The PCRA is a statute that provides some criminal defendants, who have been convicted of a crime and who are still serving a sentence of probation or incarceration, with the ability to challenge their convictions even after an unsuccessful direct appeal to the Pennsylvania Supreme Court.
PCRA’s are often filed to challenge ineffective assistance of counsel at trial or when an attorney is assisting a client’s decision to plead guilty. Other reasons to file a PCRA are retroactive changes in constitutional law and the discovery of new evidence that would change the outcome at trial or change a decision to enter a plea. The Post-Conviction Relief Act is complicated and there are strict deadlines for filing a PCRA. If you are considering filing a PCRA, it is very important to speak with a knowledgeable attorney.
The Post-Conviction Relief Act underwent changes in 2018. A bill was signed into law that changed the Post-Conviction Relief Act in three important ways:
First, the law extends the deadline for filing a Petition based on newly discovered evidence. Previously, petitioners only had sixty days to file a petition from the day they discovered any new evidence. The change in time-limit ensures that defendants who locate result-changing evidence after their trial, will have a reasonable time-frame to file their petition based on newly discovered evidence.
Second, these changes provide that defendants that file petitions based on new DNA testing do not have to be on probation or in prison at the time that the petition is filed and decided. Previously, the PCRA required that a petitioner be serving a sentence of probation or incarceration when filing the petition and when the petition was ruled on by the court.
Third, the changes in the law allow for DNA testing in some cases even where the defendant pleaded guilty at the time of the original criminal trial. Prior to these changes, a defendant who pleaded guilty could not seek DNA testing even when DNA testing would exonerate them. The new changes in the law eliminate this unfair bar in order to overturn wrongful convictions.
Pennsylvania’s Supreme Court has decided the matter of Commonwealth v. Perfetto. This establishes that Philadelphia prosecutors may not prosecute more serious misdemeanor or felony charges against a defendant who has already been tried in traffic court for offenses arising from the same incident.
For example: If police conducted a traffic stop and charged you with a DUI and you received traffic tickets and resolve your traffic tickets, you cannot be prosecuted for the DUI. In Philadelphia, this happens often because traffic court cases usually go to trial more quickly than criminal trials. The Supreme Court ruled that, as a matter of fundamental fairness, prosecutors should not be allowed to charge a defendant in multiple different courts for the same conduct. This decision could result in many cases being dismissed.
If you have a matter where you received a traffic violation in addition to misdemeanor or felony charges make sure you contact ThePhillyLawyers for a consultation and have the support of a team of attorneys that know the correct motions to file to win your case.
In recognition of Emmett Madden’s expertise and success in personal injury and criminal defense cases, he is featured as a Super Lawyer in the most recent issue of Philadelphia Magazine. Every summer, the magazine highlights its annual list of the top lawyers in Pennsylvania and Delaware. Emmett has once again received the honor of being named a Philadelphia Super Lawyer. After a rigorous selection process, only the top 5% are selected as Super Lawyers.
The magazine writes as follows:
“R. Emmett Madden fights for social justice by defending those accused of crimes and representing injured individuals. For criminal defendants, he has won not guilty verdicts throughout the Delaware Valley. For injured clients, he has obtained maximum recoveries for victims of vehicle accidents, nursing home negligence, insurance abuse and building collapses, including Philadelphia’s recent record settlement of $227 million in the Salvation Army Building Collapse. Emmett is also proud of his work on behalf of the poor and disenfranchised as a volunteer at Ayuda Christian Legal Clinic in North Philadelphia and serves as a part-time Public Defender in Montgomery County.”
From the Super Lawyers website:
“Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. This selection process includes independent research, peer nominations and peer evaluations.”
To view Emmett’s profile on Super Lawyers, please visit here.
ThePhillyLawyers is honored to receive this award once again and we look forward to continuing serving those most in need.
Intimidation and retaliation are distinct charges that are often confused. Intimidation and retaliation are often charged in the same set of circumstances. The differences between these two charges are important to distinguish when building a strong defense.
Intimidation tries to stop someone from doing something.
Intimidation is conduct that interferes (obstructing, preventing, impairing) with the administration of justice by causing the person intimidated to refrain from reporting, to give false information, to withhold information, or to disregard a legal summons to appear regarding a criminal matter.
Retaliation is an action that gets back at someone for what they already did.
Retaliation is an action that harms another by engaging in conduct that threatens another for anything lawfully done in the capacity of a witness, victim, or party.
Intimidation can be satisfied by a single threat, retaliation cannot.
The Supreme court in 2006 rejected the prosecution’s claim that the harm proscribed by § 4953 could be satisfied by a single threat or unlawful act. The court stated:
“While there is no doubt that a single threat is sufficient to satisfy the requirement of other criminal provisions, in order to satisfy the specific requirements of the retaliation statute, multiple threats are necessary.”
The fact that retaliation requires “multiple threats” must to be explained to the judge and jury. Having a knowledgeable and savvy attorney make the correct arguments at trial could be the difference between a not-guilty verdict and a conviction.
Pennsylvania state and federal law both give defendants that have been convicted the right to file appeals based on many reasons. A direct appeal after trial is one way and filing a petition under the Post Conviction Relief Act is an additional, less well-known, method.
Direct appeals usually only allow you to appeal issues your trial attorney has preserved at the trial level. An issue is preserved when your attorney objects and states grounds for the objection on the record. If the lawyer has preserved these issues, you may appeal to the Superior Court of Pennsylvania for a direct review of any mistakes the trial court made.
If your direct appeal is unsuccessful, it may be time to file a PCRA.
You are eligible to file a PCRA petition if you have been convicted of an offense and are serving a prison sentence, are on probation or parole, or your sentence has had a severe lasting collateral consequence, even if you are no longer incarcerated or on probation or parole.
You can get post-conviction relief if:
At the PCRA stage, new arguments can be made in various aspects of your case. Because of this, it is very important to find the right attorney who will carefully review your trial transcript and discuss the specific aspects of your trial with respect to filing a PCRA. It is essential to have a well-researched and well-argued PCRA to maximize the chances at having your conviction overturned.
ThePhillyLawyers is saddened to announce the passing of the firm’s founding attorney, Robert Emmett Madden, Sr. who passed away on May 27, 2019.
For over 40 years, Bob was a leader in the field of white-collar criminal defense. Bob was well respected in the legal community and was treasured by his clients, friends, and family. He will be greatly missed.
Attorney Margeaux Cigainero, Esq. is the newest member of ThePhillyLawyers. Ms. Cigainero specializes in criminal defense litigation as well as criminal appellate work, and has defended individuals facing criminal charges for nearly ten years. Margeaux will be working in the criminal defense department of ThePhillyLawyers team.
Margeaux Cigainero was formerly a principal at a center city law firm where she focused on litigation, appeals, and PCRAs (Post Conviction Relief Act) for various criminal matters. It was in this firm where she earned her reputation as a tireless leader and fierce advocate within the Pennsylvania criminal justice system.
Prior to this, Ms. Cigainero was a senior associate attorney at a center city criminal litigation firm that specialized in criminal appellate advocacy. While daily working on appeals and PCRAs, she refined and sharpened this skill set.
In addition, she recently teamed up with Prevention Point Philadelphia to organize an ongoing project that provides legal procedural information for indigent people to more easily navigate the Philadelphia judicial system. Volunteering and outreach is also an important part of Ms. Cigainero’s work in Philadelphia.
Upon joining ThePhillyLawyers, Attorney Cigainero said:
“I am excited for this new chapter in my career and excited it begins with such a diligent, hard-working, and well-respected group.”
Attorney Cigainero is licensed to practice law throughout the state of Pennsylvania and is also Federally licensed in the Eastern District of Pennsylvania.
The difference between actual possession and constructive possession, and why it matters.
Actual possession: This occurs when the police find contraband (drugs, weapons, etc.) on your person and no one had equal access to the contraband found.
Constructive possession: This occurs when police find contraband, but it is not located on a person. For example, the police pull over a car with multiple people inside and a search reveals contraband in a backpack on the passenger floorboard. Now, police have to construct who possessed this contraband.
To convict you of constructive possession, the state must prove that you had knowledge of the presence of the contraband and executed or planned to execute dominion and control over the contraband. Also, just being near contraband is not enough to convict someone in a constructive possession case.
Defending a constructive possession case: The Commonwealth must prove the defendant’s knowledge of the illegal item and show that the defendant had control over, or the defendant intended to control the illegal item. It can often be difficult to prove constructive possession when:
These are not all the factors involved in proving constructive possession, but these factors show why you need strong representation to point out weaknesses in any constructive possession case.
