Substantial Step as a Defense in Bucks County

I previously wrote about improper defenses to charges of criminal attempt.  Recall that claiming at the alleged crime was "impossible" to have been committed is not a defense.  But, if you really didn't do anything related to the crime and its attempt, you might have a good defense.  

A well-cited case is Commonwealth v. Melnyczenko of the Superior Court, which dealt with whether a person was loitering in an attempt to commit a burglary.  In essence, the court ruled, 

Under the Crimes Code, a person commits criminal attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime. 18 Pa. Cons. Stat. § 901(a). Compared to the prior "overt act" test, the Crimes Code definition broadens the scope of attempt liability by concentrating on the acts the defendant has done and does not any longer focus on the acts remaining to be done before actual commission of the crime.

I always liken these cases for attempt/conspiracy in the following way:  If I am shooting the breeze with friends at a bar in Lower Bucks County and someone says that we should rob a bank.  And, after a few beers, we discuss how we would rob a bank.  This is mere conjecture and not attempt.  If, however, the following day I go and buy a gun, duct tape, ski masks, etc., in anticipation of committing the crime, I am guilty of conspiracy/attempt as I took a "substantial step" to commit the robbery.  

What You Give Up

If a defendant pleads guilty, they participate in a guilty plea colloquy.  The colloquy ensures that a defendant understands their rights and wishes to waive those rights.  The colloquy also ensures that the individual is of sound mind to make a decision.  This includes a person's age, level of education, understanding of English (both written and spoken), and their psychiatric state.  In addition, it covers whether a person is on any illegal/legal drugs or under the influence of alcohol.  The court will make a determination if a person is capable of understanding what they are doing at the guilty plea.  

By pleading guilty, a defendant in Bucks County gives up many appeal rights, including their view that they were innocent.  They can only appeal based upon the legality of the sentence (i.e. it was too stringent beyond the legislative code), the jurisdiction of the court (i.e. the case happened in Chester County and it should not be adjudicated in Bucks County), the validity of the plea (i.e. they were forced to do so), and the services of their Bucks County criminal defense lawyer (i.e. they never met their lawyer and never spoke with them).  

Tough to Appeal After Pleading Guilty

The guilty plea colloquy seeks to eliminate all issues for appeal.  For example, a plea of guilty in open court with representation by an experienced and competent attorney is a confession of guilt and constitutes a waiver of all nonjurisdictional defects and defenses.  See Commonwealth v. Newman for more details.  The burden is on the defendant to show that they did not enter their plea in a knowing, voluntary and intelligent matter.  See Commonwealth v. Riley for more details.  But, during the colloquy, these issues are normally determined by intense questioning by the Bucks County judge.  

Thus, it is important to understand and be aware of the issues relating to a guilty plea.  It is hard to take it back.  Make sure you are only pleading guilty if, in fact, you are.  

Re-Filing of Charges

You had a Preliminary Hearing in Bucks County and your Bucks County criminal defense lawyer was able to get the charges dismissed by the magistrate.  So, are you done with the case?  No.  

Commonwealth v. Jones of 1993 (633 A2d 185) holds that the prosecutor may seek to reinstate a charge dismissed by a magistrate by re-filing the same charge before a different magistrate.  Keep in mind, it must be a different judge.  

Still, the Commonwealth must refile under the believe that it has enough evidence to establish a prima facie case or, it has additional evidence for the new preliminary hearing.  This can be lab results, fingerprints, DNA, or a new witness (which happens a lot).  The state cannot re-file with the intent to harass (which is debatable at times).  

The president judge of the Bucks County Court of Common Pleas will normally assign the case to a new district judge.  The case must still be filed within the statute of limitations (2 years for misdemeanors, 5 years for felonies).  

Sentencing Generally

A sentence must be imposed for a minimum period of time that is aligned/consistent.  A Bucks County criminal defense lawyer will inform you about your rights in going to trial and your rights at sentencing.  There are factors to be considered, including that the trial court must look at character and background issues of the defendant and weigh them with the circumstances of the crime.  The trial court will also look at the Pennsylvania sentencing guidelines.  

The sentence must be consistent with the "gravity of the offense", the "rehabilitative needs of the [Bucks County defendant]", and the "protection of the public".  See Commonwealth v. Corson for more information.  This "character" includes a person's prior record, personal characteristics, community involvement, and potential for rehabilitation.  See Commonwealth v. Cottam for more information.  This also includes the age of the defendant.  

Additional Sentencing Issues in Bucks County

The court will also hear from any victims who wish to make a statement.  This can be done in person or by letter and any written material from a victim with respect to sentencing is generally permissible.  With respect to the circumstances of the crime, the court may consider whether the defendant acted alone or with a group and, if with a group, whether the person was the "ring leader".  See Commonwealth v. Yacoubian.  Additionally, were the victims "defenseless" (i.e. a 70 year old female) can be weighed in sentencing.  See Commonwealth v. Hallock.  

As you can see, it is best that you put together a list of mitigating factors in your case with your criminal lawyer to make sure you are positioned in the best spot.  

Impossibility not a defense in criminal attempt in Bucks

When you have a case where the charge involves the criminal attempt of something, the fact that it would be impossible to commit the crime is not a defense in Bucks County or Pennsylvania.  A legal impossibility was established if, even if the intended facts were committed, would not amount to a crime even if completed.  You Bucks County criminal lawyer should advise you that such a defense is not a viable strategy.  

Criminal attempt is defined in the crimes code as,

§ 901.  Criminal attempt.

(a)  Definition of attempt.--A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.

Initially, a long line of cases from the Jaffe case (a New York case) allowed for the defense of impossibility.  But, all of that changed.  

Impossibility not recognized

The Pennsylvania legislature specifically wrote out "impossibility" in the Crimes Code:

§ 901.  Criminal attempt.

(b)  Impossibility.--It shall not be a defense to a charge of attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the crime attempted.

Commonwealth v. Johnson, of 1933, also specifically rejected the impossibility defense.  Essentially, the defense of impossibility is no longer a defense and you should consider other issues in your criminal attempt case in Bucks County.  

Arrests outside jurisdiction

Here's a hypothetical:  Can a Newtown Township Police Officer arrest someone in Levittown?  The answer is, like so many legal issues, maybe.  42 Pa. Cons. Stat. § 8953 states that a police officer may not, unless they meet one of the exceptions/conditions outlined in the rule.  The exceptions include:

1. If the officer has a court order from a judge
2. If the officer is in "hot pursuit"
3. If the officer has been requested to aid or assist any local, State or Federal law enforcement officer or park police officer or otherwise has probable cause to believe that the other officer is in need of aid or assistance.
   
4. If the officer the officer has obtained the prior consent of the chief law enforcement officer, or a person authorized by him to give consent
5. If the officer is on "official business"
6. If the officer believes or witnesses a felony

Hot pursuit in Bucks County

The biggest issue I have seen in cases is "hot pursuit".  Hot pursuit, as Commonwealth v. Laird pointed out, "entails some sort of chase, though the chase need not involve a fender smashing Hollywood style chase scene or be newsworthy."   This frequently happens in a DUI case (which is a misdemeanor), where the individual is followed by the police and stopped outside the jurisdiction.  But, at what point does a person know they are being chased?  It certainly is a tough case to argue a person did not know they were being chased if the officer is directly behind them and with their lights on.  But, if no lights are on, you have more of an issue about hot pursuit.  

Constructive Possession in a Bucks County Case

There is "actual" possession and "constructive" possession.  This typically involves cases involving drugs, weapons, or items stolen. 

Actual possession is a lot more obvious.  You have "something" in your possession -- i.e. your hand or your pocket.  Constructive possession is a lot less obvious.  Perhaps the Bucks County DA's office is alleging that the items they found in your car or home is "constructively" your property.  These cases are more difficult to prove, especially if there are multiple people around or the alleged items are not within reach.  Your criminal lawyer in Bucks County should be ready to review the facts and circumstances closely, at throughout the entire criminal justice process in Bucks County. 

As Commonwealth v. Aviles discusses,

Constructive possession is a legal fiction, a pragmatic construct to deal with the realities of criminal law enforcement. Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not. The supreme court has defined constructive possession as conscious dominion. The court subsequently defined conscious dominion as the power to exercise that control.  

Details of Constructive Possession

The Aviles court goes on to state,

To aid application, we have held that constructive possession may be established by the totality of the circumstances.  Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974). We took a further step toward resolving these problems in Commonwealth v. Macolino, supra.

Accomplice in Bucks County Possession with Intent to Deliver/Distribute

Can you be convicted of delivery of a controlled substance in Bucks County, but never be seen by police touching/handling drugs?  The answer is yes, it is possible to be convicted of 35 P.S. 780-113(a)(30), known as Possession with Intent to Deliver.  

The theory falls under "accomplice liability".  Although you may not be the principal actor, you can potentially be an accomplice if the prosecutor can prove that you intended to aid in the transfer of drugs based on the facts of the case.  

In Commonwealth v. Murphy, a state trooper who was undercover, asked the defendant if he knew where the trooper could buy drugs.  The defendant asked the trooper if he was a cop.  The trooper lied and said "no".  The defendant then signaled to another man who eventually exchanged drugs for money with the trooper.  The Supreme Court of Pennsylvania delineated a two prong test to determine if a person is an accomplice of a principal actor.  

As any Bucks County criminal lawyer will tell you about the test, first, there must be evidence of the defendant intending to aid or promote the underlying offense.  Second, there must be evidence that the defendant actively participated in the crime by soliciting, aiding, or agreeing to aid the principal.  These can be established by circumstantial evidence.  

The Supreme Court of Pennsylvania ruled in Murphy that the evidence was sufficient for a jury to find that the defendant intended to aid in the transfer of drugs based on the evidence that the defendant called out to the other man, confirmed to him that the trooper was not a police officer, and requested compensation from the trooper for his efforts (the trooper refused to give his some of the drugs and instead gave him $5).  

Possible Defenses to Being an Accomplice

Bucks County Impeachment Procedures

Sometimes, a prosecutor will try and "impeach" a witness by using prior bad acts.  They rely on Rule 609- Impeachment by Evidence of a Criminal Conviction.  The rule states, "For the purpose of attacking the credibility of any witness, evidence that the witness has been convicted of a crime, whether by verdict or by plea of guilty or nolo contendere, must be admitted if it involved dishonesty or false statement."  There is a 10-year look back issue, but I will not be covering that section here.  

Essentially, if you have been convicted of a crime of dishonesty or false statement, the prosecutor can try and use that prior act to show you are not credible if you testify.  They may also do that for any witnesses you intend to introduce.  

Caselaw for Crimes of Dishonesty or False Statement

The well-treated case involving these issues is Commonwealth v. Palo, 2011 PA Super 136 (Pa. Super. Ct. 2011).  The court in this case considered the following factors:

1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; 

2) the likelihood, in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; 

3) the age and circumstances of the defendant; 

4) the strength of the prosecution's case and the prosecution's need to resort to this evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and 

5) the existence of alternative means of attacking the defendant's credibility.  

What is Contempt?

Commonwealth v. Cherry of 1976 is a good case that highlights what contempt is.  The Court states, "One is guilty of contempt when his conduct tends to bring the authority and the administration of the law into disrespect."  Contempt can be anything, including being loud, talking on your cell phone, making gestures (including eye-rolling), and being disrespectful to the court.  Normally, a Bucks County judge will afford an individual an opportunity to correct/stop their behavior prior to finding them in contempt.  

I once had a client show up to court inebriated and he was held in contempt by a judge.  He was held over the weekend (it was a Friday) and his hearing was continued to the following Monday.  In addition to the lack of respect shown to the court, I would not have been able to proceed with his defense as he was incapable of understanding what was happening.  

Testifying and Contempt

It is a well established rule that a defendant does not have to testify in their case and no adverse inferences should be drawn from their lack of testimony.  But, if there are no incrimination issues relating to testifying (i.e. they are a witness), then a person may be held in contempt for failing to testify in any part of the Bucks County criminal process.  Commonwealth v. Tirado outlines that, after being ordered to testify by the court, the individual was found in contempt for refusing to testify.