Category Archives: Blog and FAQ

Can a detective call your phone and come to your house under false pretense?

Q: Me and a co-worker (who threatened me with bodily harm) got into an argument. Then she said I did something to her car and stated there was a video. But the video doesn’t have my face on it and it wasn’t me. It happened a month ago and now a detective has called and just left a message that he wanted to talk to me. He never said come down and talk face-to-face but he wanted to talk to me over the phone. There is no warrant for my arrest. What should I do? (Pittsburgh, PA)

Q: Do not speak to this person. You have a 5th Amendment right to remain silent. Whoever this person is, a police officer, a private detective or whatever, he or she is likely not acting in your best interest. Your statements may be used against you. The best advice for you is to get an attorney with whom you can share all the facts in confidentiality, and then decide the best way for you to proceed, which may be remaining silent or speaking with this “detective” in the presence of your counsel.

What will happen if I do not respond to the police and where do I go from here?

Q: Last month I let someone borrow my car and they were caught shoplifting a single food item from a gas station. The person gave the item back to the manager, but she wanted their ID. The person said no and left in my vehicle and the manager ended up getting the license plate number. Three days ago, the police called my place of work and left a message wanting to know who I let use the car. That same day they showed up at my last place of residence but the people who live there now don’t know anything about me. I am not going to tell the police who borrowed my car so what should I expect to happen. (Penn Hills, PA)

A:  Even if the police suspect you are not the perpetrator, they could arrest you just to put pressure on you to give information. If I had to guess, I doubt it because the crime is very minor-likely to be a summary retail theft-and the item was returned. If you are arrested or cited, and you still want play hardball, just go through the process and it is likely (hopefully) that the store manager will not identify you. If you go that route, do it with an attorney.

Can my sister evict our elderly mother?

 

Q: Eight years ago, my sister convinced our mother to leave a HUD subsidized senior complex to live in her house instead. At the time she wanted our mother to take care of her house while she lived elsewhere. My mother uses most of her Social Security pension, her only source of income, to pay my sister a monthly rent plus other expenses. My sister has just given notice that she wants our mother out of the house so that she can convert her house into a full rental unit. We are trying to find a place for her, but so far, all the federally subsidized places we have looked at have a one to three year waiting list. My sister says she must be out in six months. Does my mother have any legal rights to remain in the house until she finds another viable living arrangement? (Versailles, PA)

A: I think the reality of the situation is that your mother needs to find elsewhere to live. You could consult with a landlord tenant lawyer. Your mother has rights under landlord tenant law. Normally however, landlord tenant laws are not so generous as to allow six-months-notice unless such time is provided in the lease. You could assist her by reaching out to senior housing programs.

How can I have my 93-year-old mother declared incompetent?

Q: My sister and I have had joint POA since 2013, but not immediate. We have never exercised any POA. I have been taking care of her, although she is in an “independent living” place. I do her finances, her shopping…she should not be alone any more, as her health and mental condition are both deteriorating. She cannot live with me. My sister and her husband are willing to have her move in with them in another state, until a nursing home or hospice is the only option. She does not want to go, but at this point it cannot be her choice anymore. Ten years of my life are gone. (West Mifflin, PA)

A: This is a difficult situation. If your mother is deemed to be incompetent to manage her own affairs, you can file to be appointed her guardian. Until then, she can make her own decisions. You really need to sit down with a lawyer who handles guardian work and share all the facts.

How many years does Medicaid go back for recovery of benefits paid?

Q: Elderly mother has been in nursing home for 2 years. She has used ALL her life savings to pay for it and is now out of money. She receives Medicare but not Medicaid, yet. She owns a very small home that was her marital home (husband is now deceased). She did own family farm that included old family home and acreage but transferred that to her children in 2016. If she applies for Medicaid, can they seize the family farm property to recover benefits paid for nursing home? (Delmont, PA)

A: The Department of Human Services of PA examines all transfers of property done for no consideration or for less than market value by an applicant in the 5-year period preceding the application. If the transfer of the farm to family was a gift, this could subject her to a penalty and consequently delay her ability to receive Medicaid. This are of law is very complicated. You should seek an opinion from an attorney who is versed in Medicaid regulations. He or she will need to know more facts than you have given us here to properly assess your situation.

Can I get probation for being caught while driving with a suspended license?

Q: I haven’t been driving. My kid goes to a friend’s house sometimes while I sleep for work. She called me saying he was vomiting and no one could get out of work early to drive him. I decided to get him to take him to the emergency room. I got caught speeding. Now I must go to court and it says prison/house arrest. (Pittsburgh, PA)

A:  It depends. If it is a DUI related suspension, you are subject to a $500 fine, 60 days in jail and a one-year license suspension, for a first-time offense under 1543 b. If it is a non-DUI related offense, 1543 a, you are subject to a $200 fine, no jail and a year license suspension. Take your papers to a criminal defense lawyer. He or she may be able to bargain it down to a less severe offense or at least get your prison sentence served on house arrest electronic monitoring.

Is this a 2nd or 3rd DUI?

Q: My 1st DUI was in 2004. I got the ARD program. My 2nd DUI was in 2012. I had house arrest, probation and 12-month license suspension. My 3rd DUI was in December 2017. Will this count as a 3rd offense, or the 2nd again since the 1st was over 10 years ago? (Pittsburgh, PA)

A:  For sentencing purposes, this is a second DUI. You have spread them out but not enough to clear the requisite 10 years on each to get an ARD card. As noted, the DA will inform the judge at sentencing that it is your third overall DUI. The DA will consider the fact that this is your third and as such may recommend the higher end of the sentencing guidelines. All is not lost. You may be eligible for DUI hotel or house arrest.

Are most case still negotiated up until day of trial?

Q: The commonwealth has filed multiple charges against someone and have gone through all pre-trial phases of the process to the point that a jury trial is scheduled in criminal court. There were some negotiations that took place during the pre-trial process. The defense refused to plea. Now that the DA’s office will have to prepare for the case. Is it still typical that there are negotiations? Or once the case is prepared for is it more likely that it goes to trial? I know there is no concrete answer to this just curious of what the odds maybe? (South Park, PA)

A: Plea agreements have even been entered during a trial. Yes, a negotiated settlement is always a possibility no matter if the Commonwealth has prepared their case and have their witnesses under subpoena.

Can I get my warrant changed to a summons?

Q: I just caught two felony counts of possession with intent to deliver. I’m on probation for robbery but no probation violation was filed. Is a summons a possibility or am I guaranteed arrest? (McKees Rocks, PA)

A: You really need to discuss this with the lawyer who is intimately familiar with your case. However, I can offer this. Yes, it is possible to turn the new active warrant into a summons. You will need to have your attorney bring you to a Common Pleas Court Motions Judge on the warrant and have it vacated and bail set. However, there is a problem with this. By the time you get to court, the probation warrant may have been filed. Once in court before the Motions Judge, you could be detained on the probation warrant and escorted to the Allegheny Iron Hilton. All your time incarcerated from that point will then count toward the probation violation, not your new case. You will not be able to make bond on the new case until either your probation violation judge conducts your probation violation hearing (which is held after your new case is disposed of, or your detainer is lifted. A detainer can be lifted through the process of your attorney filing a written motion and convincing your probation judge to let you back on the street even though you were arrested for a new felony drug case while on his or her probation for robbery. As they say, you are in a pickle. Save money for your attorney.

I have a preliminary hearing and have not been arrested or arraigned

Q: It’s been since 12/28/2017 and I went to court on 2/02/2018 and they continued it till 02/14/2018. I’ve never really be arrested fingerprinted or had a bail set for this case never had my rights read or signed them for that matter. This is not my first or second run in with the law I just don’t know what’s going on. I work full time but I can’t pay a lawyer straight out but I can do payments if someone is willing to work with me. I just need help. (Pittsburgh, PA)

A: If you have a pending Preliminary Hearing, I assure you, you have been arrested. You were likely arrested via summons whereby the charges and a notice to appear were mailed by certified mail and regular mail to your known address. I refer to this as arrested by mail. The continuances of your case, as mentioned, is not unusual. The police do not have to read Miranda rights to you, like on TV, unless they interrogate. Not many criminal defense attorneys take payments as generally, criminal defendants are not reliable pay. However, there are some that do. Talk to as many lawyers as you can-you may find one needs business and will negotiate. Timing is everything.