The law practice of Attorney Gary E. Gerson has been focused exclusively on criminal defense for the past twenty-three years. During that time, Attorney Gerson has become familiar with the intricacies of the criminal law system. Due to his extensive experience, Attorney Gerson knows that the slightest misstep by police may be the foundation for a viable defense; the basis for a negotiation to lesser charges; or, in certain circumstances result in the complete withdrawal or dismissal of criminal charges.
Many of his clients have legitimate questions concerning whether their constitutionally-guaranteed right to “due process” has been violated as a result of illegal police conduct. The following information should be read by those individuals who have no prior experience with the criminal justice system in Pennsylvania as a “flow chart”. If you have questions about any aspect of this article or, alternatively, would prefer to speak directly to an experienced, competent and effective criminal defense attorney, we invite you to immediately contact Attorney Gary E. Gerson today at 412.567.0644.
Although the local rules of criminal procedure in Pennsylvania may vary slightly from county to county, the basic criminal justice system in Pennsylvania is very “linear”. In other words, after a Criminal Complaint is filed, the various proceedings: Preliminary Arraignment, Preliminary Hearing, Formal Arraignment, Pre-trial Conference, Hearing on Pre-Trial Motions, Trial or Plea Hearing, Sentencing, Post-Sentence Motion and Appeal, follow each other in a relatively “straight line” approach.
In order to justify the legality of an initial detention and arrest of a civilian, the arresting officer must have probable cause to believe that the individual was involved in the commission of a crime or crimes that had just occurred, were ongoing, or were about to occur. Based on the arrest, a Criminal Complaint is filed that itemizes the offenses to be defended against, and contains an Affidavit of Probable Cause that sets forth in detail the underlying “facts” upon which the criminal prosecution is based.
In certain cases involving non-violent misdemeanors or where the accused has no prior record of conviction, the police may elect not to arrest the accused. In such circumstances, the defendant receives a written Summons by mail to appear on a specific date and time for Preliminary Arraignment at the court of the Magisterial District Judge where the alleged crime or crimes are alleged to have occurred.
Regardless of whether a case starts with an arrest of the issuance of a Summons, the first proceeding is Preliminary Arraignment. The purpose of the proceeding is: a) for the defendant to receive a copy of a Criminal Complaint, b) to have a bond established by a judge, and c) to schedule a preliminary hearing.
The Criminal Complaint is the original charging document and serves the function of placing the defendant on notice of the alleged offenses to be defended against. The arraignment judge will read the complaint to the defendant, and advise him or her of the right to counsel, a preliminary hearing and bail. If the case begins with an arrest, the arraignment court judge may impose a bond involving “Release on Recognizance” (i.e., ROR), a straight cash bond, a percentage bond or a non-monetary bond. In cases involving non-violent or careless conduct, it is not unusual for the arraignment court judge to impose a ROR or non-monetary bond that does not require payment of money in order to be released from jail. However, in cases that involve violence, bodily injury, reckless or outrageous behavior, drug trafficking, firearms, a significant record of prior criminal convictions, or a risk of flight from prosecution, a significant straight cash or percentage bond will be imposed and must be paid before release from jail.
In most homicide cases, there is no bond.
In cases that start with the issuance of a Summons, the defendant will typically receive a ROR, non-monetary, and/or nominal cash bond. Regardless, the bond is essentially a contract requiring the defendant to appear with counsel for all proceedings. Generally speaking, as long as the defendant appears for all scheduled proceedings, he or she will be in compliance with the terms and conditions of bond. However, in certain cases, the arraignment court judge may impose special conditions of release that include, but will not be limited to: full and complete compliance with all local laws and ordinances, having no contact with an alleged victim or the victim’s family, abstinence from consumption of alcohol or non-prescribed controlled substances, mandatory reporting requirements to the relevant Bail Agency resulting from a new arrest, or changes in address or employment, and prohibitions on leaving the jurisdiction. Any violation of a special condition of bond, regardless of how technical, may result in a bond forfeiture and confinement in jail until trial.
The preliminary hearing is often the most important proceeding other than the trial itself, because it provides the only opportunity for the defense to record the testimony and assess the credibility of Commonwealth witnesses, including a purported victim. The initial proceeding must be scheduled within 14 days of preliminary arraignment if the accused remains in custody or, alternatively, within 21 days if the accused is no longer in custody. However, for a variety of reasons, it is not unusual for either party to request a first continuance of the preliminary hearing.
A preliminary hearing is precisely what its name denotes: the proceeding is a hearing and not a trial. Because it is not a trial, the guilt or innocence of the accused is not an issue to be determined by the Magisterial District Judge. What the judge must determine, however, is whether the Commonwealth has established a “prima facie” case (i.e. a basic showing).
Essentially, preliminary hearing is a “burden of proof” proceeding. Since a defendant is presumed innocent, he or she has no burden of proving innocence and rarely testifies. Rather, it is the Commonwealth’s burden to offer testimony or documentary evidence that would prove “that it is more likely than not” that some type of crime or crimes occurred and that the defendant was somehow, even remotely involved. A preliminary hearing is not a proceeding to attack the credibility of the Commonwealth’s witness or witnesses, since it is the standard of proof that all testimony be heard in a “light most favorable to the Commonwealth”. Consequently, in a very high percentage of cases, all or some of the originally-filed charges are held over for disposition in the Courts of Common Pleas. Regardless, in cases involving serious charges with significant penalties, it is recommended practice that defense counsel retain a stenographer to record the testimony of all Commonwealth witnesses for purposes of litigating pretrial motions or impeachment of a witness at trial.
Finally, the defendant may waive his or her right to a preliminary hearing in any case, regardless of whether the originally-filed charges include felonies, misdemeanors or summary offenses. Waivers typically occur in cases when the defendant may be eligible for a diversion program such as Accelerated Rehabilitative Disposition (ARD); when the guidelines suggest a probationary sentence is applicable in the Courts of Common Pleas; or when the Commonwealth is willing to withdraw certain more serious felony or misdemeanor charges for and in consideration of the waiver of the right to a preliminary hearing on the remaining offenses.
Formal Arraignment is the initial proceeding in the Courts of Common Pleas (i.e., trial court). The purpose of Formal Arraignment is: a) for the defendant to receive a copy of an Information, i.e., the charging document that sets forth all crimes to be defended against, b) for the defendant to enter a plea of “not guilty”, c) to place the case at the bottom of a trial list, and d) to trigger the deadlines for filing various pretrial motions. Although the various counties are distinguished by their local rules of procedure, typically, at some point in time, a pre-trial conference is scheduled.
The purpose of a Pre-Trial Conference is for the court to determine how the case will resolve (i.e., jury trial, non-jury trial, hearing on pretrial motions or negotiated plea) and whether there are outstanding discovery or evidentiary issues.
Every individual accused of a felony or misdemeanor has a constitutionally guaranteed right to a prompt and speedy trial. Those who remain confined because they cannot post bail or are ineligible for bail because of the nature of the charges they face must be brought to trial within 180 days of the filing of a Criminal Complaint. Those individuals who are no longer confined because of bail must be brought to trial within 365 days of the filing of a Criminal Complaint. These respective time periods may be extended due to previous defense requests to postpone certain proceedings or by the filing of pretrial motions, each of which are considered “excludable” for purposes of calculating compliance with the speedy trial statute. In cases where the Commonwealth fails to bring a case to trial within the relevant period of time, the trial judge has the option to release the accused on a nominal bond or, in rare cases, dismiss the charges.
In addition to speedy trial rights, every defendant has a constitutionally guaranteed right to: a jury trial, participate in jury selection, select a jury from a panel of peers, utilize peremptory strikes, utilize strikes for cause, a unanimous verdict by all 12 jurors, assert affirmative defenses such as alibi or self-defense, challenge the legality of police conduct or the search and seizure of evidence, confront Commonwealth witnesses, challenge documentary evidence, offer fact and character witnesses, and testify.
The accused may also waive the right to a jury trial and request a non-jury or “bench” trial. In this scenario, the trial judge serves the same function as the jury: to determine whether the Commonwealth’s witnesses were credible and, ultimately, whether the Commonwealth had met its burden of proving “guilt beyond a reasonable doubt” as to each element of every offense charged in the Information.
In the great majority of criminal cases, charges are resolved by a negotiated plea agreement between the parties, and with the encouragement of the criminal justice system. Otherwise, the entire system would be bogged down by overcrowded trial lists, creating tremendous stress on the Commonwealth to comply with the prompt and speedy trial rights of hundreds if not thousands of individuals in various jurisdictions.
In the typical scenario, defense counsel and the prosecuting attorney will discuss the potential for a “negotiated outcome” prior to the trial date; and, sometimes as early as the preliminary hearing. There are numerous factors that are subject to consideration during plea negotiations including, but not limited to: a waiver by the prosecutor of an applicable mandatory minimum sentence; the withdrawal of felonies or higher graded misdemeanors; a probationary sentencing recommendation by the prosecutor; or a recommendation that a sentence be served in an alternative to jail such as alternative housing in a lock-down residential facility or home detention with electronic monitoring and work release; referral of charges by the prosecutor to a diversion program; and, in rare cases a recommendation by the prosecutor for a reduced sentence based on active cooperation in other criminal investigations.
In the initial phase of the plea hearing, the parties inform the presiding judge that there is a negotiated plea agreement. The prosecuting attorney will state the terms and conditions of the negotiated plea agreement “on-the-record”. When defense counsel confirms that the prosecutor has accurately described the negotiated plea agreement, and the defendant confirms that it represents his or her understanding of the agreement, all parties are bound by its terms. The judge, however, is not bound to accept the plea agreement and may reject it.
In Pennsylvania, the accused must complete a written Explanation of Rights form for submission to the court as an exhibit to the proceeding. Depending upon the particular jurisdiction, either the judge, the prosecuting attorney or defense counsel will also conduct an oral “colloquy” with the defendant for the purpose of establishing that the entry of the guilty plea or pleas is knowingly, intelligently and voluntarily made and not the product of promises, threats or coercion. The colloquy also serves to establish that the defendant does not suffer from a mental illness that would affect his or her ability to comprehend the nature of the proceeding; and, additionally, that the defendant is not under the influence of alcohol or controlled substances to the extent that it would affect his or her thinking or free will. Otherwise, the presiding judge will not accept the guilty plea or pleas.
The defendant has the right to attempt to withdraw his or her guilty plea; however, the timing of an attempt is critical. Generally speaking, courts are more lenient in allowing an oral or written plea withdrawal prior to sentencing. After imposition of sentence, it is much more difficult to successfully attempt a plea withdrawal. In such circumstances, a written motion to withdraw guilty plea must be filed within 10 days of sentencing. Since the judge has previously determined that the entry of the guilty plea or pleas was knowingly, intelligently and voluntarily made, the judge is not compelled to grant the withdrawal attempt unless it is determined, after a hearing, that there is a “fair and just” reason for doing so. Mere dissatisfaction with a sentence is not a basis for a successful withdrawal of a guilty plea.
Unless the charges have previously been resolved through withdrawal by the Commonwealth, dismissal by the court after a hearing on pretrial motions, or acquittal after trial, the final phase of a criminal court case is the sentencing hearing, regardless of whether an individual is convicted as a result of a verdict after trial or entry of a guilty plea.
The rules of criminal procedure in Pennsylvania require a defendant to be sentenced within 90 days of the date of conviction.
Although there is great variance amongst the counties in Pennsylvania, in most cases involving non-violent misdemeanors or felonies committed by individuals with no prior record of criminal conviction, there is no need for a pre-sentence investigation and the sentencing court will proceed to sentencing immediately after accepting a guilty plea or pleas. However, in cases involving convictions for felonies involving extreme violence, serious bodily injury, drug trafficking, extensive damages and restitution, child or elderly victims, or outrageous or reckless behavior that places the public at large at risk, or an extensive prior record of criminal convictions, the sentencing judge will revoke any existing bond and order a pre-sentence investigation and report to aid in the imposition of sentence.
In either scenario, the sentencing judge will consider numerous factors including, but not limited to: the age, extent of education, employment, and marital status of the defendant, his or her efforts toward rehabilitation or counseling, whether there is a prior record of criminal conviction, the nature and offense gravity of the crimes of conviction, the sentence guidelines, and the terms of a negotiated plea agreement, if any, including sentencing recommendations by the prosecuting attorney. The defendant also has the right to address the court, and frequent uses the opportunity to establish mitigating sentencing factors such as contrition, loss of employment, financial responsibility for children or the caretaker needs of elderly parents. In cases where there is an actual victim, the judge will also consider a victim impact statement before fashioning a sentence.
Depending upon the severity of the crimes of conviction and the length of sentence imposed, the judge’s sentence may include any of the following or a combination of: probation, imprisonment in a state corrections institution, incarceration in a county jail, confinement in alternative housing in a community lock-down residential facility with work release, or home detention with electronic monitoring and work release, if otherwise eligible, and a period of parole.
As special conditions of sentencing, the judge may require payment of court costs including various fines, fees and surcharges; payment of restitution; performance of community service; attendance at “victim impact” panels; abstinence from alcohol or non-prescribed controlled substances; submission to random urine screens; attending educational classes; completing recommended courses of counseling or therapy; preclusion from operating a vehicle until restoration of driving privilege; or registration under the Sexual Offender Registration and Notification Act (SORNA).
As part of the Explanation of Rights colloquy, every defendant is informed of his or her post-sentence rights, including the right to court-appointed counsel if private counsel cannot be afforded. A Post-sentence motion must be filed within 10 days of sentencing and may include: a) a challenge to the validity of a guilty plea, or the denial of an attempt to withdraw it, b) a motion for judgment of acquittal, c) a motion in arrest of judgment resulting from conviction, d) a motion for a new trial, and/or e) a motion to modify sentence. Generally speaking, the sentencing court has 120 days to respond to the relief sought in the motions. If no action is taken by the judge, the motions are deemed denied by operation of law.
There is also a right of appeal to the Superior Court from the sentence imposed. In cases that proceed to trial and result in conviction, the defendant can raise a variety of issues on appeal, including sufficiency of evidence or incorrect rulings by the trial judge. In cases involving conviction by the entry of a guilty plea or pleas, the bases for an appeal are limited to: a) lack of jurisdiction by the court, b) an illegal sentence, c) the guilty plea or pleas were not knowingly, intelligently and voluntarily made, and d) defense counsel was ineffective.
An appeal must be filed in writing within 30 days of sentencing or, if post-sentence motions are filed, within 30 days of the denial of the motions.
Involvement in the criminal justice system can be the most daunting, terrifying, and humiliating experience of a lifetime. For “first time offenders”, the process can be overwhelmingly complex and intimidating. If you have recently been arrested or face pending criminal charges, the first and most important thing you need to do is immediately obtain the guidance of a knowledgeable and experienced criminal defense attorney who can properly analyze your case and explain potential defense strategies. Don’t jeopardize your rights or a potential defense by failing to act. Call Attorney Gary E. Gerson today at 412.567.0644 for a free and comprehensive consultation.