Pennsylvania Criminal Appeals | Guide to the Appeals Process

Award-Winning Defense Lawyers for Criminal Appeals in Pennsylvania and New Jersey

The Philadelphia criminal defense attorneys of Goldstein Mehta LLC may be able to help you with your case even if you have already been convicted at trial or pleaded guilty. Our attorneys have represented clients in direct appeals to the Pennsylvania Superior and Supreme Courts and in Post-Conviction Relief Act proceedings. We have successfully reversed lengthy state sentences and obtained new trials for defendants who were wrongfully convicted or made a mistake when deciding to plead guilty. If you have just been found guilty or sentenced, call 267-225-2545 to discuss how we may be able to help you get a new trial. 

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The criminal appeals process can be extremely confusing and difficult to navigate. There are also important deadlines which immediately begin to run as soon as you receive your sentence. If you are considering an appeal, you should speak with an appellate attorney immediately. Because the process can be overwhelming for a defendant who has just been wrongfully convicted of a crime, we are providing the answers to some of the most common questions that we receive about criminal appeals and Post-Conviction Relief Act Petitions in Pennsylvania. If you have any questions which are not answered on this page, call us or fill out the contact form for a free 15-minute criminal appeals strategy session. 


How can I get a new trial?

There are four ways to get a new trial in state court following a finding of guilt or a guilty plea.

  1. First, a Motion for Extraordinary Relief may be made prior to sentencing.
  2. Second, Post-Sentence Motions should be filed after sentencing asking the trial judge to award a new trial.
  3. Third, if those motions in the trial court are denied, then a defendant may take a direct appeal to the Pennsylvania Superior Court and potentially the Pennsylvania Supreme Court.
  4. Finally, if the direct appeal is denied, then there may be claims which can be raised in a Post-Conviction Relief Act Petition. A Post-Conviction Relief Act Petition would be filed in the trial court after direct appeals have been exhausted.

Once state court remedies have been exhausted, there is the possibility of filing a Habeas Petition in Federal Court. However, this article is limited to the subject of state court appeals and PCRAs in Pennsylvania. 

The judge just found me guilty. What can I do now?

The most important thing you should do is speak with a criminal appeals attorney as soon as possible. None of the deadlines for filing an appeal begin to run until you are actually sentenced, so if you have not been sentenced, then you do not have to worry about deadlines yet. However, the deadlines begin to run quickly after sentencing, so you should speak with an appellate attorney prior to sentencing so that post-sentence motions can be ready to go.

Zak T. Goldstein, Esq - Criminal Appeals Lawyer in Philadelphia, PA 

Zak T. Goldstein, Esq - Criminal Appeals Lawyer in Philadelphia, PA 

If you were happy with your trial lawyer, then you can speak with the trial lawyer about the prospects for an appeal. If your trial lawyer does not handle appeals or you want to seek counsel from a new criminal defense attorney, then you should do that as soon as possible so that you do not waive any of your rights.

Keep in mind that appeals are very different from trials. Many lawyers are great for criminal trials but may not be the right lawyer for an appeal to the Superior Court. It is important to retain a lawyer who regularly handles appeals as appeals are very different from trials. 

What is a Motion for Extraordinary Relief?

There is one motion that can be filed prior to sentencing which could be used to obtain relief from a wrongful conviction. 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. 

How can I appeal my conviction after I have been sentenced?

Once you have been sentenced, the deadlines begin to run immediately. Within ten days of sentencing, your appellate lawyer must 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 be waived forever 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.
  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.
  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 extremely 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 will likely be waived forever. 

In most situations, the Post-Sentence Motion will toll the running of the deadline for the Notice of Appeal. This means that the Notice of Appeal does not have to be filed until the Post-Sentence Motion has been denied. However, in the case of an appeal from a Violation of Probation hearing, the Post-Sentence Motion does not toll the running of the deadline for the Notice of Appeal. This means that the Post-Sentence Motion must be filed within ten days of the Violation of Probation sentencing, and the Notice of Appeal must be filed within thirty days of the sentencing. 

What happens after I file a notice of appeal?

Demetra Mehta, Esq - Pennsylvania Appellate Lawyer

Demetra Mehta, Esq - Pennsylvania Appellate Lawyer

After you file a notice of appeal, a docket will be opened in the Superior Court. The court reporters will begin to transcribe the proceedings, and the trial judge will eventually issue a Rule 1925(b) order directing the Appellant to identify the issues which are going to be raised on appeal. Once the Appellant files a Statement of Errors Complained of on Appeal, the trial judge will write an opinion as to why the errors identified in the 1925(b) statement should not result in a new trial. Once the judge files the opinion, the Superior Court will direct the Appellant to draft and file a brief, and the Appellee will then have time to respond. Once the briefs have been filed, the parties may choose to have oral argument before a panel of three Superior Court judges for either five or fifteen minutes. The Superior Court will not receive any new evidence at the oral argument, but the lawyers will have the opportunity to argue as to why the appeal should be granted or denied. Sometime after the briefs have been submitted or argument has been made, the Superior Court will issue a ruling and an opinion. If the Superior Court denies the appeal, it may be possible to file a Petition for Allowance of Appeal to the Pennsylvania Supreme Court. However, the Pennsylvania Supreme Court is not required to accept an appeal and will typically only do so when the Superior Court has made an obvious error or when a novel issue of law is presented by the appeal. 

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 inability to properly cross-examine witnesses 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 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.  

Goldstein Mehta LLC - Criminal Appellate Lawyers

Goldstein Mehta LLC - Criminal Appellate Lawyers

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 insufficiency 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 and 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. 

Appealing a Conviction After Pleading Guilty

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.  

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