Criminal Procedure

PA Superior Court Limits Collateral Estoppel Defense

Zak Goldstein - Criminal Defense Lawyer

Zak Goldstein - Criminal Defense Lawyer

Pennsylvania law provides a potential defense to some criminal charges called collateral estoppel. Collateral estoppel may apply to bar a second trial in limited circumstances where the defendant has been acquitted of closely related charges in a first trial. The doctrine is somewhat limited in Pennsylvania because juries are not asked to provide an explanation for what they think happened; instead, jurors simply find a defendant guilty or not guilty of charges. The defense may then argue that a re-trial should be barred because a defendant has been acquitted of charges which required the same conduct with which the defendant is again charged in order for the jury to find the defendant guilty in a second trial.

The recent Pennsylvania Superior Court case of Commonwealth v. Winchester provides an example of this potential defense. In Commonwealth v. Winchester, the PA Superior Court found that the Commonwealth was not collaterally estopped from retrying a defendant for human trafficking charges after an acquittal for related robbery and theft charges because the human trafficking charges were significantly different from the related robbery and theft charges.

The Facts of Commonwealth v. Winchester

In Winchester, prosecutors alleged that the defendant contacted the complainant on backpage.com. The complainant offered sexual services through an advertisement on this website. The defendant then also contacted the complainant through text messages to set up an appointment. When the defendant arrived at the complainant’s apartment, he was let inside. The complainant was wearing a robe when she answered the door.

When the complainant went to take off her robe, the defendant pulled out a gun and pointed it at her face. The defendant then threatened her with a weapon, zip-tied her, and stole $2,700 from her. The defendant then told her that she could have her money back if she worked for him. The defendant then left her residence and told her he would return by 11:30. After he left, the complainant was able to free herself, and she called the police. The defendant then returned and was promptly arrested. When he was arrested, zip ties were found in his car matching those used to restrain the victim.

The Commonwealth filed a criminal information charging the defendant with robbery, theft by unlawful taking, terroristic threats, trafficking in individuals, and attempted involuntary servitude. At the trial, the complainant testified to the above-stated facts. The defendant also testified. He testified that he and the complainant had a prior relationship and that his communications with her, after finding her on the website, was an effort to confirm his own suspicion that the complainant was prostituting herself. The defendant testified that he called her a “whore,” which upset the complainant. This, arguably, was the reason why the complainant made up these allegations against him. The defendant denied binding her, robbing her, or telling her that he would “pimp” her out. He also testified that the zip ties in his car were related to his construction work.

Following the trial, the jury found the defendant not guilty of robbery, theft by unlawful taking, and terroristic threats. The jury did not reach a verdict on trafficking in individuals and attempted involuntary servitude. On June 5, 2017, the defendant filed a motion for dismissal, arguing that the Commonwealth intended to retry him on the charges of trafficking in individuals and attempted involuntary servitude, but the trial court should apply the doctrine of collateral estoppel and dismiss the remaining charges. A hearing was held on June 26, 2017. On August 14, 2017, the court issued an order granting the defendant’s dismissal motion. The Commonwealth then filed a timely appeal.

What is Collateral Estoppel?

The doctrine of collateral estoppel is a part of the Fifth Amendment’s guarantee against Double Jeopardy. It is important to note that the collateral estoppel clause does not automatically bar subsequent prosecution of a defendant. It only bars the re-litigation of a particular issue that has already been decided by a court. What this means is that if an issue of law, fact, or evidentiary ruling has already been decided by a prior court order, the issue cannot be re-litigated in a future lawsuit.

In Pennsylvania, courts will apply the collateral estoppel doctrine if the following threshold requirements were met: 1) the issues in the two actions are sufficiently similar and sufficiently material to justify invoking the doctrine; 2) the issue was actually litigated in the first action; and 3) a final judgment on the specific issue in question was issued in the first action. For collateral estoppel purposes, a final judgment includes any prior adjudication of an issue in another action that is sufficiently firm to be accorded conclusive effect. If the previous adjudication was based on a resolution of an issue in a manner favorable to the defendant with respect to a remaining charge, the Commonwealth is precluded from attempting to re-litigate that issue in an effort to resolve it in a contrary way at a future trial.

This sounds confusing, and it can be. To give a simple example of how collateral estoppel would prevent the Commonwealth from retrying a defendant, let’s assume that a defendant is charged with murder, aggravated assault, and simple assault. The facts of this hypothetical case are that a defendant beats a victim to death with his bare hands. Let’s further assume that after a trial, the jury is unable to reach a verdict on the murder charge, but finds the defendant not guilty of the simple assault charge. Because of the doctrine of collateral estoppel, the Commonwealth would be precluded from prosecuting the defendant on the murder charge because he was found not guilty of the simple assault charge. The reason is because the simple assault was a constituent element of the homicide charge. As such, there was already a finding that the defendant did not assault the victim and consequently the Commonwealth would be precluded from retrying the defendant on the homicide charge.

PA Superior Court Rejects Collateral Estoppel Defense Because of Differences in Statutes

Here, the Pennsylvania Superior Court overturned the trial court’s order granting the defendant’s motion to dismiss. The Superior Court concluded that the defendant’s acquittal of the robbery and theft charges did not negate the necessary elements to potentially convict him of the involuntary servitude or trafficking charges. In other words, a jury could believe that the defendant did not rob the complainant, but he did intend to force her into the sex trade. In making its decision, the Superior Court reviewed the trafficking and involuntary servitude statutes. Based on this review, the Superior Court held that the defendant’s acquittal of the robbery and theft charges did not preclude a subsequent prosecution of the trafficking and involuntary servitude offenses because robbing or stealing from her were not predicate elements of these respective charges. In other words, the defendant could have been trafficking her without robbing her or stealing from her. Therefore, the Commonwealth can retry the defendant on these remaining charges.   

Facing Criminal Charges? We Can Help.

Goldstein Mehta LLC Criminal Defense Lawyers

Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today. 

PA Superior Court: Reaching for a Gun While Fleeing from a Theft Is Probably a First-Degree Felony Robbery

Philadelphia Robbery Defense Lawyer Zak Goldstein

Philadelphia Robbery Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Ouch, holding that the Commonwealth produced sufficient evidence of first-degree felony Robbery at the preliminary hearing where the Commonwealth showed that the defendant committed a retail theft and then reached for a gun after being stopped by the store’s loss prevention officer. The court found that although there was some evidence that the loss prevention officer may not have actually seen the gun, the trial court improperly dismissed the first-degree felony charge after erroneously weighing the evidence and resolving conflicts in the testimony. Instead, because the Commonwealth receives the benefit of any reasonable inferences at a preliminary hearing, the court should have accepted the security guard’s testimony that the defendant tried to pull a gun on him despite video evidence which was arguably to the contrary. Further, the focus of the inquiry at the preliminary hearing is on the likely intent of the defendant, not the subjective belief of the complainant.

The Facts of Commonwealth v. Ouch

A Philadelphia police officer responded to a radio call for a robbery in progress at a local market. Upon arrival, the complainant and a uniformed security officer both stated that an Asian male described as 5’6 and 150 pounds in his 20’s or 30’s wearing a gray Phillies hat, gray hooded sweatshirt with white design on the front was attempting to shoplift seafood. Witnesses testified that when store security attempted to stop the male in the doorway, the male attempted to pull a firearm from his waistband. The security guard smacked the man’s hand away, and the man fled the parking lot in a white Toyota Corolla. This incident was caught on camera. A detective then viewed the video of the incident and immediately recognized the defendant. The defendant was subsequently arrested on an arrest warrant by Philadelphia Police.

The defendant later appeared in court for his preliminary hearing. The Commonwealth called the security guard to testify as a witness at the preliminary hearing. He testified that at the direction of his manager, he stopped “an Asian guy” whom he described as 5’5 and wearing a gray shirt, hat, sneakers, and blue jeans on suspicion of shoplifting. The Commonwealth then played a video of the incident. The security officer identified on the video the point at which the defendant reached for his waistband. When asked what he did in response to this, the security officer replied “[p]ushed back off…because he reached for a gun so I said, I told the manager, ‘we ain’t dying for this.’”

On cross-examination, the security guard acknowledged that although he saw the defendant reach for something, he did not know what it was. He further conceded that when he saw the defendant reach for his waist, he did not know what he was reaching for because he had taken his eyes off of him. Additionally, the defendant never brandished a weapon nor pointed a gun in front of him. Based on the Superior Court’s opinion, the only time that the security guard saw the gun was when the defendant had his back to him as he was fleeing the market.  

At the conclusion of the hearing, the judge held the defendant for all charges except for robbery in the first degree. The court instead downgraded the robbery charge to robbery as a felony of the third degree. The Commonwealth filed a motion to re-file the charge of robbery graded as a first-degree felony. The defendant’s defense attorney filed a motion to quash seeking the dismissal of all charges based on a lack of evidence.

At a hearing on the two motions, a Philadelphia Court of Common Pleas judge denied the Commonwealth’s request to re-file the charge of first-degree Robbery, but the judge permitted the Commonwealth to charge the defendant with Robbery as a second-degree felony. The motions judge opined that the Commonwealth did not produce any evidence that the defendant brandished or pointed the gun at either of the witnesses. The Commonwealth then filed a timely appeal to the Pennsylvania Superior Court, arguing that the motions court erred in concluding that it did not present sufficient evidence to show that the defendant placed the security guard in fear of immediate serious bodily injury.

What is the difference between Robbery as a first-degree felony and second-degree felony?

In general, Robbery as a first-degree felony is much more serious than Robbery as a felony of the second or third degrees. When Robbery is a first-degree felony, it becomes a crime of violence under Pennsylvania law and therefore a “strike” offense which could trigger a significant mandatory minimum of a decade or more for a defendant who has been convicted of other strike offenses in the past. A conviction for robbery as a second or third degree felony, however, does not trigger a mandatory minimum and calls for a much lesser sentence under the Pennsylvania Sentencing Guidelines. The main difference between Robbery as a felony of the first degree and Robbery as a felony of the second degree is that first-degree felony Robbery requires evidence that the defendant caused, attempted to cause, or put the victim in fear of serious bodily injury during the commission of a theft. This typically involves the use of a weapon such as a gun or knife. Robbery as a second degree, however, only requires evidence that the defendant caused, attempted to cause, or put the victim in fear of bodily injury, which is less than serious bodily injury. The fear of bodily injury could come from a verbal threat, shove, or punch. Thus, Robbery as a felony of the second degree is easier for the Commonwealth to prove, and less serious, than Robbery as a felony of the first degree.

What Happens at a Preliminary Hearing?

Preliminary hearings are frequently misunderstood by defendants with no prior contacts with the criminal justice system. In Philadelphia, a defendant will only have a preliminary hearing if they are charged with a felony. Further, the preliminary hearing is not a trial. This means that the purpose is not to determine whether a defendant is guilty or not guilty. Instead, the purpose of the preliminary hearing is to determine whether there is sufficient evidence for a case to go to trial. Specifically, in order for a case to proceed beyond the preliminary hearing, the judge must make a determination that a crime occurred and that the accused is probably the perpetrator of that crime. Consequently, the burden of proof is much lower for the Commonwealth at a preliminary hearing than it is at trial. At a preliminary hearing, the Commonwealth must only establish a prima facie case that the defendant was the one who committed said crime. At a trial, however, the Commonwealth must prove beyond a reasonable doubt that the defendant committed the crime. Additionally, all reasonable inferences are given to the Commonwealth, and the evidence must be read in the light most favorable to the Commonwealth’s case.

Preliminary hearings can be very frustrating because credibility is also not an issue. In other words, a judge is not supposed to take into consideration how believable the witness is. Rather, the judge is supposed to make a determination based on the record to see if the Commonwealth has put forth enough evidence to go forward with its case. Consequently, when in court, when attorneys argue about the charges following the preliminary hearing, they are usually fighting about whether or not the Commonwealth has established all of the elements of the particular crimes charged. If the court finds that the Commonwealth has met its burden, then a defendant will be “held for court,” which means that he or she will have to face trial or litigate motions. It is important to remember that just because a defendant has been held for court does not mean the defendant has been found guilty. Although preliminary hearings do not allow the defense to challenge the credibility of witnesses, they are still extremely important hearings because they allow for the potential of having charges dismissed or downgraded when the Commonwealth does not have sufficient evidence and for cross-examining witnesses under oath. The record from the preliminary hearing will often turn out to be very valuable later either at trial or at a motion to suppress hearing. For a much more detailed analysis of what happens at a preliminary hearing, please see our blog “What is a Preliminary Hearing? What Happens After a Preliminary Hearing?” https://goldsteinmehta.com/blog/what-happens-at-the-preliminary-hearing.

Superior Court Holds Defendant for Court on First-Degree Felony Robbery

 The Superior Court found that the lower courts erred when they discharged the first-degree robbery charge. The Superior Court held that its review of the evidence, when viewing it in the light most favorable to the Commonwealth and accepted as true, found that there was sufficient evidence to hold the defendant for trial on the first-degree robbery charge. According to the Superior Court, the security guard’s testimony that the defendant “reached for a gun” and his utterance of “we ain’t dying for this” was sufficient to establish the requisite elements of first-degree robbery. As stated above, according to the Commonwealth’s witness, the defendant did not brandish a gun at him and he did not see what the defendant reached for during their interaction. Further, the security guard did not even see a gun until after the defendant had turned his back to him as he was fleeing the market. Nonetheless, despite all of these deficiencies, the Superior Court found that there was sufficient evidence to establish a prima facie case for first-degree robbery and the defendant will now have to go to trial on that charge, as well.

Facing Criminal Charges? We Can Help.

Philadelphia Criminal Lawyers

Philadelphia Criminal Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Rape, Robbery, Aggravated Assault, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

PA Superior Court: Commonwealth Cannot Automatically Add New Charges Right Before Trial

Philadelphia Criminal Defense Lawyer

Philadelphia Criminal Defense Lawyer

The Superior Court has decided the case of Commonwealth v. Quinones, holding that a trial court cannot permit the amendment of the information (the charging document prosecutors create prior to trial) to add new charges of which the defendant had no prior notice when those new charges would prejudice his or her defense. This is a significant decision because it will limit the ability of a prosecutor to blindside defendants with additional charges on the eve of trial. It will also help prevent prosecutors from retaliating against defendants who reject plea offers and proceed to trial.

Commonwealth v. Quinones

On August 11, 2016, a man with a gun knocked on either the back door or the kitchen window of the apartment where a woman, a man named Mr. Brightful, and their daughter lived. The armed man gestured for the woman to come to the back door. Instead, she ran to the front of the apartment and called Mr. Brightful. He told her to leave. Mr. Brightful’s girlfriend left the apartment and took their child to a nearby hotel.

The next day, Mr. Brightful and the eventual-defendant obtained handguns. That night, someone broke into Mr. Brightful’s home, and Mr. Brightful eventually shot and killed him in the presence of the defendant, Quinones. After Mr. Brightful shot and killed the man, the defendant picked up the decedent’s gun from the couch and told Mr. Brightful that he wanted to keep it. Mr. Brightful took the gun away from him and told him that he could not keep it.

The defendant and Mr. Brightful then moved the victim’s body from Mr. Brightful’s home into a Honda Odyssey van. They drove to a secluded area and disposed of the victim’s body on the side of the road. After disposing of the body, Mr. Brightful drove himself and the defendant back to the house. Five days later, police pulled over Mr. Brightful and the defendant in the van for unknown reasons. Presumably, they were suspects in the homicide. The police obtained a search warrant and searched the van shortly after pulling it over. They did not find any drugs. Inexplicably, the police searched the van again several months later. This time they found heroin and drug paraphernalia in the wheel well of the van. Initially, police had charged the defendant with firearms not to be carried without a license (VUFA 6106), abuse of corpse, conspiracy to commit abuse of corpse, possession of a firearm prohibited persons (VUFA 6105), tampering with or fabricating physical evidence, and possession of instruments of crime. Police did not originally charge him with any drug offenses when they first arrested him because they had not yet found the heroin.

On April 24, 2017, the Commonwealth filed a motion to add charges. Following a hearing on June 2, 2017, the court granted the motion for leave to amend the information, which was amended on June 8, 2017. The trial court permitted the Commonwealth to add the charges of possession of a controlled substance with the intent to deliver (“PWID”) and possession of drug paraphernalia.

A jury eventually found the defendant guilty of firearms not to be carried without a license, abuse of corpse, conspiracy to commit abuse of corpse, PWID, and possession of drug paraphernalia. The defendant then filed post-sentence motions which were denied. He then filed a timely appeal. For purposes of this article, only the issue of whether the trial court erred in permitting the Commonwealth to amend the information prior to trial will be discussed.

Can the Commonwealth add charges after the preliminary hearing but prior to trial?

It depends. Rule 564 of the Pennsylvania Rules of Criminal Procedure governs this issue. The rule provides that a court may allow the Commonwealth to add charges so long as the amended “does not charge offenses arising from a different set of events and that the amended charges are not so materially different from the original charge that the defendant would be unfairly prejudiced.”

In determining whether the court will permit the Commonwealth to add charges, trial courts are supposed to consider whether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. In this regard, courts will typically consider whether the defendant was on notice of the charges from the allegations in the pre-trial discovery provided by prosecutors.

Even where the Commonwealth amends the information to add new charges of which the defendant was not on notice, a defendant will not be successful on appeal unless he can show that the amendment resulted in prejudice. In determining whether a defendant was prejudiced, the appellate courts will consider 1) whether the amendment changes the factual scenario supporting the charges; 2) whether the amendment adds new facts previously unknown to the defendant; 3) whether the entire factual scenario was developed during a preliminary hearing; 4) whether the description of the charges changed with the amendment; 5) whether a change in defense strategy was necessitated by the amendment; and 6) whether the timing of the Commonwealth’s request for amendment allowed for ample notice and preparation.

Let’s give an example of when a court would permit an amendment. Let’s assume that a defendant is accused of stabbing someone and this person, does not die, but is seriously hurt. The defendant is then arrested and only charged with aggravated assault. However, on the eve of trial, the Commonwealth files a motion to amend the information to include the charge of simple assault. The trial court would permit the Commonwealth to amend the petition to add this charge because it shares many of the same elements as aggravated assault. Further, it is highly unlikely that this would result in a change in defense strategy, and thus there is no real risk of prejudice to the defendant by amending the information to include the charge of simple assault. The analysis is different, however, when the Commonwealth wants to add totally unrelated charges or charges relating to an entirely different incident.

Quinones was prejudiced by the addition of PWID charges

The Superior Court held that the trial court erred when it permitted the Commonwealth to amend the information to add the drug charges. As a preliminary matter, the Superior Court held that the amended information charged additional and different offenses. Therefore, the amended information violated Rule 564 of the Pennsylvania Rules of Criminal Procedure on its face. Therefore, the Superior Court had to determine whether this resulted in prejudice to the defendant.

The Superior Court held that the amendments prejudiced the defendant because before the amendment, there was no mention of narcotics and thus there was no suggestion that the defendant was involved in drug activity. Additionally, the defendant had a preliminary hearing and there was no mention of the drugs during this hearing. However, when the trial court permitted the amendment it allowed the Commonwealth to argue that he was a drug dealer and that this drug activity could provide a motive for the defendant’s involvement in the crimes.

This amendment was very advantageous to the Commonwealth, it was showed during the opening arguments. During the prosecutor’s opening argument, he specifically stated that the defendant disposed of the body because he did not want the authorities to gain knowledge either of the victim’s death or his enterprise. Thus, it was clear that part of the Commonwealth’s theory was that the defendant’s actions that day were drug related. This was clearly prejudicial to the defendant, and consequently, he will receive a new trial.

Facing Criminal Charges? We Can Help.  

Goldstein Mehta LLC Criminal Defense Lawyers

Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Sexual Assault, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today. 

 

Indicting Grand Juries in Philadelphia State Court

Criminal Defense Attorney Zak T. Goldstein, Esq.

Criminal Defense Attorney Zak T. Goldstein, Esq.

If you get arrested for a felony charge in Philadelphia, you will usually go through preliminary arraignment within 12-24 hours and then receive a court date for a preliminary hearing. A preliminary hearing is a short hearing at which some of the Commonwealth’s main witnesses in the case will testify subject to cross-examination, and a Philadelphia Municipal Court Judge will then rule whether the Commonwealth has presented sufficient evidence to show that a crime occurred and that the defendant probably committed it. Recently, however, the Pennsylvania Supreme Court amended the Pennsylvania Rules of Criminal Procedure to give prosecutors the ability to dispense with the requirement of presenting live testimony at a preliminary hearing. Instead, prosecutors in cases in which there is a risk of witness intimidation may try to proceed by indicting grand jury. Indicting grand juries are usually used in cases involving violent crimes such as Attempted Murder, Aggravated Assault, and Witness Intimidation. In Philadelphia, they are often used to prosecute non-fatal shootings.

What is an Indicting Grand Jury?

The indicting grand jury process is a secretive process which allows the prosecution to avoid presenting its witnesses in open court at a preliminary hearing where they would be subject to cross-examination. Instead, Rule 556 of the Rules of Criminal Procedure provides that a Court of Common Pleas may proceed by using an indicting grand jury in cases in which witness intimidation has occurred, is occurring, or is likely to occur.

Instead of presenting its case at a preliminary hearing following the defendant’s arrest, the prosecution may file a motion to move forward by way of indicting grand jury. The motion must allege facts asserting that witness intimidation has occurred, is occurring, or is likely to occur. The defense does not get an opportunity to contest the allegations in the motion. Instead the president judge or a designee of the president judge for the judicial district reviews the motion ex parte (meaning without the defense present) and decides whether or not the Commonwealth has met its burden of alleging some risk of witness intimidation.

If the judge rules that the Commonwealth has met that low burden, then the court will cancel the preliminary hearing and schedule the case for a hearing in the Court of Common Pleas. The Commonwealth will then have 21 days to present its case to the grand jury for indictment unless the defendant waives his or her right to an indictment by grand jury or the Commonwealth chooses not to proceed. If the Commonwealth chooses not to proceed, then the defendant should receive a preliminary hearing in front of a Court of Common Pleas Judge.

In Pennsylvania, an indicting grand jury is made up of 23 legally qualified jurors and between 7 and 15 alternates. The supervising judge examines the grand jurors to determine whether or not they can be fair when hearing cases, but the defense has no ability to challenge grand jurors for cause as the defense would in a criminal trial prior to an indictment. Fifteen members of the grand jury constitute a quorum, and an affirmative vote of twelve members of the grand jury will be enough to indict a defendant on felony charges.

Once the grand jury has been selected, the Commonwealth may present its case to the grand jury. This means that the Commonwealth may call some of the witnesses or victims in the case and often the assigned police detective to testify. The grand jurors hear that testimony and then decide whether or not they should indict the defendant. This testimony is recorded and eventually turned over to the defense, but there is no defense attorney in the room to make evidentiary objections, cross-examine witnesses, or make argument to a judge or the grand jurors that the evidence does not support the charges.

What happens if I get indicted?  

If the grand jury votes to indict the defendant, then the Commonwealth notifies the defense and the supervising judge at a status hearing in the Court of Common Pleas. The judge will then schedule the case for a scheduling conference before the judge who will hear the trial. That judge will then set two court dates – a first date on which the Commonwealth must turn over discovery, and a second date for trial which will be sixty days after the discovery date. In many cases, the trial date may not be for eight months or more, so a defendant could be incarcerated due to a high bail or a probation detainer for up to six months or more without any access to the discovery or without even knowing the specific allegations against him or her. A defendant who has a preliminary hearing has the opportunity to move for dismissal of the charges just a few weeks after arrest, but a defendant who is indicted may not be able to challenge the charges for months or even years. Grand jury cases, however, are supposed to receive priority on the trial date, meaning that they should go forward even if other cases on the judge’s docket are older or more serious.  

Will I still get a preliminary hearing?

No, if the Commonwealth chooses to proceed by way of indicting grand jury, then you will not receive a preliminary hearing even if you are facing felony charges. Instead, the Commonwealth will conduct the secret grand jury hearing. If the grand jury chooses to indict, then you will be indicted without ever having had an opportunity to challenge the evidence against you in open court. You do, however, retain the right to file pre-trial motions to dismiss/quash the charges just as you would if a preliminary hearing occurred.

In a limited number of cases, the Commonwealth may file the motion to proceed by way of indicting grand jury and later change its mind and schedule the case for a preliminary hearing. In that situation, you would have a preliminary hearing before a Court of Common Pleas judge instead of with a Municipal Court judge. This is a significant disadvantage for the defense because this procedure prevents the defendant from litigating a Motion to Quash. When the defendant is erroneously held for court at a preliminary hearing by a Municipal Court judge, the defendant may file a Motion to Quash (also called a Petition for Writ of Habeas Corpus in the suburban counties) and ask a higher-ranking Common Pleas Judge to review the charges. A defendant who has been held for court by a Common Pleas judge, however, cannot really litigate a Motion to Quash because a Common Pleas judge has already ruled on whether the Commonwealth presented a prima facie case. A Common Pleas judge cannot overrule the first judge’s decision because they have the same level of authority.  

What is the difference between an Indicting Grand Jury and a Preliminary Hearing? 

A Philadelphia preliminary hearing takes place in open court and proceeds in a similar manner to a criminal trial. The prosecution calls a number of witnesses to testify as to what happened in order to try to establish a prima facie case of each criminal charge, and the defendant’s lawyer then has the opportunity to cross-examine those witnesses. The defense may also present evidence after the Commonwealth has rested. Once both sides have rested, the lawyers may make argument to the Municipal Court judge on why certain charges should be dismissed or the gradation of charges should be reduced. The judge will then decide whether to hold the defendant for court on the felony charges, remand the case to Municipal Court for trial on misdemeanor charges, or dismiss the case altogether. The defense may also make a bail motion or a motion for a lineup at a preliminary hearing.

The indicting grand jury process, however, is secretive and provides the defendant with few rights. The defendant is typically arrested, held on a high bail due to the allegations of witness intimidation, and not provided with any opportunity to challenge the case until shortly before trial or at trial. The witnesses may testify to the grand jury, but they are not subject to cross-examination, and the defense may not present evidence to the grand jury. The rules of evidence are often enforced to some extent at a preliminary hearing, meaning that a hearing cannot proceed entirely on hearsay, but the defense is not present to make evidentiary objections at a grand jury hearing. The defense lawyer also may not argue to the grand jury that the Commonwealth has failed to prove a prima facie case of the charges. Therefore, the Commonwealth can usually get the grand jury to indict on whatever charges it wants.

Can I still file a Motion to Quash the charges?

Yes, despite the significant disadvantages to a defendant who has been charged by way of indicting grand jury, there are still opportunities to challenge the charges prior to trial. For example, a defendant may still file a motion to quash the charges and argue to the Common Pleas judge that the prosecution failed to meet its burden of establishing that a crime occurred and that the defendant probably committed it. The defense may also file motions challenging the jurisdiction of the grand jury, asserting an expiration of the statute of limitations, or an objection to a grand juror’s qualifications. The defense may also file any other pre-trial motions such as a motion to suppress evidence which was illegally seized or motions in limine.

Facing criminal charges? We can help.

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Criminal Defense Attorneys

Criminal Defense Attorneys

Although a defendant who has been charged by way of grand jury in Philadelphia is at a disadvantage due to the lack of a preliminary hearing, there are still often ways to challenge the case through pre-trial motions. Additionally, the defendant is still entitled to a trial before a judge or jury at which the Commonwealth must prove the charges beyond a reasonable doubt. If you are facing criminal charges or under investigation, we can help. Our experienced and understanding Philadelphia criminal defense lawyers offer a free 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an award-winning defense attorney today.