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

Are they credible? IMPEACH THE WITNESS! Prior Convictions and credibility…

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Contact West Chester criminal lawyer Michael DiCindio, Esq. to discuss your case today

The trial binder is complete, the opening ready, the closing prepped and the jurors are in the jury box.  It is time now to go through the process our justice system calls a trial.  Both sides have a chance to present evidence – through the form of documents, exhibits and most importantly and commonly – witness testimony.  But how are we able to show the jury that certain witnesses may not be credible? That some witnesses just shouldn’t be believed?  Among many other things, one great way to attack a witness’s credibility is to elicit evidence of their prior convictions. But is it all of their prior convictions that we should/could introduce?  No.  Why?  Because the crimes that Pennsylvania law permits for impeachment directly correspond with honesty.  A good trial attorney will not miss a chance to attack a witness with an applicable conviction when they take the stand.

Under Pennsylvania Rule of Evidence 609(a) an attorney may attack the credibility of any witness, including the defendant with evidence that the witness has been convicted of a crime if it involved dishonesty or false statement. Pa. R. Evid 609(a). Therefore, under Pennsylvania Rule of Evidence 609(a) they shall be admitted to impeach the credibility when a witness chooses to, or does, testify at trial. See, Pa. R. Evid. 609(a

A prior crimen falsi conviction is per se admissible for impeachment purposes if the later of either the conviction date or the last day of confinement falls within 10 years of trial. See, Pa. R. Evid. 609; see also, Commonwealth v. Trippett, 932 A.2d 188 (Pa. Super. 2007).

When a prior conviction is older than 10 years old, that does not end the inquiry as to admissibility.  They are per se admissible when the last date of confinement was within the past ten years.  The Pennsylvania Supreme Court has held that a crimen falsi conviction may be used to impeach the credibility of a witness if he has been confined for that conviction within ten years, even if the incarceration was due to recommitment for a parole violation. Commonwealth v. Jackson, 585 A.2d 1001 (Pa. 1991) (emphasis added).

Further, when there is confinement within the past ten years, it is not necessary for the trial court to engage in a case specific balancing inquiry as to admissibility. See, Commonwealth v. Jackson, 561 A.2d 335 (Pa. Super. 1989) affirmed, 585 A.2d 1001 (Pa. 1991).

Being a trial attorney takes skill, common sense, determination, and knowledge of the law.  Being effective on cross examination is no different.  When a witness has a crime of dishonesty on their record – a skilled trial attorney will know how and when to properly impeach their credibility.


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 DiCindio 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

 

Use and Abuse of Leading Questions: What are they and when are they allowed?

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Contact West Chester criminal lawyer Michael DiCindio, Esq. to discuss your case today

Then you ran away?

My client never injured you?

This was the only contact you had with him, correct?

Everyday, in criminal courts across Pennsylvania, there is a fine line that is walked with what each lawyer believes is a “leading” question.  Before getting into court and litigating a matter, any matter, it is important for an attorney to understand what a leading question is and when it is permitted to be used.  The following should give a brief overview of the concept of “leading” a witness – and shed light on what kinds of questions are to be viewed as leading questions.

Under Pa. Rule of Evidence 611(c) the times that counsel may ask leading questions are delineated. The rule states:

“Leading questions should not be used on the direct or redirect examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party or a witness identified with an adverse party, interrogation may be by leading questions; a witness so examined should usually be interrogated by all other parties as to whom the witness is not hostile or adverse as if under redirect examination.”

 Pa. R. Evid. 611(c)(emphasis added).

A leading question, as defined by the Pennsylvania Supreme Court, is one which puts the desired answer in the mouth of the witness. Com. v. Chambers, 599 A.2d 630 (Pa. 1991) citing Com. v. Dreibelbis, 426 A.2d 1111, 1116 (1981). The language of Rule 611(c) regarding the use leading questions when questioning one’s own witness is to be liberally construed. Chambers, 599 A.2d 630. The Pennsylvania Supreme Court held that it is within the discretion of the trial court to govern when leading questions may be permitted in order to “permit parties to elicit any material truth without regard to the technical considerations of who called the witness.” Chambers, 599 A.2d 630 at 640, citing Commonwealth v. Deitrick, 70 A. 275 (Pa. 1908). This discretion does not have a defined limit, but rather is to be exercised and limited by the interests of fairness and justice on a case by case basis. Chambers, 599 A.2d 630 at 640.

The trial court has wide discretion in controlling the use of leading questions. Com. v. Lambert, 765 A.2d 306 (Pa. Super. 2000). This wide discretion will not be disturbed on appeal absent a clear abuse of the discretion afforded to the trial court. Commonwealth v. Jones, 487 Pa. 183, 185, 409 A.2d 25, 26-27 (1979); Commonwealth v. Chmiel, 777 A.2d 459 (2001); Commonwealth v. Reidenbaugh, 282 Pa.Superior Ct. 300, 422 A.2d 1126 (1980); Commonwealth v. Guess, 266 Pa.Superior Ct. 359, 404 A.2d 1330 (1979).

Pennsylvania law has recognized numerous times when leading questions during direct examination are permitted. Commonwealth v. Reeves, 267 Pa. 361, 110 A. 158, Pa., December 12, 1919 (When a party is surprised by a witness unexpectedly turning hostile); Com. v. Lambert, 765 A.2d 306 (Pa.Super. 2000)(When a witness is hostile, proves to be hostile or the party calling the witness is surprised by testimony of the witness inconsistent with prior statements);   Com. v. Tavares, 555 A.2d 199 (Pa. Super 1989)( on direct examination when there is difficulty in getting direct and intelligible answers); Commonwealth v. Smolko, 666 A.2d 669 (Pa. Super 1992)(the victim is unable to communicate due to a disease which only allows for limited communication, such as only being able to raise either a left or right arm to answer yes or no); Commonwealth v. Polston, 616 A.2d 669 (Pa. Super 1992)(when questioning a child witness because they are generally easily intimidated in a courtroom setting); Katz v. St. Mary Hosp., 816 A.2d 1125 (Pa.Super. 2003)(when leading questions are needed due to the length and complexity of the testimony as long as the elicited responses are of information that would have been admissible despite the leading format); Ward v. City of Pittsburgh, 44 A.2d 553 (Pa. 1945)( Where a witness has a speech affliction which prevents him or her from speaking in the usual manner); Fish v. Gosnell, 463 A.2d 1042 (Pa.Super. 1983)(if solely an isolated leading question); Com. v. Smith, 115 A.2d 782 (Pa.Super 1955)(When a witness is reluctant to testify); Pennsylvania Labor Relations Bd. v. Butz, 192 A.2d 707 (Pa. 1963)(if the use of the leading questions does not affect the substance of the direct evidence, i.e. it was not viewed as less credible just because the testimony was elicited through leading questions); Commonwealth. v. McLean, 1995 WL 632696 Pa.Com.Pl. (1995)(to refresh a witnesses recollection or jog their memory outside of the presence or hearing of the jury).

It is well settled that the mere fact of a question requiring, or suggesting, a yes or no answer does not automatically make the question leading. Waltosh v. Pennsylvania R. Co., 259 Pa. 372, 103 A. 55 (1918); Foster v. Sol Greisler & Sons, 29 A.2d 103 (Pa. Super 1942). The United States Supreme Court noted that in deciding whether a question is leading is a question of form. The Court, in a footnote, discussed seven of seventeen “plainly leading” questions that were asked by counsel. This was done by quoting the phrases which made them leading. Of the seven “plainly leading” questions referenced in footnote 11 of Ohio v. Roberts four of them are what would be called “elliptical” interrogatories that take the form of statements. Elliptical interrogatories are questions in which the verb, and at times the subject, is removed, and the intonation is such that it suggests a “yes” or “no” answer. The footnoted stated:

“No less than 17 plainly leading questions were asked, as indicated by phrases in counsel’s inquiries: “is[n’t] it a fact . . . that”; “is it to your knowledge, then, that . . . ”; “is[n’t] that correct”; “you never gave them . . . ”; “this wasn’t then in the pack . . . ”; “you have never [not] seen [discussed; talked] . . . ”; “you never gave. . . . ”

 Footnote 11, Ohio v. Roberts.

While Ohio v. Roberts was later overruled by the Crawford v. Washington, 541 U.S. 36 (2004) decision on other grounds, footnote eleven is support for the modern trend of allowing cross-examination to take the form of elliptical questions; questions that express interrogatory emotion to the witness through inflection and intonation, rather than by words alone. It must be remembered, that while on paper these questions do not always read as interrogatories, when conveyed in court they are expressed and understood as such.

How evidence is elicited from a witness on the stand is crucial to how it is perceived and understood by the Judge and Jury, alike.  Knowing these rules and the principles involved in them can give any trial lawyer the added benefit of understanding when to use leading questions and how to do so effectively.


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 DiCindio 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.