In Commonwealth v. Abraham, decided by the Pennsylvania Superior Court on June 08, 2010, the Court ruled that a criminal defense lawyer must advise his client if a guilty plea will result in forfeiture of the teacher’s pension. In Abraham, the defense attorney did not advise his client that pleading guilty would result in a forfeiture of the client’s pension. After entry of the guilty plea the client’s pension fund was forfeited and the client filed a Post-conviction Relief Act petition, or PCRA, alleging ineffective assistance of counsel. The trial court had ruled that the lawyer was not ineffective, but the Superior Court reversed, in a holding similar to that of the recent United States Supreme Court holding in Padilla, posted here earlier, that a criminal defense lawyer must advise his client of the immigration consequences of a guilty plea to any crime that could result in deportation.

Liz has been named a Rising Star by Philadelphia Magazine and Law & Politics Magazine for the third consecutive year. Check out the details at http://www.superlawyers.com/pennsylvania/lawyer/Elizabeth-L-Lippy/30699287-e851-4818-9802-b26bd54a76d1.html

Congratulations to Steven Fairlie for being named a 2010 Super Lawyer.  The award is only presented to less than 5% of attorneys state wide.  Quite a prestigious award and honor. 

http://www.superlawyers.com/pennsylvania/lawyer/Steven-F-Fairlie/efcb7100-18c2-43ea-ba39-8f9abb617013.html

A new United States Supreme Court holding dealing with Miranda has just come down: BERGHUIS, WARDEN, PETITIONER v. THOMPKINS, No. 08–1470. The Supreme Court reversed the United States Court of Appeals for the Sixth Circuit despite a strong dissent. The Sixth Circuit had ruled that a statement made by a man accused of First Degree Murder was obtained in violation of Miranda v. Arizona, 384 U. S. 436 (1966). Police officers Mirandized and then interrogated the man for several hours about a fatal shooting. The man did not invoke his Miranda rights nor did he waive them. He just said nothing in response to police questioning. Near the end of the questioning he answered “yes” when asked if he prayed to God to forgive him for the shooting. The Court held that silence during interrogation does not invoke the right to remain silent as the right to silence or counsel must be invoked “unambiguously”. Essentially, the lesson of this case is that an explicit (traditionally written) waiver of Miranda rights is no longer needed under federal Miranda precedent and merely failing to affirmatively invoke your rights will constitute a waiver of those rights. Thus, someone who does not wish to speak with police about an issue must tell them that out loud. Perhaps more effective is to request a lawyer, which prohibits the police from coming back to question the person again at a later time until the lawyer is obtained.
It is likely that the Pennsylvania Supreme Court will adopt this interpretation in Pennsylvania cases when interpreting Article I § 8 of the Pennsylvania Constitution, so that there will be no greater protections in Pennsylvania than under federal law. The impact on our cases in Montgomery County and Bucks County will be the same as that under federal Miranda law.

In an unanimous (3-0) panel decision the Superior Court has just issued a decision reversing an order of restitution where the Commonwealth presented no evidence to support the alleged amount and the Trial Judge placed the burden on the Defendant to prove why the amount was not accurate. The facts were that Christopher Atanasio pled guilty to simple assault on Donald Eisenhart and pled nolo contendre to simple assault on Heather Souder, who sustained a punch to the face while trying to break up the attack on Eisenhart. Souder sought medical treatment for a broken ankle three days after the incident.
After Atanasio was sentenced to state prison, a hearing was held on the $3,000 claim of medical expenses for the ankle fracture. The Commonwealth failed to produce any witnesses or evidence either at sentencing or the Sentence Modification hearing on the extent or causation of the claimed injury, and the Court placed the burden on the Defense to show why the claimed amount of restitution was unreasonable. Atanasio asserted that due process was violated by the trial court demanding he provide evidence to support his challenge and not requiring any evidence from the prosecution. In overturning the Order, the Superior Court agreed that the burden of proving entitlement to restitution lies with the prosecution.

The United States Government has been systematically chipping away at Constitutional rights for many years. In yet another assault on privacy and individual rights, the House passed a Bill, by unanimous vote of all Democratic members, that will require people who have been arrested but never convicted to have their blood drawn by needle, analyzed, and kept in a DNA database. While it will be nice to have more DNA to investigate serious crimes, people who have been wrongly accused and exonerated should not have to withstand the additional insult of providing blood samples to be kept in a DNA database.

Many people do not contemplate the consequences of disposing of an old copier or scanner. While they take great pains to “scrub” or destroy the hard drives of their old computers, they simply discard copiers and scanners without a thought about the consequences. As a recent CBS News report, http://www.cbsnews.com/video/watch/?id=6412572n&tag=related;photovideo, warned, old copiers are a new source of data for identity theft. The CBS report shows shocking footage of documents recovered from a Buffalo Police Department copier (sex crimes unit arrest reports, Narcotics offense police reports, etc), individual medical records containing test results and diagnoses, etc. The risk of identity theft in these situations is great, and companies should realize that disposing of a copier without scrubbing the hard drive is a lawsuit waiting to happen