Philadelphia, PA Criminal Appeals Attorney
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How to Win a Criminal Appeal in Pennsylvania

The Philadelphia Criminal Appeals Lawyers of Goldstein Mehta LLC have extensive experience representing clients after trial or plea in a wide range of criminal cases. The expertise and tireless work ethic of our appeal lawyers is why we are a top criminal law firm in Philadelphia, handling post-sentence motions for re-sentencing, acquittal, and new trials, as well as direct appeals in criminal cases to the Pennsylvania Superior and Supreme Courts. We also handle Post-Conviction Relief Act Petitions and federal habeas corpus petitions based on newly discovered evidence, changes in constitutional law, and ineffective assistance of counsel claims.

As each day passes, you may be giving up your appellate rights, so it is essential to your case that you do not delay. To ensure that you have the best chance possible of winning your appeal, speak with one of our top-rated criminal appeal attorneys and PCRA lawyers today. 

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Information on Criminal Appeals in Pennsylvania

The Pennsylvania Criminal Appeals Process: How can I get a new trial?

One of the most common question asked by prospective clients who are pursuing a criminal appeal is, "How can I get a new trial?" In general, there are five ways to get a new trial in state court following a finding of guilt or a guilty plea.

1. First, depending on the circumstances, you could file a motion for extraordinary relief prior to sentencing.

2. Second, you can file a post-sentence motion for a new trial, a judgment of acquittal, or reconsideration of your sentence immediately following sentencing.

3. Third, if the trial court denies a motion for extraordinary relief and/or a post-sentence motion, then a criminal defendant may take a direct appeal to the Pennsylvania Superior Court and potentially the Pennsylvania Supreme Court by filing a notice of appeal.

4. Fourth, if the appellate courts deny the direct appeal, then there may be claims which can be raised in a Post-Conviction Relief Act Petition (“PCRA”). A Post-Conviction Relief Act Petition would be filed in the trial court after direct appeals have been exhausted. If the trial court denies the PCRA petition, the denial of the PCRA petition can also be appealed to the Superior Court and the Pennsylvania Supreme Court.

5. Finally, if the state courts refuse to grant relief even when they should, you could file a petition for a writ of habeas corpus in federal court under 28 U.S.C. § 2254.

What is a motion for extraordinary relief?

There is one motion that can be argued prior to sentencing which can be used to obtain relief from a wrongful conviction right away. The Pennsylvania Rules of Criminal Procedure permit defense counsel to make an oral Motion for Extraordinary Relief directly prior to sentencing. The Motion for Extraordinary Relief can be used to ask the trial judge to reconsider an erroneous evidentiary ruling or wrongful conviction, and it can often be supplemented by filing a brief in advance setting out the relevant case law which explains why why judge may have made the wrong decision.

Successful motions for extraordinary relief are exceedingly rare. However, if there is case law directly on point showing that the trial court made a mistake, or the law changes in between trial and sentencing, then it may be worth moving for extraordinary relief. The decision to move for extraordinary relief must be carefully weighed against the fact that they are usually denied as premature and that if the judge denies the motion, there will then be a sentencing hearing. In most cases, it makes more sense to focus on obtaining a shorter sentence and then challenging the conviction after sentencing because there is a risk that litigating a motion for extraordinary relief could result in a worse sentence from the judge. Therefore, they should only be argued in truly extraordinary circumstances where they have a strong likelihood of success because of some sort of change in law, egregious error by the judge or jury, or blatant prosecutorial misconduct or trial attorney ineffectiveness.

Post-Sentence Motions

Once you have been sentenced, the deadlines for starting the appeals process begin to run immediately. Within ten days of sentencing, your trial or new appellate lawyer should usually file a post-sentence motion in the trial court. There are three claims which must be made in the Post-Sentence Motion or those claims will usually be waived and cannot be raised in the Superior Court.

1. First, if the defendant was convicted at trial, the post-sentence motion should ask the trial court to award the defendant a new trial because the verdict was against the weight of the evidence. This type of motion argues that although the evidence may have been technically sufficient, the judge or jury’s verdict was so contrary to the weight of the evidence that it shocks the conscience.

2. Second, if the defendant is unhappy with the sentence that he or she received, then the post-sentence motion should ask the trial judge for a new sentence because the sentence was excessive and unreasonable. A defendant may also argue for a new sentencing hearing if the trial court committed some sort of procedural error in imposing the sentence such as miscalculating the guidelines or relying on an improper sentencing factor.

3. Third, if the defendant pleaded guilty and wishes to withdraw the plea, then the defendant must ask the judge for permission to withdraw the plea in the post-sentence motion. Unless a post-sentence motion is filed within ten days and contains those three claims, those claims could be waived forever.

Depending on the case and the judge, it may make sense to file a brief along with the post-sentence motion making argument for why the judge or jury have actually made a mistake. In other cases where the judge is unlikely to reconsider, then the post-sentence motion may simply be a form motion so that the rights to challenge the sentence and weight of the evidence are not waived on appeal. The trial court must rule on the post-sentence motion within 120 days of its filing. If the judge does not rule on the post-sentence motion, then the motion will be denied automatically by operation of law. The defendant will then have thirty days to file a Notice of Appeal to the Superior Court. If the defendant does not file the Notice of Appeal within thirty days of the denial of the post-sentence motion, then the right to appeal could be waived forever.  

Post-sentence motions almost always involve challenges to the weight of the evidence and the excessive nature of the sentence. A post-sentence motion may also challenge the sufficiency of the evidence, but a challenge to the sufficiency does not have to be included in a post-sentence motion in order to preserve the issue for appeal.

In addition to raising those claims, however, an appellate attorney may challenge any other mistakes that the judge may have made during the trial. In some cases, it is even possible to raise ineffective assistance of counsel claims in post-sentence motions, and our attorneys have successfully reversed serious convictions at the post-sentence motion stage without even having to file an appeal to the Superior Court.

The Post-Sentence Motion Deadline

If a post-sentence motion is not filed within ten days of sentencing, the Superior Court could find that many issues are waived on appeal. This is particularly true in the case of appeals that challenge an excessive sentence or the weight of the evidence as motions must be filed in order to preserve those issues. So, if you are considering an appeal, it is critical that you move quickly and consult with experienced criminal appeal lawyers immediately to protect these rights while challenging the conviction.

Once a post-sentence motion has been filed, the trial judge may order a hearing, or the judge may grant or deny the motion without a hearing. The judge must rule on the motion within 120 days or it will automatically be denied by operation of law. And at that point, a notice of appeal must be filed within thirty days or the right to appeal may be waived forever. If the post-sentence motion is filed following a violation of probation sentencing hearing, then the thirty-day period for an appeal is not tolled by the filing of the post-sentence motion. The notice of appeal must be filed even if the probation judge has not ruled on the motion or the deadline for filing for relief in the Pennsylvania Superior Court will expire.

Our criminal appeal lawyers have successfully litigated post-sentence motions in both our own cases and cases where the defendant was represented by other counsel at trial. As one of the top-rated criminal law firms in Philadelphia, we have successfully filed post-sentence motions for reduced sentences and new trials, direct appeals for acquittals due to insufficient evidence, and post-trial petitions for new trials.

Direct Appeal to the Superior Court or the Supreme Court

Our Philadelphia appeal lawyers are also able to help you with a direct appeal to the Superior Court. After the trial judge has ruled on the post-sentence motions or they have been denied by operation of law, a criminal defendant may appeal his or her conviction directly to the Superior Court. The defendant must appeal within thirty days of sentencing, or if post-sentence motions have been filed, within thirty days of the ruling on the post-sentence motions. Important to note, however, is that while the filing of post-sentence motions may toll the deadline for filing an appeal following a conviction, post-sentence motions do not toll the deadline for filing an appeal following a revocation of probation. Regardless of the situation, you must remember that the clock starts ticking right away and you should speak with an appellate attorney immediately in order to preserve all of your rights and give yourself the best possible odds in attacking your wrongful conviction or sentence.

Once an appeal has been filed, the trial judge will order the defendant to file a Statement of Errors Complained of on Appeal pursuant to Rule 1925(b). The statement of errors identifies the issues which the defendant seeks to raise on appeal for the trial judge. Any issue which is omitted from the statement of errors cannot be raised in the appeal with few exceptions, which is why it is vital that you have appellate attorneys with extensive knowledge and experience in identifying these mistakes. Once the statement of errors has been filed, the trial judge will write an opinion addressing those issues and why the conviction should be affirmed. The Superior Court will then set a briefing schedule in which the Appellant (the party which filed the appeal) will first submit a brief to which the Appellee (the party which won in the lower court) will respond.

Once the briefs have been filed, the Superior Court may schedule the case for oral argument before a panel of three judges. Following argument, the Superior Court will rule on the issues raised in the appeal in a written opinion, which may be published or unpublished. In making its ruling, the Superior Court will review the record and briefs prepared by the appellate attorney and the prosecutor while evaluating whether the trial court committed any legal errors to justify overturning a conviction.

How long does a criminal appeal take?

In general, criminal appeals take a year or two. It is possible that an appeal could be resolved in a little bit less than a year depending on how quickly the filings are submitted and whether the parties request extensions, but it is often not a quick process even if the defense attempts to move the appeal forward as quickly as possible. We recognize that clients want to fight their convictions and sentences as quickly as possible, so our criminal appeal attorneys work to litigate appeals in a timely manner because we know the harm that any delay can cause a client who has been convicted of a crime and is incarcerated or suffering other consequences. In the cases of more serious crimes, such as homicide and sexual or aggravated assault, your entire future is at risk, so do not delay in contacting our office.

Errors That Appeal Lawyers Can Address in the PA Superior Court

There are several potential issues which could be addressed by our appeal attorneys. For example, if the trial judge misapplied the law in denying a motion to suppress a gun, the Superior Court could suppress the firearm and order a new trial without that evidence. Due to the lack of physical evidence, the Commonwealth may be forced to drop the charges, and depending on the error, the Superior Court could rule in favor of granting the defendant a new trial or an acquittal.

If the initial Superior Court panel of three judges denies the appeal, then the defendant may petition for the entire Superior Court to reconsider en banc - instead of just having a panel of three judges review the briefs - or the defendant may ask the Pennsylvania Supreme Court for review by filing a Petition for Allowance of Appeal. The Supreme Court reviews only a limited number of cases each year, most typically involving novel issues of law which have not yet been addressed by the Court. The Supreme Court may also consider a case involving a settled issue because it no longer agrees with a prior decision.

In a direct appeal, the appellant and their appeal attorneys may only challenge legal errors. This means that the defendant cannot introduce new evidence or argue what was said by certain witnesses. Instead, a direct appeal is limited to the record which was created at trial.  So, in this case, our criminal appeal lawyers will conduct an extensive study of the trial transcripts and exhibits in order to locate any legal errors which may lead to relief.  We will use our extensive knowledge of the rules of criminal procedure and our experience in handling appeals, along with the evidence and constitutional law to determine the best possible arguments to pursue with the Superior Court or the Pennsylvania Supreme Court.  

What can I do if I lose my appeal in a criminal case?

Post-Conviction Relief Act Petitions ("PCRA")

After exhausting all your direct appeals, our Pennsylvania PCRA appeal lawyers are here to help you with a Post-Conviction Relief Act Petition. In this case, a criminal defendant has one year from the denial of the direct appeal to file a Post-Conviction Relief Act Petition, seeking a new trial. There are several grounds for a PCRA Petition, including the following:

File a PCRA alleging that either trial or appellate counsel were ineffective. In this scenario, the defendant must show that there was something that the trial attorney did that was ineffective or lacking in a reasonably strategic basis.

For example, the trial attorney may have failed to investigate an alibi or hire an expert witness. The defendant in a PCRA petition must also be able to demonstrate that the defendant also suffered prejudice, meaning the lawyer's ineffectiveness changed the outcome of the trial or sentencing.

File a PCRA petition when new evidence is uncovered, which either may not have been found at the time of the trial, or due to a change in the constitutional rule of law that can be applied retroactively and would affect the defendant's case.

For example, if a witness with exculpatory testimony who was not known about at the time of trial comes forward, the discovery of that witness may be the basis for the appeal attorneys to file a PCRA petition. The one-year time limit does not apply to this type of petition, but there are other extremely strict deadlines for filing a PCRA when new evidence or law changes are discovered.

PCRA Petitions to Reinstate Appellate Rights

One of the most common issues that our appeal attorneys see in PCRA Petitions is that the defendant may have requested an appeal or the filing of post-sentence motions, but the trial attorney did not meet the filing deadlines, so the defendant's rights were waived. In many cases, if we act quickly enough, we are often able to file a nunc pro tunc PCRA Petition to have the defendant's appellate rights reinstated. These petitions are most likely to be successful when the defendant has some evidence that they did, in fact, request that the trial attorney file a post-sentence motion or appeal.

For example, if the trial attorney admits that or she was asked to file an appeal, the defendant's request is on the record at the sentencing hearing, or the defendant has a copy of a letter which was sent to the trial attorney, then these PCRA Petitions to reinstate appellate rights are often successful. Even if the defendant does not have any proof of the request for an appeal, then the defendant may testify at an evidentiary hearing to attest that they did request an appeal. If the judge believes the testimony, prejudice will be presumed, and so the appellate rights could be reinstated.

To ensure you understand how to prevent your appeal from being waived and fight for your appellate rights, it is crucial that you call the top-rated appeal attorneys in the Philadelphia area. Our team of experienced appeal lawyers know the right arguments to protect your rights and freedom. 

Strict Deadlines for Criminal Appeals and PCRAs

Again, if you are considering post-sentence motions, a direct appeal, or a PCRA petition, it is critical to consult with experienced appeal attorneys as soon as possible. PCRA petitions and direct appeals are extremely complicated and require skillful representation by top appellate attorneys. There are many excellent criminal trial lawyers who are not experts in the appeal process. Successful appeals and PCRAs not only require an extensive knowledge of trial procedure, appellate procedure, constitutional law, and the rules of evidence, but also a thorough review of the record for error by trial counsel and a full re-investigation of the case for potential witnesses and evidence that could have made a difference at trial.

It can be very difficult to reopen a case after conviction, and it is very rare that you will have more than once chance to do so. It is critical that you hire a team of top criminal appeals lawyers who understand how to litigate and win your case. 

Common Issues on Appeal

Sufficiency of the Evidence

It is very common to challenge a conviction based on sufficiency of the evidence. In this type of appeal, our criminal appeal lawyers will argue to the Pennsylvania Superior Court that the judge or jury erred in finding the defendant guilty because there was insufficient evidence to prove one or more of the elements charged by the prosecution beyond a reasonable doubt.

This defense can always be raised on appeal even if post-sentence motions were not filed. For example, in a drug case where the Commonwealth failed to introduce sufficient evidence that the defendant actually intended to sell the drugs recovered by police, it may be possible to challenge the sufficiency of the evidence to support a Possession with the Intent to Deliver conviction on appeal.

In every criminal trial, the Commonwealth is required to prove its case beyond a reasonable doubt, meaning that in cases where there are other non-criminal explanations for how something occurred or it is possible that someone else could have been responsible for the crime, it may be possible to challenge the conviction based on the sufficiency of the evidence. It is important to remember that we cannot re-litigate credibility issues in any direct appeal because it is the trial judge's or jury's job to decide who to believe. However, whether or not the Commonwealth presented sufficient evidence is an issue of law which can be raised on appeal.

Weight of the Evidence 

In some cases, it is possible to challenge the weight of the evidence on appeal. However, you should keep in mind that the weight of the evidence cannot be challenged on appeal if post-sentence motions were not filed within ten days of sentencing. So again, it is extremely important to consult with appeal lawyers immediately after a finding of a guilt so your valuable rights are not lost.

In the post-sentence motion, the defense will ask the trial judge to set aside the verdict and grant a new trial because the verdict was against the weight of the evidence. The trial court must exercise its discretion in reviewing the entire record and determine if despite the existence of sufficient evidence to sustain the verdict of guilty, the court abused its discretion in concluding that the evidence did not preponderate sufficiently heavily against the verdict and that a serious miscarriage of justice may have occurred.

If the trial judge denies the post-sentence motion for a new trial based on the weight of the evidence, then the defendant may appeal the trial court's decision to the Superior Court. The Superior Court will not evaluate the weight of the evidence itself, but instead will review whether the trial court properly exercised its discretion in ruling on the motion. This is a difficult standard to meet, but if the evidence overwhelmingly showed that the defendant was not guilty despite still being technically sufficient to sustain a conviction, it may be possible to obtain a new trial based on the weight of the evidence. 

Questions of Law and Denied Motions to Suppress 

Provided that they were properly preserved for appellate review through the filing of pretrial motions and objections at trial, it is possible to appeal based on many issues of law and the denial of pretrial motions. For example, if the trial court denies a defense objection to the improper introduction of the defendant's previous criminal record at trial, it could be the basis for an appeal to the Superior Court. Likewise, if the trial court denies a pre-trial motion to suppress or a motion to dismiss on speedy trial grounds that the court should have granted, this could also be the basis for an appeal.

One of the most important issues on appeal is whether the trial court provided the correct instructions to the jury prior to deliberations. If the trial court gives incorrect jury instructions or fails to give certain instructions that it should have given, then it may be possible to appeal on the basis, provided that defense counsel makes an objection on the record following the charging of the jury.

Sentencing Appeals

In some cases, the defendant may accept that the jury or judge found him or her guilty but feel that the judge imposed a sentence that was far too harsh, and so it is possible to appeal the judge's sentence. The first step in appealing a sentence is to file a motion to reconsider sentence within ten days of sentencing because if it is not within this time restraint, it becomes almost impossible to challenge the sentence on appeal.

The motion to reconsider the sentence must allege that that the sentencing court abused its discretion by imposing an excessive and unreasonable sentence. Once the post-sentence motion to reconsider is filed, the judge has 120 days in which to rule on the motion, which may be extended by motion for an additional 30 days. If the judge does not rule on the motion within that time period, it will be denied automatically by operation of law, and the defendant will then have thirty days from the denial of the motion to appeal to the Superior Court.

Judges in Philadelphia have a tremendous amount of discretion in selecting from various sentencing options. Pennsylvania sentencing law, however, does not provide for unlimited discretion. There are still several rules that the judge must follow in imposing a sentence which could be subject to challenge on appeal.

For example, the judge must calculate the sentencing guidelines and consider them when imposing a sentence. In some cases, there may be a dispute over which guidelines apply, which could lead to an appeal. So, if the defendant was convicted of a gun charge, the guidelines may vary based on whether or not the gun was loaded. If the gun was never actually recovered, it may be possible to appeal if the court applied the guidelines for a loaded gun without sufficient evidence that the gun was in fact loaded.

Even when the court imposes a guideline sentence, there are potential appeal issues if the court:

1. Did not fully consider the sentencing factors,

2. Imposed a sentence which was not individualized,

3. Imposed a sentence which was unlikely to end during the defendant's life span,

4. Imposed a clearly unreasonable sentence,

5. Miscalculated the guidelines, and/or,

6. Relied on impermissible sentencing factors.

In cases where the court departs from the sentencing guidelines, there are additional grounds for appeal. If the departure from the guidelines was unreasonable and unsupported by the record or due solely to the type of charge, it may be possible to challenge a sentence on appeal.

These are just some of the many issues that could potentially be raised in a direct appeal or in a Post-Conviction Relief Act Petition. The most important thing to remember is that that the time deadlines begin to run immediately, so it is critical to have a team of experienced appeal lawyers conduct a thorough review of the record as soon as possible.

Generals Questions About Criminal Appeals and PCRAs

Below are some common questions we receive about criminal appeals and PCRA petitions.

How do I appeal a criminal case in Pennsylvania?

The appeals process typically begins with filing post-sentence motions within ten days of sentencing. If you do not file post-sentence motions (or if post-sentence motions have been denied), then you typically have thirty days from the date of sentencing or from the denial of the post-sentence motions if you filed them to file a notice of appeal to the Superior Court. The notice of appeal identifies the order which you are appealing and informs the trial judge and appellate court that you wish to appeal. It must typically identify the date of sentencing and include a copy of the transcript order forms if the transcripts have not been ordered. The notice of appeal should be filed in the trial court. Criminal appeals are complicated, however, so it is generally something you should not try to do yourself. You should always speak with a defense attorney before pursuing an appeal, and if you cannot afford one, the court is required to appoint one for you.

Will the witnesses testify again at the appeal?

The witnesses will not have to testify again during an appeal. The Superior Court does not receive any new evidence or ask the witnesses to testify. Instead, the Superior Court looks only at the transcripts from the proceedings in the trial court. If the trial court made legal errors and those errors were properly preserved for appeal by making timely objections, then the Superior Court may award a new trial or dismiss the case. However, the Superior Court will not receive any new evidence. If the issue on appeal is that new witnesses have come forward who were unknown at the time of trial, then that type of issue would be more appropriate for a PCRA than a direct appeal. Because the PCRA takes place in the trial court, the PCRA court can receive new evidence and make a determination as to whether the evidence was truly unavailable at the time of trial and whether the newly discovered evidence would have affected the outcome of the trial. 

How long does a criminal appeal take?

An appeal can take a long time and may not be finished for a year or more. The amount of time which an appeal will take varies dramatically depending on how quickly the lawyers and trial judge move the case forward. If the lawyers request multiple extensions or the trial judge does not promptly write the 1925(b) Opinion, then the appeal could drag on for a number of years. If the parties get everything done without filing extensions, do not request oral argument, and the Superior Court rules quickly, then the appeal could take less than a year. 

Can I appeal because my trial lawyer did a bad job?

If your lawyer did a bad enough job, you may be able to have your conviction overturned or obtain a new sentencing hearing. However, this type of claim would not be raised in a direct appeal to the Superior Court. The Pennsylvania and United States Constitutions both guarantee the effective assistance of counsel, and lawyers are presumed effective. However, if you feel that you were not represented properly at the trial or direct appeal level, you may be able to file a Post-Conviction Relief Act Petition ("PCRA") alleging ineffective assistance of counsel. A Post-Conviction Relief Act Petition is filed with the trial court and is often heard by the same judge who presided over the original trial or guilty plea.

The Petitioner must be able to show that the trial or direct appeal lawyer was ineffective, which means 1) the lawyer made decisions lacking in any reasonable strategic basis and 2) the defendant suffered prejudice as a result of the lawyer's ineffective representation. As a general rule, a PCRA petition must be filed while the defendant is still serving some sort of sentence, and it must be filed within one year of the date on which the sentence became final. Because sentences do not become final until appeals have been exhausted, PCRAs are typically filed after appeals have been denied. If you file a PCRA first, your right to direct appeal will be waived forever, and it is also possible to inadvertently waive claims by raising them in a PCRA instead of on direct appeal. There are some exceptions to the one year deadline for cases in which a defendant discovers new evidence and for cases involving DNA testing. 

The witnesses lied during the trial. Can I appeal a criminal conviction because witnesses committed perjury?

You cannot ordinarily appeal on the basis that witnesses lied during the trial. Under our legal system, it is either the judge or jury's job to determine who to believe. Because the Superior Court reviews only the notes of testimony from the proceedings, the appellate judges are not in a position to view the demeanor of the witnesses and make credibility determinations as to whether they were telling the truth. However, if the proper Post-Sentence Motions were filed, then it is possible to make a challenge based on the weight of the evidence on appeal. If the evidence overwhelmingly pointed to innocence but the defendant was still convicted, then that type of challenge may be raised by arguing that the weight of the evidence required a different verdict. However, it is generally not possible to appeal solely because witnesses lied.  

What are the grounds for an appeal in a criminal case?

A direct appeal, which typically comes before a Post-Conviction Relief Act Petition, must focus on legal errors which were committed by the trial court. Instead of challenging the credibility of witnesses or asking the appeals court to find that witnesses were lying, the defendant must identify legal errors which affected the outcome of the proceeding. This means identifying questions of law where the trial judge made the wrong decision.

For example, if the defendant filed a pre-trial motion to suppress in a case arguing that police were required to obtain a warrant prior to searching the defendant's house, and the court found that the police did not need a warrant due to some exception to the search warrant requirement, then that decision could be the basis for an appeal because it involves questions of law. Likewise, if the defense objects to evidence of the defendant's prior record being introduced at trial and the trial judge lets the evidence come in, something like that could potentially be appealed to the Superior Court because that is a legal error. 

Other issues, such as defense counsel's failure to properly cross-examine witnesses, make objections, file motions, or investigate the case, can be raised through a Post-Conviction Relief Act Petition once the direct appeal has been decided. 

Does the same judge decide the appeal?

No. The trial judge would make a ruling on post-sentence motions, but the direct appeal will initially be decided by a panel of three Superior Court judges. The trial judge will write an opinion as to why the decision of the trial court should be affirmed, but that decision will then be reviewed by three judges who have the authority to reverse the decision of the trial court. However, in Post-Conviction Relief Act proceedings, the trial judge will likely conduct any hearings and rule on the merits of a PCRA Petition. Like the original trial, the court's decision in the PCRA litigation may also be appealed to the Superior Court.  

Can I get bail during an appeal?

In all cases, the trial judge may grant bail pending appeal. In Pennsylvania, there is a presumption that the defendant should be granted bail pending appeal in cases where the defendant receives a maximum sentence of two years or less. If the defendant receives a sentence of two years or longer, then it becomes more difficult to obtain bail pending appeal. However, in some circumstances, the trial judge may still grant bail pending appeal even in cases involving longer sentences. It may also be possible to ask the Superior Court to review a trial judge's decision to deny bail pending appeal.  

What happens if I win the appeal?

If you win the appeal, the exact remedy awarded by the Superior Court could vary depending on the nature of the case and the issues raised on appeal. For example, if the Court concludes that the trial court should have granted the motion to suppress, then the Superior Court would reverse the conviction and send the case back to the trial court for a new trial with instructions that the improperly seized evidence be excluded. If the Commonwealth does not have any other evidence, then they would be forced to drop the charges. If they can proceed without the excluded evidence, then the trial court may order the defendant to stand trial again. In sufficiency appeals, the Court could find that the evidence was insufficient and order that the conviction be vacated and the case discharged. In other cases, the Court could award a new trial. 

What is the difference between a PCRA and a direct appeal?

There are a number of important differences between PCRA Petitions and direct appeals. The direct appeal typically happens first because if it not filed within thirty days of the sentencing or denial of post-sentence motions, then the direct appeal will be waived forever. Therefore, it typically makes sense to take a shot at the direct appeal first even if the odds of winning are low. Otherwise, the right to a direct appeal are waived forever. The PCRA can be filed within one year of the sentence becoming final, and the sentence does not become final until the direct appeals are denied. This means that the PCRA can be filed after the direct appeal without waiving any rights.

Direct appeals and PCRAs also address different types of issues and take place in different courts. The direct appeal challenges legal errors made by the trial court. In other words, the attorneys in a direct appeal will argue that the judge or jury made a mistake in the procedures followed during the trial or in finding that there was sufficient evidence to convict. A PCRA, however, often challenges the performance and effectiveness of the defense attorney. Additionally, PCRAs can be raised when new evidence is uncovered or in response to changes in constitutional law. Direct appeals are heard by judges in the Superior Court, and new evidence cannot be introduced in a direct appeal. PCRAs are heard by the trial judge, and if the PCRA Petition sets out claims of arguable merit, the trial judge could order an evidentiary hearing and receive new evidence. 

How many times can you appeal a criminal case?

You can only file a direct appeal once. If the Superior Court denies the appeal, then it is possible to Petition the Pennsylvania Supreme Court for allocatur. The Superior Court has to hear and decide every appeal which is filed, but the Pennsylvania Supreme Court chooses a limited number of cases to review each year. If the Pennsylvania Supreme Court denies review or reviews the case and denies the appeal, it may also be possible to appeal questions of federal law to the United States Supreme Court. Like the Pennsylvania Supreme Court, the United States Supreme Court reviews only a limited number of cases of its choosing. 

What if I told my lawyer to file an appeal but the lawyer didn’t do it?

If you told your lawyer to file an appeal and the lawyer missed the deadline for doing so, it may be possible to have your direct appeal rights reinstated by filing a Post-Conviction Relief Act Petition nunc pro tunc. In many cases, if there is any evidence in writing, the Commonwealth will agree to the reinstatement of the defendant's appellate rights as it is per se ineffectiveness to fail to file an appeal after receiving instructions to do so. If there is no documentation of the request to file an appeal, then the defendant could testify in an evidentiary hearing, and the judge would have to decide whether he or she believes that the defendant asked for an appeal. We have been able to have direct appeal rights reinstated in many cases where the original trial counsel failed to file an appeal on time. 

Can I appeal after a guilty plea?

We like to be honest with our clients and potential clients, so we will freely admit that the appeal of a guilty plea is one of the most difficult types of appeals to win. In order to appeal a guilty plea and attempt either to withdraw the plea or obtain a new sentence, a Post-Sentence Motion must be filed within ten days of the sentencing. In order to withdraw the plea, the Motion must be filed within ten days asking the trial court to permit the defendant to withdraw the plea. If the trial court holds a hearing and denies the motion, then the denial of the motion to withdraw the plea can be appealed in the Superior Court. Likewise, any defendant who wants to appeal an excessive sentence must file a Post-Sentence Motion asking the trial court to reconsider the sentence. If the motion is not filed, then the Superior Court cannot review any discretionary aspects of the sentence. The Court may still review an illegal sentence, but it cannot review a sentence solely because the sentence was too harsh unless the defendant first filed the Post-Sentence Motion.

In some cases, it may be possible to file a PCRA following a guilty plea. If the defendant pleaded guilty due to bad advice from defense counsel, it may be possible to file a PCRA Petition within one year of sentencing if the defendant is still serving the sentence. However, these petitions are difficult to win. A successful petition will typically require finding conclusive evidence of innocence or showing that legal motions should have been filed which would have almost certainly resulted in a win.  

Should I appeal my case? What else do I need to know?

The most important thing to realize about criminal appeals is that they are difficult and complicated. You will not be able to do it yourself, and your trial lawyer may not be the right person for an appeal if the trial lawyer does not regularly represent clients in the appellate courts and Post-Conviction Relief Act proceedings. There are also deadlines which begin to run in as little as ten days after sentencing. However, if you are unhappy with the outcome of the proceedings in the trial court, our Philadelphia criminal defense lawyers may be able to help. The Superior Court does not grant a lot of defense appeals, but each year, a significant number of defendants do receive relief in the form of a new trial or sentencing. Therefore, if you are unhappy with the outcome of your case, give us a call. We will give you an honest assessment of the prospects for success on appeal. We are experienced and understanding defense attorneys with vast experience and success in post-conviction proceedings. We offer a free, 15-minute criminal appeals strategy session to each potential client. Call 267-225-2545 to speak with a top-rated Philadelphia criminal lawyer today.  

Our criminal appeal attorneys have litigated countless appeals, PCRA petitions, and federal habeas corpus petitions. Even after a conviction, we will keep fighting for you to see that justice is done and to undo a wrongful conviction or excessive sentence. Just because you have been convicted, does not mean you should give up. We may be able to help. If you or a loved one need an experienced Pennsylvania appellate attorney or a lawyer for a PCRA petition, call us at 267-225-2545 today for a complimentary 15-minute criminal defense strategy session. 

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Recent Case Results - Attorney Goldstein Obtains Reversal of 30 Year Prison Sentence With Successful PCRA Petition

Attorney Goldstein Wins Re-Sentencing on Appeal for Client who Received 35 Years for Drugs

Attorney Mehta Wins New Trial for Client Serving 20-Year Sentence

New Trial Ordered by PA Superior Court for Client Convicted of Sexual Assault

Attorney Goldstein Argues in Front of Supreme Court of Pennsylvania

Attorney Goldstein Wins New Trial in Superior Court Appeal of First Degree Murder Case

A Philly man was released from jail after his overturned murder case officially collapsed