Man arrested for having gun on school property

[Dave in PA]

I really hope that was a cut&paste for you!

[Lastdefender]

Any update on this case?

[biggs88]

Originally Posted by Lastdefender

Any update on this case?

+1

If this is going to court, i'd like to attend.

[cock&lock]

Originally Posted by headcase

A friend asked me to post this:


If cock&lock were expressive instead of combative, and GunLawyer001 chose to respond in kind, I think we might see something that more closely represents agreement among them. I do not think cock&lock is necessarily wrong in what he is trying to convey, but it is harder to ascertain what it is when there are no mentions of the chronology of the case, and there is indeed the ability to confuse terms that have specific legal meanings or simply speak in generalities as they relate to the criminal process.

Although I thought I've read in the past that affirmative defenses, the qualification of which I am still not yet entirely clear on, but for our purposes here may include anything the legislature has termed "except(ion)", "exemption", "defense", and other prefaces of like character, have the wholesale ability to negate prima facie cases, my (re-)research to date has only provided evidence that one of the two types of affirmative defenses may negate the prima facie case. In my reading, the two types of affirmative defenses are 1) those that negate an element of the offense and 2) those that remove criminal culpability from an act where the elements are met. The type of affirmative defense that can negate the prima facie case is that which negates an element. Because a prima facie case must be one that, where the facts are accepted as try, would allow a jury to find all elements beyond a reasonable doubt, I think that the production of evidence in the form of affirmative defense would require Commonwealth persuasion at the prima facie level, since without it, at trial, a jury would have to at all times find a defendant not guilty.

The above isn't to suggest the courts have not discussed the distinctions between the legislature prefacing something "defense" as opposed to "exception". We see this discussed in part in the courts' analysis of 18 Pa.C.S. 6106 and 6108 but reliance is not simply upon those two words.

Pa.R.Crim.P. Rule 542(C)(2) and (3) <http://www.pacode.com/secure/data/234/chapter5/s542.html>, and the corresponding comment to (3), is suggestive that the defendant may somehow negate a prima facie case.

Because the defendant has had his preliminary hearing continued quite beyond the 3 to 10 days normally prescribed to commence a preliminary hearing from the preliminary arraignment (Pa.R.Crim.P. Rule 540(F)(1), <http://www.pacode.com/secure/data/234/chapter5/s540.html>) vague talk about motions which might normally occur following formal arraignment in the form of an Omnibus Pretrial Motion for Relief (Pa.R.Crim.P. Rule 578, <http://www.pacode.com/secure/data/234/chapter5/s578.html>), or even suggestions of negation at a preliminary hearing, could seem out of place. However, note the mention in Rule 578 saying "The omnibus pretrial motion rule is not intended to limit other types of motions, oral or written, made pretrial or during trial, including those traditionally called motions in limine, which may affect the admissibility of evidence or the resolution of other matters. The earliest feasible submissions and rulings on such motions are encouraged."

It certainly wouldn't make sense to put forth any motions prior to a preliminary hearing, since that is at least one vehicle by which affirmative defenses can be made, but the preliminary hearing doesn't foreclose such presentations, and in fact there are examples of times where motions take place that do not introduce evidence and therefore imply admission of acts (see, for example, Pa.R.Crim.P. Rule 606(B), <http://www.pacode.com/secure/data/234/chapter6/s606.html>, regarding motion for judgement of acquittal, which might otherwise include a motion to arrest judgement or a demurrer, and the exclusion of admission.) I do not know whether a motion to quash the information would put facts into record that could then be used against a defendant in trial, but it should be noted that evidencing a lack of harm or criminal intent alongside the presentation that the People have right to keep (Pa. Const. Art 1, Sec. 1) and to bear (Sec. 21) arms should place any actor outside the required culpability and push the burden of persuasion on the Commonwealth, in disregard for the actor being the defendant. It is noted in West's Pennsylvania Practice: Pennsylvania Criminal Practice, by Wasserbly and Moore, on page 474 of volume 16A, that "An accused need no longer admit commission of the act charged before seeking to assert an affirmative defense. He may even deny comission of the act charged and still request the fact finder to consider an excuse or justification for the commission of an at. For example, there is no legal prohibition to a murder defendant's denying a killing and arguing that the killing was done in self-defense." (Unfortunately there is not a citation or in-depth explanation for why this is the case now and was not before.) I see this as a serial application of the law, that if the first argument fails (that the defendant was not the actor) that the justification piles upon the new argument that the defendant was the actor.

I will need to search through my files to find my research on the aforementioned discourse regarding affirmative defenses, which will include several citations to cases. For now, I found this excerpt, although it can certainly be challenged as an incomplete explanation of the two types of affirmative defenses:


I am most certain I have cases more clear on the types of affirmative defenses. One document that I came across in my research, although not wholly applicable and not entirely helpful, is <http://www.fd.org/pdf_lib/Beneman_Affirmative_Defenses_materials.pdf>.

While I'm not sure that a motion to quash the information is the most appropriate vessel to have the affirmative defense answered, without case law I would accept cock&lock's presumption that any act which has an allowable defense, be it negativing an element or by removing criminal culpability, would in fact not be an act "‘all of which is against the Act of Assembly and the peace and dignity of the Commonwealth.’’ I did not easily find as many cases directly speaking to this matter as I had expected, however here is one of interest, Commonwealth v. Fusarini, 44 Pa.C.C. 501, 1916 WL 3676, Pa.Quar.Sess. 1916., speaking largely upon when an exeption is really part of the offense, and therefore must be negatived in the indictment (and therefore, the information.) I will exerpt this case as I follow up with my other research, but I direct GunLawyer001 and cock&lock to give it review, should they be interested. Even though the quash might not be available, there are plenty of other forms of relief that probably very well are.

The following is also as applicable here as it is to the man of Mifflinburg:
http://forum.pafoa.org/concealed-ope...tml#post891272 (Mifflinburg PA: Man with gun at football game)

And on the matter of interlocutory appeals, no one is promised them. As a defendant, one must get a trial court judge to certify an interlocutory ruling as appealable. The Superior Court may not take the interlocutory appeal without it. If the judge has performed a manifest abuse of discretion, then the judgement may be petitioned for review to the Superior Court, and if they find abuse, they themselves may take upon the appeal, but if they do not, they must refuse it, and you must wait until a verdict before appealing as of right.

One other thing that is very curious to me is standard jury instructions for 912. The ones I have read say that the jury must find that the defendant was not acting under that defense even where there is no suggestion that such a notion be brought as an affirmative defense. I implore the two lawyers here to check the standard jury instructions they are aware of until I can find mine to quote them.

Tell your friend that GL and the rest of the "popular kids" are not going to be pleased about his/her post. According to them there is no mechanism for disposing of this type of case short of going to trial (what a joke). Tell him to expect some SERIOUS neg rep as they gang up on him and try to chill a voice with a different opinion; a technique commonly used in these parts.

Finally, tell your friend that I learned awhile back that some lawyers are real litigators. Others are destined to perform real estate closings, troll the internet gun forums for clients, and prey on unsophisticated "gun yahoos" by separating them from their $20.00 at bullshit "workshops".

Litigators know what a prima facie case really is!

Regards to your friend for the information.

[ChamberedRound]

Originally Posted by cock&lock

Tell your friend that GL and the rest of the "popular kids" are not going to be pleased about his post. According to them there is no mechanism for disposing of this type of case short of going to trial (what a joke). Tell him to expect some SERIOUS neg rep as they gang up on him and try to chill a voice with a different opinion; a technique commonly used in these parts.

No one has tried in any way to silence you. Reputation, positive or negative, is a site tool which can be employed by most users for any reason. How a user chooses to employ said tool is up to them, but one thing's for sure: no one can silence you with negative reputation.

In addition, just because more than one individual may not agree with your opinion doesn't mean anyone's ganging up on you. Don't be so vain; you're not so important that there's a need for some kind of organized resistance against you. When you read such threads and realize that you're likely to have a differing opinion, if you don't care to hear it then don't hit the "Submit Reply" button. In other words, if you can't take the heat...

Originally Posted by cock&lock

Finally, tell your friend that I learned awhile back that some lawyers are real litigators. Others are destined to perform real estate closings, troll the internet gun forums for clients, and prey on unsophisticated "gun yahoos" by separating them from their $20.00 at bullshit "workshops".

Now this type of personal attack is a violation of site rules, so now you will be silenced with cause. See you tomorrow.

[cock&lock]

Originally Posted by headcase

A friend asked me to post this:


If cock&lock were expressive instead of combative, and GunLawyer001 chose to respond in kind, I think we might see something that more closely represents agreement among them. I do not think cock&lock is necessarily wrong in what he is trying to convey, but it is harder to ascertain what it is when there are no mentions of the chronology of the case, and there is indeed the ability to confuse terms that have specific legal meanings or simply speak in generalities as they relate to the criminal process.

Although I thought I've read in the past that affirmative defenses, the qualification of which I am still not yet entirely clear on, but for our purposes here may include anything the legislature has termed "except(ion)", "exemption", "defense", and other prefaces of like character, have the wholesale ability to negate prima facie cases, my (re-)research to date has only provided evidence that one of the two types of affirmative defenses may negate the prima facie case. In my reading, the two types of affirmative defenses are 1) those that negate an element of the offense and 2) those that remove criminal culpability from an act where the elements are met. The type of affirmative defense that can negate the prima facie case is that which negates an element. Because a prima facie case must be one that, where the facts are accepted as try, would allow a jury to find all elements beyond a reasonable doubt, I think that the production of evidence in the form of affirmative defense would require Commonwealth persuasion at the prima facie level, since without it, at trial, a jury would have to at all times find a defendant not guilty.

The above isn't to suggest the courts have not discussed the distinctions between the legislature prefacing something "defense" as opposed to "exception". We see this discussed in part in the courts' analysis of 18 Pa.C.S. 6106 and 6108 but reliance is not simply upon those two words.

Pa.R.Crim.P. Rule 542(C)(2) and (3) <http://www.pacode.com/secure/data/234/chapter5/s542.html>, and the corresponding comment to (3), is suggestive that the defendant may somehow negate a prima facie case.

Because the defendant has had his preliminary hearing continued quite beyond the 3 to 10 days normally prescribed to commence a preliminary hearing from the preliminary arraignment (Pa.R.Crim.P. Rule 540(F)(1), <http://www.pacode.com/secure/data/234/chapter5/s540.html>) vague talk about motions which might normally occur following formal arraignment in the form of an Omnibus Pretrial Motion for Relief (Pa.R.Crim.P. Rule 578, <http://www.pacode.com/secure/data/234/chapter5/s578.html>), or even suggestions of negation at a preliminary hearing, could seem out of place. However, note the mention in Rule 578 saying "The omnibus pretrial motion rule is not intended to limit other types of motions, oral or written, made pretrial or during trial, including those traditionally called motions in limine, which may affect the admissibility of evidence or the resolution of other matters. The earliest feasible submissions and rulings on such motions are encouraged."

It certainly wouldn't make sense to put forth any motions prior to a preliminary hearing, since that is at least one vehicle by which affirmative defenses can be made, but the preliminary hearing doesn't foreclose such presentations, and in fact there are examples of times where motions take place that do not introduce evidence and therefore imply admission of acts (see, for example, Pa.R.Crim.P. Rule 606(B), <http://www.pacode.com/secure/data/234/chapter6/s606.html>, regarding motion for judgement of acquittal, which might otherwise include a motion to arrest judgement or a demurrer, and the exclusion of admission.) I do not know whether a motion to quash the information would put facts into record that could then be used against a defendant in trial, but it should be noted that evidencing a lack of harm or criminal intent alongside the presentation that the People have right to keep (Pa. Const. Art 1, Sec. 1) and to bear (Sec. 21) arms should place any actor outside the required culpability and push the burden of persuasion on the Commonwealth, in disregard for the actor being the defendant. It is noted in West's Pennsylvania Practice: Pennsylvania Criminal Practice, by Wasserbly and Moore, on page 474 of volume 16A, that "An accused need no longer admit commission of the act charged before seeking to assert an affirmative defense. He may even deny comission of the act charged and still request the fact finder to consider an excuse or justification for the commission of an at. For example, there is no legal prohibition to a murder defendant's denying a killing and arguing that the killing was done in self-defense." (Unfortunately there is not a citation or in-depth explanation for why this is the case now and was not before.) I see this as a serial application of the law, that if the first argument fails (that the defendant was not the actor) that the justification piles upon the new argument that the defendant was the actor.

I will need to search through my files to find my research on the aforementioned discourse regarding affirmative defenses, which will include several citations to cases. For now, I found this excerpt, although it can certainly be challenged as an incomplete explanation of the two types of affirmative defenses:


I am most certain I have cases more clear on the types of affirmative defenses. One document that I came across in my research, although not wholly applicable and not entirely helpful, is <http://www.fd.org/pdf_lib/Beneman_Affirmative_Defenses_materials.pdf>.

While I'm not sure that a motion to quash the information is the most appropriate vessel to have the affirmative defense answered, without case law I would accept cock&lock's presumption that any act which has an allowable defense, be it negativing an element or by removing criminal culpability, would in fact not be an act "‘all of which is against the Act of Assembly and the peace and dignity of the Commonwealth.’’ I did not easily find as many cases directly speaking to this matter as I had expected, however here is one of interest, Commonwealth v. Fusarini, 44 Pa.C.C. 501, 1916 WL 3676, Pa.Quar.Sess. 1916., speaking largely upon when an exeption is really part of the offense, and therefore must be negatived in the indictment (and therefore, the information.) I will exerpt this case as I follow up with my other research, but I direct GunLawyer001 and cock&lock to give it review, should they be interested. Even though the quash might not be available, there are plenty of other forms of relief that probably very well are.

The following is also as applicable here as it is to the man of Mifflinburg:
http://forum.pafoa.org/concealed-ope...tml#post891272 (Mifflinburg PA: Man with gun at football game)

And on the matter of interlocutory appeals, no one is promised them. As a defendant, one must get a trial court judge to certify an interlocutory ruling as appealable. The Superior Court may not take the interlocutory appeal without it. If the judge has performed a manifest abuse of discretion, then the judgement may be petitioned for review to the Superior Court, and if they find abuse, they themselves may take upon the appeal, but if they do not, they must refuse it, and you must wait until a verdict before appealing as of right.

One other thing that is very curious to me is standard jury instructions for 912. The ones I have read say that the jury must find that the defendant was not acting under that defense even where there is no suggestion that such a notion be brought as an affirmative defense. I implore the two lawyers here to check the standard jury instructions they are aware of until I can find mine to quote them.

I guess after 6 days the opposing "lawyers" on this issue cannot come up with a response to your post.

Now that some lawyer's myths about what can and cannot be done in defense of criminal cases has been debunked, expect that summary judgment motions in these types of cases will now be filed thanks to people who have an enlightened approach to criminal defense, or more enlightened criminal defendants who will insist that their lawyer try to avoid any conviction as oppose to just simply pleading them out to some bullshit charge and playing the role of hero afterward.

[Pa. Patriot]

Originally Posted by cock&lock

Tell your friend that GL and the rest of the "popular kids" are not going to be pleased about his/her post. According to them there is no mechanism for disposing of this type of case short of going to trial (what a joke).

You really have gone off the rails here. They said no such thing. They said that a particular process was not available in criminal trial. Not that there was no way outside of trial. The posts you refer to do not appear to be in error, your interpretation of same is.

Originally Posted by cock&lock

... They Tell him to expect some SERIOUS neg rep as they gang up on him and try to chill a voice with a different opinion; a technique commonly used in these parts.

Anyone can read this thread and see why you've received neg rep. You seem incapable of discussing any disagreement without resorting to resorting to being nasty and hyper-emotional. Eventually resulting in personal attacks. You made specific claims of fact here and have YET to provide citations as asked. WHen asked you became belligerently rude and nasty, for no real purpose.
WHen you claim someone is wrong, in a matter of law or other fact, be prepared to support your claim when pressed. You did not, you resorted to name calling and other bickering not helpful to the thread. What you should have done is support your claim as asked.


Here is the deal. YOU brought this on yourself. CR was nice to you. I will not be so nice. You're infraction "rap sheet" speaks for itself. The mods here are pretty laid back, you really have to try damn hard to get repeated infractions as you have. Regardless, we've had enough of it and you've had enough chances to fix the issue. Either discuss your disagreements like a gentleman or walk away from the thread. Providing some references/citations for you earlier claims would be helpful too. Your next infraction will be permanent. You've had more than enough chances to behave here. This is posted publicly so there will be no confusion over what happens next.

[Paradigm]

Wow...ten red squares?!? Is that some kind of record?

[GunLawyer001]

Originally Posted by Paradigm

Wow...ten red squares?!? Is that some kind of record?

Might be. In the real world, people can be disliked for the color of their skin, or for foul body odor, or for being awkward or ugly. On the Internet, one really has to work at letting that inner asshole shine through the keyboard.

It's that same phenomenon we see in Al Franken or Michael Moore, albeit much smaller and pettier here; some weird and awkward kid is tired of being ignored, so he attacks the popular folks. Franken wrote an entire book about Limbaugh, then one about Bill O'Reilly, how sad is that?

Because if he's somehow associated with "important" folks, why, then he must be important too, right? Hey, it worked for Squeaky Fromme. But then, Gerald Ford didn't have an Ignore List.

[Paradigm]

Originally Posted by GunLawyer001

Because if he's somehow associated with "important" folks, why, then he must be important too, right? Hey, it worked for Squeaky Fromme. But then, Gerald Ford didn't have an Ignore List.

But he had a force field. Heck, how many shots were fired at him and he was never hit?

Fromme was recently set free. I imagine C&L will be set free shortly, as well...