Nolle Prosse Cases in Bucks County

A prosecutor can decide to "nolle prosse" your Bucks County criminal case for a variety of reasons.  It is not the same as a dismissal.  A dismissal is done by a judge.  

Nolle prosequi is Latin for "unwilling to pursue".  It means that the prosecutor is dropping the charges against you.  It But, the prosecutor leaves the door open to refile charges later.  Sometimes, the prosecutor, after speaking with you Bucks County criminal defense lawyer, finds that the charges were frivolous or that the matter was civil, not criminal (I've seen this before in alleged theft situations).  Sometimes, the prosecutor does this because they are concerned about the quality of their case -- for example, a police officer may be injured on duty ("IOD") and unable to testify.  The prosecutor can nolle prosse the charges and refile if/when the officer becomes healthy (it has happened to me before).  But, it should be a relief to hear "nolle prosse" as it means you are free.

A Carroll motion is an important motion when someone is charged with Possession with Intent to Deliver drugs.  These motions are filed by Bucks County criminal defense lawyers and are done pursuant to Commonwealth v. Carroll, 438 Pa.Super. 55, 651 A.2d 171 (1994).  These motions argue that a portion of the drugs seized during an arrest were used for personal use.  This is done frequently to avoid a mandatory minimum sentence on the weight of the drugs.  Essentially, if some of the weight is for personal use, it should not be "counted" towards the mandatory sentence.  

This is a pretrial motion filed where your criminal lawyer should most likely get an expert in drug usage to testify to the amount of personal use by the defendant.  

Drug Cases & PWID in Bucks County

Frequently, the police will arrest 1 or 2 individuals when they allege that they observe a hand-to-hand transaction.  The police officer/detective (who are frequently undercover) will state that they saw "U.S. currency be exchanged for small, unknown objects".  Then, they will charge the "seller" with Possession with Intent to Deliver Narcotics.  

Is that enough to make an arrest?  

A very important case in these matters is Commonwealth v. Percy Thompsen.  There are numerous factors that the court should consider in determining if there is probably cause to arrest in a similar hand-to-hand fact pattern.  Some of the factors include:

• Was the activity in a high-crime area?
• What time of the day did the activity occur?
• What is the background/experience of the officer?
• How many sales were observed?
• What were the actions of the individuals upon approach by the police?  

Probable Cause in Drug Cases

The court makes a big issue that an officer's significant training is not enough for probable cause.  There must be a nexus between the experience and the observations.  

I had a case like this once and I beat the case, but for wildly different reasons (the Commonwealth withdrew the charges right before the trial).  I did, however, feel like I would have won on Percy Thompsen because there were a lot of factors, including lack of visibility, that did not give the officer's probable cause to make the arrest.  

When you meet with a Bucks County criminal defense lawyer and you are charged with PWID, you need to make sure your attorney covers a lot of issues with you.  To start, it is best to bring a copy of the search warrant or Affidavit of Probable Cause.  

• The attorney should discuss with you:
• What drugs were found?
• What was the weight of the drugs seized?
• Where were in the drugs found?
• Was an informant involved?
• Was there a direct buy/purchase of the drugs?
• Was there a direct buy/purchase by an undercover informant?
• Are there witnesses involved?
• Are there cameras in the area (i.e. near a storefront)?
• Was a search and seizure warrant issued?
• Did the police find the drugs in "plain view"?
• Were you stopped in your vehicle?
• Was there a gun found near the drugs?
• Was a scale found? 
• Were baggies found?
• Was a ledger or "owe sheet" found?  

All of these questions should be covered early on and well before the Preliminary Hearing in the Bucks County criminal process.  

Possession with Intent to Deliver, 35 P.S. 780-113(a)(30)

A Possession with Intent to Deliver (PWID) narcotics case in Bucks County is much more serious than a simple possession case.  Put simply --the Commonwealth is seeking to prove that you were dealing drugs -- either because the amount of drugs you had on your possession was beyond regular use, you were observed selling narcotics (i.e. with a Confidential Informant), or you were handing drugs out socially (i.e. at a party).

These cases involve a lot of legal work.  What were the drugs that were found?  Each drug has a potential mandatory minimum depending on the amount seized.  I recall a case where the "weight" of the drugs invoked a mandatory minimum sentence.  But, the "weight" actually included the vials of crack cocaine.  After subtracting the weight of the vials, the amount of drugs recovered did not trigger a mandatory minimum.

Sometimes, the drugs are found on a person pursuant to an arrest or from an executed search warrant of a car, business, or home.      

Other issues in a Possession with Intent to Deliver  

Was the alleged PWID in a school zone?  If so, you are facing a mandatory minimum 2-4 years incarceration.  Frequently, if your Bucks County criminal defense lawyer is negotiating your case, they will seek to have the Commonwealth drop the "school zone enhancement".  

Was a firearm found?  If so, you could be facing a mandatory minimum of 5-10 years incarceration (known as the "gun enhancement").  

You were arrested and your property was seized pursuant to the arrest.  What can you do?  

Pennsylvania Rule of Criminal Procedure 588 covers Motions for Return of Property in Bucks County issues.  The motion must be filed in the Bucks County Court of Common Pleas.  The motion is filed on the grounds that the petitioner is entitled to lawful possession of the seized property.  

The first thing that must be done is to prove the person filing the motion was the lawful owner at the time of the seizure.  This initial burden is on the "petitioner". If the petitioner does establish by a preponderance of the evidence that they have "lawful entitlement", then the burden shifts to the Commonwealth to rebut the claim.  

Property may be ordered as forfeited if the judge determines that the property is contraband.  In the hearing, the judge will determine the source and purpose of the property.  The Commonwealth must show that the property is contraband.  

If a person who is the petitioner was never charged or convicted of a crime in relation to the seized property, it is not a complete guarantee that the property should be returned and not considered contraband.  This issue is only "probative".  

I have represented someone whose home was raided because of a family member's presumed criminal activity.  My client had money seized as part of the search warrant.  Eventually, after the case moved on, I was able to secure the return of the property.  

A trial judge in Bucks County can sequester witnesses either on their own or by motion of the prosecutor or Bucks County defense lawyer. 

The theory behind sequestration involves common sense.  A judge does not want one witness influencing another witness with their testimony. 

Once sequestration is ordered, it must be enforced by the prosecution.  If it is not enforced properly, there are remedies available by the judge.  I once made a motion for a mistrial because it was my belief that two officer's inappropriately communicated about planned testimony while sequestration was ordered.  Specifically, I felt they were matching up their stories/comparing notes to testify to the same course of events.  The judge never ruled on my motion for a variety of reasons, including the fact that the Commonwealth withdrew its prosecution.  

The only time sequestration (or lack thereof) is reversible is only if there is clear abuse of discretion.   In general, I have never seen a judge have a problem with order sequestration as it just simply makes sense.  

Jury Trials In Bucks County

We previously blogged about whether you are entitled to a trial by jury in Bucks County.  Now, let's discuss some issues relating to jurors. 

Jurors are picked by a Bucks County criminal defense lawyer and prosecutor through a process called voire dire.  They are selected after pretrial motions are litigated.   

Juror fill out initial questionnaires for the prosecutor and defense attorney to review prior to voire dire.  These questions help the attorney's review the jury pool for any obvious or overt prejudices or conflicts.  For example, if a defense attorney represented someone in the jury pool, there would be a conflict.  

What Do Juries Do?

Jurors are not permitted to consult with each other during the trial.  This is done to prevent any premature conclusions and to prevent cliques controlling the outcome of the case.  The jury is sworn under oath.  

At the conclusion of the trial, the jury is then "charged" by the Bucks County judge.  This means that the judge instructs the jurors about the law and what should be considered.  A verdict must be by a unanimous vote.  

A jury can deliberate for a period of time that is within the sound discretion of the judge.  

The Pennsylvania Supreme Court has determined that the right to a jury trial is a procedural right and not a substantive right.  In criminal cases, a person is not entitled to a trial by jury in "petty" or summary offenses.  This means that if you are facing jail time of less than 6 months, you are not entitled to a jury.  If you have a first offense DUI in Bucks County, you are not entitled to a jury trial.  

In Bucks County criminal trials with a jury, your jury is comprised of 12 people from Bucks County.  

As an aside -- if you are facing a Protection from Abuse order, you do not have a right to a hearing with a jury.  

Rule 600 is an important rule in seeking a dismissal of a Bucks County criminal case based upon your speedy/prompt trial rights.  

The date starts when the criminal complaint is filed, not when the person is arrested.  If however, there is delay due to the defendant absonding from justice, this delay may be excludable.  

If the Commonwealth has trouble getting their witnesses and affiants together for a case (i.e. the officer is in training, on vacation), this time is generally ruled "includable" and counted towards the 365 days.  

If the court hears a Rule 600 motion and find that the Commonwealth exercised proper due diligence regarding the timeline and that the circumstances involving the postponement were beyond the control of the Commmonwealth, the motions to dismissed will be denied.