What is a PFA or Restraining Order? In Pennsylvania, a Restraining Order is known as a “PFA”, or “Protection From Abuse” Order. If granted, these Orders can have serious repercussions on your freedom, your ability to legally possess or carry a firearm, your relationship with your children, and your future. Whether you are the victim of abuse and feel that you need a PFA against someone, or have been served with a Temporary PFA by someone else and are awaiting a PFA hearing, it is not a matter to take lightly, and DEFINITELY NOT A MATTER THAT YOU SHOULD HANDLE ON YOUR OWN. You need a lawyer to help you navigate this treacherous terrain.
THE PFA PROCEDURE: If you are served with a “Temporary PFA”, or a Temporary Protection from Abuse order, you will normally be temporarily evicted from the property that you were sharing with the person who had you served with the PFA, pending the hearing. Additionally, you could be ordered to relinquish any and all firearms that you lawfully own pending the trial. You would either relinquish them to the sheriff, or to a 3rd party, and file for a “safekeeping permit” with the person who is holding the firearms for you.
By law, the PFA hearing/trial is supposed to take place within 10 business days from the date you are served. However, depending on the Court’s calendar, the hearing will often be listed much sooner than the 10th business day.
THE LEGAL STANDARD: In a criminal trial, the government must prove a defendant’s guilt beyond a reasonable doubt. By contrast, at a PFA hearing, the petitioner/plaintiff (the one who is alleging abuse and filed the PFA against the “defendant”) only needs to convince the judge that s/he is being abused by a standard known as “the preponderance of the evidence”. In laymen’s terms, preponderance of the evidence simply means “more likely than not.” By percentage, it would mean a 50.1% chance that abuse is taking place. In other words, the standard is low, and you need an experienced lawyer to fight to defend you against the allegations and protect you from the consequences of a PFA.
THE CONSEQUENCES: And if the PFA is granted, the judge can put it in place for as long as 3 years. The judge can forbid you from possessing any firearms for the duration of the PFA (up to 3 years), forbid you from going to your own house, forbid you from having any contact whatsoever with the plaintiff, and even forbid, or curtail, your contact and visits with your children. If you violate the PFA, then you can go to jail for up to 6 months. If you are facing a PFA, don’t go into court without a lawyer. Call Tom.
MOTIONS TO SUPPRESS EVIDENCE – when people are arrested with illegal contraband on their person, in their car, their luggage, or in their home (guns, drugs, proceeds from a robbery), they often make the mistake of thinking that all hope is lost, and that there is no way they can win a trial. This is far from the truth. Just because the police found incriminating evidence on you, or in your car, home or luggage, doesn’t automatically mean that this evidence can be used at trial. Law enforcement may have obtained the evidence illegally and/or in direct violation of your 4th Amendment right to be free from an unreasonable search and/or seizure. Tom will analyze your case thoroughly and file motions to have the evidence “suppressed,” if the circumstances in your case warrant it. He knows how to analyze the evidence and cross-examine police officers and detectives in order to give you the best chance at having incriminating evidence suppressed. When appropriate, Tom will also present the judge with appellate case law (cases from the Superior and Supreme Courts) that closely align with the facts in your case, in instances where the appellate courts ruled that evidence was properly suppressed. Tom does this because trial judges are bound to follow, and are often persuaded by, the law cited in appellate cases.
MOTIONS TO SUPPRESS STATEMENTS – when someone gives a statement, or a “confession,” to the police, they often soon regret it, and wish that they hadn’t made the statement. This is because in most instances, individuals reveal incriminating information to the police and/or outright confess to the crime. However, just because a person reveals incriminating information or confesses to a crime, that doesn’t automatically mean that the statement can be used against them. It is possible that the statement was obtained in violation of your 5th Amendment right against self-incrimination. Police can violate this right by not reading you your “Miranda” warnings prior to asking you certain questions, and can also violate this right by forcing, threatening or coercing you into answering questions. If you gave a statement to law enforcement that could hurt you at trial, you need an experienced criminal attorney to draft, file and litigate a “Motion to Suppress the Statement” by questioning and cross-examining law enforcement regarding the circumstances surrounding the statement, in an attempt to have it suppressed.
VIOLATION OF PROBATION/PAROLE HEARINGS – if you or someone you know is on probation or parole, and have a violation hearing due to some alleged violation of the terms of probation or parole, your freedom is at stake, and the judge can take you into custody and give you a prison sentence. Do not go into a violation of probation/parole hearing without an experienced attorney who knows how to fight for you. Tom has handled hundreds of violation of probation/parole hearings, and will question the alleged violations and cross-examine the probation/parole officer, as well as make arguments to the judge for why your probation/parole should continue and/or be terminated, as opposed to you going to prison, house arrest, or being sentenced to a new term of probation/parole.
BAIL HEARINGS/MOTIONS – bail is the most important consideration for someone initially charged with a crime, and often the most overlooked. The government often uses bail as a means of keeping defendants incarcerated prior to trial. This gives the government leverage come trial time, because the charged defendant will already have “time credit”, and the government can therefore make an offer or plea deal that seems attractive to the charged defendant because it gets him/her out of jail at that time, or sometime in the near future. However, if that same defendant “makes bail” and is home, or “on the street”, they will fight the case because they are already out of jail, and will not want to take a deal that puts them back inside. This makes it harder on the government, since they don’t have any leverage over the defendant. If you or someone you know is facing criminal charges and has a high bail, contact Tom so that he can fight for you to try and get your bail lowered, get you back home, and “fight the case from the street,” making it that much more difficult for the government to secure a conviction.
DETAINER HEARINGS – if you or someone you know is arrested while on probation or parole, they will most likely have a “detainer” placed on them, meaning that the individual be held in custody pending the outcome of the new, open case. Detainers are often “dropped,” or lodged against probationers/parolees, by the probation or parole departments as a matter of course. However, that doesn’t mean that the detainer actually needs to remain in place during the entire time that the case for the new arrest is pending. Hiring an experienced attorney like Tom to file a “detainer motion,” asking the judge to “lift the detainer”, could free you or your loved one from jail even while the open case is still pending. Also, because of Tom’s intimate knowledge of the way in which the system operates, if Tom feels that there isn’t a good chance of the detainer being lifted, based on the nature of the charges or other circumstances, he will tell you that upfront, thereby saving you time, money and energy.
APPEALS – after a guilty verdict and subsequent sentence is rendered, you have the automatic right to appeal the conviction and/or sentence. There are numerous issu4es that can be raised on appeal – denials of motions to suppress evidence, denials of motions to suppress statements, questions asked (or arguments made) by the prosecutor, testimony given by the witnesses, evidentiary rulings made by the trial judge, evidence introduced during the trial, and the sentence given by the judge, are just some of the issues that can be raised on appeal. If an appeal is granted, the defendant could receive a new trial, a new sentence, or be set free with no chance of a retrial, depending on the issues. Only an experienced attorney can review the transcripts, testimony, evidence and sentencing guidelines in order to spot the potential appellate issues and litigate an effective appeal.
PCRA – PCRA, or the “Post-Conviction Relief Act”, affords a convicted individual the right to raise issues (normally after an appeal) that can result in the conviction being vacated, and a new trial being granted. Normally, the issues raised in a PCRA are limited to three: (1) ineffective assistance of counsel (meaning that the trial lawyer made errors that, had those errors not been made, could have resulted in a different outcome at the trial); (2) after-discovered evidence (meaning exculpatory evidence has now come to light, that was not known or available at the time of trial); and (3) a change in the law (and that new law must be declared “retroactive” by the Supreme Court and, of course, must be relevant to your case).