What Is A Simple Assault?

In Pennsylvania, some types of altercations can result in criminal charges for simple assault. A conviction for simple assault can leave you with a criminal record and cause other serious consequences. If you have been charged with simple assault, it is a good idea for you to talk to an experienced criminal defense lawyer at DiCindio Law as soon as possible. We might be able to help you to secure a more favorable resolution to the charges against you.

What is a simple assault in Pennsylvania?

Simple assault is defined as a crime in 18 Pa. Cons. Stat. § 2701. Under this law, a simple assault occurs when someone attempts to intentionally, recklessly, or knowingly cause bodily injury to another person. A simple assault may also occur when someone negligently causes bodily injury to someone else with a deadly weapon. This offense is classified as a second-degree misdemeanor in most cases. However, if the simple assault occurs when the person is engaged in mutual combat with the alleged victim, it is a third-degree misdemeanor. If the victim of the simple assault is younger than age 12, and the actor is over the age of 18, it is a first-degree misdemeanor.

Types of acts that can be deemed to be simple assaults

Typically, simple assault is charged following a fight in which you strike someone else. If you are involved in a bar fight and hit someone else, you could be charged with simple assault. A simple assault could also be charged when a person is being patted down by a police officer and fails to disclose that he or she has a used hypodermic needle in his or her pocket, causing the officer to prick his or her finger with it. This scenario could occur when the person has diabetes or when he or she is an intravenous drug user.

Does the alleged victim have to suffer an injury for simple assault charges?

A simple assault does not have to result in an injury to the victim to be filed. Under the law, a simple assault also includes attempts to commit an assault. For example, if you try to hit someone and miss him or her, you can still be charged with attempted simple assault.

Potential penalties for simple assault convictions

The penalties that you might face if you are convicted of simple assault will depend on whether you are charged with first-, second-, or third-degree simple assault. If you are convicted of a third-degree misdemeanor simple assault, you will face up to one year in jail and a fine of up to $2,500. If you are convicted of a second-degree misdemeanor simple assault, you will face up to two years of incarceration and a fine of $5,000. If you are convicted of first-degree misdemeanor simple assault against a victim who is younger than the age of 12, and you are older than age 18, you will face up to five years of incarceration and a fine of up to $10,000.

Simple assault vs. aggravated assault in Pennsylvania

Aggravated assault is a more serious offense than simple assault. Under 18 Pa. Cons. Stat. § 2702, an aggravated assault occurs when someone attempts to cause a serious bodily injury or an injury while acting with extreme indifference regarding human life. This act requires more than what you might find in a fistfight. When using the bar fight example, an aggravated assault might involve breaking a beer bottle over someone else’s head or smashing his or her head into a concrete pillar. This type of conduct goes beyond intentionally causing injury because it instead is an act that causes severe injury. Aggravated assault is a felony offense in Pennsylvania.

What is an assault with a deadly weapon?

Normally, an assault with a deadly weapon will be charged as an aggravated assault. For example, if you use a bat to hit someone else in the head, you may be charged with aggravated assault. However, some assaults with deadly weapons may be charged as simple assaults. For example, if you hit a person with a bat in the arm, and the person does not suffer serious bodily injury, you may be charged with simple assault.

The phrase “deadly weapon” is used broadly under Pennsylvania law. It can include guns, knives, or anything else that can be used as a deadly weapon such as a bat, tire iron, vehicle, or rock. How the object is used during the incident can transform a simple object into a deadly weapon.

Can assault with a deadly weapon be charged when the victim is uninjured?

The alleged victim does not have to be injured for you to be charged with an attempted assault with a deadly weapon. Your intent will affect the charge that you might face. You might also be charged if your actions were knowing. Under the simple assault statute, you could be charged if your actions were reckless. To be charged with attempted aggravated assault, your actions must also have been extremely indifferent to human life.

Get help from an experienced criminal defense attorney

If you are facing assault charges at either the misdemeanor or felony level, a conviction can cause severe consequences to your life. You may face a lengthy sentenced to jail or prison and substantial fines. Once you have completed your sentence, you might find that it is difficult for you to find a job or to secure housing. You might also have trouble securing credit, loans, professional licenses, or security clearances. Getting help from an experienced criminal defense attorney at DiCindio Law might help you to secure a better outcome in your case. Contact us today to request a free and confidential consultation by calling us at (610) 430-3535 or by filling out our online contact form.

What is the legal definition of murder?

In Pennsylvania, murder charges are the most serious types of charges that people might face. If you are accused of murder, you could face up to life in prison or capital punishment, depending on the type of murder you are accused of committing. Because of the serious nature of murder charges, it is crucial for you to retain an experienced and skilled criminal defense lawyer.

What is the legal definition of murder?

In the U.S., our laws arise from both the statutory law and the common law. The common law is made up of laws that originate from court decisions and customs instead of statutes. The common law definition of murder is an intentional and unlawful killing that is perpetrated with “malice aforethought.”

Malice aforethought refers to the defendant’s intent to kill someone else without a legally justifiable reason. Malice aforethought can also exist when the defendant intentionally causes serious bodily harm that leads to the death of the victim or when the defendant acts with an extreme and reckless disregard as to whether his or her actions could result in the death of the victim, and the victim dies as a result.

In Pennsylvania, murder is now defined in the statutory law instead of the common law. While Pennsylvania’s murder laws originally were derived from the common law, you must look at the murder statute to understand different types of murder offenses, including first-, second-, and third-degree murder.

Under 18 Pa.C.S. § 2502, there are three different types of murder. First-degree murder is a criminal homicide that is committed intentionally. Second-degree murder is a criminal homicide that is committed while the defendant was committing a different felony either as the principal or as an accomplice. Third-degree murder includes all other types of murder and is a first-degree felony.

The second-degree murder definition is Pennsylvania’s felony murder law. Under this law, you can be charged with second-degree murder even if you are not the person who committed the killing. This law simply requires you to have been engaged in committing a felony as an accomplice when the killing occurs to be charged with this murder offense.

Manslaughter vs. murder charges in Pennsylvania

Pennsylvania recognizes two other types of homicide offenses, including voluntary manslaughter and involuntary manslaughter. While manslaughter offenses are related to murder charges, there are some distinct differences. While manslaughter charges also deal with the death of someone else, they generally do not include the same type of malice that is found in murder cases.

Voluntary manslaughter is codified at 18 Pa.C.S. § 2503. Under this statute, voluntary manslaughter can be committed in the following two ways:

  • When the defendant kills the victim out of a sudden and intense heat of passion caused by provocation by the victim or by provocation of a third party that the defendant attempts to kill but accidentally kills the victim instead; or
  • When the defendant intentionally kills the victim under an unreasonable belief that the killing is justified.

Voluntary manslaughter is a felony. Prosecutors will sometimes charge defendants with first-degree murder and with voluntary manslaughter to try to ensure a conviction. Juries may find someone guilty of voluntary manslaughter while also finding that he or she is not guilty of first-degree murder. Whether a jury returns a guilty verdict for murder or manslaughter sometimes depends on the degree of culpability that the jury believes the defendant has.

Involuntary manslaughter is found in 18 Pa.C.S. § 2504. This offense is committed when a defendant acts with gross negligence or reckless disregard about whether his or her actions could result in the death of the victim, and the victim is killed. Involuntary manslaughter is a first-degree misdemeanor offense in most cases. However, if the victim was younger than 12 and was in the custody, control, and care of the defendant at the time of his or her death, involuntary manslaughter is a second-degree felony.

First-degree murder vs. second-degree murder

Some defendants who commit intentional killings are considered to have greater culpability and to be more dangerous than others under the law. These defendants are charged with first-degree murder, which carries life in prison or capital punishment under Pennsylvania law. A killing that occurs with malice but that does not rise to the level of first-degree murder may be charged as second- or third-degree murder in Pennsylvania, depending on the circumstances.

To determine whether a murder offense is intentional and constitutes first-degree murder, the jury will consider whether there is evidence to prove beyond a reasonable doubt that the killing was premeditated and deliberate. This means that the defendant had the intent to kill the victim and had time to think about it. An example of premeditation and intention includes an estranged husband purchasing a gun and then lying in wait for his estranged wife to shoot her multiple times.

While some states have felony murder rules that make the killing of a person during the commission of a different felony a first-degree felony murder, Pennsylvania’s felony murder rule classifies this type of murder as a second-degree murder offense. An example of this type of murder includes two accomplices who commit a home-invasion burglary and are surprised by the homeowner. If one of the accomplices shoots and kills the homeowner, he or she may be charged with first-degree murder while the other accomplice may be charged with second-degree murder for the homeowner’s death.

Penalties for murder convictions in Pennsylvania

In Pennsylvania, a conviction of first-degree murder can result in either life imprisonment or capital punishment. Second-degree murder convictions carry up to life in prison. Third-degree murder and voluntary manslaughter offenses each carry up to 20 years in prison. Finally, an involuntary manslaughter conviction can carry up to five years in prison and a fine of up to $10,000.

Get help from DiCindio Law

If you have been charged with murder or manslaughter, or your loved one is facing such charges, you should contact DiCindio Law today to schedule a free consultation by calling 610-430-3535.

Sentencing and Penalties For First Degree Murder

Criminal homicides in Pennsylvania involve the unlawful deaths of people and are divided into three murder offenses and two manslaughter crimes. Murder charges are found in 18 Pa.C.S. § 2502 and include first-, second-, and third-degree murder. First-degree murder is the most serious murder offense. If you are facing first-degree murder charges or your loved one has been charged with this offense, talk to DiCindio Law for help in West Chester, Pennsylvania.

Proving first-degree murder

To be charged and convicted of a murder offense, the prosecutor must be able to prove that you acted with actual malice. Malice is proven by showing that you intended to commit the victim’s killing or that you intended to cause harm. First-degree murder requires an intentional killing, meaning that you intended to kill the victim. First-degree murder charges require the prosecutor to show that you acted with express malice.

The prosecutor must prove that you had a specific intent to cause the victim’s death. Your specific intent to murder may be shown by the state by evaluating your actions, the circumstances, and whether you used a deadly weapon.

First-degree murder vs. other homicide offenses

First-degree murder is an intentional killing that involves planning, premeditation, and deliberate acts. Second-degree murder is charged when a killing happens while the defendant is committing a different felony as a principal or an accomplice. Third-degree murder offenses include all other types of murder and involve malice.

Voluntary manslaughter is a heat of passion killing following provocation by the victim or by a third party or when a person has an unreasonable and mistaken belief that the killing is justified. Finally, involuntary manslaughter is an unintentional homicide that results from grossly negligent or reckless conduct regarding the life of the victim.

Penalties for first-degree murder in Pennsylvania

First-degree murder is the most serious murder crime in Pennsylvania. This means that it may be punished by the most severe possible punishments under the law. Prosecutors have the burden of proving the elements of first-degree murder beyond a reasonable doubt before the defendants can be convicted of this offense. To do this, the prosecutors must prove that the defendant committed an unlawful, intentional, and premeditated killing of another person.

First-degree murder is set apart from other homicide and murder offenses by the planning, deliberate acts, and premeditation by the defendant. If the killing was spontaneous or occurred after provocation during a heat of passion, it will likely be charged as a different homicide offense in Pennsylvania.

Under 18 Pa.C.S. § 1102, a person who is convicted of first-degree murder in Pennsylvania may face either life imprisonment or a death sentence. However, if the person is convicted for the first-degree murder of an unborn child, he or she will not face the death penalty but will face life in prison.

Defenses to first-degree murder charges in Pennsylvania

First-degree murder cases are complex and carry extremely high stakes. Your attorney will carefully review and analyze all of the evidence that is being held in your case to identify the best defense strategies to follow. Some of the potential defenses that might be raised include the following:

  • You did not have the required mental capacity to have a specific intent to kill;
  • You were voluntarily intoxicated at the time of the offense;
  • You were insane at the time of the offense and could not distinguish between right and wrong;
  • You were acting in self-defense;
  • You had battered women’s syndrome, which caused you to kill your spouse or partner;
  • The killing was accidental and you did not have criminal intent and were engaging in a lawful activity;
  • You were misidentified as the killer;
  • You have an alibi for the time and date of the killing; or
  • You committed the killing while you were under duress.

Imposing the death penalty

If you are convicted of first-degree murder, your case will enter into the sentencing phase. During this phase, the prosecutor and the defense attorney will present arguments about the punishment that you should face. The prosecutor may present evidence of aggravating factors that support a death sentence. The defense attorney may present evidence of mitigating factors to argue against the death penalty.

Talk to DiCindio Law

Facing murder charges can be devastating and could potentially lead to a life behind bars or a death sentence. Getting help from an experienced attorney is crucial for these types of charges. Contact DiCindio Law to learn about your case at 610-430-3535.

Sentencing and Penalties Voluntary Manslaughter

All homicide offenses in Pennsylvania are serious crimes, including voluntary manslaughter. If you are convicted of voluntary manslaughter, you may face severe consequences. While all homicides are serious, they are not all treated the same. Voluntary manslaughter is a lesser offense than a murder charge, but it still requires you to mount a vigorous defense. At DiCindio Law, we represent people who have been accused of committing all types of crimes, including homicide offenses. Here is what you need to understand about voluntary manslaughter, the penalties, and the possible defenses.

Criminal homicide and voluntary manslaughter

Criminal homicide is defined in 18 Pa.C.S. § 2501 as being the intentional, reckless, knowing, or negligent killing of another person. Multiple crimes are considered to be criminal homicide offenses, including the following:

  • First-degree murder
  • Second-degree murder
  • Third-degree murder
  • Voluntary manslaughter
  • Involuntary manslaughter
  • Causing or assisting suicide
  • Delivering drugs that cause death
  • Criminal homicide of a law enforcement officer

First-degree murder is the most serious type of criminal homicide and can result in capital punishment or life in prison without parole. Voluntary and involuntary manslaughter are criminal homicide offenses for cases in which the facts do not quite rise to the level of a murder charge. In some cases, however, a prosecutor may charge a defendant with murder as well as voluntary manslaughter when the prosecutor is unsure that he or she will be able to prove the elements of murder beyond a reasonable doubt. Prosecutors do this to try to ensure that they can secure convictions against defendants whom they believe killed people.

The main difference between manslaughter and murder is the degree of culpability. Murder charges require that the killers acted with malice. Manslaughter is an unjustified killing that does not include malice. The penalties for manslaughter are much less severe than they are for murder. Voluntary manslaughter is more serious than involuntary manslaughter, however.

Voluntary vs. involuntary manslaughter

In Pennsylvania, manslaughter is classified into two types, including voluntary and involuntary manslaughter. These two different types of manslaughter are distinguished by the intent and the circumstances. Involuntary manslaughter is found in 18 Pa.C.S. § 2504 and is less serious than voluntary manslaughter. Involuntary manslaughter occurs when a defendant kills another person while he or she is acting recklessly or with gross negligence while performing a lawful or unlawful act. Involuntary manslaughter is a first-degree misdemeanor carrying the potential of up to five years in prison and a fine of $10,000.

Voluntary manslaughter is more serious than involuntary manslaughter and carries harsher penalties. Voluntary manslaughter is found in 18 Pa.C.S. § 2503 and occurs when a defendant kills another person in a heat of passion because of provocation by the victim. It also includes a killing when the defendant is in a heat of passion after being provoked by a third party who the defendant attempts to kill but accidentally kills the victim instead. Finally, it also includes scenarios in which the defendant intentionally killed another person under an unreasonable belief that the killing is justified such as in a case of imperfect self-defense or defense of others.

The provocation for voluntary manslaughter has to be severe enough that any reasonable person would have a passionate reaction. For the killing to be considered to have happened in the heat of passion, the killing must follow the provocation without sufficient time passing for the defendant to calm down. If you are convicted of voluntary manslaughter, it is a first-degree felony that carries up to 20 years in prison and a fine of $25,000.

Potential defenses to voluntary manslaughter charges

The defenses that your attorney might raise to defend you against voluntary manslaughter charges will depend on the circumstances and facts of what occurred. Your lawyer might examine the evidence and investigate the case to determine whether it might have been a negligent or accidental killing instead of an intentional act. He or she might also look to determine whether you might have been acting in self-defense instead of reacting to provocation and if your beliefs were reasonable.

Your attorney will carefully review the facts to identify all of the defenses that you might be able to raise in your case. If you have been charged with voluntary manslaughter, contact DiCindio Law in West Chester to start building your defense. Fill out our online contact form to request a free consultation.

What Is a Motion to Dismiss?

In a personal injury case, either party may file a motion asking the court to dismiss the case. In general, the party that most often files a motion to dismiss is the defendant to the lawsuit. Commonly, defendants will file motions to dismiss in the early stages of a case. Plaintiffs may file a motion to dismiss when they have reached a settlement, when there is a procedural defect, or when they want to voluntarily withdraw their claims. If you have filed a personal injury claim, the defendant may file a motion to dismiss called a motion for summary judgment. At DiCindio Law, we can explain how these types of motions are handled so that you can understand what to expect.

Applicable rules of procedure

Under USCS Fed Rules Civ. Proc. R. 41, a plaintiff in a federal case is allowed to voluntarily dismiss his or her own case. To do this, a plaintiff can file a notice of dismissal with the court before the defendant has filed his or her response. Alternatively, a plaintiff can file a stipulation of the dismissal that is signed by all of the parties that have appeared in the case. Unless it is included in the stipulation, the dismissal will be without prejudice, which means that the plaintiff could refile the claim at a later date.

A defendant may raise preliminary objections to a complaint by filing a motion to dismiss in which one of the defenses that are found in USCS Fed Rules Civ. Proc. R. 12(b) applies. These defenses include the following:

  • No personal jurisdiction
  • No subject-matter jurisdiction
  • Insufficient service of process
  • Insufficient process
  • Improper venue
  • The plaintiff failed to state a claim for which relief can be granted
  • The plaintiff failed to join an indispensable party

It is common for defendants to file motions to dismiss for the plaintiff’s failure to state a claim. When this type of motion to dismiss is filed, the defendant claims that even if everything that the plaintiff has alleged is true, it does not amount to something that supports the legal grounds for a claim for which relief can be granted.

In personal injury cases that are filed in the Court of Common Pleas, defendants can file motions to dismiss based on preliminary objections under 231 Pa. Code R. 1028. Under this rule, the preliminary objections that can be raised are limited to the following defenses:

  • Lack of jurisdiction over the subject matter or over the person
  • Improper venue
  • Improper service
  • Failure of the pleading to conform to the law or the inclusion of impertinent or scandalous material
  • Insufficient specificity
  • Demurrer
  • Nonjoinder of an essential party or a lack of capacity to sue
  • Agreement for an alternative dispute resolution procedure or the pendency of a prior action

Similar to federal court, a plaintiff can also file a motion to dismiss a case at any time.

When a motion to dismiss is filed

Defendants normally file motions to dismiss based on the preliminary objections at the start of a lawsuit. These are commonly filed as a demurrer, which is a motion to dismiss based on the legal insufficiency of a claim. The motion may focus on the allegations that are contained in the complaint together with any exhibits that have been submitted in support of it.

A party may file a motion to dismiss when he or she believes the complaint is not legally valid. One famous example of this occurred when Bill Cosby’s defense lawyers filed a motion to dismiss the charges against him before his retrial because they believed that the criminal conduct occurred outside of the limitations period. The judge ruled against the motion because the date of the assault was a matter to be decided at the trial and not at the time of the motion.

Understanding the grounds for filing a motion to dismiss

The grounds for a motion to dismiss are claims of legal deficiencies. Here is a brief description of each of the previously listed grounds.

A motion to dismiss for insufficient or improper service of process claims that the complaint and summons were not properly served. A motion to dismiss based on the expiration of the statute of limitations is filed when a complaint is filed outside of the limitations period. A motion to dismiss based on a lack of subject matter jurisdiction may be filed when a court does not have the jurisdiction to hear a particular type of case. A similar motion to dismiss for a lack of personal jurisdiction may be filed when the court does not have personal or in personam jurisdiction over the defendant. For a Pennsylvania court to have personal jurisdiction over a party, the party must be a resident of the jurisdiction or must have a sufficient number of contacts with it.

Even in cases in which a court may have personal jurisdiction, it might not be the proper venue. This can form the basis for a motion to dismiss based on an improper venue. There are a number of different requirements that a complaint must follow when it is filed. The court may grant a motion to dismiss for the plaintiff’s failure to state a claim when the complaint does not allege all of the required elements of a legal claim or if it does not allege an injury that is measurable.

Motion for summary judgment

Another type of motion that may be filed is called a motion for summary judgment. This type of motion may be filed by any party, but it is commonly filed by defendants. Summary judgment motions are filed after the pleadings are closed. Under 231 Pa. Code R. 1035.2, this motion may be filed when there is no triable issue of material fact for a specific element. It might also be filed after discovery as been completed when the plaintiff has failed to produce any evidence of an essential fact.

How a motion to dismiss is filed

Defendants normally file motions to dismiss based on preliminary objections after the complaint has been filed but before they have responded to it with their answers. If the court denies a motion to dismiss based on preliminary objections, the defendant will still be required to file an answer within a specific time period. If the reasons for the dismissal are not included in the first filing, they will be considered to be waived.

Like other pleadings and motions, a motion to dismiss has to be filed with the court, and the other party must be properly served. If you are a plaintiff and you receive a motion to dismiss based on preliminary objections, you will be given a chance to respond to it. The court will review the competing motions and will make a ruling at a hearing.

How courts rule on motions to dismiss and motions for summary judgment

In general, judges view the facts and allegations as true and view them in a light that is most favorable to the plaintiffs. This makes it hard for defendants to win motions to dismiss or summary judgment motions. If a court rules in favor of the defendant on a motion to dismiss, the case may be dismissed with or without prejudice. If the court dismisses it with prejudice, the plaintiff will not be allowed to refile the case.

If the court grants a defendant’s motion for summary judgment, the plaintiff can file an appeal of the decision. If the Court of Appeals reverses the ruling, the case will be returned to the Court of Common Pleas for further proceedings.

The court is allowed to issue a sua sponte dismissal on its own without either party asking it to do so. The court can dismiss a case on its own when there are grounds to dismiss the case. For example, if the parties did not raise an objection to the venue at the time the case was filed, the court can still dismiss it if the venue is improper.

Why getting help from an experienced personal injury attorney is important

In Pennsylvania, you are allowed to file a personal injury lawsuit on your own without the help of an attorney. However, it is a better idea for you to seek help from an experienced lawyer instead of filing a lawsuit on your own. People who file lawsuits on their own are called pro se plaintiffs. Even if you do not have a legal background, you will be expected to know and to follow the same procedural rules as attorneys do. You will also need to understand the different types of pleadings, the various filing deadlines, and how to properly state a legal claim. If you file a legally insufficient complaint, you run the risk of the case being dismissed.

An attorney can review what happened in your case and explain whether or not you have a winnable claim. If legal grounds do not exist, an attorney will explain that to you. If an attorney agrees to accept representation, he or she can draft the complaint for you in a manner that complies with the legal requirements and to make certain that it is properly served on the defendant. A lawyer may be better able to identify all of the potential defendants who should be named in the case as well as all of the parties that are indispensable.

Getting help from an experienced personal injury litigator can help you to avoid making potentially costly errors. It can also help you to make certain that you meet all of the required deadlines and follow the rules. An attorney can also help to preserve your rights by making timely objections so that the record will be preserved if you need to file an appeal at a later date.

Contact the DiCindio Law office for help

If you have been injured because of the actions or omissions of another person or entity. you may have legal rights to recover compensation by filing a personal injury lawsuit against those who are responsible. However, it is important for you to make certain that your pleadings are drafted correctly and that they present valid legal grounds to state a claim for which relief can be granted under the law. Michael DiCindio is an experienced litigator, former prosecutor, personal injury lawyer, and criminal defense attorney who has a deep understanding of the law and the rules of procedure. To learn more about your potential claim, contact DiCindio Law today by calling us at 610.430.3535 to schedule a free consultation.

What Is The Difference Between Acquittal and Dismissal?

Criminal charges can be resolved in a defendant’s favor in a few different ways. Two common ways that defendants can receive favorable outcomes are by being acquitted or by having the charges dismissed. While these both involve the charges ending, they may have different results. If you are facing criminal charges in West Chester, DiCindio Law can explain what you might expect to happen in your case and work to secure the best outcome for you.

Understanding acquittals

Acquittals are when a defendant who has been accused of a crime is found not guilty at a trial. A defendant may be acquitted by a judge following a bench trial or by a jury following a jury trial. To secure a conviction of a defendant, the prosecutor is required to prove every element of the crime to the judge or jury beyond a reasonable doubt. A person is acquitted when the prosecution is unable to meet its burden of proof for one or more of the required elements of the crime.

It is common for prosecutors to charge criminal defendants with several offenses. If you have been charged with multiple offenses and receive a not guilty verdict for each of them, you will have been fully acquitted. If you receive a guilty verdict for one offense and a not guilty verdict for another, you will have received a partial acquittal.

Can you be charged again for the same offense after an acquittal?

The Fifth Amendment’s double jeopardy clause prohibits the state from retrying you twice for a crime when you have been acquitted. This means that the same court will not be able to try you again for that offense after you have won at a trial.

For example, if you were charged with possession of heroin on a specific date and the jury finds you not guilty of the offense, the prosecutor will not be able to file new charges for possession of heroin on that date again. However, if you are caught with possessing heroin on a different date, the prosecutor could file new charges for the new offense.

When does the double jeopardy clause not apply?

If you are charged for the same offense in both federal and state court, the double jeopardy clause will not apply. This is because these two courts are considered to be separate sovereigns. If you are acquitted in state court of possessing heroin, you can still be tried in federal court for the same offense if the heroin was brought into the state in interstate commerce.

Similarly, if you are convicted in state court for possessing heroin on a specific date, nothing prevents you from being charged and convicted for the same offense in federal court. Some states do not allow defendants who were charged in federal court from later also being charged in state court. However, the U.S. Constitution says nothing about dual prosecutions of defendants in both state and federal courts.

You can also face a civil lawsuit for the same offense even if you have been acquitted of the associated criminal offense. A good example of this is O.J. Simpson. While he was found not guilty of killing Ronald Goldman and Nicole Brown Simpson in his criminal case, he later was found liable for killing them in civil wrongful death lawsuits that their families filed against him.

Dismissal vs. acquittal

In some cases, criminal charges will be dismissed by the court before the defendants’ guilt is adjudicated. A judge might dismiss a case for multiple reasons, including the following:

  • Lack of probable cause or insufficient evidence for the case to go to trial
  • Evidence was obtained in an unconstitutional manner such as a warrantless search or seizure or by failing to read the defendant his or her Miranda rights or to honor them during a custodial interrogation
  • When the prosecutor engages in egregious misconduct such as hiding exculpatory evidence

Under the Constitution, you have rights against illegal searches, stops, and seizures. The prosecutor is also required to share any exculpatory evidence that is uncovered during the prosecutor’s investigation. If a court finds that the prosecutor deliberately hid evidence, the charges may be dismissed. Similarly, the charges may be dismissed when the court finds that the manner in which the police officers conducted their investigation was unconstitutional.

What happens after a dismissal?

When criminal charges are dismissed, the judge or jury has not had the opportunity to determine whether you are not guilty or guilty by hearing the prosecutor’s case or your defense. Since the defendant’s guilt or innocence has not been determined, the charges can be re-filed at a later date. For example, it is still possible for a prosecutor to charge you again if your charges were dismissed for insufficient evidence. The prosecutor might investigate the case more thoroughly and find additional evidence to use against you. If that occurs within the statute of limitations, the case can be refiled against you.

Get help from a criminal defense attorney

If you are facing criminal charges, you should speak with an experienced criminal defense lawyer as soon as possible. Your lawyer will evaluate the evidence and work to identify all of the possible defenses that he or she might raise for you. At DiCindio Law, we will explore whether there might be grounds for your case to be dismissed. We can also build a strong defense case for trial or work to secure a favorable plea agreement. Contact our law firm today to schedule an appointment by calling us at 610-430-3535.

Why Are Criminal Charges Dropped or Dismissed?

Some people who are charged with crimes do not ever enter a plea or go to trial. Instead, the charges against them are dismissed by the judge or the prosecutor. One of the first things that a criminal defense lawyer will do is to evaluate whether there might be grounds for a case to be dismissed. Some of these grounds include the following:

  • Improper charging document or criminal complaint
  • No probable cause for the arrest
  • An unconstitutional stop or search
  • Insufficient evidence that a crime was committed by the defendant
  • Unavailability of an indispensable witness for the prosecution
  • Evidence needed to prove that the defendant committed a crime has been lost

In some instances, cases will be dismissed following a loss at trial when a defendant wins on appeal. In others, the charges are dismissed long before a trial. At DiCindio Law, we evaluate clients’ criminal cases carefully to determine whether there might be grounds for their charges to be dismissed.

Lack of probable cause for an arrest

Police officers must have probable cause that people have committed crimes before the officers can arrest them. Police officers are not allowed to arrest people because they have inarticulable hunches that they may have committed crimes. The belief that an officer has must be reasonable and based on facts. For example, if an officer sees a person pulling a gun from his or her waistband, he or she would likely have probable cause for an arrest. By contrast, if an officer sees someone who the officer thinks looks shifty but who is not doing anything that amounts to a crime, he or she would not have probable cause to arrest that person. If the officer still arrested the shifty person and subsequently charged him or her with a crime, the charges would likely be dismissed because of the lack of probable cause. However, if the prosecutor later found other evidence that shows that the person committed the crime, the charges could be re-filed.

Improper charging document

Officers must sign charging documents under oath. State laws dictate the types of information that must be contained in a charging document. If a complaint does not comply with the legal requirements because of a substantial omission or error, the prosecutor is not allowed to fix it to give to the court. If an officer writes an improper charging document and subsequently becomes unavailable, the charges against the defendant may have to be dismissed.

Unconstitutional stop or search

Police officers are only allowed to stop vehicles or people when they have reasonable suspicion to believe that a crime or traffic violation is being committed. For example, an officer can stop a car if a person is speeding but cannot just randomly stop a car because of a person’s race. If an officer stops a vehicle or a person when the officer does not have a reasonable suspicion that a crime is being committed, the stop is unconstitutional.

Police officers are only allowed to search houses, cars, and people when they have search warrants unless an exception applies. Police can search people without search warrants when the searches are incident to their arrests. They can also search homes in exigent circumstances such as when they hear screams and violent sounds coming from inside. Officers can also search people when they have reasonable beliefs that the people are carrying deadly weapons. Finally, police can search homes, cars, or people when they are given consent to do so.

If an officer conducts a warrantless search when none of the exceptions apply, any evidence that the officer uncovers during the search cannot be used against the person who is charged. If the court rules that a search or stop was illegal and that the evidence is inadmissible, the defense attorney can ask the court to dismiss the case because the prosecution does not have evidence to prove that the defendant committed the crime.

Lack of evidence

To prove a case against a defendant, the prosecutor must be able to present sufficient evidence to the judge or a grand jury to establish probable cause that the defendant committed a crime. There must be enough evidence to demonstrate a factual and objective basis for believing that a crime was committed by the defendant. If the judge or a grand jury fail to find probable cause, the charges will be dismissed. Prosecutors may also dismiss cases in which they have very limited evidence on their own.

Unavailable witnesses and lost evidence

Charges may be dismissed when key witnesses are unavailable to testify or when some important physical evidence is lost. This may happen because the prosecutor may be unable to prove that a defendant is guilty beyond a reasonable doubt. If a witness asserts his or her Fifth Amendment rights because testifying might incriminate him or her or if a witness dies or disappears, the prosecutor might not have enough evidence to prove the charges against the defendant.

In some cases, the identification of the defendant as the person who committed the criminal offense is key to the case. When the key witness is unable to identify the defendant, the prosecutor may not have enough remaining evidence to secure a conviction. When a witness says that he or she is uncertain that the defendant is the person who committed the crime, the prosecutor might decide to dismiss the charges.

Defense attorneys sometimes challenge the method the police used to obtain a witness’s identification of a defendant. For example, if the police used a photo lineup with six people, and the defendant was the only person depicted who was the race of the person who committed the crime, the judge may find that the lineup was improper and exclude the identification testimony.

Prosecutorial discretion

Prosecutors occasionally agree to dismiss criminal charges when extenuating circumstances exist. For example, a prosecutor might dismiss minor charges when questions exist about the facts of what occurred. The charges can be dismissed without prejudice, which would allow the prosecutors to refile the charges later within a specific period if new evidence of the defendant’s guilt is discovered.

In rare cases, a prosecutor might agree to dismiss the charges against a defendant when the victim asks him or her to do so. However, victims do not have the power to determine whether a case should move forward. The state is responsible for pressing charges. However, a prosecutor does have the discretion to determine what a just outcome would be. For example, if a sexual assault victim would undergo severe emotional harm by testifying about what happened to him or her and asks the prosecutor to dismiss the charges against the person who was responsible for the assault, the prosecutor might agree to do so.

Dismissals after successful appeals

When a person loses his or her criminal case at trial, he or she can appeal the verdict. If the appellate court finds that prejudicial error happened in the trial, the verdict may be vacated and the case may then be sent back to the lower court for a new trial. If the prosecutor believes that he or she will not succeed in a new trial, he or she may dismiss the case rather than trying it again.

Appeals court finds insufficient evidence to support the verdict

In some cases, the appellate court will reverse a jury verdict because the jury did not have sufficient evidence to support the finding of guilt. In most cases, the defense attorney will file a motion asking the judge to enter a judgment of acquittal that the judge denies. The defense attorney can make this argument again on appeal and may be successful. When that occurs, the appellate court will direct the trial court to enter a judgment of acquittal.

Lack of jurisdiction

Courts must have jurisdiction to hear the cases that are before them. If a court learns that it does not have jurisdiction to hear a particular case, it will dismiss it.

Contact DiCindio Law

If you have been charged with a crime, getting help from an experienced criminal defense attorney is important. A knowledgeable lawyer from DiCindio Law can review your case and determine whether there might be grounds for the charges to be dismissed. Contact us today to schedule a consultation by calling 610-430-3535.

Pennsylvania Points System: What You Need To Know

Getting a traffic ticket in West Chester, Pennsylvania can be more than a minor annoyance. When you are found guilty of committing a moving violation, you will receive points on your record from the Pennsylvania Department of Transportation. The point system that is used in the state keeps track of your behavior while you drive. If you accumulate too many points, your insurance rates will increase. You can also have your driver’s license suspended when you have too many points or immediately for certain offenses. Getting help from an experienced traffic lawyer at DiCindio Law may help you to avoid accumulating too many points and getting a license suspension. If you depend on your ability to drive to get to work, to run errands, or to go to school, getting too many points on your driving record can cause major disruptions in your life.

Points and license suspensions in Pennsylvania

When you reach six points or more on your Pennsylvania driving record, you will be in danger of having your driving privileges suspended. The number of points that can cause you to lose your license will depend on your age and on the type of license that you have. If you have a commercial driver’s license, you may receive higher points and face an immediate suspension of your license for certain types of traffic citations.

Points for young drivers

If you are under the age of 18, PennDOT will issue a license suspension if you accumulate six points on your record or if you are ticketed for and convicted of driving more than 26 miles per hour above the posted speed limit. If it is your first license suspension, it will last for 90 days. If it is a second or subsequent suspension, it will last for 120 days.

Points for adult drivers

If you are an adult driver, your license will not necessarily be suspended when you accumulate six points on your driving record. Instead, you may have some alternatives available to you that depend on the number of times that you have accumulated six points on your record.

If it is the first time that you have accumulated six or more points, you will have the option of taking a written exam. As long as you take it and pass it within 30 days, your license will not be suspended, and two points will be removed from your record. If you fail to take the test and to pass it within 30 days of receiving the notice from PennDOT, your license will be suspended.

If you accumulate six or more points on your record for the second time, you will have to attend a hearing. A PennDOT hearing officer will decide whether your license should be suspended for 15 days or whether you will be allowed to take an on-the-road test to remove two points. If your license is suspended for 15 days, two points will be subtracted from your record after it is completed. Finally, the hearing officer can also choose not to take any action against you.

If you accumulate six or more points for the third time, you will have to go to a hearing at the department. The examiner will decide whether your license should be suspended for 30 days.

Several traffic tickets may result in an immediate suspension of your license, including the following:

  • DUI – Can result in a license suspension of up to 18 months
  • Driving 31 miles per hour over the speed limit – Can result in a 15-day suspension of your license
  • Accumulating 11 or more points on your driving record

If you accumulate 11 or more points, the length of your suspension will be determined by the number of times you have previously been suspended. If it is your first suspension, you will receive a suspension of five days per point. If it is your second suspension, it will last for 10 days per point. If it is your third suspension, it will last for 15 days per point. For all subsequent license suspensions, they will last for one year.

If you have received tickets in the past, you need to know how many points you have on your driving record. You can check with PennDOT to find out.

The point schedule

Traffic offenses have point penalties that depend on their seriousness. We have included some common types of moving violations and their point penalties below. To see a complete schedule, you can look at the Pennsylvania point system fact sheet.

Low-point violations

Low-point violations add fewer points to your record. Some examples of low-point violations include the following:

  • Not yielding to a pedestrian at a crosswalk – two points
  • Driving too fast for the conditions – two points
  • Failing to stop at a red light – three points
  • Failing to stop at a stop sign – three points
  • Tailgating – three points
  • Careless driving – three points
  • Speeding by six to 10 miles per hour above the speed limit – two points
  • Illegal u-turn – three points
  • Speeding by 11 to 15 miles per hour above the speed limit – three points

high-point traffic violations

Some violations are considered to be serious and add higher point penalties to your record. Some examples of high-point traffic violations include the following:

  • Not stopping at a railroad crossing – four points
  • Hit-and-run accident that causes property damage – four points
  • Speeding 16 to 25 miles per hour above the speed limit – four points
  • Speeding 26 to 30 miles per hour above the speed limit – five points
  • Speeding 31 miles per hour or more above the speed limit – five points
  • Not stopping for a school bus with flashing red lights – five points

If you receive a citation for a serious traffic offense, you will likely need to go to court to fight it.

Good drivers enjoy lower auto insurance rates

Accumulating points on your driving record can cause your insurance rates to go up. You can drop points from your record. If you drive for 12 consecutive months without having your license suspended and without committing another moving violation, three points will be removed from your driving record. If you can keep zero points on your record for 12 or more months, you will be treated as if you have never accumulated points.

Contact the DiCindio Law Firm

Most moving violations in Pennsylvania add points to your record if you plead guilty to them. Getting help from an experienced traffic law attorney at the DiCindio Law Firm might help you to secure a plea offer for a non-moving violation so that you do not add points to your record. An attorney may also help you to fight serious traffic offense charges to protect your driving privileges. Contact us today to schedule a consultation.

What Is Felony Drunk Driving / Felony DUI?

In Pennsylvania, most DUI cases are charged as misdemeanor offenses. However, the state passed a stricter law in 2018 that makes certain types of DUIs felonies. There are also circumstances under which other DUIs can result in felony charges. If you are facing felony charges resulting from a DUI, it is important for you to talk to a criminal defense lawyer at DiCindio Law as soon as possible.

The difference between a felony and a misdemeanor

If you are convicted of a misdemeanor DUI offense in Pennsylvania, the penalties that you might face will depend on the level of your charge. Pennsylvania grades its misdemeanor DUI offenses by your blood alcohol concentration. If you had a BAC of 0.08% to 0.099%, you will be charged with a general impairment DUI. If your BAC was 0.10% to 0.159%, you will be charged with a high BAC DUI. if your BAC was 0.16% or higher, you will be charged with a highest BAC DUI.

While the penalties for the high BAC and the highest BAC DUI convictions are more severe than they are for a general impairment DUI, they are still misdemeanors. For your first highest BAC conviction, you face jail time ranging from a minimum of 72 hours up to one year, a fine of $1,000 to $5,000, and other penalties. While these penalties are certainly serious, they are not nearly as severe as what you could face if you are convicted of a felony. A felony conviction can lead to substantial prison sentences instead of serving time in county jail. The fines for felony convictions are also more substantial, and a felony conviction can cause lifelong collateral consequences.

When can a DUI be charged as a felony?

Under the Pennsylvania Act 153 of 2018, the law that establishes Pennsylvania’s felony DUI offense, a DUI may be charged as a felony in some situations. You may be charged with a felony DUI when you have three prior convictions for a DUI at any level within the last 10 years. If you have two prior DUI convictions within the past 10 years and had a minor under the age of 18 in your car, you can also be charged with a felony DUI. This is when your BAC is at least twice the legal limit of 0.08%.

These are now third-degree felony offenses under 75 Pa.C.S.A. § 3803. Under Pa.C.S.A. § 15.66, a conviction for a third-degree felony can result in a prison sentence of up to 7 years.

DUI for an accident that causes serious injuries

If you are charged with a DUI for an accident that caused serious injuries to others, you may be charged with aggravated assault with a motor vehicle while under the influence of alcohol. This is charged as a second-degree felony under 75 Pa.C.S.A. § 3735.1. The maximum prison term for a conviction of a second-degree felony offense in Pennsylvania is 10 years.

DUI for an accident that causes a fatality

If you were driving under the influence of alcohol or drugs and cause an accident that results in the death of someone else, you may be charged with homicide by vehicle while under the influence. A conviction for this offense may be a second or a first-degree felony, depending on the circumstances. Under 75 Pa.C.S.A. § 3735, a conviction may be a second-degree felony that carries a minimum sentence of three years in prison up to 10 years in prison. If you are convicted of another DUI offense while your sentence for homicide while driving under the influence charge, the offense will be a first-degree felony. This may result in a sentence that has a maximum of more than 10 years. There are also different minimum sentences. You will face a minimum of five years in prison if you incurred one prior conviction while you were waiting to be sentenced. You may also receive consecutive sentences of five years each for each person who was killed.

Driving under the influence of alcohol or drugs is treated harshly under Pennsylvania law whether it is a misdemeanor or a felony offense. However, the stakes for you are much higher when you are charged with a felony for your DUI offense. If you are convicted of a felony, you may face a sentence of years in prison combined with substantial fines and a loss of your driving privileges.

Even after you have finished your sentence, you may face ongoing consequences for having a felony on your record. The collateral consequences of a felony DUI conviction could include having difficulty finding work, the loss of a professional license, inability to get security clearances, trouble finding an apartment, and humiliation. When you have the help of an experienced criminal defense attorney at DiCindio Law, you may be able to secure a more favorable outcome to your charges. Fill out our online contact form today to request a consultation so that you can learn more about the options that might be available to you.

How to beat a DUI

How to Beat a Driving Under the Influence (DUI)  Case

     DUI/driving under the influence offenses are some of the most frequently charged criminal offenses in the Pennsylvania. When someone is charged with a driving under the influence (DUI) offense they may immediately feel a sense of hopelessness because their liberty, driving privileges and reputation may be impacted.  This article is not meant to highlight some of the main ways someone can challenge a DUI case.

     There are programs that may permit you to avoid conviction if you are a first offender. For second or third (plus) offenders there may be treatment court options or intermediate punishment programs. This article is solely meant as an overview of the  litigation points of attack that need to be evaluated in every DUI case. Also, this is not to say that there will ALWAYS be legitimate issues in the following categories – these are the issues that a defense attorney (any worth his/her fee) MUST evaluate before making a recommendation to his client in any DUI case.

     First – the legality of the of the stop: Before any law-enforcement officer may stop a motor vehicle in Pennsylvania they must possess either reasonable suspicion or probable cause. Therefore, the first battle ground in any DUI case is whether or not the arresting officer possessed the needed legal justification to pull over and/or come into contact with the driver of the vehicle.  In these situations if the stop is found to be illegal/unconstitutional then all of the evidence that flows from it will be suppressed. If the stop is suppressed than the case must be dismissed.

West Chester Criminal Defense Lawyer

West Chester Criminal Defense Lawyer

     Second –  whether the officer possessed the requisite legal justification to take the driver individual for a chemical test of their breath or blood: Observations, field sobriety tests, defendant admissions, portable breath tests and more play into this evaluation. There are times where there is not the requisite legal justification to take an individual for further/formal chemical test of their breath or blood.  When that is the case the results of the chemical test are suppressed and not permitted into evidence.

     Finally – issues that may present themselves at trial: These issues typically involve two main categories outside of what has already been addressed.  One of the main issues at trial is the factual argument that an individual was not driving. That is not always a defense that is available to him/her for obvious reasons.  Another argument is based upon the scientific accuracy of the chemical tests of the breath/ blood.

     There are many other arguments and defenses that may present themselves in DUI case.  Each and every factual scenario is unique and this is not an exhaustive list by any means.  Before making any decision in any criminal DUI / driving under the influence case – at a very minimum, these issues should be examined, evaluated and understood before deciding on a strategy.


The above listed information does not include the entire crimes code, annotations, amendments or any recent changes to the law that may be relevant. The information provided is for informational purposes only and may not reflect the most current legal developments or the most complete legal issues for all cases 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.