What Counts as Domestic Violence in Pennsylvania?

This week’s podcast is going to be all about domestic violence cases uh and PFAS because they really bleed into each
0:2626 secondsother a lot. uh and there’s a lot of crossover there when it comes to uh the not only relationships but uh the
0:3434 secondseffects that it can have on each side of it both the criminal charges and if there is a PFA which stands for protection from abuse uh as well and a
0:4343 secondslot of times what we see in domestic violence cases is there is uh interesting dynamics between the relationships in the parties both the
0:5151 secondsdefendant and the victim right a lot of times this is a husband and a wife or a boyfriend and a girlfriend or just
0:5858 secondslive-in partners, uh, what have you. Uh, but what we’re seeing is sometimes the interests or the wishes of both the
1:051 minute, 5 secondsdefendant and the victim change over the course of the case. So, what we’re going to try to unpack for you guys today is
1:131 minute, 13 secondsinformation about what is important for both defendants in these criminal cases to know, which a lot of times we end up defending, but also victims who are
1:221 minute, 22 secondsinvolved in domestic violence cases, and what’s what is it important for them to know and how to protect themselves and uh when their interests may uh change
1:301 minute, 30 secondsthroughout the life of the case. uh what may need to be done or or what can be done uh with their wishes as they may
1:371 minute, 37 secondsmodify over that that case. So first and foremost what is important is you know first what qualifies or what counts as
1:461 minute, 46 secondsdomestic violence. Um so I’m going to kick it over to you Justin here to start us off with that. Just kind of walk me through what is domestic violence exactly and what qualifies for that.
1:561 minute, 56 secondsAbsolutely. So there’s a I guess a common misconception not only here in Pennsylvania but just generally um when you say domestic violence like domestic
2:042 minutes, 4 secondsviolence in and of itself is the wording is not a crime right we don’t have a crime called domestic violence right uh
2:122 minutes, 12 secondsessentially prosecutors will file traditional criminal charges uh where the alleged uh victim has a qualifying relationship uh with the accused person
2:212 minutes, 21 secondsand normally what we see is spouses or former spouses uh dating or former or dating partners, uh parents who share a
2:292 minutes, 29 secondschild, household or family members. Uh so essentially, you know, it can be you can even have it, you know, father and son or father daughter, mother daughter,
2:372 minutes, 37 secondsmother son, right? So the charges themselves are actually could be the same as a non-domemestic violence type of crime like simple assault.
2:472 minutes, 47 secondsAbsolutely.
2:472 minutes, 47 secondsStrangulation, harassment, stalking. Uh but they’re they don’t get an aggregator necessarily because they’re domestic
2:562 minutes, 56 secondsviolence, but they’re treated differently because they’re domestic in nature. Right. Absolutely.
3:013 minutes, 1 secondThey do get a sentencing enhancement though on the guidelines for domestic violence under the eth.
3:053 minutes, 5 secondsThat that is actually correct. And may maybe I kind of m misconstrued that. You’re right there. There Tim is right.
3:113 minutes, 11 secondsThere is actually a sentencing enhancement for just being domestic violence when it comes to sentencing if someone’s convicted.
3:173 minutes, 17 secondsCan I add something too to the definition? So the definition I think is under title 23 and there’s a definitions
3:233 minutes, 23 secondsof like family and household members and and Justin defined everything that was in that statute. But with dating
3:303 minutes, 30 secondsspecifically the the main thing is is there a sexual or was there previously a sexual relationship. Yes.
3:363 minutes, 36 secondsSo for something like strangulation they have to prove that there was a sexual relationship there whether it’s current or former in order to for that to jump up to the felony.
3:463 minutes, 46 secondsIncluded in that definition is one we don’t see often which is consangenuinity which I think as Justin said is like parents children or any blood relative.
3:563 minutes, 56 secondsSo it could be more expansive than just your children. Absolutely.
3:593 minutes, 59 secondsAnd the other one the other weird word is affinity which is essentially a relationship through marriage. So like if if I assaulted my
4:074 minutes, 7 secondsin-laws that could also potentially be domestic violence.
4:104 minutes, 10 secondsRight. Right. And you know, pretty much outside of being an intimate partner, current or prior, household members
4:184 minutes, 18 secondsfalls a lot into that, right? We see that a lot too. Um, and that that would be, you know, maybe somebody you’re living with, but not necessarily dating.
4:254 minutes, 25 secondsYou know, that would obviously be your your children or in-laws might be living with you, but even if they’re not living with you, could still qualify as
4:324 minutes, 32 secondsdomestic violence. So when it comes to domestic violence, Tim, um that when the ch crime is charged and the the court
4:414 minutes, 41 secondsidentifies it as okay, there’s a domestic relationship here, that usually has an effect on bail conditions. Um differently from what it might be if
4:494 minutes, 49 secondsit’s just a violent crime where me and you were at a bar and we get in a fist fight, right? And we’re not necessarily domestic in nature, right?
4:564 minutes, 56 secondsUm so tell me a little about what the bail conditions might look like for a domestic crime of violence. Very often
5:035 minutes, 3 secondswhat we see is there will be a no contact order. That’s usually the main one. And and that jump in there. You’re
5:105 minutes, 10 secondsright. That is big and I want to talk about that specifically a lot here because as it relates to how we may later need to modify the
5:185 minutes, 18 secondsbail. But before I get into that, I do tell us a little bit about other things that might come up with um uh domestic violence crimes. But then we are going
5:275 minutes, 27 secondsto go right into the the bail modifications that we sometimes have to file for our clients. Right. Um, so in some extreme cases, a person probably
5:365 minutes, 36 secondsthe defendant it could be removed from the home. Um, I’ve seen some cases where the defendant they’re maybe there’s a
5:435 minutes, 43 secondsdivorce or there’s an ongoing separation and so they’re living in different parts of the home and that can be accounted for in the bail conditions with the understanding that they will not interact in various points in the home.
5:535 minutes, 53 secondsThey’ll stay kind of to their own respective wings of the home. Um, there may be provisions in there like getting a drug and alcohol evaluation, mental
6:026 minutes, 2 secondshealth assessments, anger management, batterers intervention is a big one as well that they’ll order at a prelim.
6:086 minutes, 8 secondsThey’ll say, you know, you’ve got to do a batter’s intervention course. And that’s pretty common, I think, for people who are incarcerated. If they’re
6:166 minutes, 16 secondsincarcerated on bail and they’re not going to be let out, that will be added sometimes as a condition. And then they can either do
6:246 minutes, 24 secondsthat in the prison because it’s offered in the prison or potentially they can be parrolled to do it down the line. But generally the expectation is that they would do it in the prison.
6:336 minutes, 33 secondsYeah. And that’s specifically ordered for people in the prison because if it’s not ordered it won’t happen. Right.
6:406 minutes, 40 secondsRight. Whereas people who are released on bail a lot of times it won’t be ordered. But we still have our clients a lot of times get set up on that
6:476 minutes, 47 secondsproactively because that’s huge to actually it’ll be part of the sentence. Yeah. Yeah.
6:516 minutes, 51 secondsSo, it could be either something we do in advance to sweeten the pot to have the uh charges maybe reduced or to have
6:586 minutes, 58 secondsa a non-jail resolution or sometimes it will be included in the offer. Maybe their guidelines only call for probation, but maybe the Commonwealth is
7:067 minutes, 6 secondsagreeable to dropping a charge, but the the batter’s intervention will be a condition of probation.
7:117 minutes, 11 secondsRight. Yeah. Guys, a lot of times, I mean, we’ve talked about this in pretty much all our podcasts that we’ve done.
7:177 minutes, 17 secondsWhen we’re representing a client, it is very important for us to identify on the front end what can we have our client
7:237 minutes, 23 secondsengage in proactively early on, which is going to put us in a position to have a far better negotiation with a prosecutor
7:327 minutes, 32 secondsdown the road because we took the action on our own instead of waiting for the court to force it down your throat or to make you do it. And that goes miles when
7:417 minutes, 41 secondsit comes to resolving cases. Plus, I mean, let’s be real about it. It also just helps the person and maybe even the
7:497 minutes, 49 secondsrelationship. If the people are ultimately going to try to resolve things, get back together, it’s going to help the person build a better relationship to get to that point. And
7:577 minutes, 57 secondsthose are the types of things that the prosecutor is seeing as well. And that’s why it matters so much to do it early and out of the gate. You never ever want
8:058 minutes, 5 secondsto stick your head in the sand. You want to get an attorney early so you’re doing the right stuff and you’re pinpointing exactly what you need to do as early as
8:128 minutes, 12 secondsfeasible. Uh Justin, I want to go to you here to talk about, we were talking about it there with Tim a little bit, bail modifications, right? And these come up a lot in in uh domestic cases.
8:238 minutes, 23 secondsLike I find myself filing bail modification petitions either at the magistrate court if the case is still down there or at the court of common
8:308 minutes, 30 secondsplease if it’s up top. And a lot of times the purpose with that has some idea in mind as to what we want to do after we get the modification, right?
8:398 minutes, 39 secondsAnd what that looks like. So, and we usually need to kind of explain that to the judge to get it. So, tell me a little bit about a bail modification in this case. Yep. So, essentially, if
8:488 minutes, 48 secondswe’ll start at the MDJ level, uh if we’re doing it down there, most of the time we’re going from uh no contact whatsoever to no abusive contact. It’s
8:578 minutes, 57 secondsvery rare that uh a no contact order would be modified to, you know, allow full contact, no holds bar, we’ll say.
9:049 minutes, 4 secondsRight. And let’s let’s just not pretend here though that a lot of times the judges will modify it to no abusive contact, but that’s the law anyway. Yes.
9:149 minutes, 14 secondsLike like you’re not supposed to have abusive contact with anybody, let alone your domestic partner. Absolutely.
9:189 minutes, 18 secondsSo, I mean really what that’s saying is just be a good boy or a good girl and just don’t violate the law as it currently stands. But it’s putting that
9:269 minutes, 26 secondskind of extra layer there. So if they do violate it, not only did they break a law again, but they are violating their bail and can be called to the table.
9:359 minutes, 35 secondsAbsolutely. Um and I think you know part of why we try to do that uh a lot of these uh DV cases that we see uh you
9:429 minutes, 42 secondsknow they start after an argument people are in the heat of the moment something happens and uh whoever the alleged victim would be uh whether it’s the male
9:509 minutes, 50 secondsor the the female uh party you know they it’s almost like they regret it after you know calling the police and now somebody has you know felony charges or
9:589 minutes, 58 secondsmisdemeanor charges and they’re like oh you know I didn’t want this to happen.
10:0110 minutes, 1 secondUm, and there’s definitely, you know, a dynamic there that we want to be cognizant of and and make sure that, you know, we’re not putting anybody in harm.
10:0910 minutes, 9 secondsSo, we get people into treatment, uh, when we go from the no contact to no abusive, however you want to put that, we can get people in marriage counseling
10:1710 minutes, 17 secondsor couples counseling, uh, to hopefully fix that underlying issue that, you know, brought them here in the first place. Yeah. Yeah. No, absolutely. Right on.
10:2510 minutes, 25 secondslike that is such a big deal cuz you can’t do any of that marriage counseling or couples counseling if the bail
10:3410 minutes, 34 secondsrestricts you to have contact with this person. So, a lot of times the pitch to the court is, hey, you know, these people called the police, things got heated,
10:4210 minutes, 42 secondsthey needed to get some help. um you know, they had to, you know, have police intervention, but they still love each other and they’re still trying to work
10:5010 minutes, 50 secondson their relationship and they want to move forward in a positive way, but your current bail condition says they can’t. So, in order for us to do
10:5810 minutes, 58 secondsthat, we have to modify the bail to get them into the right counseling. And again, this is also a proactive step that we’re taking to help our client
11:0611 minutes, 6 secondswith negotiations later and also to help their relationship. And I think the courts understand that and seem to be receptive to that most of the time.
11:1311 minutes, 13 secondsYeah. And I think you know a lot of uh these issues that arise in a lot of domestic situations it’s going to be alcohol controlled substances you know
11:2211 minutes, 22 secondsthere’s mental health uh those just like all types of crimes are are very big underliers in what leads to these
11:2911 minutes, 29 secondssituations uh evolving and uh not only you know getting both parties help um with a couple’s counseling or marriage
11:3711 minutes, 37 secondscounseling whatever you may have um we want to get you into treatment early especially for mental health drug and alcohol. With the drug and alcohol, I
11:4511 minutes, 45 secondswill say this. Um, I didn’t really pay attention or maybe notice this as much when I was in the DA’s office. Uh, we handled, I would say, more of a limited
11:5311 minutes, 53 secondsnumber of DV cases and not most of the serious ones. That’s what the domestic violence unit here in, uh, York is for.
11:5911 minutes, 59 secondsUm, but in a lot of these cases since, you know, coming back to defense, both parties have drug and alcohol issues or
12:0612 minutes, 6 secondsboth parties have alcohol issues or both parties have mental health issues. Uh, it’s not usually just one. It’s it’s um you know together.
12:1412 minutes, 14 secondsYeah. No, that’s so true. And I I can’t tell you how many times I have a DV case come in here and
12:2112 minutes, 21 secondssometimes it’s even the victim that calls me to represent the defendant, right? Because they just called the police that night because they thought
12:3012 minutes, 30 secondsthat by doing so they were going to get this situation to stop.
12:3312 minutes, 33 secondsYes. But as we know, when somebody is calling the police, whether it’s a neighbor who hears yelling and screaming or even the victim themselves who just wants the
12:4112 minutes, 41 secondsintervention to stop, 10 times out of 10, nine.9 times out of 10, that person, somebody is being charged in that situation in a domestic case.
12:5312 minutes, 53 secondsAbsolutely. I think like you said the law. Yeah.
12:5512 minutes, 55 seconds10 out of 10 times, especially I know here in York County, obviously this is where we practice the most. Um if police get called out to a domestic situation,
13:0313 minutes, 3 secondssomebody’s usually going out of there in cuffs. Um and that’s another big, you know, misconception that a lot of people have that haven’t really interacted with
13:1213 minutes, 12 secondsthe police or or been through the system or um been a victim of DV before. You call the police to you think it’s going to diffuse the situation. Um again,
13:2113 minutes, 21 secondssomebody’s getting arrested, someone’s getting charges. It’s almost never that you see police show up to a domestic hall and it’s like, well, I just wanted
13:2913 minutes, 29 secondsthem to leave. you know, that that’s what we hear all the time. We just I just wanted him to leave. I wanted her to leave. However, they’re leaving, but it’s going to be in handcuffs and they’re going to have charges.
13:3813 minutes, 38 secondsWhich brings up, I think, a point that has to be said because obviously the the perception in society for domestic violence has changed, especially in the last 10 years.
13:4813 minutes, 48 secondsYeah, I’m glad I’m glad you’re bringing this up, Tim. Tell us about that.
13:5113 minutes, 51 secondsSo, I mean, there was a time, I think, where domestic violence really was not taken all that seriously in certain places. that has changed and now all of
13:5913 minutes, 59 secondseverything that society has done, all the structure that’s in place requires officers to take every domestic violence allegation seriously. They have to treat
14:0814 minutes, 8 secondsit like someone is potentially in danger. And so the posture, I tell a lot of my clients, the posture starts way up here. And if we do the right things, we can we can take the temperature down.
14:2014 minutes, 20 secondsBut they have to do that. They’re doing their job by taking somebody out of that situation because as far as they’re concerned, they have to assume somebody could die tonight.
14:2914 minutes, 29 secondsThe thing that needs to be understood is that obviously there’s very legitimate domestic violence cases where that is the that’s proper. There’s also domestic
14:3814 minutes, 38 secondsviolence cases, as Justin’s alluding to, where someone’s calling the police be not because there is actually really any serious domestic violence issue or
14:4614 minutes, 46 secondsbecause there’s a real threat, but because they want the police to help them win an argument. And when you do that, you are opening a box that cannot be closed again.
14:5514 minutes, 55 secondsYeah.
14:5514 minutes, 55 secondsAnd that is a case that I think everybody in the entire system is frustrated with those cases. The police are upset because they go to the same
15:0415 minutes, 4 secondshouses over and over again to deal with the same drunk people fighting over and over and over again. So the police are upset.
15:1015 minutes, 10 secondsThe DAs get upset because they know the victim’s not cooperative and the victim’s not going to participate in the process. And this is a case that shouldn’t be on the docket, but it is.
15:1815 minutes, 18 secondsand it can’t resolve because you got a bunch of people who who won’t be reasonable with the system. Judges hate these cases. Juries hate these cases.
15:2815 minutes, 28 secondsSo, everybody wants to take domestic violence seriously. But what that means is that if it’s not a serious domestic violence case, handle it yourself. Don’t call the police.
15:3715 minutes, 37 secondsYeah. Yeah. I mean guys, this really comes down to for the few and some that are very serious and
15:4715 minutes, 47 secondsreally people need to be protected because people can die and we see that here in York, Pennsylvania. We see it with some regularity and they are very
15:5615 minutes, 56 secondsserious and nobody in this podcast in this room is trying to downplay the seriousness of what domestic violence can cause. But what this means is every
16:0516 minutes, 5 secondssingle one of these phone calls that goes to 911 for domestic violence is being treated like it’s the one where someone could die. Yes.
16:1316 minutes, 13 secondsUh and it’s all treated the same. And that’s why Yeah. And that’s why we’re seeing these major charges, felony level sometimes coming out of these domestic
16:2216 minutes, 22 secondsviolence cases that are prosecuted sometimes to the nth degree because someone called 911 because they were yelling at each other and they had an
16:2916 minutes, 29 secondsargument, you know. And the bottom line is guys, like Tim just told you, if that is your situation, have a level head.
16:3716 minutes, 37 secondsThink about what you’re doing because the end result could be something you absolutely do not want it to be and it could have major negative impacts on
16:4616 minutes, 46 secondsyour family, on your marriage, on your ability to even live in the same household with your children. So, please
16:5416 minutes, 54 secondsunderstand this. Like, if you need to call 911 for a serious domestic violence case, do it. But don’t call 911 just because your emotions are high and like
17:0217 minutes, 2 secondsTim said, you want to win an argument against your husband or your wife.
17:0417 minutes, 4 secondsThat’s not going to be helpful. And it really drains resources, too. Yeah. I mean, these police have very serious things they’re dealing with and they don’t need to be called out to
17:1217 minutes, 12 secondsthese little domestic violence situations all the time. When they’re big, they’re coming with the cavalry.
17:1717 minutes, 17 secondsBut the bottom line is they’re coming with the cavalry most every single time because of the big ones. Right. Well, I don’t mean to cut you off.
17:2417 minutes, 24 secondsYou’re good. Go ahead. But the point there that’s really important is that the police have to assume they’re stepping into a very serious situation as well
17:3217 minutes, 32 secondswhen they’re going to be on guard too, right? I mean, the last the last fatal police shooting we had was a domestic violence case. So like that that was an
17:3917 minutes, 39 secondsissue where you know they they don’t know what they’re stepping into. So put yourself in their shoes. If you’re upset because somebody punched a hole in the
17:4717 minutes, 47 secondswall during an argument and you’re calling the police about that, the police are going to show up and they’re going to they have to treat that like this is somebody who’s potentially an aggressor.
17:5717 minutes, 57 secondsAnd their posture coming into that home is going to be much higher than if they’re just showing up to Walmart to interact with somebody who’s alleged to have stolen some stuff out of the store.
18:0618 minutes, 6 secondsAnd that’s that’s kind of where I was going with it, too. you know, a lot of the cases, DV cases that I’ve had, uh, over the last 6 months or so. Um, almost
18:1318 minutes, 13 secondsevery single one, uh, I’ve represented, uh, obviously the defendant, but it’s usually the male party, almost every
18:2118 minutes, 21 secondssingle one when they call me or come to talk with me, they’re like, “Yeah, police showed up and essentially I was taken at gunpoint.” Um, you know, like
18:2918 minutes, 29 secondsTim said, you know, they have to take these, excuse me, very seriously.
18:3518 minutes, 35 secondsI’m sorry. Need a drink of water. Um, but they have to take him seriously because like Tim said, you never know what you’re going to walk into.
18:4118 minutes, 41 secondsYeah, absolutely. Well, that’s that’s all really important. And again, guys, I hope you heard us on that because we we want people to feel safe in their homes.
18:5118 minutes, 51 secondsLike, everybody does. If you’re a reasonable person in society, that’s what you want. Um, but again, the prosecutors, the police, everybody’s
18:5818 minutes, 58 secondsgoing to take this very, very seriously, even for the non-serious cases. So, guide yourself accordingly out there. uh protect yourself when you need to.
19:0619 minutes, 6 secondsProtect your family, but don’t waste resources when it’s not necessary, and don’t put police on major guard for
19:1419 minutes, 14 secondscases that are somewhat irrelevant. Um that is a major drain on the system for them. Uh okay. So, Justin, you mentioned this earlier. I just wanted to touch on
19:2219 minutes, 22 secondsthis before I move on. because of how serious domestic violence is and because it’s treated this way now. And Tim, you mentioned this, how the way society
19:3219 minutes, 32 secondsviews domestic violence now is a lot more heightened and different than it used to be. the district attorney’s office here in York County,
19:4019 minutes, 40 secondsPennsylvania, and I think in a lot of our surrounding counties, Dolphin County, Franklin County, Cumberland County, Adams County, Lancaster County
19:4719 minutes, 47 secondshere in Pennsylvania, they all a lot of times have specialized prosecutors and a specialized unit within the district
19:5519 minutes, 55 secondsattorney’s office that prosecutes domestic violence crimes. And they do that because of the amount of training it takes and the nature of what they
20:0220 minutes, 2 secondsneed to know to do these cases successfully. They are challenging cases a lot of times for the prosecution and because of what does happen and we’ve
20:1020 minutes, 10 secondsseen it, you know, happen here in New York, they’re going to react very seriously. And when I said before that the police are coming with the cavalry,
20:1720 minutes, 17 secondsyou can bet your buttons that the DA’s office is coming with the cavalry, too, on these DV cases. They’re going to have people that are high level. They’re going to have people that know what
20:2520 minutes, 25 secondsthey’re doing. They’re not going to be rookie prosecutors. So, something to keep in mind as well when you’re making that phone call to police for something that really isn’t that important and how
20:3420 minutes, 34 secondsyou’re going to be treated throughout the entire case. So, uh that said, let’s let’s kind of move on to like let’s assume, okay, we have a situation
20:4220 minutes, 42 secondssomebody has called the police. This could be a neighbor who heard yelling.
20:4620 minutes, 46 secondsThis could be a a husband or a wife in a fight or that’s being abused. This could be a child in the house that might hear mom and dad fighting and banging and all
20:5520 minutes, 55 secondsthat stuff and all this noise that scares them. So, there’s a lot of different ways that the police get called. I actually have a case right now where the husband and wife were arguing
21:0421 minutes, 4 secondsin their room and the children whose bedroom is down the hall never even went down and looked in the room and they weren’t even having a domestic fight,
21:1321 minutes, 13 secondsbut they thought they were. These are young kids and they they you’re betrayed. They’ve been told in school, you call 911 when you hear this stuff and you’re scared. So they call 911 and
21:2121 minutes, 21 secondsagain the cavalryy’s coming. Yeah.
21:2321 minutes, 23 secondsAnd now someone’s getting hauled away in cuffs and now this guy’s facing major charges that I have to represent him on and help him out with and fix for him.
21:3021 minutes, 30 secondsAnd you know it’s a big lift and uh we’re doing I think a pretty good job with it. But it all started with the kids calling the cops, right? So, I
21:3721 minutes, 37 secondsmean, another thing you guys might want to do is if you have a family, talk to your kids about situations and when things are important and when things 911
21:4721 minutes, 47 secondsneeds to be called. Have these family discussions that uh your children should be informed about so they know when they need to act appropriately.
21:5521 minutes, 55 secondsAnd if can I interject there too just kind of as like a PSA? I mean, when I was a when I was a teenager, I would throw things, right? like I would get
22:0422 minutes, 4 secondsupset like if I lost my video game or whatever, I’d smack the controller on the ground, lose my temper. But as a grown man,
22:1222 minutes, 12 secondsit was time to put those kinds of behaviors away. Yeah.
22:1422 minutes, 14 secondsAnd I can tell you that that I’ve never and I’m sure you guys have been like this. I’ve never thrown things around my wife. I don’t I don’t lose my temper that way. If you struggle with that,
22:2322 minutes, 23 secondsthere are resources that are available to you. you should use those resources because and I have very dear friends to me who I hear about the way they’ve kind
22:3122 minutes, 31 secondsof interacted in the course of arguments with their spouse and you know I’ve told I’ve told them like you you got to put these behaviors aside because you are
22:4022 minutes, 40 secondsasking for someone to get the police involved because it is aggressive behavior is at the bottom line I’m not when I made the comment about punching a
22:4822 minutes, 48 secondshole in the wall I’m not advocating for you to punch holes in your walls during arguments right so you know if you’re people have arguments, people raise
22:5622 minutes, 56 secondstheir voices. Those disputes sometimes are not easily resolved, but you should be mindful of how you’re interacting
23:0423 minutes, 4 secondswith your loved ones because you shouldn’t be just the kind of person who’s prone to temper tantrums and violent outbursts. You’re setting
23:1323 minutes, 13 secondsyourself up for for domestic violence charges.
23:1523 minutes, 15 secondsAnd you’re also not setting a good example for your children if you have children. Thank you for saying I mean, Tim, you bring up a really good point there, and I I really appreciate you
23:2323 minutes, 23 secondsinterjecting and saying that because you’re absolutely right, like, get yourself the help that you need before you find yourself in a legal situation
23:3123 minutes, 31 secondswhere you have to get the help. And I have clients all the time that say, “Man, I really needed these charges cuz it’s a silver lining. It it forced me to get the help.” Well, that might be true,
23:4123 minutes, 41 secondsbut if you would have got the help before you got the charges, you’d be in a lot better situation financially, mentally, you know, everything’s better.
23:4823 minutes, 48 secondsSo, if you do identify that or you identify that in your spouse, have a conversation. Get some help. I mean, honestly, if you’re in that situation,
23:5523 minutes, 55 secondsI’ll talk to you. Call me. I’ll talk to you. Tim will talk to you. Justin will talk to you. If you need some resources and you don’t even have a criminal case and you just want where do I go? Who do
24:0424 minutes, 4 secondsI call? We’ll spend 10 minutes on the phone with you and help you out with that. I mean, get the help ahead of time.
24:0924 minutes, 9 secondsAnd and I think some people are we talked to know that. And and there are people I’ve even interacted with people who maybe they’ve had some issues in the
24:1724 minutes, 17 secondspast. they went and they started doing therapy or they started doing counseling or something and and I’ve had some people tell me like, “I stopped doing
24:2424 minutes, 24 secondsthat and that’s when this thing happened, you know, I should have just kept up with it.” I’ve heard that several times recently where someone’s like, “I, you know, I
24:3224 minutes, 32 secondswas doing therapy or I was doing counseling and I should have stayed with it because it was helping and now I kind of lost control a little bit.” And it’s all types of counseling. It’s
24:4024 minutes, 40 secondsit’s drug and alcohol. It’s mental health. It’s it’s just marital counseling. Things like that, you know.
24:4524 minutes, 45 secondsAnd sometimes life just takes over and you forget what’s really important and then your life derails and you don’t even see it derailing, you know. So Justin, I want to jump over to you.
24:5324 minutes, 53 secondsWhen the police um come out to a domestic violence scene, like how do they normally engage with this scene? Because they do engage differently. Absolutely.
25:0225 minutes, 2 secondsThan maybe a different type of crime like Tim mentioned like a retail theft.
25:0525 minutes, 5 secondsThat’s a different type of engagement than this is going to be. So, how does this work with domestic violence? Yeah, I think the the main difference between
25:1325 minutes, 13 secondsDV investigations, we’ll say, or when police are called out to a a call for domestic violence, uh, immediately, like we’ve already talked about, they’re
25:2125 minutes, 21 secondsgoing to come in, you know, guns blazing essentially because they don’t know what they’re walking into. Uh, so they want to get the scene under control. First thing they’re likely going to do is
25:2925 minutes, 29 secondsseparate the parties. So, they’re going to identify who the people that are involved. Um, and they’re going to separate them. And that’s for a number of reasons. uh one if it’s been you know
25:3825 minutes, 38 secondsa heated argument or physical etc you need to you need to get those people away from each other before something else happens then essentially they’re
25:4625 minutes, 46 secondsgoing to you know start asking some questions you know are you willing to give a statement um and this is a lot of times and I’m sure we’ll unpack this in
25:5425 minutes, 54 secondsa little bit um but whoever the you know alleged victim of the domestic violence is they’re going to again ask them to give a verbal statement obviously if
26:0326 minutes, 3 secondsthey’re just talking to them it’s going to be on body camera but then we also see written statements. Um, yeah. And the whole separating people
26:1126 minutes, 11 secondsreally a lot has to do with the cops don’t know what they’re walking into, right? Is this a little argument or is this something where somebody is
26:1926 minutes, 19 secondsintimidated and might not feel comfortable talking in front of the other person candidly?
26:2426 minutes, 24 secondsUh, so that’s really why they’re going to separate you and that’s going to happen every every time. I mean, that’s legal. They can totally do that. There’s nothing wrong with them doing that. I
26:3226 minutes, 32 secondsmean, they’re intervening. They’re investigating. Um, and they’re they’re going to try to get a statement. If they can get a written statement, they’re going to get a written statement. Uh,
26:4026 minutes, 40 secondsthat’s kind of the gold standard. It is, but again, now they have the body cameras, right? So, now they’re actually going to the whole statement is going to be recorded anyway. I mean, how many
26:4826 minutes, 48 secondstimes have you been at a prelim and you’re like, the victim has changed their mind. They don’t want to proceed and the victim’s like, “Well, I never wrote any statement. You know, they
26:5526 minutes, 55 secondscan’t, you know, use my statement now.” Well, they can’t. Yeah. It’s on camera.
27:0127 minutes, 1 secondYou’re literally recorded saying what happened. and they’re going to play that and they’re just going to press play.
27:0527 minutes, 5 secondsYeah, I’d say, you know, in my experience, like I said, I haven’t handled a ton of very egregious or serious DV cases as a prosecutor. I’ve
27:1427 minutes, 14 secondshad, I think one or two of the cases I’ve handled, you know, since being back in defense have been pretty serious. Um, I’d say probably seven out of 10 times at a prelim of victims recanting.
27:2527 minutes, 25 secondsYeah.
27:2527 minutes, 25 secondsAt least here in York. Um, and you know, in some situations you see that it’s because, okay, they
27:3327 minutes, 33 secondsexaggerated maybe and it wasn’t um, you know, again, an egregious uh, situation.
27:3927 minutes, 39 secondsMaybe they were drunk and fighting and now again they called the police because they wanted them out of the house, whatever. Um, but you you see it a lot
27:4527 minutes, 45 secondstoo in in very serious cases because um, of what domestic violence does to a person. um you know they’re scared to
27:5227 minutes, 52 secondsleave and like we just talked about they separate them because maybe they’re not they don’t feel safe saying what happened in front of the other person.
28:0028 minutesNow you’re in a courtroom with them you know especially at the MDJ level some of those courtrooms are you know not even as big as this room. Yeah. They’re tiny.
28:0728 minutes, 7 secondsYeah. And so like you’re almost face to face with that person. Um and you know again people recan or uh will say you know that’s not what happened. But like
28:1528 minutes, 15 secondswe just talked about, if you gave a written statement or uh a verbal statement and it’s on uh body camera, they will be able to use that, especially at the prelim level. Yeah.
28:2428 minutes, 24 secondsYou know, get that through and then go from there.
28:2628 minutes, 26 secondsWell, we talked about it during the prelim episode. If if you’re a lot of times when they have you write a written statement or if it is on body cam, if
28:3328 minutes, 33 secondsit’s recorded and you’re making a statement, they can introduce that as substantive evidence against you at the prelim. So, a lot of And I just had a
28:4128 minutes, 41 secondscase recently where like the victim was acting like if she didn’t testify, the charges were going away. Well, that’s not true because they’re going to be
28:5028 minutes, 50 secondsyou’re going to be able to get up on the stand and they they can pull it out of you like pulling teeth and they can introduce your written statement at that
28:5728 minutes, 57 secondspoint and you don’t there’s nothing you can say at that point. They just can read your written statement in the charges are going forward.
29:0329 minutes, 3 secondsYeah. And I can say I mean like how many times do you guys think that you have seen a a victim say I don’t want to move
29:1129 minutes, 11 secondsforward anymore or or even better I’m not going to show up at the preliminary hearing and this is all going to go away. That is not how it works. Okay.
29:1929 minutes, 19 secondsThe other thing to be aware of public service announcement. Okay. If you’re a victim in a domestic violence crime and you do not want the individual to be
29:2729 minutes, 27 secondscharged, you want the charges to be reduced or go away, show up to the preliminary hearing and talk to the prosecutor. If you do not show up, they do not know what you want or don’t want.
29:3729 minutes, 37 secondsAnd they actually can issue a victim warrant for you and have the police come and haul you out of wherever you’re at
29:4429 minutes, 44 secondsand force you into court. Uh, which I literally have seen them do that. Like they do that here in York County sometimes. So do not think if I don’t
29:5229 minutes, 52 secondsshow up to court everything’s going away. That literally doesn’t work.
29:5729 minutes, 57 secondsPlease understand that public service announcement. If you are char or if you’re a victim and you want to have a voice in this one way or another, go to
30:0530 minutes, 5 secondscourt, tell them. They will talk to you privately and they will hear you out.
30:0930 minutes, 9 secondsThe prosecutors are trained to do that with victim witness coordinators and they will talk to you and they will listen to you. That doesn’t mean they’re going to automatically do what you want,
30:1830 minutes, 18 secondsbut they are definitely going to weigh heavily what you say or don’t say, but if they don’t know, they don’t know.
30:2530 minutes, 25 secondsOkay. So, Tim, were you going to say something?
30:2730 minutes, 27 secondsThat was what I was going to say just about the material witness warrant. I mean, I I had done that as a prosecutor several times. Yeah.
30:3230 minutes, 32 secondsAnd because if you don’t show up, they’re allowed. They’re empowered.
30:3630 minutes, 36 secondsYou’re a material witness warrant or a material witness to the case. They can seek an arrest warrant. You can have monetary bail set on you. And I I had it
30:4530 minutes, 45 secondshappen a couple of times. The one time the woman was picked up by the detectives at her her place of employment. They had to go get her kids,
30:5330 minutes, 53 secondsbring her into court because she was refusing to show up for like a grand jury proceeding. So don’t play around with that.
31:0031 minutesYeah. Yeah. Guys, again, just if you’re a victim in a crime and you’ve either called the police or you’ve made a statement or they’ve investigated and
31:0931 minutes, 9 secondsthey have evidence, you’re going to be subpoenaed to court. You need to understand that a subpoena is a legal order to appear. You need to go to that
31:1631 minutes, 16 secondshearing and you can have major implications if you do not. Plus, you’re probably going to have a better shot at getting what you want if you make your voice heard, be heard.
31:2731 minutes, 27 secondsHave you seen magistrates also holding people in contempt for refusing to show up or not showing up on time? I’ve seen that as well. And a contempt order, you can be in jail for up to six months.
31:3731 minutes, 37 secondsYeah. Yeah. I mean, again, guys, they treat these domestic violence cases differently. Um, okay. Another point I
31:4531 minutes, 45 secondswanted to touch on with this, and I want to kind of bounce this off you guys a little bit. Sometimes I have a victim come to me in a case who I’m
31:5331 minutes, 53 secondsrepresenting, the defendant, and say what I initially told the police is not true.
32:0032 minutesBut I’m afraid if I tell them that it’s not true now, the DA’s office or the police is going
32:0832 minutes, 8 secondsto charge me with crimes like making a false police report. And while that is possible, do you guys see that actually happening?
32:1832 minutes, 18 secondsAnd if not, why do you think that is?
32:2132 minutes, 21 secondsI would say very, very, very rarely. Um, when I was in the DA’s office, maybe once or twice. Um, yeah. And I think a
32:3132 minutes, 31 secondsbig part of that is like we talked about earlier again, there’s going to be people that kind of game the system and think they can just call the police and win an argument or get someone out of
32:3932 minutes, 39 secondsthe house because they’re both drunk and fighting. M um but like we talked about DV cases are much treated much differently and for good reason because
32:4732 minutes, 47 secondsagain in the statistics you know I don’t know any of them off the top of my head but it’s very likely if you’re involved
32:5432 minutes, 54 secondsin a domestic situation again the the likelihood of death or something serious happening is is just so much greater. Um
33:0133 minutes, 1 secondand I think you know if someone that’s charged with strangulation or commits a strangulation is 700 times more likely to actually kill someone. Um, which
33:1033 minutes, 10 secondsagain is just astronomical and it’s crazy. But because of this, you know, we don’t want to, or I shouldn’t say we, but the prosecution, uh, the DA’s
33:1833 minutes, 18 secondsoffices, they do not want to discourage people from calling the police.
33:2233 minutes, 22 secondsThat’s the key word. That’s I was going to hit on that if you didn’t say it.
33:2533 minutes, 25 secondsYeah. Um, guys, this really just comes down to the reason this doesn’t normally happen if somebody changes their story is really just comes down to the system.
33:3533 minutes, 35 secondsThe prosecutors do not want to, as Justin said, discourage other people from possibly calling the police if they
33:4333 minutes, 43 secondsthink they really need to. And if they go out and they start charging everybody who does this, cuz a lot of people do this, they’re going to discourage people
33:5133 minutes, 51 secondsfrom calling the police cuz they’re going to be afraid that they might get charged if they later want to change their story.
33:5633 minutes, 56 secondsSo, it really doesn’t happen a lot. I mean, not that I mean, not that it should or it shouldn’t. I I’m not going to judge that.
34:0334 minutes, 3 secondsI’m just saying in practice. I mean, Tim, did you want to add something?
34:0534 minutes, 5 secondsWell, I I was just going to say that one of the prosecutor’s offices that I worked for, their policy was that if if the allegations that were made initially
34:1334 minutes, 13 secondswere found to be unsubstantiated, they would not bring charges. Mhm.
34:1834 minutes, 18 secondsBut if you made if you fabricated the allegation, Yeah. they would bring charges.
34:2334 minutes, 23 secondsYeah. And that really comes down to like malice, right? Like if you’re doing this to get someone in trouble on purpose and that can be proven,
34:3134 minutes, 31 secondsthat is different from I really felt that I was a victim in a crime and I’ve just changed how I want to proceed. That
34:3934 minutes, 39 secondsis actually a lot of that that sometimes comes from a place of trauma and I think the DA’s office recognizes that
34:4634 minutes, 46 secondsthat a lot of these victims have been traumatized sometimes over and over and over and if they go ahead and just charge and charge and charge, they are literally adding to the tra the trauma.
34:5634 minutes, 56 secondsYeah.
34:5634 minutes, 56 secondsThat that person experiences. And I really think that’s one of the reasons that they for the most part don’t do it. Absolutely.
35:0235 minutes, 2 secondsAnd the discouragement, they don’t want to discourage it.
35:0535 minutes, 5 secondsAnd I had a case one time where a guy had the victim, I don’t know if he it was him that volunteered it, but the
35:1235 minutes, 12 secondsvictim wrote an affidavit and signed it basically saying that she had made the whole thing up. Mhm. Which is very ill advised.
35:1935 minutes, 19 secondsYeah. I remember this case. You were telling me about it. Yeah. You want to talk about that a little bit? Well, and I and I don’t know like the case is still ongoing, but I’m not I’m no longer
35:2735 minutes, 27 secondsinvolved in the case, but there were ethical considerations that I had initially because I was very concerned about the origins of this affidavit.
35:3635 minutes, 36 secondsUm, so, and Tim, just so people know, like who might not know, what is an affidavit? It’s a sworn statement. Yeah.
35:4235 minutes, 42 secondsThat this victim was making basically saying none of it happened. I made it all up.
35:4635 minutes, 46 secondsYeah. And a lot of times it’s it’s a written sworn statement that’s signed and a lot of times notorized by a notary. In this case, it was and so it
35:5435 minutes, 54 secondswas under other affirmation. So essentially what this victim had done is had put themsel in a position where they
36:0236 minutes, 2 secondswere in trouble either way. And now I’m I’m having to navigate this at the prelim because the my client did not
36:1036 minutes, 10 secondswant this this person to be in this position. Did not want consequences for this person, but this person made it so that either they made everything up and
36:1936 minutes, 19 secondsthey’re guilty of false reports or they have lied on the affidavit and they are guilty of perjury.
36:2636 minutes, 26 secondsSo this is a this is a quagmire. It’s best not to do stuff like that. I mean really truly,
36:3436 minutes, 34 secondsright? Like you said, I think your advice was the best. Show up to the prelim, have a conversation with the prosecutor about what your wishes are, and if something’s different or if you
36:4236 minutes, 42 secondsmisremembered something, be honest about that, but don’t come in and do something like that because you’re complicating the situation for everybody.
36:4936 minutes, 49 secondsYeah. And another takeaway, guys, that I want you to kind of understand is if you’re a victim in in a domestic violence case, do not be intimidated by
36:5836 minutes, 58 secondsthe prosecutors. Um, sometimes people say, “Oh, I just don’t like to talk to lawyers. I don’t want to talk to prosecutors. police scare me, whatever it might be. Again, sometimes that’s
37:0737 minutes, 7 secondsyour best medicine to get the outcome that you’re seeking. But you have to have a voice. You have you can’t totally clam up and be a person that won’t
37:1437 minutes, 14 secondsparticipate because it won’t help the end that is ultimately needed, whether it’s good for the defendant, bad for the defendant, good, bad for you. Have a
37:2237 minutes, 22 secondsvoice, say your piece, whatever it might be. Uh and the prosecutors again are trained, the ones that do these cases to
37:2937 minutes, 29 secondshear that and not cause further trauma to you. They are they are um they have victim witness coordinators that will work with you directly and there are
37:3837 minutes, 38 secondsresources there to help. So please be aware of that. And I I think that’s kind of another public service announcement for victims of crimes. Like don’t be
37:4537 minutes, 45 secondsintimidated by the system. Um the system is there actually to to in a way serve you and you should participate. And if you clam up, the prosecutor’s knee-jerk
37:5437 minutes, 54 secondsreaction is you are a a chronic victim of abuse. They look at that and often will think this is a person who is in
38:0238 minutes, 2 secondsthe cycle of abuse and will not effectively advocate for themselves.
38:0638 minutes, 6 secondsThat’s actually something that increases that heightens their posture and they show up with a voice.
38:1238 minutes, 12 secondsYou can take the lead and say, “Look, this wasn’t this was a one one and one and done thing. I just want this person to get help. The drinking is a problem.
38:2038 minutes, 20 secondsI need them to get drug and alcohol treatment. You know, if you if you clearly communicate that stuff to the prosecutor, I think the prosecutors tend to look at that and think, “This
38:2838 minutes, 28 secondsperson’s put together. They know what they want, and I can be confident that this isn’t going to explode if I put this person back in that situation,
38:3538 minutes, 35 secondsright?” It actually makes it worse for the defendant if the prosecutor views that person who is chronically traumatized by domestic violence because
38:4438 minutes, 44 secondsthey look at the defendant then and go, “You know what? we might have to treat this a bit more seriously cuz either this guy is getting this person not to appear which is really scary for them.
38:5538 minutes, 55 secondsUh or this person is so traumatized that they don’t want to appear. Correct.
39:0039 minutesUm so both of those are really really bad if you’re a defendant and that is how it is translated for the prosecutor.
39:0739 minutes, 7 secondsSo okay Justin I want to um come to you here. Uh can you tell me a little bit about like the regular I guess I guess
39:1539 minutes, 15 secondswe can say uh domestic violence crimes that we see like what are they and what do they mean cuz some of them have unique definitions that I think a lot of people don’t realize.
39:2539 minutes, 25 secondsYeah. I think one of the the biggest ones that we see is going to be strangulation and I think that’s one of the more
39:3239 minutes, 32 secondsfresh charges we’ll say here in Pennsylvania. It’s not been around forever. Um yeah only last few years.
39:3739 minutes, 37 secondsYeah. But essentially, it’s knowingly impeding another person’s breathing uh or blood circulation by applying pressure to the neck or blocking the
39:4539 minutes, 45 secondsnose or mouth. Uh domestic uh strangulation uh is usually a felony of the second degree. It can be a felony
39:5339 minutes, 53 secondsthe first uh degree if they have a uh prior uh conviction or if there is an active PFA. Um and it doesn’t require
40:0240 minutes, 2 secondsany visible injuries. It does not require loss of consciousness. It can be honestly momentary. Mhm. Um yeah, I I wanted I’m I’m glad you said
40:0940 minutes, 9 secondsthat word. Tell me about that. I mean, when you say what can be momentary?
40:1440 minutes, 14 secondsOh, u the uh impeding the breathing or uh circulation, uh it it doesn’t have to be for, you know, 10 seconds, 30
40:2240 minutes, 22 secondsseconds, 40 seconds. There’s no time limit that I’m aware of. Um if it’s more than, you know, really I guess it could be a second really.
40:2840 minutes, 28 secondsYeah, it can be less than a second. Um, and I just want to jump in here because a common uh
40:3540 minutes, 35 secondsum thing that I kind of as an example use because people when they come into their my office, our office, and they say, “Hey, I’m charged with
40:4240 minutes, 42 secondsstrangulation. I never strangled her.” I think what they’re thinking is, and guys, I I was born in the 80s. I grew up in the 80s and 90s. So, for those of you
40:5040 minutes, 50 secondsin that timeline, and maybe even outside of that timeline, you’re going to you’re going to understand this. You ever watch the Simpsons? Uh, Homer Bart Simpson
40:5740 minutes, 57 secondsstrangler strangulation. That is obviously strangulation, but it doesn’t have to be that. And it doesn’t even have to be close to that.
41:0641 minutes, 6 secondsLike it literally can be, as you said, Justin, momentary. And the police are trained in their investigation, which we
41:1441 minutes, 14 secondstalked about a moment ago, they know that. Yes.
41:1641 minutes, 16 secondsAnd then when they talk to the victim, the victim doesn’t always know that piece of the law. They’re going to ask, “Were you even momentarily going to pass
41:2541 minutes, 25 secondsout? Did you feel like you were getting laded? Could you breathe? Did you Were you restricted breathing even for a little bit? Like they’re gonna be most cases. What’s that?
41:3341 minutes, 33 secondsIt’s going to be most cases where it’s momentary. Yeah. Most cases. Yeah. I would say almost everyone I’ve seen is I mean every once in a while you get the really violent ones, but
41:4141 minutes, 41 secondsfor the most part they’re momentary and they’re charged, man. That’s a felony too. Bang right there.
41:4541 minutes, 45 secondsYeah. And I think with the strangulation like we talked about, you know, there’s it doesn’t require any visible injuries or loss of consciousness, but um a lot
41:5341 minutes, 53 secondsof times, especially on, uh um people that have been drinking, uh you know,
42:0042 minutesyou can see where uh what do they call almost not like a bruise, but you know, they can see the redness, the redness, cuz all your blood’s
42:0742 minutes, 7 secondsflushing, right? um uh in police in these situations that they’re going to take statements, they’re going to take photos if they notice any of that
42:1442 minutes, 14 secondsredness, bruising, uh voice change, um from, you know, again, your your throat essentially being uh crushed in. Um
42:2442 minutes, 24 secondsthat’s all evidence that is going to be very damning.
42:2742 minutes, 27 secondsUm so, it’s definitely something to think about. Um and again, like we talked about, people that actually strangle another person um are often the
42:3442 minutes, 34 secondsmost violent. uh and it can lead to again I think it’s 700% more likely to commit a homicide or or kill that
42:4242 minutes, 42 secondsperson. Um but like we also talked about there are very I don’t want to say
42:4942 minutes, 49 secondsI guess light strangulation in the sense of you know incidental is probably the word you’re looking for. there’s already a a tussle happening and somebody just their hands
42:5842 minutes, 58 secondshappen to be and you can see I mean strangulation can happen in a a bear hug/ headlock situation you know
43:0643 minutes, 6 secondslike I see them a lot there too where like a husband and a wife or a boyfriend or girlfriend or whatever they’re like wrestling kind of you know they’ve
43:1443 minutes, 14 secondsbecome physical and an arm might go up to you know the throat or the neck area and then the police asked you know you were on the
43:2143 minutes, 21 secondsground could you breathe and they well I was it was a little hard to breathe at that Oh, strangulation.
43:2643 minutes, 26 secondsI get strangled like all the time when I’m roughousing with my kids. Yeah, my tie is strangling me right now.
43:3143 minutes, 31 secondsLike, yeah, I mean, yeah, exactly. It doesn’t take a lot. I don’t think people realize that. So, again, I mean, the common practice or at
43:3943 minutes, 39 secondsleast it’s becoming more common with a lot of really squared away departments is they will have a a dedicated squ Oh man, now I’m losing my tongue here.
43:4843 minutes, 48 secondsStrangulation questionnaire.
43:5043 minutes, 50 secondsYeah. Right. and and I helped to author some of these at departments where they didn’t have them because there were there’s some departments out there that have really good ones and I think they
43:5843 minutes, 58 secondskind of set the standard. Harrisburg Police, they had a they’ve always had a really good strangulation questionnaire and so I modeled it off of that for
44:0744 minutes, 7 secondsother departments and it will ask things of the victim like approximately how long was it one hand, two hands, was the forearm used, was there an implement or a liature or something like that there?
44:1844 minutes, 18 secondsDid you lose consciousness? Could you breathe? Could you talk? Was your voice raspy afterwards? Um, did you lose control of your bowels or did you lose
44:2644 minutes, 26 secondscontrol of like your, you know, did you pee yourself or poop yourself essentially? Um, so it will ask questions like that. And what they’re
44:3344 minutes, 33 secondsdoing is they’re getting way more information from the victim to determine how serious of a strangulation really is this? Is is it incidental like you’re
44:4144 minutes, 41 secondssaying or was this deliberately like somebody who’s being really violent?
44:4644 minutes, 46 secondsBecause not every strangulation’s created equal. And the ones that are very serious, the felony ones that are real, real bad, those are crimes of
44:5444 minutes, 54 secondsviolence. Felony strangulation is defined as a crime of violence, which means it is a strike offense in Pennsylvania. What does that mean?
45:0245 minutes, 2 secondsSo when you get to strike offenses, they’re defined as crimes of violence. One strike, two strike, three strike.
45:0945 minutes, 9 secondsYour second strike crime of violence, you’re looking at a mandatory minimum 10 years. If you’re on a third strike crime of violence, you could face up to life
45:1745 minutes, 17 secondsin prison. And that’s a mandatory minimum I believe 25 years. Yeah. And it could be up to life in prison. So if
45:2445 minutes, 24 secondsyou’ve got a prior a assault, F1 a assault, and you are now facing a strangulation, a felony strangulation, that’s a second strike. You are facing a mandatory minimum 10 years in prison.
45:3545 minutes, 35 secondsMhm.
45:3545 minutes, 35 secondsSo just be mindful of that. If you’re convicted of a felony strangulation, that’s strike one. If you have no strikes on your system,
45:4145 minutes, 41 secondsand again, you talked about levels. They don’t account for levels in the strike system.
45:4845 minutes, 48 secondsWell, they’re assuming that it was serious, right? If you’re convicted, it it counts as a strike, right?
45:5345 minutes, 53 secondsSo, again, but they also don’t account for levels in the charging decision either. They let the level part of it, how serious was this strangulation, play
46:0246 minutes, 2 secondsout in plea negotiations and prosecutors and defense attorneys talking or at trial or at trial. Um, they do not let that
46:0946 minutes, 9 secondsplay out in a charging decision. If it’s a domestic momentary strangulation, you’re getting charged with a crime that
46:1646 minutes, 16 secondsis a felony and could carry a strike. I mean, that’s pretty much how it works, you know, and then again, you leave it up to a jury. And I think juries are
46:2446 minutes, 24 secondsactually pretty good sometimes in trials at parsing this out. But it is important to know that the jury instruction that is
46:3246 minutes, 32 secondsgiven in a jury trial for a domestic case, violence case like strangulation does indicate that it doesn’t have to be
46:4146 minutes, 41 secondsthis long drawn out strangulation. It could be momentary. So depending on how our jury hears that and what they believe regarding that,
46:4946 minutes, 49 secondsI mean, you’re you’re at major risk there in in a trial, even with that that instruction and the way the laws written with that. I think I’ve seen one
46:5646 minutes, 56 secondsstrangulation case in the entire time that I’ve been interacting with these kinds of cases where there was peticia, which is the like the bleeding in the eyes.
47:0447 minutes, 4 secondsPikia. Yeah. So, um like I that’s not something that happens in every strangulation case. I think I’ve only seen that one time. Right.
47:1147 minutes, 11 secondsAnd so that’s something juries struggle with is that very often there aren’t marks and and if there are marks, they don’t show up right away. So from the
47:2047 minutes, 20 secondsdefense side of this, you have an officer that’s not really doing their job or not really squared away. They may not know to go back two days later and
47:2747 minutes, 27 secondstake pictures of the victim because that’s when the marks will show up.
47:3147 minutes, 31 secondsSo you may show up to trial and there’s no photographic evidence at all or it’s very minor or and especially with very
47:3847 minutes, 38 secondsdark-kinned victims sometimes it’s hard to see the marks and juries struggle with that stuff. They struggle because they I think intuitively know how serious the allegation is,
47:4647 minutes, 46 secondsright? remember and and you know this and I think juries are are told this um marks are not a required element of the
47:5447 minutes, 54 secondscrime but a jury a jury struggle they decide how much weight to put on that yeah I mean obviously jurors are are people who think through these things
48:0348 minutes, 3 secondsand even though they might be told they don’t need to see marks they do weigh that I think you know internally and probably when they’re back in deliberations they talk about that I’m
48:1148 minutes, 11 secondssure yeah um you know obviously we don’t know that but you know we would only assume as as other human beings that that would be discussed. All right.
48:1848 minutes, 18 secondsWell, um let’s move from strangulation.
48:2148 minutes, 21 secondsUh we’re going to kind of hit on that a little later, too. But, um Justin, uh the crime of stalking. Stalking. Yeah. Tell me about that a little bit.
48:2848 minutes, 28 secondsYep. So, stalking is essentially repeated conduct or communications uh that are intended to place another person in fear of bodily injury uh or cause substantial emotional distress.
48:3948 minutes, 39 secondsOo, what does that mean? Substantial emotional distress. So, this doesn’t even mean technically they have to be in fear that they’re going to get imminently hurt or immediately hurt.
48:5048 minutes, 50 secondsThey could just be over time like put in this distress because of this individual’s actions, right? They keep doing this or they keep following
48:5848 minutes, 58 secondsme or they keep calling me or what have you. That could in some cases cause substantial emotional distress. I would
49:0549 minutes, 5 secondssay it it takes some, but it doesn’t take a ton to put somebody reasonably in emotional distress. And they look at the backstory too. Yeah, absolutely. In that relationship.
49:1449 minutes, 14 secondsUm, and I just recently had a PFA uh hearing where I represented the plaintiff. Um, this uh younger girl uh
49:2249 minutes, 22 secondsbriefly dated this guy for honestly it was about a month back in 2020. And over
49:2849 minutes, 28 secondsthe last 6 years, he has consistently uh been messaging her. I think she kept a she this was one of the best
49:3649 minutes, 36 secondsplaintists I ever had for a PFA case because she had records of everything.
49:4049 minutes, 40 secondslike she had a binder essentially full of all the different phone numbers he called her from. Uh would FaceTime her at like 2:00 in the morning, text her,
49:4849 minutes, 48 secondsand some of the texts that he was sending were just disgusting. Like super sexual and um not necessarily threats, but just really disgusting things.
49:5849 minutes, 58 secondsLike demeaning, degrading.
49:5949 minutes, 59 secondsYeah. And then he would post on the internet about her. And again, she hadn’t talked to him since 2020. She she only had responded maybe
50:0750 minutes, 7 secondsa handful of times to say, “Please stop calling She had to change her number.
50:1050 minutes, 10 secondsShe moved and I’m talking like a long way away to get away from this guy and he continued to do it. Um he actually
50:1850 minutes, 18 secondsviolated the PFA and after he was released from jail a month later, he filed a PFA here in York. Uh so we went
50:2550 minutes, 25 secondsto the hearing. She had to come uh to York from where she had moved to. She had to miss two days of work. Uh obviously pay me attorney’s fees. Um and
50:3350 minutes, 33 secondsthe judge ultimately after the uh we the defendant had testified and then we presented our case uh actually imposed
50:4150 minutes, 41 secondssanctions on the defendant uh attorney’s fees uh travel fees and essentially pay for what she missed at work. And he said
50:4950 minutes, 49 secondsthat was the first time he had ever done it because it was just so egregious. So egregious. And clearly he was just doing this to keep her under emotional
50:5750 minutes, 57 secondsdistress. Yeah. Um, and I actually suggest to her that she should report what had happened to police, uh, essentially because stalking. Um, and I
51:0651 minutes, 6 secondstold her like, you know, follow up with police. If they won’t file anything, you should look into filing a private criminal complaint because this is like the textbook definition of stalking.
51:1451 minutes, 14 secondsIsn’t that also baretry?
51:1651 minutes, 16 secondsWhat’s a c It’s a very obscure It’s like filing vexacious. Is that a crime? Yeah, it’s it’s a crime. Tell us what that word made.
51:2351 minutes, 23 secondsUh, dude, to be honest with you, I do not know. Well, you brought it up. Come on now.
51:2851 minutes, 28 secondsEssentially, all I remember is it’s it’s vexacious lawsuits. Like, you’re just abusing abusing the legal process. Really? Okay. All right.
51:3651 minutes, 36 secondsBut yeah, that’s that’s the that’s the offense. Thanks. Now, I lost my train of thought.
51:4051 minutes, 40 secondsNo, I’m kidding. Um, one thing I do want to say about stalking, uh, and maybe I should have started with this. It’s not what people think of like stalking in movies and TV. It can be.
51:5051 minutes, 50 secondsIt can be. It absolutely can be.
51:5151 minutes, 51 secondsBut that I think is really more of a an we’ll say the entertainment industry. uh version of stalking where you know somebody’s like following you around everywhere, creeping in your bushes.
52:0152 minutes, 1 secondThat’s not normally what stalking entails. Again, it can. Um but again, repeated texts, calls, social
52:0952 minutes, 9 secondsmedia contact. Um I’ve seen people put like those air tags or uh a GPS tracker on people’s cars. Again, those are more of the I would say really egregious
52:1852 minutes, 18 secondsones. Um but again even without that just repeated calls texts really really really terrifying.
52:2652 minutes, 26 secondsYeah the statute for baritry it’s all right Tim’s moment it’s not me I didn’t I didn’t come up with this but I just it’s
52:3352 minutes, 33 secondshilarious title 18 I think it’s section 5109 a person is guilty of a misdemeanor of the third degree if he vexes others with unjust and vexacious suits.
52:4452 minutes, 44 secondsOkay. What does vex mean?
52:4552 minutes, 45 secondsConfuse. found to so just over and over like suing someone.
52:5152 minutes, 51 secondsYeah, I I I actually did see this filed on somebody once cuz they were filing lawsuits or criminal charges, criminal complaints on sitting judges and they
52:5952 minutes, 59 secondswere they were but yeah, sorry that’s a tangent.
53:0253 minutes, 2 secondsI bet the prosecutor had to do a little research to find that charge.
53:0453 minutes, 4 secondsThe prosecutor uh got I think a fair amount of enjoyment out of it. The facts of that case were very We’ll have to go over it sometime, but it was one of the
53:1253 minutes, 12 secondsfunniest one of the funnier cases I’ve I’ve seen. All right. Okay, guys.
53:1953 minutes, 19 secondsIf you are in a situation where somebody is causing you that type of distress, as Justin told you, this crime stalking is
53:2853 minutes, 28 secondsnot just there’s a guy in my bushes. I’m being followed around by a guy in a trench coat in the dark down alleyways.
53:3553 minutes, 35 secondsLike, that of course is totally stalking, but it’s way bigger than that. This can be done through text messaging.
53:4253 minutes, 42 secondsLike, not even like physically being around the person. And I mean this day and age with the internet with social media apps like and you know cell phones
53:5053 minutes, 50 secondsthat are a wide span of ways of communicating with people. I mean I see most of the cases of stalking that way to be honest. Um if you’re in that situation as a victim like get help.
54:0054 minutesCall the police. If you’re someone who’s doing that be aware that you’re exposed to this crime and stop. Like it’s not
54:0854 minutes, 8 secondsworth it. If somebody has clearly told you they do not want to be in a relationship with you or just don’t want to even have a friendship with you, move
54:1754 minutes, 17 secondson. There’s a million fish in the sea and it’s really not worth your time uh to stick with that person and to kind of put them in fear like that. And it
54:2554 minutes, 25 secondshonestly it’s it’s the wrong thing to do. Um so again, please don’t do that.
54:2954 minutes, 29 secondsAnd if you are in that situation and you feel like you are going down that path with somebody and you believe it’s the right thing to do or you can’t help
54:3654 minutes, 36 secondsyourself, get help. Uh, and again, we can help you with that. U, call us.
54:4054 minutes, 40 secondsWe’re happy to help you with that. There are there is help out there for that that as well. All right, Tim. Uh, let’s talk about simple assault. So, this is the crime that we kind of saw charged
54:4954 minutes, 49 secondsall the time before the strangulation crime went into effect a few years ago.
54:5354 minutes, 53 secondsUh, it is a misdemeanor. Um, tell us more about like what simple assault is and when we see that in domestic situations.
55:0155 minutes, 1 secondYeah, I mean there’s two main ways we see it in domestic violence cases. is the first is that you either cause or attempt to cause bodily injury to
55:0855 minutes, 8 secondssomebody. Uh the other major way is that you put somebody in fear of serious bodily injury or imminent serious bodily
55:1655 minutes, 16 secondsinjury. Um and that’s what they call simple assault by physical menace. Yeah. See that a good amount actually.
55:2255 minutes, 22 secondsYeah. And again guys, imminent means immediate. Um that means that the person is in fear of immediately being uh
55:3055 minutes, 30 secondsseriously injured. So there is a distinction here. And um Tim had mentioned it. I’m going to hit it hard.
55:3755 minutes, 37 secondsYou have to either cause or attempt to cause bodily injury. This is not serious bodily injury. This is just bodily injury. This can be something minor to
55:4555 minutes, 45 secondsthe body. Uh and again, it’s it’s causing or attempting to cause. So, it doesn’t even have to actually follow through with or placing another in fear
55:5355 minutes, 53 secondsof imminent serious bodily injury. So, this just can’t be me saying uh to my, you know, wife, for instance, like I’m
56:0056 minutesgoing to I’m going to punch you. Uh it would, you know, I’m if you don’t stop that, I’m going to hit you. It’s got to be I’m gonna kill you. Uh I’m getting out my knife. I’m getting out my gun.
56:1156 minutes, 11 secondsI’m pointing it at you. This is the type of thing that can be rising to the level of imminent or immediate serious bodily injury. I have seen, and this is
56:1956 minutes, 19 secondssomething I saw in York County. It was unique to your county. I have seen some officers charging the mere pointing of a gun at somebody as aggravated assault.
56:2856 minutes, 28 secondsThat’s that’s an overcharge. That’s not that is as you’ve said in this statute here.
56:3456 minutes, 34 secondsYou’re communicating an intent or or and it could be something even simpler like you are shadowing the person around the house and you’re kind of not letting them leave the room, right? You’re
56:4356 minutes, 43 secondsblocking their path and you’re having a very tense altercation with them. You may be saying some things that put them in reasonable fear that an attack is
56:5156 minutes, 51 secondscoming and you’re preventing their p their their escape. That could be enough potentially to trigger this statute.
56:5856 minutes, 58 secondsdepending on how you’re acting. It’s very spec fact specific. Um, but I have seen in York the decision being made to charge people with pointing a gun at
57:0657 minutes, 6 secondssomebody as aggravated assault. That’s not correct. That’s not I mean it could be what we’re going to get into next, which is terroristic
57:1357 minutes, 13 secondsthreats by action, right? But we’re going to talk about that in a moment.
57:1757 minutes, 17 secondsUm, Tim, have you ever seen simple assault in a domestic situation charged as the M3? No.
57:2357 minutes, 23 secondsThe misdemeanor 3? Um, I I probably have, but they really aren’t supposed to do that because And tell us again, just so people know, what is the M3 simple assault?
57:3257 minutes, 32 secondsMutual Frey. We’ve talked about that before. It’s when both parties engage in a fight. It’s sort of like the paradigm like street fight dueling. Exactly.
57:3957 minutes, 39 secondsHeadlight fight between two guys are going to Yeah.
57:4157 minutes, 41 secondsUm, they they really don’t charge that very often. In domestic violence, they might charge it if they believe that
57:4857 minutes, 48 secondsthere is kind of a fight happening and they really shouldn’t charge it because it really doesn’t fit. It can be pled down to an M3 usually. I’ve seen that
57:5657 minutes, 56 secondsbefore in plea negotiations.
57:5857 minutes, 58 secondsUm but they they have to make and this is part of what makes the police’s job so difficult is they there was a time where they would show up and they would just smack both parties with charges.
58:0758 minutes, 7 secondsOh yeah. Okay. Hit on this. This is not they can’t do that.
58:1058 minutes, 10 secondsYeah. I want to talk about this. Um yeah Tim and I want to kick it back to you, but I just want to lay a foundation here.
58:1658 minutes, 16 secondsAs Tim said, there was a time where when the police showed up, both parties who were involved in a scuffle were getting charged. both domestic parties. And
58:2558 minutes, 25 secondsthere is a real reason they do not do that anymore. Yeah, they they’re not allowed.
58:2858 minutes, 28 secondsWell, they’re not protocol says they’re not supposed to. I still actually have seen it a few times.
58:3258 minutes, 32 secondsThey have to make a determination that both parties were acting at various times as the aggressor. I’ve recommended it as the on call DA when I was a DA. I
58:4058 minutes, 40 secondsdid recommend charges to both parties several times. And that’s if you have a domestic violence dispute, you have some kind of violence episode, one party is
58:5058 minutes, 50 secondsresponsible for that. they the police have to make a determination who is the aggressor, who is the most culpable, they have to charge that person. But if
58:5858 minutes, 58 secondsthat person disengages and now that act of violence is over and the example that I once saw, the the victim in the
59:0659 minutes, 6 secondsinitial assault went and grabbed a knife and then attacked the aggressor with it.
59:1159 minutes, 11 secondsWell, now that’s a separate act of violence. Now they’re both getting charged, right? But the paradigm that it puts in
59:1859 minutes, 18 secondsthe DA’s office in, which is an advantage for the defense attorneys, is both people who have been charged now
59:2659 minutes, 26 secondshave a fifth amendment right not to selfinccriminate, which means they could both go to court. And again, I’ve done
59:3359 minutes, 33 secondsthis as a defense attorney where they both are charged, you both go to court, neither one of them is can be forced to
59:4059 minutes, 40 secondstestify. There’s no evidence that can be put on at that point. and the prosecution many times, not always, is essentially forced to drop the case.
59:4959 minutes, 49 secondsThere is a limit on that though because you do you may have a privilege against testifying or being a witness against yourself, but you do not have a privilege as it relates to your
59:5759 minutes, 57 secondstestimony against the domestic violence aggressor, right? But it can be muddy like if those things are happening simultaneously. If they can separate the two violent
1:00:061 hour, 6 secondsepisodes, then you are going to be compelled to testify with the understanding that that you it’s going to be irrelevant your act of aggression.
1:00:151 hour, 15 secondsYou you can plead the fifth there, right?
1:00:171 hour, 17 secondsBut as it relates to even married couples, you can’t claim marital privilege if you’re the victim of domestic violence. That’s in a statute.
1:00:251 hour, 25 secondsYou can be compelled to testify against your spouse.
1:00:271 hour, 27 secondsThat actually is a question I get a lot and I’m glad you brought that up. the marital privilege part. A lot of times when I have a victim who doesn’t want to move forward will come to me and say,
1:00:351 hour, 35 seconds”Oh, I’m just going to claim marital privilege because we’re married.” You can’t do that. Uh the law doesn’t allow you to do that. There’s an exception for that in a domestic violence case.
1:00:431 hour, 43 secondsGeneral Assembly has said no.
1:00:441 hour, 44 secondsYeah. That’s right. So, okay. Well, I I’m I’m glad we touched on that because that that was a lot of important information. Um Justin, I want to kind
1:00:521 hour, 52 secondsof go over to you here. Uh tell us about crime of terroristic threats. Terroristic threats is not terrorism.
1:00:581 hour, 58 secondsYes. Thank you. public service announcement PSA. Yeah. Um, no.
1:01:011 hour, 1 minute, 1 secondTerroristic threats is essentially uh someone threatens to commit a crime of violence with the intent to terrorize another. Um, that can be an indirect
1:01:091 hour, 1 minute, 9 secondsthreat, a direct threat. Uh, it can involve a weapon. Uh, a lot of times what we see, uh, I think normally is
1:01:171 hour, 1 minute, 17 secondsgoing to be people just making certain statements. Um, whether that’s verbally, uh, we see a lot of it over text, uh, social media. I’ve kind of seen it run
1:01:251 hour, 1 minute, 25 secondsthe gamut. Um, but well, dude, when you’re when you’re putting it in writing, it’s pretty easy for them to prove. So, again, if you’re texting it, if you’re
1:01:341 hour, 1 minute, 34 secondsputting it on social media, if you’re emailing it, yeah, who would email it? That would be weird. But I’ve actually seen that.
1:01:391 hour, 1 minute, 39 secondsYeah. Yeah. But in any event, um, yeah, if you’re putting it in writing, you’re kind of stupid. Like, you know, like don’t do that. That is not smart.
1:01:471 hour, 1 minute, 47 secondsUh, as a person and a lot of times people do it in writing when they’re angry and they’re not thinking. Yep. and they press that send button or they hit
1:01:551 hour, 1 minute, 55 secondsthat text send and boom, it’s in the ether and it’s evidence and they’re bringing it into court.
1:02:001 hour, 2 minutesYeah. And I think a big part of this is again, not every angry statement that someone makes is going to rise to the level of terroristic threats. Uh
1:02:071 hour, 2 minutes, 7 secondsdefinitely intent and context matter. Um but you know, like we said, a lot of times what it’s going to be is, you know, I’ll kill you, I’ll light your
1:02:141 hour, 2 minutes, 14 secondshouse on fire. Um there was one recently and I can’t remember if it was one of you guys talking about it or where I saw it. Um, but this guy was like, “I’m
1:02:221 hour, 2 minutes, 22 secondsgoing to uh uh burn your house down. Uh, I know people that kill kids.” Like, it’s crazy. Uh, but you go and say stuff
1:02:301 hour, 2 minutes, 30 secondslike that to another person. Um, you can even be charged with it for I’ve seen it once or twice where someone says something to an officer. Um, I actually
1:02:381 hour, 2 minutes, 38 secondsdid a trial on that. We ended as a prosecutor. The jury found him not guilty of that, but found him guilty. I think it was harassment or something like that. Um, but you need to be careful what you say.
1:02:471 hour, 2 minutes, 47 secondsYeah. I dude I I literally just had a case last week. terroristic threats against a police officer. Yeah. Um where my client was indicating he was gonna
1:02:551 hour, 2 minutes, 55 secondsshoot the police officer. Yeah. You know, didn’t have a gun, didn’t even point a gun, didn’t even show a gun, but made the statement and you know, it’s
1:03:021 hour, 3 minutes, 2 secondsterroristic threats. I mean, and you can’t do that. Like, and again, I I love that you said in the very beginning, terroristic threats is just the name of the statute.
1:03:111 hour, 3 minutes, 11 secondsIt is not terrorism.
1:03:131 hour, 3 minutes, 13 secondsSo many people panic and go, “Oh, I’m labeled now as a terrorist.” You are not. But it’s a crime of domestic violence.
1:03:191 hour, 3 minutes, 19 secondsit can carry jail time with the new guidelines and things like that. So, I think every single terroristic threats uh jury trial that I did as a
1:03:271 hour, 3 minutes, 27 secondsprosecutor, the defense attorney, either an opening or closing would essentially tell the jury terroristic threats is not
1:03:351 hour, 3 minutes, 35 secondsterrorism. And I just never found the need to say that. Um I don’t think, you know, people just initially hearing it
1:03:431 hour, 3 minutes, 43 secondswithout context, sure. But as you start going through it, I mean, it’s pretty apparent what it is. And the jury instruction for it is actually like very Commonwealth friendly in my opinion. Um
1:03:521 hour, 3 minutes, 52 secondsbut again, you need to be careful what you say.
1:03:541 hour, 3 minutes, 54 secondsYeah. It’s called terroristic because it the threat causes terror. It’s not terrorism. Yeah.
1:04:001 hour, 4 minutesOkay. Um uh Tim, I’m going to go back to you here. Uh so last kind of two crimes that
1:04:081 hour, 4 minutes, 8 secondswe a lot of times see that are domestic I would say would be harassment and the crime of criminal mischief. Um that kind of sounds interesting. I What’s criminal
1:04:171 hour, 4 minutes, 17 secondsmischief? So, unpack those a little bit for us. Tell us a little bit about those.
1:04:211 hour, 4 minutes, 21 secondsHarassment is um it’s one of the few uh statutes that we’re talking about here that has nine subsections, I believe.
1:04:301 hour, 4 minutes, 30 secondsYeah. And some of them are weird.
1:04:321 hour, 4 minutes, 32 secondsYeah. Um I mean, I think most of them are like it’s pretty easy to see how it makes sense how it’s harassment, but there are some I think that that overlap with each other, and there are some that
1:04:401 hour, 4 minutes, 40 secondsare very broad. It’s like what does that even really mean? Tell me about the paradigm with harassment where physical
1:04:471 hour, 4 minutes, 47 secondsYeah. harassment is a summary offense and communication harassment is a misdemeanor. I think that How weird is that?
1:04:541 hour, 4 minutes, 54 secondsIt is weird and I think that that is because there there is no summary simple assault.
1:04:591 hour, 4 minutes, 59 secondsYeah, that’s what I think it is because we we’ve talked about the fact that simple assault can be an M M3, M2, and M1 depending on the age of the victim. If it’s a child, it’s an M1.
1:05:081 hour, 5 minutes, 8 secondsYeah. Um, but I there’s no summary simple assault. So I think the summary harassment is meant to cover like an area where it’s like a lesser assault.
1:05:191 hour, 5 minutes, 19 secondsJust unwanted unwanted physical contact.
1:05:221 hour, 5 minutes, 22 secondsYeah, it would be like battery. It’s basically our battery. But a lot of times I I’m in this weird kind of a
1:05:281 hour, 5 minutes, 28 secondsjuggle with the DA where I have a communication harassment that we want to plead down to a summary, but the subsection
1:05:371 hour, 5 minutes, 37 secondsA3 would always be my go-to as a prosecutor because A3 is just engaging in a course of conduct, right? It’s a catch all and and I would if there was ever any
1:05:441 hour, 5 minutes, 44 secondspush back, I would just go to the old chestnut. You can establish a course of conduct by one instance.
1:05:511 hour, 5 minutes, 51 secondsYou know, you don’t have to have repeated contact. That’s not really what course of conduct means. Yeah.
1:05:561 hour, 5 minutes, 56 secondsThere can be a course of conduct that is really one episode really or it could be sometimes you can change it over to like a disorderly conduct too, which summary
1:06:051 hour, 6 minutes, 5 secondsthat you could, you know, little juggle it over there.
1:06:071 hour, 6 minutes, 7 secondsBut yeah, you’re right. I mean, harassment, if you if you would ever want to read the statute out there, do it cuz you’ll be heavily confused when
1:06:151 hour, 6 minutes, 15 secondsyou see all the different subsections and what they they mean in communicating at like inconvenient hours, communicating in a threatening
1:06:211 hour, 6 minutes, 21 secondsway, communicating anonymously. Um, lwd and lascivious. Yes. Took it away from What is What is lude and lascivious,
1:06:301 hour, 6 minutes, 30 secondsTim? Um, well, and that’s I I want to be careful because I don’t know the actual legal definition offhand, but it essentially means there’s got to be something sexual.
1:06:381 hour, 6 minutes, 38 secondsYeah. Sexual or talking about um, you know, private bodily parts, maybe not in a sexual way, but, you know, I I’ve seen
1:06:471 hour, 6 minutes, 47 secondsharassment with Lud and Lascivious where somebody is commenting maybe favorably about someone’s, you know, butt or, you know, oh, you have a nice, you know,
1:06:551 hour, 6 minutes, 55 secondsthis. I think like if you made sexual comments about a person or you revealed intimate details about like their sexual
1:07:031 hour, 7 minutes, 3 secondspredelections and you kind of posted those publicly. I think that’s now that’s the kind of what’s where you’re not like necessarily like
1:07:101 hour, 7 minutes, 10 secondsthreatening sexual things but talking you’re giving intimate details publicly.
1:07:151 hour, 7 minutes, 15 secondsYou’re spreading that around but there’s no like image. There’s no there’s nothing there. It’s just lewd lascivious communication about or
1:07:231 hour, 7 minutes, 23 secondsto another person. I think that’s what they’re dealing with.
1:07:261 hour, 7 minutes, 26 secondsYeah. All right. Um, how about criminal mischief? Uh, what’s criminal mischief there? This one has, I think, five different sections as well, but the main
1:07:331 hour, 7 minutes, 33 secondsone we see in the domestic violence context is destroying or damaging property belonging to another person. That’s a big one.
1:07:401 hour, 7 minutes, 40 secondsUm, smashing, you know, the Louisville Slugger song, right? We talk that I don’t even remember. Uh, it’s it’s a woman. What? Who is it?
1:07:481 hour, 7 minutes, 48 secondsCarrie Underwood. Carrie Underwood. I don’t really listen to country, but that song I always when I hear that song, I’m always like, man, this lady’s admitting
1:07:551 hour, 7 minutes, 55 secondsto all these crimes, right?
1:07:591 hour, 7 minutes, 59 secondsThat’s criminal mischief. That’s all criminal mischief. A lot of people know that song. King Cars is one that we see a lot.
1:08:041 hour, 8 minutes, 4 secondsReally big slashing tires. You were the victim of that. Unfortunately, I was not domestic.
1:08:091 hour, 8 minutes, 9 secondsDomestic domestic. We got PSA. Got to clarify that.
1:08:111 hour, 8 minutes, 11 secondsNo, Lauren will be getting mad at us. Yeah.
1:08:141 hour, 8 minutes, 14 secondsAll right. Um, good. Well, I think that covers a lot of the uh the main crimes there. Um there are some other charges
1:08:211 hour, 8 minutes, 21 secondsthat we see domestically. Uh aggravated assault, you know, we talked about simple assault. Aggravated assault would be causing or attempting to cause serious bodily injury in a domestic
1:08:291 hour, 8 minutes, 29 secondssituation. Um recklessly endangering another person. Uh this can be a lot of times, you know, firing a gun into the
1:08:371 hour, 8 minutes, 37 secondsair in a domestic situation, pointing a gun at someone, maybe firing it near someone, those types of things. Uh false imprisonment. This isn’t I tied someone
1:08:461 hour, 8 minutes, 46 secondsup in my basement and kept them there for I mean that is what it is in a way.
1:08:501 hour, 8 minutes, 50 secondsBut there’s other ways to if you’re inhibiting someone’s movement, if you’re containing someone for even a small period of time, that can be considered
1:08:581 hour, 8 minutes, 58 secondsfalse imprisonment. Witness intimidation. This is one that I talk to my clients about a lot when I have a domestic case. You have to be really
1:09:051 hour, 9 minutes, 5 secondscareful here because intimidating a witness is not always if you go to court, I’m gonna kill you. If you testify against me, I’m gonna hurt you.
1:09:141 hour, 9 minutes, 14 secondsI’m gonna break your legs. This isn’t the the I’m gonna send my goons on you comment. I mean, it could be that, but it could also be just asking them not to
1:09:231 hour, 9 minutes, 23 secondsgo to court in a nice way. Um, you know, those types of things can also be viewed as witness intimidation and charge, and
1:09:291 hour, 9 minutes, 29 secondsthey’re felonies. So, be careful. Uh, criminal trespass that’s going onto someone’s property uh without their
1:09:361 hour, 9 minutes, 36 secondspermission essentially. burglary, uh, breaking into an occupied or unoccupied structure with the intent to commit a
1:09:441 hour, 9 minutes, 44 secondscrime. This crime doesn’t have to be theft. It many times is, and I think that’s what a lot of people think about when they hear the crime of burglary, but it could be breaking into a
1:09:521 hour, 9 minutes, 52 secondsstructure with the intent to commit a crime of rape, a crime of assault, a crime of aggravated assault. You know, those types of crimes would also qualify
1:10:001 hour, 10 minutesas burglary. It’s it’s me it’s merely just entering the structure with the intent to commit one of those crimes. It doesn’t again have to be theft.
1:10:091 hour, 10 minutes, 9 secondsAnd if you do that and assault somebody who’s present in the home, that is a crime of violence. That’s a strike off.
1:10:141 hour, 10 minutes, 14 secondsYes, that’s right, Tim. Thank you for bringing up. Yeah. And it actually uh it enhances the crime as well. Yeah. Burglary can get pretty serious.
1:10:221 hour, 10 minutes, 22 secondsOccupied structure with the intent to commit a crime and it’s a home. I mean, those types of things can can be really serious burglaries. Um disorderly
1:10:311 hour, 10 minutes, 31 secondsconduct, you know, we talked about that earlier. That’s a kind of a catch-all offense, but could qualify for a lot of types of domestics. All right, guys. I want to move to another big topic here.
1:10:411 hour, 10 minutes, 41 secondsUh, PFAS. Uh, PFAS mean that stands for it’s an acronym for protection from abuse. In Pennsylvania, it’s a lot of
1:10:501 hour, 10 minutes, 50 secondstimes what people think of when they think of I’m going to get a restraining order against somebody. Okay? But a PFA actually has to be against somebody who
1:10:591 hour, 10 minutes, 59 secondshas some sort of domestic relationship to you. You can’t get a PFA against like I couldn’t get a PFA against Justin or
1:11:061 hour, 11 minutes, 6 secondsTim because I don’t have that domestic type of interaction or relationship with them. Uh even though we work together
1:11:131 hour, 11 minutes, 13 secondsevery day. So, um Justin, I’m going to pop this to you for a little bit. Um tell me a little bit about PFAS and who
1:11:201 hour, 11 minutes, 20 secondsqualifies for them, who doesn’t, and how the what’s the process to starting that whole thing. Absolutely. Um, so essentially, um, a lot of what we talked
1:11:291 hour, 11 minutes, 29 secondsabout earlier as far as what, uh, parties qualify for domestic violence or are going to qualify for a PFA, it’s usually, uh, a former intimate or sexual
1:11:381 hour, 11 minutes, 38 secondspartner or current. Um, again, it could be between parents and children. Um, again, those are the two most common.
1:11:451 hour, 11 minutes, 45 secondsYeah. Um, but it could be, you know, a brother and sister, a family member, household member. Um the biggest thing I
1:11:521 hour, 11 minutes, 52 secondsthink with this is there the process is is fairly simple. Um as a defendant in a PFA uh if a plaintiff goes in and seeks
1:12:021 hour, 12 minutes, 2 secondswhat they call a temporary order or a temporary emergency order, those are done exparte. So as the defendant, what does exparte mean?
1:12:091 hour, 12 minutes, 9 secondsEssentially without a party uh meaning that one party is there, the other party is not. So essentially if someone’s seeking a PFA plaintiff goes into court
1:12:171 hour, 12 minutes, 17 secondstells the judge you know what the allegations are and uh either there’s an emergency uh temporary order which I believe lasts for 24 hours and then they
1:12:261 hour, 12 minutes, 26 secondshave to go seek an actual that would be if it’s like the middle of the night or something and there’s no you know judge to hear it then you would get a temporary order um at the court of
1:12:341 hour, 12 minutes, 34 secondscommon please um and then they have 10 days uh to serve uh the defendant and a final hearing should occur within that
1:12:411 hour, 12 minutes, 41 seconds10 days. It doesn’t always if there’s, you know, either party gets counsel and it’s continued for whatever reason, uh, the temporary order is going to stay in place till that final hearing.
1:12:501 hour, 12 minutes, 50 secondsYeah. And guys, we do PFAS here at this law firm, Kernney Law, pretty regularly.
1:12:551 hour, 12 minutes, 55 secondsUh, PFAS, the biggest thing I have to clarify for people when they call me about a PFA is it is not a criminal
1:13:031 hour, 13 minutes, 3 secondscharge. People think they have been charged with a crime when they are served with a PFA. You have not been charged with a crime. This is a civil
1:13:111 hour, 13 minutes, 11 secondsaction. It is done initially through civil court proceedings. Uh meaning you’re not before the criminal judges at
1:13:191 hour, 13 minutes, 19 secondsthis point. Now, if you get a PFA against you and you have a court order that says you can and can’t do certain things, that is a protection from abuse
1:13:271 hour, 13 minutes, 27 secondsorder, and we’re going to get into what those things could be, and you violate that order, that becomes indirect criminal contempt or what we frequently
1:13:351 hour, 13 minutes, 35 secondscall IC. that is a crime and you can be charged with that and you can do time for that and you can be fined and you can be on probation and that is going on
1:13:431 hour, 13 minutes, 43 secondsyour criminal record but merely the act of just getting served with a PFA is not a crime.
1:13:491 hour, 13 minutes, 49 secondsYes. Um so and Justin you started to talk about this uh temporary PFA orders issued after an exparte hearing and by
1:13:581 hour, 13 minutes, 58 secondsthe way they can be issued without an exparte hearing too.
1:14:031 hour, 14 minutes, 3 secondsYes. Um, you know, but a lot of times it is done through an exparte hearing. And what that means in practice is the man or the woman seeking the PFA
1:14:101 hour, 14 minutes, 10 secondsgoes in front of a judge without the other party there, as you said, and they tell the judge why they think they should get a PFA. Yes.
1:14:171 hour, 14 minutes, 17 secondsAnd they say, “Judge, here’s what this other person is doing to me. Here’s my relationship with them. Here’s why I think I qualify and I need and I want
1:14:251 hour, 14 minutes, 25 secondsthis protection from abuse order.” And the judge in that exparte hearing without the other party there to defend themselves is going to say either yeah
1:14:331 hour, 14 minutes, 33 secondsthat qualifies the relationship meets it and that’s enough of of a kind of meeting the threshold to give them a temporary PFA.
1:14:421 hour, 14 minutes, 42 secondsYes, that the defendant is then going to get served with that and then they are essentially under a real PFA order at that point. Um, now there is going to be
1:14:501 hour, 14 minutes, 50 secondsa final PFA where the person who gets uh the PFA against them gets to come and actually defend themselves in that PFA.
1:14:561 hour, 14 minutes, 56 secondsAnd we get involved on both sides of this.
1:14:581 hour, 14 minutes, 58 secondsSo we we both help people get PFAS and we help defend against PFAS uh I think with pretty regularity on both sides. I mean you were talking about an example
1:15:071 hour, 15 minutes, 7 secondsearlier where you were had a plainif in a PFA and you were helping that woman get the PFA both.
1:15:121 hour, 15 minutes, 12 secondsYeah. And on the flip side we we frequently u defend them. So, you know, that said, uh, you know, you’re always going to get your day in court whether you’re on either side of this. This
1:15:211 hour, 15 minutes, 21 secondsisn’t going to be done behind closed doors. I mean, initially it might feel like that, but that is because of the emergent nature of PFAS and the need to protect people who are actually being hurt.
1:15:331 hour, 15 minutes, 33 secondsYeah. Now, I’m going to be honest. I do think that the PFA system does get abused regularly. Absolutely.
1:15:391 hour, 15 minutes, 39 secondsAnd it is gamesmanship a lot of times. I would say seven, eight times out of 10 PFAS are gamesmanship and it ticks me off.
1:15:481 hour, 15 minutes, 48 secondsYeah, it’s it really does.
1:15:491 hour, 15 minutes, 49 secondsIt’s really It’s really come a long way at least here in York County. So, I’ll what I’ll say is this. Since
1:15:571 hour, 15 minutes, 57 secondsthe last 6 months that I’ve been uh back doing defense and helping people, both plaintiffs and defendants uh in PFA
1:16:041 hour, 16 minutes, 4 secondsmatters, I found that the judges here in York County um when it comes to the final hearings
1:16:131 hour, 16 minutes, 13 secondsactually do a wonderful job of I think weeding those out. Yes.
1:16:161 hour, 16 minutes, 16 secondsUm Amen. because I’ve had a few uh defendants that I’ve represented and you know based on the allegations in the uh
1:16:251 hour, 16 minutes, 25 secondsPFA application and the temporary order, you know, without being able to defend yourself and a judge just hearing that,
1:16:321 hour, 16 minutes, 32 secondsI get why they issue the temporary orders makes total sense. But then when we actually go in there and present a
1:16:391 hour, 16 minutes, 39 secondsdefense and either more context, um, anything that contradicts what they’re alleging, like I had a guy, the first
1:16:471 hour, 16 minutes, 47 secondsactual hearing that I did as a defense attorney being back here, um, we went into the hearing and this, uh, girl had made these allegations that he was like
1:16:551 hour, 16 minutes, 55 secondsoutside of her home on this particular night, he had a gun, etc. Well, he was actually at a restaurant with his mom and sister and we had a receipt and
1:17:031 hour, 17 minutes, 3 secondsvideo from the restaurant showing that he was not there at that time. Um, and the judge was not happy about that.
1:17:091 hour, 17 minutes, 9 secondsYeah. And that just gets to the kind of the point I was making like the judges I think in our county are very good who regularly see these at bifurcating that
1:17:181 hour, 17 minutes, 18 secondsemergent need but then also being really real about later when we actually get to present the other side. Is there a real need?
1:17:261 hour, 17 minutes, 26 secondsYes. and they’ll they’ll uh they’ll punt people a little bit if they’re game if they see the gamesmanship. I’ve seen them come down hard on people who file
1:17:351 hour, 17 minutes, 35 secondsthem with who are abusing the system, you know, just like the case that I had recently where the the judge imposed sanction said it was the first time he ever did that and he’s been doing this for a number of years.
1:17:441 hour, 17 minutes, 44 secondsYeah. Yeah. So, okay. Um Tim, I I want to pop to you real quick. um with a PFA
1:17:501 hour, 17 minutes, 50 secondsuh specifically like what what can happen with a PFA both in a temporary order and a final order. What can
1:17:581 hour, 17 minutes, 58 secondsactually be in that order and what rights could be taken away from somebody who is the defendant in that order that they might not otherwise know? Tell me about that a little bit.
1:18:081 hour, 18 minutes, 8 secondsSo pretty much every order is going to say no contact with the protected party or parties.
1:18:131 hour, 18 minutes, 13 secondsIt can be no contact or it can be no abusive. That’s called a limited contact.
1:18:171 hour, 18 minutes, 17 secondsOr it could be contact for like if the kids are a protected party or I’m sorry, if the mom or dad is a protected party, but the kids there’s custody exchanges,
1:18:261 hour, 18 minutes, 26 secondsyou’ll be allowed to communicate with the protected party for purposes of custody exchanges, right? And there there’s they put limitations on that and methodologies to
1:18:341 hour, 18 minutes, 34 secondsdo that. You may have to go through like a court they have like a portal system or whatever, a special service that they use on like an app or whatever. You may
1:18:411 hour, 18 minutes, 41 secondshave to download that kind of stuff. I do want to tell you guys though, and I’m going to come back to you there, Tim.
1:18:461 hour, 18 minutes, 46 secondsPFAS, for those of you that are thinking about asking for them, or those of you that are defense, Tim, I tell this to my clients, they are not custody court. You
1:18:551 hour, 18 minutes, 55 secondsneed to hear me on this. Like if you need if you are seeking custody or a custody action or you have a dispute
1:19:031 hour, 19 minutes, 3 secondswith your spouse or your ex about your children and who has custody, don’t needlessly file a PFA to try to have
1:19:111 hour, 19 minutes, 11 secondsgamesmanship or get an advantage over them in a custody battle. Everybody who does PFAS, the lawyers, the judges, we all know that PFAS are not for custody.
1:19:221 hour, 19 minutes, 22 secondsNow, do we have to deal with custody as Tim was just saying a lot in PFAS? Yeah, we do. But it’s way better to just go to
1:19:301 hour, 19 minutes, 30 secondscustody court. You can file a custody action by yourself through self-help, uh, the self-help center in York, Pennsylvania, or get a custody attorney
1:19:391 hour, 19 minutes, 39 secondsand seek it out that way. Don’t clog the PFA system with a custody dispute. Um, again, we do have to deal with custody sometimes, but that’s not what it’s for.
1:19:481 hour, 19 minutes, 48 secondsUh, and frankly I think everybody who does it and we see that we hate it when we see it because people abuse the system that way and they try to use PFAS for custody court.
1:19:571 hour, 19 minutes, 57 secondsWell, judges don’t like that either. I know actually I I’m going to kick it to Tim because he actually had a case that I thought I was just about to say
1:20:041 hour, 20 minutes, 4 secondsI thought was actually a valid uh protection from abuse case. Um, and the judge unfortunately disagreed. I felt
1:20:121 hour, 20 minutes, 12 secondsreally bad about that case because we got an adverse ruling and the judge made some findings that I think were really harsh to my client and this this was in
1:20:191 hour, 20 minutes, 19 secondsyour county. So, but but that I mean in in one sense I understand and I think it is to the judge’s credit because as you guys have pointed out they are trying to
1:20:281 hour, 20 minutes, 28 secondsbe very protective about this so that it isn’t being abused. So they have a heightened sense of things and there were potentially custody implications in
1:20:361 hour, 20 minutes, 36 secondsthis order and the judge basically came to the the impression that my client was trying to use the PFA to get custody
1:20:431 hour, 20 minutes, 43 secondswhich I think was not true but that was the finding that was made. Um so that was unfortunate. So in that kind of a
1:20:521 hour, 20 minutes, 52 secondssituation, custody can be included in PFAS. And so in this particular case, the fact that there were there were
1:20:591 hour, 20 minutes, 59 secondscustody requests in the PFA, I think set it over the line for the judge. And the judge found that that was all very distasteful and didn’t want any part of it.
1:21:081 hour, 21 minutes, 8 secondsBut if there is legitimate abuse that was going on, they can order temporary custody be awarded to one of the parties or split it between the two or they
1:21:171 hour, 21 minutes, 17 secondscould allow for visitation or supervised visits. that kind of thing. Um, and like I said, I mean, I I Justin said it. He
1:21:251 hour, 21 minutes, 25 secondsand I looked at that case together. I mean, I think I think it it was there. I think it was close, but I think we had enough. I think the judge should have granted the PFA. The defendant said some
1:21:331 hour, 21 minutes, 33 secondsthings that kind of muddied the water, and I think that ultimately sank us.
1:21:371 hour, 21 minutes, 37 secondsAnd you’ll have that happen in a in a hearing. And this brings us to the really big one, which is firearms. Yeah, big one. Tell me about it.
1:21:431 hour, 21 minutes, 43 secondsBecause firearms can be you can have a a relinquishment order. We talked about this during the firearm episode during the temporary order
1:21:521 hour, 21 minutes, 52 secondsand that is problematic because you really have not had any due process yet.
1:21:571 hour, 21 minutes, 57 secondsNow the the balancing act that’s done there is that temporary orders are only in effect for 10 days. So after that
1:22:051 hour, 22 minutes, 5 secondsthey have to have the final hearing unless there’s some kind of reasonable delay.
1:22:091 hour, 22 minutes, 9 secondsRight? Uh so the expectation is if they’ve ordered your guns relinquished with the temporary order, you are going to get a day in court very soon and at
1:22:181 hour, 22 minutes, 18 secondsthat point a decision needs to be made about whether that relinquishment will continue. The US Supreme Court has weighed in on this. They’ve said it’s
1:22:261 hour, 22 minutes, 26 secondsconstitutional that a a a defendant, the subject of a protecting a protective order can lose their Second Amendment
1:22:331 hour, 22 minutes, 33 secondsrights so long as the court makes a finding that that person poses a threat to the physical safety of another person,
1:22:401 hour, 22 minutes, 40 secondsright? What happens when you are served with a PFA and there is an order in there to relinquish your firearms? Like
1:22:471 hour, 22 minutes, 47 secondslike what is the practical implication of that? What does the person have to do then? So, this is a this is a muddy
1:22:551 hour, 22 minutes, 55 secondsquestion that we really probably could have talked about during the firearm episode. And I’ll tell you that I think in York County, this is potentially a
1:23:031 hour, 23 minutes, 3 secondsdeficiency with the sheriff’s department. There is a there’s a vulnerability here. And I’ve I’ve said this to them. Their priority very often
1:23:111 hour, 23 minutes, 11 secondsis to try to get into the home to get those firearms. I had a case as a prosecutor where that was what happened
1:23:181 hour, 23 minutes, 18 secondsand they uncovered drug activity inside the home.
1:23:221 hour, 23 minutes, 22 secondsI think all of that was potentially suppressible because they sort of coerced their way into the home and that was my fear as a prosecutor.
1:23:311 hour, 23 minutes, 31 secondsI I I hear that. But what do you have to do?
1:23:341 hour, 23 minutes, 34 secondsYou will have to relinquish the firearms, but you do not have to let the the sheriff’s in your home to do it.
1:23:401 hour, 23 minutes, 40 secondsRight. That’s that’s what I’m getting at. Do you have to give the firearms to the sheriff or could you give them to another party to store for you?
1:23:461 hour, 23 minutes, 46 secondsIn fact, read the order when they serve you with the order because the order gives you 24 hours to dispose of the firearms and you can either turn them
1:23:551 hour, 23 minutes, 55 secondsinto a local fire a local police department or you can turn them into like an FFL I believe in certain what’s an so like a licensed firearm dealer
1:24:031 hour, 24 minutes, 3 secondssomeone who who can take custody of them. I have to double check. I I wish I would have probably researched that more for this, but generally your your main
1:24:121 hour, 24 minutes, 12 secondsoption is turn it into a local police department, turn it into the sheriff’s or turn it into a relative.
1:24:181 hour, 24 minutes, 18 secondsYeah, a relative can safe keep. That’s where I wanted to go with this. You can actually have a relative or somebody store those firearms for you. They do
1:24:261 hour, 24 minutes, 26 secondshave to sign off on affidavit and things like that, but um a lot of times that’s, you know, people feel a lot better about that, right? It’s almost safer for your
1:24:341 hour, 24 minutes, 34 secondsfirearms physically, right? you know, and all that stuff. So, I I would really suggest if you’re served with that, I mean, or you think this might be
1:24:411 hour, 24 minutes, 41 secondshappening in your life, get a game plan together for that possibility. If you are someone who has a lot of firearms or even one firearm, like what you’re going
1:24:501 hour, 24 minutes, 50 secondsto do with that and how you’re going to I I’m sorry to interrupt you. Go ahead.
1:24:541 hour, 24 minutes, 54 secondsI I was going to say just I said what I said because you should be prepared that in your county the sheriffs are going to try and package this in such a way that
1:25:021 hour, 25 minutes, 2 secondsthey are not leaving without the firearms.
1:25:041 hour, 25 minutes, 4 secondsOkay. And you do not have to consent to them coming into your home and taking the firearms. The order itself gives you 24 hours. So read the order, see what it
1:25:121 hour, 25 minutes, 12 secondssays, and know your rights. If the sheriffs are trying to barge their way into your house to get these guns, you should probably contact a lawyer.
1:25:201 hour, 25 minutes, 20 secondsYeah. But do not physically obstruct them.
1:25:231 hour, 25 minutes, 23 secondsDon’t physically obstruct them. Don’t resist arrest. Get into a situation where you’re even you’re not being arrested, but where you’re you’re obstructing law enforcement and that
1:25:301 hour, 25 minutes, 30 secondstype of thing. Um, okay. So, let’s also talk a little bit, Tim, about
1:25:381 hour, 25 minutes, 38 secondsfirearms when it comes to not only relinquishment, but there are ways in a final PFA order to not have to
1:25:481 hour, 25 minutes, 48 secondsrelinquish your firearms, but it’s limited. There are only certain ways that this can happen, and it’s really how the the ultimate PFA order comes
1:25:561 hour, 25 minutes, 56 secondsinto play. Is it an agreement? Is it a hearing where the judge decides whether the PFA should issue or or not? So tell me about that a little bit.
1:26:041 hour, 26 minutes, 4 secondsYou have a hearing, the judge could make a finding that abuse is occurring or is likely to occur. And if that finding is made, then they are going to be legally
1:26:111 hour, 26 minutes, 11 secondsjustified in confiscating your firearms or ordering that ordering that they’re relinquished. And and that means that you are prohibited from possessing firearms or acquiring firearms for the
1:26:201 hour, 26 minutes, 20 secondsentire duration of that PFA, which in Pennsylvania can be up to three years.
1:26:241 hour, 26 minutes, 24 secondsIf you violate or or there is good cause to extend it, it can be longer. All right. So, so sorry to take that back,
1:26:311 hour, 26 minutes, 31 secondsguys. Simple facts here. What happens with a PFA and your firearms? If you have a hearing
1:26:371 hour, 26 minutes, 37 secondsand you are ordered a PFA by a judge, there is a firearm relinquishment
1:26:441 hour, 26 minutes, 44 secondsprovision automatically on that PFA. It will be there. If you reach an agreement and you with the other party and the
1:26:531 hour, 26 minutes, 53 secondsorder is issued by agreement and again you can have orders issued by agreement without admission of liability. And I’m going to kick it to Justin here in a
1:27:011 hour, 27 minutes, 1 secondsecond um to talk about benefits that that can have if you’re also charged in criminal charges. But if you reach an
1:27:091 hour, 27 minutes, 9 secondsagreement, you technically can put in the PFA order that firearms are not required to be relinquished. Now, the
1:27:171 hour, 27 minutes, 17 secondspractical implication of that is a little different as Tim, I know you’ve seen. Yeah. In a a recent case that you had where they still, even though you
1:27:251 hour, 27 minutes, 25 secondsworked that into the agreement, they still ended up taking the firearms. You want to tell us about that real quick and what you experienced there?
1:27:311 hour, 27 minutes, 31 secondsYeah. Well, and I think the judge in that case was correct. The judge was able to do in his discretion can order
1:27:381 hour, 27 minutes, 38 secondsthat the relinquishment order be lifted that it doesn’t apply.
1:27:421 hour, 27 minutes, 42 secondsNot putting it in the PFA order. And so now we’ve we mentioned this before that they in order to return firearms, they still have to pass a Pix check and the
1:27:501 hour, 27 minutes, 50 secondsstate police could flag that and say, “Well, you have a final protective order and so we’re not g we’re not going to grant you to have the guns back.” You would need to challenge that, file a Pix
1:27:591 hour, 27 minutes, 59 secondschallenge. And then you would probably want to attach a transcript of the PFA hearing to that and the final PFA order that specifically says cuz the judge
1:28:081 hour, 28 minutes, 8 secondsthat I was in front of at least was very good said no weapons relinquishment and put in the PFA order that he can have
1:28:171 hour, 28 minutes, 17 secondshis guns back. So you’re going to want to send that stuff to the state police.
1:28:201 hour, 28 minutes, 20 secondsBut didn’t you find yourself in a situation where even though it was ordered, you still had a problem getting it back from the sheriffs? Yeah, because
1:28:271 hour, 28 minutes, 27 secondsthe sheriff’s their position is and it’s correct that they have to pass a Pix check, but they were basically they were putting the cart before the horse saying
1:28:361 hour, 28 minutes, 36 secondsthat he will automatically fail the Pix check because there’s a final order.
1:28:391 hour, 28 minutes, 39 secondsThat’s not necessarily true because the judge is empowered to say even with a final order, you don’t give up your firearms. The other thing to
1:28:481 hour, 28 minutes, 48 secondsremember though is that state police is the one making that determination. So, they may not know all the facts of the final order. You may have to show that
1:28:561 hour, 28 minutes, 56 secondsto them. And we talked about this before. If they’re still not convinced, you’d probably have to sue them in federal court under the Rahini case, which again, if you did that, your PFA
1:29:041 hour, 29 minutes, 4 secondswould probably be over by the time that got litigated. Maybe.
1:29:081 hour, 29 minutes, 8 secondsUm, what was the final outcome of that case? And and again, he decided not to proceed any with anything further. I I had advised him in
1:29:161 hour, 29 minutes, 16 secondsadvance that this was a possibility. He knew going in that this was that he was potentially going to lose his firearms for a time and he was okay with that. the judge
1:29:251 hour, 29 minutes, 25 secondsvoluntarily as part of the agreement kind of opened a dialogue about whether he can have his guns back. The parties agreed. That’s the crazy part is that
1:29:321 hour, 29 minutes, 32 secondseven the the plaintiff was like, “Yeah, I don’t want him to lose his guns and we’re going separate ways. We just want no contact.”
1:29:391 hour, 29 minutes, 39 secondsAnd the judge, I think, was scared because I think that the sheriffs have told him he can’t do that. And he’s he believes them. He he believes that
1:29:481 hour, 29 minutes, 48 secondsthey’re correct, which I don’t think is true.
1:29:491 hour, 29 minutes, 49 secondsYeah. All right, guys. I I dude I want to b jump to Justin here in a second, but before I do that, and we probably actually should have said this in the beginning with PFAS, when you get to
1:29:581 hour, 29 minutes, 58 secondsthat final hearing, um you have two options in reality. You’re either going to have a hearing or you’re going to
1:30:051 hour, 30 minutes, 5 secondsdispute it on the facts and you’re going to leave it up to a judge to decide whether or not a PFA should issue and what the conditions of that PFA are. How
1:30:131 hour, 30 minutes, 13 secondslong can you see your kids? Does it have to be supervised? When etc. uh what type of contact can you can or can’t have?
1:30:221 hour, 30 minutes, 22 secondsAre you evicted from the house, which is another big one that people get kind of upset about. Uh Tim recently had a case that this was an issue in that he’s
1:30:301 hour, 30 minutes, 30 secondsactually still litigating. Um and uh I think you’re going to be successful in that one. I hope we’ll see.
1:30:361 hour, 30 minutes, 36 secondsUm yeah, but uh the the other side, the other way to handle PFAS is the secondary option, which is to reach an
1:30:441 hour, 30 minutes, 44 secondsagreement. And I really really guys think if you are getting, as I said earlier, a PFA against you, that is not
1:30:511 hour, 30 minutes, 51 secondsa criminal charge. And a lot of people go into it thinking it’s a criminal charge.
1:30:561 hour, 30 minutes, 56 secondsIf you learn later after you talk to us or your attorney that it’s not a criminal charge, and then you got to think about this, and I say this to
1:31:031 hour, 31 minutes, 3 secondspeople, I say, “Think about this. Okay, you broke up with this person, right?” Yes. Do you want to have a relationship with this person? Absolutely not. Do you
1:31:131 hour, 31 minutes, 13 secondswant to stalk them and hide in their bushes and try to get in contact with them? No. Absolutely. Why would I do that? Uh, okay. Well, if you don’t want
1:31:201 hour, 31 minutes, 20 secondsto have any engagement with this person anymore, then why the hell would you not try to just reach an agreement and just follow the agreement and go your
1:31:281 hour, 31 minutes, 28 secondsseparate ways because again, you’re not charged with a crime. Now, there might be practical implications like, well, I don’t want to lose my firearm rights or I have a house with this person, etc.
1:31:351 hour, 31 minutes, 35 secondsBut if you’re really just in a relationship, like you’re dating, it probably makes the most sense to try to just reach an agreement without a
1:31:431 hour, 31 minutes, 43 secondsfinding of liability or abuse. That is what’s going to get into this next part that I’m going to go to Justin on, which
1:31:501 hour, 31 minutes, 50 secondsis if you have criminal charges also simultaneously charged against you for the incident that the person is seeking
1:31:571 hour, 31 minutes, 57 secondsthe PFA on, you need to be very, very careful on how you’re handling your PFA
1:32:041 hour, 32 minutes, 4 secondsfor two main reasons. One, you do not want to have a finding of abuse going
1:32:111 hour, 32 minutes, 11 secondsafter defending criminal charges hanging over your head. And you got to be really careful about whether you have that hearing because if you have that hearing
1:32:191 hour, 32 minutes, 19 secondsand you get up there and testify, everything you say can and will be used against you and it’s under oath. So Justin, let’s talk about that a little
1:32:281 hour, 32 minutes, 28 secondsbit. Tell me about Okay, I’ve got criminal charges and somebody’s asked for a PFA and they’re related. It’s the same essential incident on both. What
1:32:351 hour, 32 minutes, 35 secondsWhat’s the best thing? How do you handle that?
1:32:381 hour, 32 minutes, 38 secondsBest way to handle that is uh normally the PFA hearing is going to uh final PFA hearing is going to happen before you
1:32:461 hour, 32 minutes, 46 secondseven get close to resolving your current.
1:32:481 hour, 32 minutes, 48 secondsOh yeah. Your case is going to be way far from resolution. So uh like uh you just said, you know, coming to an agreement uh I call it agreement by
1:32:551 hour, 32 minutes, 55 secondsconsent, agreement without admission, uh however you want to put that is is going to be in your best interest. Um because like you said, if you get up there and
1:33:031 hour, 33 minutes, 3 secondstestify, you are now under oath. uh that transcript of the proceeding can be used against you in the criminal case. Uh and essentially you’re locked into whatever
1:33:111 hour, 33 minutes, 11 secondsyou said. Um yeah, with the agreement, there’s no finding of abuse. Um and this goes for even cases without criminal charges. You
1:33:201 hour, 33 minutes, 20 secondsknow, I think in my mind when I first get a PFA uh case, whether it’s plain for defendant, my first thought is always, can there be
1:33:281 hour, 33 minutes, 28 secondsan agreement? Right? It’s just way easier. Uh it takes a lot less time and costs less. Usually costs a lot less. Um, and it’s just it’s
1:33:371 hour, 33 minutes, 37 secondsjust a simple way to do it. And like you said, like it kind of boggles my mind sometimes when we do get those people that want to fight these things and it’s
1:33:451 hour, 33 minutes, 45 secondslike, well, I don’t want any contact with them. I want nothing to do with them, but I just don’t want a PFA. Yeah.
1:33:491 hour, 33 minutes, 49 secondsAnd firearms aren’t even an issue. Like there’s really the only issue is like, I just want to fight about this to fight about it. Um, and then the big thing I say is why?
1:33:571 hour, 33 minutes, 57 secondsYeah. Like why? It makes no sense.
1:33:591 hour, 33 minutes, 59 secondsWhy go down that path? All you’re going to do is spend a ton of money and if you lose, you’re probably going to end up with a worse outcome and a worse, you
1:34:061 hour, 34 minutes, 6 secondsknow, PFA than if you just try to haggle and reach an agreement.
1:34:101 hour, 34 minutes, 10 secondsYeah. With the finding of abuse, I mean, that affects people in all different types of ways. And and again, if if the finding of abuse and you’re saying like I can’t have a PFA for whatever reason,
1:34:181 hour, 34 minutes, 18 secondsuh again, going to that hearing is risky because if there is a finding of abuse, again, that can affect you in many ways, not only with criminal charges, um but
1:34:261 hour, 34 minutes, 26 secondsuh definitely certain jobs, uh certain other things that may require different clearances, etc. If there’s a finding of abuse against you, it’s it’s going to it’s going to follow you.
1:34:351 hour, 34 minutes, 35 secondsYeah. And one of the things I also think is kind of important here with PFAS and reaching agreements if you have criminal charges is
1:34:441 hour, 34 minutes, 44 secondsyour attorney who’s negotiating that for you is going to get facetime with the victim in your criminal case or their
1:34:521 hour, 34 minutes, 52 secondsadvocate or both of them and be able to kind of not only gauge where they’re at but have a reasonable discussion, negotiate with them. And it’s kind of
1:35:001 hour, 35 minutesgoing to give us a bit of an advantage in the criminal case where that we’re also defending because we’re going to see that person. We’re going to know what kind of witness they’re going to
1:35:081 hour, 35 minutes, 8 secondsbe. We’re going to know where their head is at. And beyond that, they are going as the victim to probably feel
1:35:161 hour, 35 minutes, 16 secondsa bit more comfortable with you as the attorney. It’s a showing of good faith, honestly.
1:35:211 hour, 35 minutes, 21 secondsUm because again, there’s always going to be people that just want to battle everything out. Um but depending on how serious the allegations are, again, not
1:35:291 hour, 35 minutes, 29 secondsforcing uh that victim to go through multiple hearings and testifying over and over and the trauma that comes with that.
1:35:361 hour, 35 minutes, 36 secondsYes. And I think we as attorneys are very cognizant of that. And uh always will try to, you know, inform our
1:35:421 hour, 35 minutes, 42 secondsclients of what these reasons are. Um, like we’ve talked about in other episodes, when we go into certain situations and are trying to negotiate,
1:35:521 hour, 35 minutes, 52 secondsyou know, the best possible outcome for our client, sometimes they see that as we’re not fighting for them because we’re not doing exactly what they want or we’re not being combative. Uh, like
1:36:001 hour, 36 minutesagain, like we we are being as strategic.
1:36:031 hour, 36 minutes, 3 secondsYes, we are being strategic. Everything we do in our practice is strategic in our clients best interests. This is a
1:36:121 hour, 36 minutes, 12 secondschess game, folks. This is not a one-time hitter. This is every move you make affects the next move and what the other side does and how they react, etc.
1:36:211 hour, 36 minutes, 21 secondsIf you reach an agreement and you put that victim in a position where they are comfortable, they feel that they’re protected, they are a lot they feel a lot safer, months and months down the
1:36:301 hour, 36 minutes, 30 secondsroad when your criminal case is going to come to resolution, they are going to be probably much more likely to work with
1:36:371 hour, 36 minutes, 37 secondsyou and say, “You know what? He did me a solid. She did me a solid. They let me have the PFA. I’ve been feeling very comfortable for the last number of months. There hasn’t been any issues.
1:36:471 hour, 36 minutes, 47 secondsThat person on day 200 is probably a very different person than day one or
1:36:541 hour, 36 minutes, 54 secondsfive, you know, and and that that moves mountains when it comes to different plea agreements. It changes the outcome of your criminal case if you are
1:37:021 hour, 37 minutes, 2 secondsstrategic about how you deal with your PFA. That is why you need to have an attorney for both the criminal case and
1:37:101 hour, 37 minutes, 10 secondsthe PFA. And it should be the same person who’s going to get that facetime.
1:37:141 hour, 37 minutes, 14 secondsYeah. And I just was in court um I don’t know if it was last week or the week before for a PFA and uh the uh
1:37:221 hour, 37 minutes, 22 secondsdefendants’s PFA attorney was not his criminal attorney. And then he also and then there was also a custody case and that was a different attorney. Um and you
1:37:301 hour, 37 minutes, 30 secondscould tell that uh that was we we’ll say dad, right? And then mom mom mom’s attorney clearly was her attorney for the custody case, the PFA, and I’m sure
1:37:391 hour, 37 minutes, 39 secondswas somehow involved with advising her on the criminal. Yeah. As a victim.
1:37:431 hour, 37 minutes, 43 secondsAnd you could tell she was very frustrated because this guy didn’t know half the background for the custody matter. It it just seemed like a complete mess.
1:37:501 hour, 37 minutes, 50 secondsAnd you know, and lawyers have different relation or lawyers have different personalities and different ways of approaching things and they have different strategies. And if you’ve got
1:37:571 hour, 37 minutes, 57 secondsthree different strategies that don’t aren’t aligned, you’re going to end up with a situation that is it’s haphazard, it’s screwed up,
1:38:051 hour, 38 minutes, 5 secondsit doesn’t make sense, the end goal is not kept in mind. The chess game, it’s three different people playing chess.
1:38:111 hour, 38 minutes, 11 secondsLike you said, you know, we have to think ahead and when it comes to the PFA with other criminal matters and then potentially if there’s, you know, a PFA
1:38:181 hour, 38 minutes, 18 secondsviolation, an ICC charge filed, we have to think almost 10 steps ahead.
1:38:231 hour, 38 minutes, 23 secondsSo each move, we’ve already multiple times and put in place other
1:38:311 hour, 38 minutes, 31 secondsfavorably. And part of that is going to be conceding certain things and giving up some concessions because what we’re doing is buying good faith. We’re buying
1:38:391 hour, 38 minutes, 39 secondsgoodwill. So by the time we get to the very end, meaning the criminal case, which is usually going to have the biggest impact on someone’s life, we’ve
1:38:471 hour, 38 minutes, 47 secondsdone a number of things to put us in the best position to get the best possible result. Yeah, I’ve vowed out of PFA cases too and I
1:38:561 hour, 38 minutes, 56 secondsknow I mean that’s not in our interest obviously like we could take your money and do a PFA, but I’ve had cases where like there was no criminal charge and
1:39:051 hour, 39 minutes, 5 secondsthere is an ongoing custody dispute and and it and I’ve told people straight up like, “Look, I’m happy to help you with this. I’d love to help you,
1:39:121 hour, 39 minutes, 12 secondsbut you have to make a decision here about whether it makes sense to have your custody attorney handle this, too.” Because as you said, sometimes too many cooks in the kitchen is not a good idea.
1:39:211 hour, 39 minutes, 21 secondsIf you don’t have the custody side, we don’t do custody here. If you don’t have that side and it’s a PFA, criminal overlap, that’s like our bread and butter. We’re we’re big on that.
1:39:301 hour, 39 minutes, 30 secondsYeah. I mean, Tim, if you have a PFA and criminal overlap, but you also have custody, you probably want to have your criminal attorney doing the PFA.
1:39:381 hour, 39 minutes, 38 secondsYeah. And that makes sense.
1:39:401 hour, 39 minutes, 40 secondsYeah, that makes sense. Don’t have your custody attorney do the PFA if you also have a criminal matter. Right.
1:39:441 hour, 39 minutes, 44 secondsBut Tim, to your point, like if you don’t have a criminal matter and you literally are just dealing with custody or divorce and then there’s also this PFA out there, I think you do that, Tim,
1:39:531 hour, 39 minutes, 53 secondscuz you’re a good lawyer. Like you’re you’re a good person. Yeah. You’re a good person. I mean, that’s why you do that and you’re reasonable. You’re not just out there to take people’s money.
1:40:001 hour, 40 minutesYou you want to give them the best advice and that’s and like I’m still happy to do it, but like you said, there is wisdom, I think, sometimes in having somebody who’s got the bird’s eye view of the whole thing.
1:40:101 hour, 40 minutes, 10 secondsYeah. And with the criminal stuff, what you’re saying is really wise because I’m in a case right now where there it’s criminal and PFA overlap. There will
1:40:181 hour, 40 minutes, 18 secondsprobably be custody down the road and we’re in a situation where we’ve we’re not going to probably be able to make an
1:40:251 hour, 40 minutes, 25 secondsagreement on the PFA. So, our backs are kind of against the wall here and we are probably going to make the decision to fight the PFA. And that’s a decision
1:40:331 hour, 40 minutes, 33 secondsthat we are making cuz again, it’s strategic. We’re calculating. we have to be very careful because we’ve got this criminal case hanging in the background.
1:40:431 hour, 40 minutes, 43 secondsSo, I mean, we’re and again, a strategic move when you’re fighting the PFA, you really actually have to continue out the PFA until the criminal case is done.
1:40:521 hour, 40 minutes, 52 secondsCuz if you’re actually going to go full bar and fight it, you need to obviously, I’m sure you know this, you need to be cognizant of the fact that if your guy wants to testify, you’re not testifying
1:41:011 hour, 41 minutes, 1 secondin PFA first if you’re also going to fight the criminal case.
1:41:041 hour, 41 minutes, 4 secondsRight. Well, that’s the that’s the nuance is that I think we’re in a situation where the criminal case can resolve potentially.
1:41:111 hour, 41 minutes, 11 secondsWe’re past the preliminary hearing stage, so there’s a little bit less risk with him testifying in the PFA, assuming that he’s well prepped and that, you
1:41:201 hour, 41 minutes, 20 secondsknow, he he can handle that cross-examination, but there’s there’s always inherent risk there.
1:41:251 hour, 41 minutes, 25 secondsSo, having an attorney that’s going to be able to look at it and say, I can see both of these these issues, both of these cases, and we’re going to make this decision together. we’re going to
1:41:341 hour, 41 minutes, 34 secondsmake a tactical decision. Now, you probably want to have that because if it was the custody attorney and I was just in the dark on the criminal side and his
1:41:421 hour, 41 minutes, 42 secondscustody attorney was like, “Yeah, just just let’s fight it. Go up on the stand, whatever.” I have some I have some reservations about that.
1:41:501 hour, 41 minutes, 50 secondsIt’s kind of like you got two or three people in the dark room swinging baseball bats. Yes.
1:41:551 hour, 41 minutes, 55 secondsAnd God, you hope the other one doesn’t hit you, you know, cuz they could really hurt your criminal case by what they do.
1:42:011 hour, 42 minutes, 1 secondSo that again guys that that just it gets to why it is important to have the same guy aligned doing the same work to
1:42:101 hour, 42 minutes, 10 secondsa common goal in the end. All right guys, we talked about a lot. This was a long episode. Um for those of you that
1:42:191 hour, 42 minutes, 19 secondslisten to this whole episode, and I know there’s probably like one or two of you, or maybe it’s just my mom or something out there that does that, but for those of you that listened, thank you. Um I
1:42:271 hour, 42 minutes, 27 secondshope you learned something. Uh, you know, the whole point of us doing this, as we said before, we want to inform our clients, the public, even if you aren’t
1:42:361 hour, 42 minutes, 36 secondsour client. If you are in a situation that is domestic in nature, know how to handle yourself. Know your rights, whether you’re a defendant or a victim,
1:42:441 hour, 42 minutes, 44 secondslike know what you should do and what you shouldn’t do. And this podcast just told you all of that information. So, I hope if you’re struggling with
1:42:521 hour, 42 minutes, 52 secondssomething, whether you’re a defendant, whether you’re a victim, whether you’re somebody who’s neither, but you’re just in a domestic situation, seek help. It
1:43:011 hour, 43 minutes, 1 secondis out there for you. Uh don’t let it get to a situation that becomes deadly, lethal, horrible, damaging, etc. And
1:43:111 hour, 43 minutes, 11 secondsalso if you have children, think about your family here and think about your kids and what they are seeing in these
1:43:181 hour, 43 minutes, 18 secondssituations and do what you need to do for them. Okay? Uh we told you a lot about PFAS. Uh this is something that I
1:43:261 hour, 43 minutes, 26 secondsthink is Greek to a lot of people until they’re slammed into a PFA situation which happens very very quickly as we talked about. So thank you very much for
1:43:341 hour, 43 minutes, 34 secondslistening. Uh please look at our uh our our Tik Tok, our Instagram. um you know like subscribe you know all that weird
1:43:411 hour, 43 minutes, 41 secondsstuff that people always say. Um and we do a lot of these shorts because we do want people to kind of get this information with shorter attention spans
1:43:501 hour, 43 minutes, 50 secondsuh that I think is very uh beneficial for them to receive the information that way. Uh this is Kernney Law. This is now the Now We Defend podcast. Thank you very much for listening.