Call us today at (215) 825-5183.

Call the Philadelphia Criminal Attorneys at Levin and Zeiger LLP today.

Call us today at (215) 825-5183.

Call the Philadelphia Criminal Attorneys at Levin and Zeiger LLP today.

Call us today at (215) 825-5183.

Call the Philadelphia Criminal Attorneys at Levin and Zeiger LLP today.

Call us today at (215) 825-5183.

Call the Philadelphia Criminal Attorneys at Levin and Zeiger LLP today.

Call us today at (215) 825-5183.

Call the Philadelphia Criminal Attorneys at Levin and Zeiger LLP today.

Wednesday, December 11, 2013

Anticipatory Gagnon Hearing

Anticipatory Gagnon Hearing


Can you move directly to a Gagnon II if you do not have a direct violation yet (the new case is still open)? If the answer is yes, why would you do that?

You can. You can always ask the judge to violate you. Most judges are happy to do it. Once they have the Gagnon II and re-sentence you, they don't have to list your case again, so its over until you get out.

The reason you would do it is if the amount of time you are facing on the re-sentencing is shorter then the amount of time it will take to go to trial on your new case and you can make your bail on your new case. Think about it. You think you hit on your back case will be about 6 months of jail time, but your new case will take about a year to get to a jury trial and the bail is ROR. If you don't get the judge to lift your detainer, you will sit in jail for over a year waiting for your new case, so the best thing to do is take the 6 month hit on the chin and get out in six, put the VOP behind you and fight the new case from the street.

Sometimes its a good move. Just be careful that the wrong back judge doesn't whack you.  

Gagnon
Gagnon


Friday, December 6, 2013

Waive My Preliminary Hearing

Waive My Preliminary Hearing


Should I waive my preliminary hearing?

"To waive or not to waive? That is the question."

This is one of the hardest questions in criminal law. I think the answer depends on how serious are the charges. The more serious, I am less likely to advise a client to waive. The less serious, the more likely I am to give advice saying, "waive my preliminary hearing."

However, there are so many other factors involved in this decision.

In certain counties, they will not give you a good negotiation at the next level if you go forward with the preliminary hearing. Especially ARD in certain borderline cases. If your case is ARD eligible, you should consider waiving the preliminary hearing always.

The real true benefit of preliminary hearing is that you get to create a record, like a deposition, of the witness, way before trial starts. Often times the witnesses aren't well prepared, and the ADAs at the preliminary hearings are younger and much less experienced. When you put up your preliminary hearing all the witnesses are locked in to those notes and now it is very difficult for them to change their stories.

While there are always exceptions to every rule, my advice is based on the serious of the case. In a murder case, unless the DA will agree to only move on murder 3 and/or manslaughter, I am always putting up the preliminary hearing. In rape case, I am always putting up the preliminary hearing. In a DUI case with an accident where it looks like the person is not ARD eligible, but they may be eligible, I would always waive.

The only true exceptions to this is in Montgomery county where if the case looks bad, and you waive, you can get a good offer anyway because your didn't block them at all; and in Philadelphia county, unless they give the an offer in hand or tell you it will be held against you in an ARD application, just go forward with the preliminary hearing.

Waive My Preliminary Hearing
Waive My Preliminary Hearing

Monday, November 25, 2013

Knock Out Game | Assault

Knock Out Game | Assault


What is the knock out game? Is it assault? If someone is convicted in a knock game case, will the fact that it is a knock out game case effect sentencing? What will that effect be?

The knock out game cases are extremely disturbing to the public and we are getting a lot of questions about those cases. We have discussed the matter on google plus +Brian Zeiger.

These cases are assaults. Whether they are aggravated assaults or simple assaults is hard to say. I would guess they will all be charged as aggravated assaults and let the court system do its job in determining the gradation of the case.

I suspect that if someone is convicted of aggravated assault and they have a bad prior record, if they get the wrong judge they could get absolutely slammed.

Knock out game assault
Knock out game assault

Tuesday, November 12, 2013

Rule 600 | Speedy Trial | Robbery

Rule 600 | Speedy Trial | Robbery


I was charged with Robbery as a felony of the first degree. I was arrested over two years ago. My attorney took one continuance at my preliminary hearing for 60 days. I know based on reading your other posts on Rule 600 that my speedy trial rights have been violated, yet my lawyer tells me that we will not win a Rule 600 motion to dismiss, so she won't file one. Also, she tells me the reason is that we are in a very busy room and my case is not the oldest. How can this be?

The rules regarding the court on trial are unclear and totally unfair to defendants like yourself. Obviously the rule states 365 days less any time attributable to the defendant or the defense attorney. So if your case is 730 days old, less 60 days for your continuance, your case is at 670 days, which is 305 days over the limit.

The DA can ask for excusable or extendable time (which are nowhere in the statute), for different reasons, such as police not available because they are on another job, or because the court is on trial.

I think in order for the court to be on trial to show diligence in a 600 motion, the DA must show that they tried to move the case out of the room it was in and take it to the next available judge. Then if there is no available room in the entire county to try the case, then they can say they were diligent and ask the time be ruled excusable or extendable.

In very small counties with only one criminal judge, my answer is different. In those counties, the only thing the commonwealth can argue is that the other case they are doing is older. Any other argument is defective. If there is a high profile rape or murder and they do it before your case even though your case is older, that time should not be ruled extendable or excusable.

There is a new Rule 600 that may end all of this nonsense. Basically though, my answer is that most judges aren't granting these.

Rule 600
Rule 600

Thursday, November 7, 2013

586 Disposition

586 Disposition


What is 586 Disposition? Do I have to pay court costs?

586 Disposition is where the prosecutor agrees that if you pay full restitution to the other party the district attorney will withdraw prosecution. This normally comes up where there may or may not have been a mens rea (criminal intent) in the act, and the district attorney has bigger fish to fry, so they allow you to make the other side whole and walk away without ever being prosecuted. Its a wonderful idea to do this if offered. I previously addressed 586 in this article.

As far as court costs go, the answer is a little dicey. The statute does NOT say the defendant must pay costs. The statute says that there must be an agreement as to who will pay costs. In my experience, I have not had a 586 where my client had to pay costs. But, I am sure there are some judges that will not accept a 586 unless the defendant agrees to pay costs. I think if a judge does that, its bogus, but 586 allows you to get the case over with no records, so I would probably tell my client to suck it up and just pay the costs.

Sometimes, you gotta eat the pie.

586 Disposition
586 Disposition

Wednesday, November 6, 2013

Mandatory Minimums in Juvenile Cases

Mandatory Minimums in Juvenile Cases


Do mandatory minimums apply in juvenile cases in Pennsylvania?

It depends.

In the standard juvenile case, mandatory minimums do not apply. However, when a juvenile is tried as an adult, all mandatory minimums apply except for murder cases.

If a juvenile's case is a direct file juvenile (DFJ), meaning the Commonwealth filed the charges against the juvenile as an adult, or when a case is certified from juvenile court to adult court, the juvenile is treated the same as all adult defendants so all mandatory sentences apply.

In murder cases, murder 1 and murder 2 both have mandatory life sentences. The Supreme Court of United States recently ruled that juvenile life without parole (JLWOP) is unconstitutional, so those mandatories do not apply. However, there are other mandatories that apply to juvenile murder cases, just not life without parole.

Mandatory Minimums in Juvenile Cases
Mandatory Minimums in Juvenile Cases

Thursday, October 24, 2013

Discovery, Admissibility, & Weight

Discovery, Admissibility, & Weight


I have been charged with fraud and I did not do it. I want to see the internal investigation file from where I used to work. The government prosecutor has the file in her possession. My Philadelphia criminal defense attorney tells me that she will not give it to him. He tells me that he can file a motion to compel her to give him the file as discovery, but even if he wins the motion it doesn't mean that anything in the file will be admissible at trial, and even if it is admissible, the jury won't give it any weight, so why bother? Is this true?

Yes and no.

The legal answer and the practical answer are not the same in this question.

The legal answer is, anything reasonably related to the crime is discoverable generally, and any thing that may show your innocence is always discoverable under Brady v. Maryland, if it is in the prosecutors possession. An internal investigation file on the subject matter clear fits both of those principals so you should get the discovery.

Admissibility is another animal. You have to be able to get the information in to evidence at trial. Most of the items in internal files are hearsay, so you would need a witness to get them in. This article is not an evidence lesson, so I won't go into it. But, note, just because something in the file is good for you doesn't mean it just gets shown to the jury, that's not how it works.

Weight is a very simple concept. Weight means the jury can give it whatever weight it wants. If the jury thinks its important great, but if not, they can choose to give it little or no value.

The real issue here is the practical one. Why wouldn't your lawyer at least try to get? Who knows what is in the file? There is no excuse for not filing a motion to compel discovery.

fraud
Discovery, Admissibility, & Weight

Saturday, October 19, 2013

Mandatory Sentence | Alleyne

Mandatory Sentence | Alleyne


I am serving 3-6 years on a drug mandatory sentence. My guidelines were well below the so called mandatory. The jury was not asked about the mandatory. I understand the new case Alleyne v. United States, 133 S.Ct. 2151 (2013), which was just followed by Commonwealth v. Munday, 2013 PA Super 273, says the jury has to decide this point. If I was arrested today, would that be true?

Yes.

Even though the statutory language in PA is clear that the fact finder does not have to find the elements of the mandatory, such as weight, this Supreme Court case overrules all of the PA mandatory statutes. Therefore, if some gets arrested on mandatory drug charges and demands a jury trial, the jury must be asked if drugs recovered have the weight of the mandatory for the possession with the intent to delivery conviction.

In other words, the jury gets to make all of the sentencing decisions. This opinion affirms and extends Apprendi v. New Jersey, 530 U.S. 466 (2000), which stated that the jury gets to decide all factual questions related to a conviction. Alleyne just takes it to the next level and tells us for sentencing, all facts that effect sentencing must be decided by the jury as well.

I never thought I would see his picture on my blog, but ...

Alleyne v. US, 133 S.Ct. 2151 (2013)
Alleyne v. US, 133 S.Ct. 2151 (2013)

Monday, October 7, 2013

Line up

Line up


I have a case where I was at a party and there was a fight. I was not in the fight. I broke up the fight. I was arrested for being in the fight. The allegation is unclear as to whether the police say they saw me in the fight or they are saying they were told I was in the fight. I want a line up. How do I get one?

In Philadelphia county, if you want a lineup, you just tell your lawyer and the lawyer asks the judge at the beginning of the case. The judge asks some questions to the district attorney and/or the eye witness as to whether a post incident identification was made, the ability to observe, and whether the DA plans to have an eye witness identification made at trial. Based on the testimony the judge decides.

In counties other than Philly, its a much different thing. My experience has been that your lawyer has to file a motion in the court of common pleas in that county and have the case removed from the district judge until such time that the common pleas court decides whether or not a lineup should be granted. After the lineup matter is disposed, the case goes back to the district court for the preliminary hearing.

As to whether you can ask for a lineup for a police officer, I think in general its a bad idea. First, I can't see any judge making an on duty police officer go to a lineup for any reason at all. Somehow this notion is insulting to the system. I don't really get it, but in any event, the officer probably had the file and saw a picture of you from the night you were arrested, so it may be a crooked line up any way.

However, if the reason there is confusion about the lineup and the case is because an off duty police officer was present at the party and he identified you as being one of the fighters, so long as the officer was not involved in the paperwork on the job, a judge might consider the line up request. Just consider though that someone may tell that officer what you look like before the line up or show him your picture.

Line Up
Line Up

Monday, September 30, 2013

Sentencing Guidelines | Juvenile Life Without Parole

Sentencing Guidelines | Juvenile Life Without Parole


The new sentencing guidelines for Pennsylvania went into effect today. I heard there is a new matrix for juvenile life without parole in regard to murder 1 and murder 2 convictions. Is this true?

It is true that the new sentencing matrix is in effect. The guidelines matrix is similar to all of the other sentencing matrices, so this isn't such a big deal. The real triumph here is that if a juvenile is convicted of murder 1 or murder 2, they may not be in jail for the rest of their life. The person has a chance for parole.

If someone is 14 years old and is the look out man for the door at an armed robbery where an adult kills someone inside the building during the robbery, and is convicted of murder 2, that person may no longer be serving life. After 20 years, they have a shot for parole. Obviously, this is a way better system.

For your reading, below is the relevant portion of the statute 18 P.A.CS. 1102.1:

§ 1102.  Sentence for murder, murder of unborn child and murder of law enforcement officer.(a)  First degree.--(1)  Except as provided under section 1102.1 (relating to sentence of persons under the age of 18 for murder, murder of an unborn child and murder of a law enforcement officer), a person who has been convicted of a murder of the first degree or of murder of a law enforcement officer of the first degree shall be sentenced to death or to a term of life imprisonment in accordance with 42 Pa.C.S. § 9711 (relating to sentencing procedure for murder of the first degree).
(2)  The sentence for a person who has been convicted of first degree murder of an unborn child shall be the same as the sentence for murder of the first degree, except that the death penalty shall not be imposed. This paragraph shall not affect the determination of an aggravating circumstance under 42 Pa.C.S. § 9711(d)(17) for the killing of a pregnant woman.
(b)  Second degree.--Except as provided under section 1102.1, a person who has been convicted of murder of the second degree, of second degree murder of an unborn child or of second degree murder of a law enforcement officer shall be sentenced to a term of life imprisonment.
(c)  Attempt, solicitation and conspiracy.--Notwithstanding section 1103(1) (relating to sentence of imprisonment for felony), a person who has been convicted of attempt, solicitation or conspiracy to commit murder, murder of an unborn child or murder of a law enforcement officer where serious bodily injury results may be sentenced to a term of imprisonment which shall be fixed by the court at not more than 40 years. Where serious bodily injury does not result, the person may be sentenced to a term of imprisonment which shall be fixed by the court at not more than 20 years.
(d)  Third degree.--Notwithstanding section 1103, a person who has been convicted of murder of the third degree or of third degree murder of an unborn child shall be sentenced to a term which shall be fixed by the court at not more than 40 years.

Juvenile Life Without Parole
Juvenile Life Without Parole

Tuesday, September 24, 2013

After my detainer gets certified can I go back to jail?

After my detainer gets certified can I go back to jail?


I have read your previous posts on detainers. More specifically, the post on getting your detainer certified. My fiance hired a Philadelphia criminal defense attorney and he got my detainer certified. However, I went to report to my probation officer, and I was told by my probation officer that my back judge wants to see me. The probation officer gave me a subpoena for next week. After my detainer gets certified can I go back to jail? Am I going to get locked-up next week?

 As we previously discussed in the post about detainers being certified, the rule is simply that the judge must list the case every thirty days if you have a new open matter and must actually see you within thirty days if you have no open matter or once your open matter is over. Therefore, getting your detainer certified has nothing to do with whether you have a violation of your probation.

For example, say you had multiple dirty urines when you reported to probation before the new arrest, and you missed some appointments. You got arrested for Possession with the Intent to Deliver. You decided to fight the new case and you are found not guilty. Your back judge is on vacation on the day the Gagnon II (Violation of Probation Hearing or VOP) was listed due to a clerical error, so you never get in front of her. Your detainer gets certified.

Certainly, when you go back before your back judge, she may be disturbed by the dirty urines and inconsistent reporting. Further, she might get angry that your detainer got certified because she was on vacation and some court staff's mistake got you out. Therefore, you can get violated and re-sentenced when you go before your back judge. This new sentence can be for jail time. The best way to know the answer is to ask your lawyer in advance what kind of judge you have. However, actually appearing in the court room for the VOP at the first listing should go along way to show the judge that you take the probation seriously.

Certified Detainer
Certified Detainer

Monday, September 16, 2013

Entrapment, What A Show!

Entrapment, What A Show!


The police set up a car to be stolen. I saw it and I couldn't resist. I stole it. They arrested me right on the spot. I was entrapped. Is this a defense? I feel I was entrapped. The way I am being treated is like an inquisition, what a show!

If you were previously thinking about stealing the car, it is not entrapment. If you were not previously thinking about stealing the car, the conduct of the police is entrapment.

The definition of entrapment is when the cops induce a person who is not likely to commit a crime into committing the crime.   Your case is a close one because how on earth would you have been induced into stealing a car. Most people would think, "hey, that car isn't mine." They would keep walking. Most people who see a running car with a wide open door with no occupant would not suddenly jump in and drive away. I think it will be hard to show that this was something in which you were induced to participate.

Let me give you another example that is a bit more text book. Prostitution. I man is a at a very high class bar, on a business trip, minding his own business when a very attractive woman starts talking to him out of the blue. She starts to come on to him and invites him up to her room. As he stands up from the bar and begins to follow her to elevators she tells him that she is a prostitute and gets paid to have gentlemen go upstairs with her.

He tells her no thank you that he is not interested--he is not that kind of fellow. She whispers something in his ear that convinces him he would be very happy with the purchase. He hesitantly agrees to accompany her upstairs for a small fee. The back up cops storm out and arrest him. This is entrapment.




Monday, September 2, 2013

Is it a crime to post a picture of another person on facebook?

Is it a crime to post a picture of another person on facebook?


Is it a crime to post a picture of another person on facebook?

This is a very tricky question. The act of posting a picture of someone on facebook is usually not a crime. If the picture is copyrighted, its possible you are breaking a copyright law. However, I think the purpose of why you are posting on facebook can be criminal.

For example, if you have a restraining order against you from your ex (in PA it is often called a PFA or protection from abuse order), and you keep posting pictures of that person on facebook, I think you are in violation of your PFA and you could face up to six months in jail for civil contempt.

Also, if you keep posting pictures to someone's wall after being asked not to post to their wall, or if you are blocked by a person and you keep creating new logins to get by the blocking, you may be guilty of harassment, stalking or disorderly conduct.

Also, if you are posting to your ex-boyfriend's new girl friend's page with unbecoming pictures and calling her a whore, you are probably guilty of harassment, even if she is a whore.

The best advice is that if you can't tell if what you are doing on facebook is wrong, stay off facebook.

Disorderly Conduct
Disorderly Conduct