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.
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.
Many diversion programs are available in Philadelphia. Rather than going to trial or entering a plea, most programs allow defendants to complete courses, community service, drug/alcohol treatment, probation, and other tasks in order to fulfill their obligations to the judicial system.
Diversion programs in Philadelphia and defendants eligible to participate
Most of these programs will result in charges being dismissed, withdrawn or the charges being eligible for expungement, once the diversion program is completed.
If you are accepted to a diversionary program, you will be able to deal with your court case and have your life minimally disrupted. Your attorney can contact the DA’s office and request they review your case to see if you are eligible for any of these diversionary programs. Acceptance into a diversionary program often comes down to the DA’s review of your case and is not guaranteed. You will need strong representation to advocate for your acceptance to a diversionary program.
Emmett Madden is honored to receive a Philadelphia Super Lawyer award for 2017. This award is in recognition for his expertise and successes in personal injury and criminal defense cases.
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 and the Law Offices of R. Emmett Madden Esquire are pleased to announce that after a precedent setting year of successes, both in the personal injury and criminal defense courts, we have once again received the honor of being named a Philadelphia Super Lawyer. As featured in the most recent Philadelphia Magazine issue (June, 2017) and in Super Lawyers Magazine, we continue with record-breaking verdicts for those injured in major catastrophes, including building collapses, and serious truck, car, and motorcycle accidents. This includes our victory representing the lead witness and Plaintiff in the largest civil settlement in Philadelphia history, $227 million dollars. Read here and here.
In the field of criminal defense, we have obtained numerous not guilty verdicts for clients wrongly accused of rape, indecent deviant sexual intercourse, burglary, robbery, and other charges—which only after a full trial were our clients exonerated.
We are honored to receive this award once again and look forward to continuing serving those most in need.
Just in! The National Academy of Criminal Defense Law (NACDA) website just announced that this week Emmett Madden is one of their featured attorneys.
You can visit the site here.
Emmett Madden is rated by NACDA as one of the top ten criminal defense attorneys in Pennsylvania. Per NACDA, regarding their top ten list: “The very few attorneys (less than 1%) that are good enough to make our list have demonstrated an extraordinary amount of knowledge, skill, experience, expertise and success in their practice of criminal defense.”
Recently a client from California was charged with a very serious crime. Over a decade ago, he left his girlfriend to live with family in California. Since that time, he had been living and working with little or no contact with his ex-girlfriend. Unbeknownst to him and shortly after moving away, his girlfriend’s daughter made serious sexual allegations against him. Aside from taking a police report and issuing a warrant, the local police department did nothing to try and find him. They never followed up with the family or the child. They did not look for any leads as to my client’s whereabouts or made any effort to locate him.
By the time he was arrested, much of the evidence that could have exonerated him had been destroyed. The child’s medical records no longer existed as her clinic closed. Her school had also closed and those records no longer existed. The place where she received counseling had been shut and those records were destroyed. Even the Children and Youth investigation records and police records had been destroyed due to closures over the last 10 years. My client was in a very difficult position of facing a trial where it was his word against his accuser. All the evidence that could have been used to exonerate him had been destroyed. Through no fault of his own, the evidence that could clear his name was gone. Ten years had passed and the police had done nothing. (more…)
