My client, a registered nurse at a Philadelphia hospital for many years, gave her life to helping others in their time of need.  She was distraught when, due to a family misunderstanding, she was charged with domestic violence offenses against her mother.  My client's mother unfortunately suffers from dementia, and after sustaining an injury to herself in a fall in the family home, the police were called and my client was arrested for domestic abuse.  Specifically, my client was charged with Simple Assault (18 § 2701 §§ A) and Recklessly Endangering Another Person (REAP) (18 § 2705); both misdemeanors of the second degree.

What can take place at the "first listing" for a Philadelphia domestic violence case?

Anticipating that the nurse's mother may likely not appear at the Philadelphia Criminal Justice Center at the first court "listing" of the case, I planned on addressing the matter in court at that time.  In case the Philadelphia District Attorney's Office (Philadelphia DAO) had arranged for the nurse's mother to be present, by sending a Philadelphia DAO Detective to escort her to court (or force her to go to court) for example, I wanted to keep certain cards "close to my vest" to best protect my client's interests come the time of the first court listing.  (I was also concerned that the Philadelphia District Attorney's Office may try to present its case with police officer testimony against the nurse if her mother did not appear at court.)  When the matter was addressed by the Court, the Philadelphia District Attorney's Office indicated that they had called their witness "off" for that court listing (the nurse's mother), and in doing so, hoped that the Judge would not list the "Commonwealth" (who the Philadelphia District Attorney's Office is referred to in court proceedings) as "not ready." 

What is "discovery" in a Philadelphia domestic violence case?

Another consideration was that the Assistant District Attorney in the courtroom had "discovery" available to be passed on the day of court.  (Discovery is the evidence provided by the Philadelphia District Attorney's Office when a person is charged with criminal offenses.  When a person is charged with domestic violence offenses, discovery generally will includes police reports, statements from the complaining witness or witnesses, statements from other witnesses, medical records, and so forth.)  Despite receiving discovery the day of court, and as part of my strategy as to how to best protect the nurse's interests in light of the fact that the Commonwealth may have been able to proceed without the nurse's mother being present, I indicated to the judge that I was ready to proceed and I asked that the court records indicate as such.  The case was continued for several weeks, and I arranged with the court staff to get the earliest possible court date with the hope that this matter could be resolved as soon as possible for the nurse.

At the second court listing, the nurse's mother again did not appear at court.  I indicated that I was again ready to proceed with the case.  The Philadelphia District Attorney's insisted that the case be continued a third time and claimed that their having "called off" their witness (the nurse's mother) for the first court listing should not be held against them.  Knowing that Philadelphia domestic violence cases are sensitive, I had to make another strategic decision on behalf of my client at that time. 

Can a prosecution witness be "forced" to come to court in a domestic violence case?

It is of course critical to aggressively assert a client's position when appropriate, but in Philadelphia domestic violence cases, I have seen attorneys insist upon a certain course of action in court and I have seen it backfire.  For example, if a witness fails to appear, the judge will make a decision at the applicable time as to what to do with the case.  The Philadelphia District Attorney's Office has resources, however, to get prosecution witnesses to come to court.  As touched upon above, the Philadelphia DAO can send a DAO Detective to go to the home or workplace of a witness to escort the witness to court.  The Philadelphia District Attorney's Office can also ask that a bench warrant be issued for a prosecution witness so that the witness can be taken into custody prior to the next court date so that it will be assured that the witness will come to court at that next court listing (or more accurately, so that it will be assured that the witness will be brought to court by the Philadelphia Sheriff's Department because the witness would be coming to court from jail on State Road). 

Can a bench warrant be issued for a prosecution witness in a domestic violence case?

Although it would be arguably unlikely that the Philadelphia District Attorney's Office would ask that a bench warrant be issued for an elderly woman with dementia, the DAO will also do whatever it believes is necessary to prosecute a case.  With these considerations in mind, and over the objection of the Assistant District Attorney in the courtroom, I explained to the judge that my client and I understood that she has an obligation to the Court, but that she is a nurse at a Philadelphia hospital and that she continues to have to miss work due to the court proceedings.  I asked the judge if she would entertain dismissing the case for "lack of prosecution."  The judge, in response, asked the Assistant District Attorney (ADA) if he had any recent contact with the nurse's mother.  The ADA indicated that a phone message had been left for the nurse's mother that morning.  The judge, taking into account all of the circumstances of the case, granted my motion that the case be dismissed for lack of prosecution, and with that decision, my client was free to go back to her work as a Philadelphia nurse, to get her family back together, and to live her life.

Can domestic violence charges be expunged?

An important secondary consideration is that I am now working on having my client's Philadelphia domestic violence charges expunged from her criminal record.  I explained to the nurse that the Philadelphia District Attorney's will sometimes, if not often, object to an expungement of such domestic violence charges if the case resolved itself without the prosecution witness (or witnesses) appearing at court (as was the case in her case).  In other words, when a Philadelphia domestic violence case ends in such a manner, the DAO believes that the case did not end "on the merits" of the case, but rather, on a "technicality" so to speak; the technicality being that the necessary prosecution witnesses failed to appear (or that the Philadelphia District Attorney's Office arguably did not do its due diligence to prosecute the case). 

Because the nurse's domestic violence charges were, per my request on her behalf, dismissed for "lack of prosecution," rather than "withdrawn" at the discretion of the DAO, the DAO's prospective objection to my client's expungement will not only be less of a potential issue, but any argument that the DAO can make at a contested expungement hearing (if applicable) would be seriously weakened by the Judge's decision in our favor.

Update: I was able to secure the consent of the Philadelphia District Attorney's Office regarding our request for relief, and my client's expungement has since been granted.  My client will be able to renew her Pennsylvania nursing license in October without issue.

Pennsylvania Domestic Violence Attorney | Philadelphia Domestic Violence Lawyer

If you or a loved one has questions or concerns about domestic violence charges in Pennsylvania, whether you are a doctor, nurse, other medical professional, or have employment concerns of any kind, contact the Lento Law Firm today.