An Adams County jury did not get “to hear the whole story” at Anita Mallicone’s trial in April, a defense attorney said Monday.
Defense attorney Anthony Miley of Scaringi Law plans to appeal Mallicone’s case to the Pennsylvania Superior Court in the coming weeks. Miley has 30 days to file the appeal, following sentencing Monday, he said.
Miley said he believes a local judge used the Rules of Civil Procedure in a ruling at the criminal trial, where Mallicone was later found guilty of aggravated assault while driving under the influence (DUI) and related offenses.
“Just because a jury spoke, that does not mean they are correct,” Miley said Monday in court. “The verdict is not final.”
On April 4, an Adams County jury rendered a guilty verdict against Mallicone on three counts each of aggravated assault by vehicle while DUI and aggravated assault by vehicle.
Mallicone, 67, of Shippensburg, was found not guilty of one count each of aggravated assault by vehicle while DUI and aggravated assault by vehicle, stemming from the April 14, 2017 crash.
Adams County Court of Common Pleas Judge Thomas Campbell found Mallicone guilty of DUI of a controlled substance, an ungraded misdemeanor, and a summary offense of following too closely.
“We think the jury got it right,” Adams County District Attorney Brian Sinnett said after court Monday. “Frankly, I feel very confident in the verdict.”
Miley’s core issue stems from sidebar discussions that occurred when defense expert Dr. Lawrence Guzzardi, recognized as a medical toxicologist, was testifying.
In those private talks, the prosecution allegedly objected to Guzzardi testifying “outside the four corners of his report,” Miley said.
“That only pertains to civil procedures,” Miley said.
Guzzardi was trying to respond to what the prosecution’s expert testified to at the trial, according to Miley. Guzzardi’s response would have pointed to the “the central issue” of the case – whether or not Mallicone was impaired while driving, Miley said.
Miley alleged that Campbell used the Rules of Civil Procedure, which have stricter guidelines for expert testimony, when determining Guzzardi could only testify to what was included in his report.
Rule 4003.5 of the Pennsylvania Rules of Civil Procedure takes up two-and-a-half pages and “governs what an expert testifies in a civil matter only,” according to Miley.
In comparison, Rule 573(C), subsection 2, of the Pennsylvania Rules of Criminal Procedure is one to two paragraphs in length, Miley said. The defense is not required to provide an expert report unless ordered by a judge, following the prosecution’s request for it through a motion, added Miley.
Miley said the ruling prevented the jury from hearing how those drugs can be in someone’s system, and it “does not impair your ability to drive,” noting it comes down to how a person’s body metabolizes the drugs.
“They didn’t hear all of that,” Miley said. “It’s not fair for them to hear one side and not the other.”
It will take approximately nine months to a year for the Pennsylvania Superior Court to respond, either affirming or reversing the case, Miley said.
There are two components for the Pennsylvania Superior Court Judges to consider, whether a Court of Common Pleas judge erred and if it was “a harmless error,” according to Miley.
“The law says the Constitution does not guarantee a perfect trial. It guarantees a fair trial,” Miley said, adding that judges “have rights to make mistakes.”
It will be up to the Superior Court to decide whether the alleged error affected “the outcome of the trial,” said Miley.
“We are now going to have a trial about the trial,” Miley said. “Now the higher court is going to decide if their verdict stands or not.”
If the Superior Court reverse the case, then Mallicone would face “a whole new trial,” Miley said.
On Monday, Campbell sentenced Mallicone to 60 months in the Intermediate Punishment Program (IPP) with nine months in a restrictive setting.
Sinnett declined to comment on the potential appeal.