Frequently Asked Questions About DUI/DWI, Drug Possession, and Illegal Firearm Charges

Do I have to take a breathalyzer test when I am pulled over? Does an officer need a reason to search my car? What is a bench trial? Whether you have been charged with a crime or not, these FAQs will give you the information you need to protect your rights in Pennsylvania and New Jersey.

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  • Understanding Criminal Conspiracy

    A crime that is often misunderstood is conspiracy. Conspiracy is what the law refers to as an inchoate offense. An inchoate offense is one that pertains to the steps taken toward the commission of a crime with the step itself, conspiracy for instance, being serious enough to constitute a crime itself. There are three types of inchoate offenses: conspiracy, solicitation, and attempt.

    A person is guilty of conspiracy when he acts with another person with the intent to commit a crime. To be guilty of conspiracy the prosecution must prove that the person agreed with another to engage in conduct which constituted a crime or attempted to engage in conduct. Conspiracy is also committed if a person agrees to aid another in committing or planning to commit a crime.

    To prove conspiracy the prosecution must establish (1), an agreement to commit a crime or the providing of aid to commit a crime, (2),  a shared criminal intent and (3), an overt act (open and observable) done in furtherance of the conspiracy. If you are charged with conspiracy your attorney should focus on the following issues: the Agreement; the number of co-conspirators; the overt act; the duration; the sufficiency of evidence; renunciation; and the merger of offenses.

    With regards to the issue of Agreement the prosecution must prove beyond a reasonable doubt that there was an Agreement among the co-conspirators. To prove Agreement the Commonwealth does not need to show an explicit or formal understanding among the co-conspirators. The Commonwealth must, however, show more than a mere association. A Court (judge or jury) can find conspiracy inferentially through the defendant’s relation, conduct, or circumstances of the parties. It’s very important to keep in mind that mere association or presence at the scene of the crime is insufficient to establish conspiracy. This is a key concept.

    With regards to co-conspirators it is important to understand that one defendant can be convicted of conspiracy even if his alleged co-conspirator is acquitted later at a separate trial. It is not necessary that two defendants be tried together in order to convict a person of conspiracy. Even if the defendants are tried at the same trial it is still possible to find one guilty, the other not guilty, and still convict the guilty person of conspiracy. With regards to an overt act you must understand that it doesn’t need to be crime itself but only an action that furthers completion of a crime or the attempt to complete a crime. Again, it is important that your attorney focus on the circumstances surrounding the actions of the individual accused of the conspiracy. Quite often the prosecution will erroneously ask the court to find conspiracy based on the mere presence of the person at the scene of the crime without any more evidence. You can’t be found guilty by mere association!

    If you are accused as a conspirator you are subject to the same penalty as the principal actor (robbery, burglary, etc.). Much like other states, Pennsylvania does allow a person to be charged with conspiracy along with the principal act and the two charges do not merge for the purposes of sentencing. Merger is a legal concept that basically means that a person cannot be sentenced to an additional penalty (jail time or probation) for a crime that would be considered a lesser included offense of a more serious crime. For instance, robbery merges with theft because both are considered unlawful taking provided that the two crimes derived from the same incident. Because there is no merger you are subject to a double penalty. While judges can run sentences concurrently (at the same time) there is no prohibition against them running sentences for the two crimes consecutively (one after another). A conspiracy charge is serious and it’s important that your attorney properly prepare a defense if you are charged with it.

  • Is it Aggravated Assault, Simple, or Self Defense?

    fistIn Pennsylvania, like many jurisdictions, there are different degrees of assault. Assault is either a misdemeanor or a felony offense in the Commonwealth. If assault is a misdemeanor it’s defined as a simple assault in which the alleged perpetrator attempts to cause or intentionally, knowingly, or recklessly causes bodily injury to another person. Simple assault is also committed where the perpetrator acts negligently with a deadly weapon, causing bodily injury. A simple assault is a misdemeanor of the second degree. If the defense can establish that it was committed during a fight, entered into by “mutual consent” then making it’s a misdemeanor of the third degree. It’s misdemeanor of the first degree if the victim is under the age of 12 and the perpetrator is 18 or older.

    Aggravated assault occurs when the accused attempts to cause serious bodily injury to another or causes serious bodily injury intentionally, knowingly, or recklessly under circumstances “manifesting extreme indifference to the value of human life”. An aggravated assault is also committed when a person causes or intentionally or knowingly causes bodily injury with a deadly weapon. There is also an aggravated assault crime reserved for contact with law enforcement and other enumerated person (fire fighter, paramedics, judge) which is beyond the scope of this short article.

    A critical component of the aggravated assault crime is malice. Malice is established where there is “wickedness” or “hardness of heart, cruelty, recklessness of consequence, and a mind regardless of social duty”. A person doesn’t need to target a specific victim to commit an aggravated assault. Specific intent to injure a specific person isn’t required in Pennsylvania. The prosecution may also establish aggravated assault beyond a reasonable doubt under an accomplice liability theory. Accomplice liability isn’t the same as conspiracy and doesn’t require that a defendant form an agreement with the co-conspirator. Accomplice liability only requires that the accused person actively participate in such a way that it aids his cohorts and that aid was intended to facilitate crime.

    It’s important to understand, however, that if you’re charged with either aggravated or simple assault in Pennsylvania you can and should assert a self-defense argument if there are facts to support it. Self-defense falls under Section 505 of the Pennsylvania Crimes Code and once the defense asserts it, the burden passes to the Commonwealth (prosecution) to prove beyond a reasonable doubt that the accused’s act wasn’t justifiable self-defense. The prosecution, however, can meet this burden to establish any of the following:

    • The accused didn’t reasonably believe that he was in danger of death or serious bodily injury
    • The accused provoked or continued the use of force
    • The accused had a duty to retreat and retreat was possible with complete safety

    The defense and prosecution will both make or arguments with regards to self-defense and a judge or jury will have to decide whether the accused’s belief was 1) reasonable, 2) free of provocation, and 3) whether the accused had a duty to retreat.

    This analysis not only requires a judge or jury to look at the reasonableness of the belief but also the issue of provocation. Provocation is key in this situation because a person can’t assert a self-defense argument if he started the incident which ultimately required him to act in self-defense.

    If you’re charged with the aggravated assault or simple assault it’s important that your defense attorney consider a self-defense argument especially if the victim has significant injuries. If there are significant injuries, the prosecution will argue that you intended to commit serious bodily injury and will seek a conviction for a felony offense. Even if you are just convicted of a simple assault (misdemeanor) this conviction will follow you and hinder your ability to obtain certain employment positions and professional opportunities. For more information on criminal defense strategies, I encourage you to read my books, watch my videos and subscribe to my monthly newsletter.