Philadelphia Criminal Defense Blog
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.
Criminal Defense Attorneys
Although a defendant who has been charged by way of grand jury in Philadelphia is at a disadvantage due to the lack of a preliminary hearing, there are still often ways to challenge the case through pre-trial motions. Additionally, the defendant is still entitled to a trial before a judge or jury at which the Commonwealth must prove the charges beyond a reasonable doubt. If you are facing criminal charges or under investigation, we can help. Our experienced and understanding Philadelphia criminal defense lawyers offer a free 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an award-winning defense attorney today.
PA Supreme Court Permits Filing of Second PCRA Where Attorney Filed First Petition Too Late
Philadelphia PCRA Lawyer Zak Goldstein
The Pennsylvania Supreme Court has decided the case of Commonwealth v. Peterson. In Peterson, the Court held that where a Post-Conviction Relief Act (PCRA) Petitioner’s lawyer files the petition late, thereby resulting in the dismissal of the petition for failure to comply with the Act’s procedural requirements, the Petitioner may file a second PCRA Petition even outside of the one-year deadline for filing a PCRA. This is a great decision by the Court. It recognizes that a criminal defendant should not lose the ability to file a PCRA solely because a defense attorney, without telling the defendant, provided the ineffective assistance of counsel in failing to file a PCRA Petition on time.
The Facts of Peterson
In Peterson, the defendant pleaded guilty to two counts of first-degree murder in 1993 and received two consecutive life sentences. In 1995, the General Assembly enacted major amendments to Pennsylvania’s Post-Conviction Relief Act, including an amendment which required that all petitions be filed within one year of the date the judgment of sentence becomes final. The amendments included three exceptions to the one-year deadline. The relevant exception in this case provides: “the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence.”
These amendments gave Peterson the right to file a PCRA by January 16, 1997. Peterson’s family retained a private attorney to file a PCRA. The attorney drafted the PCRA but filed it one day late on January 17, 1997. The petition alleged that Peterson was not competent to plead guilty and therefore his plea was not a knowing, intentional, and voluntary waiver of his constitutional rights because Peterson had suffered a gunshot wound to his head that damaged the frontal lobes of his brain.
The trial court scheduled an evidentiary hearing and gave defense counsel time to obtain an expert to provide an opinion on Peterson’s mental competency at the time of the guilty plea. The court scheduled a hearing on November 5, 1997. The hearing apparently never took place on that date, and the docket does not indicate the reason why did it did not take place. Nothing happened for nearly fifteen years.
In September 2012, Peterson wrote a letter to the clerk of courts asking about the status of his case. The PCRA court then rescheduled the evidentiary hearing. At the hearing, a doctor testified that Peterson suffered brain damage prior to his plea and that he would not have had the ability to comprehend his position as one accused of murder. The doctor further opined that Peterson would not have been able to cooperate with his criminal defense lawyer and participate in his own defense.
Although not relevant to the disposition of the appeal, It is important to note that PCRA litigation often requires the defense to present actual evidence or expert testimony. It is not enough merely to allege in a Petition that a defense attorney should have retained the services of an expert witness. Instead, the defense attorney generally must retain, identify, and usually provide a report for the expert witness prior to filing the PCRA Petition or the defendant will not be entitled to an evidentiary hearing.
The Commonwealth did not hire its own expert. Instead, it called Peterson’s trial attorney and probation officer to testify. They both testified that they interviewed Peterson prior to the plea and he understood what was going on. The PCRA Court found the trial attorney and probation officer more credible and denied the Petition.
The Superior Court Appeal
Peterson appealed the denial of the PCRA Petition to the Superior Court. The Superior Court, acting sua sponte (meaning on its own), recognized that the first PCRA Petition had been filed one day beyond the relevant deadline. Therefore, the Superior Court quashed the appeal without reaching the merits of whether the PCRA Court properly denied the petition.
Peterson then filed a second PCRA Petition, asking the trial court to reinstate his appellate rights nunc pro tunc due to the ineffective assistance of counsel provided by the attorney who filed the first petition late. The trial court granted that second petition. It ruled that Peterson did not know of the deadline, did not know that his attorney had missed the deadline, and that Peterson could not have known these facts until he received the Superior Court’s opinion dismissing the direct appeal. Therefore, the trial court reinstated his appellate rights under the previously-mentioned exception to the one-year deadline.
With his appellate rights reinstated, Peterson again appealed the denial of the petition to the Superior Court. The Commonwealth also appealed, arguing that the trial court should not have reinstated Peterson’s right to appeal. The Superior Court agreed with the Commonwealth and again dismissed the appeal. The Court found that Peterson’s lawyer had not abandoned him but had simply filed a petition late. The Court held that while the PCRA timeliness requirements sometimes require harsh outcomes, the PCRA confers no authority to fashion ad hoc equitable exceptions to the PCRA time-bar.
The Petition for Allowance of Appeal
Peterson filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court. The Pennsylvania Supreme Court agreed to hear the appeal and ultimately reversed the decision of the Superior Court.
The Pennsylvania Supreme Court recognized that the complete abandonment of a petitioner by counsel has previously qualified petitioners for the after-discovered evidence time bar. At the same time, the failure of a PCRA lawyer to raise the best possible claims has traditionally not provided petitioners with a basis for filling subsequent petitions beyond the one-year deadline. Thus, the Court recognized that there is a difference between a complete deprivation of a petitioner’s rights, in which the petitioner cannot have any issues addressed at all, and an allegation that a PCRA lawyer should have raised certain claims instead of others.
The Court found that this case resulted in a complete deprivation of rights due to the obvious ineffective assistance of counsel in filing the petition late. Therefore, the Court found that Peterson qualified for the after-discovered evidence exception. Peterson was completely deprived of any consideration of his PCRA Petition. His lawyer’s ineffectiveness was a newly discovered fact, and Peterson did not know of this fact and could not have known of this fact through the exercise of due diligence. He filed his second PCRA Petition within sixty days after he learned that the petition had been filed late. Therefore, the Superior Court erred in dismissing the appeal, and Peterson will be entitled to have the appeal heard on the merits.
Facing criminal charges? We can help.
Philadelphia Criminal Defense Attorneys
If you are facing criminal charges, have been arrested, or are considering an appeal, we can help. Our experienced and understanding criminal defense attorneys have successfully defended thousands of clients. We have won cases involving serious charges like Homicide, Robbery, Rape, as well as appeals and PCRA Petitions. Our award-winning Philadelphia criminal defense lawyers offer a free 15-minute criminal defense strategy session. Call 267-225-2545 to speak with a defense attorney today.
Criminal Defense Attorney Demetra Mehta Quoted on Cosby Case by Associated Press
The Associated Press recently posted an article on the upcoming sentencing in the case of Commonwealth v. William Cosby. Philadelphia Criminal Defense Lawyer Demetra Mehta was quoted in the article for an analysis of Pennsylvania’s contested Sexually Violent Predator law and the impact of that law on the sentencing proceedings.
“Defense lawyers say the state’s latest sex-reporting law, despite several revisions, remains unconstitutional.
“It’s the modern-day version of a scarlet letter,” said lawyer Demetra Mehta, a former Philadelphia public defender, “which I think is sort of an interesting philosophical issue at this time with the #MeToo movement, but also criminal justice reform.”
. . . .
“This is going to probably be a very important case for sex-offender law when it’s up on appeal,” Mehta said. “It’s an area of law that is just sort of unsettled right now. . There’s a lot up on appeal, but there’s not a lot decided.””
Criminal Defense Lawyer Demetra Mehta
Click here to read the article.
PA Supreme Court: Once Emergency Ends, Police Must Leave Private Residence or Get a Warrant
Criminal Defense Lawyer Zak Goldstein
The Pennsylvania Supreme Court has decided the case of Commonwealth v. Wilmer, holding that if the police enter a residence to respond to an emergency, once the emergency ends, the police are no longer permitted to remain in one’s house absent a warrant or the existence of some other exception to the Fourth Amendment’s warrant requirement.
Commonwealth v. Wilmer
On October 27, 2013, while on foot patrol in Shippensburg, Pennsylvania, Pennsylvania State Troopers observed a number of people on the roof of a sorority house. One of these people appeared to be visibly intoxicated and unsteadily stumbling around on the roof. The troopers feared that this individual would fall off of the roof and injure himself, and so they approached the sorority and requested permission to enter. However, their request was denied. One of the troopers then attempted to kick the door open, but the kick failed. The people inside laughed at the trooper’s inability to kick the door open.
The same trooper then kicked through a window that was next to the door and then reached in and unlocked the door. While inside, the troopers called EMS and campus police to the scene. Unfortunately, the troopers’ efforts were for naught, and the individual they were attempting to save fell off of the roof. The troopers then began to leave the house. As the troopers exited the house, one of the troopers saw a bag of marijuana and a marijuana grinder on a coffee table, which he seized and took to his patrol vehicle. No one present at the sorority house claimed ownership of either the marijuana or the grinder.
This same trooper then re-entered the sorority house without a warrant. He claimed that his purpose for re-entering the house was to get information about the broken window and an air conditioning unit that was damaged by the troopers during this incident. The trooper knocked on a closed bedroom door. The trooper then spoke to the occupants of the room, which contained the defendant. The defendant raised her hand when the trooper asked if any of the occupants of the room lived in the house. The trooper then observed a glass marijuana bong and a pipe sitting in plain view next to her. The defendant admitted that the items belonged to her, and she was subsequently charged with one count of possession of drug paraphernalia.
The Motion to Suppress
The defendant filed a motion to suppress the evidence, challenging the legality of the troopers’ initial entry and their subsequent re-entry into the home after the man fell off fo the roof. The trial court denied the motion to suppress. The judge ruled that there were exigent circumstances that justified the entry, i.e. the intoxicated individual standing on the roof, and that the trooper’s re-entry “was justified by the exigent circumstances that gave rise to the original entry.” The defendant was found guilty and ordered to pay court costs and a $50 fine.
The defendant appealed to the Pennsylvania Superior Court. The Superior Court held that the initial entry was lawful given that the troopers were attempting to aid someone in danger. In regards to the one trooper’s re-entry, the Superior Court held that “when police are properly authorized to enter a dwelling under the exigent circumstances doctrine, they are also authorized to return to complete the necessary paperwork required by the emergency situation that allowed them to enter the building in the first place.” The defendant then filed a Petition for Writ of Certiorari to the Pennsylvania Supreme Court, and the Court accepted the case.
What is the Community Caretaking Exception to the Fourth Amendment?
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ”
Under the Fourth Amendment, searches and seizures without a warrant are presumptively unreasonable subject only to specified exceptions. Over the years, the Supreme Court has created a number of specific exceptions that allow the police to search and seize one’s property without a warrant. One of these exceptions is the community caretaking exception. There are three exceptions that embody the “community caretaking exception.” These include: the public servant exception, the automotive impound/inventory exception, and the emergency aid exception. The emergency aid exception was the exception at issue in this case.
The emergency aid exception allows the police to enter one’s property or conduct some warrantless search to assist a person that the officer reasonably believes is in jeopardy. It is important to remember that just because an officer’s initial intrusion may be justified under the emergency aid exception, or for that matter any exception, it does not follow that the police are given unlimited and unfettered access to the property.
In Mincey v. Arizona, the United States Supreme Court held that numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. However, the Court noted, that the “warrantless search must be strictly circumscribed by the exigencies which justify its initiation.” Other legal scholars have addressed this issue. Professor Wayne LaFave addressed this issue in his treatise on search and seizure law. He wrote that a police officer may do no more than is reasonably necessary to ascertain whether someone is in need of assistance to provide that assistance. Further, he wrote, that once it is determined that the suspicion which led to the entry is without substance, the officers must depart rather than explore the premises further.
The Pennsylvania Supreme Court’s Decision
The Pennsylvania Supreme Court held that the troopers’ re-entry was not justified under the emergency aid exception. The Court opined that the troopers’ initial entry into the residence was permissible to assist the visibly intoxicated young man stumbling around on the roof. However, once he fell, the troopers’ authority for a warrantless entry in the house ceased, and thus the troopers were required to leave the premises immediately. Further, the Court expressly rejected the Superior Court’s reasoning that the troopers’ re-entry into the home to obtain information to complete police paperwork was part of “one continuous episode” which permitted the re-entry without a warrant. Consequently, because the trooper did not observe the glass marijuana bong and the pipe in the house from a lawful vantage point, the suppression court erred in denying the defendant’s motion. The Court vacated the defendant’s sentence, and she will receive a new trial.
Facing Criminal Charges? We Can Help.
Criminal Defense Attorneys Demetra Mehta and Zak Goldstein
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, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.