Philadelphia Criminal Defense Blog

Zak Goldstein 9/29/18 Zak Goldstein 9/29/18

Indicting Grand Juries in Philadelphia State Court

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.

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.

Zak Goldstein 7/19/18 Zak Goldstein 7/19/18

PA Supreme Court: Rule 600 Speedy Trial Motion Not Always Waived by Defendant’s Bench Warrant

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esq.

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Barbour, holding that a defendant does not waive the speedy trial protections of Rule 600 by failing to appear for court without cause after the 365-day period for bringing a defendant to trial has already expired. Barbour is the second recent pro-defense decision from the Pennsylvania Supreme Court in recent months, suggesting that the Court has finally recognized that recent decisions of the Superior Court had completely eviscerated the rule’s protections and allowed defendants to languish in prison for years without trials through no fault of their own.

The Issues in Commonwealth v. Barbour

The issue in Barbour was whether a defendant’s unexcused failure to appear for court waives the protections of Rule 600 even where the defendant’s 600 rights were already violated prior to the date on which the defendant failed to appear. As a general rule, Rule 600 of the Pennsylvania Rules of Criminal Procedure requires the Commonwealth to bring a criminal defendant to trial within 365 days of the filing of the complaint. If the Commonwealth fails to bring the defendant to trial within that time period, then the case should be dismissed with prejudice, meaning the Commonwealth cannot re-file the charges.

In theory, the rule seems simple. In practice, it is much more complicated for a number of reasons. First, time between court dates for which the defendant is responsible for the delay do not count towards the 365-day calculation. This means that if the defendant requests a continuance of a hearing, then the time until the next hearing does not count for Rule 600 purposes.

Second, over the years, the Superior Court has created all sorts of absurd exceptions for why time does not count against the Commonwealth even when it’s the Commonwealth’s fault that that the case was continued. For example, trial courts routinely fail to count time during which the prosecutor was “duly diligent” but nonetheless could not proceed to trial on a given date. These types of continuances which do not count against the Commonwealth could include periods of time during which the defendant was not brought to court from custody or police officers were sick or injured on duty, or even where the prosecution simply needed more time to investigate the case and prepare for trial. Additionally, where the prosecution is ready to proceed but the trial judge is busy hearing a different case, the time will often be excluded from the Rule 600 calculation.

Recent years have shown a marked trend of appellate courts forgiving every possible delay because of the reluctance to dismiss serious criminal charges based on what many would view as a technicality. However, the failure to protect a defendant’s right to a speedy trial has real costs to both the defense and the prosecution. When a defendant remains in jail waiting for trial for a year or more, the defendant could lose his or her job, home, and contact with his or her family all while presumed innocent.

Likewise, the prosecution’s case generally does not get better with age; witnesses may move out of the jurisdiction or forget key details about the incident, police officers may retire or get indicted, and prosecutors and detectives may lose evidence. Thus, Rule 600 really protects both sides. It protects the accused, who should not have to deal with the threat of criminal charges or pre-trial incarceration for lengthy periods of time, and it protects the prosecution, who benefits from proceeding to trial in a reasonably prompt manner. After years of decisions excusing endless delay from the courts and prosecutors, the Pennsylvania Supreme Court has finally begun to enforce the protections of Rule 600.

In the prior cases of Commonwealth v. Steltz and Commonwealth v. Brock, the Supreme Court held that a defendant forever waives the protections of 600 by failing to appear for court as required. The rationale behind those decisions was that if a defendant fails to appear and obtains a bench warrant, then the defendant may then be brought to trial at the prosecution’s convenience.

In this case, the defendant obtained a bench warrant for failure to appear back in 2004. In 2014, the defendant was arrested on the bench warrant, and the court scheduled a new trial date. Prior to trial, the defendant moved to dismiss the charges pursuant to Rule 600. The defendant argued that this case was different from Steltzand Brock because in those cases, the defendants bench warranted prior to the expiration of the 365-day period. Here, however, the defendant’s bench warrant was issued after the Commonwealth had already failed to bring him to trial within 365 days. Thus, the defendant argued that he should not be able to waive Rule 600 where the Commonwealth had already violated the rule.

Ultimately, the Supreme Court agreed. It re-affirmed the rule of Brock and Steltz that a bench warrant prior to the expiration of the 365-day period waives Rule 600, but it also held that where the Commonwealth has already violated Rule 600 prior to the bench warrant, the defendant’s unexcused absence at trial does not waive the protections of the rule. This is a good, but narrow, decision which will make the waiver doctrine of Steltz and Brock slightly less punishing for those who have already had their rights violated.

Facing criminal charges? We can help.

If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients against all types of criminal charges in Pennsylvania and New Jersey. We offer a free criminal defense strategy session to each potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 6/24/18 Zak Goldstein 6/24/18

SCOTUS: Defendant May Waive Double Jeopardy by Moving to Sever Felon in Possession of Firearm Charge

Philadelphia Criminal Defense Lawyer Zak Goldstein

The United States Supreme Court has decided the case of Currier v. Virginia, holding that a defendant may waive double jeopardy protections by consenting to the severance of criminal charges and moving for separate trials on different charges. Specifically, the defendant may waive his or her double jeopardy rights by moving to sever a felon in possession of a firearm charge from the other charges in a criminal case.

The Facts of Currier v. Virginia

In Currier, prosecutors charged the defendant with burglary, grand larceny, and unlawful possession of a firearm by a convicted felon in Virginia. Coincidentally, the defendant was not eligible to possess a gun because he had prior convictions for burglary and grand larceny. Because the defendant was charged with unlawful possession of a firearm by a convicted felon, prosecutors would have been allowed to introduce his prior convictions for burglary and grand larceny in his trial as the existence of those prior convictions is an element of the statute. This would have been detrimental to his case because the jury would have heard both that he had prior convictions in general and that he had prior convictions for the exact same thing with which he was charged.

Accordingly, the defendant and the Government agreed to sever the charges and hold two separate trials. As discussed in the Court’s opinion, there is no universal way to handle this issue and each jurisdiction is different. In Virginia, a defendant can have two trials: one for the unlawful possession of a firearm by a convicted felon and a second trial for the other charges. In this case, Petitioner elected to have two trials. This is not the normal procedure in Philadelphia. In Philadelphia, the prosecutors will ordinarily proceed against the defendant on the non-felon in possession charges first. If the prosecution obtains a conviction on all of the charges other than the felon in possession charge, then the defense will typically allow the trial judge to make the decision on the remaining gun charge. If the jury acquits on all of the other charges, then the prosecution will usually move to nolle prosse the remaining gun charge. In some cases, the prosecution does still insist that the jury hear the felon in possession case after it has ruled on the other charges. However, Philadelphia does not typically conduct two separate trials in these types of cases.

The first trial, for the charges of grand larceny and burglary, went very well for the defendant. He was acquitted of both charges. When he appeared for his second trial, his defense attorneys moved to dismiss the gun charge. They argued that it would violate his constitutional right against Double Jeopardy. In the alternative, he asked that the prosecution not be allowed to introduce any evidence pertaining to the grand larceny and burglary charges because he was acquitted of those charges. The trial court denied the defense's request, and the jury found him guilty of the gun charge. The court sentenced him to a lengthy period of incarceration. He appealed through the Virginia state appellate system, and both the Virginia Court of Appeals and the Virginia Supreme Court affirmed the denial of his double jeopardy motion. He appealed to the United States Supreme Court, and the Supreme Court granted certiorari and agreed to hear the case.

What is Double Jeopardy?

The Fifth Amendment of the United States Constitution prohibits a defendant from being tried twice for the same crime after he or she has been acquitted or convicted of the crime. These situations can become more complicated than one would expect, but a simple example of double jeopardy is this: Imagine a defendant is charged with robbing a bank. The defendant goes to trial, and the jury acquits him of robbing the bank. The same jurisdiction cannot then re-try him again for robbing the bank, even if prosecutors later uncover more evidence that would have likely led to a different verdict.

It is important to note that under the federal constitution and subsequent case law, this protection only applies to the particular jurisdiction that tried the defendant. In other words, just because a defendant is acquitted of a crime at the federal level does not mean that the state government cannot prosecute for the crime too. However, the rules governing this depend on the jurisdiction. Pennsylvania offers much broader Double Jeopardy protections in comparison to other states. Thus, if a defendant is acquitted in federal court, Pennsylvania prosecutors cannot then bring charges. The reverse, however, is not true - if a defendant is acquitted in Pennsylvania court, the federal government can still bring charges. Click here to learn more about double jeopardy in general.

The Double Jeopardy Clause also has a collateral estoppel component to it. What this means is that the government cannot re-litigate a fact that was decided in a defendant’s favor. To give a basic example of this, let’s assume that a defendant punched a person in the face and took their phone. This is technically a robbery, but it is also a simple assault. Let’s also assume that at trial, the government chooses only to proceed on the robbery charge and the defendant is found not guilty. The doctrine of collateral estoppel prevents the government from re-arresting the defendant for simple assault because he was already found not guilty of an essential fact of the case (i.e. punching the complainant) in the robbery trial.

This idea of collateral estoppel, as discussed in Currier, is not a universally accepted idea by legal jurists and remains controversial. However, as the justices noted in their opinion, collateral estoppel was not the issue in this case, though it is a little confusing (as discussed below). The issue in Currier, according to the justices, was whether a defendant can waive his Double Jeopardy protections by seeking a severance of the charges filed against him.

The Court Holds that a Defendant Can Waive His Double Jeopardy Protections When He Agrees to Severance of the Charges

In Currier, the Supreme Court held that a defendant may waive his Double Jeopardy protections when he elects to have two trials. In making its decision, the Court looked at its prior decisions that addressed the issue. In its research, the Court concluded that when a defendant elects to have two trials, he is no longer entitled to Double Jeopardy protections. The Court stated that the Double Jeopardy Clause was designed to protect against government oppression, not from the consequences of a defendant’s voluntary choice.

The defendant, of course, argued that he had no real choice. If he had not elected to sever his cases, than the jury would have heard that he had prior convictions for the same offenses, and he would not have received a fair trial. However, the Supreme Court noted that though he was entitled to have separate trials under Virginia law, it was not a constitutional right to have separate trials. Thus, he was not forced to give up one constitutional right to secure another. Additionally, the Court held that because the defendant consented to the severance of the cases, the prosecution could still introduce evidence relating to the charges for which he had already been acquitted.

This decision will likely prove confusing and frustrating for criminal defendants because even though the defendant was found not guilty of the burglary and the grand larceny charges, the prosecution was allowed to introduce evidence for those crimes in his second trial. The Court made clear that its decision was based on the text of the Fifth Amendment and therefore held that the Double Jeopardy Clause only prohibits re-litigating offenses, not issues or evidence. Consequently, the Court held that the normal rules of evidence apply and thus a trial court must decide whether to allow the introduction of evidence and facts from the prior trial.

Facing criminal charges? We can help.

Criminal Defense Attorneys Zak Goldstein and Demetra Mehta

If you are facing criminal charges in state or federal court, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of criminal cases in trial and appellate courts throughout Pennsylvania and New Jersey. If you are under investigation or have been arrested, we offer a 15-minute criminal defense strategy session free of charge. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.

Zak Goldstein 6/8/18 Zak Goldstein 6/8/18

PA Superior Court: Commonwealth Cannot Appeal Dismissal for Lack of Evidence at Preliminary Hearing, Must Re-File Instead

Commonwealth v. Perez

The Pennsylvania Superior Court has decided the case of Commonwealth v. Perez, holding that the Commonwealth may not file an interlocutory appeal following the dismissal of charges for lack of evidence at a preliminary hearing. The court held that the Commonwealth must instead re-file the charges and ask that a different magistrate hear the case.

The Facts of Commonwealth v. Perez

In Perez, the defendant was charged with first-degree Murder and Possession of an Instrument of Crime (“PIC”). The Commonwealth filed the charges against the defendant in the Philadelphia Municipal Court, and the case was scheduled for a preliminary hearing before a Municipal Court judge. At the conclusion of the hearing, the MC judge dismissed the charges, finding that the Commonwealth failed to establish a prima facie case of Murder or PIC at the preliminary hearing.

The Commonwealth re-filed the charges. When the Commonwealth re-files on homicide charges in Philadelphia, the preliminary hearing takes place again before a judge in the Court of Common Pleas. When the Commonwealth re-files in the suburban counties, a different Magisterial District Justice, or sometimes even the same justice, will hear the case again. In this case, the Common Pleas homicide judge presided over the second preliminary hearing, and the Commonwealth presented additional evidence. Despite the fact that the Commonwealth presented additional evidence, the Common Pleas judge agreed that there was simply not enough evidence to find that the defendant committed the murder. The judge again dismissed the charges, and the Commonwealth appealed to the Superior Court.

Why would a case get dismissed at the preliminary hearing?

In a criminal trial before a judge or a jury, the Commonwealth must prove the defendant’s guilt beyond a reasonable doubt or the factfinder must acquit the defendant. The standard at a preliminary hearing, which typically occurs within the first few weeks or months of a case, is much lower. The Commonwealth must only show that a crime occurred and the defendant probably committed it. The Commonwealth is entitled to all reasonable inferences in its favor and in the suburban counties, may generally proceed entirely on hearsay presented by police officers. In Philadelphia, the Commonwealth generally cannot get away with proceeding entirely based on hearsay, but some hearsay is still allowed under the rules. If the Commonwealth fails to prove that it is more likely than not that the defendant committed the crime charged, then the court should dismiss the charge or reduce the gradation to the level that was proven by the prosecution.

Is the case over if it gets dismissed at a preliminary hearing?

There are two main reasons why a case would be dismissed at a preliminary hearing. First, if the prosecution is repeatedly not ready to proceed because witnesses have failed to appear, then the case could be dismissed for lack of prosecution (“DLOP”). In Philadelphia, this typically takes place when the Commonwealth is not ready to go three times in a row. Second, if the prosecution presents a case but the evidence fails to prove by a preponderance of the evidence (51%) that the defendant committed the crimes charged, then the judge should dismiss the charges for lack of evidence (“DLOE”). Both types of dismissals are not necessarily the end of the case because the Commonwealth may re-file the charges. When the Commonwealth re-files the charges, the preliminary hearing will be heard again by a different judge. In Philadelphia, re-filed cases stemming from dismissal for lack of evidence are heard either in Motions court by a Common Pleas judge if it is a non-homicide case or by one of the homicide judges in a murder case. The Common Pleas judge will review the notes of testimony from the preliminary hearing and receive any additional evidence which the parties wish to present. In the suburban counties, a Magisterial District Justice will conduct an entirely new preliminary hearing.

Are there limits on the Commonwealth’s ability to re-file after a dismissal at the preliminary hearing?

Although the Commonwealth may re-file the charges following a dismissal for lack of evidence, the Commonwealth’s ability to re-file is not unlimited. Pennsylvania appellate courts have held that where the charges are repeatedly dismissed by the preliminary hearing magistrates, the successive re-filing of the charges could eventually reach the point of prosecutorial harassment and implicate due process rights. In that case, the charges could be dismissed without prejudice or the trial judge could prohibit the Commonwealth from re-filing the charges. The Commonwealth would then be limited to appealing the case to the Superior Court and asking the Superior Court to find that the evidence presented was sufficient to show that defendant probably committed the crime.

The Criminal Appeal in Perez

In Perez, the Commonwealth re-filed the charges once with the homicide judge in the Court of Common Pleas, and that judge still dismissed the murder charge without prejudice. Instead of attempting to re-file again before a different judge, the Commonwealth filed a motion to reconsider the dismissal order and eventually appealed the case to the Superior Court when that motion to reconsider was denied.

The Superior Court rejected the appeal, however, and refused to reach the merits of the case. The court found that the Commonwealth could not appeal the trial court’s decision because the order dismissing the charges was not a final order. In general, Pennsylvania appellate courts only have jurisdiction over appeals of final orders. A final order is one that disposes of all of the parties and all of the claims, meaning no further action is pending in the trial court. However, when a trial court dismisses criminal charges at a preliminary hearing, the Commonwealth can simply re-file the charges (assuming that they have not re-filed so many times that it would constitute prosecutorial harassment). Therefore, the Superior Court found that the appeal from the dismissal order was interlocutory and premature. The court denied the appeal, finding that the Commonwealth should have simply re-filed instead. Had the dismissal of the charges been with prejudice, meaning that the Commonwealth could not re-file, then the appeal would have been proper. Thus, Perez clearly establishes that the Commonwealth must re-file until no longer allowed before taking an appeal to the Superior Court.

The Impact of Perez

The Superior Court’s decision is somewhat counter-intuitive, but there are still protections for a defendant who is facing criminal charges. First, if more than one judge dismisses the charges, the Commonwealth may decide that they simply do not have a case and give up instead of continuing to re-file the charges. Second, Pennsylvania appellate courts have held that the Commonwealth’s ability to re-file is not limitless. Although there is no set number of times that the Commonwealth may re-file, the courts have found that “[I]f the Commonwealth’s conduct intrudes unreasonably upon the due process right of individuals to be free from governmental coercion, the Commonwealth should not be permitted to present the case repeatedly before successive magistrates.” In practice, this usually means that if the Commonwealth re-files more than once and the case is dismissed two or three times, the courts will likely dismiss the charges with prejudice and prevent the Commonwealth from re-filing. In that case, the Commonwealth could appeal the dismissal of the criminal charges to the Superior Court because that would be a final order. Likewise, where a trial judge in the Court of Common Pleas grants a Motion to Quash (also called a Petition for Writ of Habeas Corpus in the suburban counties), the Commonwealth may appeal that ruling to the Superior Court because the Commonwealth is prohibited from simply re-filing in order to evade the Common Pleas judge’s decision quashing the charges.

It is hard to say whether the court’s opinion in Perez benefits the Commonwealth or the defense. In general, allowing the Commonwealth to repeatedly re-file charges can be extremely expensive and stressful for a defendant as the defendant has to repeatedly defend against the charges at successive preliminary hearings. It also allows the Commonwealth to keep trying until the Commonwealth gets a judge that will rubber stamp the charges. At the same time, defending an appeal to the Superior Court is far more complicated, time-consuming and expensive than defending a preliminary hearing. Superior Court appeals can also take years. Therefore, criminal defendants may benefit in terms of cost and obtaining a resolution more quickly as this decision requires the Commonwealth to proceed by re-filing until prohibited by court order from doing so.

Criminal Charges? We Can Help.

If you are facing criminal charges or under investigation, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients in state and federal courts throughout Pennsylvania and New Jersey. We are experienced and understanding defense attorenys who will fight for you. We offer a free 15-minute criminal defense strategy session to each potential client. Call or text 267-225-2545 to speak with an attorney today.