Philadelphia Criminal Defense Blog

Zak Goldstein 12/5/23 Zak Goldstein 12/5/23

PA Supreme Court: Commonwealth's Suppression of Key Witness's Mental Health Records Requires New Trial

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Conforti, affirming the PCRA court’s decision to vacate the defendant’s convictions for murder, rape, and related charges. The Court affirmed the reversal of the defendant’s death sentence because the defendant was able to show in PCRA proceedings that the Commonwealth hid psychological records for the witness which could have been used to impeach the witness at the time of trial.

The Facts of Conforti

In 1990, Kathleen Harbison and and her friend, Sue Fritz, were drinking at Cousins Restaurant and Bar in Wayne County, Pennsylvania. Harbison was seen in the company of the defendant, Michael Conforti, and James Bellman. Harbison left the bar to warm up her car in the early morning hours while Fritz said goodbye to friends. Fritz left the bar a few minutes later. She found Harbison’s car in the parking lot with the engine running, the driver door locked, the passenger door unlocked, the heater running, the radio on high volume, and Harbison’s purse on the back seat. Harbison was nowhere to be found. Before Fritz came outside, someone saw Bellman in his car, which was parked next to Harbison’s car.

A few days later, Harbison’s body was found in a secluded wooded area of Wayne County. Harbison had been stabbed twelve times, and four of the wounds were lethal. The cause of death was multiple stab wounds. There was evidence that Harbison had been bound by the wrists and ankles by handcuffs and that the acts were committed by more than one person.

The defendant and Bellman were arrested and charged with murder and other offenses related to Harbison’s death. Bellman gave a statement admitting to his involvement while the defendant offered no statement. The two were tried at the same time in the Wayne County Courthouse in two separate trials. Then-Wayne County District Attorney (and future judge) Wayne Hamill prosecuted Bellman, and then-Assistant District Attorney Mark Zimmer prosecuted the defendant. After testimony closed in Bellman’s trial but before closing arguments, Bellman, District Attorney Hamill, and Bellman’s lawyer had a meeting in a conference room in the back of the courtroom. After the meeting, Bellman informed District Attorney Hamill that he would testify for the Commonwealth in the defendant’s then ongoing trial.

Bellman testified that on the night of the murder, he and Harbison left the bar in Wayne County and went to the defendant’s house in Pike County. He claimed the defendant forced Harbison to engage in oral sex after telling Bellman to handcuff her. Harbison was then forced into Bellman’s car and driven to a secluded dirt road in Wayne County. Bellman claimed he and the defendant pulled her from the car and then the defendant repeatedly stabbed her with a knife the defendant brought from his trailer before they left.

Bellman continued, that after the killing, he and the defendant stopped at Ledgedale Bridge where the defendant threw the knife and handcuffs into the water. They then burned the blood-stained clothing and car mats from Bellman’s car in the defendant’s burn barrel and cleaned and vacuumed the defendant’s trailer and Bellman’s car. Bellman identified the recovered knife as the murder weapon.

Bellman claimed he decided to testify due to his sympathy for the victim’s family. He claimed that he did not have a plea agreement with the Commonwealth and would not receive anything for his testimony. The day after Bellman’s testimony, the prosecutor and defense attorney stipulated to the following:

The Commonwealth and Defense have stipulated that after Bellman had informed the District Attorney that he wished to testify at this trial -- that is to say the trial of [defendant] -- the District Attorney told him that if he did so and pled guilty to first degree murder in his own trial, the District Attorney would not seek the death penalty.
Mr. Hamill, the District Attorney, further told James Bellman that if he did not plead guilty, he would receive no consideration for his testimony against [defendant].
At the time Mr. Bellman testified in this trial here yesterday, he had not made up his mind which of these options he wished to take.
Since that time, he has pled guilty to first degree murder and he has been sentenced to life in prison.

The defendant took the stand in his own defense, contradicting Bellman’s testimony, and denying any involvement in the murder. The jury convicted the defendant of murder, and the court sentenced him to death. The trial court denied all post-sentence motions, and the Pennsylvania Supreme Court affirmed the defendant’s conviction and judgement of sentence on direct appeal.

The Defendant’s Post-Conviction Relief Act Petition

The defendant filed a timely pro se petition pursuant to the Post Conviction Relief Act (“PCRA”). The Office of the Attorney General represented the Commonwealth. Multiple hearings were held between October 2018 and November 2021.

Immediately before the PCRA hearing on November 5, 2021, the Commonwealth, represented by the Office of the Attorney General, provided the defendant’s counsel with two of Bellman’s mental health reports from 1980. The reports were created when Bellman was represented by Hamill while Hamill was in private practice. Hamill requested Bellman be evaluated by mental health experts. The reports, based on these evaluations, showed that Bellman was diagnosed as a sociopath by both evaluating doctors.

At the hearing on the petition, the parties entered a stipulation providing that the Office of the Attorney General was provided the file for Commonwealth v. Conforti which was maintained by the Wayne County District Attorney’s Office. The file had been in the possession of the Office of the Attorney General since that time. Counsel further stipulated that the mental health reports were contained in the Wayne County District Attorney’s file in a folder labeled “Misc. Police Reports,” and counsel for the Commonwealth from the Office of the Attorney General was unaware of its presence prior to its discovery and disclosure.

The PCRA judge granted the defendant’s petition, vacating his conviction and sentence on multiple grounds due to Constitutional violations for failing to disclose material exculpatory evidence that may have affected the outcome of the trial. The PCRA court based its decision in Brady v. Maryland, finding that the Commonwealth committed a Brady violation by failing to disclose the exculpatory mental health reports.

The PCRA Court Opinion

The PCRA court made a number of factual determinations in support of the grant of a new trial. First, it concluded that Bellman was negotiating with the Commonwealth for weeks prior to his testimony and that the negotiations were for Bellman to testify against the defendant in order to strengthen a weak, circumstantial case against the defendant. Accordingly, under Brady v. Maryland, this information should have been disclosed prior to trial because Brady requires that any material showing that a Commonwealth witness was looking for favorable treatment or otherwise was motivated to curry favor with the prosecution be disclosed.

Second, the PCRA court addressed the defendant’s claim that the failure to disclose the mental health records also constituted a Brady violation. The court determined that the Commonwealth had possession of Bellman’s mental health reports since 1980 and that the reports remained in the possession of the Commonwealth since that time. The court found that none of the evidence of Bellman’s mental health issues was disclosed to defense counsel prior to trial.

The court emphasized this determination by explaining, had this information been provided to defendant’s counsel prior to trial, defendant’s attorney could have called the authors to tell the jury what they determined to be Bellman’s mental health issues. The court highlighted excerpts of the report stating Bellman had no empathy for others, was selfish, narcissistic, and felt no guilt.

The PCRA court determined the information contained in the reports would have been devastating to Bellman’s credibility at trial. It highlighted the fact that Bellman was the Commonwealth’s key witness, the defendant maintained his innocence, and the rest of the evidence against the defendant was circumstantial.

The court relied heavily on the Third Circuit’s decision in Dennis v. Secretary, Pennsylvania Department of Corrections, which held that Brady material does not have to be evidence that would have resulted in an acquittal, but rather must only be evidence that would undermine confidence in the jury verdict.

The PCRA court further rejected the Commonwealth’s position claiming that counsel for the defendant could have obtained Bellman’s mental health information from sources other than the Commonwealth. The court found that Dennis held that a defendant is entitled to presume that prosecutors will disclose information they are required to disclose. The court ultimately found that Hamill knew about the reports and was obligated to turn them over to the defendant prior to trial. The court therefore granted the defendant a new trial. The Commonwealth appealed.

The Supreme Court’s Opinion

The Supreme Court affirmed. First, the Court addressed the mental health reports. It recognized that in Brady, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. The Supreme Court subsequently held that the duty to disclose such evidence is applicable even if there has been no request by the accused, and that the duty may encompass impeachment evidence as well as directly exculpatory evidence. Furthermore, the prosecution’s Brady obligation extends to exculpatory evidence in the files of police agencies of the same government bringing the prosecution.

A Brady violation occurs when:

1. The evidence is favorable to the accused, either because it is exculpatory or because it could be used for impeachment purposes;

2. the evidence was suppressed by the prosecution either willfully or inadvertently; and

3. prejudice ensued, meaning the disclosure of the evidence could have resulted in a different outcome.

First, the Court addressed the Commonwealth’s argument that the defendant waived any claim of a Brady violation by not raising the claim sooner. The Supreme Court agreed with the PCRA court, finding the defendant raised the Brady violation as soon as possible as the defendant did not have the psychiatric reports until they were disclosed in November of 2021. The defendant filed a PCRA petition within one year as required.

The Court continued its analysis by accepting the factual determination that the Commonwealth had the reports in its possession in 1980 and they were located in the case file, yet the Commonwealth failed to disclose them to defendant’s counsel.

The Commonwealth also argued that it did not have to disclose the reports because the reports were not material. The Commonwealth argued there was no reasonable probability that had the reports been disclosed, the result of the defendant’s trial would have been different. The Commonwealth claimed the reports would never have made it to the jury, and even if they had, they did not establish that the defendant did not participate in the murder.

The Commonwealth further argued the reports could not have been used to impeach Bellman’s credibility because only mental health disabilities that impair a witness’s ability to observe, recall, or report events are admissible to impeach credibility.

The defendant responded: “Bellman’s status as a sociopath, including his compulsion to blame others for his actions, his attempts to deceive evaluators, and his inability to feel guilt, made his testimony against defendant unreliable as it impacted his ‘ability to perceive events and to truthfully relate the facts to which he testified at trial.” The defendant further asserted the reports show Bellman to be a sophisticated actor capable of committing the crime on his own and that the reports would have been extremely damaging to Bellman’s testimony.

The Pennsylvania Supreme Court agreed with the defendant’s analysis, determining the reports could have been used to impeach Bellman due to his status as a sociopath. The Court explained his compulsion to blame others for his actions, attempts to deceive the evaluators, and his inability to feel guilt made his testimony unreliable. Ultimately the Court determined the reports qualified as impeachment evidence that was favorable to the defendant. They were therefore Brady material that the Commonwealth was required to turn over so defense counsel could present Bellman’s mental health issues to the jury and the jury could evaluate whether those issues impacted his credibility.

Finally, the Court addressed the prejudice component of the Brady violation. The Court agreed with the PCRA court’s determination that Bellman was the Commonwealth’s key witness. It noted that without Bellman’s testimony, the evidence against the defendant was purely circumstantial. Bellman’s testimony directly connected the defendant to the murder and even alleged that it was the defendant’s idea to murder the victim. The Court further pointed out that Bellman’s credibility was crucial to the case because the defendant testified in his own defense, directly contradicting Bellman. The reports regarding Bellman’s mental health status would have called his credibility into question. The Court determined that if those reports were properly disclosed, there is a reasonable probability the result of the trial would have been different.

The Takeaway

This case does not really change the law in Pennsylvania, but it shows that the courts often take Brady violations seriously. The prosecution has a duty to produce exculpatory evidence. If it does not, then the defendant may obtain a new trial, sometimes even decades later. The Philadelphia District Attorney’s Office currently has an open file policy for old homicide cases and will allow a defense attorney to review the prosecutor’s file as well as the detectives’ homicide file. In many cases, there may be exculpatory evidence which was never disclosed to the defense. If the evidence is compelling enough, it may be the basis for filing a new PCRA and getting back into court. This case is an example of that type of evidence.

Facing criminal charges or appealing a criminal case? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 11/21/23 Zak Goldstein 11/21/23

PA Superior Court: Trial Court Cannot Make Probation Worse Without Violation or Threat to Public Safety

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Dell, vacating the new conditions of probation imposed on the defendant by the trial court and remanding for further proceedings. In Dell, the trial court made the defendant’s probation worse by adding more restrictive conditions despite the fact that the defendant had neither violated the probation nor done anything to show that he presented a threat to public safety.

The Facts of Dell

Dell was convicted of the sexual abuse of children (usually a child pornography related offense). He received a sentence of 5 - 10 years’ incarceration followed by state supervised probation. The trial court did not attach specific conditions to his probation. Once the probation began, the Parole Board therefore petitioned the trial court to add its standard conditions of probation, allow them to modify conditions going forward, and allow for the use of GPS monitoring when appropriate. The parole board did not allege any violation of the probation or that Dell posed a risk to public safety. The trial court granted the request anyway. The defendant appealed.

The Superior Court Appeal

On appeal, the defendant argued that court erred by entering an order modifying his probation to make it worse by including the three requested conditions without finding he violated a specific condition of his probation or presented a threat to public safety pursuant to 42 Pa.C.S. § 9771. The Superior Court agreed and vacated the order adding the new conditions.

After the thirty-day modification period provided by 42 Pa. C.S.A. § 5505 has passed, as there is no dispute it did here, a trial court may only modify a probationer’s terms of probation pursuant to Section 9771, which provides in relevant part:

(a) General Rule.-- The court has inherent power to at any time terminate continued supervision, lessen the conditions upon which an order of probation has been imposed or increase the conditions under which an order of probation has been imposed upon a finding that a person presents an identifiable threat to public safety.
(b) Revocation.-- The court may increase the conditions … of probation upon proof of the violation of specified conditions of the probation.

Thus, the judge may only make the probation worse within thirty days following sentencing as a Court may always reconsider during that period or if the defendant violates probation or poses a risk to public safety. The parole board did not allege that the defendant had done anything to violate his probation or that he posed some sort of new risk to public safety, so the Superior Court ruled that the trial court erred in making the probation more onerous. Accordingly, the court vacated the order adding new conditions.

The Takeaway

This is an important case - the statute clearly provides that trial judge’s cannot arbitrarily make the conditions of probation more difficult to meet, and here, the Superior Court enforced that rule. These types of issues come up a lot with probation because judges generally have so much discretion in how to handle probationers. But at the same time, probation is governed by a number of statutes, and errors made by probation or the trial court in adding conditions, selecting conditions, or proceeding on potential violations can provide a complete defense to an alleged violation of probation or the imposition of a probationary sentence at all. It is important to look carefully at the sentencing order when charged with a violation of probation and to object to any attempt by law enforcement to modify probation illegally to make it worse.

Facing criminal charges or appealing a criminal case? We can help.

Philadelphia Criminal Lawyer Zak T. Goldstein, Esquire

Zak Goldstein 11/17/23 Zak Goldstein 11/17/23

PA Superior Court: Commonwealth Must Provide Bill of Particulars and Give Alleged Mechanism of Death in Homicide Case

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. McKnight, holding that the trial court did not abuse its discretion in granting the defendant’s motion for a bill of particulars identifying the mechanism by which the Commonwealth alleged the defendant killed the decedent in a homicide/poisoning case. This is an interesting case because requests for bills of particulars are fairly rare in modern litigation, and here, the trial court ordered the Commonwealth to essentially specify its theory of criminal liability for the defendant in advance of trial.

The Facts of McKnight

The Commonwealth filed a Bill of Information charging the defendant with first-degree murder and attempted murder. The Commonwealth alleged that the defendant caused the death of a three-month-old infant by poisoning the infant with fentanyl. The Commonwealth also alleged that the defendant attempted to murder a 16-month-old toddler with fentanyl. The Commonwealth also filed notice of its intent to seek the death penalty. The defense responded with a motion for a bill of particulars asking the Commonwealth to identify how the drugs in question were allegedly administered to the children. The defense argued that without knowing what the Commonwealth actually alleged the defendant did, they would be unable to effectively prepare for trial and to defend against the specific allegations.

The Commonwealth filed a response in which it refused to provide a bill of particulars. The Commonwealth argued that the request was an improper attempt to obtain the Commonwealth’s evidence and theory of the case in advance. The defense filed a motion asking the trial court to direct the Commonwealth to respond. The trial court granted the defense motion and ordered the Commonwealth to respond. It also ruled that should the Commonwealth fail to respond, the trial court could preclude the Commonwealth from seeking the death penalty at trial.

The Commonwealth filed a notice of appeal and certified that the order terminated or substantially handicapped its prosecution of the defendant pursuant to Rule 311(d) of the Pennsylvania Rules of Appellate Procedure. The Commonwealth argued on appeal that it should not have to provide the requested information to the defense in advance.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior court affirmed the trial court’s order. First, the Superior Court ruled that the appeal was properly filed even though it was an interlocutory appeal. In general, appeals may not be filed until a case is over. The Commonwealth, however, may file an interlocutory or pre-trial appeal where a trial court’s order would terminate or substantially handicap the prosecution. The Commonwealth must certify in good faith that the order would have that effect. Here, it was a little bit of a stretch that the order would really hurt the Commonwealth’s case, but the Superior Court allowed the appeal. It concluded that the trial court would potentially bar the Commonwealth from seeking the death penalty, and that remedy would have a substantial effect on the prosecution of the case.

Although the Superior Court allowed the appeal, it did rule that the trial court properly ordered the Commonwealth to respond. The Superior Court agreed with the trial court that the defendant’s request was an attempt to clarify the pleadings and prepare an adequate defense. It was therefore not an improper request, and the trial court did not abuse its discretion in ordering the Commonwealth to provide more information. The Court explained that the defense could differ significantly if the Commonwealth alleged a specific method of poisoning the children versus contending that she poisoned the children in a manner that could not be definitively determined. The Court also noted that the trial court had broad discretion to rule on a motion for a bill of particulars. The Court also ruled that the Commonwealth waived its challenge to the potential sanction of being barred from seeking the death penalty for failing to raise this claim in the trial court. Therefore, the Court accepted the appeal on the merits, but it affirmed the trial court’s ruling and directed the Commonwealth to provide more information as to how it believed that the defendant committed the homicide and attempted murder.

The Takeaway

The decision in Commonwealth v. McKnight shows the importance of pre-trial litigation and filing strategic pre-trial motions. The Commonwealth will now have to disclose how it believes the defendant committed the crimes charged, and it will not necessary be able to obtain a conviction if it ends up proving at trial that the crimes were committed in some other way. The defense will gain valuable information that will help it prepare for trial, and the defense is much less likely to be ambushed with some novel theory at the last minute. The prosecution often gets away with a lot of last minute changes and disclosures, and here, the ruling on this motion prevents them from doing that. It is critical in every case to think about how the filing of pre-trial motions may benefit the defendant at trial or help to even avoid a trial.

Facing criminal charges or appealing a criminal conviction?

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

Zak Goldstein 9/24/23 Zak Goldstein 9/24/23

How to Get Your Bail Reduced in Philadelphia, PA

Award-Winning Philadelphia Criminal Defense Lawyers for Bail Motions and Bail Reductions

The Philadelphia criminal defense lawyers of Goldstein Mehta LLC have successfully defended thousands of clients at trial and on appeal. In many cases, the first thing we are able to do for a client is file a bail reduction motion in order to get the client out of jail. Once the client's bail is reduced and the client gets out of jail, the client is in a much better position to fight the case. We offer a free 15 minute criminal defense strategy session to any potential client. Call 267-225-2545 to speak with one of our defense attorneys about a bail motion today.

What is Bail?

If you have been arrested or are facing criminal charges, one of the first issues that you will face is the setting of bail. Bail is the amount of money that you are required to pay in order to be released prior to trial. If you cannot pay that amount, you will be held in custody until the case is resolved, so fighting for a low bond amount can be one of the most important issues in a criminal case. Unlike New Jersey and the Federal system, Pennsylvania requires defendants to pay cash in exchange for release. This means that most defendants must pay money in order to be released from custody pending trial.

Bail is extremely important for a number of reasons. A defendant who makes bail will be released pending trial and have a number of significant benefits. For example, the defendant will be able to be a much more active participant in defending the case as the defendant will be able to review the discovery, help locate evidence and witnesses, and prepare for trial. Further, a defendant who is not in custody will be able to continue working and living a normal life while waiting for the case to be resolved.

Demetra Mehta, Esq. - Philadelphia Criminal Defense Lawyer

On the other hand, a defendant who cannot afford the required amount could spend months or even years in the county prison awaiting trial. The defendant could lose his or her job, home, and contact with friends and family. It will also be much more difficult for the defendant to review all of the discovery, particularly if the discovery is lengthy or the Commonwealth has video evidence. Additionally, the fact that the defendant is in custody makes it much harder to reject a plea deal that would get the defendant out of jail even if the defendant is innocent. In many cases, completely innocent people plead guilty to crimes they did not commit because they simply cannot afford to wait any longer for a trial while they are in jail.

If you have been arrested and are facing criminal charges, it is extremely important that you retain a criminal defense lawyer who will aggressively challenge any efforts by the prosecution to have bail set at a level that you cannot afford. It is also important to retain a lawyer who will continue to fight for bail reductions at each court date in the event that you are unable to pay the initial amount.

When is bail first set?

The amount that the defendant must pay is initially set at the preliminary arraignment. The preliminary arraignment is the first step in every criminal case in Pennsylvania. In Philadelphia, preliminary arraignment occurs after a defendant has been arrested. The defendant will typically be held at the police station and processed for 10-20 hours, and the defendant will then be brought before a commissioner for a video hearing. If the defendant has already retained counsel, then the defense lawyer may be present in person or by phone for the preliminary arraignment. If the defendant has not retained counsel, then the defendant will be represented by a paralegal or legal intern from the public defender’s office. The Commonwealth is represented at preliminary arraignment by a paralegal, as well. Both sides may make recommendations and arguments as to what the bond should be, and the commissioner will then determine how much the defendant must pay to get out of jail.

If the defendant can post 10% of that amount, then the defendant will be released. If not, the defendant will be held in custody pending the next court date or until the defendant can pay. With the exception of of the Special Victims Unit, the Philadelphia Police almost always initiate cases by making arrests; they rarely notify a defendant of charges and give the defendant a chance to turn themselves in. If you did retain an attorney who contacted the police while an investigation was still underway, then the police may give your attorney the courtesy of notifying them of the warrant and allowing you to turn yourself in. In the suburban counties, however, a detective may initiate a case with a phone call informing the defendant of an arrest warrant or a summons. The defendant may then retain a criminal defense lawyer, go to the police station, spend a couple of hours getting processed, and then appear before the local Magisterial District Justice for the preliminary arraignment.

Is arraignment court open on the weekend and holidays?

The preliminary arraignment can take place at any time. Arraignment court is open 24 hours a day and 365 days per year. This includes weekends and holidays, so even if someone is arrested on a Friday night, they will not necessarily be held until Monday before they see a judge and have bail set. Instead, they would likely see a magistrate sometime within 24 hours of the arrest. The court typically hears a list of cases and sets bail for those who have been arrested every three or four hours. It is possible for supporters to be there in person for the proceedings, but the hearings often occur without much notice, and family members do not always know a defendant has been arrested before the hearing takes place. Retaining a criminal defense attorney as soon as your loved one is arrested or before they turn themselves in may allow you to get some advance notice as to when the hearing will take place.

How is the initial bail determined?

The initial bail is determined by the commissioner or magistrate after hearing argument from defense counsel and the prosecution. The magistrate will typically consider a number of factors, including:

The seriousness of the charges,
The bail guidelines (although they have not been updated in years and are often disregarded)
The strength of the evidence,
The defendant’s criminal record or lack thereof,
The defendant’s employment status,
Whether the defendant voluntarily turned themselves in or was arrested,
The defendant’s ties to the community and whether the Court was able to verify the defendant’s address, and
Whether the defendant has retained counsel.

In general, felonies, crimes involving weapons such as firearms, and violent crimes like Robbery and Aggravated Assault are far more likely to result in higher bail. Misdemeanors and less serious, non-violent felonies may result in low bails or even ROR or SOB. Gun charges, in particular, result in particularly high amounts in Philadelphia. For example, even defendants with strong ties to the community, jobs, and no prior record often face the prospect of bail being set at $50,000 or more for a weapons offense. Fortunately, an experienced criminal defense attorney will often be able to have it reduced below that amount.

ROR stands for Released on Recognizance, which means the defendant does not have to pay anything to be released.

SOB means Sign On Bond, which means that the defendant could owe money if the defendant fails to appear for court, but the defendant does not have to pay anything to be released. For example, if bail is set at $50,000 Sign On Bond, the defendant would be required to sign an agreement to pay $50,000 if the defendant flees and does not appear for court, but the defendant would not be required to pay anything. If the defendant cannot afford the amount set by the magistrate, then the issue may be appealed to a higher ranking judge or a motion may be made at a subsequent court date.

How can I get my bail reduced?

Zak T. Goldstein, Esq. - Philadelphia Criminal Defense Attorney

If the defendant cannot pay the initial amount, then bail can be addressed at almost every court hearing. In Philadelphia, the first listing of the preliminary hearing will typically take place within two or three weeks of preliminary arraignment. Motions for bail reductions may be made orally at every listing of the preliminary hearing. This means that if the case is continued or even if the defendant is held for court at the preliminary hearing, then the defense may make a motion and ask the Municipal Court judge, who ranks higher than the commissioner, to reduce bond to something the defendant can afford.

If the Municipal Court judge denies the motion, then the defense attorney may make the motion again at the next listing assuming that there has been some change in circumstances. The passage of time will often be considered a change in circumstances. This is particularly true if the prosecution is not ready to proceed.

While a case is in the Municipal Court for the preliminary hearing or if a Municipal Court judge denies a motion, the defense may file a written Motion for a Bail Reduction in the Court of Common Pleas. Once a written motion has been filed, the Court of Common Pleas will typically hold a hearing on the motion within five business days. The Common Pleas Motions Judge has the power to overrule the Municipal Court Judge or commissioner and reduce the amount required for bond.

The bail motion will often sound much the same as the arguments made at preliminary arraignment. However, because the defendant will have advance notice of the bail hearing, it is usually possible to be more prepared for it and have friends and family present so that the judge can see that the defendant has ties to the community. The presence of friends and family can be very helpful in terms of getting a defendant's bail reduced. The defense will also have time to obtain helpful documentation such as proof of employment, education, and community ties.

What is early bail review in Philadelphia?

Recently, the Philadelphia courts began providing a hearing called early bail review in between the preliminary arraignment and the preliminary hearing. Currently, early bail review hearings will take place within about a week of arrest for defendants who are unable to post bail but who do not have any probation detainers and for whom bail was set at $250,000 or less. That means if someone is arrested, has no probation or parole detainer, and cannot post a bail of $100,000 (10%), they would typically see a Municipal Court judge within about a week for a bail hearing. The public defender or private defense attorney would then be able to advocate for reduced bail, and the judges are often receptive to these arguments as the purpose of these hearings is to try to reduce the prison population. The benefit of this hearing is that it takes place earlier than the preliminary hearing. There is a downside, however, which is that the denial of a bail reduction at the early bail review may be something the preliminary hearing judge considers in reviewing a subsequent bail motion. In other words, if the early bail review judge denies a bail motion, the preliminary hearing judge may be less willing to overrule their colleague and reduce bail even if the Commonwealth is not ready at the preliminary hearing. Therefore, it is very important to be prepared to make the best possible argument at an early bail review hearing.

Are there crimes for which there is no bail?

The Pennsylvania Constitution provides that all defendants are entitled to bail with the exception of defendants who are charged with homicide. Because homicide may be a capital offense or carry a mandatory life sentence, defendants who are charged with homicide are not entitled to bail.

Additionally, a court may deny bail or later revoke it if the prosecution can prove that “no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great.” If bail is revoked or denied, then the defendant cannot be released until the case has been resolved or a judge reconsiders the ruling no matter how much the defendant can afford to pay. However, in some instances, it may be possible to ask a judge to reconsider a decision to revoke or deny bond.

How much of the bail do I have to pay?

In most cases, the defendant is required to pay 10% of the bail amount. For example, if the defendant’s bail is set at $50,000, then the defendant would usually be required to pay $5,000. If the bail is set at $50,000 SOB, then the defendant would not have to pay anything. If the defendant has some money but cannot quite come up with 10%, then it may be possible to hire a bail bondsman. The bondsman will usually charge something less than 10% up front to post bond, but the bondsman will keep a larger percentage in the long run. The bondsman could also require more than 10% but allow for monthly payments in order to make it more affordable. In Philadelphia, the court will return almost all of the money 35 days after the case is resolved.

What is a 600(B) motion or a Speedy Trial motion? How long can a defendant be held before trial if the defendant cannot afford bail?

If the Municipal Court and Common Pleas judges all deny the regular bail motions, there is one more motion which can be filed after the defendant has been held for 180 days of time which is not due to defense continuance requests. If the defendant has been held for 180 days, then the defense may file a motion under Pennsylvania Rule of Criminal Procedure 600(B). Rule 600(B) provides:

(B) PRETRIAL INCARCERATION

Except in cases in which the defendant is not entitled to release on bail as provided by law, no defendant shall be held in pretrial incarceration in excess of

(1) 180 days from the date on which the complaint is filed; or

(2) 180 days from the date on which the order is filed transferring a court case from the juvenile court to the trial or criminal division; or

(3) 180 days from the date on which the order is filed terminating a defendant’s participation in the ARD program pursuant to Rule 318; or

(4) 120 days from the date on which the order of the trial court is filed granting a new trial when no appeal has been perfected; or

(5) 120 days from the date of the written notice from the appellate court to the parties that the record was remanded.

This means that the Court is required to set nominal bail and release the defendant if the defendant is unable to make bail after 180 days. The Court may attach various conditions such as house arrest with electronic monitoring and reporting to a Pre-Trial Court Officer, but the Court is supposed to let the defendant out of jail pending trial after six months.

In cases where the Court grants the 600(B) motion, it is very common for the prosecution to then move to revoke bail and argue that the defendant is such a danger to the community or such a flight risk that bail should be revoked. In that case, the judge will have to decide based on the nature of the allegations and the defendant’s background whether the defendant should be released on nominal bail or whether the defendant’s bail should be revoked. Unless the allegations are particularly horrific or the defendant has an extremely lengthy criminal record, most judges will grant the 600(B) motion and release the defendant on house arrest. In the recent case of Commonwealth v. Talley, the Pennsylvania Supreme Court instructed trial judges to take this rule very seriously and held that the Commonwealth must meet a heavy burden and introduce real evidence at a hearing on a motion to revoke bail in order to properly have a defendant’s bail revoked. Therefore, it is extremely important to file the 600(B) motion at the earliest possible date as every day after that date is time which the defendant may not have to spend in custody.

Can I appeal a bail ruling?

Yes, a judge’s ruling on a motion to reduce bail can be appealed. First, the bail magistrate’s ruling from the preliminary arraignment can be appealed to the on-call emergency Municipal Court judge. Even if preliminary arraignment takes place in the middle of the night, the defense attorney (or the prosecutor if the Commonwealth thinks the bail is too low) may ask for a bail appeal and have the bail ruling reviewed by a Municipal Court judge on an emergency basis. The court would set up a conference call between the parties for both sides to make argument on what the bail should be.

Second, the ruling of a Municipal Court judge can be appealed to a Common Pleas judge by filing a bail motion. It then typically takes about a week or two to get a hearing before a Common Pleas judge.

Finally, if the defendant is still unhappy with a bail ruling after it has been reviewed by a Common Pleas judge, it is possible to file a petition for specialized review with the Pennsylvania Superior Court. The Superior Court would then review the trial court’s decision on a bail motion or a Commonwealth motion to revoke bail. Accordingly, it is usually possible to have a bail decision reviewed by a higher court, particularly where a defendant has been held without bail or at an extremely high bail.

We Can Help With Bail Motions in Philadelphia and the Surrounding Counties

Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges, we can help. We recognize the importance of being home with your friends and family while you are fighting a case, and we will aggressively fight to have the lowest possible bail set. If necessary, we will fight for bond reductions at every opportunity. We have won countless motions to reduce bail as well as numerous Speedy Trial/Rule 600(B) motions for nominal bail. Call 267-225-2545 today for a free criminal defense strategy session with one of our award-winning Philadelphia criminal defense lawyers.