Category Archives: Criminal Law

Can I have a misdemeanor or felony expunged?

Q: I have a question about expungement in PA. I was reading a new bill that is going to be voted on in PA that will allow most misdemeanors and felonies to get expunged after five years. My question is what happens if you commit a crime and then commit another crime within the five year window. You then stay clean for 5 years can you have both offenses expunged. Also if you have committed more than one crime at the same time can you have crimes that can’t be expunged along with ones that can. Can you have the crimes that can be expunged removed leaving the ones that cannot for the same offense?

A: The bill that went before the state senate in 2011, proposed allowing misdemeanor 2 and 3 crimes as well as summary offenses, be expunged after 7 years of crime free behavior for the misdemeanors and felonies and 5 years for summaries. The only portion of the bill that passed was the provision applying to summary offenses. Currently expungement of summary convictions after five years of arrest free behavior is the current extent of expungement law. Recently, a bill made it through the PA Senate that will permit the expungement of misdemeanor 2’s. This Senate bill must be confirmed by the house then signed by the Governor. This has not happened yet. There is a lot of misinformation being published about this bill. I would wait until the bill becomes law then consult with an attorney.

 

Lawyer ignored us. Do we have a case?

Q: My fiancé took a plea 3-7 for theft and person to possess a firearm. We had been trying to contact his lawyer since October when he took the plea. The gun was mine and lawyer promised all kinds of stuff but hardly spent any time on our case or with us even missing court dates. When my fiancé took the plea he was told he had no other choice and that he had to say he spent enough time with lawyer and was satisfied or he would go to trial lose and get 20 years. Well, after taking the plea we tried to contact the attorney numerous times. His office phone disconnected and cell phone calls were ignored. He was supposed to be requesting my gun back as well as my fiancés personal possessions that were taken by police. The lawyer (which we had suspected) was just arrested for drug delivery and distribution. He has a case against him with the PA Disciplinary Board. What are our rights now?

A: If it is the intention of your boyfriend to withdraw his plea and get back in to court, there are two options for him. A direct appeal to the Superior Court within 30 days of sentencing or a Post Conviction Relief Act Petition (PCRA), which must be filed within one year. I would consult with an appellate criminal defense attorney as soon as you can. If any missed deadlines for appeals can be attributed to the lawyer’s problems, it may work to your boyfriend’s advantage in regard to appeals under a theory of ineffective assistance of counsel.

I have a shy bladder. Will they still make me do urine screens?

Q: I’m on probation in PA and have a shy bladder that doesn’t allow me to give urine around people. Is there anything I can do? As I said I have a condition where I simply cannot urinate in presence of people. I understand this is an excuse given by many people who simply do not want to give a “hot” urine. This however is not my case. Legally, can they violate me for my condition? I really need some help. (Venetia, PA)

A: The Probation Officer, and even likely the court, will not believe you. You will need your doctor to put this condition of yours in writing. If your doctor does this and his opinion sounds credible to the court, perhaps an alternative can be offered for you. However, I must caution you, that I have clients and am around people who are ordered to be tested in Family Court and Criminal Court. I have never seen anyone get out of testing with this argument. Again, I think you will need a letter from a physician.

I know I was a stupid jagoff!

 

Q: What are the laws on harassment without intent?   Would it be possible to come out with no jail time and a fine?  I was recently issued a summons for harassment without intent. It was only texting. All I was trying to do was work things out with her. I did not threaten or call this person out of her name at all. Yet, the messages I received from her were slanderous. So I need to know what the laws on harassment without intent are. What are the punishments? So far I’ve had 2 PFA`s put on me in the span of 6 years from the same person both of which were dropped and vacated. So I don`t believe I have a prior record.  I`m hoping to get at least get a fine and counseling to avoid any possible jail time. We both repeatedly told each other to stop texting. But, we are both bullheaded and I believe we both were wrong. (West Mifflin, PA)

A: I never heard of harassment “without intent”. Intent is a key element of most crimes. Harassment can be charged as a misdemeanor or summary. If you are charged with a summary harassment, you will have a better chance of paying a fine and being ordered to complete counseling. You should consult with a lawyer immediately and have representation at the hearing. Protection from Abuse actions, even if an order was issued against you, do not count toward a prior record.

Wife had son pose for nude photos

Q: My ex wife had my son pose for nude pictures. I new nothing about it until I was cleaning her things out and found them. He was 3. She wrote on the backs of the pictures saying she had him pose for them and dated and signed them.

A: The issue is whether they were done for sexual gratification, for example if they were posted on some child porn site or distributed. Nude photos of one’s own toddler may not rise to criminal charges. Before you launch accusations I would investigate further and try to ascertain what her purpose was.  If you want, talk to your local police or county District Attorney. They probably have a child sex crimes unit, or at least one person who handles child cases. They can give you an opinion as to whether or not this appears to be child sexual exploitation. Before you talk to the police or DA, I would suggest you talk this over with a female friend, perhaps on that has children, just for another take.

Can new evidence get me a new trial?

Q: If you just now realize that your phone has information in it to prove you didn’t do the crime can you use that as new evidence? I was on the phone during the same time the victim claims to have been attacked. I forgot to bring it up so it wasn’t used for trial. Can it be used now for new evidence to get a new trial? (Pittsburgh, PA)

A: Newly discovered exculpatory evidence is admissible and may be used to get a new trial. However, it may not be “new” evidence if you had access to it and knew about it at the time. Your best bet would be to contact a local criminal defense attorney to discuss all of the facts.

 

Record expunged, but still shows!

Q: My record was expunged from the county courthouse in September 2013 and I contacted courts.org to remove it from there .I contacted them numerous times and still no response, I am very angry with them do I need to get legal representation.

A: I have no idea what courts.org is but I can tell you this. As with any expungement, even if the Court Order to expunge was mailed out by the Clerk of Courts to all law enforcement agencies, there is a chance that one of the law enforcement agencies didn’t do their job by shredding or deleting the subject records. If you can pinpoint which agency that is, you can contact them and send them a copy of the order. If you are unsure of the source, you can ask the Department of Court Records, Clerk of Courts to re-issue the expungement order.

Former employer had police take my I Pad

Q: Former Employer has taken my I Pad which I bought from them on 9/11/2013 and I have the Bill of Sale signed and dated. What do I need to do? I quit working for them Nov. 2013. It was a week later that Police came to my house saying that I stole the I Pad and they wanted in back. I showed the police the Bill of Sale and they said to hold on to it. I held on to it and now police are asking for me to give them my pass code for my I Pad. They said that my Former Employers is trying to have charges brought on me for stealing. I feel like that they are trying to get back at me from reporting them to CPS for child safety reason because their child was my former client and the child highly unstable and broke my leg due to his outburst when I was working for them.

A: I would need to review all of the facts but it sounds like the police may have illegally taken your I Pad and are now trying to illegally search it. Do not give them the code. Do not talk to the police. Contact a lawyer immediately. He or she can file a motion with the court to return property right away and get your I Pad back. It will put pressure on your company and police to either file charges or return your I-Pad. If the police want to search the computer, they likely need a search warrant. They need to make up their mind and let you get on with your life.

Will the DA know of my prior DUI?

Q: Preliminary hearing papers state I am charged with a first offense DUI. Will they know about my past DUI at the hearing? I had a DUI 7 years ago in another state. The court papers state that I am being charged for a first offense DUI. Is this what they normally put on the paper work regardless of the offense count? How likely is it that my past DUI will be discovered by the DA?

(McMurray, PA)

A:  Normally, the DA in your county will find it. However, although it is rare, I have had it happen where the DA was not aware of a prior. You have no obligation to inform the DA of your prior unless they would file for discovery and thereby formerly ask you, which is unlikely. Assuming they find it, you have not made 10 years since the prior conviction and therefore your new DUI will be considered a second DUI.

 

Friend arrested for DUI in the driveway

Q: My friend is going through the process of his second DUI. He is not convicted yet. He was sighted again this past Sunday for a possible dui and possession of a controlled substance. What happened was he was drunk at a friend’s house, his phone died so he went to charge it in his truck. This was a private driveway. The cop approached told him to get out of his vehicle (private property) proceeded to search him without consent. Mind you this is the same arresting officer from the second DUI, and he hate my friend.

A: Hire an attorney and fight the case. If the vehicle is still in the driveway, without the engine running and he was not attempting to drive, you may have a defense. These cases are tricky and can turn on the smallest details. However, it sounds like he may have operability defense, a defense of the vehicle not being on a public street and perhaps even probable cause.