Berks County DA Dismisses Charges in Relation to Putative Domestic Violence

This week, attorney Jorge Pereira, in conjunction with Chief Counsel Joshua Prince, was successful in having the Berks County District Attorney dismiss felony charges against a client in relation to him putatively providing false information on an application to purchase a firearm as a result of a prior conviction, which the Pennsylvania State Police (PSP) erroneously contended was related to domestic violence.

In this matter, the client previously pleaded guilty to a crime involving physical contact; however, as documented in all of the court filings in that matter, the physical contact was in relation to a woman who was a former girlfriend at the time the incident occurred.  Pursuant to 18 U.S.C § 921(a)(33)(A), for a crime to constitute domestic violence, it must be “committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.”

As the client was never married to, shared a child with or cohabited with the victim, and the victim was not a girlfriend of the client at the time, the conviction was not the result of domestic violence. Although the PSP erroneously denied him, the Berks County DA agreed that he was not prohibited under state or federal law, as it was not a crime of domestic violence, and moved to have the charges dismissed.

In these situations, it is imperative to have counsel that understands the subtle differences in the statutory and regulatory law to ensure that your rights are protected. If you, your family members or friends are ever charged with any crimes or have firearms law issues, we are here to help defend YOUR rights. Contact us today!

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Pennsylvania Supreme Court Restricts Use of Electronic Devices by Jurors

On July 7, 2015, the Pennsylvania Supreme Court adopted new Rules of Criminal Procedure, and revised and renumbered other Rules, to provide for instructions to prospective and selected jurors concerning the use of personal electronic devices during their service. Jurors are prohibited from using such devices for communication or to conduct independent research on a case. The rule changes provide for clear instructions to be given to jurors upon their first interaction with the court and at various stages of the proceedings. Judges are authorized to hold a juror in contempt for violating the rules and confiscate a device. The Criminal Procedural Rules Committee’s Final Report details these rule changes, which are effective October 1, 2015.

The Supreme Court contemporaneously approved similar changes to the Rules of Civil Procedure. The Civil Procedural Rules Committee’s Explanatory Comment provides additional information as follows:

The Supreme Court of Pennsylvania has adopted new Rules 220.1 and 220.2 and the amendment of current Rules 220.1 and 223.1. The changes are intended to provide guidance to the bench and bar regarding the use of electronic devices by jurors in civil cases.

The new rules and amendments provide for jurors to be instructed that the use of electronic devices is restricted during their tenure as a prospective juror, i.e. a member of the jury pool, and as a selected juror. The new provisions require the trial court to instruct jurors that they may not conduct independent research on the Internet about the case, communicate about the case electronically, e.g. “tweet” or “blog,” or use such devices during juror service. A trial court is required to instruct jurors at the earliest opportunity of interaction between the juror and the trial court, and then repeat those instructions as often as practicable. The new rules and amendments provide for sanctions against any person who violates the provisions of these rules. It should also be noted that a note to new Rule 220.1 cross-references Section 1.180 of the Pennsylvania Suggested Civil Jury Instructions, Pa. SSJI (Civ), §1.180. These instructions specifically address the use of electronic devices by jurors. While the proposal focuses on the use of electronic devices by jurors, it remains silent as to their use in the courtroom by the public and media. Rule of Judicial Administration 1910 outlines the responsibility of a trial court regarding the broadcasting, televising, or taking of photographs in the courtroom in civil proceedings.

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Police Recordings and the Right to Know Law

Earlier this month, Attorney Allen Thompson authored a post Yes, You Can Record Police Officers During The Course of Their Official Duty. The following day, the Commonwealth Court of Pennsylvania released its decision in Pennsylvania State Police v. Grove, 1146 C.D. 2014. The primary issue in Grove was whether the video recordings of interactions between law enforcement officers and members of the public in a public place were exempt from disclosure under the Right to Know Law (RTKL).

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Grove had requested a copy of the police report and any video and/or audio taken by the officers at the site of an accident. The Pennsylvania State Police (PSP) denied the request for video and/or audio recordings claiming those recordings were exempt as records “pertaining to audio recordings, telephone or radio transmissions received by emergency dispatch personnel, including 911 recordings,” under Section 708(b)(18)(i) of the RTKL. In its denial, the PSP provided a verification that gave no description of the video or audio or the nature or purpose of the records, but only concluded that they were exempt from disclosure.

Grove appealed the decision to the Office of Open Records (OOR), the administrative agency that handles RTKL appeals. The OOR issued a final determination ordering the PSP to provide copies of the recordings to Grove, as the verification that PSP submitted was not sufficient to show the recordings were records exempt under Section 708(b)(18)(i). The PSP appealed the decision to the Commonwealth Court.

The Court, exercising its discretion to permit a party to enlarge the record on appeal and consider additional evidence, allowed the PSP to submit an affidavit. The affidavit established that there were two video recordings responsive to Grove’s request. Id. at 5. The first recording had no audio component, while the second one did. The second recording included interviews of the two drivers and bystanders regarding the accident. Id.

psp stop

More importantly, the affidavit set forth how the recording system is operated and the guidelines for its use. The recording equipment is activated and begins recording when a trooper activates his emergency lights or sirens. PSPs internal field regulations state that the equipment is to be used to document investigative work and also to record traffic and criminal stops, in-progress vehicle and crimes code violations, police pursuits, patrol vehicle travel when lights and sirens are activated, prison transports and other incidents the member deems appropriate while acting in performance of their duties. Id. at 6.

The PSP argued that the recordings were exempt from disclosure under Section 708(b)(16)(i) of the RTKL, which provides for the exemption of:

 A record of an agency relating to or resulting in a criminal investigation, including:

(i) Complaints of potential criminal conduct other than a private criminal complaint.

(ii) Investigative materials, notes, correspondence, videos and reports.

(iii) A record that includes the identity of a confidential source or the identity of a suspect who has not been charged with an offense to whom confidentiality has been promised.

(iv) A record that includes information made confidential by law or court order.

(v) Victim information, including any information that would jeopardize the safety of the victim.

(vi) A record that, if disclosed, would do any of the following:

(A) Reveal the institution, progress or result of a criminal investigation, except the filing of criminal charges.

(B) Deprive a person of the right to a fair trial or an impartial adjudication.

(C) Impair the ability to locate a defendant or codefendant.

(D) Hinder an agency’s ability to secure an arrest, prosecution or conviction.

(E) Endanger the life or physical safety of an individual.

This paragraph shall not apply to information contained in a police blotter as defined in 18 Pa.C.S. § 9102 (relating to definitions) and utilized or maintained by the Pennsylvania State Police, local, campus, transit or port authority police department or other law enforcement agency or in a traffic report except as provided under 75 Pa.C.S. § 3754(b)(relating to accident prevention investigations).

The PSP argued that the recordings are “criminal investigative records because the accident to which they relate resulted in traffic citations, which are summary criminal offenses, and because one of the troopers investigated the accident before issuing the citations.” Id. at 8. The Court disagreed, finding that the PSP’s evidence demonstrated the recordings were “created to document troopers’ performance of their duties in responding to emergencies and in their interactions with members of the public, not merely or primarily to document, assemble or report on evidence of a crime or possible crime.” Id. at 9. Furthermore, the PSP uses the recordings to “document the entire interaction and actions of the trooper, including actions which have no investigative content, such as directions to motorists in a traffic stop or at an accident scene, police pursuits, and prisoner transports.” Id. The Court concluded that therefore the recordings were not investigative material or videos, investigative information or records relating or resulting in a criminal investigation exempt under Section 708(b)(16).

The Court did agree that some of the information contained on the recordings in this instance, such as witness interviews, are investigative information exempt from disclosure by Section 708(b)(16). However, that doesn’t prevent PSP from having to produce the record, they must do so with the information redacted. Id. at 10.

As such, even the video and audio recordings that the PSP make in the performance of their duties may be available under a RTKL request.

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Appeal Filed with the PA Supreme Court in Leach v. Commonwealth

On July 20, 2015, the Commonwealth filed a Notice of Appeal with the Commonwealth Court in relation to its decision in Leach, et al. v. Commonwealth, et al., 585 M.D. 2014, regarding the constitutionality of Act 192, which, inter alia, provided for attorney fees and costs, when a municipality violates 18 Pa.C.S. 6120. Today, the Pennsylvania Supreme Court docketed the appeal as 61 MAP 2015. You can find a copy of the docket here.

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FICG/Prince Law Offices, P.C.’s Ninth Bi-Annual Machinegun Shoot – October 17, 2015!

Firearms Industry Consulting Group (FICG)®, a division of Prince Law Offices, P.C., will be hosting our ninth bi-annual machine gun shoot at Eastern Lancaster County Rod and Gun Club on October 17, 2015, in celebration of the 2nd Amendment of the US Constitution, and Article 1, Section 21 of the PA Constitution. Eastern Lancaster Rod and Gun Club is located at 966 Smyrna Road, Kinzers, PA 17535. It will start at 11am and go until 4pm. From 11am until 2:30pm, it will be unsuppressed and suppressed fire. From 2:30pm until 4pm, only suppressed fire will be allowed. Come on out an meet FICG Chief Counsel and your PA Gun Attorney, Joshua Prince, as well as, our other FICG attorneys!

Everyone, over 18 years of age, is welcome to attend. We are sorry but the insurer will not allow anyone under 18 to participate. There will be a small area for observers, under the age of 18, to watch the shoot. The only requirement is that you bring a driver’s license and hearing and eye protection. All attendees will be required to sign a waiver.

There will be several dealers and manufacturers in attendance and which will have some unique firearms for rent that you might not otherwise have an opportunity to shoot. We are still waiting for confirmation of the dealers that will be in attendance and will update this blog, as they confirm. While you are welcome to bring your own firearms and ammunition, it will be up to the owner of the firearm as to whether he/she will permit you to use your ammunition in his/her firearm. The FFLs will be bringing ammunition for purchase, if you need additional or if they require certain types of ammunition to be used in their weapon systems.

We expect that several celebrities and politicians will be in attendance. When we are able to confirm their attendance, we will post about who will be attending.

Also, Eastern Lancaster County Rod and Gun will be making food and have drinks available, at extremely reasonable prices. There will be breakfast available again this time starting around 9am! Most attendees at the last shoot couldn’t get over how the Club could make any money on the food sold!

All attendees MUST RSVP. To RSVP via facebook, please go here. If you do not have Facebook or are having difficulty, please contact our Tammy Taylor, at ttaylor@princelaw.com.

We are requiring that each person donate at least $10 to the Eastern Lancaster County Rod and Gun Club for their generous permission to use their range. If you have any questions, please feel free to contact us.

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PRESS RELEASE: Attorneys Allen Thompson and Adam Kraut admitted to the Western District of Pennsylvania

Today, on motion by Attorney Joshua Prince, Attorneys Allen Thompson and Adam Kraut were admitted to practice in United States District Court, Western District of Pennsylvania.

The ceremony took place at the Federal District Court in Johnstown, PA in front of Judge Kim R. Gibson. Judge Gibson administered the oath to Attorneys Thompson and Kraut and accepted Attorney Prince’s motion to admit them.

Prince Law Offices, P.C. is pleased to announce that three of its attorneys are now admitted to the Western District of Pennsylvania.

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Agree When You Disagree: Custody, Opposing Partes, and Getting Along as Best Possible

I am devoting this blog entry in the interests of counseling against bad manners and brutishness.  Inherently, disputes arising out of dissolved marriages or other relationships involving children in common to the disputants, are ugly.  Litigation is nary a cordial concern, and when broken personal relationships and children get involved – the gloves tend to come off.  This writer understands and even sympathizes with this aspect of the human condition – family law disputes carry a potential for so much volatility because (more so than in other areas), one’s emotions are at play; when one “feels”, one “reacts”.  Indeed, this reader would suggest that there is hardly anything like a divorce, paternity action, child support petition, or child custody petition, that can transform heretofore perfectly civil individuals into insensible mortal enemies and mud-slingers.  It is not surprising to see opposing parties in a custody scenario resort to, among many other methods, reporting the other party to Children and Youth Services out of noting more than spite, hiring full time private investigators to track and record the other party, investigating/harassing acquaintances of the other party, etc.  The devices deployed by custody litigants for the sole purpose of making the opposing party’s existence a living hell are numerous, creative, and continually evolving.

However, there is empirical evidence showing that such conduct is, fundamentally, counter-productive.  We take the time and each opportunity to advise clients who happen to be involved in a custody action that a custody “action” does not (necessarily) have to be a “dispute”, and the “other party” does not have to be an “opposing party”.  That is, we urge clients to re-contextualize their pre-formed notions that all legal actions are adversarial and (to the extent possible) suspend their distaste for the other party – no matter how well-founded the client imagines his feelings to be.  Support for this contention has myriad sources – the most significant probably being that the Law underpinning Custody provides that it is the best interests of the child which dictate the terms of a court ordered agreement.  Anderson v. Mcvay, 743 A.2d 472 (Pa. 1999).  As a practical matter therefore, the court will have little tolerance or patience for parties it sees as wilfully vile, spiteful, wilfully dilatory, obdurate, etc.  Conversely, the court will tend to reward a party who demonstrates a certain degree of courteousness and flexibility (or at least gives the perception of being so).  Similarly, the very function of a Custody Order is not a means for sowing further discontent between persons who would rather not be in the same room with one another if at all avoidable.  Rather, the courts’ system for custody proceedings (including a relatively informal mediation session before a Hearing Master) is calibrated to encourage open-communication and cooperation between parties the law assumes are interested first, and foremost, in the security of their child.

Lest the reader becomes confused, this entry is an appeal to good tactics as much as anything.  Custody actions are inherently protracted affairs that will, until the child/children in question attains majority, be litigated and re-litigated.  Very likely, a single Family Law judge in the county wherein the action is brought will get to know the litigants pretty well over the course of many years of periodic hearings, including necessary modifications to custody orders, etc.  Thus, it makes abundant sense for a party to give such judge the best possible impression of him or her, possible.  Put simply, contriving to have a family law judge dislike you, may be fatal to your cause.      

So, if you find your self in the midst of custody “action”, take a deep breath, don’t presume a “dispute” if doing so isn’t necessary, don’t look at the other party as the “opposing” party if doing so isn’t necessary, put away the enmity, don’t use guerilla tactics, and extend the proverbial olive branch – this will save you in the long run.

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