Even if entrapment cannot be proved in your Lehigh County criminal case, the police involvement may be so outrageous that prosecution will be barred on due process grounds.  Although rare, your Lehigh criminal lawyer should be ready to pounce if the police and prosecution went too far.  

In Commonwealth v. Matthews, the jury rejected defendants' defense of entrapment, and it found them guilty of attempt to manufacture a controlled substance. On post-verdict motions, the trial court arrested the judgments and found that the police conduct was so outrageous that defendants were denied due process. Subsequently, Commonwealth brought consolidated appeals. In affirming, the court found that that the police's extensive involvement in, and encouragement of, the manufacturing of methamphetamine was so outrageous as to have violated defendants' due process rights under U.S. Const. Amend. V and U.S. Const. Amend. XIV. In reaching this determination, the court emphasized that Commonwealth presented no evidence as to who had originated the idea of manufacturing methamphetamine. Moreover, the court found that it was patently apparent that defendants were extremely inept in consummating the attempted crime and were totally unable to manufacture the controlled substance despite the police's "spoon-feeding." 

The court noted that even though defendants failed to prove entrapment, the police's involvement in the criminal activity was so outrageous that prosecution was barred on due process grounds.  The court affirmed the trial court's order arresting defendants' convictions for attempt to manufacture a controlled substance because the police's conduct in encouraging and participating in the drug's manufacturing was so outrageous as to have denied defendants their due process rights, even though defendants failed to prove entrapment.

Not only does the case law authorize a sentencing court to consider any prosecuted criminal conduct, the sentencing guidelines essentially mandates such consideration when a Prior Record Score inadequately reflects a defendants criminal background. When the adequacy of the prior record score is called into question, the sentencing guidelines provide that the court "may consider at sentencing previous convictions, juvenile adjudications or dispositions not counted in the calculation of the prior record score, in addition to other factors deemed appropriate by the court. Thus, the court is able to take a broad view on all relevant factors in crafting a sentence. Your Lehigh County criminal lawyer should be aware of all of your prior's from your "rap sheet".  On the other hand, uncharged criminal conduct may not be used for sentencing purposes when the record is devoid of the necessary evidentiary link between the defendant and the uncharged prior conduct. 

In Commonwealth v. Chase of 1987, the defendant was convicted of three counts of terroristic threats. Three days after the conviction, a juror received a terroristic threat over the phone. The juror could not identify the defendant as the caller, but the trial court concluded that the defendant was the perpetrator and relied upon the conduct when imposing sentence (meaning - the judge enhanced the sentence because of the alleged conduct). The Superior Court vacated the sentence based upon the trial courts improper consideration of that conduct. 

Similarly, in Commonwealth v. Sypin from 1985, the defendant was convicted of involuntary deviant sexual intercourse and corruption of minors involving a nine-year-old boy. At sentencing, the trial court referred to the disappearance and death of other children. The Superior Court held that since the defendant had not been charged in connection with the disappearance or death of any child, the court's consideration of such incidents was improper. In Commonwealth v. Cruz, from 1979, the Superior Court further determined that a defendant could not be sentenced based on unsubstantiated accusations attributed to unnamed sources that the defendant dealt large quantities of drugs. 

The person in Pennsylvania who is allegedly a fugitive from another state may be arrested with or without a warrant. This is pursuant to 42 Pa. C.S.A. Section 9134 and 9135. For the purpose of this act, there is no distinction between detainers based on parole violations and detainers based on criminal prosecutions. The accused must then be brought before a judge or magistrate with all practicable speed for a hearing to advise the accused of the charges, to ascertain if the accused is the person charged, and, if appropriate, to set bail. This is pursuant to 42 Pa. C.S.A Section 9136. The fugitive is entitled to bail except for offenses punishable by life imprisonment or death. The fugitive must then await a Governor's warrant from the Pennsylvania Governor.  

The Governor may issue such warrants at the request of the executive authority of the state having jurisdiction.  This is pursuant to the decision in Commonwealth ex rel. Coleman v. Cuyler of 1978.  If the Governor's warrant does not arrive within 30 days of the arrest, the accused must either be released or recommitted for a period not to exceed another 60 days to await commencement of the action, as per 42 Pa. C.S.A Section 9138.  A writ of habeaus corpus filed by a Lehigh County criminal lawyer is the proper relief if the commitment is excessive.  However, when he governors warrant did not arrive within 30 days of arrest and hearing to recommit was not held until the 32nd day, the Superior Court held that the delay was minimal and the accused not entitled to relief.  This is from the case of Commonwealth v. Murphy from 1975 and also Commonwealth v. Quackenbush from 1981 where a hearing held 34 days after an arrest constituted minimal delay. A 15 day delay after the permissible 90 day did not entitle a defendant to relief when the accused was serving a sentence on an unrelated case.

Under Pennsylvania's merger doctrine, what a person is convicted of several crimes based on the same fax, the sentences for those crimes will not merge unless the crimes are greater and lesser included offenses. This all relates to Commonwealth v. Anderson, the Supreme Court of Pennsylvania case from 1994 that clarified the merger doctrine, holding that, "in all criminal cases," the same facts must support multiple convictions and separate sentences for each conviction except in cases where the offenses are greater and lesser-included offenses. 

"The same facts" means any act or acts which the accused has performed in any intent which the accused has manifested, regardless of whether these acts and intents are part of one criminal plan, scheme, transaction, or encounter, or multiple criminal plans, schemes, transactions, or encounters. For example, it does not matter for purposes of merger whether one records a defendant's striking a customer and kidnapping him as one encounter or as two encounters, because the same facts – the defendant struck the victim with a gun – may be used to satisfy the force requirements of at least two crimes, kidnapping and aggravated assault, and the sentences for each crime will not merge because the two crimes are not greater and lesser-included offenses.  The Anderson opinion concluded with a lengthy and tortured period in the courts merger doctrine jurisprudence, but throughout, the court's intent was to avoid giving criminals a "volume discount" on crime, much to the chagrin of any Lehigh County criminal lawyer. 

The test for determining whether offenses merge for sentencing purposes is identical to the inquiry as to whether the Fifth Amendment double jeopardy protection against multiple punishments for the same offense has been violated. As announced in Blockberger v. United States, when the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.  TheBlockberger test depends only on a comparison of the elements of the crimes charged, not on the similarity are even the identity of the evidence introduced at trial to establish the commission of the crimes. Only when all the elements of one crime are also elements of the other may they be classified as the "same offense" for purposes of merger. 

Applying this test, the Anderson court concluded that the elements of aggravated assault were subsumed in the elements of attempted murder. The court stated, "The act necessary to establish the offense of attempted murder – a substantial step towards an intentional killing – includes, indeed, coincides with, the same act which was necessary to establish the offense of aggravated assault, namely, the infliction of serious bodily injury. Likewise, the intent necessary to establish the offense of attempted murder – specific intent to kill – is greater than and necessarily includes the intentional, knowing, or reckless infliction of serious bodily injury, the intent required foraggravated assault… In as much as aggravated assault, the lesser offense, contain some, but not all the elements of the greater offense, attempted murder, the two offenses merge for purposes of sentencing."

Preliminary arraignment procedures are governed by the Rule of Criminal Procedure 540. At the preliminary arraignment, the issuing authority must give a copy of the complaint to the defendant. If the defendant was arrested with a warrant, the issuing authority must also provide copies of the warrant and supporting affidavits, unless they are not available at the time of preliminary arraignment, in which event they must be provided no later than the first business day after the preliminary arraignment. If the defendant was arrested without a warrant, the defendant may not be detained unless the issuing authority makes a determination of probable cause. The issuing authority must read the complaint to the defendant, but must not question the defendant about the charges. 

The issuing authority must also inform the defendant: 1) of the right to secure counsel of choice in the right to assigned counsel; 2) of the right to have a preliminary hearing; and 3) if the offense is bailable, of the amount of bail demanded and of the types acceptable under the Rules of Criminal defendant, the issuing authority must fix a day and hour for the preliminary hearing not less than three no more than 10 days after the preliminary arraignment, unless extended for cause shown.  The presiding judicial officer at a preliminary arraignment may not reduce or modify the original charges without the consent of the Commonwealth. 

Unless the preliminary hearing is waived by a represented defendant, the issuing authority must fix a day and hour for the preliminary hearing not less than 3 nor more than 10 days after the preliminary arraignment, unless extended for "cause shown".  The issuing authority may fix an earlier day at the request of the defendant or counsel, with the consent of the complainant and the attorney for the Commonwealth (the "prosecutor"). The issuing authority must then give the defendant notice of the time and place of the preliminary hearing. After the preliminary arraignment, if the defendant is detained, the defendant must be given an immediate and reasonable opportunity to post bail, obtain counsel, and notify others of the arrest. This opportunity usually consists of permitting a defendant to telephone a Lehigh County criminal lawyer, friends, relatives, or bail bondsman. 

If the defendant does not post bail, the issuing authority will commit the defendant to jail as provided by law. If the monetary condition of bail is set, the issuing authority must accept bail at any time prior to the return of the docket transcript to the Court of Common Pleas. Under Rule 540, the issuing authority may conduct the preliminary arraignment by using two-way simultaneous audio-visual communication. When counsel for the defendant is present, the defendant must be permitted to communicate fully and confidentially with defense counsel immediately prior to and during the preliminary arraignment. Because the use of audio-visual communication to conduct the preliminary arraignment is at the issuing authority's discretion, an issuing authority may order that a defendant appear in person for arraignment. The defendant who is represented by counsel at the preliminary hearing may, at that time or later, waive  the preliminary hearing. A defendant who is not represented by counsel, however, may not waive the preliminary hearing at the preliminary arraignment, although the defendant reserves the right to do so later.

This is the case regarding Commonwealth v. Naranjo of 2012 regarding the sufficiency of evidence any possession of an instrument of crime with the defense of self-defense. A Lehigh County criminal lawyer would call these crimes "PIC" for short.  In this case, the defendant appealed his judgment of sentence from the trial court after a jury convicted him of possession of an instrument of crime, but acquitted him of murder. The defendant claimed the evidence wasn't sufficient to support his conviction, or a jury acquitted him of murder after he asserted a claim of self-defense, making it legally prohibited under Commonwealth v. Gonzales for the court to victim of the possession of instrument of crime. In Gonzales, the Supreme Court held that the defendant deployed his weapon in self-defense, and therefore, did not commit a crime with his weapon. Because no other evidence sufficient to support a finding of criminal intent was presented at trial, Gonzales could not be convicted of a possession of an instrument of a crime. 

The Superior Court found that the Commonwealth presented evidence apart from homicide charges, which demonstrated an intent to employ his weapons criminally. Evidence was presented that showed that the defendant had an ongoing dispute with the victim. After a number of verbal exchanges, the defendant agreed to meet the victim on a street corner at approximately 5 a.m. The victim informed the defendant that he was a double black belt, so the defendant armed himself with three different weapons: a metal ruler with a makeshift handle made of bandages, a pair of scissors, any multipurpose tool that contained a pocket knife. The defendant also wore a scarf over his face. 

After the victim taunted the defendant based on the weapons he had brought, the two men began to fight. The defendant claimed that he struck the victim in the chest with the scissors after the victim assaulted him. This Superior Court in this case found that the trial court specifically instructed the jury that if they found the defendant acted in self-defense, they could not return a conviction for possession of an instrument of a crime. The court determined that since the jury convicted the defendant of possession of instrument of a crime, it can be assumed that the jury rejected the defendants claim of self-defense, and therefore, Gonzalez does not apply. 

The court further found that ample evidence was presented to show that the defendant intended to use the weapons he brought with him to engage in mutual combat with the victim, not just protect himself in the event that he was attacked. The court noted that the possession of an instrument of a crime is a inchoate crime and only requires that the defendant possess an instrument or weapon for any criminal purpose. Taking three separate weapons to agreed-upon location and assuming a fighting stance while holding the weapons, before ultimately striking the victim with one of the weapons, is sufficient to demonstrate this criminal purpose. The court noted that it is legally possible to have possessed weapons with the intent to fight the victim, without intending to causes death, therefore lacking the malice necessary to be convicted of murder, and could likewise have not been criminally reckless for the purposes of an involuntary manslaughter conviction. In this circumstance, a sufficiency claim must fail. The court affirmed the trial court's judgment of sentence.

This is the section of sentences for being released for medical reasons which can find in 61 P.S. § 81. If you are currently incarcerated, you should first consult with a Lehigh County criminal lawyer to see if you can be released from prison for medical reasons.  It essentially states that if there is a record of proof that a convict is seriously ill, in that it is necessary that he or she be removed from the penal institution, the court shall have power to modify it sentence, impose a suitable sentence, or modify the order of confinement. If a person recovers however, the court shall recommit him or her back to the institution from which he or she was removed.  

When he defendant/convict challenges the denial of a petition for modification of sentence for medical reasons, they do not challenge the validity of the conviction or sentence. There is no remedy under the Post Conviction Relief Act and the petition is not subject to the eligibility or timeliness requirements of that statute. Any relief sought by a prisoner pursuant to the statute is not subject to the time limits after sentencing within which post sentence motions must be filed. Therefore, the challenge to the denial can occur at any time. 

In Commonwealth v. Deaner from 2001, the defendant raised numerous allegations that he was receiving in adequate medical care. However, the defendant was not able to allege that his current facility lacked the resources to treat him. The court found that the defendant failed to allege that his illness compromises the collective health of the institution holding him. The court decided that the defendant had not made a substantial claim under Section 81 for modification of his sentence or transfer.  The courts have determined that relief is not limited to new medical conditions which arise after sentencing. Prisoners may seek relief under the statute for pre-existing conditions. Generally, this is the case where a pre-existing condition increases in severity or, once incarcerated, it is determined that they are a danger to the facility or the facility cannot treat them properly. In Commonwealth v. Tuddles, from 2001, the defendant alleged that he was not receiving the resources and the help necessary to treat him. The court determined that the defendant's allegations do not go beyond the adequacy of his treatment. The court determined that the defendants soul complaint is neglect in treatment and medication, which is capable of being remedied without a transfer. The court determined that judges may not indiscriminately denominate the place for prisoners; statutes and regulations established the presumptive place of confinement. 

Section 81 provides a court with authority to transfer an inmate to some other suitable institution where proper care may be administered. The defendant in this case however was not seeking a transfer; he was seeking house arrest or permission to leave the jail unattended for medical appointments. The court stated that because Section 81 is clearly meant to recognize the authority to transfer from one institution to another, the defendants petition was not subject of a proper Section 81 claim. 

The court further found that no abuse of discretion in the denial of relief under this section was made without a hearing. In Commonwealth v. Dunlavey of 2002, the court determined that the mere fact that the defendant suffers from a "serious illness" is not sufficient to allow relief under 61 PS 81. Rather the requirement of the statute is a "serious illness" and a showing that it is "necessary" to leave the prison to receive medical care, either because the inmates disease cannot be treated in prison or as a means of quarantine. The court determined that the appropriate standard to be applied is whether an inmate who has become seriously ill while in prison should be temporarily released to receive the necessary medical treatment.  In this case, the defendant had not alleged that the disease that he suffered from could not be treated in prison. The record showed that the defendant, while suffering from many illnesses, was receiving treatment for all of them in the prison system. At the hearing, the defendant's dentist testified as to the defendants medical condition. He described the successful treatment of defendants cancer, which involve various operations and follow-up care. The dentist informed the court that defendants cancer has been in remission for the last five years. The cross examination by the defendants attorney did not reveal anything lacking from the prison's systems treatment of this illness.

A pre-sentence report or pre-sentence investigation ("PSI") falls under the Pennsylvania Rules of Criminal Procedure 702 and 703.  Rule 702(a) requires that the sentencing judge place on the record the reasons for dispensing with the pre-sentence investigation report if the judge fails to order a presentence report in any of the following instances: a) where incarceration for one year or more is a possible disposition under the applicable sentencing statutes; B) where the defendant is less than 21 years old at the time of conviction or entry of a guilty plea of guilty; or c) where the defendant is a first offender in that he or she has not heretofore been sentenced as an adult. 

Case law has found a pre-sentence report constitutes part of the record and speaks for itself. It is presumed to be valid and need not be supported by evidence unless and until it is challenged by the defendant. This is always a tricky path to follow as many pre-sentence reports are not favorable to the defendant as they're prepared by a biased probation department. A sentencing judge must either order a PSI report or conduct sufficient pretrial inquiry such that, at a minimum, the court is apprised of the particular circumstances of the offense, not limited to those of record, as well as the defendants personal history and background.  Your Lehigh County criminal lawyer would also assist in developing mitigating factors that would be favorable to a more lenient sentencing.

Some judges will ask on the record if a defendant wishes to waive their PSI report. While the extent of the presentence inquiry may vary depending on the circumstances of the case, a more extensive and careful investigation is clearly called for in felony convictions, particularly where terms of confinement are contemplated. Necessary elements of a PSI report or set forth in the American Bar Association standards. 

The PSI may be dispensed with only when the necessary information is provided by another source. In this case, the trial court dismissed the need for a PSI report ostensibly because it was aware of the evidence produced at trial and had to find certain information through an oral colloquy. On the facts of record, the court found both considerations even when considered together, insufficient basis for the trial court's failure to order a PSI report. In the case of Goggins from 2000, the court failed to explore the defendants social and family history beyond his living arrangement with his mother, and ignored entirely his potential for vocational training. Given the evidence of record that the defendant was apprehended while making use of his time to scroll graffiti on the wall of a house, the court found the latter inquiry imperative to any serious attempt to avoid recidivism. Moreover notwithstanding the defendants cleared mission of prior involvement with the juvenile system, the court failed to reckon the treatment he had received or his response to treatment. In view of the potential length of defendant sentence, the Superior Court determined that such a cursory consideration was disconcerting. Thus despite what the trial court felt was familiar already with the circumstances surrounding the defendants offense, the Superior Court found its decision not to order a PSI report a source of reversible error in sentencing.

If you are facing a robbery charge in Lehigh County, the burden of the prosecutor is to show the following:

A person is guilty of robbery if, in the course of committing a theft, he:

      (i) inflicts serious bodily injury upon another;

      (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;

      (iii) commits or threatens immediately to commit any felony of the first or second degree;

      (iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury;

      (v) physically takes or removes property from the person of another by force however slight; or

      (vi) takes or removes the money of a financial institution without the permission of the financial institution by making a demand of an employee of the financial institution orally or in writing with the intent to deprive the financial institution thereof.

Bodily injury or the threat of it is a key element that your Lehigh County criminal lawyer should advise you about.  18 Pa. Cons. Stat. § 3701(a)(1)(iv) provides that a robbery occurs when in the course of committing a theft the defendant inflicts bodily injury upon another, or threatens another with or intentionally puts him in fear of immediate bodily injury, and it is graded as a felony of the second degree with a penalty of up to 10 years imprisonment. Under 18 Pa. Cons. Stat. § 3701(a)(1)(v), a robbery occurs where in the course of committing a theft the defendant physically takes or removes property from the person of another by force, however slight, and it is graded as a felony of the third degree with a penalty of up to seven years imprisonment.

An important case is Commonwealth v. Brown, 506 Pa. 169 (Pa. 1984).  In this case, the defendant was convicted of robbery, a felony in the third degree. The lower court affirmed the conviction, and defendant again sought review of the decision. Defendant contended that the evidence at trial was insufficient to establish that he had committed a robbery by force however slight pursuant to 18 Pa. Cons. Stat. § 3701(a)(1)(v). The court held that any amount of force applied to a person when a theft was committed was within the scope of robbery under § 3701(a)(1)(v). The degree of actual force was immaterial, so long as it was sufficient to separate the victim from his property in, on, or about his body. The force that defendant used in when he took the purse from the victim's arm was a harmful touching of the person, accompanied with sufficient force to compel her to part with the conscious control of her property, and was, therefore, sufficient to support a robbery conviction under § 3701(a)(1)(v).

What is an Alford Plea In Lehigh County

You may recall that the West Memphis 3 entered an Alford Plea recently to ensure their return to society.  Many people criticized their decision and they struggled with such a proposition.  Some, however, said they should take the damn plea and get on with life after a decade-plus behind bars.  An Alford plea is "when a defendant proclaims his innocence but agrees to be sentenced for the crime(s) he has been charged with.  The prosecution must have sufficient evidence that the defendant committed the crime.  This evidence must be presented in court and acknowledged by the defendant before the court will accept the Alford plea."  Essentially, you maintain your innocence, but agree to a conviction.  

It differs slightly from a "no contest" plea is "when the defendant does not enter a plea but agrees to accept the punishment for crimes they are charged with.  The guilt or innocence of the defendant is unknown.  Nolo contendere is also known as a “no contest” plea."  

The plea developed from North Carolina v. Alford, a U.S. Supreme Court case.  In this case, the Supreme Court handed down the decision that "there are no constitutional barriers in place to prevent a judge from accepting a guilty plea from a defendant who wants to plead guilty while still protesting his innocence."

In Lehigh County, most of the time, an Alford plea is not used when a Lehigh County criminal lawyer is involved.  The preference is, of course, a guilty plea as the judge's want to hear your proclamation (and hopeful apology) of guilt and responsibility.  However, sometimes there are strategic, not just principled reasons, for a no-contest plea, including whether there is a pending civil lawsuit.