Getting my detainer lifted

How hard is it to get a detainer lifted?

The actual process of getting a detainer lifted is not all that difficult. However, convincing a judge to actually lift a detainer is a completely different subject. For example, an attorney can file a motion for a hearing with the prothonotary in the appropriate county and ask for a date before the judge. That is very easy to do.

On the day of the listing, the lawyer will appear along with the defendant, a lawyer from the DAs office, the probation officer and the judge. The defense attorney then must convince the judge as to why the detainer should get lifted. Some judges are very very difficult about detainers. The real issue becomes whether there have been any issues with the probationer while they were on probation and what are the circumstances of the new arrest.

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Preliminary Hearing

I have a preliminary hearing date set at a magisterial judicial district for several charges. What can happen to me.

If your bail has already been set, and you have no open warrants any where in the united states, probably nothing will happen to you when you go in front of the magistrate.

If your bail has not been set, you could get bail put on you which means that you will have to pay it or you will get locked up.

If you have an open warrant, you will get locked up and shipped to where ever the warrant is from.

Assuming none of this will happen. you will be at a preliminary hearing. One of two things can happen. You can either waiver your preliminary hearing or proceed with your preliminary hearing. Depending on the type of case, the situation may be right to waive not. you should speak to an attorney about waiving. From my experience, waiving is based on a combination of factors from the county to the charges to the defendant's prior record.

After that, the judge will decide if your case should proceed to Common Pleas Court or get dismissed.

Good Luck and feel free to ask more questions.

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Retaliation

We are currently having a minor dispute in the office. The question is based on the charge of retaliation. Under the statute, retaliation can be either a felony of the third degree or a misdemeanor of the second degree. We cannot think of when the misdemeanor applies. If anyone out there has any thoughts, please post a comment.

By the way, we think that the charge is a misdemeanor when the retaliation is for something that happened in the past and the victim is no longer a witness to the case. Meaning that the retaliation happens for some case that over as opposed to retaliating against someone for pressing charges with the hope that the person won't testify against you.

Again, our ears are open. Feel free to contribute.

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Miranda Warnings

I get questions all the time about people getting arrested and getting read their rights. For example, I was caught smoking marijuana and I got locked up. I never got read my rights. Can I get my case thrown out because of this?

You only have a right to have your miranda warnings if the police are questioning you once you are no longer free to leave. If the police observe you smoking marijuana, then they don't need to ask you any questions, so they need not read you your rights. Therefore, the answer is no, you cannot get your case thrown out for this reason. Good Luck.

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Work Release Rules

My sister was sentenced to a term of incarceration but made work release eligible and stipulated to the county. Since she has been incarcerated she was told by the prison that she must serve six months before she will be allowed to start her job. Is this correct?

Actually, I am not certain that is in fact the law. The rule that you state seems somewhat county and/or judge specific. Generally work release allows a defendant to remain in the county for their sentence and to serve the sentence at the discretion of said county, including but not limited to going to work. Sometimes a judge will even allow a defendant to remain out of jail until they find a job then incarcerate them for the term of their sentence thereby making sure they do not go to jail until they are work release eligible.

If your sister has a job to go to I would have his lawyer appear back before the sentencing judge and file a motion that would immediately allow him to start work release.

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Putting my house up for bail

I put my house up for my bail. If I am convicted of the underlying offense what happens to my house?

Usually there is some fee associated with the bail possessing that is less than $1,000. If you do not run and you cooperate with the judge and all of the local authorities, and you are able to pay the fee for the bail bonds, nothign will happen to your house. Just make sure that while you are incarcerated someone pays the taxes on the house so the township doesn't try to seize the property.

Hope you beat the case!

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Prior Inconsistent Statements

We just had a jury trial where this issue came up. Let me give you the hypothetical of prior inconsistent statements and tell me if this answers your question? The complainant gives a statement to the police the night he was stabbed that the defendant stabbed him. Four days later, the complainant gives a different statement, but still says that the defendant stabbed him. A month after the second statement, the complainant testifies at a preliminary hearing and tells a third story, the time sworn, but still says the defendant stabbed him. At trial the complainant now states, again sworn, that the defendant did not stab him and he unsure who actually stabbed him.

The District Attorney impeaches the complainant with the prior inconsistent statements arguing that those statements are consistent with each other in that the defendant stabbed him. At the charging conference with the judge, the District Attorney argues and asks for the jury charge on prior inconsistent statements stating that she wants the prior statements to be consider by the jury as substantive evidence not just for impeachment. Should the judge give this instruction? What does it mean? What should the jury do? What was the outcome of the case?

The judge should give the instruction to the jury that they MAY use any of the previously recorded statements as substantive evidence or use the in court statement. I would ask the judge to either read the alternative charge or to add a sentence at the end reminding the jury that they don't have to use the recorded statements. My judge refused all of these requests and just read the standard charge. Also, recall from a previous post that jury instructions in PA are suggested not mandatory, in that the judge can edit the instructions as she sees fit. FYI the cases that we argued over are Lively and Chmeil (sp?).

The instruction means that even though the previous statements were not sworn testimony in front of this jury, the jury may consider the substance of those previous statements for the truth of the matter asserted in those statements, or the jury can choose to not believe them.

The jury should decide for themselves the totality of circumstances involved in the case and consider everything as a whole in deciding the case.

The outcome of the case was not guilty.

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