Nebbia Orders | Getting a Nebbia Order Lifted in Philadelphia

In most Philadelphia criminal cases, the defendant will have bail set at preliminary arraignment. The defendant’s bail will be based on a number of factors, including ties to the community, previous criminal record, the nature of the charges, the strength of the evidence against the defendant, and other factors such as whether the defendant works or has prior failures to appear for court (bench warrants). Typically, if the defendant can pay 10% of the amount set by the bail commissioner, then the defendant will be released pending trial. However, in some cases, particularly those cases involving large quantities of drugs or financial crimes, the bail commissioner may also place a Nebbia Order on the defendant which can prevent the defendant from being released until the order is lifted.

What is a Nebbia Order?

A Nebbia Order is an order which prevents the defendant from being released even if the defendant can pay bail. Instead, the defense attorney must file a Motion to Lift the Nebbia Order before the defendant posts bail. The Motion must lay out exactly from where the funds which will be used to pay bail are coming in order to show that the funds for bail are not coming from illegal activities like selling drugs or financial fraud. Typically, this will mean showing that whoever is going to pay bail on the defendant’s behalf has either assets, savings, or credit sufficient to be able to afford to pay for the defendant’s bail. Thus, the Nebbia Order prevents the defendant from being released so long as the Order remains in place.

What happens if I post bail when I have a Nebbia Order?

If you post bail while you have a Nebbia Order, you will not be released. Therefore, you should always retain a criminal defense lawyer prior to posting bail so that the Nebbia can be addressed. Otherwise, the Court will likely hold onto the money until the case is over, but the defendant will remain in custody.

How do I get a Nebbia Order lifted?

Petitioning for the lifting of the Nebbia Order is relatively straight-forward, but it does require a criminal defense attorney. The defendant’s attorney must file a Motion to Lift the Nebbia Order and explain exactly where the bail money is going to come from. The defense will also be expected to provide proof that the person who is going to pay bail is going to use legitimate funds to do so. For example, if the bail is going to be paid by taking out a home equity line of credit on a house, the defense would be expected to provide proof that the loan has been approved by a bank.

Once the defense attorney files a Motion to Lift the Nebbia Order, the Court of Common Pleas Motions Judge will typically schedule a hearing in about a week in order to review the Motion and the proof of legitimate funds provided by the defense. In some cases, it may be possible to get a quicker hearing. In many cases, the Commonwealth may be satisfied that the money is indeed coming from a legitimate source and agree. In others, the Commonwealth could object, and then the Motions Judge would be required to rule on whether the defense has met its burden of providing sufficient proof that the funds are legitimate. Once the Judge is satisfied, the Judge will lift the Nebbia Order. The defendant may then post bail and be released pending trial.

Can I get my bail reduced also?

In many cases, if the defense is going to file a Motion to Lift the Nebbia Order, it may be possible to file a written Motion to Reduce Bail at the same time. Because the issue will be heard by the Court of Common Pleas Judge either way, there is often not much to lose (and potentially a lot to gain) by asking the Judge to also review the bail situation in general. Therefore, the defense can file both a Bail Reduction Motion and a Motion to Lift the Nebbia at the same time. Then, the Motions Judge can review both issues at the same time and potentially reduce bail while at the same time lifting the Nebbia Order.

Philadelphia Criminal Defense Lawyers for Bail Reductions and Nebbia Orders

Philadelphia Criminal Defense Lawyers - Goldstein Mehta LLC

The Philadelphia Criminal Defense Lawyers of Goldstein Mehta LLC have successfully defended thousands of clients against all types of criminal charges. We have been particularly successful in helping clients who are incarcerated following their preliminary hearing because they cannot afford bail in getting bail reduced, Nebbia Orders removed, and detainers lifted. Our award-winning defense attorneys offer a free criminal defense strategy session to anyone who is under investigation or facing criminal charges. Call 267-225-2545 to speak with one of our Philadelphia Criminal Lawyers today. 

Identity Theft Charges in Pennsylvania

We have just written an update on Pennsylvania's Identity Theft Statute. Identity Theft can be a serious charge due to the large amounts of restitution that are often involved and the fact that it may be charged as a felony offense. Fortunately, there are often defenses to this white collar crime. Click here to learn more about Identity Theft charges in Pennsylvania. 

After-Discovered Evidence Motion | PCRAs and Appeals

Can I use new evidence to overturn a criminal conviction?

If the defense learns of new evidence after the defendant has been convicted but while the defendant is still serving a sentence, it may be possible to obtain a new trial by filing a post-sentence motion or PCRA Petition. For example, if new witnesses come forward or relevant video footage is uncovered, it may be possible to use that evidence to obtain a new trial. In general, Pennsylvania law provides a number of different ways to attack a criminal conviction or guilty plea. The normal appeals process involves filing post-sentence motions and if they are denied, an appeal to the Pennsylvania Superior Court. If that is not successful, the defendant may be able to challenge a conviction by filing a Post-Conviction Relief Act Petition.

After-Discovered Evidence Motions

Philadelphia Criminal Appeals Lawyer Demetra Mehta, Esq.

In addition to the normal appeals and PCRA process, there are also special motions which may be filed when the defense learns of new evidence or witnesses which would have made a difference and possibly led to a different outcome at trial. There are two types of after-discovered evidence motions, and the standard which must be met differs slightly depending on whether the case is still on appeal or whether the direct appeals have been exhausted.

Post-Sentence Motion for a New Trial

First, if the defendant has been found guilty but the case is still in the trial court for sentencing or post-sentence motions or it is still in the Superior Court for a direct appeal, the defense attorney must file a post-sentence motion with the court promptly upon the discovery of the new evidence. In order to obtain a hearing, the defendant must plead four things under Pennsylvania Rule of Criminal Procedure 720:

1. That the evidence was not available at trial to the defense despite the exercise of due diligence. This means that the defense must have taken reasonable steps to investigate the case and find the evidence. If the defense attorney did not conduct any investigation of any kind and should have interviewed a helpful witness who was mentioned in the discovery, then the motion will fail this prong.
    
2. The evidence is not cumulative. This means that if the defense already presented four alibi witnesses and would have presented a fifth alibi witness to testify to the same thing, the defense may fail this prong because the evidence would have been cumulative.
    
3. The evidence may not be used solely for impeachment. Thus, the fact that the defendant learns that a witness had a conviction for crimen falsi would likely not warrant a new trial. Instead, the evidence must be substantive – meaning a new witness who would testify to an alibi, or a new scientific method for testing DNA or fingerprints and corresponding results that would show that the defendant could not have committed the crime. 
    
4. That the evidence would have resulted in a different verdict. This is often the hardest prong as witnesses who wait years to come forward may have credibility problems, and ultimately, the trial judge must rule on whether the witness would have made a difference at trial. 

If the defense is able to plead all four of these things relating to the new evidence or new witness, then the trial court should hold a hearing on the after-discovered evidence motion, make findings of fact, and determine whether the defendant should receive a new trial. At the evidentiary hearing, the Court will typically hear testimony from the new witness or view the new evidence and also hear from the defense attorneys and possibly the defendant as to what steps were taken to locate the new evidence prior to trial.

After the Court holds an evidentiary hearing, the Court will then rule on each of these four factors. If the Court denies the motion, it may be appealed. However, the trial court has a great deal of discretion in evaluating these motions as the trial judge will view the testimony from the new witness and make a determination as to whether the witness is credible and would have made a difference, and these findings are difficult to overturn on appeal. Finally, it is important to note that an after-discovered evidence motion must be filed promptly.

Post-Conviction Relief Act Petitions (“PCRAs”) Based On New Evidence

Criminal Lawyer Zak T. Goldstein, Esq.

If direct appeals have been exhausted and the defendant is still serving a sentence, the defendant may file a Post-Conviction Relief Act petition seeking a new trial based on new evidence. Ordinarily, a PCRA Petition must be filed within one year from the date of sentencing (or the date on which the appellate courts uphold the conviction if appeals were taken). However, there is an after-discovered evidence to the one-year time limit which allows a defendant to file a new PCRA Petition based on after-discovered evidence within sixty days of learning of the evidence even if the Petition is filed more than one year from the date on which the sentence became final.

A PCRA Petition based on after-discovered evidence is very similar to the aforementioned Post-Sentence Motion. However, it differs slightly in that it must be filed within sixty days if the defendant is outside of the one year deadline for a PCRA. It also requires the defendant to show he or she did not know the fact(s) upon which he or she based her petition; and (2) they could not have learned those fact(s) earlier by the exercise of due diligence.

Ineffective Assistance of Counsel

The defendant could also take two different approaches in filing the PCRA. First, the defendant could attempt to meet the same standards as explained above and try to show that although the investigation was reasonably diligent, the evidence could not be uncovered. Alternatively, the defendant could attempt to introduce the new evidence through a PCRA challenge based on ineffectiveness of counsel by arguing that the defense attorney was ineffective and should have uncovered the evidence but did not adequately investigate the case. For example, if there was an alibi witness that was known to the defense in a Robbery case, but the defense took no steps to locate that person, then the PCRA Petition could allege that trial counsel provided ineffective assistance of counsel. However, this may not satisfy the previously mentioned sixty day extension because the defendant likely knew about the alibi witness. Whether the extension would apply depends on the facts of the individual case, making it important to consult with an attorney if you believe that new evidence could make a difference for you.

Commonwealth v. Shiloh

The recent case of Commonwealth v. Shiloh provides an example of after-discovered evidence in the PCRA context. In Shiloh, the defendant was convicted of selling drugs in part based on the testimony of a co-defendant, her sister. Specifically, she was convicted of multiple counts of delivery of a controlled substance, criminal use of a communication facility, conspiracy, and endangering the welfare of children, in connection with her participation in a drug operation. Her sister testified against her at trial, she was convicted, and she received 14-30 years of incarceration at sentencing.

Ms. Shiloh exhausted of all of her appeals and ordinary PCRAs, and she eventually filed a PCRA outside of the one year deadline for filing a PCRA. In the new PCRA, she alleged that her sister, who had testified against her, had prepared an affidavit admitting that she had received benefits from the prosecution in exchange for her testimony. Her sister also admitted to lying about receiving this consideration from the prosecution at trial. Shiloh included the notes of testimony from her sister’s sentencing in which the Commonwealth confirmed the existence of the agreement and asked for a reduced sentence due to the cooperation.

The trial court dismissed the PCRA Petition as untimely, and Shiloh appealed to the Superior Court. On appeal, Shiloh argued that the new evidence would constitute after-discovered evidence and that she could not have learned of it prior to trial. Whether or not Shiloh was entitled to the benefit of the previously discussed sixty day time limit for filing an after-discovered evidence PCRA came down to whether the “public record presumption” applied to her. As a general rule, PCRA Petitioners who are not in custody are expected to exercise due diligence in investigating their cases, meaning that if there are facts contained in public records such as the guilty plea colloquy of a co-defendant, then the facts will not constitute after-discovered evidence.

The public record presumption, however, does not apply to an incarcerated, pro se petitioner. The petitioner must still show that they exercised due diligence in conducting an investigation, but the presumption will not apply because pro se prisoners do not have access to the same resources and records as someone who is represented by counsel or someone who is not incarcerated. Because Shiloh was in custody for the duration of her appeals and PCRAs, the Superior Court reversed the finding of the trial court that she should have known about the guilty plea colloquy sooner and remanded the case to the trial court for an evidentiary hearing on when exactly Shiloh discovered or should have learned that her sister had cooperated against her and received benefits for so doing.

On remand, if Shiloh can show that she had no way of knowing about the cooperation and that the cooperation would have made a difference at trial, then she could be entitled to a new trial. Thus, after-discovered evidence motions can be extremely important because they could lead to the defendant receiving a new trial. 

Award-Winning Philadelphia Criminal Defense Attorneys  

Philadelphia Criminal Defense Attorneys Zak T. Goldstein, Esq. and Demetra Mehta, Esq.

if you are facing criminal charges or considering an appeal, we can help. Our award-winning Philadelphia criminal defense lawyers have won countless pre-trial motions, bench trials, and jury trials, and we have also successfully resolved many cases through negotiations which resulted in excellent outcomes for our clients. We can also help you evaluate the likelihood of success in filing a PCRA Petition or direct appeal to the Superior Court. We offer a 15-minute criminal defense strategy session to any potential client, so call 267-225-2545 to speak with one of our experienced and understanding defense attorneys today. 

PA Superior Court: Police May Destroy Buy Money Used In Confidential Informant Drug Case

Commonwealth v. Ribot

The Pennsylvania Superior Court has just held that police may testify to the use of pre-recorded buy money in confidential informant drug cases even where the police returned the money to general circulation after it was recovered, thereby losing it. In the case of Commonwealth v. Ribot, the Superior Court overturned the Philadelphia trial court’s order granting a defense motion in limine. The trial court's order precluded a police witness from testifying about the use and recovery of pre-recorded buy money in a drug case where police did not put the money, which had allegedly been used by a confidential informant to purchase drugs, into evidence after recovering it.

Confidential Informants and Pre-Recorded Buy Money

In Ribot, Philadelphia Police narcotics officers arranged for a confidential informant to purchase heroin from the defendant. In these types of cases, the police officers will usually take some steps to record the serial numbers of the bills used to buy the drugs prior to having the CI make a purchase of narcotics. This way, when police arrest a suspect or execute a search warrant, they will have a stronger case of Possession with the Intent to Deliver against the person who is found in possession of the previously recorded buy money because the officers will testify that that person must have obtained the money from the Confidential Informant in exchange for drugs. Here, the officers entered the serial numbers of the bills into a computer database prior to giving the bill to the confidential informant. An officer then printed out a time stamped copy of the computer entry and circled the serial number of the bill which was to be used in that day’s narcotics surveillance.

After “recording” the serial number of the bill in this manner, the police officer transported the CI to the street and sent the CI to buy heroin. The CI allegedly used the buy money to purchase heroin from the defendant, and the CI turned that heroin over to the police. The police then arrested the defendant and recovered the pre-recorded buy money. Instead of putting it on a property receipt and preserving it for trial, the police then put it back into circulation to use in future investigations.

Possession with the Intent to Deliver Charges

After being arrested and charged with Possession with the Intent to Deliver (“PWID”) of heroin, the defendant made a motion in limine to exclude any mention of the buy money at trial under the Best Evidence Rule and as a discovery sanction for the Commonwealth’s failure to preserve evidence. The Philadelphia trial court held a hearing, and the officer testified that it was normal police procedure for the police to get rid of the money and use it in other investigations. Of course, the defense attorney impeached the officer with police directives which require that the money be preserved for trial.

The Best Evidence Rule and Pre-Recorded Buy Money

The trial court granted the motion in limine and precluded the Commonwealth from eliciting any testimony about the exchange of money. The prosecution appealed to the Superior Court, and the Superior Court reversed. First, the Superior Court held that mentioning the use of the money and the way in which it was recorded did not violate the Best Evidence Rule despite the fact that introducing the money itself would have been the best evidence. Under the Pennsylvania Rules of Evidence, “[a]n original writing, recording, or photograph is required in order to prove its content unless these rules, other rules prescribed by the Supreme Court, or a statute provides otherwise.” This means that in a contract dispute, the parties may not try to prove the contents of the contract through oral testimony. Instead, the party seeking to offer evidence of a contract must introduce the actual contract into evidence.

Obviously, the money itself would be the best evidence of the fact that the money was used in the investigation. However, there are limits to the Best Evidence Rule in that it only applies when the contents of the document are necessary to prove the case or an element of the offense or defense. Thus, Rule 1002, the Best Evidence Rule, requires that an original writing, recording, or photograph be introduced at trial only if the proponent must prove the contents of the writing, recording, or photograph to prove the elements of its case.

Here, the actual serial number of the buy money was not essential for the Commonwealth to prove the elements of the case. Instead, the charges required the prosecution to show that the defendant sold drugs to the Confidential Informant, not that the bills had a certain serial number on them. The Court held that although police may not have followed the best procedures when they failed to preserve the evidence, the Best Evidence Rule does not prevent them from testifying about the money's existence and use. The Court also noted that its ruling would not leave the defendant without a remedy. At trial, the defendant would have ample opportunity to cross examine the police officer as to what happened to the money and suggest that the money was not actually recovered.

The Court noted:

“While evidence of the officer’s entry of the bill’s serial number into the computer may be less strong than either of those alternatives, that means only that such evidence is more vulnerable to attack, not that it is inadmissible. At trial, Ribot’s counsel would have ample opportunity to cross-examine [the officer] about the buy money and his method of pre-recording its serial number.”

In some cases, it may also be possible to request a missing evidence jury instruction, and jury instructions can be very important. 

Finally, the Superior Court concluded that the Commonwealth should not face discovery sanctions for destroying evidence because the Commonwealth never actually possessed the buy money. This analysis obviously creates a line between the prosecution and the police which does not really exist, and many other cases have held that the contents of the police file can be attributed to the prosecutor. Nonetheless, the Superior Court reversed the trial court’s order and remanded the case to the Court of Common Pleas for trial on the drug charges.

Philadelphia Criminal Defense Lawyers for Drug Charges

Philadelphia Criminal Defense Attorneys Zak T. Goldstein, Esq. and Demetra Mehta, Esq. 

If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have won countless pre-trial motions, bench trials, and jury trials. Our defense attorneys have also successfully resolved many cases through negotiations which resulted in excellent outcomes for our clients. We offer a 15-minute criminal defense strategy session to any potential client, so call 267-225-2545 to speak with one of our experienced and understanding defense attorneys today.