Lehigh County Criminal Lawyer

A person who pleads guilty or is found guilty can file a PCRA motion seeking relief via an appeal.  Generally, this relief involves a new trial.  First, however, a hearing must be held to determine if ineffective counsel by a Lehigh County criminal lawyer was provided (which is the main reason for a PCRA).  

The Supreme Court, in Commonwealth v. Jones, found,

A Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq., petition, including a second or subsequent one, must be filed within one year of the date the petitioner's judgment of sentence became final, unless he pleads and proves one of the three exceptions outlined in 42 Pa.C.S. § 9545(b)(1). A judgment becomes final at the conclusion of direct review by the Supreme Court of Pennsylvania or the United States Supreme Court, or at the expiration of the time for seeking such review. § 9545(b)(3). The PCRA's timeliness requirements are jurisdictional; therefore, a court may not address the merits of the issues raised if the petition was not timely filed. The timeliness requirements apply to all PCRA petitions, regardless of the nature of the individual claims raised therein. The PCRA squarely places upon the petitioner the burden of proving an untimely petition fits within one of the three exceptions. The PCRA further requires a petition invoking one of those exceptions to be filed within 60 days of the date the claim could have been presented. § 9545(b)(2). On appeal from the denial of PCRA relief, the Supreme Court of Pennsylvania decides whether the findings of the PCRA court are supported by the record and free of legal error.  Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012)

2013 (about a year ago) represented a big change with respect to hearsay at a preliminary hearing.  The Bulletin states, 

"Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established. Hearsay evidence shall be sufficient to establish any element of an offense, including, but not limited to, those requiring proof of the ownership of, non-permitted use of, damage to, or value of property."  

What this means is that in a retail theft case, for example, your Lehigh County criminal lawyer cannot object to hearsay of the testimony if the owner of the store or the loss prevention officer does not appear.  But, the good thing is that the hearsay rules still apply for trial.  

Remember that hearsay is an out of court statement admitted for the truth of the purpose asserted.  Now, under this rule, the store owner does not have to be there to say, "I saw the person take the items without paying."  An officer can testify to that hearsay at the preliminary hearing only.  But, they must also have additional, non-hearsay evidence to establish a prima facie case.  Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d 172 (Pa. 1990)

The theory behind this rule change is that the Commonwealth can establish a prima facie case (meaning -- it is "more likely than not") that the crime occurred.  This is the standard at the preliminary hearing.  But, at trial, it is beyond a reasonable doubt.  In addition, the rules of evidence are back on.  The alleged victim must testify and state their testimony on the record under oath and be cross-examined by your attorney.  Your 6th Amendment right to confront the witness is still preserved.  

One final note -- this change is limited.  It does not include assault, drug cases, etc.  Your Lehigh lawyer better be aware of what can and cannot be objected to and fight accordingly.  

In a morbid case, the Superior Court vacated appellant's judgment of sentence as it related to the costs for the assistant district attorneys' and county detectives' salaries only and affirmed in all other respects. Commonwealth v. Garzone, 2010 PA Super 57 (Pa. Super. Ct. 2010)  Now, this was only for the salaries (or portion thereof).  It was not for the other costs of prosecution (i.e. lab fees) which should be enumerated to you by your Lehigh County criminal lawyer.  

So, why is it morbid?  The Appellant had been a licensed funeral home director. Appellant's convictions arose from his participation in a scheme of illegal harvesting and sale of human body parts from corpses, as well as filing false forms seeking reimbursement from the government for providing funeral services for which he had already been paid. As part of appellant's sentence, the trial court directed him to pay $ 90,028, which was comprised of $ 84,723 for the salaries of the assistant district attorneys and county detectives, as well as $ 5,305 for the grand jury costs. On appeal, appellant contended that the trial court did not have the authority to order him to pay the expenses associated with the district attorneys' salaries, the county detectives' salaries, or the grand jury costs. The court agreed that it was error for the trial court to direct appellant to pay the assistant district attorneys' and county detectives' salaries as, given the plain meaning of 16 Pa. Stat. Ann. § 7708, as well as 16 Pa. Stat. Ann. § 1403, and an examination of case law, the salaries were not necessary expenses incurred by the district attorney's office in connection with appellant's prosecution.

It is a novel argument by the Commonwealth to save/get more money.  The Superior Court of Pennsylvania has consistently followed the general, American rule that there can be no recovery of attorneys' fees from an adverse party, absent an express statutory authorization, a clear agreement by the parties or some other established exception. Certainly, as a matter of common parlance, attorneys' fees may be considered a form of cost or expense to a litigant. As noted, however, a statutory provision must be explicit in order to allow for the recovery of that particular form of expense.

I want to discuss a case from the Pennsylvania Superior Court of Commonwealth v. Martinez from 2007. Commonwealth v. Martinez, 2007 PA Super 33 (Pa. Super. Ct. 2007)  This case relates to information relied upon at sentencing by the judge. In this particular case, it was argued that the letters presented to the sentencing court by the defense attorney, on behalf of defendant, are public judicial documents for which the news media has a presumption of access. 

The argument was that it does not matter whether or not the documents were formally docketed. The sentencing court contended that the letters are "akin to a presentence investigation report". Presentence reports or "confidential and not of public record". This is based upon the Pennsylvania Rule of Criminal Procedure 703(a). There is no dispute that the letters were not made part of the presentence investigation report in the present case, but the rules simply do not discuss letters on behalf of the defendant. In this case, it was determined that pretrial materials submitted have an underlying confidentiality basis and are reflective of the Pennsylvania Supreme Court's recognition that the materials contained therein should be afforded presumptive confidentiality.

In determining a person's competence to stand trial, there are host of factors that may be evaluated. First, it's the Commonwealth's burden to offer expert testimony to the effect that an individual is competent beyond a reasonable doubt. The Commonwealth must show that the evidence is sufficient from their expert to prove that a person had the capacity to stand trial. A non-expert may express a general opinion as to the mental capacity of an individual, as expressed in Commonwealth v. Knight of 1976.  This specifically goes to an individual who knows the defendant and has personal experience with them. 

Evidence of state of mind is equally important in determining the competence to stand trial.  If a defendant or their Lehigh County criminal lawyer believes that they are not capable of standing trial, they must come with significant evidence.   In Commonwealth v. England from 1977, the court determined that it has been the law for a long period of time in the Commonwealth that an accused person statements to third persons maybe offer to indicate the mental state of the accused where his sanity is an issue.  In this context the accused made comments and they may be evaluated in the same manner as his nonverbal behavior and can be determined to being reflective of the condition of his mind. The court stated that you can recognize that one's verbal conduct may be just as illuminating upon the state of mind of the declarant as his nonverbal conduct, and that text writers have recognized the wisdom of excluding irrational expressions which are offered to show mental incompetence, regardless of their form, from the constraints of the hearsay rule.  

The court in Commonwealth v. Young from 1980 stated that it seems clear that the law in Pennsylvania is that evidence of lay witnesses alone can be sufficient to establish the sanity of a defendant who has offered expert testimony as to his insanity. The Commonwealth me meet its burden by testimony concerning the defendants actions, conversations, and statements at the time of the crimes from which the jury can infer that he knew what he was doing when he committed the crimes and that he knew that his actions were wrong.

I previously blogged about the general elements of Endangering the Welfare of Children.  Now, I want to go into some cases that are important and that a Lehigh criminal lawyer should know.  

First, know that a failure to act may equate to a parent "knowingly" endangering the welfare of their child, pursuant to Commonwealth v. Cardwell, 357 Pa. Super. 38 (Pa. Super. Ct. 1986).  In this case, Appellant mother was convicted in the municipal court of endangering the welfare of her child in violation of 18 Pa. Cons. Stat. Ann. § 4304, based on evidence that she had learned that her husband had sexually abused her daughter over a period of years and was continuing to do so, yet she took no meaningful action to end the situation for at least nine months. On an appeal from the denial of a writ of certiorari by the court of common pleas, the court affirmed and held that the crime of endangering the welfare of a child was a specific intent offense that required a knowing violation of a duty of care; however, evidence of intent could be derived from omission or from acts so feeble as to be ineffectual. The court found that appellant's response consisted of writing two notes, which clearly showed her awareness of the situation, and making some indefinite preparations to leave. Appellant failed to report the abuse, to stop the abuse, or to remove her daughter from the situation. The court held that a parent's duty to protect her child required affirmative performance to prevent harm and that appellant's failure to act amounted to knowing endangerment.

Here is another case regarding a parent where their 13 year old become pregnant.  The commonwealth appealed from the order that granted appellants' motion in arrest of judgment that followed their conviction of endangering the welfare of a child under 18 Pa. Cons. Stat. Ann. § 4303. The court affirmed. The court held that the evidence, viewed in a light most favorable to the commonwealth, with the proper inferences drawn in the commonwealth's favor, was not sufficient to prove that the appellees endangered the welfare of their child. The court held that § 4303 required that a parent intentionally violate a duty of care, protection, or support. The court held that merely establishing that appellees' 13-year-old child had engaged in sexual activity with her boyfriend and had become pregnant was not sufficient to establish a violation of the statute by appellees. The court held that even the parents' knowledge that their child was sexually active was not sufficient to impose criminal responsibility under § 4303, which was a specific intent crime. The record indicated appellees had not condoned or encouraged the activity, and appellee mother was aware of the sexual activity but was encouraging marriage.  Commonwealth v. Campbell, 398 Pa. Super. 116 (Pa. Super. Ct. 1990)

The intent element is critical gin in the case of Commonwealth v. Fewell from 1995.  In this case, Appellant was convicted by a jury of endangering the welfare of a child under 18 Pa. Cons. Stat. § 4304. Appellant's four-month-old son died of asphyxiation after appellant covered his head in a plastic grocery bag, which was initially ruled an accident by the police. Appellant later confessed to her psychiatrist that she intentionally placed the plastic bag over her son's head to stop him from crying. Appellant later repeated her confession to the police and was arrested and charged. Appellant contended that the trial court erred when it denied her pre-trial motion for habeas corpus relief, when it admitted her statement to the police at trial prior to the state's proof of corpus delicti, and when it allowed the psychiatrist to testify in violation of the psychiatrist-patient privilege. The court affirmed the trial court's decision and ruled that because appellant was found guilty of the crime any defect in the preliminary hearing was immaterial. The court also held that although the psychiatrist violated appellant's privilege, the error was harmless because the psychiatrist 's testimony was merely cumulative of appellant's confession to the police, which was properly admitted.  Commonwealth v. Fewell, 439 Pa. Super. 541 (Pa. Super. Ct. 1995)

Sometimes, your Lehigh County criminal lawyer will look to get your sentences "concurrent" rather than "consecutive".  This is to your time is minimized in jail or on probation.  Concurrent sentences are authorized, but are normally at the discretion of the sentencing judge at the Lehigh County Court of Common Pleas.  The standard in Pennsylvania is that trial judges are vested with broad discretion in sentencing, and a sentence will not be reversed absent an abuse of that discretion. In order to constitute an abuse of discretion, a sentence must either exceed statutory limits or be manifestly excessive.

In Commonwealth v. Blood of 1986, the Superior Court found that the sentencing court did not abuse its discretion in sentencing the defendant to concurrent sentences of three to six years for burglary and two to four years for escape, even assuming the sentences exceeded the guidelines.  The Court noted that the defendant was 22 years old and had two prior felonies as a juvenile and some theft cases as an adult.  However, a psychiatric evaluation indicated that the defendant was impulsive and lacked judgement.  

In the same vein, Commonwealth v. Eckles of 1993 found that concurrent sentences were permissible for convictions on multiple counts of homicide by vehicle while DUI.  

In a divided Supreme Court, it was decided in 1978 that sentences that were not specified to run concurrently or consecutively would run concurrently as the Rule of Lenity would allow in Commonwealth v. Rice.  Along the same lines, Commonwealth v. Pristas stated that regardless of whether the defendant has started to serve his time on prior sentence or is released on bail pending disposition or an appeal, a subsequent sentence is presumed to be concurrent unless the trial court specifically directs otherwise.  Again, in Com. ex rel. Woods v. Howard, from 1977, a second sentence was deemed to run concurrent with a prior sentence unless the sentencing court expressly directs that the second sentence shall run consecutively.  

Finally, in Commonwealth v. Anwyll from 1984, the defendant received a concurrent sentence of not less than two nor more than five years imprisonment following a guilty pleat to three counts of forgery.  The court found that the sentence imposed was within the statutory limits for felonies of the second degree pursuant to 18 Pa. Cons. Stat. Ann. § 1103(2). The court also held that the sentence was not excessive and was consistent with the gravity of the offenses, the protection of the public, and the rehabilitative needs of appellant.

This is a discussion about the defense of impossibility with conspiracy. Please note that when a person is charged with conspiracy, factual impossibility does not bar nor diminish the capacity and the intent to agree to accomplish the criminal act. In the Commonwealth v. Timer, from 1990, the appellant argued that the Commonwealth's evidence was insufficient because it failed to disapprove impossibility. The crux of the argument, which appellant raised without support, is that since the undercover agent did not intend to actually sell the drugs to appellant, he and his companions could not have conspired to possess them. The Superior Court determined that the argument was wholly without merit. The Court commented, the evil against which the conspiracy law is aimed is the agreement of two or more persons to act in concert for a criminal purpose. The fact that the criminal purpose would not be accomplished as a factual matter does not bar nor diminish the capacity and the intent to agree to accomplish the criminal act. The police officers knowledge that he would not relinquish the drugs to the appellant does not present a defense to the formation of the conspiratorial agreement and the overt steps the conspirators took towards its accomplishment. 

In the case of Commonwealth v. Ohle, from 1986, the Supreme Court rejected an appellant's argument that he should have been permitted to raise the defense of impossibility to the crimes of bribery and conspiracy. The appellant argued that the factual impossibility was based on the asserted lack of power on the part of the bribe offerer to perform the desired favor. The Court again concluded that factual impossibility is not an available defense under the crimes code for conspiracy crimes.

This is a case where the district justice determined there was not a prima facie case for a DUI under 3802(a)(4) (of the old DUI statute), but there was for subsection (a)(1).  When it went to the Court of Common Pleas, the DA filed the criminal charges with the (a)(4) section back in.  The defendant put up a big fight, insisting that the charge of (a)(4) should be refiled against him so he can have another opportunity at the preliminary hearing.  The Commonwealth argued that it added the (a)(4) back in on grounds that, since the offenses were cognate, both could be charged in the information based upon the finding that prima facie evidence existed to prosecute appellant generally for driving while under the influence of alcohol.

The Commonwealth argued that Pa.R.Crim.P. 225(b) (5) does not require that the crime charged in the information be identical to that charged in the Complaint as long as the charge is cognate to the one laid in the Complaint.  Remember -- An offense is either cognate to another offense at the time the criminal conduct takes place or it is not. 

The Superior Court concluded that the Commonwealth was not required to re-arrest appellant on the charge of violating 75 Pa.C.S. § (a) (4) and again take that charge before a district justice for a determination of the existence of prima facie evidence.  The court further cited Commonwealth v. Epps, which stated, 

"At the preliminary hearing, the magistrate, at the request of defense counsel, and on the basis of no evidence indicating a taking of money, substituted a charge of attempted robbery for the original robbery charge. Nevertheless, the grand jury returned an indictment of robbery against defendant. Defendant was ultimately convicted of both charges. On appeal, defendant contended that he was denied effective assistance of counsel because his counsel failed to quash the indictment for robbery. The court affirmed defendant's convictions, finding that it was clear that the crime charged in the indictment, robbery, was cognate to, and identical with, the charge imposed at the preliminary hearing, attempted robbery. The court further found that the actions of the grand jury were not improper in returning an indictment of robbery. Moreover, it was difficult for the court to perceive how defendant's due process rights were infringed by such a procedure. Finally, the court found that because the indictment was not improper, counsel's attempt to quash would have been futile". Commonwealth v. Epps, 260 Pa. Super. 57 (Pa. Super. Ct. 1978)

This is a tough case to swallow for your Lehigh County criminal lawyer and one that they should know to fight.  Essentially, given this case, which is limited in future treatment but still has been favorably cited, they have to beat the whole DUI at the preliminary hearing.  

This is an interesting, yet scary area of the law for someone who is charged with dealing drugs pursuant to 35 P.S. § 780-113 near a playground pursuant to 18 Pa.C.S. § 6317.  This 35 P.S. § 780-113(a)(30) drug statute states, 

(a)(30) Except as authorized by this act, the manufacture, delivery, or

(a)  General rule. --A person 18 years of age or older who is convicted in any court of this Commonwealth of a violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, shall, if the delivery or possession with intent to deliver of the controlled substance occurred within 1,000 feet of the real property on which is located a public, private or parochial school or a college or university or within 250 feet of the real property on which is located a recreation center or playground or on a school bus, be sentenced to a minimum sentence of at least two years of total confinement, notwithstanding any other provision of this title, The Controlled Substance, Drug, Device and Cosmetic Act or other statute to the contrary. The maximum term of imprisonment shall be four years for any offense:

    (1) subject to this section; and

    (2) for which The Controlled Substance, Drug, Device and Cosmetic Act provides for a maximum term of imprisonment of less than four years.

 If the sentencing court finds that the delivery or possession with intent to deliver was to an individual under 18 years of age, then this section shall not be applicable and the offense shall be subject to section 6314 (relating to sentencing and penalties for trafficking drugs to minors).

Finally, one other point -- even dilapidated playgrounds are included in this definition.  For example, a simple, shoddy basketball court where kids congregate is considered a playground.