Author Archives: Warren H. Prince, Esq.

The Uproar

I must admit that I’m surprised by the vitriol arising from Joshua’s recent post about State Police action in Pennsylvania. Our staff has received death threats. Can you believe it? Death threats because we expressed an opinion contrary to theirs and in support of the Constitution. While we defend their right to free speech, and allow their negative posts to appear on our privately owned blog, their favorite epitaph for our firm seems to be “scumbags.” While most news references have been positive or neutral, those who criticize would be the first in line to cry out publicly if they were denied press access to the very same dwellings. Nonetheless, we would also support their mantra for “freedom of the press.”

It’s pretty obvious that most of the objections come from those who do not frequent our blog, and apparently don’t care about any constitutional rights. In fact, most don’t even live in Pennsylvania. What I don’t understand is where they would draw the line. In the past year, we have seen our Government abandon our brave defenders and lie about their actions to protect their political careers. The IRS has singled out a group with political views contrary to those of the current administration for delays and audits. In fact, we recently endured an unheard of audit; could that have resulted from Joshua’s political positions? When the IRS was confronted about their actions, they attempted to destroy evidence. We the people have suffered an unending barrage of attacks on our constitutional Right to Keep and Bear Arms, mostly by those waving a banner of unsupported facts and assumptions.

Of course, facts mean little to the liberals on attack, while assumptions that support their cause rein supreme. The murder Corporal Bryon K. Dickson is a tragedy and without question, the perpetrator must be brought to justice! While many are willing to lay down their rights to secure his capture and death, when did Mr. Fein give up his presumption of innocence? Why does everyone assume that Mr. Fein is indeed the perpetrator? Only one reason; because the State Police and press told us so. They’ve led us to believe he’s a crazed murderer wrecking havoc in neighboring communities, justifying their actions. In fact, it’s recently been revealed that the actual target may have been Trooper Alex T. Douglass, and Corporal Dickson was in the wrong place at the wrong time. Why is this important? Well it appears that Trooper Douglass might have been having an affair with Mr. Frein’s wife. If true, that absolutely does not justify Mr. Frein’s actions if he is indeed the perpetrator. It makes it no less tragic. What it does raise is the question of whether the actions by the State Police are justifiable, truthful, and well measured. If true, then Mr. Frein is not an apparent threat to the local citizens, as the State Police have already acknowledged in their original statements. He is not even an offensive threat to the authorities, although I fear some may be injured in his pursuit.

Just yesterday, Lt. Col. Bivens of the Pennsylvania State Police stated: “Lethal force is authorized upon positive identification if he is not actively surrendering,” (http://abc13.com/news/accused-cop-killer-repeatedly-appears-then-eludes-manhunt/322722/). What happen to his right to trial? When did we give the State Police the right to be judge and jury? Or are they really trying to keep him quiet to protect the reputation of the troop? Maybe revenge for his actions? These thoughts are no more absurd than the image of Mr. Frein presented by the State Police and the assumptions they have made. Where’s Attorney General Holder and Mr. Sharpton?

Lastly, a word to those who believe we are “police haters” or just out to make a fee. You obviously don’t know us although, like Lt. Col. Bivens, you’re jumping to conclusions without any of the facts. Joshua frequently presents seminars for local police forces on gun law, without compensation. Most recently, Joshua defended the Sheriff of Perry County when sued by the local auditors, without compensation. We are staunch supporters of law enforcement, but that will not dissuade us from putting citizens first when they are wrong. The actions of Troop N of the Pennsylvania State Police are simply wrong. When the police authorities are wrong, we have only two choices, revolt,

Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of the citizens to keep and bear arms. […] the right of the citizens to bear arms is just one guarantee against arbitrary government and one more safeguard against a tyranny which now appears remote in America, but which historically has proved to be always possible. – Hubert Humphrey

or a law suit. Each individual victim of Troop N’s actions will find it difficult to seek redress as their individual loss, while present, may not exceed the costs of suit. There are not many attorneys truly qualified or willing to bring such a suit, but Joshua wanted the citizens to know that if their rights were violated, we would not turn them away. This is a far better solution than revolution. We do NOT want anyone to raise a gun in defense of their home. We want them to know there are alternatives.

As Benjamin Franklin said, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

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Filed under Constitutional Law

Not All Burglaries Are Created Equal: Burglaries Are Not Necessarily Disqualifying For RRRI (Recidivism Risk Reduction Incentive) Consideration

In the recent case of Com. v. Abraham Gonzalez (687 EDA 2009 (PA Superior Ct., Dec. 13, 2010), a panel of the Superior Court ruled that burglaries on the record of an individual being sentenced to a state sentence are not necessarily disqualifying under the “past violent behavior” disability of the Recidivism Risk Reduction Incentive (RRRI) Statute (61 Pa.C.S.A. 4501 et seq.). The RRRI Act permits the sentencing judge to declare an individual RRRI eligible, thus enabling him to reduce the term of his minimum sentence if he complied with all the obligations of certain rehabilitative programs. For an individual to be eligible

  1. that a sentencing court must designate a sentence as an RRRI sentence whenever the defendant is eligible for that designation,3 and
  2. that a defendant is eligible for that designation if he has not been previously convicted of certain enumerated offenses and “[d]oes not demonstrate a history of present or past violent behavior.”

Gonzalez, quoting 61 Pa.C.S.A. 4503.

In this case, Gonzalez had pled guilty to possession of a controlled substance with intent to deliver and was held to be disqualified for receiving RRRI consideration by the sentencing court because Gonzalez had an F-2 burglary on his record.

The panel stated that it was not clear that the legislature had intended to lump all burglaries together as constituting evidence of “present or past violent behavior.” In fact, in section 9714(g)of the Sentencing Code, addressing sentencing of recidivist offenders, the General Assembly seemed to indicate that only burglaries of the “home invasion” type would qualify, specifically because someone was present when it was committed.

Even though this case does not specifically address F-1 home burglaries in which no one was present, the underlying rationale of the case seems to indicate that for this panel of the Superior Court, all burglaries are not created equal for designating individuals eligible for RRRI consideration.

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Filed under Criminal Law

Who will walk your dog when you’re gone?

As a society, we’re known for our love of animals. The amount of money spent every year on our pets, including food, supplies, and toys now exceeds $41,000,000,000.00. There are approximately 72,000,000 domesticated dogs in the US. It’s not surprising that as a society, we’re considering the welfare of our companions once we’re gone.

In 2006, Pennsylvania joined the growing number of states recognizing that some pet owners want to provide for the needs of their pets by passing legislation that recognizes a trusts as a binding instrument. A “PET TRUST” is constructed like any other trust, but concentrates on the anticipated needs of the pet. Your trust appoints someone as trustee, and preferably, someone else as the animals’ caregiver. Direction is given regarding the care you wish your pet to receive and how to determine if and when its time to consider euthanasia.

Surprisingly, many pet owners have given thought to their pets’ needs, and often make arrangements with a friend or relative, leaving them a lump sum of money and the animals in their will. The sad truth is that many of those animals end up at the pound just days after their owner passes on. The neighbor was “humoring” the owner and never really intended to care for the animal, but appreciates the bequest. Or, the family member brings the animal home only to find that someone else in the home develops an allergy. Or, any of thousands of scenarios where the pets’ best interests are the last thing considered.

A properly prepared pet trust will anticipate the pets’ needs and provide for them within the allocated financial resources of their owner. Some thoughts might include:

A. Avoiding any incentive for the caregiver to shorten the pet’s life. Consider “rewarding” the caregiver for the longer life enjoyed by the pet by maintaining annual payments until the pet passes on. Don’t leave the balance of the trust to the caretaker on the pet’s demise. B. Consider funding the trust with a life insurance policy on your life that names the trust as beneficiary. C. Provide for a replacement of the caregiver if he should be unable or unwilling to continue to serve. D. Place the Trustee in charge of the monthly payments to the caregiver and give him the authority to terminate the caregiver if the level of care is unacceptable or not consistent with the terms of the trust. E. Define the point in your pet’s life when the caregiver can consider euthanasia, such as when two veterinarians agree the pet is in pain and there is no chance of recovery.

Lastly, always maintain a log of your pet’s likes and dislikes such as their favorite foods, toys, and people. Warn of situations where your pet doesn’t function well, such as in large crowds or in the presence of other pets. Ask yourself what you would want to know if you were going to be the one responsible for the pet. If there is one thing you can do for your pet as a thank you for its companionship, it should be planning for its health and happiness after you’re gone.

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Filed under Wills and Estates

Should my children be co-executors?

Many parents with more than one child find it difficult to choose one to administer their estate. Sometimes they don’t want to offend a child. Sometimes it’s truly hard to choose. Often their solution is to ask their attorney to appoint both children as co-executors. While this may appease a parent’s conscience, it is rarely the best solution.

No matter how well you know your children, and no matter how well they get along, it is very unlikely they have always agreed on everything. Should an issue arise on which they disagree, discussion and relations can quickly deteriorate, destroying a family the parents wanted nothing more than to keep together. Litigation to resolve the issues can result in substantial expense that would erode the estate.

The answer is to simply pick one to administer the estate. Its not infrequent that one child excels over the others in understanding economics or dealing with people. That’s the child to pick. If that doesn’t help, pick the oldest child. If you still feel guilty about leaving a child out, we can appoint that child to be a substitute executor to take over in the event the executor is unable to serve for whatever reason. Remember, the attorney representing your estate is always there to make sure the executor properly administers the estate and all of your heirs are treated as you intended. Making every effort in drafting your will to avoid disagreements after you are gone is the best way to keep your family together.

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Filed under Wills and Estates

Please make my son and daughter co-executors NOT!

When drafting a will, our clients with more than one child often request that we name both of their children as co-executors so not to offend one of them. While that decision is ultimately up to our client, in most circumstances, that is not the best solution.

First, if one or more of the children have moved away from the area, it can be difficult to discuss matters with all the executors at the same time. This is especially a problem with signing checks to pay the estate’s expenses. Within the last week, we had a sizable check to pay the Inheritance Taxes lost by Federal Express, and a Petition lost by the US Postal Service. Both items were sent to out of state executors. While we have receipts from both carriers, the Department of Revenue will NOT grant much leeway when you claim that the “check was lost in the mail.”

Second, with two equal voices, it is very easy to end up in a deadlock, and no tie breaker. This can, and has resulted in extensive litigation and cost to the estate, breaking the family further apart than has ever been the case. Even if they get along now, the decisions to be made can quickly destroy that relationship.

We strongly suggest you pick ONE of your children to handle the estate’s affairs. We can easily name the other as substitute executor in the event the named executor resigns or can’t serve. This demonstrates that you have no lack of faith in them. If you’re having problems picking which child to name, an easy solution is to pick the oldest.

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Filed under Wills and Estates