Philadelphia Criminal Blog

No double convictions

"My husband and brother-in-law are charged with attempted burglary and criminal conspiracy to commit burglary. If they are convicted, can they be punished separately for each of those charges? The lawyer told us that the charges merge?" -Gabriella

Well, Gabriella, the lawyer is essentially correct. Pennsylvania Statutes Title 18 Section 906 states that a person may not be convicted of more than one 'incohate' crime. An incohate crime is attempt, solicitation, or conspiracy. So technically, the charges do not merge for purposes of sentencing, since it is not possible to be convicted of both.

Every so often, a perspective client will ask me if I will charge on a contingent fee basis for a criminal case. A contingent fee means that the amount of money due is dependent on the outcome of the case. Just today, a lady asked me if she could pay me half the fee up front and the other half if I win her husband's case.

This is a reasonable question, because some types of lawyers normally charge on a contingent basis. However, criminal defense attorneys are simply not permitted to do this. Rule of Professional Responsibility 1.5(d)(2) states clearly that a lawyer may not charge a contingent fee in a criminal case.

So, much as a lawyer might want to make such an agreement with a client, it is simply unethical to do so.

As the world now knows, Californians voted last week to amend their constitution to prevent same sex marriage. Some have wondered if the Pennsylvania constitution can be amended in the same way. Could Pennsylvanians vote to allow warrantless searches, for example?

Pennsylvania has a more complex approach to amending its constitution than does California. Proposed constitutional amendments have to start in the Pennsylvania General Assembly. The proposed amendment must past both the house and the senate by a majority vote. If it passes, the amendment is put aside until the next general election. After the next General Assembly has been elected, this new group of senators and house members must vote again on the proposed amendment. If two successive legislatures vote by majority to approve the proposed amendment, the amendment is listed for voter approval at the next election. If a majority of voters are in favor, the constitution is amended.

An important point here is to remember that states are allowed to offer more and greater protections to their citizens than does the federal government - but they cannot offer fewer. In other words, if Pennsylvania decided to legalize police searches without a warrant, the Constitution of the United States would still prevent those searches.

The process for amending our federal constitution is even more difficult than here in Pennsylvania. A super-majority of two-thirds of both the House of Representatives and the Senate would have to vote in favor of a proposed amendment. If that happened, then three-quarters of the states would need to ratify the proposed amendment (by majority vote) before it would take effect. Getting two-thirds of the Senate to agree on anything is near-impossible, which explains why the federal constitution is so rarely amended.

As a criminal defense attorney, let me offer a comment on all this. I think that it should be difficult - very difficult - to amend the constitution. One of the main functions of the constitution is to protect the rights of the minority from the "tyranny of the majority". At one point or another, majorities of our population would have voted against many of the rights we now hold so dear - such as no forced confessions, or the right of folks of different races to intermarry.

Criminal defendants are unpopular figures. Many in our great country don't realize that anyone can be misidentified and charged with a horrible crime. Protecting the rights of accused criminals, and having strong constitutional protections, makes sure that the system functions properly - it protects all of us. Shortsighted majorities may desire to 'lock em up and throw away the key' or dispense with many important rights. Thankfully, our law is not ruled by voter majority the way our politics is.

1. Whats the max on attempted murder and armed robbery?

Usually, there is a lot more charged than just those two, but I think I understand your question, and I will answer 25-50 years.

2. The cops come to my house with a warrant to search for a dead body and they find a kilo of cocaine. Can I get charged with the powder?

If the cops come in and look for a dead body, but while they search for the corpse they find drugs, you can be charged with the drugs. As long as the initial warrant for the body was illegal, you can be lawfully charged with the drugs.

3. If someone runs a red light and kills the occupant of another car, how will they be charged?

The answer depends on whether the person who was the killer had a valid license and whether they were dui at the time of the killing. The answer could also change if the killer drove away.

In Pennsylvania there are about 4 different types of killings under the law, but really many more. But, there is a chance that no charges will be brought.

Also, the victims family could sue.

4. I plead guilty to something I didn't do. Can I change my mind?

If you have NOT been sentenced, you probably can change your mind and withdraw your guilty plea. If you have been sentenced, it is very unlikely you will be allowed to change your mind.

I got tied up with some nonsense about a bounced check. I don't even know how it happened. If was a simple mistake. I was told that if I go to the magisterial judicial district, i can just plead guilty and pay a fine. If I do this, the whole thing will be over; who cares?

If you do everything you state about, you will have a summary conviction on your record that you cannot get expunged under the current law. Further, bad checks involve dishonesty and someone, somewhere along the road to your future will somehow challenge your employment due to this conviction.

Absolutely do NOT plea guilty to any summary offense unless you already have a prior criminal conviction and you will never be worries about a future job. If you are concerned with your record, show up to court and see if they offer you something other than a record.

DO NOT PLEA GUILTY.