Tag Archives: Criminal Law

What can I do about this charge? What are my options?

Q: This is my first time being charged with a crime. I was in my car with my friend at a park. There was less than a gram of marijuana in the car and a roach (end of blunt smoked containing some marijuana). A cop car quickly pulled up behind us and a cop got out fast and knocked on my window. My friend had put the small bag of marijuana in his sock and the blunt was left in the center console. We both said the marijuana and blunt was ours to the officer. We were both charged with “Possession of Marijuana” and “Use/Possession of Drug Paraph” labeled as “Misdemeanor”. Please help me with this charge. (Mars, PA)

A: An attorney may be able to get you out of this with no criminal record, especially if you have none. If you try it on your own, and represent yourself, A) the DA and police may persuade you to waive your case to court and hope the District Attorney at the trial level offers you Probation Without Verdict, or, B) they may force you into pleading guilty to a summary Disorderly Conduct at the preliminary hearing. The summary will stay on your record for five years before you can pay to expunge it. Call an attorney.

What are the consequences for Retail Theft?

Q: I am being accused of retail theft second offense, misdemeanor 2. How do I get a copy of video surveillance and what is punishment? (Pittsburgh, PA)

A: To be charged with a Retail Theft Misdemeanor 2, this would need to be your second offense and the merchandise valued under $150.00. You will have better options if represented by an attorney. To obtain the video prior to your preliminary hearing, will require an attorney as the police nor victim have any duty to let you view it at this stage. The attorney can ask to view it informally, and if necessary, request a subpoena duces tecum be issued by the Magisterial District Justice Office having jurisdiction over the matter. If your case is held for court, you can obtain it through the discovery process after the Formal Arraignment. An attorney can better guide you through this maze.

Can someone be arrested for unknowingly lying on a gun application?

Q: Someone I know filled out an application to purchase a gun, not thinking the 2 nights they spent in a health facility ten years ago mattered. They were arrested for it a few months later, spent the night in jail, had a hearing scheduled. The attorney wanted this person to agree to paying a $150 fine even though the attorney said the whole thing was ridiculous. There were a bunch of magistrates around during the time the hearing was scheduled for, so this person never showed for the hearing because they felt as though it was a trumped-up charge and was going to be arrested for past unpaid warrants.

A: This person needs a lawyer. As you describe it, they made matters worse by not showing for the hearing. It sounds like the attorney had the case bargained down to a summary offense, which would have been a good result for your friend. Yes, one can be arrested for giving false information on an application to purchase a firearm. People are presumed to know what has happened to them in their past. One should have a vivid memory of spending two nights in a mental health ward. However, we are not all wired alike. I have had some success in getting these charges dismissed in circumstances where the person otherwise has no criminal or mental health history and it is believable that they did not fully understand the legal implications of their own history especially considering the confusing questions on the purchase application form. The definition of “Knowingly” in the PA Crimes Code, does give rise to defendable argument.

Is it legal for person to distribute an expunged criminal record to third parties?

Q: I’ve been raising my eight-year-old old niece since she was three. On April 15, 2015, I was charged with retail theft and had the record expunged in November of 2016. My niece’s paternal grandmonster was granted visitation rights in June of 2016. Prior to filing the grandmother posted on FB that “I’m a malicious little b**ch” for having FB remove pictures. In a comment to the post she states, “better than going to jail for hitting the b**ch over the head with a bat.” At the first custody hearing she was told to remove all pics by hearing officer, but the day prior to the March 16th hearing she made another profile picture and we showed the master. When leaving the hearing she called me a “f’ n “C” and to watch my back.” Also in March 16th, she called the soccer organization I coach for and told them of my charges. On June 16th, she made a fake FB profile of me. On September 16th, she told me she was going to beat my ass at a child’s birthday party. On December 16th, she called my salon and spoke bad of me and messaged the soccer coach under a fake name. On Jan 17th, she messaged the soccer organization of a copy of my charges she had from June 16th. They were expunged and told my niece she is going to live with them and not see me again. On February 17th, she messaged the soccer organization again. On Mar 16th, I was told about messages from the child. (Pittsburgh, PA)

A: This is an unfortunate situation and this behavior is why I significantly reduced my family law practice. As far as someone distributing an expunged record, I do not know how someone can distribute an expunged record if the record has been expunged. If the record is expunged the state police criminal history should show nothing. If what you are saying is that she forwarded copies of your charges to another person, I do not believe you have a lawsuit as normally arrest records are court documents and therefore public information, for all to see. If what you mean is that somehow the expungement petition and related paperwork from the lawyer handling it, were sent to a third party, this is probably not a good law suit either. This happened to one of my clients who stupidly kept his sexual assault expungement papers he received from me in the visor of his truck and his new girlfriend found them. By the way, there are a lot of number 15, 16 and 17’s in your question.

Must the Assistant DA need approval from the victims for plea bargain?

Q: I have a case involving multiple counts of different misdemeanors where I am the victim. I live in Pittsburgh, but this incident is pending in Armstrong County. We are up to the Pre-trial Conference stage. I read that this is where the lawyers start to consult and exchange evidence to determine the merit of the case? My question is does the ADA who is representing us have the ability to plea bargain the case without getting our approval to the settlement? Or should we be asked or give our approval to the whether it can be settled or moved to trial? (Monroeville, PA)

A: I can only speak to the practice of the DA in Allegheny County which is to always seek the input of the victim and the police as to any plea agreement. The DA will override any opposition from the police or victim if he or she thinks the position of the police or victim is unreasonable.

Is it against the law to get the same DA you had in a prior case that you were found not guilty?

Q: My husband had a prior child sexual assault case that he was found not guilty of. He recently had another false accusation, and has the same DA. I feel like that is impartial and just like a jury, there should be no ties It is like it’s personal now. Is this against the law, or is there a way we could say since she has prior ties with the last case she’s impartial to this case? (Penn  Hills, PA)

A: No, it happens all the time. If she was in private practice, she could defend him on two criminal cases, one being subsequent. She could also sue him on two civil cases, one being after the other. In either scenario, she may not be able to defend him on the first case, then prosecute him criminally (if she takes a job with the DA) or sue him in civil court, on the second case. Is she prejudiced against him? She could be if she thinks he was guilty of the first case. Will it matter, probably not. If there was prosecutorial misconduct alleged or found in the first prosecution, that could be reason for the defense attorney to file a motion requesting the DA to recuse him or herself from the prosecution.

What do I do?

Q: Supposedly I am being accused of selling to an undercover cop 6 months ago and didn’t hear anything about it. Suddenly, I’m told I had a warrant for my arrest on March 16th. I wouldn’t have even known if I hadn’t gotten a letter from a lawyer in the mail saying I should call them to represent me for my charge which I had no clue I supposedly had! (McCandless, Twp., PA)

A: This is common where the police are using a criminal informant (“CI”), who sets up various “controlled” buys from other people (usually users/addicts) for a period of time which could be months. At the end, all the people targeted are arrested and prosecuted. I have had success in these cases in getting the charges lowered to possession or withdrawn, but it takes a lot of work-motions to produce the CI, to produce records on all the CI’s cases, to release the terms of his or her deal and favorable treatment. Having a lawyer will benefit you greatly.

I’m on Westmoreland County probation till July.

Q: My husband I go to a local Fireman’s club that we are members of. They have a class C liquor license and serve food. I’ve been a member there for four years. I went to renew my membership and the club escorted me out. They told me I am banned because I’m on county probation. I do not drink. We sit at a table and have some food. They knew I was on probation and never said anything. I know that a kid went to the steward and told on me. Is there anything in the liquor control law statue on private clubs and serving members if they are on probation? I have my probation conditions that state I may not consume alcohol or use any type of drugs (which I do not). Nowhere on my conditions set forth by the county or court say I can’t be in a private membership club.

A: This is not a public place. A private club can set its rules as they wish, if those rules don’t conflict with state or federal law. If their by-laws and club rules do not allow persons on probation to be in the premises, there is not much you can do about it. Your house is private property, and you can tell anyone present to leave if you do not want them in your house. If they do not leave, they are a trespasser. I imagine no private club wants probation officers stopping in to check on defendants.

What kind of time may be imposed for a repeat offender?

Q: If someone has past assault charges, both misdemeanors and felonies, and is now facing a charge of unlawful restraint and another simple assault charge what kind of prison time may they be facing? (Coraopolis, PA)

A:  No one can answer this question without much more information. For example, first and foremost, the criminal history of the defendant and how the charges are graded (sentencing guidelines), the particular circumstances of this case, the position of the DA and the personality of the judge.

CRIMINAL LAW, ASSAULT, SENTENCE

What is the punishment for answering wrong on a firearm application in PA?

Q: Record only shows a juvenile misdemeanor. He was not aware that his juvenile record would count against him. He thought that would be fine by now. He went to buy a rifle and he answered a question wrong. Now he is going to court. What is the prognosis on this? (Pittsburgh, PA)

A: To answer your question the best I can with this limited information, I will assume your son’s juvenile conviction was a misdemeanor 2 or greater, it appears on his criminal history and it is not an offense that can be expunged after he reached age 21. Based on these assumptions, he can be charged with 18 PA. C.S. Sec. 6111, Sale or Transfer of Firearms, a Felony 3. He can also be charged with 18 Pa. C.S. Sec 4904, Unsworn Falsification to Authorities, which is a Misdemeanor 3. I have some luck with these cases in my county based on how poorly written and confusing the question on the “Firearm Transaction Record” is. I suggest he hire a lawyer to investigate his prior offense and to represent him on these charges.