filed, the Standard of Scope and Review was omitted.
In a petition to the Superior Court to amend the commonwealth’s brief, Vernon said the paperwork was accidentally omitted in an attempt to get the brief filed quickly. She attached the standard, and asked the high court to allow its inclusion in the commonwealth’s brief.
The Superior Court has yet to rule if the lacking paperwork is grounds for dismissal.
Vernon could not be reached for comment on Friday afternoon.