Can An Aggravated Assault Charged Be Expunged?

Being arrested and charged for a crime can negatively impact your future more than you think, effecting your personal life and limiting your opportunities professionally. Even in cases where charges were ultimately dismissed, your public record will still reflect the charges that you were arrested for.

The Pennsylvania expungement law was recently expanded in 2018 to include some violent offenses, such as aggravated assault. If you have been convicted of aggravated assault, you may be considering getting your criminal record expunged. Removing an aggravated assault criminal charge from your public record is a difficult process, but it can be done if you meet the qualifications. Find out the details of how you can seek removal of your criminal record from the public database.

What is aggravated assault?

Aggravated assault is a felony charge that is not taken lightly in the Pennsylvania justice system. Here are some examples of aggravated assault:

  • Striking or the threat of striking a person with a weapon or object
  • Using a firearm to shoot someone or threatening to shoot or kill someone while pointing a gun at them
  • Committing assault with the intent to commit another felony crime
  • Committing assault that results in serious physical injury to someone else
  • Committing assault against a member of a protected class

Effects of a criminal record

When a person is charged with a crime, they may face jail time and court fees, as well as specific conditions such as probation or parole. The short-term effects are burdensome, but the long-term implications can be just as devastating. A permanent criminal record is filed with the Federal Bureau of Investigation (FBI), as well as the Pennsylvania State Police, local law enforcement, the court, and government agencies. The criminal record contains details pertaining to arrest, conviction, and any supervision details. This means that future employers are able to pull up your criminal record in a background check and see that you have a conviction for aggravated assault. This could have a big impact on current or future employment.

How to get your criminal record expunged

Because of the negative impact a criminal record can have on your life, it is important to consider getting your criminal record expunged wherever possible. Here are the steps that you need to take in the expungement process.

Step 1 – Eligibility

The very first step determines whether you will be eligible to have your record expunged. In Pennsylvania, you are eligible if you were convicted of a crime, and meet any one of the following:

  • You are at least 70 years old and have had a clear record for 10 years you were released from supervision
  • You have a summary offense, and were free of arrest or conviction for 5 years following the date of conviction
  • No disposition was ever received or recorded by the repository within 18 months (proof must be submitted)
  • The court has ordered expungement
  • You are at least 21 years of age and have been convicted of a violation under Section 6308 (relating to the illegal transport or sale of alcohol) and have satisfied all the terms of sentencing, then the court will issue an order to expunge your record.
  • A record can be expunged 3 years after the individual has been deceased.

Step 2 – Obtaining a background check

After determining whether you are eligible to have your record expunged, you must obtain a background check from the Pennsylvania State Police. It takes about 2-4 weeks to receive the results. This background check must be included with the petition that is filed with the court. Without the background check, the clerk of the court may rule the petition as deficient.

Step 3 – Filing the necessary filings with the Court

Filing the necessary paperwork with the court in Pennsylvania will consist of the petition, a proposed Order, a verification form, a certificate of service, a background check, along with any other additional documentation that you feel is necessary. In the case of expungement for an aggravated assault, the defendant must fill out the 790 petition form (which is specific to misdemeanors and felonies). Additionally, a filing fee of $147.00 must accompany the petition.

Step 4 – Service on the District Attorney’s Office

After filing the petition with the court, you must serve the paperwork on the District Attorney’s Office that initially prosecuted the case. In certain counties, the clerk of the court will serve the petition on your behalf, but this should be confirmed prior to filing.

Step 5 – Response from the District Attorney’s Office

After the petition and accompanying documents is served upon the Pennsylvania District Attorney’s Office, they will have the chance to decide whether or not they will consent or object to the request for expungement. Generally, the District Attorney’s Offices in Pennsylvania has 30 days from the date of service to make their decision.

If the District Attorney’s Office reaches a decision where they object, a contested hearing will have to be held where testimony, evidence, and defense must be presented as to why the Judge should grant the order of expungement.

Step 6 – Distributing the Order of Expungement

The Order for expungment can be granted by the judge without the need for hearing if the District Attorney’s office consents. Regardless how the order was granted, the next step is for the expungement orders to be forwarded to all necessary law enforcement, court, and government agencies.

The entire expungement process typically takes 4 – 6 months under most circumstances. This means that your criminal record should be cleared by all law enforcement, court, and government agencies within the 4 – 6 month time frame.

Importance of an Attorney

The expungement process requires that you file documents with the court, follow strict procedural rules and present evidence to support the expungement. In order to best represent yourself, you need the experience of a seasoned expungement lawyer. The attorneys at DiCindio Law have significant experience trying expungement cases in Pennsylvania. Contact the experience attorneys at DiCindio Law today!

Possessing Instruments of Crimes

When an object or weapon is involved in the commission of a criminal offense, a common charge that will be levied against an individual is that of “Possessing Instruments of Crimes.” This charge is found in title 18 section 907 of the Pennsylvania Criminal Code.

What must be evaluated in these cases is whether or not the person intended to employ any instrument of crime in a criminal manner. Importantly, there need not be what is generally termed as a “weapon” in order to be found guilty of this offense. Unlike what most may generally think – a knife or a gun, an instrument of crime is defined as anything that fits with in the following definitions. First, anything specifically made or specifically adapted for criminal use. Second, anything used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses that it may have.  Finally, anything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.

An example of a situation where a normal everyday object may be viewed as an instrument of crime would be when a crowbar is used to break into somebody’s home or vehicle. That is not the lawful and intended purpose of a crowbar therefore it would fit under the definition of this crime.

If you or a loved one has been charged with a crime or are the subject of a case where Possession of an Instrument of Crime is charged contact Mike DiCindio, Esq. and DiCindio Law, LLC directly today.

 

  • 907.  Possessing instruments of crime.

(a)  Criminal instruments generally.–A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.

(b)  Possession of weapon.–A person commits a misdemeanor of the first degree if he possesses a firearm or other weapon concealed upon his person with intent to employ it criminally.

(c)  Unlawful body armor.–A person commits a felony of the third degree if in the course of the commission of a felony or in the attempt to commit a felony he uses or wears body armor or has in his control, custody or possession any body armor.

(d)  Definitions.–As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

“Body armor.”  Any protective covering for the body, or parts thereof, made of any polyaramid fiber or any resin-treated glass fiber cloth or any material or combination of materials made or designed to prevent, resist, deflect or deter the penetration thereof by ammunition, knife, cutting or piercing instrument or any other weapon.

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“Instrument of crime.”  Any of the following:

(1)  Anything specially made or specially adapted for criminal use.

(2)  Anything used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.

“Weapon.”  Anything readily capable of lethal use and possessed under circumstances not manifestly appropriate for lawful uses which it may have. The term includes a firearm which is not loaded or lacks a clip or other component to render it immediately operable, and components which can readily be assembled into a weapon.


The above listed information does not include the entire crimes code, annotations, amendments or any recent changes that may be relevant.  The information provided is for informational purposes only and may not reflect the most current legal developments.  These materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances.  It is intended solely for informational purposes.

Michael D. DiCindio, Esq. is a West Chester criminal defense lawyer and personal injury attorney who represents individuals accused of crimes or injured by the negligence of others throughout all of Chester County, including West Chester, Phoenixville, Malvern, Coatesville, Paoli, Downingtown, Tredyffrin, West Goshen, Honey Brook, Oxford, Devon, Pottstown, Chesterbrook, Parkesburg, Kennett Square, and Avondale

Self-Defense in Pennsylvania

Self-Defense in Pennsylvania

Under Pennsylvania law when a crime of violence has been alleged a criminal defense attorney must evaluate the circumstances and determine whether or not self-defense would be an available principle of justification and defense in the criminal case. Whether it be a prosecution of simple assault, harassment, aggravated assault, or even a murder or criminal homicide case, self-defense must be evaluated before moving forward with a strategy for legal defense. Under Pennsylvania law the general principle of self-defense is that the use of force towards another is justifiable if the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of force by another person on the pres

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ent occasion. Still, as with any criminal justification defense there are limits to self-defense in Pennsylvania.

For example there is a limit on the level of force that may be reasonably used which becomes a factual determination for  the jury.  There are also limits on the use of deadly force and when it can be used in a justifiable manner. Finally, there are numerous intricate scenarios where the self-defense or use of force in self-protection statute differentiates between the location of the incident.  For example, different rules may apply if someone is acting in self-defense in their home rather than in public.

Putting forth a self-defense justification defense in Pennsylvania is incredibly involved at times and usually based upon the specific circumstances of a given scenario.

If you or a loved one needs representation on any criminal matter – contact Mike DiCindio, Esq. directly.

  • § 505.  Use of force in self-protection.

(a)  Use of force justifiable for protection of the person.–The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

(b)  Limitations on justifying necessity for use of force.–

(1)  The use of force is not justifiable under this section:

(i)  to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful; or

(ii)  to resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:

(A)  the actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest;

(B)  the actor has been unlawfully dispossessed of the property and is making a reentry or recaption justified by section 507 of this title (relating to use of force for the protection of property); or

(C)  the actor believes that such force is necessary to protect himself against death or serious bodily injury.

(2)  The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if:

(i)  the actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or

(ii)  the actor knows that he can avoid the necessity of using such force with complete safety by retreating, except the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be.


The above listed information does not include the entire crimes code, annotations, amendments or any recent changes that may be relevant.  The information provided is for informational purposes only and may not reflect the most current legal developments.  These materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances.  It is intended solely for informational purposes.

Michael D. DiCindio, Esq. is a West Chester criminal defense lawyer and personal injury attorney who represents individuals accused of crimes or injured by the negligence of others throughout all of Chester County, including West Chester, Phoenixville, Malvern, Coatesville, Paoli, Downingtown, Tredyffrin, West Goshen, Honey Brook, Oxford, Devon, Pottstown, Chesterbrook, Parkesburg, Kennett Square, and Avondale

Merger of Criminal Offenses

Many times individuals enter a lawyer’s office wondering why they have been charged with numerous counts of the same or similar offense. While it is not always the case, it is important to know what crimes will or may “merge” for sentencing purposes after trial and conviction.  The legal explanation of merger of criminal offenses is detailed below, but the simple way to describe it is that when one crime merges with another, the defendant will only be sentenced on one – showing the obvious necessity of understanding this concept in practice.

To determine whether crimes merge for sentencing purposes, Merger of criminal offenses is governed by 42 Pa.C.S.A. § 9765, titled, “Merger of Sentences”, which provides as follows:

No crime shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense.  Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense. 42 Pa.C.S.A. § 9765.

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Each case, crime, and factual scenario must be addressed.  The Pennsylvania Supreme Court has explained the basis for isolating the particular portion of a statute at issue when determining whether two crimes merge.  The Baldwin Court stated:

“Therefore, while Section 9765 indeed focuses on an examination of “statutory elements,” we cannot ignore the simple legislative reality that individual criminal statutes often overlap, and proscribe in the alternative several different categories of conduct under a single banner. See, e.g., Aggravated Assault, 18 Pa.C.S. § 2702 (defining seven distinct violations of law); Involuntary Deviate Sexual Intercourse, 18 Pa.C.S. § 3123 (setting forth eight separate violations). Consequently, in such cases, we caution that trial courts must take care to determine which particular “offenses,” i.e. violations of law, are at issue in a particular case. See, e.g., Commonwealth v. Johnson, 874 A.2d 66, 71 n. 2 (Pa.Super.2005) (recognizing that a particular subsection of a criminal statute may merge with another crime as a lesser-included offense even though a different subsection of that same statute may not).  Com. v. Baldwin, 985 A.2d 830, 836 n.6 (Pa. 2009).”

In a criminal case, it is important to have an attorney who understands these concepts and knows when to raise these issues and how to effectively and persuasively argue this to a Court if it is a situation where the Commonwealth does not agree.  If you or a loved one has been accused, charged or convicted of a crime and are in need of legal help contact Mike DiCindio directly.

 


 

The above listed information does not include the entire crimes code, annotations, amendments or any recent changes that may be relevant.  The information provided is for informational purposes only and may not reflect the most current legal developments.  These materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances.  It is intended solely for informational purposes.

Michael D. DiCindio, Esq. is a West Chester criminal defense lawyer who represents individuals accused of crimes throughout all of Chester County, including West Chester, Phoenixville, Malvern, Coatesville, Paoli, Downingtown, Tredyffrin, West Goshen, Honey Brook, Oxford, Devon, Pottstown, Chesterbrook, Parkesburg, Kennett Square, and Avondale