Understanding the Philadelphia Summary Diversion Program

When someone makes a mistake, gets into trouble with the law, and gets a criminal record, the consequences can be severe. Having a clean record is important in order to take advantage of opportunities like getting into a good college or landing a good job.

The First Judicial District of Pennsylvania, in conjunction with the Philadelphia District Attorney’s Office has created “diversion” programs to divert a criminal case from the path towards trial to a potential resolution that will be more favorable to the person charged. When criminal charges are diverted, it allows the Philadelphia District Attorney’s Office to utilize its limited resources in a more effective manner with the goal of prosecuting more serious crimes. One such program is the Philadelphia “Summary Diversion” Program.

The majority of defendants charged with a summary citation who have not previously participated in the Summary Diversion program are eligible, with the exception of the following charges due to the nature of the charge:

  • Cruelty to Animals;
  • Criminal Mischief;
  • Cutting Weapons;
  • Weapons in general including

In addition, any defendant issued citations by any of the following four agencies also are not permitted to enroll and are automatically scheduled for trial in Philadelphia Municipal Court:

  1. Pennsylvania SPCA (Society for the Prevention of the Cruelty to Animals)
  2. Pennsylvania Department of Agriculture
  3. Pennsylvania Vehicle Fraud Investigations
  4. Pennsylvania Department of Revenue (which handles financial benefits and welfare fraud).

There are exceptions to this general rule, and sometimes my law firm may be able to secure the agreement of the Philadelphia District Attorney’s Office in resolving a Criminal Mischief charge, for example, through the Summary Diversion Program (SDP).

If a defendant’s case is approved for the SDP, the defendant will not enter a plea. Upon successful completion of the program, the Philadelphia District Attorney’s Office will withdraw prosecution of the criminal charges against the defendant.

Defendants accepted into the Philadelphia SDP attend the program on a Saturday. The program takes place at the Philadelphia Criminal Justice Center located at 1301 Filbert Street, Philadelphia, PA 19107. The cost of the Summary Diversion Program is $200, and full payment must be made by money order and payable on the day the defendant attends the program.

For example if you are facing a first time Philadelphia underage drinking or a Philadelphia fake ID charge, the Philadelphia Municipal Court will amend the charge to disorderly conduct and the defendant will not lose their driver’s license as would be the case if a person, often a college student, is convicted or pleads guilty to underage drinking or possessing a false ID.  You can then qualify for the and complete the SDP and get the charge expunged

A defendant’s case will be automatically expunged after successful completion of the Summary Diversion Program (SDP), but it can take up to nine months.

The reason the SDP is better than other Philadelphia diversion programs such as the Accelerated Misdemeanor Program or Accelerated Rehabilitation Disposition is that a person in the SDP isn’t required to serve any type of probation, but only complete the one day class.

If you have any questions or are charged with a crime contact Gregory J. Spadea at 610-521- 0604.

How Pennsylvania Students Can Avoid Criminal Convictions For Disorderly Conduct and DUI on Their College and Job Application

Applicant Filling Up the Online Job Application

I have represented many high school and college students who were charged with criminal offenses like:

  • Disorderly conduct
  • Underage drinking
  • Driving Under the Influence (DUI)

The student’s parents are not only concerned about the immediate consequences of these minor offenses, but their long term effect on their child’s academic and professional careers.

Most employer applications often require a minimum degree of education and in many cases background checks. These background checks are not only concerned with criminal convictions but also focus on any type of contact with law enforcement which would include arrest and citations.

Disorderly Conduct

If your child is charged with disorderly conduct the prosecution will need to establish beyond a reasonable doubt that he or she created a public disturbance which ultimately lead to his or her arrest. If your son or daughter was charged with disorderly conduct it is important that your defense attorney negotiate a favorable non-trial disposition such as Accelerated Remedial Disposition (ARD). ARD provides for the expungement of the criminal record after completing the program. If your defense attorney isn’t able to negotiate such a non-trial disposition, he should never have your child plead guilty to this charge. Again, disorderly conduct isn’t a serious offense but many employers and colleges often deny applicants based on withdrawn charges or arrests even without a conviction. That is why it is critical to have your child’s record expunged before they apply for college or an internship.

Underage Drinking

In Pennsylvania, underage drinking for a first time offender can result in a 90 day license suspension. This driver’s license suspension will not only increase car insurance rates but it can also limit college internships as many colleges require their students to have a driver’s license in order to travel to and from different locations.

Again, a student should never simply plead guilty to an underage drinking charge but rather your defense attorney should either negotiate a favorable non-trial disposition or contest the charges. Contesting the charges means forcing the prosecution to prove each element of underage drinking beyond a reasonable doubt. This may be difficult especially if the prosecution’s case relies on non-government witnesses such as bartenders or waitresses who are often transient and unwilling to come to court, even with a subpoena, because they are not being paid for their time outside of work

DUI

In Pennsylvania, a minor (who is under the age of 21) commits a DUI when his or her BAC is .02. This is an extremely low blood alcohol content so practically any alcohol consumption will result in a BAC of this level. Minors, can still receive programs such as ARD which would only result in a 90 day license suspension as opposed to a one year license suspension for a first time offense. If a minor doesn’t accept ARD or isn’t eligible for it because of some prior offense, the mandatory minimum is 2 days in jail, a 1 year license suspension, and a $500.00 fine.

If your son or daughter is charged with a criminal offense please contact the Law Offices of Spadea & Associates, LLC at 610-521-0604.

7 Ways to Use Impeachment Against Criminal Trial Witnesses in Pennsylvania

Witness taking an oath in the court room

A proper defense must always consider calling a defense witness or even the accused if the prosecution has presented compelling evidence. Calling a defense witness, however, isn’t an easy decision because this person will have to face cross examination by the prosecution. While a good defense attorney can protect the witness with objections, a judge may overrule those objections and require the witness to answer.

Before any attorney calls a witness to testify, he must thoroughly review their background to make sure that this decision doesn’t ultimately hurt the case more than it helps. While an accused’s character is never admissible at trial unless the defense offers it into evidence, there are separate rules that cover the impeachment of a witness’s credibility including the accused.

The Pennsylvania rules of evidence allow the prosecution and the defense to impeach the credibility of any witness.

Impeachment can expose a witness’s partiality, motive, prior convictions, character for untruthfulness, prior inconsistent statements, and a witness’s inability to recall certain facts. Here are the seven most common forms of impeachment:

  1. Competency – a witness’s ability to communicate, understand the consequences of lying, recalling facts and understanding what is occurring;
  2. Partiality – a witness’s bias, prejudice, financial interest, or corruption;
  3. Motive – a reason explaining a witness’s testimony;
  4. Prior inconsistent statements – a witness’s earlier statements that are inconsistent with the witness’s trial testimony;
  5. Prior convictions – a witness’s convictions for crimes of dishonesty and false statements that help prove the witness’s untruthfulness;
  6. Untruthful character – a witness’s reputation for untruthfulness which may be based on their previous acts;
  7. Contradiction – a witness’s testimony may be contradicted by physical evidence, other witness accounts, or by witness’s own inconsistent conduct.

Even if a witness has credibility issues the defense can still call this witness but needs to be prepared to rehabilitate the witness after the prosecution attacks their credibility. If you have any questions about impeachment or are charged with a crime call Gregory J. Spadea of the Law Offices of Spadea & Associates, LLC at 610-521-0604.

3 Rules To Follow If You Are Stopped For DUI or DWI in Pennsylvania

Drunk Driver being pulled over by police.

Even people with high alcohol tolerances can drink too much and find themselves in a situation where police stop their car for suspicion of driving under the influence (DUI) or Driving While Intoxicated (DWI). In these situations it is important that a person remember three basic rules: (1) don’t refuse a Breathalyzer Test, (2) don’t answer any questions even if the officer threatens to arrest you, and (3) tell the police officer about any physical limitations and injuries which would affect your balance or movement.

  1. Don’t refuse a Breathalyzer Test

    In Pennsylvania, everyone who drives a car on the road has given police implied consent to conduct a Breathalyzer Test. If you refuse the breathalyzer, Pennsylvania Department of Transportation (PENDOT) can still suspend your driver’s license for 12 to 18 months even if you’re not convicted in criminal court. The reason is because driving is a privilege in Pennsylvania and PENDOT can impose a suspension through its administrative powers which are separate from criminal proceedings. Therefore even if your attorney wins your DUI case, PENDOT can still suspend your driver’s license.

    If you take the Breathalyzer Test you will not only avoid a potential civil penalty from PENDOT but it can also improve your criminal case. A good attorney can dispute the results of a Breathalyzer because there are a number of issues can affect a BAC reading.

  2. Don’t Answer Any Questions

    If you are stopped for suspicion of DUI, police more than likely are going to arrest you no matter what you tell them. A typical question from a police officer is “have you had anything to drink tonight?” People will tell the officer they are coming from a friend’s house and just had one drink. However they are better off telling the officer that they aren’t going to answer any questions but that he is free to give a Breathalyzer Test or a Field Sobriety Test. Police officers are trained in the law and understand that everyone has the constitutional right to remain silent. Most police officers will respect this right and simply continue with the traffic stop by giving you a field sobriety test or taking you into custody.

    Keep in mind you could be arrested for a DUI even if you are not driving. If you have actual, physical control of a vehicle while under the influence, then that can be enough for an officer to arrest you. In Pennsylvania, the terms “operating” and “actual physical control” are basically the same. They generally mean that the driver is in the vehicle and could make it move, even if the driver is not trying to move the care when the officer finds him. Therefore, telling the officer why you were sleeping in the car while the radio and the heat are on will not help your case.

    Answering questions will never improve your DUI case because the officer is probably asking the question because he either smells alcohol on your breath or observed your car swerving or violating some traffic law. This is what gave the officer probable cause or reasonable suspicion to stop your car in the first place. If you answer a question it will only hurt your DUI case because you’ve given the police more circumstantial and possible direct evidence of your intoxication. A statement like “I only had a little to drink,” or “I am coming from a party,” can persuade a judge that the police officer had probable cause to arrest you. It’s always better to remain silent and simply cooperate with the police officer with regards to field sobriety tests, Breathalyzer Tests, and blood tests, but never make any verbal or written statements.

  3. Tell the Police Officer about any Physical Limitations You’ve Had in the Past

    A standard field sobriety test requires that a person perform certain movements so that a police officer can assess a person’s motor skills. These tests, however, are often difficult to perform even for a person who has not consumed any alcohol. There are three standard field sobriety tests – (1) the walk and turn, (2) the one leg stand test, and (3) the Horizontal Gaze Nystagmus (HGN) test.

    1. The first two tests require you to walk on a straight line or balance on one foot. If you’ve had any type of surgery, played sports, or have any knee or leg injuries this will affect your ability to perform these tests correctly. Telling the officer that you’ve had an injury in the past will put the police, the prosecution, and the court on notice that the results of the field sobriety test may not be a fair indication of your intoxication. This will also allow your criminal defense lawyer to argue that the police didn’t have probable cause to arrest you based on the results of the field sobriety test.

      With regards to the HGN Test, police officers are trained in the law but there is a great deal of case law which says that they can’t fairly use the results of the HGN Test to determine a person’s impairment. HGN is the involuntary jerking of the eyes and there is a strong argument that only a medical professional can accurately assess the real results of this test.

      If you are stopped for DUI it’s important to keep these three rules in mind because it will not only protect your rights but put your attorney in the best position to successfully defend your case. If you have questions call Gregory J. Spadea at 610-521-0604.

Understanding the Difference Between a Pennsylvania Jury Trial and Bench Trial

Handcuffs laying on top of fingerprint chart in file

If your criminal case is proceeding after your preliminary hearing and arraignment, you can request a jury trial or a bench trial. Any person charged with a crime has the Constitutional right to a jury trial. In Pennsylvania a jury consists of twelve members and two alternates. The two alternates do not participate in the deliberations after the trial and are dismissed at the conclusion of the trial if none of the original twelve are excused. The jury is selected from a group of approximately ninety people during a process known as Voir Dire. During this process, attorneys for both sides attempt to identify any biases or prejudices which may cause a potential juror to be partial toward one particular side. This is done by the attorneys reviewing each person’s information that they provided when they filled in the juror questionnaire and by the Judge and attorneys asking questions of the jury panel. The defense and prosecution each get seven preemptory challenges and with those challenges may excuse a juror without a reason. If either attorney wants to exclude a juror without using a preemptory challenge they may make a motion for cause but the judge is not required to grant the motion.

The prosecutor must call witnesses to testify, present any physical evidence such as photographs, clothing, or results of tests like a breath or blood alcohol test in a DUI case, and argue any legal issues. The defense can cross-examine the state’s witnesses and argue to the court that the prosecutor should not be able to present certain evidence, if appropriate. The defendant also is entitled to call witnesses, present evidence, and testify on his own behalf.

A jury decides all issues of fact which means determining the credibility of witnesses and assigning weight to the evidence presented. Judges, however, decide all issues of law which means the admissibility of evidence and the right to pursue certain lines of questioning. The jury’s verdict must be unanimous and if the jury is unable to reach a verdict a judge can declare a mistrial. A mistrial does not mean that a person necessarily goes free but that the state must go through the entire process again.

A bench trial provides a person with all the same constitutional rights as a jury trial but the major difference is that the finder of fact is one person, the judge. The judge also maintains his authority over all issues of law pertaining to the trial stated above. There are several reasons why a defendant should select a bench trial over a jury trial. The most common reason is that a case involves an issue that requires a substantial understanding of the law and the elements of an offense. For example if a defense strategy focuses on the degree of severity meaning the defendant committed the crime but not the way the prosecutor states he committed the crime, as opposed to a case of mistaken identity. Second, if the case turns on applying a complex legal rule to the facts of the case, juries may have a difficult time with the rule or even ignore it. Third, if information will come out at trial that puts the defendant in a bad light, but which is technically irrelevant to the charge, a judge might be more neutral than a jury. Finally, a bench trial is usually a quicker way to complete a case because it can be scheduled sooner and does not require jury selection and jury instructions, which make the trial process last much longer. If you are charged with a crime call Gregory J. Spadea at 610-521-0604.

Using Impeachment to Attack Criminal Trial Witnesses in Pennsylvania

Gavel, scales of justice and law books

A proper defense must always consider calling a defense witness or even the accused if the prosecution has presented compelling evidence. Calling a defense witness, however, isn’t an easy decision because this person will have to face cross examination by the prosecution. While a good defense attorney can protect the witness with objections, a judge may overrule those objections and require the person to answer.

If your attorney plans on calling a witness at trial, he must thoroughly review their background to make sure that this decision doesn’t ultimately hurt the case more than it helps it. While an accused’s character is never admissible at trial unless the defense offers it into evidence, there are separate rules that cover the impeachment of a witness’s credibility which includes the accused. Keep in mind there are different rules of evidence in state and federal courts in Pennsylvania.

The Pennsylvania rules of evidence allow the prosecution and the defense to impeach the credibility of any witness (including the accused) through various channels. Impeachment can expose a witness’s partiality, motive, prior convictions, character for untruthfulness, prior inconsistent statements, as well as a person’s inability to recall certain facts. There are eight categories of impeachment:

  1. Competency – a witness’s ability to communicate, understand the consequences of lying, recall, or proceed what is occurring;
  2. Partiality – a witness’s bias, prejudice, financial interest, or corruption;
  3. Motive – a reason explaining a witness’s testimony;
  4. Prior inconsistent statements – a witness’s earlier statements that are inconsistent with the witness’s trial testimony;
  5. Prior convictions – a witness’s convictions for crimes of dishonesty and false statements that help prove the witness’s untruthfulness;
  6. Untruthful character – a witness’s reputation for untruthfulness;
  7. Untruthful acts – when a witness offers reputation testimony as to his or her truthful character, the reputation witness may be asked about the primary witness’s acts or untruthfulness;
  8. Contradiction – a witness’s testimony may be contradicted by physical evidence, other accounts, or by witness’s inconsistent conduct.

It’s often necessary to call a defense witness especially in cases involving illegal guns or drugs where an arresting officer claims that a person was involved in illegal activity or had possession of some type of contraband. Even if a witness has credibility issues the defense can still call this person but needs to be prepared to rehabilitate the witness after the prosecution attacks their credibility. If you have any questions about impeachment or are charged with a crime call Gregory J. Spadea of the Law Offices of Spadea & Associates, LLC at 610-521-0604.

3 Rules To Follow If You Are Stopped For DUI in Pennsylvania

Blurred night

Even people with high alcohol tolerances can drink too much and find themselves in a situation where police stop their car for suspicion of driving under the influence (DUI). In these situations it is important that a person remember three basic rules: (1) don’t refuse a Breathalyzer Test, (2) don’t answer any questions even if the officer threatens to arrest you, and (3) tell the police officer about any physical limitations and injuries which would affect your balance or movement.

  1. Don’t refuse a Breathalyzer Test.

    In Pennsylvania, everyone who drives a car on the road has given police implied consent to conduct a Breathalyzer Test. If you refuse the breathalyzer, Pennsylvania Department of Transportation (PennDOT) can still suspend your driver’s license even if you’re not convicted in criminal court. The reason is because driving is a privilege in Pennsylvania and PENDOT can impose a suspension through its administrative powers which are separate from criminal proceedings. Therefore even if your attorney wins your DUI case, PENDOT can still suspend your driver’s license.
    If you take the Breathalyzer Test you will not only avoid a potential civil penalty from PENDOT but it can also improve your criminal case. A good attorney can dispute the results of a Breathalyzer because there are a number of issues can affect a BAC reading.

  2. Don’t Answer Any Questions

    If you are stopped for suspicion of DUI, police more than likely are going to arrest you no matter what you tell them. A typical question from a police officer is “have you been drinking tonight?” People will tell the officer they are coming from a friend’s house and just had one drink. However they are better off telling the officer that they aren’t going to answer any questions but that he is free to give a Breathalyzer Test or a Field Sobriety Test. Police officers are trained in the law and while not attorneys, they understand that everyone has the constitutional right to remain silent. Most police officers will respect this right and simply continue with the traffic stop by giving you a field sobriety test or taking you into custody.

    Answering questions will never improve your DUI case because the officer is probably asking the question because he either smells alcohol on your breath or observed your car swerving or violating some traffic law. This is what gave the officer probable cause or reasonable suspicion to stop your car in the first place. If you answer a question it will only hurt your DUI case because you’ve given the police more circumstantial and possible direct evidence of your intoxication. This could later lead to a conviction at trial or a judge denying your attorney’s Pre-trial Motion to Suppress Evidence. A statement like “I only had a little to drink,” or “I am coming from a party,” can persuade a judge that the police officer had probable cause to arrest you. It’s always better to remain silent and simply cooperate with the police officer with regards to field sobriety tests, Breathalyzer Tests, and blood tests, but never make any verbal or written statements.

  3. Tell the Police Officer about any Physical Limitations You’ve Had in the Past

    A standard field sobriety test requires that a person perform certain movements so that a police officer can assess a person’s motor skills. These tests, however, are often difficult to perform even for a person who has not consumed any alcohol. There are three standard field sobriety tests – (1) the walk and turn, (2) the one leg stand test, and (3) the Horizontal Gaze Nystagmus (HGN) test.

The first two tests require you to walk on a straight line or balance on one foot. If you’ve had any type of surgery, played sports, or have any knee or leg injuries this will affect your ability to perform these tests correctly. Telling the officer that you’ve had an injury in the past will put the police, the prosecution, and the court on notice that the results of the field sobriety test may not be a fair indication of your intoxication. This will also allow your criminal defense lawyer to argue that the police didn’t have probable cause to arrest you based on the results of the field sobriety test.

With regards to the HGN Test, police officers are trained in the law but there is a great deal of case law which says that they can’t fairly use the results of the HGN Test to determine a person’s impairment. HGN is the involuntary jerking of the eyes and there is a strong argument that only a medical professional can accurately assess the results of this test.

If you are stopped for DUI it’s important to keep these three rules in mind because it will not only protect your rights but put your attorney in the best position to successfully defend your case. If you have questions about DUI, please call Gregory J. Spadea of the Law Offices of Spadea & Associates, LLC at 610-521-0604.

Importance of your Pennsylvania Preliminary Hearing and the Motion to Quash

Understanding the importance of Your Pennsylvania Preliminary Hearing and the Importance of the Motion To Quash

Man in handcuffs

If you are charged with a crime in Pennsylvania, you have the right to a preliminary hearing at the District Court where the offense occurred before proceeding to trial at the Court of Common Pleas. Your attorney should try to accomplish the following at your preliminary hearing:

  • Get the charges withdrawn, dismissed or discharged
  • Get the charges reduced from felony to misdemeanor or misdemeanor to summary;
  • Collect information by identifying potential witnesses;
  • Evaluate the credibility of anyone who testifies.
  • At a preliminary hearing the Commonwealth, through the district attorney will have to establish a prima facia case against you. A prima facia burden of proof is much lower than the proof needed to convict you at trial which is guilt beyond a reasonable doubt. A prima facia burden of proof is the same as the civil standard which is “by a preponderance of the evidence”.

    A prima facia burden of proof asks whether the Commonwealth has established that it is more likely than not that a crime was committed and that you committed it. The District Attorney, therefore, doesn’t have to present nearly as much evidence as he or she would have to at trial. In fact, the District Attorney does not have to share the evidence against you with your attorney until the day of the preliminary hearing.

    If a lower court district justice finds that the District Attorney has met the prima facia burden of proof, your case will be held for court and transferred from the District Court to the Court of Common Pleas. If your defense attorney believes that the District Justice made the wrong decision, he can file a Motion to Quash which is also called a Petition for Writ of Habeas Corpus.

    This Motion to Quash argues that the district attorney failed to establish the necessary burden of proof and that the evidence was insufficient. The motion asks that the Court of Common Pleas find that the lower court district justice ruled incorrectly and that the case be dismissed for lack of evidence. Although a Motion to Quash is a difficult motion for your attorney to win, it is important to consider filing it if your case is held for court. At the very least, it will give your attorney the opportunity to learn more about the District Attorney’s case and what it will focus on at trial.

    If you are charged with a crime, call Gregory J. Spadea at the Law Offices of Spadea & Associates, LLC at 610-521-0604.

    Protection From Abuse Order in Delaware County

    Man Arrested for Domestic Abuse

    What To Do if Someone Files For a Protection From Abuse Order Against You in Delaware County

    When someone you have a relationship with such as a spouse, parent, girlfriend or family member applies for an emergency temporary protection from abuse (PFA) order against you, you will be served by your local police to show up for a hearing. You should hire an attorney because you are not eligible for a public defender at the initial hearing. If you represent yourself and are found guilty the court will make the Order permanent and you can face:

    1. immediate eviction if you live with the Plaintiff;

    2. you have to relinquish any firearms or license to carry to the Delaware County’s Sheriff’s Office;

    3. the PFA will be part or your criminal record and may affect your ability to get future employment.

    If you fail to show up for the hearing or violate a protection from abuse order, the Court will hold you in contempt and you can face up to 6 months in prison or a $1,000 fine or both. Therefore it is important not to contact the party that filed a protection form abuse against you. It is also very important to bring witnesses to the hearing who can testify on your behalf as well as any other evidence.

    The longest a protection abuse order can remain in effect is 3 years. However, if there was a violation of the PFA and you were held in contempt, it can be extended until the end of the criminal contempt hearing and possibly longer.

    Therefore, if you receive Notice that a PFA has been filed against you contact Gregory J. Spadea at the Law offices of Spadea & Associates, LLC at 610-521-0604.

    Affirmative Defenses to Criminal Charges in Pennsylvania

    Close up of aman wearing handcuffs

    Affirmative defenses are strategies in situations where the defendant introduces evidence, which, if found to be credible, will negate or mitigate criminal liability. In essence the defendant admits that he committed a crime but some type of justification existed for it. Affirmative defenses include the following:

    • Self-Defense – which embraces the concept that conduct which would otherwise constitute a crime can be excused when necessary to prevent a greater harm. Conduct which the defendant believes to be necessary to avoid a harm to oneself or to another is justifiable if the harm sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged.
    • Mental Insanity – a defense of insanity acknowledges commission of the act by the defendant, while maintaining the absence of legal culpability.  The test of legal insanity is not whether the defendant was mentally ill from a medical viewpoint, but whether the defendant knew what he was doing and knew that it was wrong.
    • Voluntary Intoxication – based upon the ingestion of a drug or alcohol is a limited defense. The defendant has the burden to prove that he was overwhelmed through the use of drugs or alcohol to the extent that he could not formulate the specific intent to commit murder.  It is only a defense to first degree murder which is murder with the specific intent to kill. It is not a defense to everyday crimes, such as retail theft.
    • Entrapment – to prove entrapment the defendant has to show that the crime is one that he would not have committed, and he had no predisposition to commit, without the inducement of an undercover cop acting with him.  The fact that the undercover cop tricked the defendant into assuming he would not get caught doesn’t make it entrapment.
    • Defense of Others – similar to self-defense which embraces the concept that conduct which would otherwise constitute a crime can be excused when necessary to prevent a greater harm to others.
    • Mistake of fact – can be a defense to a criminal charge when the conduct in question would have been lawful had the facts been what they were reasonably thought to be. However, mistake of age is not a defense when the criminal charge deals with photographing, videotaping, or depicting children. Ignorance of the law is no defense but ignorance or a mistake as to a fact which made the defendant act in a certain way is a defense if the mistake negates the intent, knowledge, belief, or negligence required to establish a material element of the offense. An example is if a defendant goes into a store and presents nine items to the cashier for payment. Both honestly believe that all nine items have been scanned, and the defendant pays the sum shown on the bill. However, the store detective reviews the bill and notices only eight of items were paid for. Since the defendant honestly believes that he has become the owner of goods in a sale transaction, he cannot form the intent for the theft when he removes them from the store. Accordingly, he has not committed a crime due to a mistake of fact. The most common exception to the mistake a fact rule is mistake as to age. If criminal conduct depends on a child being under the age of 14 the defendant cannot assert that he did not know the age of the child as a defense. If, however, criminality depends on an age 14 years or older the defendant may assert that he reasonably believes the child to be above the required age. While the defendant may assert this defense the burden is on his attorney to prove it beyond a preponderance of the evidence.
    • Consent – when asserting this defense the defendant does not dispute that a criminal act took place but rather he states that the conduct was permitted by the victim. Generally consent is a defense if the alleged victim gives competent, intelligent, and voluntary consent to the conduct charged. Consent is a defense because it negates the mental element of a crime. For example, if crime requires bodily injury or the threat of bodily injury consent as a defense provided that the conduct and the injury are reasonably foreseeable hazards from the activity. It is important to understand, however, that consent is not a defense if the person consenting is not legally competent because of their youth, mental illness, or intoxication to make a reasonable judgement. Consent is also invalid if it is given because of force, duress, or deception.
    • Unavoidable Accident – the defendant while exercising reasonable care could not have avoided the accident because the victim put themselves in harms way.
    • Coercion – occurs if the defendant is forced by another party to act in an involuntary manner by use of intimidation or threats or some other form of pressure.
    • Execution of public duty – a defendant may use deadly physical force in execution of public duty only to protect against another’s use or apparent attempted or threatened use of deadly physical force. For example a security guard can shoot someone who is attacking someone else if he feels the person being attacked is in danger.
    • Defense of property – the defense of property permits individuals to use a reasonable amount of force to protect their property. If an intruder enters your home you can defend yourself by using deadly force if you feel threatened and there is no duty to retreat inside your home. However, if you are outside your home there is a duty to retreat before using force to defend yourself if you can do so with complete safety. An example would be if you are driving in a bad neighborhood and are stopped at a red light and a man walks up to the car and pulls a knife and tells to get out of the car and he can drive away to escape you have a duty to drive away.

    Always remember that a defendant is not required to admit to anything to assert an affirmative defense and should always maintains the right to remain silent. Your attorney can assert an affirmative defense using other witnesses, photographs, videos or documents. If you are charged with a crime and need representation, call Gregory J. Spadea at 610-521-0604 in Ridley Park, Pennsylvania.

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