Beyond A Reasonable Blog

Criminal Attorney Inbox: Police didn't read me my rights when I was arrested so my case should be dismissed, right?

2014-02-13T11:48:00.001-05:00

By: Brian M. Fishman

Introduction

Wrong. If only it was that simple. I can not tell you how many times I am asked this question. The general belief is that police must read someone their Miranda warnings upon arrest. I assume the theory is that if one's rights were violated by the failure to be read their rights, then the arrest should be invalid and any subsequent charges should be thrown out of court. Unfortunately, this is a flawed premise and not the law. Despite what many believe, the police have no obligation to read Miranda warnings upon arrest. The only time police or detectives have to read you your rights is if you they are seeking to conduct a "custodial interrogation". So, what is a custodial interrogation? Well, before answering that question, let's briefly discuss Miranda warnings.

You Have The Right To Remain Silent...

Miranda warnings are designed to protect one against their 5th Amendment right against self-incrimination and their 6th Amendment right to counsel. But, we all watch too much television and believe that once placed in handcuffs, the police, while gently guiding our head into their cruiser, must begin reading us our Miranda rights. And, if they fail to do so, they are violating our constitutional rights. On TV, when arrested, we generally hear the following, "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney before speaking to the police and to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you free of charge."

That is in fact the law. But, if you read those words carefully, the police are merely warning that you do not have to say anything to them but if you do, you run the risk of whatever you say being introduced against you at trial. So, if you say nothing, you have nothing to worry about. And, that is exactly what you should do if arrested by police. Do...Not...Talk. Don't talk to the officers that arrest you. Don't talk to the cops driving you to the station, don't talk to the officers who are processing you, don't speak with the cop who fingerprints and photographs you and certainly do not talk to any detectives. Police do have the right to ask you questions about your biographical background and you should be cooperative with police and answer the questions concerning your name, date of birth, social security number, address, employer, family, etc. However, you should in no way discuss the incident that led to your arrest. Despite what you may believe, I assure you that you are not going to talk yourself out of an arrest or being charged. You can and will only create more evidence that can be used against you later thereby making my job of defending you more difficult.

A Custodial Interrogation

As stated above, police need only provide you with your Miranda Warnings if they seek to conduct a custodial interrogation. Therefore, you must be both in custody and under interrogation in order to trigger the requirement that your rights be read to you. It is important therefore to define both "custody" and "interrogation". They may seem to be clear words that need no definition. But, they are interpreted in the law differently than there general connotation.

If you have been arrested, handcuffed and are in the police station, clearly you are in police custody. But, custody is defined more broadly for these purposes. Generally, if an individual's freedom of movement is curtailed by law enforcement such that an objective person does not believe they are free to leave, they are considered to be in custody. However, there are some limitations on this more broad reading of "custody". While a motorist stopped by police during a roadside investigation or an individual briefly detained on the street may not feel they are free to leave, police do have the right to ask some basic limited questions of those individuals as they are not considered to be under arrest and therefore in custody. But, aside from those limited exceptions, if one feels that they are not free to leave based on police commands or actions, it is the functional equivalent of an arrest and the person is deemed to be in custody. To the contrary, it is important to understand that just because you are in a police station does not mean that you are under arrest. If you choose to voluntarily show up at the police station to answer questions or you are there but are told that you are free to leave at anytime, you are not considered to be under arrest or in custody and your Miranda warnings need not be read.

Interrogation is defined as questioning by law enforcement where police know or should know that their questions are likely to lead to incriminating statements. If you are in handcuffs in the back of a police car and shout out, "I only pointed the gun at him, I never shot it" or "I didn't sell anyone drugs, I just split the money with my buddy who was selling", you are not being questioned or interrogated and that "blurt out" is admissible in court as you volunteered the information. The police never asked you a question that led to your statement. On the other hand, police may not ask you a specific question but may present you with a piece of incriminating evidence and state, "How do you explain this?" Although that may not be a specific question, it is considered interrogation based on the police officers actions and the intent to invoke an incriminating response.

Examples of a Custodial Interrogation

While it may seem obvious, the lines often gray when discussing what is considered "custody" and what counts as "interrogation". Below are some examples of a custodial interrogation and therefore Miranda Warnings would be required or the statement could be deemed inadmissible as a violation of your rights:

If you are at the police station following a formal arrest on the street and a detective brings you upstairs to an interview room and starts asking you questions about the very incident you were arrested for.
If you are in the back of a police car in handcuffs, just having been arrested by police for burglary and one officer turns around and says, "Now, tell me what you did with all of the jewelry that you took from the house?"
You are sitting in your home after a police raid and placed under arrest for selling drugs and police state, "Tells us where the drugs and guns are or we're going to tear this whole house apart."
Police stop you on the street after they see you make a transaction with another, they pat you down, ask you for your name and identification and then follow up with "Where do you keep your drug stash?"

Examples Where Miranda Warnings are Not Required

If you are pulled over by police, ordered to provide license, registration and insurance and police indicate that they smell an odor of alcohol on your breath and ask, "Are you willing to submit to field sobriety tests?"
If you are taken down to the station after being stopped on suspicion of DUI and while an officer is explaining the field sobriety test you state, "Officer, I couldn't do that even if I was sober."
If a police officer sees you on the street and asks you to come over and talk to him and you comply and the officer then asks, "Where did you get that jewelry?"
If you go to the police station to meet with a detective and you are told that you are free to leave at anytime and are then asked, "Isn't it true that you had sex with that young girl?"

Conclusion

It is clear from the above examples that you must be questioned by police while in their custody for your Miranda Warnings to be required. If either prong is missing and you make a statement, that statement will be deemed admissible in court even if you were never read your rights. If police have no intention of questioning you, they don't ever have to read you your rights and there is no violation and therefore no remedy. Therefore, it is important to understand that in most circumstances you will never hear your Miranda Warnings read to you and it will have absolutely no impact on your case because the prosecution will not seek to introduce any statement by you as one was never made. But, the lines are gray. The easiest remedy: Don't talk to law enforcement or others when arrested, investigated or when the target of a criminal investigation. If you don't talk, your silence can not be used against you. If you have provided a statement to police, it is important to consult an attorney to see if the statement was legally taken or if there is a valid motion to suppress the statement and thereby keep it from being heard by the jury.

If you have been arrested for a criminal offense and you believe that your rights have been violated, contact experienced Philadelphia criminal defense attorney Brian M. Fishman for a free consultation to discuss your case.

Create a Diversion: How to Avoid a Criminal Record for First-Time Offenders

2013-12-08T10:31:00.001-05:00

By: Brian M. Fishman

A criminal record can have a serious impact on one's life including the loss of or inability to obtain future employment or financial aid, loss of government benefits, rejection from the college of your choice or inability to join the military. However, there are a number of diversion programs for first-time offenders of minor offenses which allow you to avoid conviction. While each county District Attorney's Office in Pennsylvania has some of its own diversion programs and different requirements to be admitted, this post will focus on those programs available in Philadelphia county. Some of these programs require the defendant to file a petition for expungement following successful completion while others have automatic expungement through the court. It is important that you know the difference as the biggest benefit to all of these programs is that the charges are ultimately withdrawn and can be expunged from your record. But, if there is no automatic expungement, the charges will remain on your record despite the fact that they have been withdrawn. I have previously discussed Pennsylvania expungement law. The most common diversion programs in Philadelphia include:

ARD (Accelerated Rehabilitative Disposition) Program;
SAM (Small Amount of Marijuana) Program;
AMP I (Alternative Misdemeanor Program I);
AMP II (Alternative Misdemeanor Program II);
Summary Diversion Program;
Section 17 or Section 18 Drug Program; and
Drug Treatment Court.

What is a Diversion Program?

A diversion program is an alternative to going to trial where you never have to plead "guilty" or "not guilty" but rather your case is diverted out of the trial track and placed into a pre-trial status where it remains until you successfully complete the requirements of the program. Even though you are often assigned a probation officer to oversee your progress through the program, you have not been convicted of any crime. Upon successful completion of the program, the charges against you are withdrawn or dismissed and can be expunged from your record leaving no evidence that you were ever charged. Common conditions of these programs include: community service, paying fines, costs and restitution, drug and alcohol treatment, anger management class, alcohol safe driving class or other classes or seminars, meeting with a pre-trial probation officer, drug testing and loss of your driver's license for a short period of time. Each program has different requirements and some may be tailored specifically to your needs. Therefore, it is important that you pay close attention to what the judge orders you to do and follow all of the instructions of your probation officer and lawyer so you can successfully complete the program and have the charges dismissed. Below are additional details on the diversion programs available in Philadelphia.

ARD (Accelerated Rehabilitative Disposition) Program

This is the most common diversion program as it is statutorily created and available in every county in Pennsylvania. It is available to the broadest range of crimes as it is available at the District Attorney's Office's discretion. If you have no prior arrests, you are generally eligible for ARD for low-level misdemeanors, including, but not limited to:

DUI (Driving Under the Influence)
Theft
Receiving Stolen Property
Simple Assault
Criminal Trespass
Harassment
Criminal Mischief
Terroristic Threats
Disorderly Conduct
Bad Checks;
Retail Theft; and
Simple Possession of Narcotics or Drug Paraphernalia.

As indicated, the District Attorney decides admission into the ARD Program so there are instances when charged with the above offenses where the facts are more serious and you can be rejected from ARD. On the other hand, you can be charged with more serious offenses, but a closer look at the facts reveals that it may have been overcharged or the defendant has an exemplary background prior to this one indiscretion and the prosecution will grant entry into the program. For example, I have been able to get past clients admitted in Philadelphia when charged with felony forgery, aggravated assault and robbery.

If you are approved for ARD after being charged with DUI, you will be supervised for 12 months during which you will have to pay fines and costs, complete an alcohol safe-driving class, undergo a drug and alcohol evaluation and comply with any recommended treatment and have your license suspended for 60 days. This last requirement is always the most difficult for clients to swallow. However, if convicted of DUI, you face an automatic one-year license suspension. You also will not be eligible for an Occupational Limited License (OLL) during the 60 day ARD suspension. An OLL, sometimes referred to as a "bread and butter" license, allows those with suspended licenses to drive to and from work only.

When admitted to ARD for other offenses, you will be supervised for 6 to 24 months and will have to comply with various conditions. Depending on the charges, these include payment of fines and costs, restitution to the victim, anger management counseling, community service and drug and alcohol treatment. Upon completion, you will receive a certificate from your probation officer indicting successful completion of the ARD program and the charges against you will be withdrawn. However, the courts will not automatically expunge or remove the charges from your record. Therefore, you need to contact your attorney to file a petition for expungement.

Every county has a different application procedure for ARD and there is generally a point person in each District Attorney's Office who decides admission into the program. Therefore, it is important that you have an experienced criminal defense attorney who knows the procedure, how to fill out the application and who to communicate with to see that you have the best chance of admission. If you have been charged with a criminal offense and believe you may be eligible for ARD, contact Philadelphia criminal defense attorney Brian M. Fishman for a free consultation.

SAM (Small Amount of Marijuana) Program

If you have been arrested and charged with possession of less than 30 grams of marijuana (35 Pa.C.S. § 780-113(a)(31)), you may very well be eligible for the SAM program in Philadelphia. Even if you have a prior criminal record, you can qualify for this program. You will not be eligible if you are charged with possession with intent to deliver marijuana or if you are charged with more serious offenses along with possession of a small amount of marijuana. However, if arrested solely on possession of a small amount of marijuana, you should definitely explore this program as completion results in a withdrawal of the charges. If admitted into the SAM program, you will likely be required to attend a three hour class on a Saturday at the Philadelphia Criminal Justice Center and pay a fine of $200. So long as you attend the class and pay the fine, the charges against you will be withdrawn and automatically expunged off of your record.

AMP I and II (Alternative Misdemeanor Program)

If charged with a non-violent misdemeanor offense, similar to the charges listed above (with the exception of DUI), you may be eligible for the Alternative Misdemeanor Program. You can even have some prior arrests/convictions and still be eligible for the AMP program. It is a bit more rigorous than the SAM program but less intense than ARD.

If accepted into AMP I, you do not have to enter a plea and will be required to complete 12 to 18 hours of community service and pay approximately $200 in court costs. A criminal defense attorney must apply for the AMP program through the District Attorney's Office who will accept or reject you. If you provide proof of completion of community service and payment of costs more than five days before your final court date, your presence can be waived, the charges will be withdrawn by the District Attorney's Office and you can file for expungement of the charges.

If you apply and are accepted into the AMP II program, you will have to enter a "no contest" plea before a Municipal Court judge. A "no contest" plea means that you are not admitting that you committed the acts but you are also not challenging the allegations. The judge will not make a determination of guilt but rather will hold his ruling in abeyance. In addition to the above community service and court cost requirements, you must either complete an anger management class or drug and alcohol treatment. The requirements will be fashioned around your past record and the instant offense. If you complete all requirements, the District Attorney will withdraw the charges and you will be eligible for expungement. On the other hand, if you fail to successfully take advantage of the program and violate the conditions, the judge can enter a guilty finding and place you on probation. At that point, the charges will be on your permanent record. Those charges may be able to be expunged at some point in the distant future and I discuss that issue in great detail here.

Summary Diversion Program

The requirements and process of the Summary Diversion Program are similar to the SAM Program discussed above. If you have been cited for a summary offense, the most common of which are underage drinking, defiant trespass, open container and disorderly conduct, you may be eligible. Even if you have some minor prior contacts with the criminal justice system, you may qualify for the program. If your criminal defense attorney can have you enrolled, it is an excellent opportunity to wipe the slate clean. You will have to attend a three hour class at the Criminal Justice Center on a Saturday and pay costs in the amount of $200. However, if you successfully complete those two minor requirements, the charges will be withdrawn and the matter will automatically be expunged off of your record.

The greatest benefit of this program is for those charged with underage drinking as a conviction for this summary offense results in your drivers license being suspended. However, for first-time underage drinking offenders, the District Attorney's Office in Philadelphia has agreed to amend the charge to disorderly conduct when reporting the matter to PennDOT (Pennsylvania Department of Transportation) so you will avoid a license suspension. You can only take advantage of this opportunity once. Although you may be allowed in the Summary Diversion Program for a future underage drinking offense, you will be subject to a license suspension regardless of your successful completion of the program.

If your attorney can not get you in this program and you are convicted of the offense, you are eligible for expungement of a summary offense in Pennsylvania after five years have passed so long as you have had no contacts with the criminal justice system during that time period.

Section 17 or 18 Drug Program

These programs are not utilized as much since the introduction of the SAM and AMP programs. However, under the drug laws of Pennsylvania, if you are charged with possession of narcotics or a crime that stems from a drug problem, such as prostitution or retail theft, you may be eligible for Section 17 or Section 18. Similar to AMP II, you enter a "no contest" plea before a judge and the judge defers adjudication. However, like ARD, you are placed on a period of probation between 6 and 12 months with the requirements to pay court costs, undergo random drug testing and complete drug and alcohol treatment. If you complete the probationary period, complying with the above conditions, the charges will be withdrawn. However, if you are arrested again, continue to test positive for drugs or do not comply with treatment, the judge, without the benefit of a trial, will enter a guilty finding to the misdemeanor offense and you will be placed on probation or can receive a period of incarceration. Upon successful completion, these charges are not automatically expunged but rather you must have a criminal defense attorney file a petition for expungement to see that your record is cleared.

Drug Treatment Court

Philadelphia's Drug Treatment Court was the first of its kind in Pennsylvania. It is by far the most rigorous of all the diversion programs discussed. However, in exchange for that rigor, it provides individuals charged with felony possession with intent to deliver (PWID) charges the opportunity to avoid conviction. Generally, if you have prior convictions or are facing PWID charges that call for a mandatory minimum sentence, you will not qualify for the program. It is designed to assist those who sell to support a drug habit. Admission is at the discretion of the District Attorney's Office and therefore your attorney must apply on your behalf and you must undergo a drug and alcohol evaluation. If you qualify, you will be assigned a probation officer and a caseworker. The program is broken down into phases and you must complete all phases to graduate and have the charges against you withdrawn. You will be required to attend intensive out-patient drug treatment, receive random drug screens, meet with your probation officer, pay court costs, discuss all issues with your caseworker, including housing, mental health, employment and drug and alcohol problems. Violation of any condition can result in removal from the program or sanctions such as demotion to a lower phase, attending court proceedings, more intense treatment or even short prison terms, lasting between a weekend and ten days. The more violations, the longer it will take to complete the program, which already takes a minimum of 18 to 24 months. Graduation is a great accomplishment and one that is celebrated in the courtroom with a ceremony, plaque, pictures with the judge, staff and other graduates and an invitation to speak to future participants. Perhaps most important, felony drug charges are withdrawn and expunged off of your record.

If you have been cited for a summary offense, arrested for a misdemeanor or felony PWID, you may be eligible for one of the diversion programs discussed above. The best way to avoid a conviction is to never go to trial and gain entry into one of these pre-trial programs. Contact Philadelphia criminal defense attorney Brian M. Fishman today for a free consultation concerning your eligibility for one of these programs or how best to defend against criminal charges.

Criminal Defense Attorney Inbox: If I didn't have any drugs on me when arrested, how can I be charged with possession with intent to deliver?

2013-11-14T16:57:00.003-05:00

By: Brian M. Fishman

I represent many individuals charged with possession with intent to deliver narcotics in Philadelphia and the surrounding counties. This offense is commonly referred to as PWID but means dealing or selling drugs. I previously wrote about PWID, including common defenses and mandatory minimum sentencing here. In order to sell or deliver drugs to another, one must obviously possess the drugs first. But, often clients come into my office and indicate that the police did not recover any drugs off them when arrested. So they ask the above question. But you do not need to have drugs on you when arrested in order to be charged, and more importantly, convicted of possession with intent to deliver. In fact, you do not even have to have sold or delivered drugs to another to be convicted of possession with intent to deliver. I discuss actual versus constructive possession here. There are many ways one can get charge with PWID and some include:

Observed sales on the street during a narcotics surveillance;
A car stop in which large quantities of drugs are recovered from a vehicle;
Conspiring with others who are selling drugs on the street;
Being present or associated with a house where a search and seizure warrant is executed; and
A mail package interdiction case where drugs are being sent through the postal service.

Now, using each of the above situations, lets review a factual scenario where you are not arrested with any drugs on your person but where the evidence that you are guilty of possession with intent to deliver is still strong.

Sales During Narcotics Surveillance

Police will often target a known drug corner by setting up a surveillance from an undercover car or a confidential location. They will have back-up units in marked cars in the surrounding area. The officer(s) watching the corner, often referred to as the "eyes", will wait for a dealer to start selling.  Within an hour, police will see five people approach the dealer and hand him money. The dealer will repeatedly walk over to a drain pipe, retrieve small objects, return to the drug user and hand him something. The "eyes" will put a description and direction of travel of the buyer out over police radio hoping his back-up units will stop them. Some buyers get lost in the area as they enter homes or can not be found. But, police stop three of them on separate occasions at different locations. All three have blue $10 dollar packets of crack cocaine. These matching packets confirm the officers' suspicions that what the dealer is selling is in fact drugs. Backup move on to the block for the "take down". The dealer is arrested and has $220 on him and no drugs. One officer is directed to the drain pipe where the dealer was seen after getting money on five occasions. This is the dealer's stash. There he discovers a small baggie with nine blue $10 packets of crack. No drugs were found on the dealer.  Does the prosecution have enough evidence to prove the defendant guilty of possession with intent to deliver despite the fact that he had no drugs on him at the time of arrest?

The Car Stop

Philadelphia police come up with all different reasons to stop cars in high drug neighborhoods. You would be shocked at how many people fail to put on their turn signal, roll through stop signs, have a broken tail light or have invalid inspection stickers in these drug-infested neighborhoods. And, every one of them gets stopped by the Philadelphia police. Police approach the car and they see the driver making furtive movements towards the floor of the vehicle. They see his hand reaching down under the seat and his head bobbing up and down. When they approach, the driver is extremely nervous.  Based on their observations they now "fear for their safety" so they ask the driver (and his passengers) to step out of the vehicle. After he does, police shockingly see a plastic baggie sticking out in the area between the center console and the driver's seat right where the driver was sitting. Suspecting it is drugs, they pull the baggie out and find 4 bundles of heroin with rubber bands around each. The heroin is in blue glassine packets all stamped "TNT". The police arrest the driver. On his person he has $680. The police then get a search and seizure warrant for the car based on the heroin they recovered. Upon execution of the warrant, police recover new and unused baggies, often used to package narcotics, from the glove box and additional drugs from the trunk. The driver did not have any drugs on him when arrested nor was he observed selling drugs, but the evidence is fairly strong that he constructively possessed the drugs with the intent to sell them. Oftentimes, passengers are even arrested in these situations and can be convicted under a conspiracy theory.

Conspiracy With Street Dealer

It takes many people to run a business. And, the drug business is no different. While you need people to actually sell the drugs to buyers on the street as in the first example above, the dealer cannot possibly run the whole business. Can a cashier who actually delivers the products to you run an entire Target store? The dealer needs people to act as "lookouts" to try and make sure police are not around trying to shut down the corner. A Target needs Loss Prevention Officers and security to make sure no one steals. Someone needs to supply the street dealer with the drugs he is selling and provide him with additional drugs when he is sold out. Target needs stock boys to re-stock the shelves with merchandise. No dealer likes to have too much money on the corner in the event he gets arrested. So someone has to take money off the corner. Target has people empty the cash registered or take large bills from it. The lookout, the corner supplier and the individual taking money off the corner often get arrested during the take down of the corner. Police observe their actions and arrest them as co-conspirators of the dealer. None of them were in possession of drugs at the time they were arrested. In fact, two of them, the lookout and the money man, never touched drugs at any point. But, there is still significant evidence that they played a role in the drug business. A conspirator is responsible for every action of his co-conspirator. Therefore, he is guilty for every sale that the dealer made even if he never made a sale himself. There are defenses available for these conspirators but it does not mean they can not be charged and convicted of PWID.

Police Execute Search & Seizure Warrant On House

Drug dealers need somewhere to store their drugs before they are sold on the streets. Or, they hope that selling them behind closed doors will avoid detection by law enforcement. However, often times confidential informants or neighbors provide the police with tips about houses where drugs are being stored and sold. Police setup similar surveillance to the one described above when watching street level dealers. They observe buyers approach and hand unknown individuals money and or disappear inside the house for a short time. Those buyers are often stopped with matching crack cocaine packets. Undercover officers and confidential informants also use pre-recorded buy money to makes purchases from dealers selling from houses. Once police have enough evidence that drugs are being sold from a property, they seek permission from a magistrate to execute a search and seizure warrant on the house. Once executed, police recover additional matching crack, scales, new and unused baggies, plates, razor blades, straws cut at a tip used for packaging the crack in the small baggies, a pot on the stove with cocaine residue, large amounts of cash, the pre-recorded buy money used to make an earlier purchase, proof of residence and other indicia of drug activity. The undercover officer identifies the individual who was answering the door dealing with the buyers and the confidential informant and arrest him for PWID. He has no drugs on him. However, there is a PECO bill and letters in his name addressed to that address.  There is a gun under the bed where he was sleeping when the warrant was served. And, he has $730 in cash including $20 of pre-recorded buy money that was used hours earlier when an informant made a purchase inside the house. This person only had money on him when arrested but there is strong direct and circumstantial evidence that he was operating a drug business from the property.

Postal Service Interdiction Cases

Marijuana is not often grown in Philadelphia. But, there is plenty of it being sold on its streets. So, it has to get here somehow. Many drug dealers have couriers that send it through the mail from source states such as California or Arizona. Oftentimes, the person it is being delivered to is not even told that it is marijuana. Rather, they are told to sign for a package that will be arriving on a certain date and they will be paid $100 for receiving the package. The recipient is told to text or call a number when the package arrives. Police in the source state get a warrant to open the package and confirm that there is marijuana within. They seal it up and ship it to its destination. However, instead of your regular mailman delivering the package, it is a police officer or postal police officer dressed as a mail carrier. Further, police have generally obtained an anticipatory search warrant from a magistrate to serve on the source house if all goes as planned. The officer approaches the door and has the seemingly unwitting resident sign for the package containing the weed. Police then wait for another car to arrive as they know that the marijuana is not going to stay there for long. As it turns out, two men arrive in the exact vehicle police had information about. One goes to the door and is seen paying the occupant and receiving the package that was just delivered. The vehicle drives off and police stop the car and conduct an investigation. The delivered package is found in the backseat and both occupants of the car are arrested and charged with possession with intent to deliver marijuana, conspiracy and related offenses. The defendants have large amounts of cash on them and drug paraphernalia in the vehicle as described in the above house. The package was not on either the driver or passenger at the time of their arrest and the driver was never seen holding the drugs. But again, the evidence of their possession and intent to deliver the bulk marijuana seized is fairly strong. They could try to claim that they had no knowledge of what was in the package or the driver could argue mere presence. I discuss these defenses in further detail here.

Conclusion

As the above examples demonstrate, you do not need to be in possession of drugs at the time of your arrest to be charged with possession with intent to deliver. You do not even need to be seen delivering or selling drugs to be arrested, charged and ultimately convicted of possession with intent to deliver. It is what you intend to do with drugs that you actually or constructively possess that becomes the legal issue. Possession with intent to deliver is a serious felony offense in Pennsylvania and is often associated with mandatory minimum sentences discussed here and laid out in the below chart. Just because the above examples demonstrate strong evidence of guilt does not mean that there are no defenses to possession with intent to deliver charges. You can read more about some of those defenses here. It is important that you have a strong advocate in your corner if charged with narcotics offenses. If you or someone you know has been arrested for possession with intent to deliver or conspiring to do the same in Philadelphia or the surrounding counties, contact criminal defense attorney Brian M. Fishman for a free consultation.

Pennsylvania Expungement Law Looks To Be Expanded

2013-10-24T17:58:00.001-04:00

By: Brian M. Fishman

Citizens in Pennsylvania with low-level misdemeanor convictions in their past may soon be eligible for an expungement of their criminal record if they have remained arrest-free for a period of time post-conviction. Senate Bill 391 recently leaped over its two biggest hurdles by passing the Pennsylvania Senate and gaining the support of the Pennsylvania District Attorney's Association. The new law would allow individuals convicted of certain non-violent misdemeanors of the second- or third-degree to petition the court for expungement of their record if they remained arrest free for seven or ten years depending on the grading of the offenses. I previously posted about Pennsylvania expungement law here.

However, this is a huge development because the law, as it currently reads, only allows for expungement of convictions for summary offenses where one has remained arrest-free for five years, you are 70 years old and have remained arrest-free for ten years or the individual has been dead for three years. Nobody who is 70-years-old or has been dead for three years needs an expungement as their prior indiscretion is not preventing them from obtaining employment in these difficult economic times. However, younger people who made one mistake in their past are finding it very difficult to obtain gainful employment due to a minor criminal record. This law could lead to the reduction of criminal activity as less people will need to turn to illegal means to earn money when they cannot find a good job.

The amended law specifically states that if you have been convicted of a non-violent misdemeanor of
the third-degree and have not been arrested for a period of seven years, you are eligible for expungement of that conviction. This would include crimes such as theft, disorderly conduct, harassment, defiant trespass, loitering and prowling, selling alcohol to minors and retail theft. This would also extend to ungraded misdemeanors such as first-offense DUI, possession of a controlled substance, possession of drug paraphernalia and possession of a small amount of marijuana. Some of the above-mentioned crimes have gradings that change based on prior convictions or the amount stolen.

The law would further allow for expungement of convictions for second-degree misdemeanors where the crime was committed when the offender was under 25 and has remained arrest- and prosecution-free for a period of ten years. The new law does not allow for expungement of violent offenses. Therefore, it is likely that there will be litigation over what constitutes a "violent offense". But, it is possible that second-degree misdemeanors such as recklessly endangering another person, theft, false reports to law enforcement and manufacture or sale of false identification would all be eligible for expungement. While simple assault is certainly considered a violent offense, there is one section of the simple assault statute where it is considered "mutual combat" or a mutual fight that is graded as a misdemeanor of the third-degree. According to the legislation, an M3 mutual fight simple assault would be expugnable after the seven year waiting period.

The new law would prohibit expungement of convictions for the following offenses: possession of a firearm or other dangerous weapon in a court facility (18 Pa.C.S. Section 913), simple assault graded as misdemeanor of the second-degree (18 Pa.C.S. Section 2701), sexual intercourse with an animal (18 Pa.C.S. Section 3129), impersonating a pubic servant (18 Pa.C.S. 4912), intimidation of witnesses or victims (18 Pa.C.S. Section 4952), retaliation against witness, victim or party (18 Pa.C.S. Section 4953), cruelty to animals (18 Pa.C.S. 5511), any violation of the Uniform Firearms Act (Chapter 61 of the Pennsylvania Crimes Code) or an offense which requires registration under Megan's Law. You can read more about Megan's Law offenses, their penalties and ramifications here.

In addition to the above specific prohibited statutes, one would also not be eligible for expungement for any offense punishable by more than two years or anyone who has been convicted of four or more offenses punishable by imprisonment of one or more years. It is not clear from the proposed law whether the seven or ten year look-back periods would commence once the law goes into effect or whether someone could immediately apply for expungement if they have already remained arrest-free for the required time period and they have a prior conviction for an expugnable offense.

However, if you were convicted of a minor misdemeanor offense sometime in the past and believe you may now be entitled to an expungement, please contact Philadelphia expungement lawyer Brian M. Fishman. He can schedule a free consultation and review your record to determine if you are now eligible for expungement of a prior misdemeanor conviction.

Electronic Discovery Introduced in Philadelphia Municipal Court

2013-10-17T21:25:00.004-04:00

By: Brian M. Fishman

In a continuing push to go paperless, Philadelphia courts recently implemented electronic filing (eFiling) in its criminal courts division. This system allows attorneys to file an entry of appearance, motions to suppress, bail reduction motions, parole petitions and many other types of pre- and post-trial motions and petitions online. It has changed the way attorneys do business with the courts as they can now file court documents from the comfort of their office rather than walk multiple paper copies of a filing over to the court house. It has also made the courts more environmentally friendly.

The Philadelphia courts, in conjunction with the District Attorney's Office, have now taken an additional step toward simplifying matters and placing trial documents online. They have introduced electronic discovery (eDiscovery) for Municipal Court matters. This means that attorneys who have formally entered their appearance as counsel of record will be able to log on to the court's electronic system and download a copy of the discovery. Discovery includes victim and witness statements, police reports, drug analysis reports regarding the weight and content of different drugs, chemist reports for DUI regarding BAC levels, arrest memos, police officer statements, criminal records of victim witnesses and defendants, photographs, medical records and any other documents the prosecutor intends on using against a criminal defendant at trial.

In Philadelphia there are two levels to the criminal justice system: Municipal Court and the Court of Common Pleas. Municipal Court is responsible for hearing bench or judge trials for all offenses where the maximum sentence does not exceed five years. This includes all misdemeanors and even a few ungraded felony offenses, such as possession with the intent to deliver marijuana and certain pills. In cases that proceed to trial in Philadelphia's Municipal Court, there is always a pre-trial conference that is scheduled approximately a month to six weeks following arrest. At that hearing, the District Attorney's Office is responsible for providing discovery to the defense and the case is then scheduled for trial. Oftentimes, this paperwork is incomplete and defense attorneys are left to track down the discovery from unknown prosecutors. The prosecutors, in turn, have to subpoena the assigned detective to trial simply to obtain the necessary discovery to pass to the defense. This often led to a lot of confusion and multiple trial listings simply to resolve discovery issues.

This confusion, however, often benefited the defendant. In Municipal Court, under Rule 1013 of the Rules of Criminal Procedure, the prosecution has 180 days to bring these cases to trial. If they fail to do so, the matter can be discharged with prejudice and therefore never be filed again. So, miscommunication regarding paperwork between arresting officers, detectives and the District Attorney's Office can result in defense victories. It will be interesting to see if this new online system resolves some of the problems prosecutors have in obtaining discovery and seeing that it is passed to the defense in a timely fashion. There are sure to be some kinks in the system but ultimately it should allow for a more organized process. Finally, if there is success in Municipal Court, they will likely extend it to felony matters in the Court of Common Pleas.

If you have been arrested for a misdemeanor or felony in Philadelphia, please contact criminal defense attorney Brian M. Fishman for a free consultation.

Philadelphia Under Fire: The Serious Nature of Firearm Offenses

2013-10-11T15:30:00.000-04:00

By: Brian M. Fishman

Possession of a firearm is not only a crime itself but can greatly increase the sentence for violent crimes and possession with intent to deliver drugs. For example, if you are convicted of aggravated assault, robbery, rape, burglary or another violent crime and you are in possession of a firearm (or even an object that the victim believes is a firearm—replica, BB gun, fake gun), the court is required to impose at least a mandatory minimum sentence of 5 years of state incarceration. If convicted of possession with intent to deliver and you or a co-defendant are in possession of firearm or a gun is found in close proximity to the drug sales, again you face a mandatory 5 year state sentence. Therefore, carrying a firearm is always a serious offense and one that requires a criminal defense attorney that will evaluate the case from all angles and zealously advocate to protect your rights. Brian M. Fishman has fought and won many cases in which clients were charged with possession of a firearm.

In every county in Pennsylvania it is illegal to be in possession of a firearm concealed on your person or in a vehicle without a valid license to carry. This is controlled by 18 Pa.C.S. § 6106, a full definition for which can be found below. This is a felony of third degree (unless you can prove that you were otherwise eligible for a license but just did not have one) and is punishable by up to 7 years of incarceration. Additionally, in Philadelphia County there is another crime for simply possessing a firearm on the streets of Philadelphia without a carry permit. This offense only applies to Philadelphia (a city of the first class) and is controlled by 18 Pa.C.S. § 6108. This crime is a first degree misdemeanor and is punishable by up to 5 years incarceration. A full definition can again be found below. This area of the crimes code is known as the Uniform Firearms Act and violations of this section are often referred to as VUFA (Violation of the Uniform Firearms Act).

Due to the recent rash of shootings, homicides and other violent offenses committed with firearms in Philadelphia, the bail guidelines for gun possession have greatly increased and judges are extremely hesitant to reduce the bail set at initial arraignment. The bail for a first-time offender in mere possession of a gun is generally no lower than $50,000/10% and therefore the defendant must post $5,000 to be released from prison pending trial. If a defendant has any prior record, failures to appear in court or violations of probation, the bail will most certainly exceed $100,000/10% and can be over half a million if a violent offense with a firearm is alleged.

After VUFA § 6106 and 6108, described above, the third most common gun offense charged in Philadelphia is 18 Pa.C.S. § 6105. This is most often graded as a second degree felony (it can be a misdemeanor of the first degree if the prior triggering offense occurred when the defendant was a juvenile), is punishable by up to 10 years in jail and is defined below. Section 6105 is essentially possession of a gun by a convicted felon. That is, if you have previously been convicted of possession with intent to deliver narcotics, aggravated assault, burglary, robbery, rape or other violent felonies and you are found in possession of a gun or constructive possession as discussed in greater detail here, you are guilty of Section 6105. If convicted of 6105, you are automatically facing a significant state sentence because the offense has a high offense gravity score and you have to have a prior record score of at least two in order to qualify for the offense. Therefore, the sentencing guidelines, at a minimum call for 3 years of state incarceration and one can receive a much higher sentence if convicted of this offense.

Finally, the Philadelphia District Attorney’s Office created the Gun Violence Task Force some years ago to specifically address the growing problem of “straw purchases”. A straw purchase is when someone who has no prior record goes to a gun store or show and indicates on paper that they are buying the gun for themselves but are truly buying it for a convicted felon or someone who is otherwise not authorized to purchase and possess a firearm. Many urban women get caught committing this offense as they are buying the gun for a brother, cousin or boyfriend who cannot make the purchase due to a past record. A straw purchaser is often caught after being watched as they either receive money from another or are getting into a car with others after making a gun purchase. Detectives interrogate these individuals and due to a lack of familiarity with the criminal justice system, they inevitably give statements admitting that they falsified state-mandated documents to obtain the gun for another. As discussed in this post, you should never speak with law enforcement under any circumstances. This article is a perfect illustration of a standard straw purchase case. In addition to the above VUFA offenses, straw purchasers are often charged with 18 Pa.C.S. § 6111 for the illegal sale or transfer of a firearm, tampering with public records, unsworn falsifications and related offenses.

Because firearm charges are possessory offenses, the most common defenses are similar to those charged with possession and possession with intent to deliver narcotics. Those defenses include pre-trial motions to suppress, illegal search and seizure, mere presence, police and civilian witness credibility and actual versus constructive possession. I discuss some of these defenses in detail here. In addition, I provided an infographic laying out some of these common defenses here. Finally, I wrote an article explaining actual versus constructive possession here.

If you are arrested for possession of a firearm or any violent offense with a firearm in Philadelphia or the surrounding counties, you are facing a lengthy period of state incarceration. You do not want to face these penalties alone. Therefore, you need a strong criminal defense attorney in your corner. Contact Philadelphia criminal defense attorney Brian M. Fishman for a free consultation.

____________________

§ 6106. Firearms not to be carried without a license.

(a) Offense defined.--

(1) Except as provided in paragraph (2), any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.

    (2)  A person who is otherwise eligible to possess a valid license under this chapter but carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license and has not committed any other criminal violation commits a misdemeanor of the first degree.

   § 6108. Carrying firearms on public streets or public property in Philadelphia.

No person shall carry a firearm, rifle or shotgun at any time upon the public streets or upon any public property in a city of the first class unless:

(1) such person is licensed to carry a firearm; or
(2) such person is exempt from licensing under section 6106(b) of this title (relating to firearms not to be carried without a license).

§ 6105. Persons not to possess, use, manufacture, control, sell or transfer firearms.

(a) Offense defined.--

(1) A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth.

...

(b) Enumerated offenses.--The following offenses shall apply to subsection (a):

Section 908 (relating to prohibited offensive weapons).

    Section 911 (relating to corrupt organizations).
    Section 912 (relating to possession of weapon on school property).
    Section 2502 (relating to murder).
    Section 2503 (relating to voluntary manslaughter).
    Section 2504 (relating to involuntary manslaughter) if the offense is based on the reckless use of a firearm.
    Section 2702 (relating to aggravated assault).
    Section 2703 (relating to assault by prisoner).
    Section 2704 (relating to assault by life prisoner).
    Section 2709.1 (relating to stalking).
    Section 2716 (relating to weapons of mass destruction).
    Section 2901 (relating to kidnapping).
    Section 2902 (relating to unlawful restraint).
    Section 2910 (relating to luring a child into a motor vehicle or structure).
    Section 3121 (relating to rape).
    Section 3123 (relating to involuntary deviate sexual intercourse).
    Section 3125 (relating to aggravated indecent assault).
    Section 3301 (relating to arson and related offenses).
    Section 3302 (relating to causing or risking catastrophe).
    Section 3502 (relating to burglary).
    Section 3503 (relating to criminal trespass) if the offense is graded a felony of the second degree or higher.
    Section 3701 (relating to robbery).
    Section 3702 (relating to robbery of motor vehicle).
    Section 3921 (relating to theft by unlawful taking or disposition) upon conviction of the second felony offense.
    Section 3923 (relating to theft by extortion) when the offense is accompanied by threats of violence.
    Section 3925 (relating to receiving stolen property) upon conviction of the second felony offense.
    Section 4906 (relating to false reports to law enforcement authorities) if the fictitious report involved the theft of a firearm as provided in section 4906(c)(2).
    Section 4912 (relating to impersonating a public servant) if the person is impersonating a law enforcement officer.
    Section 4952 (relating to intimidation of witnesses or victims).
    Section 4953 (relating to retaliation against witness, victim or party).
    Section 5121 (relating to escape).
    Section 5122 (relating to weapons or implements for escape).
    Section 5501(3) (relating to riot).
    Section 5515 (relating to prohibiting of paramilitary training).
    Section 5516 (relating to facsimile weapons of mass destruction).
    Section 6110.1 (relating to possession of firearm by minor).
    Section 6301 (relating to corruption of minors).
    Section 6302 (relating to sale or lease of weapons and explosives).

Any offense equivalent to any of the above-enumerated offenses under the prior laws of this Commonwealth or any offense equivalent to any of the above-enumerated offenses under the statutes of any other state or of the United States.

Possession with Intent to Deliver Narcotics: An Infographic

2013-09-10T16:01:00.000-04:00

By: Brian M. Fishman

Possession of a controlled substance with the intent to distribute is a felony in Pennsylvania. The District Attorney will have to prove that the defendant intentionally or knowingly possessed a controlled substance, and had the intent to distribute it.

I have provided an infographic below illustrating some basic definitions regarding the possession and distribution of a controlled substance as well as common defenses to these charges. You can learn further details about the common defenses here. The penalties a convicted defendant may face will depend on the type and quantity of the controlled substance. However, below you will find the mandatory minimum sentences associated with many drugs based on the weight of drugs recovered and whether it is a first or subsequent conviction for possession with the intent to deliver, commonly referred to as PWID in Philadelphia.

If you have been charged with possession of a controlled substance with the intent to distribute in Philadelphia, please contactPhiladelphia criminal defense attorney Brian M. Fishman for a free consultation concerning your legal rights.

Top Five Biggest Mistakes of the Criminal Defendant

2013-08-27T21:15:00.001-04:00

By Brian M. Fishman

Criminal defendants can make a bunch of mistakes between commission of crime and trial. But, some cause significantly more harm to their case then others. Below are five of the biggest errors that I repeatedly come across:

5. Talking

Please stop talking. You're only making the case against you stronger for the prosecution. Don't talk to police at the scene of your arrest, don't provide detectives with an oral or written statement following your arrest, don't talk to other inmates on your block and most importantly, don't talk on prison phones to anyone about your case. I've essentially never seen a situation where a defendant helped himself by providing a statement. Talking will only hurt your case.

Most people watch too much TV and think that a cop must read them their Miranda rights upon arrest as they're carefully guiding your head into the police cruiser. This simply is not true. A detective only needs to provide you with Miranda warnings if you're in custody and he is seeking to interrogate or question you about a crime. This almost always happens at the police station following your arrest if/when you're taken up to a detective bureau. So many clients tell me that their rights were violated because they were never read their Miranda warnings. And, when I ask if they ever gave a statement to detectives, their answer is, "No, they never gave me a chance to tell my side of the story." My response, "Good. I don't want you giving your 'side of the story.'" I can tell a jury your side of the story in my closing after cross-examining the prosecution’s witnesses and possibly presenting defense witnesses.

Once arrested, every criminal defendant has a 5^th Amendment constitutional right to remain silent. And, every defendant should exercise that right and shut up. Unfortunately, the incarcerated can't seem to help themselves. Despite the knowledge that “this call is being recorded”, they talk about their involvement to loved ones on prison phones. They always tell me they haven't talked on the phones. But, about 30 days before trial I get a CD from the prosecution filled with hundreds of calls. While they're smart enough to not simply confess to the crime, they talk about their associates and friends who may have been involved, they talk about motives ("He owed me $50 from the drugs I gave him last week") or they talk about details that only someone who was at the scene would know about.

If you talk, you're only providing the prosecution with additional evidence. And, the less evidence, the better. So please, stop talking.

4.Facebook/YouTube/Texting

All three have become integral parts of our lives in the 21^st century. And while I'd like to, I know I'm not going to convince you to delete your Facebook or YouTube accounts or get rid of your smartphones. But, remember, like recorded prison phone calls, a post on Facebook or a video on YouTube is forever. You can't take it back once it's out there. And, prosecutors and law enforcement are more and more turning to social media to gather additional evidence to strengthen a case or to hurt a defendant at trial. If you get arrested for possession with intent to deliver and tell pre-trial services that you're unemployed, how do you think a picture of you holding fanned out twenties on Facebook looks? It makes you look like a drug dealer. Delete these pictures off of your Facebook account now. It may be too late as others may have saved or shared them. But please don't upload anymore. This story of a guy arrested for failing to pay child support after police saw his own Facebook pictures of him rolling in money proves the point.

Imagine you're charged with gunpoint robbery and you’re arrested moments after the robbery with no gun and no proceeds from the robbery. Sounds like a pretty defendable case, right? With that evidence alone, it absolutely is. But, then the prosecutor goes on Facebook and finds a picture of you holding a gun and giving the camera the finger. He shows that picture to the victim and she identifies that gun as the one that was pointed at her chest. Next, the prosecutor starts searching YouTube. He finds a video of you and your friends singing about how you rob people at gunpoint. How's the evidence look now? And all of the damaging evidence is self-inflicted wounds.

Further, don't Facebook message or text anyone involved in the alleged crime. That includes co-defendants, witnesses or victims. This type of evidence can seal the prosecution's case against you. Take this example: You and a co-defendant are trying to make some money by scrapping copper. You break into what you think is an abandoned house and steal pipes. Nobody is home, so no one calls the police. You drive off in a van and get dropped off down the road. You text each other about where he's taking the pipes for sale and what percentage you'll get paid. But, police pull your co-defendant over and see all the pipes. He's arrested and charged with receiving stolen property and burglary after a report comes in that those pipes were taken from a nearby home. Police don't know that a second person was involved until they recover his phone and see the text messages. The phone number is traced back to you and you're arrested with the phone that has the same text messages. Your own words are what proved the prosecution’s case.

3. Don't Run

If police approach two people on the street and one runs while the other stands there, which one is guilty? Exactly. The police will catch you and you're simply making the case against you stronger. The one who runs has a guilty conscience and a judge or jury understands that common sense point. Additionally, a judge, at the prosecution's request will often read a "consciousness of guilt" instruction to the jury. So, now the facts (running) and the law (jury instruction) have hurt your case. Additionally, if you're in possession of drugs, a gun or other contraband, you're providing the police with greater suspicion to justify stopping you and thereby lower your chance of having police violate your rights when searching you. If police receive an anonymous radio call that someone wearing certain clothing on a corner is in possession of a gun, that information alone is insufficient to justify a stop of a person meeting the description. The police need more to corroborate that call to give rise to reasonable suspicion to justify a pat down or a Terry frisk. If you run, you're giving the police that additional justification to stop you. Don't give the police the justification they need and make the prosecution's case stronger. Rather, stand there, let the police frisk or search you and recover what they would have recovered anyway if you ran. Then, in court, you will have a much better chance of successfully litigating a motion to suppress as the police just violated your expectation of privacy and conducted an illegal search.

2. Don't Throw Things

As a follow-up to the last point, you only maintain an expectation of privacyto items that are in your possession (or, in your personal property such as your house, car, wallet, purse, etc.). So, if you throw drugs, you are abandoning them and thereby giving up or losing your expectation of privacy. Therefore, unless the police violated your rights prior to you tossing the drugs, the discarded contraband is admissible against you at trial. If you are in possession of a gun, drugs or other contraband and police exit their vehicle but do not indicate that they are investigating you and you drop the illegal item to the ground, you will likely be unsuccessful in litigating a motion to suppress because you gave up your privacy right when you discarded or abandoned the illegal object. So, if police approach you on the street and you are in possession of anything illegal, don’t panic. Do not run and do not try to get rid of the illegal item. Instead, allow police to investigate, frisk and search you. While you will obviously be arrested for possession of drugs or a gun, you will give yourself and your attorney a much greater chance to beat your case by demonstrating that the police violated your rights.

1. Don't Hire a Lawyer Who Makes Promises

"If I pay you, will you promise to beat my case?" "If I hire you, you'll get the detainer lifted and my boyfriend will come home, right?" These are two questions that I often get about 10 minutes after meeting a prospective client or their family. My answer: "No. I don't make promises about the outcome of cases. What I will promise you is that you will get a diligent, hard-working attorney who will do all he can to fight to protect your rights, use all means at my disposal to defend against your case and communicate with you and your family about the case and all of your options. I will be honest and upfront with you, even if that means giving you an answer you don't want to hear." Amazingly, I sometimes get this response: "But I just met with Lawyer X and she told me that if I pay her, I will win my case." My response: “Was Lawyer X wearing a black robe or a jury badge when you met with her? Of course she wasn't. So, how can she possibly promises you that she'll win the case when the people that decide guilt or innocence, lift detainers, grant motions to suppress are judges and jurors.”

Be very wary of lawyers that make promises as to the outcome of a case. Many tell you what you want to hear so you open your wallet. But, when it comes time to serve your sentence, I promise they won't be serving that sentence with you. I will review the discovery, get your side of the story, investigate any possible defense witnesses and explore all possible defenses. I will also give you my advice on the strengths and weaknesses of your case. If, after thoroughly preparing for your case, a pre-trial offer is conveyed by the prosecution, I must convey that offer to you. If you choose not to accept the offer, we will fight the case together. But, I will give you my honest opinion about your case and your chances of winning. If you're looking for promises, you've got the wrong lawyer.

However, if you're willing to follow the above advice, then you very well may have the Philadelphia criminal defense attorney you're looking for. If you want to learn more, please feel free to contact attorney Brian M. Fishman for a free consultation to discuss your case.

Possession with Intent to Deliver in PA: The Nuts & Bolts

2013-08-05T11:04:00.001-04:00

By Brian M. Fishman

Possession with intent to deliver narcotics, commonly referred to as PWID, is likely the most charged felony in Philadelphia. You can be charged with possession with intent to deliver because you were observed selling drugs during a narcotics surveillance, you were stopped in a car or found in a house where large quantities of drugs were recovered or police believe you were involved in a conspiracy with others to sell, manufacture or distribute narcotics. Brian M. Fishman has represented thousands of individuals charged in Philadelphia and the surrounding counties with possession with intent to deliver crack, cocaine, heroin, marijuana, PCP, pills and many other drugs. Drug delivery is a felony offense in Pennsylvania and carries with it substantial penalties if convicted. Brian M. Fishman is a former prosecutor who knows every argument the prosecution is going to make. Therefore, he is always prepared to counter the District Attorney and best defend against your drug distribution case. While every case is unique, there are a few common defenses to PWID cases.

Common Defenses to Drug Delivery Charges

(1) Motions to Suppress: If the police lacked reasonable suspicion or probable cause to stop, detain or arrest you, then the drugs or other contraband that was recovered must be suppressed and cannot be used against you in court. Or, if the police obtain a search warrant for a car or house but did not have enough information about drug activity to support the warrant; any drugs, paraphernalia, money or other contraband found in the house is not admissible at trial. If the District Attorney has no drugs to introduce against you, it has no case and is forced to withdraw the charges. A motion to suppress can be granted when the police violate your right to privacy or do not have enough information to believe that a crime has occurred at the time they stop, arrest and search you. Police will often testify to a very different story than what actually occurred on the street. Therefore, it is extremely important to call into question the officer’s credibility when testifying about his observations prior to making an arrest. This is achieved by careful and deliberate cross-examination of the police. If a judge does not believe the officer, then the court can disregard the evidence presented by the officer and grant a motion to suppress.

(2) Actual vs. Constructive Possession: The District Attorney can prove possession with intent to deliver charges even when you are arrested with no drugs in your possession. Constructive possession may be enough. I discussed this concept in greater detail in a previous post. Constructive possession is demonstrated when you know about the presence of drugs and you have the ability to maintain control over the drugs. This arises when drugs are found in a stash on the street, in a car or house and they are not found on your person. A common defense to PWID charges is that the Commonwealth can not prove that you were in actual or constructive possession of the drugs. And, if you're not in possession of any narcotics, you certainly can't be convicted with an intent to deliver. Effective cross-examination and pre-trial investigation is vital to demonstrate that you either did not know about the presence of the drugs or, even if you did, you did not have the ability to control those drugs. This can be a very effective defense, especially when you are charged with distribution of drugs found in a house or car where a warrant is served. Brian M. Fishman has been very successfulwith this mere presence argument.

(3) Conspiracy: Often the Philadelphia police will arrest someone even though they never touched drugs nor dealt with any alleged buyers. The police justify these arrests after conducting a surveillance because they believe that the co-conspirator was either acting as a lookout, was responsible for the money on the corner, was re-upping the street with more drugs or was otherwise involved in the drug enterprise. Defense witnesses obtained early in the investigation or cross-examination of police can disprove the District Attorney's theory of a conspiracy.

(4) Mere Possession: Sometimes police will arrest and charge you with drug distribution because they observe you selling to drug users and buyers on the street and arrest those buyers with similar drugs or packaging. However, just as often, you will be charged with PWID because you are stopped in a vehicle for a traffic violation or you are in a home being searched and large quantities of drugs are recovered. A diligent and experienced drug defense attorney can use experts, defense witnesses and pinpoint cross-examination to prove that the drugs were not possessed with intent to deliver. Simple possession is a misdemeanor in Pennsylvania and often only carries a sentence of probation.

Sentencing for Drug Offenses

Proper preparation and a well-prepared and executed defense are extremely important in drug distribution cases as the penalties can be extremely harsh. A conviction for PWID, an ungraded felony, almost always calls for incarceration. The two most important factors in determining the sentence for possession with intent to deliver are (1) the quantity of drugs recovered and (2) whether there was a firearm present at the time of the offense. There are "mandatory minimum" sentences of state incarceration for PWID convictions if the weight of the drugs is over a certain amount. And, these weights are not high for the most common drugs. Just one gram of heroin triggers a mandatory minimum sentence of two years of incarceration for a first drug distribution conviction. Two grams of crack or powder cocaine, call for a year of state imprisonment and five grams of PCP demands three years of incarceration. If you have a previous conviction for possession with intent to deliver or if the drug weight is higher, longer mandatory minimum jail sentences are required. A judge has no discretion to sentence you below these mandatory minimums. These mandatory minimums are controlled by 18 Pa. C.S. Section 7508 and a complete list can be found in the below table:

18 Pa.C.S. § 7508 Drug Trafficking Sentencing and Penalties	Quantity	1^st Conviction	2^nd or Subsequent
Marijuana	2 lbs. to less than 10 lbs. or 10 live plants to less than 21 live plants	1 year	2 years
	10 lbs. to less than 50 lbs. Or 21 live plants to 51 live plants	3 years	4 years
	50 lbs. + or 51 live plants +	5 years	5 years
Heroin	1 gram to less than 5 grams	2 years	3 years
	5 grams to less than 50 grams	3 years	5 years
	50 grams +	5 years	7 years
Narcotics of Schedule I or II	2 grams to less than 10 grams	2 years	3 years
	10 grams to less than 100 grams	3 years	5 years
	100 grams +	5 years	7 years
Cocaine	2 grams to less than 10 grams	1 year	3 years
	10 grams to less than 100 grams	3 years	5 years
	100 grams +	4 years	7 years
Methamphetamine/ Phencyclidine	5 grams to less than 10 grams	3 years	5 years
	10 grams to less than 100 grams	4 years	7 years
	100 grams +	5 years	8 years
Amphetamine	5 grams +	2 ½ years	5 years
Methaqualone	50 tablets to less than 200 tablets or 25 grams to less than 100 grams	1 year	3 years
Methaqualone	200 tablets + or 100 grams +	2 ½ year	5 years

Pennsylvania’s Mandatory Minimum Sentencing Provisions As of December 2008 (Please see statute for details and up-to-date listing)

If you are convicted of PWID and there is a gun in close proximity to the drug activity, the judge must sentence you to a mandatory minimum of five to ten years of state incarceration. This is a broad and often applied mandatory minimum. And, it does not only apply when you are in physical possession of the firearm. The gun can be on a co-defendant, in a car or house where police execute a search warrant or chase a drug dealer or even found out on the street.

If you or someone you know has been arrested and charged with possession with the intent to deliver, manufacture or distribute drugs, contact Philadelphia criminal defense attorney Brian M. Fishman immediately for a free consultation.

Social Media is a Powerful Weapon in Court

2013-07-05T20:00:00.001-04:00

By Brian M. Fishman

The evidentiary trail from social media to a courtroom can be direct and devastating. An Oregon teenager learned that lesson the hard way last New Year’s Eve. As usual, at the end of the evening, he posted a status update on Facebook. He told the world about his drive home after celebrating: “Driving drunk . . . classic ;) but to whoever’s vehicle I hit I am sorry. :P” One of the teen’s hundreds of Facebook friends notified police, who the next day arrested him for leaving the scene of an accident. He's lucky he wasn't also charged with DUI as he admitted to that as well.

Everything you tweet and every status update you post is out in cyberspace forever, and often is available to law enforcement without a warrant because it is in the public domain where you have no expectation of privacy. For several years, police and prosecutors have routinely scoured social media – and the internet generally – to investigate crimes, locate suspects, discredit alibis, and retrieve evidence for use in criminal proceedings. These efforts have been much more fruitful recently as daily social media posts have become the norm for the majority.

Social Media & Boston Marathon Bombings

A recent high-profile case of social media as an investigative tool is the Boston Marathon bombings. Immediately following publication in the news media (and on social channels) of photos and video of the Tsarnaev brothers, some of the younger Tsarnaev’s college friends recognized him, and posted comments like: “That looks like Dzokhar, doesn’t it.” The next morning, the FBI knocked at these posters’ dorm room doors. Once the suspects were identified, law enforcement poured over their internet trail to gather information about their background, motives, possible accomplices, and future plans and plots.

Be aware that your social media activities create an abundant record of information about you. Prosecutors and investigators will scourge social channels to find information about you relevant to pending legal matters. This advice applies not only to individuals accused of a crime, but to civil litigants as well. I have posted on the issue of social media evidence and advanced surveillance technologies before to stress the importance of thinking before you post anything on social media channels.

Nowadays, people carelessly post evidence to their social media communities that can and are used to defeat their claims. Your social media footprint is forever, even if you try to scrub or hide the damaging material. It can be retrieved and used against you.

If you have been charged with a crime in Philadelphia, please contact criminal defense attorney Brian M. Fishman for a free consultation regarding your rights.

Sources:

http://digitaltrends.com/social-media-teen-brags-about-driving-while-intoxicated-on-facebook-gets-arrested/#ixzz21XK05EJg;

http://communities.washtingtontimes.com/neighborhood/leading-edge-legal-advice-everyday-matters/s013/may/5/tweeters-posters-texters-and-callers-beware-you-ar/#ixzz2SWstzAsV;

http://www.computerworld.com.au/article/459638/social_nets_could_hold_wealth_info_boston_bombers/?ref=suggest_image

Criminals Beware: Big Brother – and Your Fellow Citizens – Are Watching You

2013-06-03T21:09:00.000-04:00

By Brian M. Fishman

In my previous blog post, I discussed how “big brother” uses technology to investigate crimes. Just weeks later, TV and news outlets blasted headlines around the world about the most infamous crime since 9/11: the Boston Marathon Bombings. In the space of only a few short days, law enforcement – aided heavily by public participation – identified the two suspects, killing one and capturing the other.

Boston Bombing Manhunt

Technology was key in the speedy resolution of the manhunt that had Boston on edge and the nation and the world riveted to news bulletins. Not only did law enforcement use the latest, high-tech devices at its own disposal, but authorities were able to rely on almost immediately available surveillance photos and video by private businesses and ordinary citizen-witnesses at and near the blast scenes. Just over 72 hours after the bombings, these high-resolution images of the perpetrators were displayed on TV screens everywhere.

The most curious feature of these recent events is that these criminals seemed entirely unaware that their faces and actions would be recorded and made available to law enforcement. Suspects Tamarlen and Dzokhar Tsarnaev, in the few days after the crime until they were apprehended, casually went about their everyday activities – in full public view.

At a public event of such importance as the Boston Marathon, with friends and families gathered to record their loved ones’ running feats at the finish line, there was no shortage of photos of the suspects carrying and placing the bombs. This evidence was transmitted right away to police.
This immediately available material is a bonanza for public safety and the criminal justice system. Although there were eyewitnesses to the crime – including one of the injured victims who saw Dzokhar place one of the bombs at his feet just seconds before the explosion – this contemporaneous, highly reliable photo evidence eliminates the problems inherent in eyewitness testimony – that is, impaired memory and vision and the excitement and distractions of the moment, which I described in a previous post.

GPS technology also played a role in the apprehension of Tamarlen Tsarnaev a few days later – unfortunately, too late for an MIT campus police officer. The brothers had carjacked a Mercedes. When the owner was able to escape and report the incident to police, law enforcement was able to use the satellite tracking device in the vehicle to find the vehicle and the perpetrators.

There are no constitutional problems with the collection and use of evidence like the photos and videos, the GPS technology, and social media postings. There is no reasonable expectation of privacy in public places and on the internet.

Public Safety Exception

There was, though, one issue of constitutional significance in connection with this case: whether or not to immediately read the sole surviving suspect his Miranda Rights, informing him of his right to counsel. Ordinarily, when a suspect is apprehended, law enforcement must give Miranda warnings immediately if they intend on interrogating the suspect. There are certain exceptions, though, in emergency situations.

One such situation is the “public safety” exception. If there is good reason to believe that there may be additional crimes about to be committed – including other bomb plots – authorities have a short window in which to interrogate the suspect without reading him his rights to counsel and to remain silent. Almost as soon as Dhokar Tsarnaev was taken into custody, there were very public discussions in the news media about whether this could be an appropriate situation to invoke this “public safety” exception.

Law enforcement did, indeed, invoke this “public safety” doctrine and did not immediately read the suspect his rights. The Miranda warnings were not given until the suspect’s first court appearance; the federal magistrate, herself, read him his rights. In any event, the younger Tsarnaev was apparently eager to talk and explain his “rationale” for these horrific bombings. If you are suspected of a crime or know police have been contacted concerning possible illegal actions on your part, do not post anything concerning these actions on any social media outlet – Facebook, Twitter, Instagram, Google+, MySpace or YouTube. Instead, contact an experienced criminal defense attorney and discuss the matter with only your attorney.

____________________
Sources:

USA Today (online, 7:32 p.m. EDT April 22, 2013), Kevin Johnson et al, “Case against bombing suspect based on videa, photos,” http://www.usatoday.com/story/news/nation/2013/04/22/boston-marathon-bombing-charges-federal-dzkokhar-tsarnaev/2103519/

CNN.com (online, updated Mon April 22, 2013, 5:15 pm) Ann O’Neill et al, “As Boston reeled, younger bombing suspect partied,” www.cnn.com/2013/4/20/us/boston/-younger-bombing-suspect-partied

Boston Globe (online edition, 4/20/2013 1:22 am) Shelley Murphy, et al, “Marathon bombing suspect captured in watertown; condition ‘serious’
CNN.com, (online, April 19th, 2013, 10:47 PM ET) Boston bombings: “CAPTURED!!! The hunt is over,’ police say, http://news.blogs.cnn.com/2013/04/19/live-blog-police-action-in-boston/comment-page-12/

Boston Globe (online edition, 4/20/2013 1:22 am) Shelley Murphy, et al, “Marathon bombing suspect captured in watertown; condition ‘serious’
http://www.boston.com/metrodesk/2013/04/18/search-for-marathon-bombing-suspect-locks-down-watertown-surrounding-communities/UAbtwLVGLwBE5VI7BUyQuL/story.html

Can I get my Criminal Record Expunged in Pennsylvania?

2013-05-24T20:56:00.001-04:00

By Brian M. Fishman

Would you run a marathon, leading the entire way only to get to the finish line ahead of the pack and stop before crossing it? Of course not. So, don't proceed through a long and stressful criminal justice system, beat your case or have it dismissed only to walk out of the courthouse thinking your work is done.

I'm often asked the above post-title question shortly after a client hires me. My initial response, "We need to beat the case first." And that truly is the most important step to an expungement. If you beat your case, you're likely entitled to an expungement of your criminal record. But, it doesn't happen on its own. You need to petition the court for an expungement. And, expungement of your criminal record is vital as a record, even if the case did not result in conviction, can effect future employment and earning capacity, damage your reputation, effect your ability to obtain financial aid for school or get in to the military.

What is an expungement? It is a court order to have all records and evidence of one's arrest and criminal charges removed from all law enforcement agency records. In Pennsylvania this includes the AOPC (Administrative Office of Pennsylvania Courts), the local county or township police department, the Pennsylvania State Police, the FBI and any other law enforcement entities.

If you go to trial and you're acquitted or found not guilty of all of the charges against you, you're entitled to have your record expunged. If your case is dismissed by the court, withdrawn by the Commonwealth or nolle prossed (a fancy Latin term for withdrawn) by the District Attorney's Office prior to trial, you have the right to petition the court for an expungement. In the majority of cases in Philadelphia, the District Attorney's Office will not oppose a Petition for Expungement so long as you have no prior record. I recently had a client with a six-page record without a single
conviction.  I successfully got every adult contact with the criminal justice system off of his record. He now has a job with the Philadelphia Prison System. If you have prior convictions, especially felony convictions, the Commonwealth may oppose the petition under the theory that removing evidence of the new arrest, even though the charges were withdrawn, will not erase the prior felony conviction and therefore the defendant does not gain anything from expungement.  At that point a hearing will be held to weigh the benefit the defendant receives from expungement versus the access to information that society should have about an individual after which a judge will rule on the Petition for Expungement.

If you successfully complete a pre-trial diversionary program such as ARD (Accelerated Rehabilatative Disposition) or Section 17, you are entitled to expungement as the charges are withdrawn after successful completion of these programs.  And, in all likelihood, you would not have been offered one of these programs if you had a prior record as they are for first-time offenders of minor crimes including DUI, harassment, disorderly conduct and possession of drugs.

Two exceptions to the above rules:

1. An exception to the above "We need to beat the case first" rule, is conviction for a summary offense. If you are found guilty of a summary, you can petition the court for expungement five years after conviction so long as you have had no arrests or contacts with the criminal justice system during those five years; and

2. Pennsylvania law prohibits the courts from expunging records, even if you successfully completed the terms of ARD if you were charged with certain sexual assault or related offenses against victims under the age of 18.

Rule 790 of the Pennsylvania Code lays out the procedure for obtaining an expungement as well as the information necessary for a petition for expungement when charged with misdemeanors and felonies and Rule 490 covers expungements in summary matters.

Expungements in Pennsylvania are controlled by 18 Pa.C.S. 9122 which delineates when records shall be expunged and when they may be expunged. In summary, the records shall be expunged if (1) no disposition has been received or recorded with the repository within 18 months after the date of arrest; (2) a court order requires non-conviction data be expunged or (3) a person 21 or older was convicted of Section 6308 relating to underage drinking where the individual satisfied all conditions of the sentence, including drivers license suspension and the defendant petitions the court for expungement. Criminal history records may be expunged when (1) one reaches 70 years old and has not been arrested for 10 years following release from prison or (2) the person has been deceased for 3 years.

If you believe that you or a loved one may be entitled to an expungement of your criminal record, please contact Philadelphia criminal defense attorney Brian M. Fishman for a free consultation concerning your rights.

DUI in PA: That Casual Evening Out Can be Costly

2013-05-08T15:57:00.001-04:00

By Brian M. Fishman

That pleasant evening with your friends at a favorite local restaurant may be more expensive than you planned: Pennsylvania has severe penalties for driving while under the influence of alcohol or controlled substances (DUI). Before you put your keys in the ignition, consider the consequences for your wallet, your reputation, your livelihood, and even your freedom.

Pennsylvania’s DUI Laws

In 2003, the Commonwealth’s DUI laws were changed. The legal limit for DUI is now .08% – down from the previous .10.%. There is also a new system of graduated penalties, depending on 3 factors: your blood alcohol level (BAC), the severity of injuries and damages you caused while driving under the influence, and how many times you have previously been convicted of DUI. These 2003 changes also focus on treatment for alcohol or drug problems in appropriate circumstances.

What is “Driving under the Influence”?

If you are age 21 or older, you are considered by law to be driving “while under the influence” if your BAC is .08 or higher. However, even if you have a lower BAC, or if you are impaired by drugs (or drugs and alcohol combined), you may also be guilty of DUI, if you are stopped by police for “driving erratically”: too slow or too fast, making wide turns, weaving in and out of lanes, driving through stop signs, or similar driving behavior. This “general impairment” can be proven by the police officer’s opinion that you were incapable of safely operating a vehicle on the streets of Pennsylvania.

Zero Tolerance Policy for Underage Drivers

Pennsylvania has a “zero tolerance” policy for drivers under age 21 who drive with BACs of even just .02%. If you are convicted of DUI (.02% and above), there will be jail time ranging from 2 days to 6 months, suspension of your license for an entire year, and a fine between $500 to $5,000.

Pennsylvania’s Implied Consent Law

Just by being licensed to drive here, you have agreed to take one or more chemical tests of breath, blood or urine if the police arrest you for DUI. If you refuse, your driver’s license will be automatically suspended for one year. This license suspension is for refusal to take the test, and can be imposed by PennDOT even if you are found not guilty of driving while under the influence. It will also be in addition to other license suspensions if you are convicted of DUI.

Three-Tiered Penalty System

Generally, the penalties are arranged by (a) level of impairment; and (b) number of prior DUI convictions. The first tier is for “General Impairment” of .08% to .099% BAC. A first offense at that impairment level will result in 6 months probation and a $300 fine with no suspension of driving privileges. But, a third offense at that BAC level is eligible for 10 days to 2 years in prison, a $500 - $5,000 fine, and a full-year suspension of your driver’s license. The second-tier penalties are for “High Rate” BAC; that is, .10% to .159%. The third level is for “Highest Rate” BAC – .16% and over. There, too, the consequences for a DUI conviction are greater if this is not your first arrest. For example, for a third offense under the “Highest Rate” category, the penalties are: 1 to 5 years in state prison, a minimum fine of $2,500 and an 18-month suspension of your driving privileges. If you are involved in a crash resulting in death, bodily injury, or even property damage, you are subject to the penalties at the second-tier level, even if your BAC is lower than .10%. Within this three-tiered penalty system, there are possible court-ordered treatment program alternatives in certain cases. The goal of the Accelerated Rehabilitative Disposition (ARD) Program is to divert certain first-time DUI offenders out of the criminal justice system.

_____________________

Sources: PA Driver’s Manual, http://www.dmv.state.pa.us/pdotforms/PAdriversmanual/
Chapter_4.pdf; PA Dept. Of Transportation, Driver & Vehicle Services,
http:www.dmv.state.pa.us./legislation/dui.shtml

Miller Revisted: Batts Gives Juvenile Lifers New Life

2013-04-30T17:44:00.003-04:00

By Brian M. Fishman

In Pennsylvania, the law of the land prior to June 25, 2012, was that anyone convicted of first- or second-degree murder was subject to a mandatory sentence of life without parole (or death in the case of capital first-degree murder). This applied to anyone tried and sentenced in adult court, regardless of their age at the time of the offense. That is, juveniles could be certified to adult criminal court for murder charges and there be treated as adults subject to the same sentences. However, in Miller v. Alabama, 132 S.Ct. 2455 (2012), a recent Supreme Court case, it was held that a mandatory sentence of life without the chance of parole was unconstitutional for juveniles under the 8th Amendment's prohibition against cruel and unusual punishment. I discussed this case in an early post, which can be read here. Miller did not explicitly state that a juvenile could not receive a sentence of life without parole. Rather, it held that a sentence of life without parole could not be a mandatory that must be imposed but rather the sentencing court must conduct an individualized assessment of the juvenile before them to determine the appropriate sentence. The Court used scientific evidence demonstrating that juveniles' brains are not fully developed and therefore the juvenile offender is more impulsive, less mature, less able to make thoughtful judgments of risk and more capable of change or rehabilitation.

This created a number of questions for the hundreds of individuals in Pennsylvania serving/facing life without parole sentences for offenses committed before their 18th birthday:

What was the remedy on direct appeal for juveniles sentenced to life without parole on or after the date Miller became law where Pennsylvania law still required a life without parole sentence;
What should Pennsylvania lawmakers do to rewrite the law in the wake of Miller as the Pennsylvania sentencing scheme was now unconstitutional; and
Are those juveniles who were previously convicted and sentenced to life without parole before Miller became effective entitled to a new sentencing hearing? That is, does Miller's holding apply retroactively to those who were juveniles at the time of their offense but were sentenced 5, 10, 20 or more years ago?

Remedy on Direct Appeal for Juveniles Sentenced to Life Without Parole

As to the first question above regarding the remedy for those sentenced after Miller became effective on June 25, 2012, juvenile lifers were anxiously awaiting the Pennsylvania Supreme Court ruling in Commonwealth v. Qu‘eed Batts. These offenders, who were under the age of 18 at the time of their offense, had now been sentenced to an unconstitutional life without parole sentence. This case addressed the remedy, on direct appeal, for these juveniles. The Supreme Court of Pennsylvania held that juveniles sentenced for murder after Miller were now subject to a mandatory maximum sentence of life imprisonment, accompanied by a minimum sentence to be determined by the trial court upon resentencing. The court, using somewhat vague language, stated that these defendants were subject to “high mandatory minimum sentences and the possibility of life without parole, upon evaluation by the sentencing court of criteria along the lines of those identified in Miller”.

Pennsylvania Legislature Drafts New Law Following Miller

Following the ruling in Batts, Pennsylvania lawmakers drafted legislation to provide a more definitive framework for Pennsylvania judges sentencing an individual convicted for a first- or second-degree murder that occurred prior to their 18th birthday. The new law set mandatory minimums as follows:

35 years for juveniles between the age of 15 and 17 convicted of first-degree murder.
25 years for those juveniles under 15 convicted of first-degree murder.
30 years for juveniles between the age of 15 and 17 convicted of second-degree murder.
20 years for those under 15 convicted of second-degree murder.

There's still a maximum of life imprisonment without parole as Miller did not say that this sentence was unconstitutional. Many argued that these arbitrary mandatory minimums missed the true spirit of Miller as the Supreme Court stressed that the sentencing judge should conduct an individual assessment of the juvenile offender before them to craft an appropriate sentence for that juvenile taking into consideration age, prior record, family background, education level, any mental health issues, drug or alcohol problems, specific involvement in the crime and many other factors that would address rehabilitation in addition to punishment.

Will Miller Apply Retroactively?

The third, and most far-reaching question post-Miller was whether its holding would apply retroactively. That is, are hundreds of individuals sentenced to life without parole for first- or second-degree murder for offenses committed before their 18th birthday entitled to new sentencing hearings regardless of their age now and the amount of time they've been incarcerated. Or, does Miller only apply to those sentenced on or after June 25, 2012? This question is currently before the Supreme Court of Pennsylvania in the matter of Commonwealth v. Ian Cunningham, 51 A.3d 178. This case was argued before the Supreme Court on September 12, 2012. The Petition for Allowance of Appeal was to address the following issue: Did the trial court err in imposing a life sentence without parole for the crime of second-degree murder? However, both parties were directed to address the following two related issues:

Whether the holding in Miller v. Alabama, that a juvenile convicted of a homicide offense cannot be sentenced to life imprisonment without parole unless there is consideration of mitigating circumstances by a judge or jury, retroactively applies to an inmate serving such sentence when the inmate has exhausted his direct appeal rights and is proceeding under the Post Conviction Relief Act?

If Miller v. Alabama, is determined to have retroactive effect, what is the appropriate remedy under the Pennsylvania Post Conviction Relief Act for a defendant who was sentenced to a mandatory term of life imprisonment without the possibility of parole for a murder committed when the defendant was under the age of eighteen?

Stay tuned for results in Cunningham as a positive defense ruling would flood the courts with PCRA filings requesting new sentencing hearings for hundreds of convicted murders in Pennsylvania. If you or a loved one was sentenced to life imprisonment without parole for a first- or second-degree murder that was committed prior to the offender's 18th birthday, contact Philadelphia criminal defense attorney Brian M. Fishman for a consultation regarding your rights.

Technology Has Become Our Own "Big Brother"

2013-03-16T18:34:00.000-04:00

By Brian M. Fishman

The judge said, "Son, what is your alibi?...If you were somewhere else, then you won't have to die." Classic lyrics from Johnny Cash's Long Black Veil. Technology has greatly effected criminal law and the investigation of crimes. Law enforcement is more and more using video surveillance cameras, cell phone locations, text messages and recorded prison phone conversations to try and solve crimes or gather additional evidence against defendants. State troopers in Pennsylvania are required by law to have operating cameras on the front dashboard of all their cruisers to video record car stops. And, what about those red light cameras in Philadelphia which end in you getting a ticket in the mail showing three pictures of your car running a red light.

BIG BROTHER IS IN FACT WATCHING

Philadelphia police recently arrested Jason Smith in the strangling and burning murder of Dr. Melissa Ketunuti, a pediatrician at CHOP. The police relied heavily on video surveillance cameras around the doctor's house to observe Smith following her into her house, leaving sometime later and circling her home thereafter. Whatever the outcome, this evidence is obviously pretty damaging to Mr. Smith.

Cameras are everywhere now, catching your every move, innocent or not. Businesses, schools, homes, the City of Philadelphia, SEPTA buses, trains and trolleys have cameras that end up catching many crimes, including gunpoint robberies, assaults, shootings, drug dealing and DUI. When there is a violent crime on the streets, diligent police officers now scourer the immediate area for any surveillance cameras that may have caught the crime on tape. And, it's tough for a defense attorney to cross-exam a movie that shows their client committing the robbery with a firearm in his hand.

YOUR SMARTPHONE TRACKS YOUR EVERY MOVE

Additionally, if you walk around with a smartphone in your pocket, which almost all of us do, your every move is essentially tracked as your phone is constantly "pinging" or hitting the closest cell tower. Therefore, if you are suspected of a crime and police obtain your cell phone number, they can oftentimes place you at or near a crime scene using the circumstantial evidence that your phone hit off a nearby cell tower around the time of the crime. This can obviously be strong evidence for the prosecution.

"THIS PRISON CALL IS BEING RECORDED"

If you heard the above words before you began a telephone conversation, would you start talking about a crime you committed? Would you tell others to threaten or pay the witnesses against you not to come to court? Of course not. But, you'd be amazed at how often it happens. When a criminal defendant is locked up, he can't help but talk to loved ones over the phone about his case. Even if denying his involvement, these phone calls are almost always damaging to the defense. And, they often lead to the defendant and others getting arrested for intimidation of a witness or retaliation against a witness and the Commonwealth getting jury instructions on a defendant's consciousness of guilt. Why have friends or family go pay or threaten a witness not to come to court if you didn't commit the crime so goes the prosecutor's argument?

BUT, CAN ALL THIS TECNOLOGY HELP THE CRIMINAL DEFENDANT?

While all of this technology seems to favor law enforcement and the District Attorney's Office, it can also be used to a defendant's advantage to assert an affirmative defense, such as establish an alibi or prove self-defense or to destroy the credibility of key prosecution witnesses and even detectives.

1. Alibi Defense

If you truly did not commit and had nothing to do with the shooting, then you weren't at the scene. So, where were you? And, is there a camera in the area where you were? It's possible there was and a defendant's best defense is early investigation. Businesses often tape over their camera feeds regularly and if you don't act quickly, you could lose key evidence to prove a lock-solid alibi. David Nenner of my office recently won an acquittal in a homicide that occurred in North Philly by presenting video surveillance that showed his client at a gas station in Center City Philadelphia about five minutes before the murder occurred over twenty minutes away in North Philadelphia.

2. Credibility of a Witness

In the same case, Mr. Nenner presented another video from a hospital entrance showing the prosecution's lead witness and cousin of the accused entering the hospital one minute before the shooting occurred twenty minutes away! This evidence not only destroyed the credibility of that witness but showed that the police had beaten the story that the accused was at the scene out of the cousin. So, with one video, the investigating detective's credibility along with the Commonwealth's star witness was shot. I recently represented a woman accused of domestic assault. The complainant didn't report the incident right away and there was a legal battle over the ownership of a business behind the assault allegations. The alleged victim sent nasty text messages to my client and her family in the days after the alleged assault. I was able to use those texts to question the victim's motives and her credibility and secure an acquittal for my client.

3. Self-Defense

When police arrive on the scene of an assault, such as one that occurs outside a Philadelphia bar, their victim often becomes the one with the most serious injuries. And, the other guy becomes their perpetrator. But, those same bars now have cameras showing the outside of the bar. If you're attacked and retaliate by defending yourself and end up getting arrested for asault, that bar's video surveillance system may hold the key to your liberty. But, you need to get it quick because the bar may have their taping system on a seven day loop. And once lost or tapped over, that video can never be retrieved.

CONCLUSION

If you or a loved one has been arrested for a crime, the hours and days immediately following your arrest are critical. It's key that you secure legal counsel who will investigate the case immediately. A swift investigation is often the best defense. This requires the client's assistance but also requires an attorney who will ask the right questions and act quickly to get the evidence you need to secure an acquittal. Don't count on the Philadelphia police to simply tell the truth or do your homework for you.

If you have been arrested in Philadelphia or the surrounding counties, contact Philadelphia criminal defense attorney +Brian M. Fishman, Attorney at Law, who will immediately begin to investigate your case and leave no stone unturned in an effort to win your case.

Brian M. Fishman's Online Profiles

2013-02-14T13:33:00.001-05:00

By Brian M. Fishman

Brian M. Fishman's Online Profiles:

Avvo

LinkedIn

Google+

Twitter

BrandYourself

Facebook

Actual or Constructive Possession: PA Law Punishes For Both

2013-02-06T18:04:00.004-05:00

By Brian M. Fishman

Client was charged with conspiracy and possession of contraband in a Philadelphia prison after his girlfriend brought marijuana into the prison and tried to pass it to him during a visit.  All charges were dismissed against my client following a preliminary hearing yesterday.

Corrections Officers testified at the preliminary hearing that client was searched prior to going to a visit at the prison with his girlfriend. According to the COs, client and girlfriend were acting very suspicious by looking around, looking at the COs and not looking at or talking to each other during the visit. The COs testified that they observed the girlfriend reaching into her dress on numerous occasions. The COs called their superiors who terminated the visit.  Client was taken back to his housing unit and searched again and nothing was recovered.  COs also searched client's girlfriend and recovered 26 grams of marijuana from her and arrested her for possession of marijuana along with possession of contraband on prison grounds. A conviction on the contraband charge carries with it a two year mandatory minimum state sentence. This harsh mandatory minimum is obviously there to deter anyone from even considering bringing drugs into a prison.

The court ruled that there was not even enough evidence to send the case past the preliminary hearing and onto trial because the Commonwealth failed to prove that my client was ever in possession of the marijuana. In order to prove a possessory offense in Pennsylvania, whether it be possession of drugs, a gun or any other illegal item, the prosecutor must prove that the defendant was either in actual or constructive possession of the object. Actual possession is the obvious form of possession where the defendant is either holding the drugs or it is somewhere else on his person, such as in his pants or coat pocket. It's what we all think of as being in possession of something. However, the prosecutor can also prove possession if he can show constructive possession. Constructive possession is demonstrated when the defendant is not in physical possession of the firearm but she has the conscious dominion and ability to control the firearm.

For example, if police pull you over and as they approach they observe you making furtive movements and therefore order you out of the car.  Upon exiting the vehicle, the police observe the butt of a gun sticking out from under the driver's seat. While you were not in actual possession of the gun at the time you came in contact with police, the circumstances prove that you were in constructive possession as it was nearby, there was no one else in the car, the car was registered in your name and your movements demonstrate that you had conscious dominion over the gun and the ability to control it. Another scenario common to car stops is where police pull someone over and there is a passenger or two in the car and the gun or drugs are not found on anyone but rather found in the glove box, the center console or perhaps under the passenger seat. In this situation, the police often arrest everyone in the car and the prosecutor can charge and try all of the occupants under a theory that they were in joint constructive possession as they all had conscious dominion and the ability to control the contraband.

Finally, another example is when a drug dealer is selling from a drug stash on the streets.  The law outsmarts the dealer. The dealer doesn't want to get caught with too much drugs on him because he's concerned about losing the product if arrested or perhaps getting robbed. So, he puts the drugs in a nearby drain pipe or an empty lot. When drug users approach, the dealer takes money from the user, walks over to the stash to get a packet or two and walks back to deliver the drugs. The user walks off. Police are performing a surveillance on the block and watching all of this. Police stop the buyer and recover a pink packet of crack cocaine. The dealer makes two or three similar transactions where police see him going to the same stash and selling to users. After each sale, the buyer is stopped and has pink packets of crack cocaine. The police then move in to take down the corner and arrest the dealer and they recover money but there are no drugs on him. They go to the empty lot and recover a baggie with 15 pink packets of crack cocaine. The police charge the dealer with possession with intent to deliver the drugs sold to the users and what was in the stash. But, the dealer didn't have any drugs on him so how can he be charged with possession with intent to deliver? Because even though he wasn't in actual possession of the drug stash or even the drugs on the buyers, he was in constructive possession of both as the evidence shows that he had conscious dominion and the ability to control both. Therefore, even though not in actual possession of the drugs, the defendant will be charged with possession of all the drugs and will be charged with the felony offense of possession with intent to deliver. Further, if the total weight of the packets is over the necessary threshold for a mandatory minimum, 2 grams for crack cocaine, the prosecutor will seek a state sentence of at least the applicable mandatory minimum.

In my inmate contraband case, the prosecutor tried to argue that my client was in constructive possession of the marijuana brought into the prison by his girlfriend based on his nervous actions, the circumstances, an attempt theory and the conspiracy charge. However, I was able to argue that because the girlfriend was in actual possession of the drugs, nobody else, including my client could be in constructive possession. And, you can't prove a possessory offense under a theory that he attempted to posses the drugs or a conspiracy theory. The judge begrudgingly agreed and dismissed the charges. Finally, this is an example of law enforcement jumping the gun (no pun intended) in their investigation. The Corrections Officers should have let her pass the drugs and then immediately terminated the visit and searched them both. They would've recovered the marijuana from my client and had strong proof that it came from his girlfriend because they saw something passed off and my client was searched before the visit and had nothing on him. They would have had very strong cases against both for possession of contraband and conspiracy. Further, they could have charged the girlfriend with possession with intent to deliver as she "delivered" the drugs to my client. You don't need to receive money or other compensation in return for the drugs to prove possession with intent to deliver. The mere handing off to another is delivery. So, legally, if a bunch of friends are sitting around and passing a joint to each other smoking marijuana, all are technically guilty of possession with intent to deliver. A jury may see it differently but the law does not.

If you or a loved one has been arrested for possession of narcotics, a firearm or any other possessory offense, contact +Brian Fishman at 215-564-0644 or fishmanlaw@gmail.com for a free consultation so your rights are protected.

To See or Not to See: The Unreliability of Eyewitness Testimony

2012-09-10T14:25:00.000-04:00

By Brian M. Fishman

Prosecutor: "You just identified the defendant as the person who robbed you at gunpoint. How sure are you?"
Witness: "I'm 100% sure."

I hear this often as I sit next to my clients in a Pennsylvania courtroom; their freedom and future at stake. I wasn't at the scene of the crime so I don't know if my client was the perpetrator. But, I am 100% sure that the witness isn't 100% sure. How could they be when they're forced to think back to more than a year ago when a gun was pointed at their chest for 20 seconds at 10:30 p.m. and their life threatened if they didn't give up all their stuff? It's easy to identify the only defendant sitting at defense table in a well-lit courtroom with none of the above stressors or impediments to observe.

Science Demonstrates Concerns over Eyewitness Identifications

Everyday, in courtrooms across America, people are convicted of serious crimes, such as armed robbery, aggravated assault, rape and murder, based on eyewitness testimony. Solely, on the testimony of one person saying that they saw another commit the crime. While many witnesses are accurate in their identifications, too often they are wrong and innocent people are convicted of crimes they didn't commit merely because of the identification testimony of one witness. Eyewitnesses are often not lying when they point across the courtroom and "finger" the defendant. They strongly believe that they're right, they're just mistaken. They believe they're 100% sure. And, these cases are extremely difficult to get reversed on appeal because how does an attorney prove to an appellate court that the witness was mistaken?

It's a problem that occurs way more often then it should considering the fact that there now exists reliable scientific evidence on human memory and the various factors that can affect the reliability of eyewitness identifications. Despite the science, Pennsylvania courts have failed to educate jurors about the pitfalls of identification testimony and innocent people continue to be convicted based on faulty evidence. New Jersey has acknowledged the science and published new jury instructions so jurors can be aware of what specific factors to take into consideration when evaluating the accuracy of eyewitness identifications. Pennsylvania should follow New Jersey's lead.

New Jersey Adopts New Jury Instructions on Identifications

In August 2011, the New Jersey Supreme Court unanimously decided the case of State v. Larry R. Henderson and gained national attention by directing that revised jury instructions be prepared to help jurors evaluate identification evidence. On September 4, 2012, the new jury instructions became effective. The new instructions caution that certain factors about an eyewitness’s circumstances at the time of the offense could render their testimony less reliable. Those factors include the stress the eyewitness was under, the duration of the event, lighting, distance, time lapse between the incident and in or out-of-court identifications, the eyewitness’s focus on a weapon, and cross-racial identification.

The prosecution must always prove beyond a reasonable doubt the elements of the crime charged AND the identification of the perpetrator. Whenever identification is the only issue in a case, I concede that the crime occurred & hone in on the above issues. But, my argument on the fallacies of identification testimony would hold much more weight if the jury was instructed by the judge about the scientifically-proven problems with this type of evidence.

Cross-Racial Identifications Often Most Inaccurate

Cross-racial identifications are often the most questionable. But, they are also difficult to deal with as an attorney due to the sensitive nature of race relations. If you question a white witness' ability to identify a black defendant, are you calling them a racist? I certainly am not, but you need to be careful when questioning the witness on this issue and possibly offending jurors. It's a scientific fact that members of the same race are more in tune with identifying features of that race than someone of another race. However, Pennsylvania courts have refused to instruct juries on this fact. In contrast, the New Jersey instructions now state, "Research has shown that people may have greater difficulty in accurately identifying members of a different race. You should consider whether the fact that the witness and the defendant are not of the same race may have influenced the accuracy of the witness’s identification."

It's time that Pennsylvania courts catch up with the scienctific evidence and educate jurors on this issue the way New Jersey and many other states have and thereby decrease wrongful convictions based on this suspect evidence.

It's Miller time for Juvenile Lifers: Court strikes down Mandatory Life Imprisonment Without Parole

2012-08-09T16:10:00.002-04:00

By Brian M. Fishman

On June 25th, the US Supreme Court issued a ruling in Miller v. Alabama that bars mandatory "life without parole" sentences for juvenile offenders. The Court found that such a penalty violated the Eighth Amendment right against "cruel and unusual punishment". Interestingly, the Court didn't expressly state that a juvenile, under certain circumstances, could not receive a sentence of life without parole. But, rather, that such a mandatory sentencing scheme was unconstitutional. Is there a difference? Yes.

The court found that a trial court must do an individualized assessment of the juvenile before them to determine if a sentence of life without parole is the only option for this juvenile based on their background, age, facts of the homicide, culpability of this juvenile and other factors that the sentencing court finds relevant. I indicate "facts of the homicide" because the Court has previously held that a sentence of life without parole for a juvenile convicted of a non-homicide crime is unconstitutional.

This opinion raises interesting questions specifically for juvenile "lifers" in Pennsylvania as the mandatorysentence, if convicted of 1st or 2nd degree murder in Pennsylvania is life imprisonment without the possibility of parole. If you are a juvenile previously convicted of 1st or 2nd degree murder and sentenced to life without parole what is your remedy? First, all juveniles in this situation must file a PCRA claim by August 23, 2012(60 days from the date of the Miller opinion) or they risk losing their right for redress from the courts. The Juvenile Law Center is currently arguing Commonwealth v. Batts before the Pennsylvania Supreme Court involving a juvenile lifer whose sentence is now illegal based on the Miller holding. Therefore, if you know anyone in this situation, they should reach out to me or the Juvenile Law Center to seek immediate assistance with the filing of a Miller PCRA.

Second, if Pennsylvania law currently reads, as it does, that all convicted of 1st or 2nd degree murder must receive a mandatory life sentence without parole but Miller states that this mandatory sentence is illegal, what are Pennsylvania courts supposed to do? There's not a clear answer to this question. One argument, adopted by the Juvenile Law Center, is that the sentencing court must sentence the juvenile on the lesser included offense of 3rd degree murder so that the sentencing judge can have the discretion to sentence in accordance with Miller. Another possibility is that the sentencing judge will conduct the individualized assessment of the juvenile and his/her case in accordance with Miller and re-sentence the juvenile to a lesser sentence despite the current law. A third option is the courts may very likely wait for a legislative fix to the issue.

As far as prosecutors in Philadelphia are concerned, the District Attorney's Office may very well take the position that Miller is not retroactive and therefore no sentence of past juvenile lifers can or should be adjusted. Rather, the DA may argue, Millerwas only meant to effect those juveniles convicted of 1st or 2nd degree murder after the Miller ruling on June 25, 2012. Either way, the legislature and state courts are going to have to get involved as those juveniles currently serving a life sentence are going to argue that Miller applies to them. The legislature is going to have to enact new sentencing guidelines in accordance with Miller. It will be an interesting issue to keep an eye on.

Megan's Law Revisited: Retroactivity Clause Retroactively Removed

2012-07-25T18:19:00.001-04:00

By Brian M. Fishman

On July 9, 2012, I wrote about what I believed to be the extremely unfair and arguably unconstitutional retroactive application of the new Megan's Law legislation in Pennsylvania. I wrote about this in my post titled "Me-A-Gan: Once a Sex Offense, Always a Sex Offender". This law is due to go into effect on December 20, 2012. I am happy to report that much of the unfair part of the retroactive portion of the law that I wrote about has been removed. This author clearly had nothing to do with this change but is happy nonetheless. I still believe that there should be no retroactive application of this law, however, this is certainly a step in the right direction.

The retroactive portion of the law essentially said that if you were previously convicted of an enumerated sex offense at any time in the past and were in jail or on probation for any offense--possession of drugs, DUI, retail theft or any other minor misdemeanor--on December 20, 2012, you were required to register as a sex offender. The absurdity and unfairness of this law seems so obvious, right? Why should someone who was convicted of a sex offense over twenty years ago and never had to register as a sex offender because Megan's Law didn't exist, now have to register because they are probation for a retail theft on December 20, 2012? They shouldn't. And, now they don't have to.

Earlier this month, Governor Corbett signed into law amendments to the newest Pennsylvania Megan's Law, which greatly reduces the retroactivity of the law. The new amendment requires retroactive registration as a sex offender only for those who are still serving a sentence on December 20, 2012 "as a result of a conviction for a sexually violent offense."  These crimes are defined as "sexually violent offenses". Therefore, only those who are still imprisoned or under court supervision (probation or parole) for the sexually violent offense when the law goes into effect will be required to register as a sex offender. This is obviously a much more fair approach.  But, there are many more crimes that are included as "sexually violent offenses", including indecent assault, statutory sexual assault, unlawful restraint and false imprisonment, to name a few. This is where I still think there are constitutional questions. It doesn't seem fair if you pled guilty to indecent assault earlier this year and received two years of probation with the understanding that there were no Megan's Law requirements only to find out that on December 20, 2012, you will have to register as a sex offender under Megan's Law. When you entered into that plea earlier in the year, did you do so in a knowing, intelligent and voluntary manner understanding all of the repercussions? Of course not. And, for that reason, I believe there will still be challenges to the constitutionality of the law.

In addition, the retroactivity for the juvenile portion of the law has also been curtailed. The amendment will require retroactive registration for children only if the child is still "subject to the jurisdiction of the court on the basis of" a sex offense.  Juvenile sex offenses are listed here but include rape, involuntary deviate sexual intercourse, aggravated indecent assault or attempt, conspiracy or solicitation to commit any of those crimes. So, like the adult, the juvenile must still be under court supervision for the sexual offense to trigger registration.

If interested, the entire text of the statute can be found here. Hopefully, the government will get rid of the retroactivity all together before December 20, 2012. Stay tuned...

Me-A-Gan: Once a Sex Offense, Always a Sex Offender

2012-07-09T11:33:00.001-04:00

By Brian M. Fishman

In December 2012, Pennsylvania's newest version of Megan's Law (also known as, "SORNA") will go into effect. It's draconian, unfair, over broad and casts way to big a net. I'll discuss some of those issues in greater detail in a later post. But, the law should be declared unconstitutional for another reason: Its retroactive nature. In other words, "Me, Again...I already paid my debt to society. Why are you coming back to me know and requiring registration years after my sentence is over?"

Let me first say that society and our children should be protected from violent pedophiliac sex offenders. I have two children and if a sex offender was to ever touch either of them inappropriately, I may be the one that would need to pay bail. But, it's one thing to require a recent sex offender, upon release from prison, to register & verify their residence to protect our children. It's quite another to make someone who was convicted of rape of another adult decades ago, served their debt to society, never had to register and is now on probation for possession of marijuana, to now have to register for LIFE and comply with all of the conditions of Megan's Law. But, that's exactly what the new law requires.

According to the new law, any person who, after December 12, 2012, had been previously been convicted of a sex offense and is on state parole or county probation for a non-sex offense, misdemeanor or felony, has to register under Megan's Law. So, if you were convicted of attempted rape in 1985, served 4-8 years in prison and are on probation for a DUI on December 12, 2012, you will have to register for life even though you served your sentence, remained arrest free until the recent DUI and never previously had to register (the first PA Megan's Law wasn't passed until about 1995). Or, if you get sentenced to one year of probation for possession of drugs next week and were convicted of indecent assault and received and completed probation in 1992, you will have to now register under Megan's Law for 15 years, as it's a Tier 1 offense. And, indecent assault was not even a Megan's Law offense prior to this most recent iteration of the law when you pled to it. In fact, you could have pled guilty to indecent assault, which is any inappropriate touching (not direct skin contact) of another's private parts (butt and breasts, included) for sexual gratification, last year and received two years of probation with no special conditions of probation. But, on December 12, 2012, you will be labeled a sex offender, required to register your residence, employment and/or educational institution for the next 15 years.

You may say, "Well, what's the big deal? If the offender hasn't committed any sexual offense in years, no reason to commit one now but better safe then sorry for our children, right?" Wrong. There are a number of problems with this law and this thought process. First, the stigma in the community of being labeled a "sex offender" is almost insurmountable. Nobody wants you to live in their backyard. No employer wants you working for them. Your personal information is on the PA Megan's Law website for all to see. Second, there are serious criminal consequences for failing to register. You face potential criminal prosecution for 15 years should you forget to verify information. There are mandatory state prison sentences for failure to register. If you travel and you're living in another state for over a month and fail to register, you're in violation. Or, if, while on that trip, your "verification anniversary" comes and goes and you simply forget to register, you're in violation. Or, you move. But, in the vast confusion of moving, you don't update your information with the Pennsylvania state police within a mere 48 hours, you're in violation. Third, was your original plea a knowing, intelligent and voluntary plea? Absolutely not. No lawyer or judge told you about the registration requirement because they didn't exist at the time of your plea and you obviously didn't take this onerous condition and the label associated with it into consideration when you pled. These are just some examples of the unfair and constitutionally infirm problems with this new laws retroactivity.

If you were convicted of a sex offense at anytime in your passed, it maybe a good idea to contact a lawyer simply to know the state of the law. This is especially true if you've recently been arrested or you're currently on probation or parole for another non-Megan's Law offense. You should also contact a lawyer if you recently pled to a sex offense and are not currently required to register, as that might change on December 12, 2012.

Experts In Sex Offense Trials Take Away Job of Jury

2012-07-04T00:55:00.001-04:00

By Brian M. Fishman

Last week the Pennsylvania General Assembly unanimously approved and the Governor signed an amendment to 42 Pa.C.S. § 5920, which allows potential expert testimony in criminal cases involving sex offenses. The amendments can be read here .

In essence, the General Assembly found that that an expert should be allowed to testify to an alleged sex assault victim's responses and behaviors following an alleged sexual assault. The law says that the expert is not to testify as to the credibility or believability of the witness. But, that's exactly the goal of this legislation. The hope is that the expert will bolster the alleged victim's credibility by explaining away why a "prompt complaint" of the act was not made. The expert is essentially going to try and take the credibility decision away from the jury and say, "The victim shouldn't not be believed because he/she didn't report the assault right away because...[fill in the blank with a supposed scientific reason]". But, there isn't a science behind this and that's why this law is dangerous. Every case, ever situation and every person who alleges a sexual assault is different. And, a psychologist, victim witness coordinator or other "expert" should not be telling the jury who to believe because that "expert" enters the courtroom with their own biases.

Many individuals who claim they were sexually assaulted do not report the alleged assault right away. Some wait weeks, months or even years. Why do they do that if this horrible crime was perpetrated on them?

Well, there could be all different reasons. It could be that the alleged victim is very young and doesn't know that what happened to them is even wrong. Or, if the alleged victim does know it's wrong, they don't know who to tell, are embarrassed or ashamed to tell or they're scared that no one will believe them. However, one may not tell because they don't want their parents to know they're sexually active. Or, the sexual encounter may've never taken place or was a consensual act but is later alleged to be an assault because the alleged victim finds out that the other is cheating on them, the alleged perpetrator wronged someone else in their family or for some other nefarious reason.

These cases are very fact specific and often come down to the credibility of the alleged victim. Most sexual acts, consensual or not, often occur behind closed doors so the only people there are the two involved. If it's not reported right away, there is generally no physical evidence (DNA, medical reports of physical injuries, a crime scene showing a struggle, etc.). So, the jury is left to answer one question: Do we believe the alleged victim beyond a reasonable doubt?

These are very tough cases from both the defense and prosecution side. But, again, they are very fact-specific. Everyone responds to situations differently and comes to court with their own reasons for testifying truthfully or not. And, the jury must determine the facts not an expert and certainly not politicians in Harrisburg.

If you have been or believe you may be accused of sexual assault or any other crime, contact Philadelphia criminal defense attorney Brian M. Fishman for a free consultation.