Lehigh County Criminal Lawyer

Under 75 Pa.C.S.A. § 1519, the Department of Transportation must recall the operating privilege of any person who is incompetent to drive a motor vehicle. The recall is for an indefinite period until satisfactory evidence establishes that the person is competent to drive. The department must suspend the operating privileges of any person who refuses or fails to comply with the requirements of the incompetency statute until the person complies in the person's competency to drive is established. This person/driver has the right to be represented by a Lehigh County criminal defense lawyer.  

If the Department has cause to believe that a licensed driver or applicant may not be physically or mentally qualified to be licensed, the department may require the applicant or driver to undergo one or more examinations in order to determine the competency of the person to drive. In order to make this determination, the department may require the person to be examined by a physician or a licensed psychologist designated by the department, or may require the person to undergo an examination by a physician or a licensed psychologist of the person's choice (at the expense of the individual). 

Vision qualifications may be determined by an optometrist or ophthalmologist. If the department designates the physician or licensed psychologist, the licensed driver or applicant may, in addition, forward a written report to the department by a physician or a licensed psychologist of the drivers or applicants choice. The department is required to appoint one or more qualified persons to consider all medical reports and testimony in order to determine the competency of the driver to drive. 

Reports received by the department for the purpose of assisting it in determining whether a person is qualified to be licensed, and reports of examinations author rise to under Section 1519, or for the confidential use of the department and may not be divulged to any person or used as evidence in any trial, except that the reports and statistics and evaluations used by the department and determining whether a person should be required to be examined must be admitted in proceedings under section 1550. Appeals of a recall or suspension under this provision are governed by 75 Pa.C.S.A. §1550, and judicial review is limited to whether the person is competent to drive in accordance with the provisions of the regulations promulgated under 75 Pa.C.S.A. § 1517. A physician's medical report can be sufficient by itself to satisfy the department's burden of proving that a driver suffered from a medical condition that rendered him or her incapable of safely operating a motor vehicle. The department is not required to present medical testimony in addition to the report. 

18 Pa.C.S. §4304 covers the crime of Endangering Welfare of Children.  This is a charge that covers a wide range of conduct but most Lehigh County criminal lawyers would agree that it is frequently "overcharged".  It can either be charged as a first degree misdemeanor or a third degree felony, depending on whether the actions constituting the crime involved a "course of conduct".  The first definition of the offense is,

A parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support

The second definition is,

A person commits an offense if the person, in an official capacity, prevents or interferes with the making of a report of suspected child abuse under 23 Pa.C.S. Ch. 63 (relating to child protective services).

There is no constitutional right, federal or state, to a preliminary hearing. Rather, a defendant's right to a preliminary hearing is conferred by the Rules of Criminal Procedure. Pa. R. Crim. P. 141. 

In general, however, there is a preliminary hearing in your case where you will have a right to hear the evidence against you and be represented by a Lehigh County criminal lawyer.  Recall that the preliminary hearing is not a trial. The principal function of a preliminary hearing is to protect an individual's right against an unlawful arrest and detention. At this hearing the prosecution bears the burden of establishing at least a prima facie case that a crime has been committed and that the accused is probably the one who committed it. Pa. R. Crim. P. 141(d). It is not necessary for the prosecution to establish at this stage the accused's guilt beyond a reasonable doubt. In order to meet its burden at the preliminary hearing, the prosecution is required to present evidence with regard to each of the material elements of the charge and to establish sufficient probable cause to warrant the belief that the accused committed the offense.  

At this hearing the Commonwealth bears the burden of establishing at least a prima facie case that a crime has been committed and that the accused is probably the one who committed it. Commonwealth v. Prado, 481 Pa. 485, 393 A.2d 8 (1978); Pa.R.Crim.P. 141(d).

If you "beat" a preliminary hearing, it means that the Commonwealth has failed to establish a prima facie case.  But, "A finding by a committing magistrate that the Commonwealth has failed to establish a prima facie case is not a final determination, such as an acquittal, and only entitles the accused to his liberty for the present, leaving him subject to rearrest." Commonwealth v. Hetherington, 460 Pa. 17, 22, 331 A.2d 205, 208 (1975)

Cross-examination is ordinarily the examination of a witness by a party who is opposed to the party who first called that witness. So, for example, if the prosecution calls a police officer first to testify, when the defendant's Lehigh County criminal lawyer asks questions of the police officer, that police officer would be under cross examination a want of prejudice would cure it . This was outlined in 1987 in the case of Commonwealth v. Erie.

The right of cross examination extends beyond the subjects to which the witness testifies on direct examination, and includes the right to examine a witness on any fact tending to refute inferences or deductions arising from matters testified to on direct examination. A defendant places his reputation for honesty at issue merely by taking the stand, and the defendant's credibility may be impeached by reputation evidence. The rationale for this impeachment rule is that if a defendant offers himself as a person worthy of belief, the jury has a right to know what kind of man he is as an aid in assessing his credibility. 

The scope of cross-examination is largely within the discretion of the trial judge, and in setting the limits of cross-examination the trial court may consider the extent that a jury would be confused by testimony. Thus, the trial court may limit the scope of cross-examination to prevent repetitive inquiries and cumulative testimony. Even if the courts ruling is erroneous, the error will not be a ground for reversal unless it results in an "apparent injury". 

Cross-examination is generally limited to matters brought out on direct examination. However, an exception exists when the cross examiner is seeking to show bias on the part of the witness. Whatever tends to show the interest or feeling of the witness in a cause is competent, because the right to confront a witness includes the right to cross-examine a witness about possible motives to testify. For example, a defendant had a right to cross-examine the victim who was her former landlord on his allegations that she had stolen from him and a codefendant, had shut off their utilities, and that she was serving a prison sentence for having thrown a chemical at a codefendant.  It was determined to be error to preclude cross examination of a complaining about favorable treatment anticipated or received from the Commonwealth in exchange for their testimony. This is done frequently in the movies, when you have an inside rat or snitch testifying against a friend, fellow inmate, or someone else in their gang for a more lenient sentence. 

A witness may also be cross-examined about pending criminal cases when the witness' possible bias arises from hopes for leniency.  In Commonwealth v. Butler from 1987, it was determined by the Superior Court that it was reversible error to prevent the defendant from showing that a police officer's testimony was biased because he was a defendant in a civil suit alleging and unconstitutionally introduces body cavity search. A witness may be cross-examined by defense counsel as to his address and occupation, even if that elicits evidence that the witness had been incarcerated for an unrelated crime. Such evidence identifies the witness with his environment, and they also show that the testimony was affected by fear or favor growing out of his detention. Failure to allow this cross-examination is reversible error. Communications protected by privileges such as those between spouses, between attorney and client, or between a pastor and parishioner, may not be the subject of cross examination. However, the witness must be compelled to assert the privilege before the jury.

Under 18 Pa.C.S. § 3104, "Evidence of specific instances of the alleged victim's past sexual conduct, opinion evidence of the alleged victim's past sexual conduct, and reputation evidence of the alleged victim's past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim's past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence."

There is a long line of history relating to this law being established.  Essentially, a Lehigh County criminal lawyer could potentially portray the victim as promiscuous to 

If, however, your lawyer finds that past sexual conduct is still important, an evidentiary hearing will be set by the court after a motion is filed. The court then makes a determination as to the relevance of the information/evidence.  

One particular exception, however, is with prior consensual sex.  In Commonwealth v. Majorana from 1983, a Supreme Court case, the Appellant argued that the trial court erred in refusing to allow evidence of consensual intercourse between a co-defendant and the complainant which occurred two hours before the alleged rape, pursuant to the Pennsylvania's Rape Shield Law, 18 Pa. Cons. Stat. § 3104.  The trial court sentenced appellant to prison after a jury found him guilty of unlawful restraint and criminal conspiracy to commit rape. During the trial, the court refused to allow a codefendant whom the complainant accused of the rape, to introduce evidence of an act of consensual intercourse between him and the complainant said to have occurred some two hours before the alleged rape. The trial court held that the proffered evidence was evidence of "past sexual conduct" which did not raise the issue of consent and thus was barred by Pennsylvania's Rape Shield Law, 18 Pa. Cons. Stat. § 3104. The appellant court affirmed, and appellant sought review. The court reversed and remanded the appellate court's order, because the admission of such evidence was not barred. The court held that evidence of intercourse, which showed that it, and not a rape, caused objective signs of intercourse, was relevant. Furthermore, the court held that the trial court erred by not admitting at trial, because the evidence was directly relevant to negate the act with which appellant was charged, and the evidence directly contradicted the act or occurrence at issue, namely, the alleged rape.

The frustrating issue with an Underage Drinking citation is the elephant in the room with the police and judges and courts -- most people have participated in some form of underage drinking when they were younger.  BUT, you must tackle the case and the potential consequences.  Section 6308 covers underage drinking and the penalties, which include a 90-day license suspension on a first offense and, if you don't have your license yet, you will be hit with the suspension once you get it.  

Frequently, in Lehigh County, on first offenses, your Lehigh County criminal lawyer can help structure an alternative disposition.  There are a wide-range of options available, pursuant to the officer and judge's agreement, that can accomplish the end result of a dismissal or an amended charge to a disorderly conduct.  In these cases, a person charged may have to perform community service, go to safe driving classes, go to alcohol classes, or participate in some other activity to satisfy the judge.  I have had some judge's make a requirement that includes continued participation in the youth's continued athletic participation.  

If you are convicted of an underage drinking citation, you can get it expunged when you turn 21.  

It is to your advantage to look to have the matter settled short of trial.  The reason is that a trial can take a lot of time (and money) and you may have to appeal or lose.  The main purpose of an attorney experienced in underage citations in Lehigh County is "insurance".  A lawyer can help you get the best deal and, if no deal is offered, look to fight the case.  

Since the crime of rape includes the crime of indecent assault, a defendant cannot be sentenced on both if they arose from the same criminal episode. Even if a sentence of one count is suspended, the prejudice is such that the sentence must be vacated on the improperly imposed suspended sentence.  

This U.S. Supreme Court case was decided on June 17, 2013.  It tried to resolve a big issue about the method of proof that the Sixth Amendment requires to impose a mandatory minimum sentence.  It is having a ripple effect in Pennsylvania and Lehigh County.  

Primarily, this case involves mandatory sentences with respect to drug laws.  If there is an "enhancement" based on the amount of drugs, the proximity to a school or playground, or the proximity to a gun, the particular drug activity could be enhanced to a mandatory minimum and should definitely be covered with you by your Lehigh County criminal lawyer.  In Pennsylvania, currently, facts activating the mandatory minimum sentence are not an element of the crime and the prosecutor is not required to notify the defendant of the applicability of the mandatory sentencing (which is just ridiculous) and the sentencing judge shall determine the applicability of the mandatory sentence by a preponderance of the evidence.  It is my belief that the Supreme Court's case in Alleyne renders these provisions of the mandatory sentencing scheme unconstitutional.  

In Alleyne, the Supreme Court held that under the Sixth Amendment, a defendant has the right to have a jury determine beyond a reasonable doubt any fact that triggers the mandatory minimum in the sentence.  This means, that the Supreme Court believes that anything that creates/triggers a mandatory minimum must be treated as an element of the offense.  The Supreme Court also decided that the prosecutors must put the facts that create the mandatory minimum (i.e. school zone proximity) in the charging document (which makes sense).  

Again, the Supreme Court nailed it.  If a person is going to get 3 additional years in jail because of an "enhancement" based upon an alleged fact, that fact should be determined by a reasonable doubt (i.e. the distance proven to the playground) and a defendant should be notified of its applicability to prepare a proper defense.  Pennsylvania is backwards right now.  The prosecutors are arguing that the facts triggering the mandatory minimums should be "severed".  As of right now, most county courts are taking the position against "severed" elements.  

For chain of custody in tangible evidence it is important to note a few general rules. The admission of demonstrative evidence is a matter committed to the discretion of the trial court and should be argued for or against by your Lehigh County criminal lawyer, although every hypothetical possibility of tampering or identity need not be eliminated. The Commonwealth does not have to show a complete chain of custody to qualify its demonstrative evidence. It is sufficient to show evidence establishing a reasonable inference that the identity and condition of the evidence has remained the same from the time it was first received until the time of trial. 

The Commonwealth must demonstrate some reasonable connection between the proffered exhibits and the true evidence, and when the Commonwealth fails to establish a chain between the evidence being offered in the evidence seized, that evidence is not admissible. Relevant ballistic testimony and weapons are admissible despite the Commonwealth's inability to determine conclusively that the weapon introduced was the actual weapon used in the crime. For example, a weapon later discovered in a defendant's possession was properly admitted. 

Even though it could not be positively identified as the weapon used to commit the crime, it tended to prove that the defendant had a weapon similar to the one used. A weapon may be admissible even when there's no proof that it is the weapon that was actually used. All that is required before a weapon may be introduced into evidence is a sufficient foundation demonstrating circumstances justifying an inference of the likelihood that the weapon was used in the course of the crime charged.

Pennsylvania Rule Criminal of Procedure 700 to 721 involves proof of prior convictions with regards to sentencing. In the case of Jasper, the defendant's prior criminal record was introduced in the penalty phase by a Special Agent of the FBI who testified from a document prepared by the Bureau's identification division. The evidence was introduced as a business record offering competent proof of the matters asserted in them. The Agent testified that the record was compiled in the regular course of business by law enforcement authority. It was determined that there is nothing on the record to demonstrate to any degree that the FBI document was unreliable regarding the sources of information and method and time of preparation source to make the information inadmissible.

The Jasper case seems relatively reasonable and make sense regarding an official document being entered into to the sentencing to establish a criminal record. Some additional cases however begin to make the matter of prior convictions a bit more murky. When these issues arise, with respect to persons prior convictions, the court may conduct an evidentiary hearing at sentence to determine facts necessary to decide a prior record score. The defense and their Lehigh County criminal lawyer has the burden of specifically alleging invalidity of prior convictions and the Commonwealth must then establish the validity of convictions. In the case of medley from 1999, the defendant challenged the inclusion of certain North Carolina convictions in the calculation of his prior record scores. The defendant denied that the North Carolina convictions were attributable to him.  

At the sentencing proceedings, the Commonwealth presented testimony from a Berks County detective who testified that he had called the appropriate county in North Carolina and obtained the fingerprints for the person whose name, date of birth, and social security number or the same as this defendant. Copies of the fingerprints were faxed from North Carolina to Berks County. The detective took the faxed fingerprints to an expert with the Reading police department who compared to fingerprints and expressed the opinion that they were obtained from the same person. One particular judge in this matter upheld this use of hearsay testimony in light of the wide latitude afforded sentencing courts to receive evidence.  The court noted that the defendant had acknowledged that he had been arrested North Carolina. Another judge dissented on this matter and stated that he would have required proof by some form of official document from North Carolina, however this judge was overruled by the majority.