State intermediate punishment became effective on May 18, 2005 and applies to an individual in Pennsylvania and Lehigh County sentenced to a state sentence where they may be eligible for state intermediate punishment if the Department of Corrections has concluded that the individual is in need of drug and alcohol addiction treatment and would benefit from commitment to a drug offender treatment program. This is typically the case where an individual is facing a state prison sentence because of a drug addiction relating to a drug crime. However, other crimes that were committed because of drug dependency can allow a person to be eligible for state intermediate punishment. In order to be eligible, a defendant must have no history of violent behavior from either their past or present. This is 42 Pa.C.S.A. 9903. The following defendants are not eligible for state intermediate punishment: a defendant who sentence includes an enhancement for the use of a deadly weapon; a defendant who has been convicted of a personal injury crime as outlined in 18 P.S. Section 11.103 of the crime victims act, or an attempt or conspiracy to commit such a crime; or a person convicted of incest, open lewdness, abuse of children, unlawful contact with the minor, sexual exploitation of children, or Internet child pornography. 

The assessment for state intermediate punishment is performed by the Department of Corrections and takes place before sentencing, upon motion of the Commonwealth and with the agreement of the defendant. If the department believes that a defendant would benefit from a drug and alcohol treatment program, it will provide the court, the defendant, their Lehigh County criminal lawyer, and the attorney for the Commonwealth with the treatment proposal. When the court receives a Department recommendation that the defendant be placed in a drug offender treatment program, with the agreement of the attorney for the Commonwealth and the defendant, the court may sentence an eligible offender to a period of 24 months of state intermediate punishment if the court finds that: the eligible offender is likely to benefit from state intermediate punishment; public safety will be enhanced by the eligible offender's participation in state intermediate punishment; and sentencing the eligible offender to state intermediate punishment will not depreciate the seriousness of the offense. 

The court may also sentence the defendant to a consecutive period of probation as long as the total sentence does not exceed the maximum sentence imposable. The program is 24 months long and contains several components, including prison time, time in institutional and community-based therapeutic communities, outpatient addiction treatment,and a period of supervised reintegration. If the defendant is expelled from a program, he or she returns to jail or prison pending action by the court. Unlike the proceedings for termination of County intermediate punishment, the court is required to revoke a sense of state intermediate punishment, after hearing, if the court determines that the defendant was expelled from or failed to complete the treatment program.  Upon revocation of a state intermediate punishment sentence, the sentencing alternatives available to the court are the same as those available at the initial sentencing proceeding. However, the attorney for the Commonwealth is required to file notice prior to resentencing of the Commonwealth's intention to proceed under a statue requiring a mandatory minimum sentence.

A summary offense case in Lehigh County is normally tried before and issuing authority, namely a magisterial district justice. It must be tried as if it were a nonjury trial in the Court of Common Pleas. 

Immediately prior to trial, the issuing authority must advise the defendant of the charges. If there is a reasonable likelihood of a sentence of imprisonment or probation, the defendant must be advised of the right to retain a Lehigh County criminal lawyer, be given a reasonable opportunity to obtain counsel, and, if the defendant is without financial resources or is otherwise unable to hire an attorney, the defendant must be assigned counsel pursuant to Rule of of Criminal Procedure 122. 

When a defendant is under age 18 at the time of the offense, if the mandatory sentence is prescribed by a statute, the issuing authority may not conduct the trial but must move the case forward to the Court of Common Pleas. This is pursuant to Rule 454. 

The attorney for the Commonwealth, or with his consent, an attorney representing the municipality when a violation of a municipal ordinance is charged, may appear and assume the role and power of the prosecution. As the judge presiding at the summary trial, the issuing authority controls the conduct of the trial. When no attorney appears at the trial on behalf of the Commonwealth, the issuing authority may ask questions of any witness who testifies, and the affiant may request the issuing authority to ask specific questions.  When appropriate, the issuing authority may also permit the affiant to question Commonwealth witnesses, cross examine defense witnesses, and make recommendations about the case to the issuing authority

Although the defendant may not request pretrial discovery in summary cases, the constitutional guarantees found in Brady v. Maryland and its subsequent cases still apply. Theses cases involved the issues where the prosecution had withheld evidence from the defendant that would have been helpful to the defendant's defense.  

The issuing authority may not use to weigh audiovisual communication at trial unless the defendant consents or otherwise waves the right to be present. In a summary trial the same rules of evidence apply that would apply any nonjury trial. The defendant may move to suppress evidence, and request that witnesses be sequestered.

18 Pa. C.S.A. Section 905(b) states that a person is guilty of an offense if it is committed by the conduct of another person for which she is legally accountable. The person is legally accountable for the conduct of another person when, acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct, he is made accountable by the law defining the offense or he is an accomplice of the person in the commission of the offense. This comes from Commonwealth v. Bridges of 1977.  A person is an accomplice of another person in the commission of an offense if: 1) with the intent of promoting or facilitating the commission the other person to commit it or he aids or agrees or attempts to aid the other person in planning or committing it, or 2) his conduct is expressly declared by law to establish his complicity. This comes from 18 Pa. C.S.A. Section 306(c) and Commonwealth v. Scoggins of 1973. The least degree of collusion between the defendant and another is sufficient to sustain a finding of responsibility as an accomplice. In order to sustain a first degree murder conviction under a theory of accomplice liability, the Commonwealth's evidence must be sufficient to establish that the defendant/accomplice possessed the specific intent to kill. This is from Commonwealth V. Spotz of 1998.  Such a shared criminal intent between the principal and the accomplice may be inferred from the defendants words or conduct, or from attendant circumstances as explained by your Lehigh County criminal lawyer. The following evidence was sufficient and Commonwealth v. Spotz to establish the requisite specific intent to commit first-degree murder: the defendant and his accomplice cooperated together in driving the victim to a secluded area where she was shot. It was the defendant who asked her questions clearly designed to determine how long it would be before her absence would be discovered, and it was the defendant who had begun.  To be an accomplice within the meaning of the statute, a defendant must have knowledge of and participate in the specific crime charged. This comes from the case of Commonwealth v. Hackett from 1993.  

This is a post about the death penalty and it's procedure and method. Most Lehigh County criminal lawyers have never handled a death penalty case.  Under 61 P.S. section 3001 of the Death Sentence Execution Law, after the receipt of the record, unless a pardon or commutation has been issued, the Governor must, within 90 days, issue a warrant specifying a day for execution which shall be no later than 60 days after the warrant is signed. 

If, because of a reprieve or a judicial stay of the execution, the date of execution passes without imposition of the death penalty, or unless pardon or commutation has been issued, the governor is required, within 30 days after receiving notice of the termination of the reprieve where the judicial stay, to reissue a warrant specifying a day for execution, which must be no later than 60 days after the date of reassurance of the warrant. If the governor fails to comply with the requirements of the statute, any Pardon or commutation has not been issued, the Secretary of Corrections of the Commonwealth is required, within 30 days following the Governor's failure to comply, to schedule and carry out the execution no later than 60 days from the date by which the Governor was required to sign the warrant. Upon receipt of the warrant, and until infliction of the death penalty or until lawful discharge from custody, the Secretary is required to keep the inmate in solitary confinement. 

During this confinement, no person except the staff of the Department of Corrections, the inmate's attorney of record, or any other attorney requested by the inmate, and a spiritual advisor selected by the inmate, are allowed access to the inmate without an order from the sentencing court. Additional provisions of Sections 3001-3008 address the method of execution, witnesses to the execution, certification of the execution, discretionary post-mortem and disposition of the body, and the costs of the execution and post-mortem examination.

If you want to read about the history of the Pennsylvania death penalty and see that lethal injection is the current and only method used, go to the Department of Correction's History of the Death Penalty.  

The fact that a defendant is guilty of prior criminal conduct for which he escaped prosecution has long been an accepted sentencing consideration. However, this type of conduct can be used as a sentencing factor only under tightly prescribed circumstances when there is evidentiary proof linking the defendant to the conduct. But, when a defendant has been exonerated in the legal system, either by a jury or on constitutional grounds, with respect to a criminal act, that act cannot be used to enhance a sentence. This is the case of Commonwealth v. Smithton from 1993.  

In Commonwealth v. Frank of 1990, a therapist was convicted of sexual abuse of an adolescent male patient. At trial, witnesses testified that the defendant had initiated sexual contact with them during counseling sessions. The sentencing court, in concluding that the defendant was not amenable to rehabilitation, indicated that the testimony of these witnesses had been weighed. The defendant appealed and stated that the sentencing court improperly considered uncharged and unproven criminal activity when fashioning it sentence. The Superior Court held that the allegation did not raise a substantial question because a sentencing court "may consider uncharged criminal activity in determining the appropriate sentence."  This is a tough case and one that not many Lehigh County criminal lawyers like.  

In Commonwealth v. Palmer of 1983, the defendant challenge the sentencing court's consideration of the defendant's admission that he had "cased" a bank. The Superior Court rejected his challenge, stating "a court may consider criminal activity or preparation for crimes as factors in sentencing even though no arrest or conviction resulted".  The same result was reached in Commonwealth v. Vernille of 1980. In that case, the sentencing court was aware of the defendant's participation in other uncharged criminal conduct,and the defendant admitted to most of the facts constituting that conduct. When imposing it sentence, the sentencing court unquestionably had relied upon that uncharged conduct. The Superior Court upheld the sentence, observing that "broad discretion is reposed in the judge to receive relevant information to make the determination of sentence" The court continued, "it was not improper for the sentencing judge to consider appellants alleged involvement in other unlawful activity for which she was not charged tried or convicted."  

There's a hearsay exception for what the courts call "state of mind". It involves extrajudicial declarations "made by a person who cannot be called as a witness, and relied upon solely to show an existing intention or state of mind of the declarant, are admissible in evidence as an exception to the hearsay rule provided such declarations appear to have been made in a natural manner, not under circumstances of suspicion, and that they are material and relevant to the issue involved." This comes from a famous case in 2000 of Commonwealth v.  Begley.

In your Lehigh County Criminal case, your first step is a preliminary hearing.  This hearing is vital to your defense.  At this hearing, the Commonwealth must present a prima facie case that the charges apply.  So, who must testify at the preliminary hearing?  

First, a criminal defendant has a right to confront and cross-examine the witnesses against him pursuant to the United States Constitution, the Pennsylvania Constitution; and the Pennsylvania Rules of Criminal Procedure.

The Pennsylvania Constitution provides that "in all criminal prosecutions" the accused has a right to meet the witnesses against him -- "face to face". Pa. Const. Art. 1 § 9. This right necessarily includes the right to confront witnesses and explore fully their testimony through cross-examination. A preliminary hearing is an adversarial proceeding which is a critical stage in a criminal prosecution. It is not a sidebar conference at which offers of proof are made. Thus, the Pennsylvania Constitution mandates a criminal defendant's right to confrontation and cross-examination at the preliminary hearing. In this case, Buchanan was denied the right to confront and cross-examine the witnesses against him.  Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 419 (Pa. 1990)

The Commonwealth, in trying to get hearsay in at a preliminary hearing, will cite two cases -- Branch and Rick.  In Branch, a police officer’s testimony regarding a witness’ statement was admissible at the preliminary hearing when the witness would be available at trial and other non-hearsay evidence was presented at the hearing.  Commonwealth v. Branch, 292 Pa.Super 425, 437 A.2d 748 (1981).  But note, it is up to your Lehigh County criminal lawyer to get on the record the basis for why and how the Commonwealth knows that a witness would be available for trial.  Also, it is extremely important to note that some cases require a victim's statement in certain crimes.  The Commonwealth, under Branch, must have some non-hearsay evidence (which is impossible sometimes when they need a victim's allegations to prove an element of the crime).  

In Rick, the court ruled that along with evidence that the defendant drove his car into a tree, a hearsay lab report could be admitted to show the defendant’s blood alcohol level.  Commonwealth v. Rick, 366 A.2d 302 (Pa. Super. 1976).  This case primarily revolves around DUI cases, where the court has decided that the analyst/lab technician/doctor who wrote the report does not have to come in at a preliminary hearing and testify.  

Drug Possession in Lehigh County

The penalties and laws surrounding possession of marijuana in Lehigh County are based on the weight of the marijuana found on the person.  A "small amount of marijuana":  This is frequently used for "Section 17" offenses or for a deminimus amount of marijuana possessed.  There is no exact weight applied to this term, although it is normally less than 30 grams.  Possession of a "small amount of marijuana" may be charged if it is intended for personal use, possessed with the intent to distribute it but not to sell (on occassion), or the actual distribution of a small amount but not for sale.  For first-time offenders, a negotiated plea arrangement may be made for a "small amount of marijuana" under Section 17 of the Controlled Substances or through ARD.  This arrangement is an alternative disposition which allows for 30 days probation (normally), court costs and fines, and an expungement of your Lehigh County criminal records at the conclusion of probation.  This means that you will not have a criminal conviction on your record and your Lehigh County criminal lawyer will have saved your future employment options.  

If you are arrested and charged with more than 30 grams of marijuana, the police may charge you with possession with intent to distribute.  Regardless of your intent, if you possess a certain amount of marijuana, it can be presumed that you intended to sell the marijuana.  This automatically becomes a felony. 

Additional Penalties in Lehigh

For the Sale or Cultivation (Trafficking) of marijuana, you should refer to 18 Pa.C.S.A. § 7508. Pennsylvania has strict mandatory minimum terms of imprisonment. If you have 10 pounds to under 50 pounds or 21 live plants to under 51 live plants (which is debatable if some plants have been harvested), for a first offense you are facing 3 years in prison and a fine of $15,000 or such larger amount.  If you are charged with a second offense, you are facing 4 years in prison and a fine of $30,000 or such larger amount.  

This "or such larger amount" means that the judge may fine you for a larger amount that is "sufficient to exhaust the assets utilized in and the proceeds from the illegal activity."  Regardless of your intent, if you possess a certain amount of marijuana, it can be presumed that you intended to sell the marijuana.  This automatically becomes a felony. Also note -- If the conviction is for the sale by a person over age 21 to a minor, it is an automatic felony and incarceration and fines are doubled.  See 18 Pa.C.S.A. § 7508 for further information.  

Lehigh County DUI - 2 Hour Motions

As I spoke to a DUI attorney in Quakertown, I pondered "Two Hour Motions" in DUI cases in Lehigh County.  

The legal theory in a two-hour motion is that a person's BAC level must be proven to exceed the proscribed level (.08) within two hours after the person has driven in order to be found guilty.  This is either through breath or blood.  Therefore, the test being done within two hours is an element of the crime.  This is tremendously important as your Lehigh County criminal lawyer fights your case.  Normally, the test is done within the 2 hour window and is sufficient to prove this element.  

Exceptions to the 2-hour rule apply pursuant to 75 Pa.C.S. § 3802(g).  It states the following,

Exception to two-hour rule.--Notwithstanding the provisions of subsection (a), (b), (c), (e) or (f), where alcohol or controlled substance concentration in an individual's blood or breath is an element of the offense, evidence of such alcohol or controlled substance concentration more than two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle is sufficient to establish that element of the offense under the following circumstances: 

(1) where the Commonwealth shows good cause explaining why the chemical test sample could not be obtained within two hours; and 

(2) where the Commonwealth establishes that the individual did not imbibe any alcohol or utilize a controlled substance between the time the individual was arrested and the time the sample was obtained. 

The Crime of Recklessly Endangering Another Person

18 Pa.C.S. § 2705 is the statute for the crime, which states, 

A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.  

This is a statewide statute that also applies to Lehigh County. It is a second degree misdemeanor.   

The crime requires (1) a mens rea recklessness, (2) an actus reus some 'conduct,' (3) causation 'which places,' and (4) the achievement of a particular result 'danger,' to another person, of death  or serious bodily injury." Commonwealth v. Trowbridge, 261 Pa. Super. 109, 395 A.2d 1337, 1340 (1918).  What this means is the following,

• Mens Rea - The person had the intent or state of mind to be reckless
• Actus Reus - The person acted in some way recklessly
• Causation which places - The person's actions caused a person to feel 
• The achievement of danger of feeling of being placed in fear of death or serious bodily injury.  

A Lehigh County criminal lawyer knows that this is a charge that is frequently "overcharged".  Sometimes, it is added along with a simple assault.  First, the standard is fear of bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.  This is more than a mere "slap" or "fight".  Pointing a loaded gun and misfiring could be reckless (see Commonwealth v. Reynolds, 2003 PA Super 400) endangerment, but not a simple fight.