Monday, July 28, 2014

What is an Arraignment?

The Arraignment in most Pennsylvania counties is the first formal appearance for a criminal defendant at the Court of Common Pleas. Excepting some specialized matters, the vast majority of criminal cases start at the Magisterial District Justice level for a Preliminary Hearing. Assuming charges are "held for court"* the matter is then transferred to the Court of Common Pleas for further proceedings.

At the formal Arraignment, the defendant is entitled to have the charges read to him or her. The defendant is asked to enter a plea of guilty or not guilty. Unless the matter has already been negotiated at the Preliminary Hearing the defendant will enter a plea of not guilty. Then the Court will set a schedule for further hearings including a tentative trial date.

In many counties the Arraignment can be waived, as it is mostly a procedural mechanism, and the defendant would not have to appear. There may be good reasons not to waive an Arraignment, for example if the defendant wishes to file a motion for bail reduction or if the defendant is uncertain of the specific charges against him or her. (The Arraignment is often concurrent with the filing of the criminal information, more on that in a later post).

While the Arraignment is often seen as a procedural artifact, it is still vitally important in preparing an effective criminal defense. The Arraignment sets the dates going forward for critical pre-trial procedures.

  • Any defense request for a Bill of Particulars must be filed within 7 days.
  • Any discovery request must be made within 14 days. 
  • Any pre-trial motions must be filed within 30 days.
While these dates can be extended by order of court, if the defendant or his/her counsel fails to adhere to these timelines there is a risk of waiver, which could be disastrous for the defense. Even in those cases where the defendant waives his or her Arraignment, special attention should still be paid to the time frames going forward. 

*"Held for court" means that the MDJ found that enough evidence exists to allow the case to proceed to the next level.

Thursday, July 24, 2014

Photographing police officers in public

There has been a continued practice of police officers claiming that private individuals photographing or videoing them during the course of their duties is a violation of a law. This most recently occurred when a Border Patrol Agent accosted a group of Boy Scouts in Alaska.
Boy Scout Troop 111 Leader Jim Fox spelled out what happened to him and the Mid-Iowa Boy Scout Troop 111 as four van-loads of Scouts and adult volunteers tried to drive from Canada into Alaska.
Fox said one of the Scouts took a picture of a border official, which spurred agents to detain everyone in that van and search them and their belongings.
“The agent immediately confiscated his camera, informed him he would be arrested, fined possibly $10,000 and 10 years in prison,” Fox said.
Fox said he was told it is a federal offense to take a picture of a federal agent.
Not wanting things to escalate, Fox said he did not complain.
Another of the Scouts was taking luggage from the top of a van to be searched when something startling happened.
“He hears a snap of a holster, turns around, and here’s this agent, both hands on a loaded pistol, pointing at the young man’s head,” Fox explained. [emphasis added].!bjWo9y

Of course, there is no such federal or state law in Alaska, despite the Border Patrol Agent's claim. There have been many such abuses all across the nation. Fortunately, the legal system is catching up, and officers have been reprimanded, sued civilly and in some case prosecuted for these actions.

The ACLU recently clarified the right to photograph in public.
Taking photographs of things that are plainly visible from public spaces is a constitutional right – and that includes federal buildings, transportation facilities, and police and other government officials carrying out their duties.

Police and Law Enforcement are constantly encroaching on the privacy rights of citizens by installing ever more surveillance cameras and utilizing other forms of invasive technology. Fortunately, police abuses of power can be photographed by every person with a smart phone to ensure they are on their best behaviour.

Friday, July 18, 2014

Property Tax Assessment Appeal

When purchasing a property it is always important to check that the assessed value of the property matches the actual market value. If the property is assessed higher than the actual market value the property-owner may be paying significantly higher taxes than justified.

This is especially important in a down economy when property values have dropped. NEPA has been hit hard by such a drop. Evaluating whether an assessment appeal is needed is an important consideration every homeowner and new purchaser should consider. This is doubly essential for properties purchased at foreclosure or tax sales.

The process for the appeal begins at the local level, and it is often crucial to have an appraisal done by an independent party to present. Representation by an experienced attorney is also a key part of the appeal.

Fees vary depending on the likelihood of success and the amount that can be saved by the assessment appeal. Some attorneys will perform this work on a contingency basis, meaning that they recover no fees if the appeal is unsuccessful. Potential appellants should be careful about such an arrangement as it may wind up costing him or her a significant portion of any savings generated by the appeal.

Monday, July 14, 2014

Cell Phone searches require a warrant when seized incident to arrest.

The Pennsylvania Superior Court recently issued a decision in the matter of Commonwealth v. Stem, affirming the United States Supreme Court's decision in Riley v. California, that a search incident to arrest does not cover the content of cell phones absent a warrant issued on probable cause.

In this case, the Defendant was apprehended and taken into custody for a domestic violence violation. While being processed for arrest his cell phone was taken and the Officer reviewed the photographs contained on the phone. The Officer did not have a warrant and was not able to articulate probable cause as to why the cell phone should be searched. The phone contained roughly 17 photos that appeared to be child pornography. Stem was later charged with child porn violations. Prior to trial he moved to suppress the photos as his phone was searched without a warrant, in contravention of the Supreme Court's decision in Riley. 

The trial court and then on appeal the Superior Court both held that the warrantless search of the cell phone was not a legal search and suppressed all evidence of the photos. 

Child pornography is a terrible crime, but requiring a warrant before police can search someone's cell phone protects everyone's privacy interests. As the Supreme Court explained in Riley, cell phones contain far more than just phone numbers or pictures. Cell phones linked to the internet can contain a person's entire banking history. Personal email or text messages. Confidential medical information, and much more. Being secure in the privacy of this material absent a warrant is in everyone's interests.  

Thursday, July 10, 2014

A recent news story concerning malfeasance by an area Police Chief has been getting attention for the way the matter has been handled by the municipal oversight committee.
An investigation into the theft of Pocono Mountain Regional Police Chief Harry Lewis' service handgun cost taxpayers about $50,000, but officials who oversee the department now lack access to the report, a Coolbaugh Township representative said.
In a long statement at a commission meeting Tuesday night, Coolbaugh representative Bill Weimer requested a roughly 60-page report produced by Philadelphia attorney Neil A. Morris, who investigated the gun theft.
Lewis later confirmed the vehicle was unlocked at the time of the theft. Lewis, who is set to retire next month, has said he was not disciplined as a result of the incident, though Coolbaugh police representative Juan Adams has said Lewis was disciplined without specifying how.Two teens were accused of stealing Lewis' service handgun and wallet from his department-issued vehicle while it was parked at his Allentown area home in May 2013.
From -

 At issue is the clearly irresponsible behaviour of the Police Chief in failing to properly secure his weapon. Would a regular civilian have gotten off as easily? Unlikely, in my experience. And now to withhold the investigative report from the public, which was financed by $50k in public funds, is an egregious exercise of official power.

Hopefully this matter is cleared up, shortly.