Ask a Question to a Philadelphia Criminal Defense Attorney

Automatic Expungements in Philadelphia County

2012-01-19T10:24:00.000-05:00

I got cited with a summary citation. I appeared in court and I was told that if I go to a class or if I do community service, the case will be discharged. I was also told the matter would be automatically expunged from my record and the citation will not show up on a criminal record check. After I did all of these things, I went and checked my record. The summary arrest is still there. Why wasn't it expunged?

I have no specific answer as why it wasn't expunged, but I know that the majority of these cases are not expunged and the record of arrest still appears. You must go through the process of expunging the arrest yourself to ensure the matter is removed.

State Detainers

2012-01-19T10:18:00.001-05:00

I got picked up for possession of a small amount of marijuana and was released without any bail. I was on state parole at the time. I went to check in with my parole officer from the street and got locked up on the spot. I was taken to the local county jail. I was given an administrative hearing. A state detainer was lodged. I was shipped to SCI Graterford. I was not brought down for my small amount of marijuana case and the computer shows that I have bench warrant for not appearing. It seems like I will have this detainer until I max out because I will never be able to get my bench warrant lifted and fight my open case. What can I do, HELP!

You must call your lawyer immediately and have them contact the county court that issued the bench warrant and have your case listed for trial as soon as possible. Then your lawyer should send a letter to the district attorney's office and request that they prepare an order for your bring down so that you are present at the next listing. The order for a bring down is not absolutely necessary as Graterford has daily bring downs for many of the local counties, but I would do it anyway.

Brady Violations and the Post Conviction Relief Act (PCRA)

2012-01-14T08:28:00.001-05:00

What is a Brady Violation? If I have one can I file a new appeal under the Post Conviction Relief Act (PCRA)?

Generally speaking, under the Brady doctrine for discovery, the District Attorney must give you any discovery that shows that you may be not guilty. The true analysis comes into play when the DA argues that the piece of discovery is not in their possession. That's a tough subject.

However, the courts have ruled that if the piece of discovery is in the possession of the police, the DA must go get it and hand it over. This includes the entire police file.

There is a new case from the United States Supreme Court on this issue, JUAN SMITH, PETITIONER v. BURL CAIN, WARDEN, No. 10–8145, 2012 WL 43512 (January 10, 2012). In this matter, the Court ruled that even the hand written notes inside the police file of the investigation officer must be handed over to the defendant.

If a Brady violations comes up after your direct appeal, you can file an appeal under the PCRA to say that you had a constitutional violation in your case. However, to be successful on a PRCA you must not only show that you have a constitutional violation, but you must also show that had the information sought been turned over before trial and presented to the government, you could have been found not guilty, i.e. there would have been a different outcome.

Rape Shield

2012-01-14T08:04:00.000-05:00

I am being accused of raping a woman. I never had sex with her. She is sleeps with many men. My lawyer told me that we cannot use her sex life as our defense in the case because it violates the Rape Shield law. However, once the DNA testing came back, there was sperm inside her. Since I knew I hadn't slept with her, I rushed to give the government my DNA sample for the comparison. After the comparison was made, the DNA was found not to be mine. She then changed her story to say that I used a condom. I want to tell the jury that she sleeps around. I can't believe that the Rape Shield law is so strict. What can I do?

You are in a situation, where you can can partially pierce the Rape Shield. Under the current case law, you can file a motion to pierce the Rape Shield only to tell the jury that someone else's sperm was found inside of her. While this may not sound as good as being able to tell the jury that she sleeps around, you must understand that once the jury hears that she claims that you raped her, your sperm is not found, and another persons sperm is found, the jury will get the point.

Do I Always Get Time Credit?

2012-01-14T07:44:00.001-05:00

I was taken into custody due to a new arrest. The bail was too high for my family to pay. I remained in jail due to the high bail. In addition, I was on probation at the time of the arrest and the back judge put a detainer on me, so I could not have gotten out anyway. I eventually consolidated the two cases together before the back judge after seven months of sitting in jail. I was in jail the entire time. I received a sentence of 11 1/2 - 23 months plus 4 years reporting probation for the new case. The back judge violated me for my direct violation and re-sentenced me to my back time; I owe nine months. The back judge said the word concurrent, but did not say the words time credit. When is my minimum?

If you are in custody and you receive a sentence on any of the cases that were holding you in custody, you must receive time credit for at least one of the matters that were holding you in custody pending the outcome of the open matter(s). In your instant case, you must receive time credit for the time that you spent in custody for the seven months. Accordingly, your minimum should 4 1/2 months after the day you were sentenced.

Post Trial Motions and Appeals

2011-12-07T09:20:00.000-05:00

I lost at trial, but some of the things that happened at trial were wrong. I want to appeal, but my law tells me that I have ten days to as the judge to correct anything that happened during the trial or sentencing that was wrong. My lawyer said it is called a post trial motion. Why would I file that instead on an appeal? This judge hates me, there is no chance of me winning and I just want to move forward to the appeal.

Some issues must be preserved in post sentence motions in order for you to be allowed to appeal. If you do not complain about the matter in the post sentence motion, when you file an appela the court will rule that the issue has been waived. When we are retained for appeals, we often see that many lawyers do not properly preserve the issues at post trial motions for appeals.

Additionally, even though you think the judge hates, the judge does not want to be overturned on appeal. If you write something in your post trial motion that causes the judge to think that they made a mistake, a judge will consider reversing themselves.

What is a Redaction?

2011-12-05T17:22:00.000-05:00

I would like to get a redaction; can you explain a redaction to me?

If at the time of your arrest you were charged with multiple crimes, but were only convicted of some of those crimes, you can ask the court to expunge those crimes for which you were not convicted, but leave the crimes for which you were convicted on your record. This is called a redaction.

For example, you are arrested for Aggravated Assault F1, Simple Assault M2, and Disorderly Conduct S. You were only convicted of the Disorderly Conduct summary offense, and the conviction happened nine months ago. When you go to apply for a job the felony and misdemeanor keep popping up even though you were not convicted of those crimes.

With a redaction, we have the Assault charges expunged from your record while leaving the summary offense on your record.

Casey Anthony

2011-07-05T21:24:00.001-04:00

This Casey Anthony verdict is bullshit. How can you do what you do for a living? All of you defense attorneys are scumbags.

How can I not do what I do for a living. Imagine if you were persecuted in the media. Imagine if people thought you should have no rights.

I hear from folks all the time, on both sides, about the unfairness of the system. Prosecutors complain how dumb juries are and defense attorneys and public defenders complain about how the prosecutors and judges are in cahoots and cheat all the time.

My only answer to both sides is that we must believe in the jury system and trust the results. The assumptions that we make as lawyers and as a society about the criminal justice system all go out the window when a jury comes in to play. Regardless of what everyone says the case "looks like" a jury tells you exactly what they see. Unlike the lip service the courts pay to the system, the jurors actually tell us what they see.

Remember, the prosecution has the burden of proof and the defendant is innocent until proven guilty. That is the law throughout our land. The jury in the Casey Anthony case heard all of the evidence and obviously concluded that the prosecution did not show that Casey Anthony killed her daughter--in other words, the district attorney failed to provide enough evidence to prove beyond a reasonable doubt that Casey Anthony committed a crime. Remember in the Casey Anthony trial had no forensic and/or physical evidence was presented that Casey Anthony was in any way responsible for the killing.

I hope no one ever accuses you of committing a crime that you did not commit.

What is the "legal limit" for alcohol while driving under the influence in Pennsylvania?

2011-06-07T22:10:00.000-04:00

My lawyer told me that there is no legal limit in Pennsylvania for driving under influence. I read the chart myself and it says the lower end of the first tier is 0.08. I think my lawyer is wrong; the legal limit seems to me like 0.08. Is my lawyer wrong?

Your lawyer is right and wrong. In Pennsylvania, you can be convicted of driving under the influence with no alcohol in your system if there is a blood test that shows that you were high from narcotics at the time that you were driving.

You are correct though in that the bottom end of the lowest tier of the PA DUI chart is 0.08. However, you can be prosecuted under a legal theory of general impairment. This means you can be prosecuted without the introduction of chemical testing. This type of prosecution is very difficult for the district attorney. In a general impairment prosecution, I would look for more evidence than in a DUI prosecution with a blood alcohol test.

Examples of additional evidence would be a failed field sobriety test, a specific act of bad driving like an accident, alcohol in the vehicle in an open container, etc. These pieces of evidence could show that a person was driving under the influence with no evidence of the blood alcohol content. Whether these pieces are enough to convince the trier of fact beyond a reasonable doubt of your guilty is anther question.

If you are prosecuted under a general impairment theory, with no blood alcohol evidence, the "legal limit" doesn't really matter. Your lawyer is part right and part wrong.

Should I Waive My Preliminary Hearing?

2011-05-24T22:16:00.000-04:00

I was at my preliminary hearing in Berks County today for Burglary F1. The district attorney asked my lawyer if I would waive the preliminary hearing. My lawyer said no. The DA got very angry with my lawyer. Did my lawyer do something wrong? should I have waived my preliminary hearing?

I never advise my clients to waive their preliminary hearing unless we get something back from the DA. Often, if I have a client who is ARD eligible, if the DA tells me that ARD is a possibility, I always tell my clients to waive. In fact, in some counties, if you don't waive, you are not eligible for ARD.

In some counties, the police and DAs at the local courthouse have the power to change the charges. In that case, I will advise my client to waive if there is a break in the charges. Further, if I think that a good deal may arise later from a waiver, I will advise my client to waive. An example of this is waiving on a tier one DUI instead of the tier three. The tier three is a 90 day case, while a tier one is a 10 day case. If the client has a terrible case and the DA offers a waiver on the lighter charge, I will recommend it.

In your case, I would never waive and I would be sure to have a stenographer at the preliminary hearing. If you are charged with a felony of the first degree, the DA assigned to your case at the preliminary hearing is never going to offer you anything that outweighs the worth of the preliminary hearing.

In general there are two great benefits to preliminary hearings in very serious cases. First, if there is a civilian witness, that person must testify and that testimony will be on the record by the stenographer. If they change their story at trial, your lawyer can use the transcript from the preliminary hearing to show the jury that the person is lying. Second if you have any potential motion in your case, you can ask questions at the preliminary hearing to set the table for your future motion to suppress. Some judges are hip to this tactic and may shut you down, but most either have no idea what you are doing or simply don't care and let you ask whatever you want.

Don't waive.

Bail Reduction

2011-04-19T07:35:00.001-04:00

Once my bail is set, can I get it reduced?

Yes. Once bail is set, you can get it reduced. You can either petition the judge who originally set your bail, ask for a reduction at your preliminary hearing, or file a motion with the miscellaneous criminal court judge in the Court of Common Pleas in the county in which the case is listed.

The real question however, is, "will the bail get reduced?"

There are two separate arguments I make for bail reductions when advising my clients. These arguments are simply my opinion and not necessarily driven by any specific law, but they give my clients an idea of whether they actually have a shot to get the bail reduction.

Three factors go to the bail number itself. First, the seriousness of the current offense. Someone arrested for stealing a car should not have as high a bail as someone who is arrested for rape. Second, the defendants prior record of convictions. If one person has ten conviction versus another person who has no prior convictions, this is a huge factor for bail. Third, the likelihood the defendant will appear in court. Do they have previous bench warrants, where do they live, do they have ties to the local community?

The second issue at a bail reduction is whether there is a change in circumstance. The three prongs I mentioned in the previous paragraph are important to set the bail, but what happens if the charges are rape and the "victim" fails to appear for the preliminary hearing at the first two listings and the judge continues the preliminary hearing for a third time? What if there is no rape kit and no dna collection too? In that instance, I would argue that there is a change in circumstance: the complainant does want to prosecute and commonwealth has no case. At the time the bail was set, the court thought this was going to be a "real" rape prosecution, now this is just a way to get my poor client locked-up for several months with no recourse. Accordingly, the bail should be reduced.

Commit a DUI and jail might not be your only problem

2011-04-08T20:58:00.004-04:00

I was recently arrested for DUI. There was an accident and the people I hit were badly injured. I was arrested, processed and given a court date. Ultimately, I plead guilty and had to spend a weekend in jail. Several months have passed and now I am being served with a lawsuit. Isn't this double jeopardy?

No, this is not double jeopardy. First of all, the civil lawsuit that you were severed with does not place you in jeopardy. Under Pennsylvania law you can only be tried once for one set of facts. If the district attorney attempted to arrest you again for this DUI that would be barred under double jeopardy. The civil suit for the damage you caused is totally legitimate and enforceable. I suspect the victim retained a personal injury attorney and is attempting to compensate the victim for the injuries you caused.

Should I call my client to testify?

2011-04-08T15:48:00.000-04:00

A lawyer asked us, "should I advise my client to testify?"

There are many reasons that a defendant in a criminal case cannot testify. I will answer the question assuming that none of those exceptions apply and that your client could testify.

I prefer not to have my clients testify. The two main reasons are that the prosecutor has the burden of proof. Don't help them out. Don;t add stuff to their case. Next, I don't like to give the prosecutor the opportunity to cross examine my client. If you have ever watched Law & Order, Jack McCoy always gets the defendant tripped up.

In some cases though, I think its very helpful to call your client. In any case where there is a civilian complainant and no police officers are involved, I really analyze whether to call the client.

If the case is a domestic violence or a sexual assault, with a lot of physical evidence, I call the client to testify.

Summary Expungement Problems

2011-03-14T17:57:00.000-04:00

I was convicted of a summary offense in 1990. The conviction is my only contact with the law as an adult or a juvenile anywhere in the United States of America. I do not have any traffic tickets in my life. I ordered a certified copy of my record from the Pennsylvania State Police and the conviction appears. I hired a criminal defense attorney to get the conviction expunged She went to pull the local docket to file the expungement, but the local docket doesn't exist. I want the expungement. How do I get this removed from my record?

This is no easy task. There are two separate and distinct answers.

Due to the internet, in Pennsylvania has forced all of the localities to migrate their previous varied systems to a unified system for the whole state. Some of the magistrates and/or townships and/or boroughs didn't do such a good job. This is how you can have a record with the Pennsylvania State Police, but cannot locate the conviction to get it expunged.

You go to the Court of Common Pleas and ask to have a miscellaneous docket created. You use the miscellaneous number to file a petition for expungement. You have to go in and argue this type of case and these petitions are difficult to argue. In larger counties, this happens all of the time so the clerk at the criminal counter usually is very helpful. In small counties, this can be very difficult because the clerk may have never had this happen, so you may run in to trouble. In jumbo counties, Allegheny and Philadelphia counties, there are expungement rules and a miscellaneous docket can confuse a rubber-stamper sitting at a counter.

The second route is a challenge of the your criminal history through the state attorney general's office. In this sense, the county or the attorney general will force a recreation of your criminal record in the county if you win. This method is very difficult to achieve; the actual legal term we use is a CHRA appeal.

On the run for twenty years

2011-02-05T21:35:00.000-05:00

I got charged with possession of marijuana over twenty years ago. I ran. I would like to return home. If I return, what will happen to me? Can I still be prosecuted?

We have received a similar question in the past, but for review, I answer. Three speedy trial rules exist in Pennsylvania in criminal law: the statute of limitations, Rule 600, and pre-arrest delay. In your scenario, none apply because YOU skipped town. The prosecution should not get punished due to YOUR actions. Therefore, none of the three rules apply to you and the district attorney can still prosecute you.

In the previous questions and subsequent answers we talked about witnesses appearing or not, but in your case I think the analysis is a bit simpler. The prosecution needs to show that the weed was weed; that the mary jane contained htc (delta-90tetrahydrocannabinol). I am not sure how they show that twenty year marijuana wasn't tobacco.

They can try to prosecute you, but I am not sure if they can get a conviction.

What Does Nunc Pro Tunc Mean?

2010-12-28T21:51:00.000-05:00

What does Nunc Pro Tunc mean? My lawyer tells me that I missed the deadline to file my motion but she can file it Nunc Pro Tunc. She tried to explain it to me, but I didn't get it.

The literal translation from latin to english is "now for then." This means that you are filing something today, but that you had intended to file it on a different day.

The best example is a motion to reconsider sentencing. In general, you have ten days from the date of sentencing to ask the judge to reconsider the sentence and thirty days from the date of sentencing. The sentence is not a final order until after thirty days pass and a notice of appeal has not been filed.

The question we often get is, can I file a motion for reconsideration of sentence after the ten days passes, but before the thirty days is up. The answer is clearly, no you cannot. But, since the sentence is not a final order, if the sentencing judge permits the filing of the motion, then you can file it after the ten day date, but before the thirty day date. A judge may want you to do this so that the matter avoids an appeal if the issue can me fixed as a post sentencing motion.

The title of the motion for reconsideration should be, Motion for Reconsideration of Sentence Nunc Pro Tunc. This means consider my motion now, after ten days have passed, as if I had filed it then, during the ten day window. Good Luck!

What Can I Do About a Sentence From an Open Plea?

2010-12-27T21:30:00.001-05:00

I decided to plea guilty. My lawyer told me that I could do better going with the judge instead of negotiating with the District Attorney's Office. I decided to go along with my attorney's advice and I plead open in front of the judge. I got a deferred sentencing date for 60 days after the day I entered my open plea. I did not try to withdraw the guilty plea before sentencing. I went to sentencing and I got roofed by the judge. Is there anything I can do?

As you read in the written guilty plea colloquy and heard after sentencing, you have ten days from the day of sentencing to ask the judge to reconsider her decision and thirty days to appeal to the Superior Court of Pennsylvania.

The real question is whether you have a chance to win and get your case sent back for re-resentencing? When you are sentenced, there is a range that the judge is supposed to consider at the time of sentencing. This range is called the standard range. There is a small range below the standard range called the mitigated range and a small range about the standard range called the aggravated ranged. If your sentence is within any of these ranges or below the mitigated range, you will most likely lose on appeal to the superior court after an open plea. Further, sometimes people have multiple charges and get consecutive sentences all within the standard range. This is rare on an open plea, but can happen. We usually see concurrent sentences on open pleas.

Also, if your lawyer lied to you about the expected range of sentencing, or if your case was a mandatory and the lawyer lied to you about those issue, you can appeal to under the Post Conviction Relief Act (PCRA). If your case involved mandatories, my answers may be different.

Statements Used at Preliminary Hearings

2010-11-23T10:40:00.000-05:00

I went to my preliminary hearing, no district attorney was present, just the police officer. No witness appeared. The police officer started by saying that I hit another girl, but he did not see it. He said I made a full statement admitting to hitting the other girl. He gave the magistrate judge the a copy of a piece of paper that had my purported statement. The statement did not have my signature. The judge read the statement to himself; not aloud. I did not have a lawyer. The judge asked me if I had anything to say. I said that I did not make any statement and that I object to the statement. The judge then told me there was enough here to go to trial and gave me a subpoena for an arraignment in the court of common pleas.

Is the statement admissible at my preliminary hearing?

I don't think the admissibility of your statement at the preliminary hearing the real question. In fact, I don't really care about the statement much at all. The question you should be asking is whether there was enough evidence presented at the preliminary hearing for the judge to order that you proceed to trial and whether you (or your lawyer) should now file a writ of habeus corpus to quash the information/bills in the court of common pleas?

The answer is that your case should have been dismissed at the preliminary hearing and now you should file to have the bills quashed. In your case, no corpus was established at the preliminary hearing. Corpus delicti means body of the crime. In order for a case to proceed past the preliminary hearing in Pennsylvania, the commonwealth must establish that a crime occurred, i.e. the body of crime. While hearsay is admissible, there must be a showing that the declarent of the hearsay will be available to appear and testify at trial. If not, the hearsay is not allowed. If the only evidence remaining is the statement of the defendant, that cannot be used as the only evidence of a body of crime.

In your matter, there was no non-hearsay testimony from any person that you committed a crime. No testimony that the police observed you commit any crime. No testimony that the "victim" would appear for trial. No evidence of crime other then your statement. No body of crime has been established. Therefore, your case should have been dismissed at the preliminary hearing and now your case should be quashed.

Methods of Interrogation and Admissibility

2010-11-13T13:32:00.000-05:00

I was forcibly taken by two DEA agents and a US Marshall into the rear of unmarked car in the rear of an alley. They questioned me about my involvement in a criminal enterprise. I spoke to them for about twenty minutes and told them everything I knew.

Assuming that I am later indicted, a judge finds that I was free to leave the car, and a judge finds that I was being not interrogated, can the government use anything I said in the car against me?

I think you really have two questions. I am going to assume that the "conversation" was not being recorded and that no recording of the "conversation" is going to be used against you. If that is the case, the questions are: 1. is the statement admissible; and 2. what weight should the statement get?

Interrogation

If all of the assumptions above are true, most likely the statement is admissible against you. However, you should remember that you have a right to confront and cross examine the government agent testifying against you and bringing in the statement. The only people that can bring the statement in are the agents that were in the car. Your lawyer will get to cross examine the witnesses. If this case is a RICO (Racketeer Influenced and Corrupt Organizations) the government has unlimited resources. The suggestion that the government was unable to tape record, video record, or at least write down your statement and have you sign it is absurd. Your lawyer should be able to really cross examine the witness on this point and suggest to the jury that the statement be given very little wait.

Bench Warrants and the Statute of Limitations

2010-11-12T09:01:00.000-05:00

We have received this question several times and we have never posted it, but since I have seen it around now from many different folks, it must be a question that a lot in the community have, so here goes:

I got arrested in 1995 for criminal mischief as a misdemeanor in Philadelphia County. I didn't do it, so I figured, screw it. I never went to court because it was nonsense. I moved to Los Angeles. Now 15 years have passed. Is the case over? Did the statute of limitations run on the case? Can I still be prosecuted?

Unless I am missing something, you intentionally did not show up for court, so you got a bench warrant. The bench warrant tolls the statute of limitation and all of your speedy trial rights in favor of the district attorney. Of course you can still be prosecuted. In fact, if you get arrested or stopped in California by the police, they can hold you as a fugitive of justice and wait to see if Pennsylvania chooses to have you extradited--you could spend 90 days in jail waiting for Pennsylvania to come get you. You should come to Philly and have the bench warrant lifted immediately.

Burglary & Intent

2010-10-24T20:54:00.000-04:00

I was drunk and decided that I needed to pee. I was walking home and I didn't think I would make it. I saw a house that looked vacant, so I went to the front door and turned the knob. The house wasn't locked. I walked in. I used the lavatory. It wasn't a vacant house, it was adapted for overnight accommodation. On my way out I saw a vase that looked good to me, so I picked it up to "look" at it and walked back out the front door. Once I was on the front lawn, I decided that I didn't like the vase so I chucked it behind a shrub. I walked home and passed out.

Am I guilty of any crimes?

We get a lot of questions about criminal law, but the number one question we get is, "are these questions for real or are they made up?" Someone asked this question; i kid you not.

This is definitely a criminal trespass. It's probably not a burglary, though some of my District Attorney friends would argue that it is burglary. The basic idea of burglary is that when you enter the property you have the intent to commit a crime therein. If you enter the house and you do not intend to commit a crime at the time that you enter, then you have not committed the crime of burglary. Criminal trespass doesn't count. If you enter the house with the intent to trespass, that is not a "crime therein," so you would not be guilty of burglary.

In this example, the person does not develop the intent to take the vase until AFTER they are already in the house. Therefore, there is no burglary based on the vase. The real question is whether peeing in someone else's home is disorderly conduct or criminal mischief, and whether those crimes can be the crime therein for a burglary. I would argue that peeing in the house IN THE BATHROOM is not a crime, so it is not burglary.

Minimums & Maximums

2010-10-16T15:03:00.001-04:00

I was convicted of Aggravated Assault and given a sentence of eleven and a half to twenty three. I will be at my minimum next week. Will I get paroled on my minimum date?

If your sentence is one day less then one to two years, the judge who sentenced you controls your parole. If you received a sentence of one to two or more, the Pennsylvania Department of Corrections controls your parole.

In your question, your parole is controlled by the judge who sentenced you. Each county and each judge have their methods and thoughts regarding parole. Many factors play into the judges' decisions regarding parole at the minimum. There is no way to gauge a particular judge's decisions regarding parole. Some factors may be: what the person has done with the their time, whether the prison is over crowed, the defendants role in the underlying case, reports from the prison, completed programs in prison, etc.

Why Do I Still Have a Detainer?

2010-10-01T18:22:00.000-04:00

I was on probation and I got locked up for a new case. My back judge put a detainer on me. I was told by my lawyer that the judge won't lift the detainer until she learns the outcome of the front case. I decided to fight the front case. I went to trial this week and I was found not guilty. I am still locked up because the detainer from the back judge is still in place. Why do I still have a detainer?

The back judge has to list a Gagnon II, also known as a violation of probation hearing or VOP, every 30 days to keep the detainer in place. If the you have been locked up on a detainer since the time of your arrest on the front/new case then your VOP has been listed every thirty days whether you know it or not. That means that you have a court date for your VOP within the next thirty days, probably less.

At that hearing, the judge can only violate you for technical violations, not for a direct because you were found not guilty. Techs are things like not reporting and dirty urines, etc. The amount of punishment is usually far less for technicals compared to a direct.

If the judge does not see you within thirty days of the date of the previous VOP hearing and you have nothing else holding you, you can get your detainer certified and the prison must let you out.

Bail Reduction

2010-09-11T08:58:00.000-04:00

I went to my cousin's preliminary hearing and the police officer did not show up. My cousin's bail is $2,000,000. The lawyer asked the judge at the preliminary hearing for a bail reduction and the judge said denied. I asked the lawyer how we can get the bail reduced and he said to wait until the next listing for the preliminary hearing and if the government is not ready again, he will ask the judge again and most likely the judge would then reduce it. The next date for the preliminary hearing is 40 days from now and I don't want to wait that long. What else can I do?

Your lawyer can file a special motion in the Court of Common Pleas called a Bail Reduction Motion in front of the miscellaneous motions court judge in whatever county the case is listed. The Court of Common Pleas is a higher court then the preliminary hearing court, so that judge can always overrule bail decisions by the lower court. The only problem you may have is that in some counties it could take more then 40 days to get the matter listed. If that is so in your county, I would file it anyway because what happens if the preliminary hearing gets continued another time? This way you would already be in line.

Lastly, remember from previous posts my bail shortcut to assess whether you have a shot to actually get the bail reduced. Its a three factor test with a question: 1. seriousness of the current offense; 2. past record of convictions and adjudications; 3. past record of bench warrants. The question is, "has there been a change in circumstance since the last listing of the case?" If any of the three factors have not been properly assessed and there has been a change in circumstance (i.e. the witness failed to appear), then a bail reduction motion is appropriate. However, if none of these points can be made out, then your bail most likely will not be reduced.

Gagnon I Review

2010-08-19T09:06:00.000-04:00

I read your previous post on Gagnon I & II, but I still don't understand. In Philadelphia County, I was on probation. I got picked up on a new case for possession. I wasn't given a Gagnon I hearing. I was told in Philadelphia County, no one is given a Gagnon I hearing. This is wrong. My rights are being violated, can I sue, or can we start a class action for all probationers who do not get their proper Gagnon I hearings?

In Philadelphia, all probationers are given an administrative hearing for their Gagnon I hearing. At the CFCF, an administrative hearing is conducted with a trial commissioner (perhaps now called magistrate judge), a district attorney, and a public defender. Many detainers are lifted at this hearing. If a defendant's detainer is not lifted at this hearing, they can hire a paid lawyer to go to their back judge and file for a detainer hearing to ask the back judge themselves to lift the detainer. This detainer hearing is a genuine Gagnon I.

While this procedure does seem to violate Gagnon I, I would bet this is far more process then you would get in some other counties in Pennsylvania.

Looking in the Car

2010-04-20T18:17:00.004-04:00

I was stopped by the police for suspicion of armed robbery. The police asked me to step out of the car. The police then asked me for registration, driver's license, and proof of insurance. I gave it to them. After they ran me, they realized I was clean and I was not the armed robber. I attempted to leave, but the police refused to allowed me to leave. They told me to wait a minute. I stayed with one cop while the other three cops went to my car, took out their flash lights and looked inside the car, from the outside of the car, with their flash lights. They did not find anything, but this made me angry. My question is: can the police hold me there and look in my car?

I think this is a two part question. I do not think the police can hold you. Once they run you, and you are not the armed robber and your license is clean, you are free to get in your car and drive away. However, I do think that police can look inside any car from the outside the car through the windows at any time for any reason under the plain view doctrine.

What is the pardon process in PA after the application?

2010-03-18T18:21:00.006-04:00

What is the pardon process in PA after the application?

After the application is submitted, the applicant waits to hear if they will get a hearing. If the hearing is granted, the applicant goes to a public hearing in Harrisburg, PA. The hearing is held in public before the PA board of pardons. The board consists of five members, the lieutenant governor, the state attorney general, a corrections expert, a victim expert, and a psychologist.

Once at the hearing, the board calls each pardon applicant to the podium. Each applicant gives a recitation of their conviction. The board then questions the applicant. After the questioning, the applicant may call witnesses and/or have their lawyer speak on their behalf. The maximum amount of time per applicant is fifteen minutes in total.

After all of the applicants have completed their presentation, the board takes a quick recess.

After the break, the secretary holds a public vote. Each member of the board gives their vote aloud. If the board votes for you, your application goes to the governor for the pardon.

The District Attorney is a Cheater

2010-02-17T21:31:00.006-05:00

My criminal case is listed in two days and the district attorney just gave my lawyer new discovery. Included in the discovery are 35 new pictures of the crime scene that the DA had the since the time of my arrest. Also, they gave my lawyer a video recording of me inside the police car on the day of my arrest where the police and I were talking about the case as I was being transported. They have had the video since the time of my arrest. The District Attorney never mentioned anywhere in the written discovery that I had ever given a statement. My lawyer is very upset about this. She told me the DA is a cheater. How can the DA cheat, aren't they supposed to be the honest ones? Is there a remedy?

The DA has a continuing duty under the Pennsylvania Rules of Criminal Procedure to give all discovery to the defense attorney before the trial starts. The DA cannot claim that the cops had it and never gave it to them.

The problem with the rule is the remedy. The judge has three choices: 1. if the trial has already begun and DA comes up with new discovery, the judge can grant a mistrial; 2. grant a continuance to the defense attorney; 3. preclude the DA from using the evidence in the case.

In the leading case in Pennsylvania on this issue, the case was about rape. The defense attorney opened with the theory that no seminal fluid was recovered from a certain blanket. During the break the DA had the blanket re-tested. Seminal fluid was found this time. The DA introduced the evidence in his case in chief. The defense attorney objected and asked for a mistrial. The judge denied that request and gave a curative instruction. The Superior Court disagreed and remanded.

In your instant question, I can't answer whether you want a continuance or if you want to have the new discovery precluded from the case. It is possible that the new evidence could help your case. You never know.

As far as the DA being a cheater, they are rare, but they exist and I have no comment.

Judge Only Bench Warrant & Contempt

2010-02-10T09:51:00.004-05:00

I plead guilty to stealing a car in 1990. I was sentenced to 6-23 months in Philadelphia county, but my lawyer asked for a turn-in date so that I could have time to get my affairs in order. I was given 10 days to turn myself in. When the 10 days came, I went--literally. I got scared and fled. About 20 years later, I got picked up and I am sitting jail waiting to get the judge only bench warrant lifted. I am a different man then I was 20 years ago. I think I should be automatically paroled now, but my lawyer tells me that I need to get the bench warrant lifted first because she is worried that I will be held in contempt. I don't understand any of this. Why would I be held in contempt?

When you fail to appear in court, the judge can issue a bench warrant or a judge only bench warrant. A normal bench warrant means that when you are picked up on the bench warrant, you can get the bench warrant lifted by any judge or commissioner and continue on with either your sentence, probation, parole, or post bail on your case. If you have a judge only bench warrant, that means the judge wants to personally see you, and you must wait until the judge that issued the bench warrant holds a bench warrant hearing and lifts the warrant.

The judge has the power to hold you in contempt because you ignored the subpoena from the original court date. The judge can give you a sentence of up to 2 months and 29 days to 6 months. Remember that any sentence where the max is less then 24 months is controlled by the sentencing judge, so in effect, the judge in a contempt sentence can refuse your parole, thereby making your contempt sentence a flat 6 months.

If the judge that holds your judge only bench warrant is a moderate to liberal judge, that judge may not give you contempt on your judge only bench warrant if your lawyer makes a good arguement. Therefore, why ask for parole until AFTER the bench warrant is lifted. The last thing that you want to do is anger a good judge. After you wait about 1 or 2 months, file the parole petition and you will have a shot if in fact you did change your life over the 20 year period of time.

What Effect Does A No Contest Plea Have on A Future Crime?

2010-01-25T22:08:00.003-05:00

Eight years ago, I entered a No Contest (Nolo Contendere) plea for DUI. I just picked up a new DUI arrest. Its a tier three DUI.

I went and talked to my lawyer and she said that I was looking at 90 days. I thought that a first DUI for tier three is a 72 hour. How can I be looking at 90 days, that's the penalty for a second DUI within 10 years for a tier three DUI?

When a person enters a a No Contest plea, that simply means that the person does not admit to doing anything wrong. However, the judge then must decide whether to find the person guilty or not guilty based on the facts presented by the district attorney. Almost always the judge finds the person guilty.

In order to get recidivised on any crime in PA, you only need be found guilty of the previous crime. Therefore, you are looking at 90 days.

Is killing animals for religious purposes illegal?

2009-12-30T22:26:00.005-05:00

I recently read an article http://www.cnn.com/2009/CRIME/12/30/pennsylvania.animal.remains/index.html, where the Philadelphia Police and SPCA found many dead animal carcasses in a home. Obviously, this is cruelty to animals and the owner of the house should be prosecuted. However, the article on CNN seems to intimate that if there is a religious aspect to the killing of the animals, the people cannot be convicted so long as the method in which they kill the animals isn't deemed to be cruel. What does all of this mean?

In criminal law there exists a basic premise called mens rea. For all of you television junkies, it means criminal intent. In order to be convicted of crime, the prosecutor must prove not only that you committed the act, but that you had a criminal intent at the time that you committed the act. There are exceptions to this rule such as statutory rape and driving under the influence.

Basic criminal law principals are clear that a mens rea is required. Accordingly, if the prosecution cannot show that you had some kind of criminal intent when you committed the act, you should not be convicted.

Further, in the United States, we allow great religious freedom so long as the religious freedom doesn't hurt other people or the government does not have a reasonable basis for precluding a person from practicing their religion. In the case of animal sacrifice, if the person was practicing their religion and the sacrifice comported with the religious tenants, the person should not be convicted.

As an aside, I have recently gotten some emails about whether you can be prosecuted for certain crimes. Understand that you can be prosecuted for just about anything. Whether your case goes to trial and you are ultimately convicted is an entirely different question. My answer to the above question is based solely on my opinion as to whether this person who killed the animals should be found guilty. Certainly, probably cause for arrest may have existed in this case depending on the reports about the malnourished dogs, etc. Arrest and conviction are distinguishable. Often the District Attorney wants the people to decide innocence or guilty, so they make the arrest and prosecution and let the jury decide the outcome.

While some of the images painted through the author of the article's words may be grotesque to many folks, whether the acts were criminal is an entirely different issue.

Is an "attempt" a strike in Pennsylvania?

2009-12-20T21:44:00.003-05:00

Just for review, a strike is defined as a crime of violence as listed in 42 Pa.C.S. § 9714: murder of the third degree, voluntary manslaughter, aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) or (2) (relating to aggravated assault), rape, involuntary deviate sexual intercourse, aggravated indecent assault, incest, sexual assault, arson as defined in 18 Pa.C.S. § 3301(a) (relating to arson and related offenses), kidnapping, burglary of a structure adapted for overnight accommodation in which at the time of the offense any person is present, robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to robbery), or robbery of a motor vehicle.

A first strike has no immediate consequence. However, a second strike has a mandatory minimum of 10-20 years. A third strike has a mandatory minimum of 25-50 years.

If there is a dispute as to whether a prior conviction is a strike, the defendant has the right to ask for a separate hearing for the judge to determine whether the previous conviction is a strike. The district attorney has the burden. The burden is only a preponderance, not a reasonable doubt. I don't know if you are entitled to have a jury decide. My guess is that you do not have a right to jury today, but you should have that right and one day you will.

Any criminal attempt or criminal conspiracy is a strike if the underlying crime would be a strike. Solicitation can be a strike, but only if the solicitation was to murder.

Levin & Zeiger LLP

2009-12-20T20:35:00.006-05:00

Levin & Zeiger LLP is the premier Philadelphia Criminal Defense law firm. We are focused on providing answers to your questions and providing you with the highest level of customer service. We are experienced trial practitioners who go to court and advocate for our clients' rights.

If you or a loved one needs a seasoned Philadelphia criminal defense attorney, contact us now at (215) 825-5183, for a free consultation. If you have a basic question, fill out the form to the right, and we will respond as soon as possible.

When pleading guilty is not an option, you only have one chance so make sure you pick the best lawyer available.

Is there a statute of limitations on probation or parole supervision fees and/or court costs?

2009-12-19T08:44:00.002-05:00

Is there a statute of limitations on probation or parole supervision fees and/or court costs?

If the parole and/or probation occurred in Philadelphia county and the probation or parole would have terminated but for the unpaid supervision fees or court costs, you can have your lawyer file a motion to terminate the probation and have the remaining balance of payments act as a civil lien only.

The purpose of this motion would to be to terminate the probation so that you no longer have to report to the probation department or be under the supervision of the judge. The remaining balance would act as a civil judgment or lien against you forever.

If you are on state parole, I do not know the answer.

Are they going to legalize Marijuana in Pennsylvania? Am I dreaming?

2009-11-30T20:18:00.005-05:00

House Bill 1393 of the General Assembly of Pennsylvania would legalize pot. Currently, Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington permit the use of marijuana for medical purposes. Arizona permits doctors to prescribe marijuana.

Obviously, in order to become law, some form of the bill must pass through both houses of the General Assembly and the governor must sign the bill into law. We are a long way away.

Under HB 1393, the possessor of the weed for medical purposes will be required to register, get a registration card, and may not possess more then the amount allowed by law, nor more then the amount of live plants permitted by law.

The real question I had was whether the possession of marijuana would still give the police probable cause? In other words, if a person is sitting on their front step toking away on a big fat blunt and have their state pot card around their neck, can the cops: stop, frisk, search, arrest, detain, etc.?

The only part of the proposed new law that addresses that question reads as follows, "Possession of, or application for, a registry identification card shall not alone constitute probable cause to search a person or property of a person possessing or applying for the registry identification card or otherwise subject the person or his property to inspection by any governmental agency."

This doesn't say much. I will update this post as we move forward.

Pardon v. Commutation

2009-11-25T21:58:00.004-05:00

What is the difference between a pardon and a commutation?

A pardon means that you are fully cleared of any responsibility for the crime for which you had been convicted--the conviction is gone. A commutation means that you still have a record and your conviction stands, but your sentence is changed.

The sentence changes to however the governor or president changes the sentence. The sentence can be a death sentence that is commuted to life, a life sentence that is commuted to a parole eligible sentence, or a jail sentence to a probationary sentence.

Often, a commutation is a very good outcome and much more reasonable request.

Technorati

2009-11-24T22:44:00.001-05:00

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Can I file a PCRA when I admit I did the crime? (Commonwealth v. Haun, 2009 Pa Super 223)

2009-11-23T14:01:00.003-05:00

I was convicted by jury of a crime. I admitted my guilt at sentencing. I asked my attorney to file a direct appeal. He did not. I want to file a PCRA against my lawyer for not filing the direct appeal. Can I file a PCRA even though I admitted my guilt?

Under 42 Pa.C.S. sec. 9542, in the past, you could not file a PCRA if you admitted your guilt because there would be no way to benefit from an ineffectiveness claim. Therefore there was no way to to win a PCRA under this circumstance.

However, on November 20, 2009, the Superior Court overruled 9542 and held that a showing of innocence is no longer necessary in a PCRA claim. Commonwealth v. Haun, 2009 Pa Super 223.

What is the difference between and pardon and amnesty?

2009-11-02T09:46:00.004-05:00

What is the difference between and pardon and amnesty? When someone has been prosecuted and convicted of a crime, if they want to remove the conviction, they must seek a pardon. In state court their are exceptions to this rule, like exungements for summary offenses, but in federal court, you must get a pardon to remove a conviction.

Amnesty is where a person or group of people are told that they will not be prosecuted for a particular offense if they comply with terms of the amnesty, or simply admit to their role in the alleged crime. For example, the government can say that on a certain day all citizens who possess illegal firearms can turn firearms in to a police station and they will not be prosecuted. The idea that people are possessing the illegal weapon, but the government agrees not to prosecute, is a form of amnesty.

Always remember, the state and federal governments are separate sovereigns, so you can be prosecuted in one court even if you are granted amnesty in another.

DUI DUI, Nieves is bad law!

2009-10-26T21:28:00.003-04:00

DUI update. We have been asked so many questions regarding DUIs where the person gets a second DUI arrest before being convicted of the first. Our answers have been all over the board with our strateies, but the basis for my answers was that a case called Nieves prevented a consolidation of DUIs as two first DUIs. We had all kinds of strategies to minimize the poor law set in Nieves.

The wait is over. On October 23, 2009, in Commonwealth v. Haag, Justice McCaffery wrote for a unanimous Court, overruling Nieves and its progeny. You must be CONVICTED of the first DUI before the arrest of the second, otherwise, you have two first DUIs.

As an aside for any legal scholars, the cases specifically overruled are Misner, Nieves and Stafford.

Cheers to the Supremes!

Is my record expunged after I complete ARD?

2009-10-25T20:42:00.003-04:00

After I complete ARD (Accelerated Rehabilitative Disposition) is my record expunged automatically?

NO! Your record is not expunged automatically upon completion of ARD. If you were on ARD and you successfully completed ARD and paid all of your fines and costs, the record of your arrest was NOT erased. Feel free to contact our office for help.

Do I have a right to plea No Contest or Nolo Contendere?

2009-10-25T20:24:00.004-04:00

The District Attorney is offering me one year reporting probation. My lawyer tells me that if I go to trial and lose I will get one to two years up state. While, I didn't commit the crime, I really don't want to go to jail for something I didn't do. Do I have a right to plea no contest or nolo contendere?

No contest and nolo contendere are the same thing. The idea of a nolo plea means that you are not contesting the charges, not because you did it but because you do not wish to face the prospect of going through a long costly trial and/or going to jail.

However, you do not have a right to plea no contest. The district attorney must agree to a nolo plea. There are many goods and bads about a nolo plea. The main issue with a nolo plea is that you are not admitting that you did anything wrong. The bad part about not admitting that you did anything bad is that at sentencing you cannot argue to the judge that you should get a break at sentencing for accepting responsibility for your actions. For many judges, from both sides of the aisle, this is the single biggest factor in applying the sentencing guidelines.

The good part of the no contest plea is that if the case is a sex offense or a theft offense, the conviction cannot be used against you if you testify at a future court proceeding because your answer is simply that you did NOT admit to anything.

Sometimes, if you plea no contest to a sex offense, the probation department will make you go to sex classes where you will be pressured to admit that you in fact sexually assaulted someone. A no contest plea allows you to deny the charges. This can get sticky, but the subject of probation violations is an entirely different question.

Public Urination Disorderly Conduct

2009-10-24T22:42:00.004-04:00

I was pissing in the parking lot of a sporting event and a liquor control board (lcb) officer gave me a ticket for disorderly conduct--its a summary offense. I wasn't doing anything wrong; I was quite discrete about the whole thing. This is NOT in Philadelphia County. How do I beat this?

On the ticket plea not guilty and ask for a hearing. Appear at the hearing and see if the LCB officer appears. If the officer does not appear, the case will get continued or discharged. If the officer appears, tell your story to the judge and apologize for your behavior.

If it was in Philadelphia, you should get night court. If you have a night court question, write a comment to this post and I will respond with an answer.

Gun in the House, convicted felon, gun not mine. Help!

2009-10-20T14:30:00.004-04:00

I am a convicted felon. I do not have a gun. I understand that I am not allowed to possess a gun because it is illegal under 6105. My wife owns a gun. I want to know, can she bring the gun in the house and store it in the house if I am living there?

No. Keep the gun out of the house. Regardless of the case law, if the cops say that you are anywhere near the gun, or that you have any thing to do with the gun at all, regardless of the type of possession, it is VUFA 6105, if the cops can articulate facts that show that you were in any type of legal possession of the gun. The sentencing guidelines on 6105 are atrocious, so DO NOT live in any house where there is a gun. Move, separate, divorce, just stay away from guns.

Lying Witness

2009-10-18T08:55:00.003-04:00

I am being charge with a crime. I am going to trial before a jury. The only witnesses are three cops. They are all liars. If they continue to lie at the trial, can the judge throw out the case before it gets to the jury?

Not really. The purpose of a jury trial if for the jurors to decide who is lying or not lying. Your job, or your lawyers job is to convince the jury that the cops are liars. The DA's job is to convince the jury that the cops are telling the truth. That is the whole purpose of the jury system.

While on ARD I got a second DUI, what am I looking at?

2009-10-18T08:07:00.004-04:00

I got a DUI in January. I got in ARD in April. I got a second DUI in July. What am I looking at?

This is a very complicated answer. There are four scenarios. In general, if you get ARD (accelerated rehabilitative disposition) for a DUI (driving under the influence), you complete ARD, and you get a new DUI, that new DUI is considered a second DUI for legal purposes in Pennsylvania. Your sentence would be based on the DUI mandatory minimums for a second DUI. That range of time is 5 days, 30 days, or 90 days depending on what is found in your body based on the testing. If the testing is called a "refusal" its 90 days.

The second scenario is when the second arrest is not in the same county as the first arrest. There is a chance, however slight, that the second county will not know that you are on ARD in the first county. If that is the case, you should plea guilty as soon as possible to the second DUI, because if they don't know about the ARD DUI, they may treat the second DUI as a first DUI. The range of time for that is zero days in jail, 48 hours, or 72 hours depending on what is found in your body based on testing. If the testing is called a "refusal" its 72 hours. Be careful doing this as it can blow-up on you.

The third scenario is when both the old and new case are in the same county and the county has a policy of yanking ARD for DUIs when you get a second DUI while on ARD for a first DUI. In that case, you will be able to fight both cases simultaneously. However, you don't want to fight anything, you want to plea on the case with the higher tier, then get a continuance on the case with the lower tier. Then after you do your time on the higher tier, plea on the second DUI with the lower tier. That way you get the least amount of time. The only exception to this answer is that some counties allow you to serve work release or house arrest on your DUIs. If this happened in one of those counties, you should combine the cases and take work release or house arrest; especially house arrest.

The fourth scenario only pertains to Philadelphia County. In that case, if you are on ARD and they do NOT revoke the ARD, the new DUI is a second DUI, see answer one above. However, if they revoke the ARD in Philly, you can do something very special. In Philly, you can take a de novo appeal (a do over) even after a plea (called a stipulated trial). Accordingly, you take either case and do a stip trial (open plea), get the mandatory minimum on a first DUI as stated in answer 2 above. Then you take a de novo appeal, which erases the conviction. Then do a stip trial on the other case. You should get the mandatory minimum as a first DUI because the de novo appeal on the first case erased the conviction; you should get a sentence for a first DUI; see answer 2 above. Then appear in Common Pleas Court for the de novo appeal and withdraw the appeal; the lower court sentence will be reinstated as a matter of law. In effect, you get two first DUIs. Note, that you should wait thirty days from the date of the sentencing in the second case to withdraw the de novo appeal because the District Attorney can't appeal to the Superior Court once 30 have past because after 30 days the sentencing is a final order and an appeal is deemed void abinitio! If you don't wait 30 days, the DA will appeal to the Superior Court and we don't want that.

License Issues: as an aside, if you get a second DUI while driving on a suspended ARD DUI license, you are looking at 90 days just for the driving while suspended. If the DA has any salt, they will use that as leverage against you to get you to plea on the two DUIs together. Also, stop driving until the state gives you your license back, and even then consider not driving. If you get a third, you are going to go to jail for a very very long time.

Federal Preseidential Pardons

2009-10-10T21:25:00.006-04:00

Can the President of the United States Pardon someone for a State offense?

For whatever reason I have been asked this question several times over the last couple of weeks and I did not think it was post worthy. However, I must be wrong, because I keep getting the question.

This answer requires a definitional section. A federal offense is one where you were convicted in federal court. In all prosecutions in federal court the offense is against the United States of America. The cases are all captioned US v. Smith. In state court the offense is against the state. In Pennsylvania the cases are captioned Commonwealth v. Smith, but in some states the cases are captioned like Arizona v. Miranda.

Every state has its own way to grant the governor power to pardon and to restore rights of those previously convicted. In the federal system, only the President can grant a pardon, but in the federal system, the president has about 8 different types of pardons. I won't write them, hearing, but if folks want them listed, just send an email and I will post. The point is that not all pardons are created equally.

The president can only pardon people convicted in the federal system and governors can only pardon people convicted in their own respective states.

Hope this clears up questions about federal presidential pardons. If not, write a comment or send an email.

DUIs & Bad Offers

2009-10-04T18:54:00.002-04:00

I have a terrible juvenile record. I have really cleaned up since I was a kid. I just got a DUI, which is my first offense as an adult. Its a 3 day mandatory minimum. The DA offered me 9-23 months. My lawyer said its a bad offer due to my juvenile record. What can I do? I want to plea guilty? How can they do this?

Your juvenile history is looked at for purposes of sentencing until you are 27. The current offense is not relevant to your prior record score; the current offense is only relevant to your offense gravity score.

If the offer from the DA is more than your guidelines and more then the mandatory minimum, you can always plea open. Most judges don't give more then the mando on DUI's unless you had a bad accident, acted like an ass to the cops, or were very far over the limit in third tier. If I get a DA that is being difficult, an open plea on a DUI is often a good answer.

The only thing I would think about: DUIs are very hard for the DA to make out at trial. If you have any issues, you may wish to fight.

Valley Swim Club Update

2009-09-24T09:50:00.003-04:00

The PA HRC has ruled in our favor.

Words Alone

2009-09-01T07:40:00.003-04:00

My husband was arrested for robbing a woman in broad day light on 4th st off jewelers row for her jewelry. Mind you this happened last January, no accurate day and time. How is it legal to just assume this is the person who committed the crime without investigating first? My husband is currently incarcerated.

In Pennsylvania mere words alone are enough for an arrest. A huge distinction exists between an arrest and a conviction. Obviously, a convictions stays with you forever. The only way to overcome a "words alone" case is to fight it. Juries hate words alone cases and so do District Attorneys.

Remember, the District Attorney has to prove more then you probably did something wrong, they have to prove that you committed a crime beyond a reasonable doubt. Jurors take that seriously. When the DA doesn't make out their case, juries acquit people.

Two sad commentaries exist as a result of the "words alone" practice by the prosecutor. First, if it is a serious crime, the bail in the case can often be set too high for the defendant to be able to afford it and therefore, the defendant may remain in jail for a very long time awaiting trial. Second, we most often see this type of prosecution in cases involving sex or rape. I personally have handled many juries where the accusation is rape or sexual assault and there is no semen or dna. Not that robbery isn't serious, but rape is obviously a more serious charge.

Good Question.

Work Release while on house arrest?

2009-08-18T22:18:00.002-04:00

Can I get work release if I have been previously sentenced to house arrest and work release was not granted during the original sentencing hearing?

Yes, the conditions of house arrest can always be changed. Your attorney will have to petition the judge and request work release and the hours that you will be allowed to leave your home. It is always best to have a job already lined up that way the judge sees that you are being released to an actual job as apposed to being given an opportunity to find a job. A good criminal defense attorney should be able to coordinate and arrange for all of this to happen.

In Responce to the V.A.M. Expungement

2009-08-16T09:46:00.003-04:00

The general assembly of Pennsylvania has responded to the new case of V.A.M. regarding an expungement of a case that was thrown-out due to DNA evidence. See HOUSE BILL No. 1925 Session of 2009. The general assembly is again thinking about expungements in PA, trying to changing the law where the prosecution has withdraw a conviction and asked it be vacated due to later discovered evidence, making expungement automatic, like a not guilty. Will this become the law...don't know.

Out of State Conviction, Prior Record Score in Pennsylvania

2009-08-14T11:45:00.002-04:00

I committed a crime in Pennsylvania. My sentencing is coming up. I was previously convicted of another crime in another state. How will the old crime effect my new sentence and how will it change my prior record score? I cannot find the identical crime anywhere in the PA statutes.

When you get sentenced in Pennsylvania and you have a prior from another state, the Pennsylvania judge is supposed to "score" the old out of state offense so that your prior record score appropriately reflects the actions you did in the other states as if they occurred in PA. A problem exists, and I have encounter, when someone pleads guilty to a lesser charge in another state, but the acts contained in the discovery of the other case are much worse. In that instance I argue that the scoring should be based on the statute in the other state, not the actual facts of the case. In other words, the scoring example should the most reasonable as if the out of state case happened in Pennsylvania so the prior record score is appropriate considering all of the relevant conduct.

Programs in State Custody

2009-08-14T11:37:00.003-04:00

How do I do the programs in state custody so that I can get paroled sooner?

You can start to do the programs, finish the programs, and get credit for the programs once nothing else is holding you in custody except cases that you are serving sentences on. Once you are eligible to start the programs, most programs are available except special programs that need to be designated to you by the original sentencing judge. You cannot do programs like bootcamp, IP, or riii, but all of the other programs are available.

Expungements and DNA

2009-08-12T21:58:00.003-04:00

This is less of a question and more of a commentary that is relevant to many questions we get on expugnements. We get a question on either a summary offense or an expungement every day, so I thought this post appropriate for our readers.

Defendant was convicted of rape and sentenced to 12-24 years. Some ten years late, after the DNA was run, his lawyer proved that he could not have been the rapist. The case was nolle prossed by the District Attorney (prosecution withdrawn).

The Defendant filed for an expungement and it was denied due to the "commonwealth's interest in maintaining a record."

This was a Philadelphia case where a well known DA testified that the reason the prosecution did not move forward was due to fact that the DA's office could no longer find the victim. Simply the fact that the DNA was not a match did not preclude the Defendant was being part of the crime if he did not ejaculate. Also, if they could find the victim, they would have re-prosecuted the Defendant.

The majority wrote that the DA has to show why it should not be expunged, and remanded it with an order to expungement (remand means sent back to the lower court). The decent wrote it should be remanded for further proceedings so the trial level judge could make a record as to their finds to see what they considered in their opinion.

I don't understand the decent at all. If an appellant's lawyer doesn't write down the proper grounds for an appeal in the 1925b, there is no second chance. How can they send a case down to give a judge a second chance?

FYI: Commonwealth v. V.A.M., 2009 PA Super 156

Spring Loaded Baton, Telescopic Baton, Blackjack, HELP!

2009-08-02T09:51:00.004-04:00

I live in Pennsylvania. I want some self protection. Can I carry a spring loaded baton or a telescopic baton for the sole purpose of self protection?

No. The mere possession of either of those items is a crime under section 908 of the PA crimes code entitled "Prohibited Offensive Weapons." Specifically, under section 908(c), a blackjack is listed as one of the prohibited weapons.

The follow-up question was, "It is ok to carry a Kubotan?" A Kubotan is defined on wiki, and still meets the blackjack definition from wiki, or the crimes code. However, if used in a crime, all of these items would be a PIC (possession of an instrument of crime).

A POW is defined below:

§ 908. Prohibited offensive weapons

(a) OFFENSE DEFINED.-- A person commits a misdemeanor of the first degree if, except as authorized by law, he makes repairs, sells, or otherwise deals in, uses, or possesses any offensive weapon.

(b) EXCEPTIONS.--

(1) It is a defense under this section for the defendant to prove by a
preponderance of evidence that he possessed or dealt with the weapon
solely as a curio or in a dramatic performance, or that, with the
exception of a bomb, grenade or incendiary device, he complied with the
National Firearms Act (26 U.S.C. § 5801 et seq.), or that he possessed
it briefly in consequence of having found it or taken it from an
aggressor, or under circumstances similarly negativing any intent or
likelihood that the weapon would be used unlawfully.

(2) This section does not apply to police forensic firearms experts or
police forensic firearms laboratories. Also exempt from this section
are forensic firearms experts or forensic firearms laboratories
operating in the ordinary course of business and engaged in lawful
operation who notify in writing, on an annual basis, the chief or head
of any police force or police department of a city, and, elsewhere, the
sheriff of a county in which they are located, of the possession, type
and use of offensive weapons.

(3) This section shall not apply to any person who makes, repairs,
sells or otherwise deals in, uses or possesses any firearm for purposes
not prohibited by the laws of this Commonwealth.

(c) DEFINITIONS.-- As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

"Firearm." Any weapon which is designed to or may readily be converted to expel any projectile by the action of an explosive or the frame or receiver of any such weapon.

"Offensive weapons." Any bomb, grenade, machine gun, sawed-off shotgun with a barrel less than 18 inches, firearm specially made or specially adapted for concealment or silent discharge, any blackjack, sandbag, metal knuckles, dagger, knife, razor or cutting instrument, the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise, any stun gun, stun baton, taser or other electronic or electric weapon or other implement for the infliction of serious bodily injury which serves no common lawful purpose.

(d) EXEMPTIONS.-- The use and possession of blackjacks by the following persons in the course of their duties are exempt from this section:

(1) Police officers, as defined by and who meet the requirements of the
act of June 18, 1974 (P.L. 359, No. 120), referred to as the Municipal
Police Education and Training Law.

(2) Police officers of first class cities who have successfully
completed training which is substantially equivalent to the program
under the Municipal Police Education and Training Law.

(3) Pennsylvania State Police officers.

(4) Sheriffs and deputy sheriffs of the various counties who have
satisfactorily met the requirements of the Municipal Police Education
and Training Law.

(5) Police officers employed by the Commonwealth who have
satisfactorily met the requirements of the Municipal Police Education
and Training Law.

(6) Deputy sheriffs with adequate training as determined by the
Pennsylvania Commission on Crime and Delinquency.

(7) Liquor Control Board agents who have satisfactorily met the
requirements of the Municipal Police Education and Training Law.

Valley Swim Club

2009-07-20T17:44:00.005-04:00

Mr. Levin was recently interviewed regarding the Valley Swim Club Civil Rights matter. Please see the video below. In addition to handling civil rights cases, Mr. Levin is a personal injury attorney and car accident lawyer.

Car as a Deadly Weapon II

2009-07-19T12:03:00.003-04:00

Someone ran me off the road. They did it intentionally. I want them prosecuted. They used their car as a deadly weapon. Does that help the prosecutor?

Before we get started, there was a previous post about this topic: http://philadelphiacriminaldefense.blogspot.com/2009/05/can-car-be-deadly-weapon.html .

Actually, you do NOT necessarily want to have a situation where the car is used as a deadly weapon because the assault standard of culpability is negligence, which in PA is a misdemeanor. Knowing and intentional give rise to greater culpability making it a felony assault.

Remember, in criminal law there are many different levels of culpability, intentional, knowing, reckless, negligent. The higher up the scale, the more punishment. If the person intentionally ran you off the road, that is much worse then someone acting negligently with a deadly weapon ie a car.

Your description of the facts is far worse then car as deadly weapon negligent assault.

However, in the alternative, a good prosecutor may see an opportunity to charge Aggravated Assault as a felony of the 2nd degree, which is a specific intent to cause bodily injury with a deadly weapon and a car could be that weapon under the comment in the statute.

Also, in PA there is a deadly weapon enhancement at sentencing.

Good question.

Expungement Update Redeaux

2009-07-09T21:29:00.006-04:00

Yesterday I wrote about the expungement update in Pennsylvania at http://philadelphiacriminaldefense.blogspot.com/2009/07/expungement-update.html . However, I want to change the example I gave. In yesterday's example I said that if you completed and assignment from a Magisterial Judge and the case was thrown out you would not have to wait the five year period to have it expunged. While this is correct, that answer was the same before the law changed.

Under the new law, if you were found GUILTY of a summary offense relating to illegal alcohol consumption, transportation, or purchase under 18 Pa.C.S. § 6308, you could now get it expunged without the waiting period of five years. (underaged drinking)

Remember, the waiting period of five years on summaries is ONLY for GUILTY convictions, not for withdrawns, discharges, and not guiltys, where there is no waiting period. Sorry for the confusion.

Expungement Update

2009-07-08T12:10:00.003-04:00

The Pennsylvania Expungement statute has been changed again. Under the new statute if you have been convicted of any crime under 18 Pa.C.S. § 6308 involving alcohol transportation, purchase, and consumption, you may be able to get an expungement immediately without the 5 year waiting period associated with a summary expungement.

In most townships in Pennsylvania, illegal alcohol cases are disposed of through a Magisterial District Judge assigning some type of task to the defendant. Once the defendant has completed the task, the Judge drops the charges.

Under the old expungment law, you would have to wait five years to have that summary expunged. Now you can have the arrest expungemed immediately if you meet all of the criteria under PA's new expungement law. See 18 Pa.C.S. § 9122.

Citizen's Arrest Follow Up II

2009-06-03T16:36:00.012-04:00

Previously we discussed citizen's arrest, today we were asked by the news if someone can be arrested for effectuating the arrest. My answer to the news person was that you could be charged if the amount of force you used was too great when making the apprehension. In the instant mater, the suspect was believed to have used a gun in commission of the rape, so using a two by four is quite reasonable. The video is below:

King's Bench

2009-05-24T14:05:00.003-04:00

I am being prosecuted for Murder. It is a capital case; i.e. the District Attorney is seeking the death penalty. The District Attorney is trying the case herself. She is a cheater. She is trying the case in the media against the gag order from the Judge and the Judge won't do anything about it. I think the case should be transferred to another county so I can get a fair shake. The Judge denied my request for transfer to a new county. I asked my lawyer to file an appeal before trial. She said that the judge has to certify the appeal to be able to appeal in the middle of the case. She tells me the judge won't certify the appeal. I thought the if the DA wants to appeal they have to get it certified? I am not sure about any of this, but I want this case moved and this is a weird situation, is there any type of appellate remedy for this?

Yes, you can file a King's Bench appeal in the Supreme Court of Pennsylvania. This is an appeal where you can ask the Supreme Court of Pennsylvania to hear a matter instantly instead of going through the appeals process. The Supreme Court will rule immediately on the issue if King's Bench is granted.

I went to an event the other day with Supreme Court Justice J. Michael Eakin, he said that the court almost never grants King's Bench, even if the parties agree, but that death penalty cases are a type of criminal case that could get King's Bench.

Gun in the House

2009-05-24T13:35:00.003-04:00

The cops came in my house for an arrest warrant for a person other then me. They also had a search warrant for a gun. The cops told me that if I didn't tell them where the gun was located, they would tear-up the whole house then arrest me for the gun. I knew where the gun was located, I never touched it, my prints were not on it, and I didn't want to get locked up, so I told the cops where the gun was located. They were rude as shit to me. I was nothing but cooperative and helpful and they threatened me. Could they have arrested me if they found the gun and I didn't tell them where it was?

There are five different gun possessory offenses under the Violation of the Uniform Firearms Act (hereinafter "VUFA"): 1. Carrying the gun outside of your house without a license to carry; 2. Carrying a gun on the streets of Philadelphia without a license to carrry; 3. Possessing a firearm being a person prohibited by law to possess a firearm (ie felons can't have a gun); 4. Possessing a gun with an obliterated serial number; and 5. Possessing a gun that is stolen (a receiving stolen property theory).

If the cops come in your house and find a gun you can't be found guilty of the numbers one and two about because you are in your house. This seems like your situation based on the tone of your question.

However, numbers three, four and five are dependant on the term possession. There are three different types of possession: 1. actually on your person; 2. constructive possession; 3. indirectly on your person.

If the cops can show that you are a convicted felon, the serial number is blown-up, or the gun is stolen, and show that you are in possession of the gun, you can be prosecuted. Obviously, if you knew where the gun was located, you would have to make an arguement going to the finger prints.

Can a Car be a Deadly Weapon

2009-05-15T19:14:00.003-04:00

I am charged with assault in state court in Pennsylvania for running over a pedestrian with my car. My lawyer tells me that two types of assault require the District Attorney to show that I used a deadly weapon in committing the assault. I had no weapon on me, i.e. gun, knife, etc., but she says that my car is the weapon. Is this true?

Yes. Your lawyer is absolutely correct. You can be charged with Aggravated Assault as felony of the second degree if you either intentionally or knowing caused bodily injury to another with a deadly weapon. Also you can be charged with Simple Assault as a misdemeanor of the second degree if you negligently cause bodily injury to another with a deadly weapon.

The Superior Court and the Supreme Court of Pennsylvania have both held that a car can be the deadly weapon for the purpose of a conviction for assault as stated above.

Time Limit for Blood Preservation in DUI Cases

2009-04-14T18:56:00.003-04:00

Must the District Attorney preserve blood drawn in a DUI case?

The District Attorney must put the defendant's lawyer on notice for the amount of time that the District Attorney's Office intends to preserve the blood in a DUI case, then the defense attorney must notify the DA's office if the defense attorney may wish to re-test the blood by their own independent lab.

What is the remedy--is the case tossed? No. The remedy is that the DA must proceed under section a1 general impairment without the blood. The benefit of this type of prosecution is that the penalty is FAR less under general impairment then all of the other types of DUIs.

This is a great way to fight a blood case if your lawyer has a lab to which to send the blood. Best question of month.

Is a Polygraph Admissible?

2009-04-12T18:58:00.001-04:00

Is a polygraph admissible in a criminal case?

Polygraphs can be used in court for certain proceedings but not for trial and not for the ultimate issue in a case. I have seen the polygraph used for violation of probation hears for sex offenders that refuse to admit they sexually assaulted the initial victim in the case. Often, we see people plea no contest in a sex case because the stakes are too high to fight the case. They are then ordered to go to sex offender counseling yet they refuse to admit guilt. They fail the class. The probation officer violates them. They go before the judge to get punished for the violation. The judge can consider the result of a polygraph in this instance, but it is not per se dispositive of the violation.

Gun and Drug Trial

2009-04-11T08:49:00.003-04:00

My wife got arrested after they executed a warrant at my house. She was arrested for guns (VUFA) and drugs (PWID). She went to trial and was found guilty of the PWID. The District Attorney told her that if she doesn't plea guilty to the gun (VUFA), they will seek double the sentence. Why didn't they try her together on the gun (VUFA) and the drugs (PWID) so she wasn't facing crazy double time?

This is a very tough question. In the past we have written about Campana, where you cannot be charged and tried twice for the same occurence because the prosecution is barred due to double jeopardy. Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), aff'd, 455 Pa. 622, 314 A.2d 854 (1974).

However, I have had cases where I have filed a motin to preclude one or the other from case so that the jury wouldn't hear it, thereby negating my own Campana arguement from above. For example, I want to try it as a gun case and I am worried that if they jury hears about all of the cocaine found at the house, they will assume my client is guilty of the gun. It does work, but it is hard to understand unless you see it.

Tough question.

Concurrency on Mandatory Sentences

2009-04-07T16:13:00.006-04:00

"If I have two open cases and both are mandatory minimum cases, can I be sentenced to concurrent time?" -Huntley H.

The short answer is yes, Huntley. Imagine you have two open driving under the influence offenses, both of which count as third offenses, and both of which are one year mandatory minimum cases. This means that if you are convicted on either case, the Judge has no choice but to sentence you to at least one to two years jail.

If you lost both cases, then you would have a mandatory minimum sentence of one to two years on each of them.

It is absolutely possible to get the benefit of a concurrent sentence. The way that this would work in practice is one of the following three ways: First, you could consolidate both cases for guilty pleas before the same judge. Second, you could try one case first. If you lost, you could consolidate the other case for a plea before the same judge. Third, you could try both cases before different judges and ask to hold sentencing hearings on both cases on the same day. The second judge would then get to make the decision whether the time is served concurrently (all at once, together) or consecutively (serve time on one case and start time on the second case after being paroled on the first).

Generally speaking, you maximize the chances for concurrency if you don't bring both cases to trial, but, rather, plead guilty on at least one of them. Then again, you can't beat your case if you plead guilty. The choice in plea should be made only after consultation with an experienced criminal defense attorney, a careful consideration of the risks and benefits for each strategy, and a full exploration of all possible defenses to each case.

Can the Commonwealth Demand a Jury?

2009-04-05T10:41:00.004-04:00

I was arrested for Possession with the Intent to Deliver in Philadelphia. I had a preliminary hearing. I went to arraignment. My case was sent to the felony waiver program. My lawyer told me that we had a good judge and that we should fight the case as a bench trial. When we got to court and we called the case ready, the District Attorney stood up and said that they wanted to do it as a jury trial. The case got sent to another room, then the case got "spun-out" to another room to a different judge and we got a a date for a jury trial 9 months from now. My lawyer now suggested that we make a deal. I thought that defendants and prosecutors are not allowed to judge shop and that sure seems like what is happening to me. Can the Commonwealth demand a jury?

Under Pa. Const. Art. 1, § 6 (2008):

§ 6. Trial by jury

Trial by jury shall be as heretofore, and the right thereof remain inviolate. The General Assembly may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jury in any civil case. Furthermore, in criminal cases the Commonwealth shall have the same right to trial by jury as does the accused.

Therefore, the District Attorney can demand a jury just the same as the Defendant. Note that this may not be the law in every state, but in Pennsylvania the government amended the constitution, so there is no fighting the governments right. Obviously, if you lose, at sentencing the judge will take into account the idea that the District Attorney's office demanded on you and usually lowers your sentence as a result.

Copyrighting Unlawful Activities?

2009-04-03T13:57:00.003-04:00

"Can you copyright something that is illegal? For example, creating a video that explains how to hack a computer?" -Matt B.

Generally speaking, copyright protects artistic and literary creations or expressions. An idea or method of doing something, whether it be unlawfully hacking a website or a recipe for chocolate cookies, is not eligible for copyright. However, the expression of an idea and how that idea is written down in a literary sense could potentially gain copyright protection. My opinion, and please note that I handle criminal cases but am certainly no expert on copyright, is that one cannot obtain a copyright on the literary expression of how to commit an unlawful act.

When I first got this question, I immediately thought of Robert Mapplethorpe's rather risque photographs of nude children. Almost everyone considers those photos as art, and I'm certain they have copyright protection. But let's take it a step further and image that the photographs showed sexually explicit conduct involving children. Well, that's clearly unlawful child pornography. Because it is unlawful even to possess child porn, one clearly could not get copyright protection on such pictures.

When Will I Get Paroled?

2009-04-02T14:43:00.003-04:00

I have 2 years in and I plead to a 2-4 year sentence today. When will I get paroled? Today, tomorrow, next week, when?

Once you are sentenced in the county, you are transported upstate to the custody of the Pennsylvania Department of Corrections. Once in state custody, you must get classified before the sate parole board will review your case for parole. The time line for classification and getting in front of the parole board is about 6 months. If you had no write-ups or violations during your two years in custody, you should be paroled in about 6 months.

ERROR

2009-04-02T01:54:00.002-04:00

PLEASE FILL OUT THE REQUIRED FORM FIELDS

Jury Service...Again

2009-04-01T09:12:00.004-04:00

Why did I get called for jury service twice in the last two years and most of my friends have never been summoned?

Jury selection is completely random. Jurors names are pulled both from voter registration and from motor vehicle (PennDOT) records. So, some people are called frequently and some are never called in their lives.

I can tell you this. If you serve on a jury that is at least three days long, your name is taken out of rotation for a period of three years. If you are not put on a jury or you serve on a one or two day jury, your name is taken out of rotation for one year.

One other thought on your friend. If he or she is not a citizen or has ever been convicted of a crime punishable by more than one year, he or she is not eligible for jury service. That's potentially a reason he or she is not called.

My final thought is this: Jury service is one of the most important duties a citizen has. The criminal and civil justice systems cannot function without juries. Most people find that, once they serve on a jury, the experience is extremely rewarding.

Maximum Marijuana Penalities

2009-03-28T14:36:00.004-04:00

"What is the maximum sentence possible for selling marijuana?"

Although many marijuana dealing cases end in probation, there are many people serving jail time and even state prison sentences for selling marijuana. The maximum possible sentence for most marijuana dealing crimes is five years in jail. (35 P.S. 780-113(f)(2)).

However, there is an exception made for cases involving more than One Thousand Pounds of marijuana. In these most serious cases, the maximum penalty is doubled to ten years in jail. (35 P.S. 780-113(f)(1.1)).

As a side note, any time a gun is used in conjunction with a drug dealing situation, there is a five to ten year mandatory sentence. Because the statutory maximum for 99% of marijuana cases is only five years, these cases can end with the very unusual sentence of five years flat. (This is unusual because the minimum and the maximum of the sentence are the same.)

Will My Police Brutality Case Be in Federal or State Court?

2009-03-27T10:32:00.005-04:00

Will My Police Brutality Case Be in Federal or State Court?

When we file police brutality law suits for our clients there is really no difference at all as to whether we file in Federal or in State Court. We make the decision as to where we file simply based on our feel for the facts of the case and nothing else. The only exception is that if we are going to sue under a federal law, we generally file in Federal court. If we sue under a Federal theory, but file in State Court, the attorney for the city can file a special motion to have the case removed from State Court and sent to Federal Court anyway.

As an aside this question came from a reader who was assaulted by the police and arrested for disorderly conduct and the case was listed at 1401 Arch Street, in Community Court. We see a lot of police brutality cases where the police make an arrest on disorderly conduct to mask the police brutality aspect of the case.

Flipping The Bird Is Not Disorderly Conduct

2009-03-27T10:21:00.002-04:00

"Can the police arrest me for giving them the finger?"

A Western District of Pennsylvania federal court judge, David Cercone, has recently ruled that giving a police officer the middle finger is protected speech under the First Amendment, and not a criminal act.

Back in 2006, a fellow named David Hackbart was having a bad day. After flashing his middle finger at a fellow motorist, and then making that same gesture toward a Pittsburgh Police Officer, the officer cited Hackbart for disorderly conduct as a summary offense. After being found guilty by a local magistrate, Hackbart appealed and won his case via a voluntary dismissal from the DA. Then, in a move requiring a whole lot of chutzpah, Hackbart turned around and sued the police for violating his civil rights. Judge Cercone has denied summary judgment for the police officer and found that the lawsuit may go forward, because giving a cop the finger is lawful.

Legalize It!

2009-03-24T13:18:00.002-04:00

Check out this excellent opinion piece on cnn.com. The author makes a cogent, concise argument for why the War on Drugs is not only failing us, but harming us.

My favorite excerpt: "Violence was common in the alcohol industry when it was banned during Prohibition, but not before or after. Violence is the norm in illicit gambling markets but not in legal ones. Violence is routine when prostitution is banned but not when it's permitted. Violence results from policies that create black markets, not from the characteristics of the good or activity in question."

Suing Police

2009-03-23T22:26:00.004-04:00

Can I sue the police?

You can sue the police just like anyone else. The issue with suing the police is what was your role in the event that caused your damage by the police. The police should be allowed to protect our society and to do their jobs. So if you were in a situation and you were doing something that you should not have been doing, then you may not have a case.

Remember that in a criminal case, the District Attorney has the burden of proof. When you sue the police, you are now the moving party, so you have the burden of proof. It is far easier to play defense then it is to be on the offensive. In a police brutality case, you have the burden of proof, so your job is much harder.

We sue the police quite often, but not all police brutality cases are created equally.

Disarming a police officer

2009-03-19T14:29:00.004-04:00

Is there a crime called disarming a police officer?

Yes. In the criminal code of Pennsylvania, there is a crime called "Disarming law enforcement officer" which you can find at Title 18 Section 5104.1 of the Code.

This law was passed recently (effective in 2006) and there has been very little litigation in the appellate courts over what the statute means. It is clear that if someone either attempts or does in fact take a gun or other weapon away from a police officer, that person commits a felony of the third degree. The statute does not define the term 'weapon'.

I recently had an inquiry in a case alleging that the defendant disarmed a Philadelphia Police Officer of his police baton. It is, as far as I can see, a question of first impression whether a police baton counts as a weapon under this section. I'll note that the term weapon is defined elsewhere in the criminal code of Pennsylvania to mean: "Anything readily capable of lethal use and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have." (Title 18, Section 907). Under that definition, a baton should not be within the meaning of the term 'weapon' and the charge should be dismissed.

Should I be retained and end up litigating this issue, I'll certainly post the outcome.

I Shot the Sheriff, but I Did Not Shoot the Deputy

2009-03-06T23:10:00.003-05:00

Help, I shot the sheriff, but I did not shoot the deputy and I am being charged for aggravated assault and attempted murder of for both the shootings. My lawyer told me that I am being charged with conspiracy for both and I don't get it. Ok, yes, I was present when we bought the guns and when we planned the shootings but my rappy shot the deputy, not me. Can you help?

If you take a substantial step towards the commission of a crime, you can be found guilty for not only the crime that you commit, but any other crime that occurs as a result your initial act. Say you and your friend decide to rob a gas station and you are going to be the lookout. Your friend goes into the gas station, you remain outside. Your friend robs the cashier of the gas station at gun point. Things go awry and your friend kills the cashier.

You can be found guilty of murder 2 (felony murder) because you were part of the conspiracy to commit the robbery and you took a substantial step in furtherance of the conspiracy by being the lookout.

Was I convicted of a summary or a misdemeanor?

2009-03-05T16:39:00.003-05:00

I was convicted of a something years ago and I want to know if it was a summary or a misdemeanor. How can I tell?

1. Some charges are only misdemeanors or summaries. In other words, the name of the charge itself dictates whether the charge is a misdemeanor or summary.

2. Other charges can be both misdemeanors or summaries, but those charges should have the code sections for which you were convicted. Those numbers can reveal the answer.

3. If you were convicted at the magistrate, it was only a summary. If you were convicted in the court of common pleas, it could be either.

If it was all summaries, you may be eligible for an expungement.

Dismissal of Case per Rule 586

2009-03-03T10:44:00.001-05:00

"What is rule 586 in the Pennsylvania crime code?"

Rule 586 is entitled Dismissal Upon Satisfaction or Agreement. It applies to any non-violent felony crime. (There is a similar rule, Rule 546, which applies to misdemeanors.) Essentially, the rule stands for the proposition that the district attorney can decide to dismiss a case if the defendant has agreed to pay restitution or otherwise satisfy the victim of the crime.

You see this most often in forgery or theft cases. If the defendant apologizes and returns all of the money, and everyone agrees, the DA can dismiss the case under this rule.

It is important to remember that the District Attorney must agree to dismiss the case. Nobody has any right to have a case dismissed under this rule.

Re-arrest

2009-03-02T11:29:00.002-05:00

I had a preliminary hearing on a burglary case and the witness never showed up. The case was thrown out. Can I be re-arrested?

The answer is, most likely, yes. Unless the case is dismissed or withdrawn WITH prejudice, then the government can re-arrest you. Even if your case is dismissed by a judge after a full preliminary hearing, the government can still re-arrest you. In that case, however, the hearing is not listed in front of the magistrate again (or in Municipal Court in Philadelphia). Instead, it gets listed in miscellaneous motions court in the Court of Common Pleas. If the higher court still believes there is insufficient evidence, then the government may appeal to the Superior Court.

The only way a case listed for a preliminary is absolutely, finally disposed is if the case is dismissed with prejudice and there is no appeal within thirty days.

How Do I Put Money On An Inmate's Books?

2009-02-27T12:56:00.003-05:00

"My husband is locked up at the House of Corrections. How do I put money on his books?"

The House of Corrections is a local, Philadelphia County jail. You can go directly to the jail at 8001 State Road and submit either cash or a postal money order (with your husband's photo number, sometimes called a PP number or PPN) and the jail will credit your husband's jail account. Inmates are not permitted to have actual cash, which is considered contraband, but they can use their inmate accounts, or 'books', to shop at the prison commissary or to send away for lawful products and merchandise.

You can also mail a postal money order to the jail. Mail the letter directly to your husband, with his photo number next to his name, just like any other letter you would send. The jail opens inmate mail to check for contraband, and will remove the money order and place the funds on his books.

Be sure not to send cash to the jail through the mail. Also, make sure you fill out the money order with your husband's name AND his photo number. If you fail to put the photo number on the money order, it will probably be rejected and returned to you.

If your husband has a bank account which is not a joint bank account with you, the bank won't let you withdraw money without obtaining a power of attorney. Each bank has its own power of attorney forms, and a standard POA form will be rejected. There's some footwork involved if the only money to put on his books is from such an account. You'd have to mail him a power of attorney, have him sign it and have it notarized, then return it to you. Then you would file it with the bank, and a few days later, you'll be able to withdraw the cash. At Hochberg, Levin & Zeiger, we have gone through this process on behalf of clients without local family. It is a somewhat time-consuming process, but it isn't difficult.

DUI Refusal

2009-02-26T22:34:00.003-05:00

DUI Refusal. I thought I had heard it all. I got locked up by the police and when I was at the police station the lazy officer said to me, "look we both know how drunk you are, will you just sign this waiver of intoxication so I don't have to take you to the hospital to get your blood drawn." And so I signed. Later my attorney told me what I signed was a refusal acknowledgment, not a waiver. Now I am being prosecuted for a refusal dui. Can the cops do this? Can I beat this case?

You can combat a refusal either through a motion to suppress the refusal or through arguing at trial that in fact it was not a refusal. The type of refusal that you have described above is the kind that you would fight at trial. However, your story is so ridiculous that only a jury will buy it-no bench trial if this is your defense.

Thank You

2009-02-25T15:19:00.002-05:00

Thank you for your question. An experienced attorney will attempt to answer your question as soon as possible.

Self Defense In Your Home

2009-02-25T12:42:00.006-05:00

If I am in my house, I own and possess a gun legally, and an intruder tries to break in to my house, can I shoot them without the risk of prosecution? Does the answer change if the person dies when I shoot them?

Under the common law and under the current Pennsylvania statutory law, the issue is called justifiable use of deadly force; whether the person dies is not relevant. Under the current law, if you are in your home someone tries to break into your home, and you are prosecuted, you may assert at trial the affirmative defense that your use of deadly force was justified and that you should be found not guilty due to that justification.

The problem with that rule is that an affirmative defense generally requires the defense to prove something--in this case, proving the reasonable belief existed.

The basic premise of the American trial system that the District Attorney must prove the entire case and no burden is place upon the defendant is somewhat stripped from the defendant regarding affirmative defenses because the burden is shifted to the defendant.

While you do have this defense of justification available for you, some Pennsylvanian's believe that the burden should not shift to the defendant in certain situation. House Bill 40 of the 2009 Session, if passed into law would create a presumption, that if you legally own or possess a gun, within your home, and your house is being unlawfully or forcibly entered, you would be presumed to have a reasonable belief that deadly force is immediately necessary to protect yourself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force.

This is a basic summary of this addition in the new bill, there are many exceptions to the above. However, this shows the intent of legislature to eliminate the burden shifting to the defendant when the defendant is being attacked in their own home.

Mistake of Age

2009-02-22T17:35:00.003-05:00

Can mistake of age be a defense in a statutory rape case?

In Pennsylvania, the crime of statutory rape is called statutory sexual assault, and the code section can be found at Title 18 Section 3122.1. If the complainant is over the age of thirteen, then mistake of age is a permitted defense. If the complainant is younger than that, then there is no mistake of age defense.

What is an appeal under the Post Conviction Relief Act (PCRA)?

2009-02-04T12:40:00.004-05:00

What is an appeal under the Post Conviction Relief Act (PCRA)?

The Post Conviction Relief Act (PCRA) allows a defendant to appeal his case when a direct appeal to the Superior Court of Pennsylvania has been denied. The PCRA must be filed within a year of the final disposition of the case that ended all of the defendant's appellate rights. The exception to this rule is when the defendant is in custody. When a defendant is in custody, there are various ways to file a PCRA after the one year rule has passed. We have previously answered questions about the Innocence Project. Obviously, all appellate rights and PCRA have expired in most Innocence Project cases, yet, defendants are still allowed to file a PCRA and obtain a hearing. Newly found evidence is an exception to the one year rule.

A PCRA is limited to certain grounds for appeal. You must plead one of the following in the PCRA petition, under the statute, 42 Pa.C.S. 1500-1510:

"(2) That the conviction or sentence resulted from one or more of the following:

(i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.

(iv) The improper obstruction by government officials of the petitioners right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court."

(v) Deleted by statute.

(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.

(vii) The imposition of a sentence greater than the lawful maximum.

(viii) A proceeding in a tribunal without jurisdiction.

(3) That the allegation of error has not been previously litigated or waived.

(4) That the failure to litigate the issue prior to or during trial or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel."

In Absentia Update

2009-02-01T13:09:00.002-05:00

My case was done in absentia per the previous November posting. I was found not guilty of all of the major crimes and guilty of some very minor crimes. I was sentenced to 6-18 months in the county, plus I still face some contempt charges. Can I appeal the conviction and/or the sentence?

All of the same Pennsylvania criminal appellate rules apply, but at some point once you file your appeal to the Superior Court of Pennsylvania, they will realize that you are on the run and your appeal will be dismissed because of your non-participation in the appeal. I think somewhere between 2-4 months is the absolute maximum of time you have until your appellate rights vanish.

Distributing Marijuana Is Not The Same As Selling Weed

2009-01-23T16:47:00.004-05:00

To HLZ Law: The police saw me walk out of my dorm building and give a small baggie of weed to a friend of mine. (It was a quarter ounce of weed.) I gave my friend this because he was running low and I had some. I wasn't charging him and I'm not a drug dealer - I just like smoking weed with my friends. What am I facing?
From, Jordan B.

Jordan - the law of Pennsylvania recognizes that there is a difference between selling marijuana and giving marijuana to a friend. Selling marijuana is a felony offense punishable by up to five years in prison. However, giving a small amount of marijuana to someone for free is a very minor crime, punishable by only thirty days maximum (and usually just a fine).

Title 35 Section 780-113(a)(31) states: "Notwithstanding other subsections of this section, (i) the possession of a small amount of marijuana only for personal use; (ii) the possession of a small amount of marijuana with intent to distribute but not to sell it; or (iii) the distribution of a small amount of marijuana but not for sale" is a misdemeanor punishable by up to thirty days in jail or a five hundred dollar fine.

For purposes of this section, a small amount is defined as less than thirty grams. In case you don't know drug math, Jordan, a quarter ounce is about seven grams, so your situation fits the rule of law I've just described.

Let me make this clear, however. The District Attorney will almost certainly overcharge you with felony possession with intent to distribute, and you will definitely need counsel to fight the charges. Many DA's, and even many judges, are simply unaware of the law in this area. Good luck!

Follow Up to a Citizen's Arrest

2009-01-19T09:02:00.002-05:00

My previous post on a citizen's arrest got me thinking, how could someone truly effect a citizen's arrest in Pennsylvania?

In Philadelphia County you can go to 34 South 11th Street, on the Municipal Court side of the building about file a Private Criminal Complaint. In the private criminal complain, you must state the facts of whatever happened and the person you accused may be prosecuted if you continue on with the process throughout court. The District Attorney's office may even adopt the prosecution if they feel it is warranted. Usually the private criminal complaint process doesn't go too far, but I have seen people convicted of criminal acts from a private criminal complaint.

Citizens Arrest of a Cop

2009-01-16T22:46:00.002-05:00

I saw a cop roll through a stop sign then run a red light. I wanted to pull in front of the cop and block his ability to move his patrol car and call 911 on my cell so that I could give this guy a ticket citizens arrest style. Can I do this?

This is a unique question. The straight answer is that I have no idea if you can give a cop a citizens arrest traffic ticket, but I would not even think about doing this. I think you would get arrested or get your ass kicked for even trying to do this.

My kid used to go to a school that shared a building with a police station. There is one handicapped spot at the building. One day I saw an overweight officer park in the handicapped space and i wanted to say something to the officer. I was disgusted, but I didn't say anything because I was scared of what would happen to me.

Second Chances For Second Time Offenders?

2009-01-16T13:15:00.002-05:00

"If I got an underage gambling charge which is considered a disorderly person's offense in the state of New Jersey will I be ineligible for the ARD program in Pennslyvania?"

ARD stands for Accelerated Rehabilitative Disposition, and it is a program for first-time offenders in relatively minor cases. The District Attorney controls who gets into the program, but if an individual is accepted and meets all of the conditions of the program (paying court costs, staying out of trouble for a particular amount of time, etc...), then the case will be dismissed and there will be no criminal conviction.

The question here involves someone who has a prior conviction. I say this to the questioner, and to anyone in his or her position:

You are not automatically disqualified by having this very minor prior contact. In some situations, I have been successful in persuading the DA to give someone a second chance with ARD. However, there are no guarantees, and your lawyer will need to put together a compelling mitigation package for the DA's review.

Statutory Sexual Assault

2009-01-12T19:02:00.001-05:00

"My 17 year old son had sex with a 14 year old girl. Can he be charged with a felony? What are the statutory rape laws in Pennsylvania?"

This is not statutory rape (statutory sexual assault). The statute can be found at Title 18 Section 3122.1 which states in relevant part, "a person commits a felony of the second degree when that person engages in sexual intercourse with a complainant under the age of 16 years and that person is four or more years older that the complainant."

As long as the 14 year old girl admits that she voluntarily consented to sex with your son, then he is not properly charged with any sort of felony. In fact, I do not believe that any criminal charge can be made out.

If the allegation is that the sex was NOT voluntary, then there are certainly several felony charges that are appropriate, including rape, sexual assault, and aggravated indecent assault.

State Detainers and Bail

2009-01-11T13:50:00.003-05:00

If you are on state parole and are arrested for a new crime, you will automatically be detained by the local authorities. It does not make sense to post the bail set on the new case, at least until the State Parole Board makes a determination as to whether the individual will be held pending the outcome of the new case.

The parolee is entitled to a first level detention hearing. If the person has done well on parole up to the point of the arrest, and the new arrest is minor, it often makes sense to waive the first level hearing, admit to a technical violation, and ask the hearing examiner to make a recommendation to the Board for release. As a practical matter, it often takes eight to ten weeks to get the 'green sheets' back, which is the final Board determination.

Assuming all goes well, the Board may decide to release the individual, or place that individual on an in-home detention/house arrest situation. At that point, bail must be posted on the new case for the person to be released.

Can a Judge Reject a Recidivism Risk Reduction Incentive (RRRI) Negotiated Guilty Plea?

2009-01-09T09:03:00.004-05:00

Can a Judge Reject a Recidivism Risk Reduction Incentive (RRRI) Negotiated Guilty Plea?

Just for our readers' review: an outline of the practical side of RRRI and the first batch of RRRI questions.

Generally, in Pennsylvania the District Attorney can make any deal they want to make with the defendant and the defendant's lawyer. As a matter of law, if the Judge rejects any portion of the negotiated guilty plea or adds on any conditions to the guilty plea, the defendant has the right to withdraw plea because the plea would not be that for which the defendant bargained.

The District Attorney can waive, in any plea agreement, any state mandatory sentence or an RRRI requirements. Therefore the DA can say that you will be RRRI eligible as part of the plea negotiations when in fact your are not eligible for the RRRI program. However, the Judge, can reject the RRRI eligibility in the plea deal. Just like any other type of plea negotiations, when the Judge does not give the defendant the full benefit of the bargain, the defendant has the right to withdraw the guilty plea and fight the case.

A possible follow-up question could be: If you are deemed RRRI eligible through a plea deal and you complete all of the RRRI requirements once in state custody, will the state parole board actually parole you at your RRRI parole date? I have no idea, but my guess is that they would NOT parole you at your RRRI date, but that they would parole you much EARLIER then if you were not RRRI eligible and did not do all of the requirements. The RRRI program can only lead to an earlier parole date because the course is so heavy with work, but I do not think that the state parole board will rubber stamp RRRI early parole to all defendants. Just a guess though.

New Sentencing Program Questions

2009-01-07T15:51:00.003-05:00

The new Recidivism Risk Reduction Incentive (RRRI) program is up and running, and we've gotten a few questions about it already.

See Brian's December 10 post for the basic facts of the program.

Question: Do crime victims have a say in whether a criminal defendant gets the benefit of a RRRI sentence?

Answer: Crime victims cannot prevent a RRRI sentence if the offender is eligible. However, if the Judge and the prosecutor both agree to waive an offender's ineligibility, the crime victim has the absolute right to prior notice from the prosecutor and also has the right to object to the judge. Although the judge may still impose a RRRI minimum, crime victims have the right to be heard.

Question: Can the Judge or the DA change their minds about a RRRI waiver once somebody comes up for parole?

Answer: The sentencing judge loses jurisdiction over the case thirty days after the sentencing, and in that sense, the judge can't 'take back' the RRRI minimum. However, Act 83 of 2008 provides that a judge or a prosecutor can make an argument to the parole board that a potential parolee is no longer eligible for parole at the RRRI minimum for a number of reasons, for example, if new information about a previously unknown prior conviction has come to light.

The new RRRI sentencing program is a huge benefit not only for convicted persons, but for society as a whole. It allows the taxpayers to save a whole lot of money while ensuring that only certain classes of offenders who have good behavior can get out early. As a new program, this will generate a lot of questions from the public, from criminal defendants, and their loved ones. Keep your questions coming, and we'll do our best to answer them.

Can Sex Offenders Go to the Movies?

2008-12-16T22:34:00.003-05:00

Can a sex offender go to the movies? Can a sex offender work at a movie theater? My kids want to go to the movies alone and I am afraid to let them.

There are different types of sex offenders under the law. The first is for a 10 year sex offense. A sex offender much register for 10 years and notify the state of their address. Sex offenders would be people who are found guilty of Kidnapping of minor, Luring child into motor vehicle, Institutional sexual assault, Indecent assault (M1), Incest (victim under 12 yrs.), Prostitution (relating to minors), Sexual materials (relating to minors), Sexual abuse of children,
Unlawful contact with minor, and Sexual exploitation of children.

Lifetime sexual offenses are two or more convictions for 10-year offenses as listed above, Rape, IDSI, Sexual Assault, Aggravated indecent assault, Incest (victim under 12 years), and anyone deemed to be a Sexually Violent Predator (SVP).

Since 2006, the reporting requirement has been available on the internet and is the same for all offenders. If the person is a 10 year offender then the information only stays up for 10 years, if the person is a lifetime offender it stays up for life. The information is as follows:

Name, years of birth, street address/cit/county/zip of residence, school and/or employment, photograph, physical description, vehicle information, current compliance status with requirements, whether victim is minor, description of offense, date of offense/conviction.

In addition, if you are wondering what it means to be deemed a "sexually violent predator" it is hard to say. There is a hearing before the sentencing judge, where the judge hears testimony from experts and decides if the person meets the standard under the law.

The reason I have written all of the above is to show you that all of this information is available to you as a parent online and also available to the owner/manager of the movie theater. Also, please note that some of the offenses for the 10 year registration requirement are not necessarily sexual in nature even though they are called sex offenses, like kidnapping a minor. If you were in a custody dispute and you stole your kid from your spouse, you could potentially be convict of kidnapping a minor and be forced to register as a sex offender, when you never did any sex stuff to any kid. Also, as an example, if the person possessed pornography of young kids, that is not at all like raping a 16 year old. I have done several svp hearings and the experts will say on the stand that the disordered that makes someone svp is distinct and varies among people based on the age of the victim.

Therefore, I would check out who the person is on the internet and find out what they did before getting too nervous.

But Judge, I didn't refuse to take let the cop take my blood!

2008-12-11T17:12:00.003-05:00

I had a conversation with an old friend of mine, who is a distinguished Philadelphia criminal defense lawyer, and we were talking about the assertion that if you are physically unable to consent to a blood test, can the police deem the lack of consent a refusal? Have you seen anyone ever do this motion to suppress the refusal?

My understanding of the law in DUI (Driving Under the Influence) law in Pennsylvania where you are charged with DUI as a refusal, you can argue through a motion that the Commonwealth not be permitted to proceed under the third tier as a refusal case, but instead can only proceed as a first tier general impairment.

This decision is as to whether the refusal is legitimate, is for the Judge to decide at the motion. Two new recent cases have come down that show the direction of the law in Pennsylvania, but if the DUI is what caused the inability to consent, the case law seems to suggestion that the refusal will not be precluded from evidence at trial.

For example, if you are in a car accident, that you caused, and the cop can't get your blood because you are incapacitated, that can be deemed as a refusal. However, if you are in police custody and the cop is taking you to the hospital to have your blood take and the cop is in an accident while driving you to get your blood drawn, and as a result of the cop's accident, you can't consent to give your blood, this is not a refusal. However, I am not at all certain about this answer.

As an aside, I recently had a case where my client did not speak english and could not consent be he can't understand english and can't read and write. I was read to do the motion and the Commonwealth made me an offer to make it a lesser tier so I do not get to do the motion. The client was happy.

I hope that answers your question grand pooba.