The Mazza Law Group, P.C.
2790 W. College Ave., Suite 800
State College, PA 16801 March 10, 2016
(814) 237-6255

Death Penalty – Criminal Law Update

Death Penalty Update:  “No man can be a judge in his own case”- wrote Supreme Court Justice Anthony Kennedy in a decision on a death penalty case yesterday.  In Williams v. Pennsylvania, the US Supreme Court decided that a judge who was involved in the prosecution could not thereafter sit as a state Supreme Court Justice in the same case years later.

Mr. Williams was charged with first-degree murder in 1986, in Philadelphia.  The District Attorney authorized his office to pursue the death penalty.  Some 26 years later, that District Attorney was sitting on the Supreme Court of Pennsylvania as Chief Justice, when the case came before that court on appeal following the grant of a new sentencing hearing by a lower court.

Defense attorneys requested that then Chief Justice Ronald D. Castille recuse himself from the decision of the case, but he refused.  When the state court issued its ruling, Justice Castille voted to affirm the sentence. Two weeks later, Castille resigned from the court.

On appeal to the United States Supreme Court, the issue was whether Mr. Williams’ due process rights were violated when one of the judges deciding his fate had been the chief prosecutor and authorized the decision to seek the death penalty.  In remanding the case, the Supreme Court found that the likelihood of bias as a result of the former prosecutor’s role was “too high to be constitutionally tolerable”.

In Pennsylvania, defense attorneys in death penalty cases must be certified under Pa.R.Crim.Pro. 801, which requires experience trying felony cases before juries and continuing legal education on capital cases.  Attorney Helen Stolinas of The Mazza Law Group, PC is certified, and has experience trying murder cases and other felonies.  If you or a loved one is facing a murder charge or other serious criminal matter, call for a consultation today.

Hearsay Evidence at Preliminary Hearing

Hearsay is a statement that the declarant does not make while testifying at the current hearing or trial and is offered for the truth of the matter asserted.  Rules of Evidence allow this type of evidence in certain cases but under limited circumstances.  A point of contentions in Pennsylvania is whether this type of evidence should be permitted at a preliminary hearing in criminal case if it is the only evidence the Commonwealth relies on to establish a prima facie case.

In the Commonwealth v. Ricker, the Superior Court issued an opinion that said the Commonwealth could establish a prima facie case at preliminary hearing based on hearsay evidence alone.  However, on April 18, 2016, the Supreme has granted a Petition for Allowance of Appeal in Commonwealth v. Ricker, to address the following:

Whether the Pennsylvania Superior Court wrongly held, in a published opinion of first impression, that a defendant does not have a state or federal constitutional right to confront the witness against him at a preliminary hearing and that a prima facie case may be proven by the Commonwealth through hearsay evidence alone, which is what the trial and magisterial district courts concluded in Petitioner’s case? The Superior Court holding currently under review seemingly cuts against a criminal defendant’s right to “cross-examine witnesses and inspect physical evidence offered against the defendant” guaranteed by Pa.R.Crim.P. 542.

We will be watching this case closely to see if the Supreme Court will overturn the Superior Court decision.  If you or someone you know has been charged with crime you/they should consult with an attorney to ensure that hearsay evidence is not used in Court beyond what the law allows.  An experienced attorney at the Mazza Law Group will review your case to ensure your rights are not violated. Call today to set up and appointment.

 

Attention: Pennsylvania Registered Nurse

As of October 17, 2015, a Pennsylvania Registered Nurse is now required to report pending criminal charges within 30 days of the filing of criminal charges. In addition, if you have received disciplinary action in another state you are required to report the final disposition to the Board within 90 days.  Pursuant to Title 49 of the Pennsylvania Code, chapter 21:

  •  21.29a. Reporting of crimes and disciplinary action.

(a) A registered nurse shall notify the Board of pending criminal charges within 30 days of the filing of the criminal charges or on the biennial renewal application under § 21.29(c)(4) (relating to expiration and renewal of license), whichever is sooner.

(b) A registered nurse shall notify the Board of a criminal conviction, plea of guilty or nolo contendere, or an admission into a probation without verdict or accelerated rehabilitative disposition program within 30 days of the disposition or on the biennial renewal application under § 21.29(c)(4), whichever is sooner.

(c) A registered nurse shall notify the Board of disciplinary action in the nature of a final order taken against the registered nurse by the licensing authority of another state, territory or country within 90 days of receiving notice of the disciplinary action, or on the biennial renewal application under § 21.29(c)(4), whichever is sooner.

Reporting pending charges can be made online at: https://www.mylicense.state.pa.us/BPOAFormBuilder/Login_licensee.aspx

If you are a registered nurse in Pennsylvania and you are under investigation or have been charged with a crime you should consult with an attorney to know your rights.  An experienced attorney at the Mazza Law Group will guide you through the process of both the criminal justice system and the professional licensing disciplinary procedure .  Contact us today!

PA License Suspension for DUI Reversed

The Commonwealth Court has reversed a driver’s license suspension because the driver’s conviction for DUI was not reported to PennDOT for ten years after her conviction.  In Gingrich v. PennDOT, 748 C.D. 2015 , the driver was convicted of a DUI in 2004, but that conviction was not reported to PennDOT until 2014.  The driver received notice that her license was to be suspended for a period of one year.  This created problems for the driver, who had employment that required a license, as well as family responsibilities for which she could have made other arrangements had she been aware of the suspension.

While the delay in the license suspension was not due to any fault on the part of PennDOT, the court held that, under these limited circumstances, that the court could reverse the suspension.  Because there had been an extended period of time without further offenses, the public safety rationale for the suspension no longer existed.  The court held that the standard for relief involved the following factors:

  1. there is an extraordinary delay in the suspension;
  2. there are a lack of additional offenses for an extended period of time; and,
  3. the driver can show that she is prejudiced by the delay in the suspension.

License Suspension

In Pennsylvania, a DUI conviction gets reported by the Court to PennDOT and a notice of suspension will be mailed to the driver.  A driver can either submit acknowledgement of the suspension or file an appeal.  An appeal is filed at the Court of Common Pleas in the County the operator resides in. The fees for filing a driver’s license suspension appeal vary between counties.

If you have legal questions about a Pennsylvania driver’s license suspension, or are charged with a driving offense, the experienced defense attorneys at the Mazza Law Group can help.  Call today for a consultation!

Is it illegal recording a conversation with an Iphone app?

Yes- if the conversation is being taped surreptitiously- that is, secretly.  Illegal recording of a conversation is prohibited under the Pennsylvania Wiretapping and Electronic Surveillance Law.  A recent Superior Court holding in Commonwealth v. Smith determined that an iPhone is a device which falls under the Pennsylvania’s wiretap act.  The Superior Court ruled that an employee’s act of secretly recording a conversation with his boss can be prosecuted.

Violations of the wiretap statute can result in a felony conviction for an individual who:

(1)  intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication;

(2)  intentionally discloses or endeavors to disclose to any other person the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; or

(3)  intentionally uses or endeavors to use the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of a wire, electronic or oral communication.

18 Pa.C.S.A. 5703

Illegal Recording

So, before you press “record” on a smartphone, tablet, or computer, make sure the other party to the conversation is aware of the recording and consents to it.  Without a person’s consent an illegal recording is made and you may be reported to law enforcement. If you have been criminally charged with a wiretap violation for making an illegal recording or any other offense, an experienced criminal defense attorney at The Mazza Law Group, P.C. can help.  Our criminal lawyers will review your case promptly and get your side of the story to determine what relief you have available.  Contact us to schedule a consultation to review your case today.

Penn State – Lawyer’s Letter to Parents

Dear Parents:  Is your son or daughter a Penn State Student and have they been contacted by an investigator or perhaps a law enforcement officer in the State College area? Chances are if you’re searching for lawyers you have ended up on this page for a reason.  The attorneys at The Mazza Law Group share a diverse experience in addressing legal issues that arise for students at Pennsylvania State University.  These problems included:

Penn State – Legal Issues

  • Office of Student Conduct Investigations
    • Reports of Sexual Assault
    • Reports of Drug use
    • Reports of Alcohol related incidents
  • Criminal charges such as:
    • Underage Drinking
    • DUI
    • Assault
    • Harassment
    • Disorderly Conduct
  • Problems with a roommate
  • Problems with a significant other, girlfriend, boyfriend

If your Penn State student has been charged with a crime, there are collateral consequences that may occur as a result of even being accused of wrongdoing.  These include expulsion or suspension from school, disciplinary action on a permanent record and problems obtaining employment.  If your child is getting an education to pursue a career that requires a professional license, it is vitally important that his or her rights are protected when facing the office of student conduct or in the context of any criminal investigation.

We have a lawyer to help.  Our lawyers have decades of experience and have served as advisors during disciplinary proceedings. We have negotiated resolutions with law enforcement when necessary, and make every effort to prevent a bad situation from escalating.

Your Penn State student has invested years of hard work and you have undoubtedly invested significant financial resources in his or her education.  It is never too early to contact us for a consultation if you are concerned that an allegation of misconduct may jeopardize your student’s future.  Our compassionate and experienced lawyers can explain what to expect throughout the disciplinary or criminal court process.  Call today for a consultation!

Will my juvenile record be automatically expunged?

Many people have the mistaken belief that their juvenile record is expunged when they reach the age of 18.  While juvenile records are not available to the general public, your record is not automatically wiped clean at the age of 18, and records of charges, adjudications and dispositions can be maintained and viewed by law enforcement, court officials, and others with authorization.  Therefore, you may want to apply for an expungement of your juvenile record if eligible.

What is an expungement?  If granted by the court, it means that the records related to the charges will be destroyed and your record would be cleared.  This can include police reports, charging documents, and the probation department’s file.  Essentially, there would be no permanent record that you had been to court or that you had even been charged in the case.  This can be vitally important as you apply for college admission, student loans, enlistment in the military, a professional license, or employment.

If you have been to court on a juvenile delinquency matter in Pennsylvania, you may be eligible to have the juvenile records of the charges, arrest and court disposition expunged.  The answer to the question of whether you are entitled to an expungement, and when you may receive it, will depend on the disposition of any juvenile charges that were brought against you.[1]

Juvenile Record

If the charges resulted in an Informal Adjustment, you are eligible to apply for an expungement six months after successful completion of the conditions of the agreement, as long as you have no juvenile or adult charges pending.

If the charges resulted in a Consent Decree, you are eligible to apply for an expungement six months following final discharge from the program, as long as you have no juvenile or adult charges pending.

If the charges resulted in a Conviction for a Summary Offense (other than underage drinking), you are eligible to apply for an expungement upon reaching the age of 18, if at least six months have passed since you completed the terms and conditions of the sentence you received.  You must also have no juvenile record adjudications or adult convictions, and must not have any pending charges.

If the charges resulted in a Conviction for Underage Drinking, you are entitled to apply for an expungement upon reaching the age of 18, if at least six months have passed since you completed the terms and conditions of the sentence you received, including the resulting license suspension.  Your expungement would include criminal history information and the PaDOT record of your suspension.

If the charges resulted in an Adjudication of Delinquency for an offense which would be classified as a crime if committed by an adult[2], you are entitled to apply for an expungement five years after the final discharge from any disposition of your charges, as long as you have had no further adjudications or convictions, and no charges are pending.

Finally, even if you are not otherwise eligible for an expungement of your juvenile record, the District Attorney in the county of your adjudication could consent to an expungement, subject to the court’s consideration.

It is definitely in your best interest to obtain an expungement if you are entitled to one.  The experienced criminal attorneys at the Mazza Law Group can help you determine if you are eligible to have your juvenile record expunged. We can start the process for you right away.  Don’t wait until you are applying for a job or a student loan, call now!

[1] 18 Pa. C.S.A. § 9123

[2] Some sex offenses are not eligible for expungement if they were committed after the age of fourteen.

Does State College Prohibit Open Containers?

YES. (With one exception- keep reading!) The Borough of State College, Pennsylvania prohibits open containers under borough ordinance, Chapter V Conduct, Part C, Liquor Control, Section 302, which states:

It shall be unlawful for any person to possess an open container of alcoholic beverage on any public street, public sidewalk, public alley or public park within the Municipality, except for persons located within or on a moving vehicle being operated on such street or alley. Possession of an open container of alcoholic beverage by any person in or on a vehicle parked on any public street or alley is unlawful.

This ordinance was recently amended to increase the fines for carrying an open container in public, which had been set in the amount of $100 to $600, and which will now be not less than $250.00 for the first offense; $500.00 for the second offense; and not less than $1,000.00 for any subsequent offenses in any 120-day period plus the cost of prosecution or, in default of payment of such fine and costs, to undergo imprisonment for not more than 30 days. A copy of the amended ordinances has been posted to our website. Amending Fines of Various Sections to Reflect the Costs of Enforcement and Processing

BOROUGH WAIVES OPEN CONTAINER LAW

At the December 21st borough council meeting, council approved a proposal from festival organizers asking for the open container ordinance to be waived for the Downtown State College Improvement District’s Summers Best Music Festival to be held on June 3 and 4, 2016.  This waiver was approved as a pilot program, and will be reviewed after the event to determine its success- those for and against the proposal will surely be watching carefully!

If you or someone you know is being charged with an alcohol related crime, please contact the Mazza Law Group.  One of our experienced attorneys can help you protect your rights.

DNA Testing of Crime Scene in 1981 allowed

In an en banc opinion, The Pennsylvania Superior Court recently decided that, because DNA testing could potentially establish the defendant’s “actual innocence” he is entitled to post-conviction relief, and DNA testing may be conducted on evidence collected from a crime scene in 1981. IN RE: JOHN MARSHALL PAYNE, III

On December 17, 1981, the body of a 90 year-old woman was discovered and was found to have died from blunt force trauma to the head from an unknown instrument. There was evidence consistent with the theory that she was killed during a burglary. Three witnesses testified that they heard Payne (the Defendant) make inculpatory statements to them concerning the burglary/murder. Physical evidence was collected at the scene[1] but none that tied Payne to the crime. Payne was convicted by a jury based primarily on the testimony of those three witnesses. Thereafter, Payne filed a direct appeal and his sentenced was affirmed by the Superior Court on February 29, 1988.  He filed a Post-Collateral Relief (PCRA) Petition which was denied on June 25, 1992.  He appealed the denial of post-conviction relief, and the Court affirmed his conviction, with the exception of his judgments of sentence for conspiracy, burglary, and robbery.  On remand, the trial court resentenced Payne on July 5, 1994.

DNA Testing Requested

On June 14, 2012, John Marshall Payne filed a subsequent pro se Petition titled “Post Conviction Relief Act petition seeking DNA testing pursuant to 42 Pa.C.S. §9543.1.”  Following a hearing, the trial court issued an order granting Payne’s Petition for DNA testing.  The Commonwealth appealed and the matter was affirmed by a three judge panel of the Superior Court.  The Commonwealth requested en banc panel review of the matter and the panel reached the above cited decision.

In order to seek DNA testing pursuant to §9543.1, a defendant must demonstrate that favorable results of the requested DNA testing “would establish” the defendant’s actual innocence of the crime of conviction. A defendant cannot merely claim that lack of DNA at the crime scene proves innocence.

Payne claimed that the DNA testing results could be run against the national DNA databank to find the actual killer and thereby prove his innocence.  The Court agreed that Payne met the “actual innocence standard” and affirmed the lower court’s order granting DNA testing.

If you are charged with a crime, or if you have been convicted of a crime and you believe that DNA testing will help your case, please contact one of our experienced lawyers at The Mazza Law Group, P.C. for a consultation.

[1] Forty-four (44) unique items were sent to an F.B.I. laboratory for testing.

Limited Access to Misdemeanors

UPDATE: On February 16, Governor Wolf signed a law granting limited access to misdemeanors, which will take effect in 270 days.  Those who are eligible, and obtain who obtain relief under this law will be able to avoid the impediments to employment and housing.     This new law will allow eligible individuals to petition the court to seal their criminal history from the public.

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