Fighting Back! The Use of Affirmative Defenses in Your Criminal Case

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Affirmative defenses, generally speaking, are defenses that if proven by the defendant, mitigate or excuse the conduct of the defendant on legal grounds, even though absent the defense the defendant could have potentially been found guilty of the underlying criminal charge. Affirmative defenses include self-defense, defense of others, defense of property, insanity, intoxication, mistake of fact or law, consent, accident, coercion and duress, execution of public duty, entrapment, and other offense-specific defenses.

Once an affirmative defense has been raised, it is up to the Commonwealth to disprove that defense (with exceptions).  This does not mean that in a criminal case the Commonwealth must disprove all potential affirmative defenses. Instead, affirmative defenses must be raised before they must be contested by the Commonwealth.

A thorough explanation of each defense could constitute the basis of their own post, but generally speaking, most affirmative defenses include a justification or excuse for the intent element necessary to convict of a crime.  For example, in a Simple Assault case, it is a necessary element that the defendant attempted to cause or intentionally, knowingly, or recklessly caused bodily injury to another.  With the affirmative defenses of self-defense or defense of others, the intent is to protect the self or someone else, not to cause injury to the one assaulted.

Not every affirmative defense puts the burden on the Commonwealth to disprove it beyond a reasonable doubt. For example, to establish the defense of entrapment, the burden is on the defense to show that the evidence demonstrates that the evidence shows that it is more likely than not (a preponderance of the evidence standard) that the defendant was entrapped.  Likewise in the case of an insanity defense, the burden is on the Defense to establish that a defense of insanity applies by a preponderance of the evidence.  Most affirmative defenses may be brought up for the first time at trial, with the exception of defenses such as insanity or mental infirmity which require notice to the Commonwealth in a timely manner.

If you or a loved one has been accused of a criminal offense it is important that you retain an experienced attorney who can assess your potential culpability and mount a serious defense to the charges.  Attorney Frank Walker of Frank Walker Law is a National Top 100 Criminal Defense Lawyer and Personal Injury Attorney with offices in Pittsburgh, Pennsylvania and Morgantown, West Virginia. Call now for a consultation! Our number is (412) 212-3878 for our clients in Pennsylvania and (304) 712-2089 for those in West Virginia.

Guns + Drugs ≠ 5 anymore. The State of Mandatory Minimum Sentencing Statutes following Newman

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Several Pennsylvania mandatory minimum sentencing statutes are ripe to be struck down in the wake of the Superior Court’s ruling in Commonwealth v. Newman.  The decision in Newman is just the beginning of a cluster of appeals litigation following the United States Supreme Court Decision in Alleyne v. United States.

Many states have statutes requiring mandatory minimum sentences for offenders who are found guilty of a crime. When the judge finds certain aggravating factors are present (such as possession or use of a firearm or presence in a school zone), then the Court is required to sentence the offender to a mandatory minimum sentence that is often far more harsh and severe than the standard range sentence the offender may have been facing.

In those cases where a mandatory minimum is applicable, the Jury decides whether the offender was guilty of the offense beyond a reasonable doubt, and then the judge decides whether the mandatory triggering factors were present based on a preponderance of the evidence.  The holding in Alleyne found that this sentencing scheme was unconstitutional. Factors used to apply mandatory minimum sentences must be submitted to a jury.

Newman, applying the holding in Alleyne, found that Pennsylvania’s mandatory minimum sentencing scheme (codified in 42 Pa.C.S.A. § 9712.1) of 5 years to be applied in Possession with Intent to Deliver cases where a firearm is found in close proximity to the Defendant, to be unconstitutional. You may recall advertising for this sentencing scheme in Pennsylvania’s popular “Guns + Drugs = 5” campaign.  This mandatory minimum sentencing scheme as well as many like it have specific provisions that the factors mandating the application of a minimum “shall not be an element of the crime” and that application of the mandatory minimum “shall be determined at sentencing”  The court in Newman found that these provisions in mandatory minimum sentences are inseparable from the sentencing statute, and therefore the mandatory minimum sentencing statute that incorporates these is unconstitutional in its entirety.

This has wide reaching ramifications for Defendants facing charges in which a mandatory minimum may be applicable.  While “guns + drugs = 5” has been struck down, many more mandatory minimums are sure to fall on appeal in cases where they have been applied and the court’s analysis in Newman applies. If you or a loved one is facing criminal charges where mandatory minimums may apply, or have already been convicted or sentenced to a mandatory minimum sentence that is now illegal, you need an experienced attorney to guide you through the complicated process of handling your case in the wake of this new precedent.  Attorney Frank Walker is a Top 100 criminal defense attorney with experience handling even the most technical of criminal cases on appeal.  Call today to schedule an appointment! Our lines are open at all times, seven days a week at (412) 212-3878.

Paper Tails: Requirements of Probation & Parole

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A sentence of probation may seem like a slap on the wrist when compared to the alternative of jail time. However, probation can come with a slew of requirements that may potentially trip up even the most diligent of offenders.   Keeping in mind the potentially severe penalties for a violation of probation (as discussed in my recent post Probation Revocations: When Paper Goes Up in Flames), it is of the utmost importance to be familiar with the requirements of your probation or parole.

The potential conditions attachable to an order of probation are governed by Pennsylvania Statute 42 Pa.C.S.A. § 9754. There are several potential conditions and obligations attachable. These include rules regarding where you can live, who you can live with, when you can leave the jurisdiction, curfew times for returning home, and ordering the offender to meet their family responsibilities.  Probation may also have rules regarding your job, requiring you to maintain a specific job or order you to pursue a course of study or vocational training.

Offenders with substance abuse and/or mental health issues will be required to pursue treatment and be consistent in attending their counseling sessions, and will be subject to tests for the use of drugs and alcohol. Offenders may be forbidden from possessing firearms or other dangerous weapons (dangerous weapons including seemingly innocuous items such as slingshots or realistic looking fake guns). And finally, § 9754 c(13) has a catchall provision allowing the court to order “any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience”

It is the sole responsibility of the person on probation to be familiar with the terms and conditions of their probation.  It is not a defense to accusations of a probation violation that the defendant was not aware of the condition of probation they are accused of violating.  The Board of Probation and Parole may require you to sign a paper acknowledging the terms and conditions of probation.

Unreasonable and unduly restrictive probation requirements may be modified after a hearing. However, violations of these requirements prior to modification may still lead to a revocation.

With the high stakes involved, it is important that you know your rights and obligations while on probation.  Attorney Frank Walker has experience working with probation officers, the State board, and prosecuting attorneys to ensure that the requirements of his clients probation is not unduly restrictive. Attorney Walker will personally advise clients as to their obligations while on probation.  Don’t risk a potential revocation! Call Attorney Frank Walker for a consultation today! Our number is (412) 532-6805, lines are open 24/7!

You Get What You Give: How to Prepare for Your Sentencing Hearing


Whether you were convicted of a criminal offense as a result of a plea bargain or went to trial and were found guilty, the ultimate disposition of the case will come at a sentencing hearing. In some cases this may be done immediately after entering a plea or receiving a verdict, while in other cases it is scheduled a month or two after the conviction. The sentencing hearing is a hearing in which the sentencing judge will have broad discretion in imposing a sentencing (notwithstanding the terms of the plea agreement). It is important to know the possible consequences you are facing, and how to put yourself in the best position for a favorable disposition.

The overwhelming majority of sentences received (not including sentences received upon revocation of probation and parole) fall into what is known as the standard range. Standard range sentencing is a topic worthy of its own post, however the basic idea is that the range available for your potential minimum sentence is derived from the use of a sentencing matrix. The X axis of this matrix is your Prior Record Score, which is calculated from prior criminal offenses you have been convicted of. The Y axis is the Offense Gravity Score, which is the seriousness of the current offense. This will give a range of minimums for the judge to choose from, but that range can carry potential sentences that vary by over a year in some cases.

That’s why it is important to be prepared for your sentencing hearing. Depending on the nature of the offense and your prior record, the court may order a pre-sentence investigation report (PSI). This report will be made available to the judge, and involve the results of an interview had with the defendant about the defendant’s home life, their version of events, prior record, substance abuse issues, and other relevant data. In addition to this PSI, at the time of sentencing, the attorneys may make argument about anything relevant that may influence the judge’s decision.

As a defendant, it is important you have positive evidence to present on your behalf. Gainful employment, proactive efforts made to address substance abuse and mental health issues, community involvement, payments of restitution, and good behavior on supervision or while incarcerated, are all positive factors to present on your behalf.

Attorney Frank Walker has the experience with Courts in Allegheny County and the surrounding areas and knows what you need to do to be in the best position at sentencing. He can prepare you for the PSI interview and tell you the potential consequences of your actions. If you or a loved one is facing criminal charges and need help tackling these complicated issues, call Attorney Frank Walker at (412) 315-7441. Don’t gamble with your liberty! Call today

Be Prepared From the Start: The Basics of Preliminary Hearings


The preliminary hearing is one of the first, most important steps in any new criminal case. If you or a loved one has been accused of a criminal offense you may be wondering what the role of the preliminary hearing is in the proceedings. You may be wondering what the potential outcomes of a preliminary hearing are, and you may have questions as to your rights and obligations in regards to the hearing.

At a preliminary hearing, the Commonwealth has the burden to show that they have what is called a prima facie case relating the charges alleged. Prima Facie is latin for “at first sight.” Generally speaking, the Commonwealth must present evidence and testimony that, if taken as true, would arise to a violation of the criminal code. The burden of proof is lower at a preliminary hearing, as hearsay is admissible as evidence. Also, the preliminary hearing is not the time for challenges based on the credibility of witnesses. Instead, the only assessment is whether, if what the Commonwealth is presenting is taken at face value, that those allegations would meet the elements of the crimes charged.

A majority of cases that reach a preliminary hearing are bound over for court. The preliminary hearing is not a trial. It is merely the beginning of your criminal case. In some cases the goal of the preliminary hearing is to have the charges dismissed based upon a finding of a lack of a prima facie case. However, a preliminary hearing serves other functions important to the defense. It is often the first opportunity to hear what the Commonwealth is offering as evidence against you. This is the first step to begin building a proper defense, figuring out who the witnesses will be and what potential evidence is out there ahead of discovery. Also witnesses for the Commonwealth will have testimony on the record that can be used against them at a potential suppression hearing or at trial.

In some cases, it may be a good idea to waive the preliminary hearing. Though a preliminary hearing is important in many cases, often times waiving a preliminary hearing can have benefits as well. An attorney may at times negotiate a reduction in bail or potential recommendations for programs such as ARD in which the waiver of the preliminary hearing is used as a bargaining chip.

If you or a loved one has an upcoming preliminary hearing, now is the time to retain an experienced criminal defense attorney. The preliminary hearing is the first of many strategic moves for defense counsel to handle that will begin to shape your entire case. Attorney Frank Walker has defended hundreds of criminal cases in Allegheny County and the surrounding areas and can aid you in building the best legal defense possible. Call the offices of Frank Walker Law at (412) 315-7441 to set up a consultation today!