Pennsylvania

The Pennsylvania Preliminary Hearing: Witnesses Optional (well almost).

Pennsylvania’s legislature and courts target the rights of those accused of crimes with all the ferocity of a coyote chasing down a fawn. In the recent case of Commonwealth of Pennsylvania v. David Edward Ricker (2015 PA Super 153), the Superior Court decisively ruled that the prosecution need not present any actual witness testimony at preliminary hearings. At the preliminary hearing, the Commonwealth’s task is (and has been) to make out a prima facie case that a crime occurred and that the accused is the culprit. While the Commonwealth still has to do just that, the Superior Court just made the job easier.

Prima facie does not mean proof beyond a reasonable doubt. One way of thinking about is to ask yourself whether a jury could convict the accused of the crime charged if that jury were to believe all the evidence the prosecution presented. If your answer is yes, then the prosecution has made out a prima facie case and the magisterial district judge “binds” over the charge or charges. For the Commonwealth, making out a prima facie case, in most situations, has never been a particularly difficult task. So why is the Commonwealth’s job even easier now?

Well, instead of having to present testimony by complaining witnesses and other fact witnesses, the Superior Court has ruled that the prosecutor only has to produce the witnesses’ out of court statements, which is to say “hearsay”. That means a police officer can simply tell the judge whatever the alleged victim told him or her. No need for the actual victim, or alleged victim, to testify. This also means, of course, that the accused has no right to confront his accusers at a preliminary hearing. Recent changes in the Pennsylvania Rules of Criminal Procedure made it all but inevitable that hearsay, alone, would eventually be enough for the prosecution to carry the day at a prelim. The Ricker case simply removed all doubt.

Prelims, though, are still important. A skillful criminal defense attorney will use every opportunity to build or bolster a defense. Even a preliminary hearing consisting only of hearsay testimony can provide a valuable opportunity for the lawyer to gauge the strength of the Commonwealth’s case, to test the evidence, to develop suppression issues, and to spot weaknesses. And, because the rules permit the criminal defendant to call witnesses on his or her behalf, it may be possible for the defense attorney to call the witnesses the Commonwealth didn’t want to call.

Adopting a Child from Outside of Pennsylvania

If you are planning to adopt a child from outside of Pennsylvania, you and your attorney must comply with the Interstate Compact on the Placement of Children (ICPC). If Pennsylvania adoptive parents complete an adoption in  another state but have not complied the ICPC, those parents face penalties and punishments not only in Pennsylvania, but in the state where the adoption was completed (the “sending state”). Indeed, the adoptive parents may even face difficulty bringing their newly adopted son or daughter into Pennsylvania.

The good new is that a skilled and knowledgeable adoption attorney can ensure the adoption meets the requirements of ICPC. When shepherding adoptive parents through a multi-state adoption, the adoption attorney will make sure the adoptive parents fill out all of the required forms and comply with the laws of the states involved. For instance, it is critical that everyone involved with the adoption comply with the law regarding voluntary or involuntary termination of parental rights.

If you reside in central Pennsylvania (Cumberland, Dauphin, Perry, Juniata, Franklin, and surrounding counties) and are contemplating a multi- state adoption, feel free to contact the Law Office of Sean Potter, PC at 717-582-0400 for a free consultation.

Marijuana DUI Arrest + No Probable Cause = Charges Dropped

Recently, a client came to my office after police charged him with a controlled substance DUI. According to the lab and police reports, he had 12 nanograms of a marijuana metabolite in his blood within two hours of operating a motor vehicle. In Pennsylvania, a driver with 1 or more nanograms of THC in his or her blood can face a DUI conviction.

After the client gave me a detailed account of the events before and after his arrest, I realized the police did not have — and could not have had — any reason to stop his vehicle. Quite simply, the officer did not have any reasonable suspicion that my client was violating the rules of the road or any other laws. Nevertheless, he was arrested and charged.

Immediately before the preliminary hearing, though, the Commonwealth’s case began to fall apart. I was able to demonstrate to the arresting officer and the more senior officer she brought along for support that the stop of my client was totally illegal. The end result? The police officer withdrew the criminal charges. Case closed.

As always, it’s important to realize that no two criminal cases are alike. No attorney can guarantee a result. However, as a knowledgeable, experienced criminal defense attorney I welcome the opportunity to deliver the best results possible to all of my clients. If you are facing DUI or other criminal charges in central Pennsylvania, call my office today. I offer new clients a no-cost consultation and case evaluation. Call the Law Office of Sean Potter, PC at 717-582-0400 to find out how I can help you.

Grandparents’ Child Custody Rights in Pennsylvania

I regularly receive visits from caring grandparents who are concerned about the health, safety, and overall well-being of a grandchild. Often, the child’s parents may be battling substance abuse, a mental illness is sometimes involved, or a parent is either soon to be incarcerated or is Imagealready serving time in prison. Fortunately, Pennsylvania law permits certain grandparents to seek sole or primary physical custody of one or more of their grandchildren. These grandparents may seek legal custody of a grandchild, as well.

In general, there must be extraordinary circumstances surrounding the parenting ability of the parents and the health and well-being of the children. Often by the time a grandparent files a custody complaint, the grandchildren have been residing in that grandparent’s home for a lengthy period of time. As a result, the grandparents are performing all the child rearing duties. Essentially, they are acting as parents in place of the child’s birth parents. In situations like this, it can be said the grandparents stand in loco parentis to their grandchildren.

Title 23, Section 5324 of the Pennsylvania Consolidated Statutes (23 Pa.C.S. § 5324)  who stand in loco parentis to their grandchildren to seek any form of physical or legal custody of those grandchildren. Grandparents who lack in loco parentis standing can still pursue any form of physical or legal custody of their grandchildren if they satisfy the statutory criteria.

Below, I have pasted the text of 23 Pa.C.S. § 5324. If you are a concerned grandparent, feel free to contact my office at 717-582-0400 for a free consultation and case evaluation.

23 Pa.C.S. § 5324.  Standing for any form of physical custody or legal custody. 


   The following individuals may file an action under this chapter for any form of physical custody or legal custody:

   (1) A parent of the child.

   (2) A person who stands in loco parentis to the child.

   (3) A grandparent of the child who is not in loco parentis to the child:

      (i) whose relationship with the child began either with the consent of a parent of the child or under a court order;

      (ii) who assumes or is willing to assume responsibility for the child; and

      (iii) when one of the following conditions is met:

      (A) the child has been determined to be a dependent child under 42 Pa.C.S. Ch. 63 (relating to juvenile matters);

      (B) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or

      (C) The child has for a period of at least 12 consecutive months, resided with the grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, in which case the action must be filed within six months after the removal of the child from the home.

Pennsylvania DUI Defense: Constitutional Rights of the Accused

Arrested for DUI in Pennsylvania? You may have defenses based on the United States Constitution.  For instance, evidence of a driver’s blood alcohol content (BAC) is usually central to the prosecution’s case. As an attorney who defends clients charged with DUI, one of the first questions I investigate is whether or not police obtained that blood evidence as the result of  an illegal detention or arrest.

An unlawful detention may be one based on a state trooper’s or police officer’s “hunch” about a suspicious vehicle. If a police officer wants to perform a traffic stop, a hunch is not a valid reason. At the very least, the officer must have a reasonable suspicion that a driver is operating his vehicle in violation the motor vehicle code. He or she must be able to say and describe what prompted the stop. If not, the stop may have been unlawful and may lead to suppression of the evidence obtained as a result of that illegal stop.

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If you have been charged with DUI in the  Cumberland, Perry, Dauphin, Juniata, or other counties in central Pennsylvania, I invite you to contact my office at 717-582-0400 to arrange a free consultation with me. At the consultation I will assess your case and attempt to answer your questions.

Sean Potter
Law Office of Sean Potter, PC
15 East Main Street
P.O. Box 121
New Bloomfield, PA 17068
Phone: 717.582.0400
Fax:      717.582.0401
www.attorneypotter.com