Your Right to Counsel at a Pennsylvania Grand Jury Hearing

Grand Jury Room Door
Pennsylvania law provides for two types of grand jury: a multicounty investigating grand jury with statewide jurisdiction, convened on the application of the Attorney General, and a county investigating grand jury, generally convened upon the application of a county district attorney and limited in jurisdiction to the county in which it sits.  The word “grand” distinguishes the jury from a “petit” jury of 12 who sit at trial to decide a defendant’s guilt or innocence.

In Pennsylvania there are investigating grand juries composed of 23 citizens who, after hearing testimony from witnesses and reviewing all the evidence, determine if sufficient evidence exists to find that a crime was committed.  Investigating grand juries do not have the power to indict or formally charge a person with a crime.  If 12 or more of the 23 grand jurors agree that sufficient evidence exists, it issues a written document known as a presentment.  A presentment summarizes the evidence and recommends that the prosecutor file charges against the person who is the target or subject of the grand jury’s investigation.  While a prosecutor is not required to act on a grand jury’s recommendation they do in most cases.  The grand jury’s presentment often serves as the prosecutor’s affidavit of probable cause which Pennsylvania requires in order to file criminal charges.

The work of a state grand jury is secret and a defendant along with his defense counsel only becomes aware of its findings upon an indictment.  Once indicted or charged, the defendant and his attorney only have 60 days to prepare a case for trial unless a Court grants a motion for a continuance.  Grand juries are not permitted in all cases in Pennsylvania and in order to utilize this system in place of a preliminary hearing, a prosecutor must formally represent to the Court that the grand jury is needed because of the threat of witness intimidation.

Witnesses testifying before a Pennsylvania grand jury are permitted to consult with counsel at any time following a question.  While defense counsel does not have an absolute right to be in grand jury hearing room, State judges will typically allow it because answers to questions will frequently create a self-incrimination issue under the Fifth Amendment, along with a right to counsel issue under the Sixth Amendment.  If a prosecutor believes that a subpoenaed witness is likely to make a legitimate claim that his testimony will tend to incriminate himself, the prosecutor may apply to the supervising judge of the grand jury for an order of immunity. Such an order gives the witness protection from having his testimony before the grand jury used against himself in a later court proceeding.  If you receive a subpoena for a Pennsylvania grand jury, I do not recommend ever appearing without an attorney because any statement you make could later be used against you at a trial unless you are granted immunity.

If you receive a subpoena to appear before a grand jury or are charged with a crime you should contact Gregory J. Spadea at 610-521-0604 of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

Blood Evidence and the 2 Hour Rule in DUI Cases

Whiskey with car keys and handcuffs concept for drinking and driving

A blood sample is often a key piece of evidence in a DUI case. While you can refuse to supply a blood sample after an arrest, you risk a one year license suspension simply based on your refusal. The license suspension is a civil sanction carried out by the Pennsylvania Department of Transportation (PENDOT) and therefore outside the scope of a criminal prosecution. Therefore, the Pennsylvania District Attorney could withdraw charges against you and still suspend your license simply because you refused to submit to a blood test. Therefore, I never recommend refusing a blood test under any circumstance since it is better to have your attorney dispute the admissibility of the blood test with pretrial motions and arguments at trial. This article, however, focuses on the use of blood after a certain period of time.

The Pennsylvania DUI statute section 3802(a) (1) does permit the Court to convict someone based on general impairment without the presentation of blood evidence but if the prosecution is pursuing a case under general impairment it forces the prosecution to rely on the testimony of a law enforcement officer and his subjective observations at the time of the alleged incident. Subjective observations, unlike objective blood evidence, are open to interpretation since there are several reasons to explain the unusual movements of an automobile or a person’s demeanor following a traffic stop on a suspicion of DUI.

The presentation of blood evidence at a DUI trial requires the prosecution to present testimony regarding the analysis of whole Blood Alcohol Content (BAC). It is important to understand that to calculate whole BAC, the prosecution must present evidence which mathematically converts blood serum to whole blood BAC utilizing a predetermined conversion factor. In other words, the officer must get your blood drawn and have your BAC tested within two hours after you last drove. If the arresting officer does not obtain your BAC within two hours, the prosecution must show your BAC using a Breathalyzer or the presence of another prohibited substance outside the two hour limit. Next, the prosecution has to show good cause why a blood test could not be obtained within two hours. Finally, it has to prove that you did not ingest any alcohol or drugs between the time of arrest and the time the sample was obtained.

This makes the case much harder for the prosecution but even if the judge allows the prosecutor to go forward, you must fight the good cause showing why the officers could not take your blood test within two hours. If the prosecution shows that the delay was your fault, the judge will rule against you.

It is important to remember, however, that in many DUI cases a person’s BAC level is just above the percentage cutoff and so a successful defense argument could lead to a full acquittal or, in the alternative, a conviction for a lesser offense under the statute allowing a person to avoid jail time and a license suspension in some cases. If you are charged with a DUI contact Gregory J. Spadea at 610-521-0604 of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

Admissibility of Hearsay Evidence at a Pennsylvania Preliminary Hearing

Hearsay is an out of court statement offered for the truth of a matter asserted by the party attempting to introduce it into evidence. Generally, hearsay is not admissible at trial because it is considered unreliable given that the speaker was not under oath and not subject to the opposing party’s cross examination. While there are a number of exceptions to the Hearsay Rule, the purpose of this blog is to explain the admissibility of hearsay ata preliminary hearing.

At a preliminary hearing a magistrate judge determines if a crime was committed and if the accused was connected to the crime. The evidentiary threshold at a preliminary hearing is the preponderance of evidence standard which is far below the criminal trial standard of proof beyond a reasonable doubt. However, the preponderance of the evidence standard means that more than likely the defendant was connected to the crime. Procedurally, the preliminary hearing is the first screening of a crime and its function is not to try the defendant which is why it does not require the same high degree of proof or quality of evidence that is required at trial. Read More

Direct vs. Circumstantial Evidence

Male Forensic Scientist Holding an Evidence Bag With a Gun Inside
Sometimes my office receives a phone call from a potential client asking me to evaluate their case based on the facts in evidence to see how strong the prosecutor’s case is. I explain the types of evidence including circumstantial and direct evidence.

Circumstantial evidence relies on an inference to connect it to a conclusion of fact. It is not based on personal knowledge of the facts in controversy, but of other facts from which deductions are drawn. These other facts are also called indirect evidence because they are applied to principal facts by linking them through established occurrences. Circumstantial evidence usually accumulates into a collection, so that the pieces then become corroborating evidence. Together, they may more strongly support one particular inference over another. It is important to understand that circumstantial evidence varies in it degree of strength, however the more corroborating evidence there is, the stronger the circumstantial evidence becomes. Circumstantial evidence is especially important in criminal cases where direct evidence is lacking especially if there are no witnesses.

One example of circumstantial evidence is the behavior of a person around the time of an alleged offense. If someone was charged with theft of money and was then seen in a shopping spree purchasing expensive items, the shopping spree might be circumstantial evidence of the individual’s guilt. If a witness actually saw the person take the money that would be an example of direct evidence.

While Direct Evidence is obviously stronger than circumstantial evidence, a jury can still convict someone solely on circumstantial evidence. However, the burden of proof is always on the prosecution to show the defendant is guilty beyond a reasonable doubt. Reasonable doubt does not mean certainty and that allows the prosecution to meet its burden in cases where it cannot actually produce an eyewitness or any direct evidence.

When the prosecutor has no direct evidence he creates a timeline and attempts to place the defendant at the scene of the crime using his cell phone or EZ-Pass. Sometimes the victim’s calendar indicates the person they met with when the crime was committed.

Direct and Circumstantial Evidence are concepts that you need to understand if your case is headed for trial or you are weighing a plea offer from the District Attorney. If you have any questions about these concepts contact Gregory J. Spadea at 610- 521-0604 of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

Qualifying for Delaware County Veterans Court

Proud saluting male army soldier
In 2011, Delaware County created Veterans Court. The Court seeks to address the increasing number of veterans entering the criminal justice system after serving our country. Many Veterans suffer from the wounds of combat, including Post-Traumatic Stress Disorder (PTSD). The Delaware County Veterans Court’s mission is to provide substance abuse and mental health treatment to the men and women who served our country while balancing the interest of the community in punishing, rehabilitating and deterring these defendants from committing future crimes. In a collaborative effort with the Office of the District Attorney, Defense counsel, and the Veterans Administration, the Delaware County Veterans Court seeks to provide defendants with treatment and services needed to return to being productive and law-abiding citizens.

To qualify for veterans benefits a veteran must have received an Honorable discharge but they can still enter the Veterans Court Program regardless of the character of their discharge. The veterans must agree not to take any narcotics including prescribed narcotics while enrolled in the program. The veteran agrees to supervised probation and treatment for 18 months and upon successful completion the criminal charges will be dismissed.

A veteran may not be eligible for the Veterans Court Program if he/she has any of the offenses listed below as either an open charge, prior adult conviction or prior juvenile
adjudication. Also, the veteran is ineligible for a charge of Attempt, Solicitation and or Conspiracy to Commit the listed offenses below.

1. Offenses involving children such as interference with custody, concealment of a child’s whereabouts, endangering a child’s welfare and corruption of minors where the crime is of a sexual nature.

2. Other offenses including escape, stalking, impersonating a public servant, contraband, and promoting juvenile prostitution.

3. Pennsylvania motor vehicle violations including driving under the influence for the third or Subsequent Tier 3 offenses within 10 years or a crash involving serious bodily injury, homicide by vehicle, aggravated assault by vehicle, aggravated assault by vehicle while driving under the influence, accidents involving death or personal injury resulting in serious bodily injury or death, accidents involving death or person injury while not properly licensed resulting in serious bodily injury or death, falsification of identification number, dealing in vehicles with falsified numbers, dealing in titles for stolen vehicles, false application for certificate of title registration, altered, forged or counterfeit documents, fleeing or attempting to elude police officer when graded as a felony of the 3rd degree, indecent assault, incest, indecent exposure if the veteran knows or should know victim is under 16 years old.

4. Theft offenses including any theft where value is equal or greater than $10,000, deceptive business practices where theft value is equal or greater than $10,000, or victim is sixty years of age or older, theft by extortion, burglary, however a veteran is still eligible if offense is burglary of a non-residence and no one else is present.

5. Weapon offenses and explosives including possessing, manufacturing, selling or transferring firearms, or carrying explosives on conveyances.

6. Crimes of Violence including murder, voluntary manslaughter, involuntary manslaughter, aggravated Assault, kidnapping, arson, intimidation or retaliation against victims or witnesses, and drug delivery resulting in death.

7. Sexual offenses including rape, sexual assault, involuntary deviate sexual intercourse, and aggravated indecent assault.

If you are a veteran charged with a crime contact Gregory J. Spadea of Spadea & Associates, LLC in Ridley Park, Pennsylvania at 610-521-0604.

Attacking the Credibility of a Witness at Trial in Pennsylvania

Side profile of a lawyer and a witness on the witness stand

Generally the character of a witness including the accused is not admissible at trial. However, the character of a witness is admissible when and if the accused introduces it during his testimony or the prosecution is put in a position to rebut an allegation made by defense counsel. For example, if the defense were to introduce evidence that the victim has poor vision and needs to wear corrective lenses in a case involving identification of the accused, then the prosecution can introduce evidence that the victim was wearing contact lenses, when he or she made the identification. This is the reason why defense counsel must thoroughly investigate the background of any witness called to testify including hiring an investigator when appropriate to avoid surprises.

Another exception to the general rule that character evidence is not admissible is if the defense counsel or prosecutor introduces it for another purpose. For example to show that a witness has engaged in previous crimes. The attorney introducing the evidence would submit that it being introduced to prove that the witness had prior knowledge and experience in committing the crime or had a motive to commit the crime and not as a means of attacking the witnesses character.

However even if an attorney introduces bad character evidence against opposing counsel’s witness, the opposing counsel can always impeach the credibility of the attorney’s witnesses. The rules of impeachment allow either the prosecutor or defense counsel to attack the credibility of any witness including their own witnesses. An attorney may use any evidence to impeach the credibility of a witness but is generally limited to prior convictions involving dishonesty or untruthfulness. In Pennsylvania, most courts will not allow an attorney to introduce a witness’s arrest record if it did not result in a conviction. The reason is the fact that a witness was arrested and charged with a crime, in and of itself, is not evidence of guilt.

The rules of evidence regarding character impeachment are more restrictive in Pennsylvania than they are in the federal courts. The federal rules of evidence allow an attorney to cross exam a witness on any past incidents regarding their character involving dishonesty or untruthfulness even if they did not result in a conviction.

It is important to hire an attorney that understands both the federal and Pennsylvania rules of evidence. If you have any questions or are charged with a crime please call Gregory J. Spadea at 610-521-0604 or contact us online.

How Do I Get My Criminal Records Expunged in Pennsylvania?

Close-up of a judge handing down a verdict

In Pennsylvania, you may have your criminal record cleared or “expunged” if you satisfy certain requirements under Pennsylvania law. If you are granted an expungement, your criminal record will be removed from the Department of Court Records’ files as well as the files of other criminal justice agencies. In essence, there will be no record that you were ever charged with a crime.

To determine which charges on your record can be removed through the expungement process, you must look at the disposition or outcome of the case. If you were convicted, typically the disposition will be listed as pled guilty or found guilty. If the charges against you were dropped, the disposition may say dismissed.

Charges with the following dispositions may be eligible for expungement:

  • Withdrawn
  • Dismissed
  • Nolle Prossed
  • Not Guilty
  • Disposition Unreported/No Further Action Taken

Additionally, if you pled guilty or were found guilty of a summary offense, the conviction for that summary offense may be eligible for expungement if you have remained free from arrest or prosecution for 5 years following the conviction. Examples of summary offenses include traffic violations and disorderly conduct.

You can also obtain an expungement if you successfully completed the Accelerated Rehabilitation Disposition Program and finished the probation period.

Please note that before you can file for an expungement in a particular case, you must pay off any outstanding fines, costs, or restitution for that case. If you still owe fines and costs, the Department of Court Records will not allow you to file your petition.

If you pled guilty or were found guilty of a misdemeanor or felony offense, you must apply for a Governor’s Pardon. Misdemeanor and felony convictions are NOT eligible for expungement.

If you need help filing a petition for expungement or pardon please call Gregory J. Spadea of Spadea & Associates, LLC at 610-521-0604, in Ridley Park, Pennsylvania.

Understanding Criminal Possession and Criminal Conspiracy

Police Officer Arresting Young Man

Clients sometimes claim that the government has charged them with possession of illegal drugs but the charges are baseless because the police did not find any of the drugs in question on their person at the time of arrest. It is important to understand that if the government is not able to prove that a person actually possessed an illegal item, it may demonstrate constructive possession of such items by showing that you had control or intended to exercise control over the item.

A constructive possession analysis requires that a Court examine the totality of the circumstances surrounding the arrest. A Court may convict you for illegal possession under a constructive possession theory where it appears under the totality of the circumstances you exercised conscious dominion and control over it. In other words, constructive possession is the ability and intention to control an illegal substance without having actual physical possession. For example, if the police find a key to a train station locker when they searched you they can charge you with constructive possession of the contents in the locker even if you were not in the train station at the time of the search.

It is important to understand that even if the prosecutor cannot charge you with constructive possession, they may still successfully prosecute you for criminal conspiracy. A Court can find you guilty of criminal conspiracy if the prosecution can demonstrate that you agreed with one or more persons to commit a crime. You are also guilty of criminal conspiracy if you provide aid to someone in planning or committing a crime. It is also important to understand that if you are found guilty of criminal conspiracy, you may be found guilty for more than you realize. If, for example, the prosecution is able to show that you knew a person was conspiring with others in addition to yourself, you could be found guilty of conspiring with everyone. Criminal conspiracy does not have its own sentencing grading so if you are convicted of conspiracy you face the same grading as the actual crime. The prosecution must establish that you had an agreement with at least one other person and that you took a substantial step toward completing the actual conspiracy.

However, you will not be found guilty of conspiracy if you can demonstrate a renunciation to the act. Renunciation means that upon becoming aware of the criminal nature of the act you affirmatively disengage from the group.

It is important to remember that the prosecution may charge you criminally for constructive possession despite a lack of actual possession of any illegal item.
Therefore, if you are charged with either criminal conspiracy or constructive possession, it is important that you hire an experienced defense attorney to represent your interests. For more information contact our Ridley Park office and speak with Gregory J. Spadea, Esq. of Spadea & Associates, LLC at 610-521-0604 regarding your options in these cases.

What is A Gagnon or Probation Revocation Hearing?

Courtroom
If you violate one or more of the terms of your probation you have certain rights. If you violate your probation indirectly such as failing to report to your probation officer or failing a drug test a bench warrant will be issued for your arrest. If you violate your probation directly such as being charged with a new crime or being arrested you have a right to a pre revocation hearing within 72 hours. This hearing is called Gagnon I Hearing where a judge will determine whether you should be incarcerated pending your full hearing on the matter which is called a Gagnon II Hearing. If the judge is so inclined, he will release you until your full hearing. If not, you will be held incarcerated for several months until the Gagnon II Hearing, which is known as a “detainer.”

At the Gagnon II Hearing the judge will determine if you violated the terms of probation based on the facts presented by your attorney, the District Attorney, the police as well as your probation officer. The burden of proof is lower for a Gagnon II Hearing than for a criminal trial. In a criminal trial the District Attorney must prove beyond a reasonable doubt that you committed all the offenses you are charged with. However in a Gagnon II hearing the burden of proof is lowered to the preponderance of the evidence which means that more likely than not you violated the terms of your probation.

If the Judge does find you violated your probation, he or she will give you a new sentence on the case for which you were on probation for. In determining how to sentence you the Judge will consider whether you are a threat to society, and if you are not, can you be rehabilitated through probation. Your Attorney will try to show that you can be rehabilitated by presenting favorable evidence such as your employment history, or a strong family support system.

If you have a bench warrant or are facing a Gagnon I or II Hearing please contact Gregory J. Spadea of Spadea & Associates, LLC at 610-521-0604. He can negotiate a time and place to turn yourself in to the Sheriff and help you get the bench warrant rescinded and get you a new court date.

What Should I Do If I Have a Juvenile Detention Hearing?

Young man in handcuffs

If you are detained in a detention facility, you must have a court hearing within 48 hours. This does not include weekends and holidays. At that hearing, the judge will decide if you should stay in the detention facility until your trial date, or if you can be released (either conditionally or unconditionally) until then. The court should appoint a lawyer called a Public Defender to represent you at the detention hearing if you cannot afford one. The Judge will be deciding if you should remain in a juvenile detention facility until your next adjudication hearing which could be four to eight weeks.

It is very important to have a lawyer at this hearing. You should call Gregory J. Spadea at 610-521-0604 of Spadea & Associates, LLC in Ridley Park. You should meet with Gregory and provide him with proof of counseling, community service, good performance at school, etc. This will help Gregory negotiate your release and get favorable bail terms.

If you are released you want to make sure your parents know what time they can pick you up and how much they have to post for your bail if it is not unsecured.

If you have any questions you should contact Gregory J. Spadea of Spadea & Associates, LLC at 610-521-0604 in Ridley Park, PA.

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