Law Office of Justin C. Gearty, Jr.

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A new law recently went into effect in Pennsylvania that will make more people eligible to have a criminal record expunged.  An expungement is a Court Order that requires the destruction of a criminal record.  In the past, only the following were permitted to be expungement:

  • Most charges following completion of the ARD Program
  • Charges that were dismissed (many people do not realize that when a charge is dismissed or someone is found not guilty, that charge still remains on the criminal record, although it will show that it was dismissed)
  • Summary offenses may be expunged if the defendant remains free of any convictions for a period of five years following the summary conviction
  • Charges may be expunged once a person reaches 70 years of age and has remained crime free for the proceeding ten years
  • A person that has been dead for three or more years would also qualify for an expungement

Under that rule, which is 1922 under the rules of criminal procedure, a person would not qualify for an expungement if he had a Misdemeanor or felony conviction unless the person did ARD, was 70 years old, or dead.  Under the new rule 1922.1, the following may be expunged:

  • Misdemeanor 3 and Misdemeanor 2 offenses so long as the crime is not punishable by more than 2 years of imprisonment.  To qualify for this expungement, the person would have to go ten years following the conviction without any new arrests and would have to have completed any requirements associated with their sentence.
    • The following would not qualify for expungement
      • 4 or more convictions where the potential sentence is one year or more
      • Simple assault that is graded as a Misdemeanor 2.  (the M3 simple assault would qualify for expungement)
      • intimidation of a witness
      • sexual intercourse with an animal
      • impersonation of a public servant
      • retaliation
      • any crime involving sex offender registration and
      • any crime involving the intimidation, retaliation, or obstruction relating to a child abuse investigation

Under 1922.1, although the charge can be expunged under the situations noted above, this would be a somewhat partial expungement.  For example, the expunged charged would no longer be available through any public searches and any state police background check would not show the charge, however, information regarding the conviction would remain on file with the prosecutors office so that if the person go into trouble in the future, the prosecutor could use the prior conviction when considering the prior record score for the current offense.

Also, an expungement under 1922.1 would not restore someone’s gun rights if their conviction resulted in the loss of any such rights.

If none of the above apply, a person can still have their criminal record removed through the Pardon process.  There are several differences between a pardon and an expungement.  First, if you meet one of the expungement criteria listed above, you  have a right to get an expungement.  There is no right to obtain a pardon.  An expungement is handled by filing a petition with the court of common pleas in the county in which the conviction occurred.  A pardon is filed with the state pardon board and ultimately would need the governor’s approval to be granted.


If you need assistance in clearing your criminal record, call us today for a free phone consultation.  717-490-6325

Substance abuse, whether that is the abuse of illegal substances or a legal substance like alcohol, comes into play in various different areas of law and is frequently seen at the Law Office of Justin C. Gearty Jr. When substance abuse is an issue in your legal matter, it is critical that you have an attorney that understands substance abuse issues in great detail. By having a lawyer familiar with that subject matter, the attorney can better prepare you for the questioning in the court and can assist you in getting treatment to ensure your case is presented in the best light possible. If the substance abuse issue is on the other side, for example; the other side of a custody case, you need an attorney that can effectively cross-examine the other side to establish any remaining issues, such as whether they have successfully completed ALL necessary treatment, whether the treatment recommendations were appropriate given the facts and circumstances of this case, whether sufficient drug testing has been done, whether the person has established a sufficient support system, etc.

Attorney Gearty is much more familiar than most with substance abuse issues. Attorney Gearty began working in addictions treatment in 2002. In July of 2016, Attorney Gearty became a shareholder and president of the board of H.S.A. Counseling, Inc, which now does business as Gearty and Skiles Counseling. Gearty and Skiles provides outpatient drug and alcohol treatment in Lancaster and Ephrata. Attorney Gearty has spoken on the topic of drug addiction in schools, rehab centers, jails, prisons, detention centers, etc. Mr. Gearty traveled the country working with over 30 different treatment centers as a business analyst.

If you or someone you know that has a case that involves substance abuse, such as a criminal case, child custody case, divorce matter, protection from abuse matter, or other, contact Gearty Law today for a free phone consultation.

Under Pennsylvania Law, there are typically 2 ways of obtaining a divorce. The first way is a divorce that is completed by consent. This is completed under section 3301c of the PA Divorce Code. The requires the filing and serving of a divorce complaint, a 90 day waiting period, followed by the execution of the divorce consents by both parties.

Often times, one party or the other may refuse to sign a consent. For example, spousal support or alimony pendente lite is often awarded to the lower earning spouse. The support award ends being anywhere between 30% and 40% (depending on whether there is also a child support award). Those support payments will continue until the divorce is completed, often times regardless of the length of the marriage. We have seen this result in people paying for support for 2 or more years for a marriage that lasted that long or less, which seems patently unfair. The had required 2 years of separation before a divorce could be completed without consent. Fortunately, the law was modified, which went into effect in December of 2016. The law, found under section 3301d of the PA Divorce Code, now allows for the completion of a divorce following a one year separation. Under section 3301d, if one party refuses to consent, the divorce can still be finalized without that persons consent once there has been one year of separation.

If you or someone you know needs representation, contact the PA Divorce Law Firm of Justin C. Gearty Jr. We offer a free, no obligation phone consultation. We are often able to offer a flat fee for divorces under 3301c and 3301d when there are no corresponding property or child custody claims. Call today for more information. 717-490-6325

At Gearty Law, we strive to provide a wide range of services in various areas of law so we can assist each client with all of his or her needs. We are pleased to announce that we are now accepting new clients seeking a school law attorney. We have attorneys on staff prepared to represent you and your child with a range of potential issues that the student may have. Having a school law attorney will help ensure that your student’s due process rights are protected and that your child is receiving the appropriate education. We can assist with IEP’s (individualized education plans), disciplinary matters, issues that may arise with children in a gifted program, issues that may arise with your college student, and various other matters involving school law.

Having a child with special needs impacts every area of a parent and child’s life, not the least of which is education. At Gearty Law Offices we understand how important it is for a child to receive an appropriate education. Education is the foundation of every child’s future. If your child has special education needs we can help you at any stage of your child’s development, from the determination of your child’s need for modifications for his or her education through an Individualized Education Plan (IEP) through representation at a Due Process Hearing when you cannot obtain the required modifications from the school. From early intervention (pre-school ages 3-5) through High School support may be available to assist your child and Gearty Law is here to help you through that process.
In Pennsylvania, under 22 Pa. Code §14.101 a child of at least 3 years of age and who meets the criteria of a disability under Federal law 34 CFR 300.200.J is eligible for early intervention services. For school age children Federal Law provides for a free appropriate public education to all children residing within the state between the ages of 3 and 21. 34 CFR 300.101. Let us assist you in ensuring your child’s educational needs are met.

For a free phone consultation with a qualified school law attorney, call us today!




            The Attorneys at Gearty Law Offices have experience successfully defending individuals against false PFA’s that were filed against them and our Attorneys have experience successfully protecting victims of domestic violence by obtaining protection from abuse Orders.

Under Pennsylvania Law, a person can obtain a PFA by proving by the preponderance of the evidence that one or more of the following has occurred:  1. Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault or incest with or without a deadly weapon; 2. Placing another in reasonable fear of imminent serious bodily injury; 3.  The infliction of false imprisonment; 4.   Physically or sexually abusing minor children;  5.  Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury.

A PFA can only be entered when one or the more of the above occurs by a household member, past or present intimate or sexual partner, or parties that share biological parenthood (which the Court’s have interpreted this to include step-siblings in certain situations).

Unfortunately, parties involved in Divorce and/or Child Custody proceedings have begun using PFA proceedings to try to gain an advantage in their custody or divorce proceedings and do so by bringing false allegations of abuse.  The Attorneys at Gearty Law Offices have seen numerous examples of this through the years and have been successful in getting such false PFA’s dismissed.  The law requires that the allegations brought in a PFA complaint be proven by a preponderance of the evidence and the burden of proof is on the Plaintiff.  If the Plaintiff is unable to meet that burden of proof, then the PFA must be dismissed.

In addition to defending against false PFA’s, Gearty Law also represents victims of abuse by representing them through PFA proceedings.  If you or someone you know is a victim of abuse or has had false abuse allegations brought against them, contact Gearty Law today for a free phone consultation at: 717-490-6325.

The Attorneys at Gearty Law Offices obtained a favorable opinion today from the Pennsylvania Superior Court regarding a child custody appeal.  A few months ago, a client came to Gearty Law after receiving an unfavorable child custody order at the trial level (the client had other legal counsel representing him at trial).  Upon coming to Gearty Law, we were able to find several errors of law that were in the custody order and opinion.  Gearty Law then filed an appeal on the client’s behalf to the Pennsylvania Superior Court.

Pennsylvania Child Custody Law requires the court to consider 16 different factors when making a custody determination.  In opinion listed below, the Superior Court lists those factors as well as some recent caselaw that applies these factors.

If you or anyone you know received an unfavorable decision at trial (whether in family law, criminal law, personal injury law, or other area of law), please contact the Appellate Attorneys at Gearty Law Offices to see if you have a potential issue for appeal to a higher court.  The Lancaster PA and Central PA Appeals/Appellate Attorneys at Gearty Law are here to assist with all of your appellate needs.

(Below are parts of the Superior Court’s opinion that explains the child custody factors and custody laws)




In his brief on appeal, Father raises four issues, as follows.

1. Whether the [trial] court erred and abused its discretion by

awarding the mother primary physical custody of the children by

misapplying and/or ignoring the factors outlined in

[23 Pa.C.S.A.] § 5328[(a)]?

Initially, we observe that, as the custody trial in this matter was held

in August of 2012, the new Child Custody Act, 23 Pa.C.S.A. §§ 5321-5340

(the “Act”), is applicable. C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super.

2012) (holding that, if the custody evidentiary proceeding commences on or

after the effective date of the Act, i.e., January 24, 2011, the provisions of

the Act apply).

§ 5328. Factors to consider when awarding custody

(a) Factors.—In ordering any form of custody, the court shall

determine the best interest of the child by considering all

relevant factors, giving weighted consideration to those factors

which affect the safety of the child, including the following:

(1) Which party is more likely to encourage and permit

frequent and continuing contact between the child and another


(2) The present and past abuse committed by a party or

member of the party’s household, whether there is a continued

risk of harm to the child or an abused party and which party can

better provide adequate physical safeguards and supervision of

the child.

(3) The parental duties performed by each party on

behalf of the child.

(4) The need for stability and continuity in the child’s

education, family life and community life.

(5) The availability of extended family.

 (6) The child’s sibling relationships.

(7) The well-reasoned preference of the child, based on

the child’s maturity and judgment.

(8) The attempts of a parent to turn the child against the

other parent, except in cases of domestic violence where

reasonable safety measures are necessary to protect the child

from harm.

(9) Which party is more likely to maintain a loving,

stable, consistent and nurturing relationship with the child

adequate for the child’s emotional needs.

(10) Which party is more likely to attend to the daily

physical, emotional, developmental, educational and special

needs of the child.

(11) The proximity of the residences of the parties.

(12) Each party’s availability to care for the child or ability

to make appropriate child-care arrangements.

(13) The level of conflict between the parties and the

willingness and ability of the parties to cooperate with one

another. A party’s effort to protect a child from abuse by

another party is not evidence of unwillingness or inability to

cooperate with that party.

(14) The history of drug or alcohol abuse of a party or

member of a party’s household.

(15) The mental and physical condition of a party or

member of a party’s household.

(16) Any other relevant factor.

23 Pa.C.S.A. § 5328; E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super.



In E.D., 33 A.3d at 79-80, the panel instructed that the “best interests

of the child” analysis requires the trial court to conduct a consideration of all

of the sixteen factors listed in section 5328(a) (emphasis added). In E.D.,

we addressed whether the trial court had failed to consider the factors set

forth in section 5328 regarding the custody award. After quoting the trial

court’s summary disposition of the issue, this Court instructed that, on

remand, the trial court should conduct a thorough analysis based on the

factors set forth in section 5328(a). Id. at 82.

Subsequently, in J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super.

2011), this Court addressed an appeal by a father from an order awarding

primary physical custody of the parties’ child. The panel determined that the

trial court erred as a matter of law in basing its decision almost exclusively

on the fact that the child was breastfeeding, and that the parties had

difficulty communicating with each other. Id. We concluded that the trial

court failed to assess all of the factors required to be considered under

section 5328(a). Thus, we vacated the award and remanded the matter,

stating that this Court could not make independent factual determinations.

Id., at 652 n.5.


Relying on the decision in J.R.M., Father argues that, in its order, the

trial court failed to consider all of the factors set forth in section 5328(a).

Thus, he seeks for this Court to either fashion a new order that significantly

increases Father’s periods of partial custody, or remand the matter to the

trial court with instructions for the court to engage in further fact-finding

with regard to each of the sixteen factors.

Attorney Gearty was recently interviewed and gave his expert opinion on the topic of unmarried couples living together.  This interview was published in a Lancaster based newspaper and the full article is published below.  As you will see, there are various considerations to be made prior to entering into a lease with another person.  Married couples enjoy various privileges that may not exist for unmarried couples.  If you are considering entering into a lease with your partner who you are not married to, we would encourage you to contact Gearty Law Offices to discuss the pros and cons before entering into any such arrangement.  Furthermore, it is always suggested that you have an experienced attorney review your lease before signing such an important legal document.  As a general practice law firm, we have experience handling various legal issues throughout various areas of law.  Gearty Law Offices has experience drafting, reviewing, and litigating leases (both simple and complex).

Intelligencer Journal/Lancaster New Era

A new lease on life?

A new lease on life?

February 28, 2013


A new baby was due, and so was the rent.

That didn’t keep Brian Hoffman’s tenant from cheating on his girlfriend, or that girlfriend from begging to be let out of a yearlong lease the couple had only recently signed.

Tears or no tears, landlords draw a hard line when it comes to cohabitants who want to split up while living together. During his 20 years in property management, Hoffman has issued one warning hundreds of times, whether he’s talking to in-love, but unmarried, tenants or best friends about to become roommates.

“Your relationship doesn’t matter to me, but your arrangements with regard to this lease will matter to me,” says Hoffman, whose Yeager Agency rents out dozens of units across northern Lancaster County. “If you move in and find out that she is an absolute bum or if she doesn’t respond to the lease, I’m going to hold you responsible.”

In the case of the expectant parents, Hoffman says the man used that fact to his advantage, telling his girlfriend he didn’t care if she disliked his cheating. She had to continue paying rent and utilities. They eventually both moved, Hoffman says, but not before forfeiting a security deposit and paying thousands in termination fees.

If breaking up is hard to do, try moving out when your name is still on a rental agreement. Paying off the remainder of a lease or early-exit fees — in addition to rent on a new place — can be financially devastating. Sticking it out and enduring months of anxiety isn’t a pleasant alternative. recently surveyed 1,000 U.S. renters to find out what life is like for those who break up while living together. The site found that 38 percent of renters have ended a personal relationship while living together, and 61 percent of those people kept living together for a month or more.

Not everyone is willing to make that kind of sacrifice. Sometimes a breakup means one party skips out, leaving the remaining tenant holding a mounting stack of bills.

David Boyd, property manager for Crossroads Property Management’s more than 500 homes in Lancaster, Harrisburg and York, has dealt with many a renter whose special someone wasn’t as special as he or she seemed. If the one left behind can’t muster the monthly rental and utility fees, they may be forced out as well. Boyd says in some cases, like that of a single mom, he might try to give a tenant a few extra days to work out payment.

“You never like telling someone, ‘You’re not paying your bills. You have to leave’,” Boyd says. “You want to help them, but you’re also responsible to the property owner.”

Lancaster attorney Justin C. Gearty Jr. says landlords can make a claim with the local magistrate, seeking to evict the person still in the unit, terminate the other person’s right to access the unit and win a monetary judgment against both tenants.

If one tenant moves out, Boyd says the other should always notify the property manager. In some cases, the landlord may want to run a new credit check to see if the person qualifies to rent the home based on one income. The lease can be amended to remove one name if both parties agree. In that case, only the roommate left behind will be responsible for the remainder of the lease term.’s survey found that 25 percent of renters who remained roommates after a breakup did so “because they didn’t see why they should be the one to have to leave.” If both partners want to keep the space, it may be time to consult a professional.

“They could retain a lawyer or mediator to help them reach some sort of agreement,” says Gearty, adding that any new arrangement will be at the sole discretion of the landlord.

Psychologist Michelle Callahan, a relationship expert who teamed up with on the breakup survey, lists a number of ways to determine who gets to keep the rental unit. Someone who works from home or cares for children there might have more incentive to stay. If the apartment is particularly close to one person’s job, that person might feel entitled to remain.

Of course, the person who wants out of the relationship may just want out of the home, too. Having an exit plan is something both renters should weigh before ever signing a lease, Gearty says.

When a contract’s involved, breaking up gets complicated and may be stalled.

Gearty Law Offices is a general practice law firm that largely focuses on criminal law, family law, personal injury, civil litigation, and unemployment appeals.  The Lancaster, York, Lebanon, and Central PA criminal defense attorneys at Gearty Law Offices have handled a wide range of criminal matters ranging for charges as minor as a summary disorderly conduct to very serious felony cases.

Although Gearty Law handles most types of criminal defense cases, our Lancaster, York and Central PA Drug Crimes Defense Attorney (Attorney Justin C. Gearty Jr.) places a special emphasis on drug crimes.  Prior to becoming an attorney, Attorney Gearty spent over seven years working in the field of addictions treatment.  In that field, Attorney Gearty spent several years counseling clients addicted to various substances and through those years, Mr. Gearty attended numerous trainings on various issues relating to drugs and addiction.  In addition to his experience working in addictions treatment, Attorney Gearty also possesses a bachelor’s degree in psychology, which also gave him education on various drug related issues.

When someone is charged with a drug crime, not only is it important to have an experienced attorney and one who has trial experience, it is also important to have an attorney that has a very thorough understanding of addiction and drugs.  For example, when someone is charged with possession with intent to distribute a substance, the State in most cases will have an “expert” take the stand and that “expert” will testify that based off of the circumstances in that case, he believes that the person possessed the substance with the intent to distribute it.  This means that the person didn’t actually sell any drug, but the state believes that he intended to sell the drugs based on the facts of the case.

Possession with intent to distribute is a serious felony and if convicted, can result in many years in state prison.  Also, if the weight of the drugs is above a certain limit, then a mandatory minimum sentence would apply upon conviction which means that the judge would have no discretion to sentence the person to any sentence less than the mandatory minimum.  Because of the seriousness of the consequences, these cases must be aggressively litigated by an attorney that isn’t afraid to go to trial and an attorney with a substantial knowledge of drugs and addiction, such as Attorney Gearty.

In many possession with intent to distribute cases, the State’s expert will rely on the following: the amount of the drugs possessed, amount of money that the person has on them, whether there was drug dealing paraphernalia present, and whether the person has any history of addiction.  First, an experienced and knowledgeable drug crimes attorney will attack the credentials of the expert.  To be able to do this, the attorney should have as much knowledge about drugs and addiction as the expert does.  If the expert’s credentials can be sufficiently challenged, it is possible for the court to rule that the person is not an expert and thus cannot provide opinion testimony.  Even if the court still finds that he is an expert, if the drug crimes attorney can attack the expert’s training, experience, and/or knowledge in general, then the jury will potentially see that the expert’s opinion isn’t reliable.  Many times these cases will simply rest on the amount of the drugs possessed.  That factor, however, can be challenged.  Each person is different and every person addicted to drugs responds to those drugs differently.  Every addicted person develops a tolerance over time, however, the extent of that tolerance varies by person.  Furthermore, the purity of the drugs would come into play.  The less potent the drugs are, the more of that drug the addict would possess.  The difference in sentencing for simple possession versus possession with intent to distribute is huge.

If you or someone you know has been charged with a drug crime in PA, contact our PA Drug Crimes Attorney (Attorney Justin C. Gearty Jr.) today for a free consultation.  717-490-6325 or by email at:

Lebanon man, woman escape heroin-dealing conviction
Lebanon Daily News

Updated: 02/05/2013 08:49:09 PM EST

No one disputed that 24-year-old Gilberto Escobar was wearing a coat containing 26 packets of heroin when he literally ran out of his shoes while trying to elude state parole officers last April 5.
Escobar was also carrying synthetic marijuana, an Alprazolam tablet, two cigar blunts, two cell phones and $1,763 in cash.

The criminal case against him changed radically in May when his girlfriend, Justene Sanchez, testified at his preliminary trial that the coat and the heroin and other drugs found in it were hers. She was subsequently charged. That left a Lebanon County jury to sort out the facts, and – after 3½ hours of deliberations Tuesday – the jury decided the drugs were Escobar’s, convicting him on charges of possession of heroin, possession of drug paraphernalia, possession of Alprazolam and possession of synthetic marijuana.
Escobar, of 362 N. 11th St., Lebanon, was found not guilty of the most serious charge, possession of heroin with intent to deliver.
Sanchez, 20, of 132 Brookside Apartments, Lebanon, was found guilty of criminal conspiracy related to possession of heroin and drug paraphernalia. She was acquitted on charges of possession with intent to deliver heroin, possession of heroin, possession of drug paraphernalia and criminal conspiracy related to possession with intent to deliver heroin.
Judge Bradford Charles scheduled sentencing for both for March 20.

At the time of his arrest, Escobar was on parole. He had been sentenced to 3 to 10 years in state prison in July 2008 for possession with intent to deliver crack cocaine and other drug charges to which he had pleaded guilty in May 2007.
Escobar did not testify in his trial Wednesday, but Sanchez did – against the advice of her attorney, public defender Elizabeth Judd.
“Why would she do that?” Judd said rhetorically in her closing statement to the jury. “The commonwealth showed you the reasons.”
Those reasons included: Escobar’s family bailed her out of Lebanon County prison after she had been charged; Escobar is the father of her child; and a state parole officer told her what the consequences would be for Escobar if he was convicted. “Ultimately, your decision is, who is the drug dealer here?” Judd said. “The evidence tells you Gilberto Escobar is the drug dealer.”

The jury, though, convicted neither defendant on the drug-dealing charge, despite testimony from Det. Sgt. Richard Radwanski of the Lebanon County Drug Task Force, who cited the quantity of heroin found on Escobar, the “large amount” of currency, two cell phones, Escobar’s failure “to list any legitimate source of income” and “no heroin or opiate addiction” for his conclusion that Escobar was a dealer.
Radwanski added that Sanchez also did not have a job or any known drug dependency.
Yet when Sanchez testified, she asserted that she had been a heroin user, a habit she said she was able to hide from Escobar because the two did not live together.
Radwanski said he did not believe Sanchez could kick a heroin habit “cold turkey,” which she said she did.
Sanchez also said Escobar would not have known about the drugs in the tan coat he took when he left his home on April 5 and was confronted by state parole agents, who chased him down on Lehman Street, tackling and Tasing him twice.

Escobar’s Lancaster attorney, Justin Gearty Jr., disputed Judd’s statement about drug dealing.
“The question isn’t ‘Who is the drug dealer?'” Gearty said. “My client doesn’t have to prove anything here. You can’t possess something if you don’t know it’s there. We heard testimony from Justene Sanchez that the drugs were hers.”
Gearty noted that parole officers did not find any drugs or paraphernalia in Escobar’s home when it was searched.
“Her story matched the facts,” Gearty said of Sanchez’s testimony.

Not so, Assistant District Attorney Nichole Eisenhart said.
“Behind every drug dealer there is a naive woman willing to take the fall,” Eisenhart said.
Eisenhart said Escobar would not have run from parole agents just because he didn’t have a job.
“Flight can be considered evidence of consciousness of guilt,” Eisenhart said.
Eisenhart said Sanchez could not have had a $600 to $900 a month heroin habit.
“Where is she getting money for these drugs?” Eisenhart asked. “What is there to indicate that either of these two are drug addicts? She quit cold turkey? … It just doesn’t add up.
“The only thing that adds up is Gilberto Escobar is a drug dealer.”
State sentencing guidelines call for Escobar to receive a minimum term of between 6 and 15 months in state prison. Sanchez’s convictions carry a minimum term of probation to 1 month in county prison.
Judd said Sanchez has no prior criminal record.

Recently Gearty Law was able to obtain a dismissal of sexual assault charges that were lodged against a client of the firm. Cases like this are examples of how good people can end up being involved with the criminal justice system. In this case, a statement was made alleging that the Defendant and a friend sexually assault a woman. There was absolutely no evidence that would have supported that statement. To the contrary, there was plenty of evidence to show this was a consensual act. Nonetheless, charges were filed. Once charges are filed, bail is set, the person needs to retain an attorney, and the person can go through months of worry regarding the potential outcome of the case (a loss could have resulted in decades in prison), not to mention damage done to a person’s reputation due to the charges being filed. Fortunately, in this case, the charges were dismissed before permanent damage was done.
Below is the article written regarding this case.



Daily American

10:40 p.m. EDT, October 22, 2012
Sexual assault charges against two 28-year-old Windber men were withdrawn at a second preliminary hearing before District Judge Joseph Cannoni Monday.

XXXXXXX, 19th Street, and XXXXXXX, Mine 37, were accused of forcing a woman to have sex with them Nov. 22.

“As a result of the further investigation it became apparent that there would be proof problems to support the crimes charged,” District Attorney Lisa Lazzari-Strasiser said in a telephone interview.

XXXX’s defense attorney, Justin Gearty of Lancaster, called the withdrawal of the charges “a happy resolution.” He said there is no evidence in this case other than a statement by the alleged victim.

“The reason XXXX waived his right to his (first) preliminary hearing and we agreed to a plea of recklessly endangering, a relatively minor offense compared to the more serious sexual assault offenses charged, was because we didn’t have all the evidence yet and we based our decision on the limited information we had,” Justin Gearty said.

Reckless endangerment was not among the original charges against the two men. It is not a sexual offense. Initially, the men were charged by Paint Township police with three counts each of involuntary deviate sexual intercourse and criminal conspiracy, and one count each of indecent assault and indecent exposure.

“All along XXXX was adamant that he didn’t do anything wrong,” Justin Gearty said.

The defense asked Somerset County President Judge John Cascio to remand the cases back to the magisterial court level after discovering evidence supporting the defense’s belief that a prima facie case did not exist. Prima facie is a Latin term meaning “at first view.” The district attorney’s office did not object to the request. Cascio remanded the case Sept. 18.

“We were prepared to proceed for a preliminary hearing today and go before a jury if need be,” he said.

On March 14 the two men waived their right to a preliminary hearing and the case was sent to county court prior to being remanded back to Cannoni’s office.

XXXX’s attorney is public defender Tara Marie Yutzy Collier. Assistant District Attorney Hannah Myers was the prosecutor for both preliminary hearings. Both attorneys were not available for comment Monday.

Both men pleaded guilty to a summary harassment charge that carries a maximum of 90 days in jail and a $300 fine. XXXX was ordered to pay fines and court costs. XXXX requested that he serve 15 days in jail in place of the fine. His request was granted. He was ordered to pay court costs.