I just had a case on Friday where the Commonwealth brought an expert medical doctor.  To jump to the end, my client was found not guilty.  Unlike most of my cases as a Bucks County criminal lawyer, this case was in Philadelphia.    

The expert was smart and intelligent.  She testified credibly and honestly.  She stuck to what they call "a reasonable degree of professional certainty."  What does this mean?  It revolves around Pennsylvania Rules of Evidence 702 and McMahon v. Young, 442 Pa. 484, 276 A.2d 534 (1971), which created "the requirement that an expert’s opinion must be expressed with reasonable[professional] certainty." 

The Pennsylvania Supreme Court, in Collins v. Hand, ruled that "[n]o matter how skilled or experienced the witness may be, he will not be permitted to guess or to state a judgment based on mere conjecture."   

So, essentially, the expert must testify that in their professional opinion the result in question came from the cause alleged.  But, some language can render the opinion with less than the requisite certainty.  In Corrado v. Thomas Jefferson University Hospital in 2001 that an opinion that is "more likely than not" is insufficient.  Other cases have held that "in all likelihood", "could have", "possible", or "could very properly account for" is short of the requisite certainty.  

This is a very accurate infographic that, as a Bucks County criminal lawyer, I thought I would share:

Sentencing Entrapment for Bucks County Criminal Lawyers

Sentencing entrapment typically occurs in narcotics cases.  Sentencing entrapment is when a defendant is "entrapped" into committing a greater offense than they are predisposed to committing.  It is not the same as the classic view of entrapment as it is not a complete defense to criminal charges.  Instead, it is used to seek a reduced sentence through reaching a lower level of the sentencing guidelines.  Frequently, it is to avoid a mandatory sentence.  

Essentially, it can occur if the government in their investigation "enlarged or prolonged the criminal conduct in question."  Federal courts, especially in U.S. v. Connell (1992), will consider "the defendant's own predisposition...into the calculus."  

A case that defense attorneys should know is Commonwealth v. Ronald F. Paul from 2007.  The case overrules the trial court, but it outlines sentencing entrapment well.  The courts have not created detailed rules for sentencing entrapment as each case is so diverse in details.  Also, the courts provide a high burden of prevailing on sentencing entrapment as it is difficult to prove.  To start, "Sentencing manipulation occurs when a defendant although predisposed to commit a minor or lesser offense, is entrapped in committing a greater offense subject to greater punishment".  

Court Cases on Sentencing Entrapment

In Paul, the defendant made several narcotics sales of methamphetamine to an undercover sergeant.  At the time of the guilty plea, the Commonwealth was seeking a 3 year mandatory minimum based upon one of the sales being over 5 grams.  The defense argued that the Sergeant purposefully asked for a quantity higher than 5.0 grams in order to seek the mandatory minimum 3 years (in a standard range, he was looking at 6-14 months).  The trial court determined that the Sergeant acted improperly and entrapped the defendant.  

The Superior Court determined that the trial court erred in finding "extraordinary misconduct" on the part of the Commonwealth based on the circumstances of the case.  The Superior Court was also not convinced that Appellee had no predisposition to commit the greater offense.  The Superior court concluded that the defendant did not "meet the high standard of proving 'extraordinary misconduct' on the part of the Commonwealth."  

If you believe you are a victim of sentencing entrapment and you are charged in Bucks County, please contact a Bucks County criminal defense lawyer immediately.  

Not just any lawyer can be a Bucks County defense defense attorney in a capital case.  These are known as the death penalty cases.  Here is a website for all Bucks County criminal defense lawyers from the Supreme Court of Continuing Legal Education board regarding capital cases.  The qualifications for a defense counsel are outlined are in Rule 801.  The entire requirement is very difficult to achieve.  

If you are faced with a capital crime and seeking counsel (whether in Bucks County or other counties), check this site for qualified attorneys.  

Miranda Rights in Bucks County Crimes

If you are questioned by a police officer, no Miranda Warnings were given, and they intend to use the statements against you, were your rights violated?  Possibly.

The first thing to explore was whether you were subject to a custodial detention and interrogation.  

The court in Commonwealth v. Fento from 1987 stated, 

The test for determining whether a suspect is being subjected to custodial interrogation so as to necessitate the warnings listed in Miranda is whether he is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation. The warnings are necessary only on those occasions when a suspect is undergoing actual "custodial interrogation." The fact that a defendant was the focus of the investigation is a relevant factor in determining whether he was "in custody." However, the fact that a police investigation has focused on a particular person does not automatically require the warnings. In addition, a suspect may be "in custody" even in instances where the police have not taken him to a police station or formally arrested him.

Suppressing Statements

There's a lot of issues in determining if you were in custody and a lot more pursuant to a vehicle stop.  But, I have had cases where a Motion to Suppress was granted when a person was surrounded by police, told not to move, and then asked questions where they made inculpatory statements.  

Essentially -- would a reasonable person think they were free to leave?  There are a lot of factors involved in this and a lot of those factors rely on the police behavior at the scene.  

If you are in a Bucks County jury trial and the case has proceeded but an important Commonwealth witness is missing, what can you do?  If you believe that missing witness would have been helpful to your defense, your Bucks County criminal defense lawyer should be in a position to argue for a jury instruction regarding the missing witness.  In Commonwealth v. Manigault, 501 Pa. 506, 462 A.2d 239 (1983), the court outlined the requirements necessary for such an instruction:

A missing witness instruction may be warranted where a witness is: (1) available to only one of the parties to a trial, and (2), and it appears this witness has special information material to the issue, and (3), the witnesses testimony would not be merely cumulative, then if that party does not present the testimony of the witness, the jury may draw an inference that such testimony, had it been presented, would have been unfavorable to that party. 

If all of those requirements are met, then it is important for the jury to infer that that person's presence and testimony would have been unfavorable to the Commonwealth.  

Robbery Cases in Bucks County

Robbery in Pennsylvania is covered under 18 Pa.C.S. § 3701.  The statute states, 

§ 3701.  Robbery. 

   (a)  Offense defined. 

   (1) A person is guilty of robbery if, in the course of committing a theft, he:

      (i) inflicts serious bodily injury upon another;

      (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;

      (iii) commits or threatens immediately to commit any felony of the first or second degree;

      (iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury;

      (v) physically takes or removes property from the person of another by force however slight; or

      (vi) takes or removes the money of a financial institution without the permission of the financial institution by making a demand of an employee of the financial institution orally or in writing with the intent to deprive the financial institution thereof.

   (2) An act shall be deemed "in the course of committing a theft" if it occurs in an attempt to commit theft or in flight after the attempt or commission.

   (3) For purposes of this subsection, a "financial institution" means a bank, trust company, savings trust, credit union or similar institution.

(b)  Grading. --Robbery under subsection (a)(1)(iv) and (vi) is a felony of the second degree; robbery under subsection (a)(1)(v) is a felony of the third degree; otherwise, it is a felony of the first degree.

Possible Defense is Retail Theft

As you can see, there are various "types" of robbery.  Sometimes, however, prosecutors in Bucks County will try and make a retail theft into a robbery in order to seek a felony.  They normally do this by charging 18 Pa. Cons. Stat. § 3701(a)(1)(v) if that facts involve someone committing a retail theft in a store and that person running away and potentially assaulting a security guard/loss prevention specialist.  Getting a felony in this type of scenario is however, a big stretch.  Bucks County criminal defense lawyers should be familiar with the case of Commonwealth v. Allen Moore of 1985.  This case has received very favorable treatment in the years it was published.  

In the Moore case, the defendant try to exit a supermarket with a concealed steak.  They were approached by a security guard and then attempted to flee.  In the chase, the defendant was restrained and struggled with the security guard who was injured in the scuffle.  The person was charged with "physically takes or removes property from the person of another by force however slight" under (a)(1)(v).

The court in Moore refused to agree with the Commonwealth's position that the "taking from a person" could be applied to a situation when a person is in charge of an area (i.e. security guard) and they observe a retail theft.  

The court remarked [emphasis added], 

It is readily apparent that the most common crime intended to fall under section 3701(a)(1)(v) is purse snatching, while it certainly is not the only scenario which could come under that statute. In the instant case, there was no purse snatching nor any type of similar situation, but simply a theft in a retail store observed by a store security guard. Were we to adopt the Commonwealth's proposed interpretation of the phrase "taking from the person of another" as it applies to the fact in the instant case, it would lead to the absurd result that a robbery would result every time a retail theft is observed by a store security guard or employee. Such an occurrence is simply not a robbery as contemplated under section 3701(a)(1)(v). Retail theft cannot become robbery merely because someone to whom property is entrusted observes a theft of that property. This is not to say that there can never be a robbery under section 3701(a)(1)(v) arising out of a retail theft. We hold only that there was no robbery under the facts as presented to this Court. 

Aerial Search in Bucks County Criminal Cases

Law enforcement in Bucks County and in other places occasionally search property by aerial view.  Typically, these searches are in relation to growing operations that would be visible from the sky.  

But, is it legal?  Is it an illegal search per the Fourth Amendment?  Should your Bucks county criminal defense lawyer file a Motion to Suppress?  Is there a reasonable expectation of privacy from the air?  

Florida v. Riley is the most important case in this line of questioning.  It is a U.S. Supreme Court Case.  The case involved Florida sheriff's flying above a defendant's property by 400 ft. to observe a greenhouse.  The Supreme Court decided that Mr. Riley did not have a reasonable expectation of privacy from that height of observance and the search did not violate his Fourth Amendment rights.  Therefore, a warrant was not needed.  

The Supreme Court Weigh In

So, is 400 ft. the test?  The Supreme Court did not make that the only requirement.  It states, 

As far as this record reveals, no intimate details connected with the use of the home or curtilage were observed, and there was no undue noise, no wind, no dust, or threat of injury. In these circumstances, there was no violation of the Fourth Amendment.

DRE's in Bucks County DUI's

A Drug Recognition Expert in a DUI case in Bucks County is normally used in cases with DUI's where State Trooper's were the arresting officers.  The PA appellate courts are still silent on a DRE's admissibility.  Why is this a big issue?  

Well, DRE's sprouted up on the West Coast.  Drug Recognition Expert's were developed by law enforcement and are now certified by the Association of Chiefs of Police.  They are based on an individual in law enforcement going through approximately 12 days of training.  The Drug Recognition Expert can then observe an individual suspected of being under the influence of drugs, have them perform 12 tests, and make a determination of what drugs they are on.  If you have a Bucks County criminal lawyer as your attorney, make sure they research the unreliability of DRE's.  

The tests are:

• Breath Alcohol Test: The arresting officer reviews the subject’s breath alcohol concentration (BrAC) test results and determines if the subject’s apparent impairment is consistent with the subject’s BrAC. If so, the officer will not normally call a DRE. If the impairment is not explained by the BrAC, the officer requests a DRE evaluation.
• Interview of the Arresting Officer
• Preliminary Examination and First Pulse
• Eye Examination
• Divided Attention Psychophysical Tests
• Vital Signs and Second Pulse
• Dark Room Examinations
• Examination for Muscle Tone
• Check for Injection Sites and Third Pulse
• Subject’s Statements and Other Observations
• Analysis and Opinions of the Evaluator

DRE's Are Problematic

This is a serious problem for evidence purposes.  First, the certification is done by law enforcement and not a scientific and/or independent body.  Second, law enforcement is advancing DRE's as scientific evidence.  

Volumes of law surround scientific evidence.  To asset that 100 hours of training would lead an officer to make a conclusion after only 12 days of classes is dangerous.  They are not doctors.  They cannot, with scientific backing, make a determination on a highly complicated issue regarding a person's body, conditions, and alleged reactions and conclude particular drugs caused such conditions.  The false-positives are tremendous.  You are trusting an officer, who works a regular full-time job, to make a serious medical conclusion when doctors and pharmacists would have tremendous difficulty drawing conclusions.  I have heard other lawyers call it "voodoo science".  I tend to agree.  

Reopen Bucks County Criminal Cases

A motion to reopen a criminal case occurs to introduce evidence.  Normally, it is done to correct or add to previous testimony (i.e. create greater accuracy).  Sometimes it is done by one side or another in a criminal case because there was an omission or mistake.   The decision to grant the motion is left to the Bucks County judge.  It can occur at any time during the trial.  Generally, the judges are quite flexible with this request if reopening will create greater clarity in a case.  

A motion to reopen is controlled by 611(a) of the Pennsylvania Rules of Evidence.  Most Bucks County criminal defense lawyers also know that a motion to reopen cannot occur during a post-sentence hearing.  This makes sense as it could cause problems in getting a finality of a trial.  

Arguments against reopening are unfair prejudice or any new evidence that is being introduced if a case were reopened is has limited probative value.  Both of these arguments must lay out with specificity and should be highly principle.