Philadelphia Criminal Defense Blog
PA Superior Court: Police Do Not Need a Search Warrant to Get Parolee’s GPS Monitoring Data
Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire
The Pennsylvania Superior Court has decided the case of Commonwealth v. Rosendary, holding that the police do not need a search warrant to get a parolee’s GPS monitoring data from parole agents so long as the parolee was already on GPS monitoring for reasons unrelated to the investigation of the new crime. In this case, the defendant’s GPS monitor put him at the scene of the crime, but the police had obtained that data without getting a search warrant for it. The Superior Court, however, rejected Rosendary’s arguments that the evidence should be suppressed, finding that police do not need a search warrant to get this type of data from parole agents and that the police did not use the parole agents as “stalking horses” for the police investigation.
The Facts of Rosendary
The defendant was on parole for a robbery conviction. As part of his parole, he was eventually placed on GPS monitoring. He signed a consent form agreeing to the monitoring. He did not have much of a choice, though, as the alternative to GPS monitoring would have been incarceration. The police subsequently arrested him and charged him with another robbery. At his trial, the Commonwealth introduced evidence from his parole GPS ankle monitor which incriminated him by putting him at the crime scene.
Prior to trial, the defendant moved to suppress the GPS data. He argued that the police should have obtained a search warrant in order to get the GPS information from his parole agent and that alternatively, the parole agent had worked as a “stalking horse” for the police in order to evade the warrant requirement. The trial court denied the motion to suppress, and the defendant appealed.
The Superior Court’s Ruling
The Pennsylvania Superior Court denied the appeal. First, it rejected the defendant’s argument that the police violated the Fourth Amendment’s warrant requirement by getting the GPS data without a search warrant. Although the police ordinarily need a search warrant in order to get GPS location data for a suspect, the Court held that they did not need to get a search warrant in this case. Specifically, the defendant had a diminished expectation of privacy in his GPS data because he was on parole, he had agreed to wear the monitor in lieu of incarceration, and he knew that the data would be shared with his parole agent. Thus, he had no reasonable expectation that the data would be kept private, and he had agreed to wear the ankle monitor. Therefore, law enforcement did not need a search warrant to get the data. Further, the parole agent had not shared unlimited data with the police. Instead, the parole agent had shared only the location data for where the defendant was at the time of his suspected involvement in the robbery. The Court found that this was not a significant intrusion into his privacy because the data shared was limited in time and scope.
The Court also rejected the defendant’s stalking horse challenge. Under the stalking horse doctrine, the police may not take advantage of a suspect’s status as a probationer or parolee to avoid the warrant requirement. In other words, the police may not ask probation or parole to conduct a warrantless search for the purpose of finding evidence related to a police investigation. Instead, the police should get a warrant. For example, if a defendant could show that the police had asked a probation officer to conduct a search of the defendant’s house to look for evidence because the police suspected the defendant of a crime, then that search could potentially violate the stalking horse doctrine and require suppression of the evidence. Here, however, the defendant introduced no evidence that the police had directed the search or directed parole to put the defendant on GPS monitoring. He was already on GPS monitoring, and the police simply requested the data from his parole agent. As he did not have a reasonable expectation of privacy in the data, the parole agent was free to share this information with the police.
The Takeaway
This result is not particularly surprising. It is usually not possible to suppress evidence that was shared with the public as suppression requires a reasonable expectation of privacy. A probationer or parolee who is subject to GPS monitoring has no real reason to believe that the evidence would be kept private, so courts are generally not going to suppress it.
As a general rule, it’s best not to commit new crimes while wearing a probation or parole GPS tracking device. The evidence will likely be admissible in court, and the police will not be required to get a search warrant for the evidence. There is still the possibility of challenging the collection of this type of evidence should the defendant be able to show that probation or parole improperly conducted a search at the request of the police and that the police may not have otherwise had the authority to conduct such a search, but that type of violation is often difficult to prove.
Facing criminal charges or appealing a criminal case? We can help.
Criminal Defense Lawyer Zak T. Goldstein, Esquire
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 and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree 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.
PA Superior Court: Hearsay from Confidential Informant Admissible at Preliminary Hearing if Commonwealth Asserts CI Will Testify at Trial
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Superior Court has decided the case of Commonwealth v. Sutton, holding that the Commonwealth may introduce hearsay evidence as to what a confidential informant (“CI”) told the police at the preliminary hearing so long as the Commonwealth certifies that the CI will be available to testify at trial. This case presents two major issues: 1) the Commonwealth almost never actually calls a CI to testify at trial, and there is no mechanism in place to ensure that the Commonwealth does not simply say the CI will be available to testify and then that they have changed their minds about that when the case gets to the trial level, and 2) the Pennsylvania Supreme Court has clearly held that hearsay may not be used to establish a prima facie case of the defendant’s guilt at the preliminary hearing. Nonetheless, the Superior Court dismissed these concerns and reversed the trial court’s order dismissing the case against the defendant.
The Facts of Sutton
The Commonwealth charged the defendant with two counts of possession with the intent to deliver. At the preliminary hearing, the Commonwealth called one witness, Detective Michael Lamana of the Bradford County Drug Taskforce. Detective Lamana testified that on two dates in February and March of 2022, he worked with a confidential informant to purchase drugs from someone inside of the defendant’s house. Specifically, he went to the house with a CI, searched the CI for drugs and money, and after finding nothing on the CI, gave the CI pre-recorded buy money. He then sent the CI into the house to buy drugs. He could not see inside the house, so he obviously had no way of seeing what occurred inside, if the defendant was even present at the time, or if someone else could have sold drugs to the CI. The CI then returned with methamphetmaine and no money, suggesting the CI had purchased drugs inside.
The problem with this evidence, however, is that it establishes only that the CI probably bought drugs at the defendant’s house; it does not establish that the defendant in fact sold the drugs. Accordingly, this evidence would be insufficient to hold the defendant for court at a preliminary hearing. Recognizing this fact, the magisterial district justice allowed the detective to testify that the CI told him that they had bought the drugs from the defendant. With this hearsay testimony in evidence, the district justice was able to hold the case for court and send it to the Court of Common Pleas.
The Motion to Quash
The defendant filed a motion to quash (also known as a petition for writ of habeas corpus outside of Philadelphia) and asked the Court of Common Pleas to dismiss the charges because the Commonwealth improperly relied entirely on hearsay in getting the case held for court. Ultimately, the evidence that the CI bought drugs from inside of the defendant’s house was not enough to identify the defendant as actually selling the drugs. Someone else could have been living there or selling drugs from that location. And the hearsay obviously should not have been admitted given that the Supreme Court held in McClelland and the Superior Court held in Harris that prima facie case may not be established solely through hearsay. The Court of Common Pleas followed this binding precedent and dismissed the charges.
The Appeal
The Commonwealth appealed the trial court's decision. On appeal, the prosecution argued that it had presented some non-hearsay evidence in the form of the detective’s actual observations, it had certified that the CI would be available to testify at trial, and the rules limiting the use of hearsay at a preliminary hearing only prevent the Commonwealth from getting a case held for court based solely on hearsay. They do not prevent the Commonwealth from using some hearsay to get the case held for court or require the Commonwealth to disclose the identity of a CI by putting the CI on the witness stand at such an early stage in the proceedings. Therefore, the Commonwealth essentially argued for an exception to the rule that hearsay alone may not be used to establish the identity of the perpetrator of a crime at the preliminary hearing.
Superior Court's Decision
The Superior Court reinstated the charges on appeal. A divided panel of the Superior Court agreed. One judge concurred only in the result, opining that the evidence that drugs have been sold to the CI from the defendant’s home on two occasions was enough to establish a prima facie case for preliminary hearing purposes even without the hearsay from the CI. The other two judges, however, ruled that the Commonwealth may properly introduce the hearsay statements of a confidential informant at a preliminary hearing without violating the decisions in McClelland and Harris so long as the Commonwealth agrees to make the CI available for trial.
The court emphasized that the preliminary hearing’s purpose is to determine whether sufficient evidence exists to proceed to trial, not to establish guilt beyond a reasonable doubt. It highlighted that the Commonwealth's use of the CI’s statements through Detective Lamana’s testimony, alongside direct evidence of the controlled buys, sufficed to establish a prima facie case for the charges to proceed to trial.
Moreover, the court addressed the qualified privilege to protect the CI's identity, noting that disclosure at the preliminary hearing stage was not mandated. The ruling underscored that the CI's identity and the details of their statements could be protected, provided that the CI would be available to testify at trial. In the court’s view, this would balance the interests of law enforcement in prosecuting drug crimes and the defendant's right to a fair defense. Therefore, the court reinstated the charges.
Conclusion and Implications
This case is a disaster for maintaining due process protections at the preliminary hearing level. Those protections were only recently re-established by the Supreme Court’s decision in Commonwealth v. McClelland. For years, the Superior Court had ruled that the Commonwealth need not present any non-hearsay evidence at a preliminary hearing at all. The Supreme Court eventually reversed that line of cases in McClelland, holding that the rule against hearsay does apply at the preliminary hearing with limited exceptions, and the Superior Court went even further in Harris by holding that even where the Commonwealth establishes that a crime occurred through non-hearsay evidence, it must introduce real evidence to prove the identity of the perpetrator of the crime. These protections are absolutely critical. The preliminary hearing happens early in the proceedings - generally within a few weeks or months of a defendant’s arrest. And in a serious case such as a shooting, homicide, or drug or gun case where a defendant is on probation or parole, the defendant is likely in custody and may remain in custody until the case is resolved. The final resolution of a case may not occur for years in some instances. Therefore, the right to a meaningful preliminary hearing is critical as it prevents people from being held for years based on cases that the Commonwealth will never be able to actually prove in court with real evidence.
This decision, however, completely eliminates those protections for any defendant who is charged with a drug or gun offense based on an investigation involving a confidential informant. The Supreme Court’s case law and the Superior Court’s other case law does not support such a broad holding, so hopefully the defendant will appeal further and ask the Superior Court for re-argument or the Supreme Court to grant allocatur. Finally, at least in Philadelphia, the Commonwealth never actually makes the CI available for trial. Indeed, the Commonwealth will typically withdraw charges if they lose a motion to reveal the identity of the confidential informant rather than actually allow the defense to call that person to testify. Therefore, the case may be of limited impact in many places. It nonetheless poses a huge risk of the exception swallowing the general rule and reverse significant progress that has occurred over the last few years in terms of making sure that the preliminary hearing is a meaningful hearing and opportunity to test the evidence so that an innocent or over-charged defendant does not remain in custody for years waiting for trial without any chance to challenge the evidence.
Facing criminal charges or appealing a criminal case? We can help.
Goldstein Mehta LLC Criminal Defense Attorneys in Philadelphia
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 and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree 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.
Attorney Goldstein Obtains Dismissal of Bucks County Felony Charges for Making a Materially False Statement in Connection with a Firearm Purchase
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire, obtained the full dismissal of felony charges at the preliminary hearing for a client who was charged in Bucks County with allegedly making a materially false statement on the background check application that he filled out in an attempt to buy a firearm.
In the case of Commonwealth v. M.S., prosecutors alleged that M.S. went to a gun show in Bucks County to try to buy a gun and provided false information about his criminal record on the form.
How does the background check process work when buying a gun in Pennsylvania?
Every purchase of a firearm in Pennsylvania requires the purchaser to fill out two background check forms – one for the Pennsylvania State Police and one for the ATF. The state police form asks a number of questions such as whether the purchaser is ineligible to buy a gun due to certain prior convictions (generally those enumerated in the felon in possession of a firearm statute, 18 Pa.C.S. § 6105) as well as questions about prior 302 mental health commitments and convictions for domestic violence.
The ATF form asks whether the purchaser has ever been convicted of a crime punishable by more than a year in jail. For state court misdemeanors, the definitions section on the back of the form clarifies that the question only applies to a state court misdemeanor punishable by more than two years in jail, meaning that a non-domestic violence misdemeanor of the second degree in Pennsylvania is not a problem, but a first degree misdemeanor is. Notably, the forms also require the purchaser to confirm that they are purchasing the gun for themselves rather than someone else. There is an exception where the purchaser seeks to purchase it for a close family member who is legally eligible to own a firearm (such as a spouse or child).
In this case, the police claimed that M.S. lied on the form by checking off that he did not have a conviction for a crime punishable by more than a year because he had a misdemeanor of the first degree theft conviction from more than thirty years ago. Technically, according to the language of the form and the federal law (18 U.S.C. § 922(g)), this M1 theft conviction made M.S. ineligible to possess a firearm.
What happens if you fail the background check when trying to buy a gun?
The gun seller ran M.S. through the State Police background check system, the system recognized his old conviction, and he was not permitted to purchase the firearm. Most people do not realize, however, that the system then notifies the state police about the attempted purchase, and the state police frequently file felony charges under 18 Pa.C.S. § 6111. The ATF could also file federal charges along with the U.S. Attorney’s Office. § 6111 makes it a felony to make a materially false statement on either the state police or ATF background check forms. In order to prove a violation of the statute, however, the Commonwealth has to show 1) that the defendant was the person who actually filled out the form, 2) that the statement was in fact false, 3) that the statement was material, meaning important, and 4) that the defendant knew it was false and did not just make a mistake.
Obviously, the questions are confusing. The state form asks about crimes listed in § 6105, and people often do not know exactly of what they were convicted, particularly where the conviction is older. For someone who has a prior robbery or aggravated assault, there is probably not going to be a strong argument that the person was confused. But where someone has an old misdemeanor or a few DUIs, they may well have not realized that they were ineligible to possess a firearm.
Similarly, the federal form asks whether the person was convicted of a crime punishable by more than a year in prison, and the form then actually defines that as a state court misdemeanor punishable by more than two years in prison. This question is particularly confusing as a non-lawyer is very unlikely to know how much time they could have received for an old, less serious conviction. Again, for a robbery or an aggravated assault, there is not going to be as strong of a mistake defense, but for an old misdemeanor theft conviction, it is not unreasonable to suggest that someone could have been unaware of the gradation of the conviction or how much time that gradation could have carried if they did not actually receive the maximum or any jail time at all.
In this case, M.S.’s old theft conviction carried up to five years in prison, making him ineligible to possess a firearm under federal law. It did not make him ineligible under state law. Accordingly, the police charged him with lying on the ATF form, which is a felony.
M.S. retained Attorney Goldstein for the preliminary hearing. On the day of the hearing, the Commonwealth offered to reduce the charges to a third-degree misdemeanor of unsworn falsification for a one year period of probation. M.S. rejected the offer and decided to have a preliminary hearing. The police officer testified that he received a package from the state police indicating that M.S. had tried to buy a gun, M.S. was ineligible due to the old theft conviction, and that theft conviction was punishable by up to five years. The police officer also confirmed that he spoke with M.S., and M.S. admitted to trying and failing to buy the gun for self-defense purposes. He said he did not realize the theft conviction made him ineligible.
Dismissal of the Charges
Attorney Goldstein then argued for dismissal of the charges. First, under the recent Third Circuit Court of Appeals case of Range v. Attorney General, a lifetime prohibition on gun ownership for someone convicted of an old state court misdemeanor appears to be unconstitutional. There, the Third Circuit, in an en banc, opinion, held that Range should be permitted to buy a gun because his only conviction was a nearly thirty year old conviction for M1 food stamp fraud. Given how minor the conviction was, a lifetime prohibition on gun ownership violated the Second Amendment.
This case was extremely similar except the conviction was older and Range had sued for an injunction allowing him to buy a gun rather than argued that he could not be prosecuted. Attorney Goldstein argued that the statement on the form, even if not true, was not material because M.S. would have been eligible to possess a gun under the Range decision.
Second, Attorney Goldstein also argued that M.S. had clearly been confused by the wording on the form. Misdemeanor theft is not a bar to gun ownership under 18 Pa.C.S. § 6105, and M.S. had not actually received any time in prison. He had also been cooperative with the police and told them he had made a mistake. If he had been trying to buy a gun illegally, he could have purchased it on the street or lied to the police. Accordingly, it was very unlikely that he knew he had been convicted of a state court misdemeanor punishable by more than two years in jail. He did not actually get any jail time, and he did not even receive more than two years of probation.
Fortunately, the Magisterial District Justice agreed with the defense arguments and dismissed all charges. Instead of facing trial on felony charges in the Court of Common Pleas, M.S., who had not been arrested in over thirty years, can return to work and continue being a law-abiding citizen. This case, however, highlights the importance of being very careful when filling out these forms. If you have any doubts about whether you are eligible to possess a firearm, you should not use the form to “test” that eligibility. Instead, you should speak with a lawyer about your prior record. Additionally, if you have filled out the form and made a mistake, you should speak with an attorney right away before the police come calling. An attorney may be able to help you head off the investigation or help you with responding to it in order to avoid charges and prosecution for a felony offense. The form should never be used as a way to test whether or not you are eligible to buy a gun as answering the questions incorrectly can lead to felony charges.
Facing criminal charges or appealing a criminal case? We can help.
Criminal Defense Attorney Zak T. Goldstein, Esquire
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 and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree 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.
What is a preliminary hearing, and what happens afterwards?
The preliminary hearing is a critical first step in fighting the charges against you. We have had countless cases and charges thrown out at the preliminary hearing.
What to Expect at Your Preliminary Hearing
The Philadelphia criminal defense lawyers of Goldstein Mehta LLC represent clients who are facing all types of criminal charges in Pennsylvania and New Jersey. Our defense attorneys have a proven track record of successfully defending our clients in thousands of criminal cases in countless jurisdictions. In Pennsylvania state court cases, our efforts on behalf of our clients often begin with the preliminary hearing.
This critical step in the process occurs after preliminary arraignment, and it is the first substantive hearing in a criminal case. We have successfully represented clients in thousands of these important hearings. In many cases, we have been able to have some or all of the charges dismissed at this initial stage in the proceedings. Even in matters where the case proceeds to the Court of Common Pleas, we are often able to use our cross examination skills to obtain testimony which will be useful in defending the case at later proceedings such as a motion to suppress or trial. This article explains both what happens at a preliminary hearing and what will happen if a case is "held for court" following testimony and argument.
If you are facing criminal charges, call 267-225-2545 to speak with one of our defense attorneys. We offer a free, 15-minute criminal defense strategy session.
What is a preliminary hearing?
The preliminary hearing is an extremely important step in the criminal justice process, and our criminal lawyers have successfully moved for dismissal of some or all of the charges in countless cases. In most cases, the “prelim” is the first opportunity for our criminal defense lawyers to challenge the evidence and charges against you. Although the hearing is a critical step in the process, it can also be frustrating and confusing for the defendant because the hearing differs significantly from the actual trial.
The proceedings sort of look like a trial, but they are different from the trial, and there are a number of important distinctions. A judge, prosecutor, defense attorney, court reporter, and court clerk are all likely to be there, making it look like a trial. However, despite the appearance of a criminal trial, it is not the same thing. Instead, the hearing (sometimes called a probable cause hearing) is a relatively brief court appearance in which a Philadelphia Municipal Court judge or suburban Magisterial District Justice, depending on the venue of the case, will usually hear from one or two of the main Commonwealth witnesses in order to determine whether the prosecution can successfully introduce enough evidence to show that the case should proceed to trial at the next level.
Just recently, the Pennsylvania Supreme Court re-affirmed the proposition that the Commonwealth generally must put on some live testimony and typically may not proceed on hearsay alone. The exact limitations on the admissibility of hearsay at a preliminary hearing are still subject to ongoing litigation, but it is clear that the Commonwealth must put on at least some real evidence in order to get a case to the Court of Common Pleas. The Superior Court has also now held that the Commonwealth must present competent evidence relating to the identification of the defendant at a preliminary hearing, as well. This is particularly true for preliminary hearings in Philadelphia. That case, however, is currently on appeal in the Pennsylvania Supreme Court. Even in the counties where prosecutors are more often allowed to use hearsay, the hearing still provides the defense with the opportunity to cross examine the lead detective or police officer in the case. Therefore, it is a critical step in the process because it provides the first chance for our defense attorneys to challenge the charges and evidence against you. The rules also require at least some witnesses to come to court and testify under oath.
The Burden of Proof at a Preliminary Hearing
The prosecutor or affiant (main police officer or assigned detective) must present enough evidence to prove a prima facie case for each charge. This standard requires the District Attorney to prove that it is more likely than not that a crime was committed and that the defendant committed it. The prosecutor will try to do this by calling witnesses and presenting evidence in much the same manner as the prosecutor would at trial. The defense lawyer then has the opportunity to cross examine the witnesses. If the prosecution does not introduce enough evidence to prove a prima facie case for any given charge, then the defense may move for dismissal of that charge, and that charge should be dismissed by the judge. It is important to remember that the prima facie case standard does not require the Commonwealth to prove the case beyond a reasonable doubt. Therefore, you should not assume that just because a case was held for court that you will be convicted at trial. There is a significant difference between a judge believing that the Commonwealth has established a prima facie case and a jury concluding that a defendant is guilty beyond a reasonable doubt.
Is hearsay admissible at a preliminary hearing?
Although there is a right to cross examine prosecution witnesses and present defense witnesses at a prelim, the rules are very different. For example, the rules of evidence do not apply with the same force as they would at trial. The evidence rules are much more loosely enforced, and it is clear under Pennsylvania law that at least some hearsay is permitted at the hearing pursuant to Pennsylvania Rule of Criminal Procedure 542(E).
That rule provides:
Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established. Hearsay evidence shall be sufficient to establish any element of an offense, including, but not limited to, those requiring proof of the ownership of, non-permitted use of, damage to, or value of property.
Although Rule 542 allows the Commonwealth to rely on some hearsay at a preliminary hearing, the Pennsylvania Supreme Court has held that the Commonwealth may not prove the charges against a criminal defendant solely through the use of hearsay without violating a defendant's right to due process under the Pennsylvania Constitution. In recent years, the Superior Court, which is Pennsylvania’s intermediate appellate court, authored a number of opinions in cases such as Commonwealth v. Ricker and Commonwealth v. McClelland in which it allowed the Commonwealth to rely more heavily on hearsay than was previously allowed under Supreme Court precedent.
Those decisions, however, have been overruled as of July 21, 2020 by the Pennsylvania Supreme Court. In McClelland, the Supreme Court re-established the previously long-standing rule that a defendant may not be held for court based on hearsay alone. The Supreme Court overruled both prior decisions of the Superior Court and found that a defendant has a due process right to a preliminary hearing which does not consist entirely of hearsay. This means that defendants now have increased protections at the preliminary hearing and an earlier opportunity to make a meaningful challenge to the case against them. The Supreme Court’s ruling is extremely important because of the reality that in serious cases or in cases where a defendant is on probation or parole, it is possible for that person to be held in custody for months or even years while awaiting trial. A meaningful preliminary hearing at which the Commonwealth is required to present actual witnesses is an important check on the ability of the government to detain people for extended periods of time without evidence.
The rules do, however, continue to allow some hearsay at the hearing. Generally, the amount of hearsay that the judge will permit the Commonwealth to introduce really depends on the judge. In some counties, many of the magistrates will let the Commonwealth proceed entirely or almost entirely on hearsay by allowing the assigned detective to testify to what the other witnesses told him or her. In Philadelphia, the judges typically require the prosecution to introduce live witness testimony from the complaining witness or actual eyewitnesses to the alleged crime. This split between the procedures in the counties and in Philadelphia will likely narrow due to the recent Supreme Court decision, but some differences will probably still remain.
Even in Philadelphia, the Pennsylvania Rules of Criminal Procedure clearly permit the prosecution to introduce ownership and non-permission testimony through the use of an "ONP Form" or through testimony from one of the investigating officers. For example, if the defendant is pulled over in a stolen car, the Commonwealth may proceed at the ensuing Receiving Stolen Property preliminary hearing by calling only the arresting officers to testify. The Commonwealth is not required to produce the owner of the car to testify that that person owned the car and did not give the defendant permission to drive it. This is a relatively limited exception to the rule against hearsay, and at trial, the Commonwealth must still call the owner of the car to testify that the car was stolen.
Additionally, because of the relatively brief nature of the hearing and its limited scope, cross examination is much more limited than it would be at trial. For example, when it becomes clear that the defense is really seeking to establish the grounds for a motion to suppress, the judge will likely rein in the questioning because the motion to suppress cannot be litigated until later. Whether the police illegally stopped and searched the defendant is sometimes not relevant to whether the defendant committed a crime. Instead, that issue must typically be litigated at the motion to suppress hearing. However, in many cases, it is possible to ask some questions of the officers about the reasons for the stop which could be helpful for the motion if the case makes it to the Court of Common Pleas. The extent to which the judge will allow defense counsel to explore the reasons for the search or the stop varies from judge to judge.
Finally, the defense may not argue that the case should be dismissed because witnesses are lying unless the testimony is truly beyond belief. Credibility is not an issue at a preliminary hearing. Instead, the judge is instructed by law to accept the testimony of Commonwealth witnesses as true because the judge is simply evaluating whether there is enough evidence for the Commonwealth to proceed to trial. The judge is not permitted to make a credibility decision as to whether the witnesses are telling the truth or the Commonwealth will win at trial. Nonetheless, there are many defenses which can still be argued and may result in the dismissal of charges. Finally, in some cases in which a video directly contradicts an eyewitness, the judge may be willing to consider credibility arguments.
Ways to Get a Case Dismissed at the Preliminary Hearing
Criminal Defense Lawyer for Preliminary Hearings
Despite the fact that many of the differences between a preliminary hearing and a trial favor the prosecution, these hearings are still a critical stage in the criminal justice process for the defense. They provide defendants with substantially more rights and the opportunity to challenge the case at an earlier stage in the proceedings than the use of an indicting grand jury. Still, the defense may not argue that a witness is lying, but the defense may argue that the case should be dismissed for legal reasons. For example, a case could be dismissed or charges could be downgraded if the prosecutor fails to establish all of the elements of the statute in question.
In a case involving Possession with the Intent to Deliver charges, it could be possible to argue that the felony charge should be dismissed if the police failed to stop any alleged buyers because the Commonwealth will not be able to prove that the defendant was actually selling drugs. Likewise, in a circumstantial case in which there were no eyewitnesses to the crime, it may be possible to argue that there is simply not enough evidence that the police got the right guy and that the court should dismiss all of the charges. Thus, the prelim is a critical tool to challenge cases in which the prosecution has overcharged the defendant or in which the evidence is circumstantial and weak. This differs from cases in which prosecutors have used an indicting grand jury as the defendant often will not have the opportunity to challenge the charges until much closer to trial.
Finally, the defense has the right to present evidence or witnesses, but it is very uncommon for the defense to do so. It is usually better to wait and see what the evidence looks like before presenting potential defense witnesses. This is because the defense typically will not have access to the discovery until the case reaches the Court of Common Pleas.
Following the testimony, the defense attorney and prosecutor may make argument about whether the charges should be dismissed or whether the defendant should be held for court. It is very common for prosecutors to overcharge defendants, particularly in cases where the defendant has been arrested before. Therefore, we are often able to have some charges or even entire cases dismissed at this initial stage.
Bail Motions at the Preliminary Hearing
If the defendant has not been able to make bail, then our criminal defense attorneys may make a motion for a bail reduction. This motion may be made regardless of whether the case gets continued or the charges get held for court, and judges are often inclined to reduce bail when the Commonwealth requests a continuance. Other cases may also be dismissed at the preliminary level because witnesses fail to appear. In Philadelphia, the Commonwealth typically has three listings to get ready for the hearing. If the Commonwealth is not ready after three listings, most judges will dismiss the case. If the court dismisses the case, then the defendant should be released the same day if there is nothing else holding them in custody. The Commonwealth may, however, re-file the case and proceed even after a case has been dismissed, and in some cases, the Commonwealth may obtain an arrest warrant for their witnesses so that the police can bring the witnesses to court by force. There are limits on the prosecution’s ability to endlessly re-file cases at this lower level, but it is clear that the Commonwealth can re-file at least once and sometimes twice.
How many times can the prosecution re-file charges in Pennsylvania?
Although the Commonwealth may re-file the charges following dismissal, the Commonwealth’s ability to re-file has limits. Pennsylvania appellate courts have held that where the charges are repeatedly dismissed by the magistrate or Municipal Court judge, the successive re-filing of the charges could eventually reach the point of illegal prosecutorial harassment. If the re-filing of the charges reaches the level of prosecutorial harassment, then the prosecutor’s decision could begin to impact the defendant’s right to due process. This type of due process violation can be used to move for the dismissal of the charges with prejudice - meaning the Commonwealth cannot re-file them. The prosecution would then be required to appeal the dismissal of the charges to the Pennsylvania Superior Court (or initially the Court of Common Pleas in Philadelphia), and the Superior Court would be responsible for determining whether prosecutors actually made out their case or whether the charges should be dismissed forever.
Success at the Preliminary Hearing Level
Although it may not seem like it at the time, some of the most successful hearings for the defense are hearings in which none of the charges are fully dismissed. This is because even if the charges do not get dismissed at the hearing, some of the main witnesses may have testified at the hearing and said things which can be extremely useful later in the process. For example, the police officer may testify to something which can be helpful at a later motion to suppress the physical evidence, or the complainant may say something wildly different from what the complainant said in a statement to detectives. Many of our winning motion to suppress and trial strategies are built through effective cross examination at the preliminary hearing even in cases where the charges are held for court. Further, even a slight change in gradation from an F1 felony to an F2 felony can make an enormous difference as the case proceeds as F1 felonies may carry significant mandatory minimum sentences that no longer exist for F2s. Therefore, the preliminary hearing is an extremely important step in the process.
What happens after the preliminary hearing?
If the judge who hears the case finds that the Commonwealth has met its burden, then the judge will hold the defendant for court. This does not mean that the defendant is taken into custody. It simply means that the Commonwealth has met the relatively low burden that it must meet and that the case may proceed to the Court of Common Pleas.
If you are held for court, the next step in the process is arraignment. In most counties and in Philadelphia, very little happens at arraignment, and most private lawyers will waive arraignment so that you do not have to appear. Formal arraignment is a hearing in which a judge or commissioner will advise the defendant of the charges that have survived the initial proceedings and ask the defendant how he or she pleads.
Assuming the defendant pleads not guilty, the case will then be listed for a pre-trial conference before a judge. In some counties, the arraignment is used as an informal pre-trial conference at which plea negotiations may occur or discovery may be exchanged. But in the majority of counties, the arraignment is typically waived for a client who is free on bail and represented by private counsel. Following arraignment, the case will usually proceed to a pre-trial conference in which plea negotiations will be discussed and discovery exchanged. Once discovery is complete and any plea offers have been rejected, the case will be listed for trial. In Philadelphia, a trial before a judge could take place in roughly three to six months after the preliminary hearing. If the defendant wishes to proceed by way of jury trial, it may be a year or more before the case goes to trial.
Should I waive the preliminary hearing?
If you are charged with a crime, the preliminary hearing is a critical step in the proceedings against you. In Philadelphia, it is very uncommon to waive the hearing, and there is very little benefit in doing so. We will typically waive the hearing only when the defendant has already been approved for some sort of diversionary program such as ARD or treatment court. The Philadelphia District Attorney’s Office currently has a policy of not considering ARD applications until a case reaches the Court of Common Pleas, and so it usually does not make sense to waive it unless ARD is going to be a very close call and the defense wants to be able to argue that the defendant has been fully cooperative and remorseful.
In the suburban counties, it is much more common for the defendant to waive the preliminary hearing as the prosecutors and police officers often make offers to resolve the case or dismiss some of the charges in exchange for a waiver of the hearing. Once the hearing is waived, however, it becomes much more difficult to fight the case because a valuable opportunity to challenge the prosecution's evidence and cross examine witnesses under oath has been lost.
Further, if you waive the hearing in exchange for a reduction in the charges, the prosecution often reserves the right to re-instate the withdrawn charges without a new hearing if you choose to go to trial instead of pleading guilty. Therefore, whether you should waive the hearing depends on the jurisdiction and the offer made by the government. It usually does not make sense to waive it unless there is some sort of firm offer on the table which the defendant wishes to accept or unless there is a requirement in that county that the hearing be waived in exchange for ARD consideration.
Each case is different, and whether you should waive any of your rights depends on the facts of your case. Generally, a waiver means that the case is headed for some kind of negotiated or open guilty plea or diversionary program. Alternatively, refusing to waive the hearing sends a message to the prosecution that the defendant plans on fighting the case. Both options have pros and cons which depend on the circumstances of the case and the evidence against the defendant. Therefore, whether you should waive your right to a hearing is an extremely important decision that should be made only with the advice of experienced criminal defense counsel.
Can I get my preliminary hearing back if I waived it?
It depends. In some cases in the suburban counties, it is possible to enter into a waiver at the magisterial district justice level but still reserve the right to litigate the issue of whether prosecutors can prove a prima facie case prior to trial. This would be accomplished by agreeing with the Commonwealth to a waiver of the hearing with the right to file a petition for writ of habeas corpus in the Common Pleas Court. That would give the parties time to engage in negotiations, exchange discovery, and discuss the possibilities for resolving the case. If the case cannot be resolved, then the defendant may still file the petition for writ of habeas corpus, and the Common Pleas judge would then hold a habeas corpus hearing in much the same manner as would occur in the magisterial district court at the prelim. Click here to learn more about habeas corpus petitions.
Could I go to jail at the preliminary hearing?
Preliminary Hearing Lawyer Zak T. Goldstein, Esquire
It is very unlikely that you would go to jail at the preliminary hearing if you have already been released on bail. The court's job is not to find the defendant guilty or not guilty. Instead, the judge's role is to determine whether there is enough evidence for the charges to proceed to the Court of Common Pleas for trial. Even if the Commonwealth presents enough evidence for the case to continue, there would not be a sentencing hearing because the defendant has not been found guilty. The only reason that a defendant would be taken into custody is if the prosecution were to move to have the defendant's bail increased or revoked. In that case, the Municipal Court judge or magistrate would hear arguments on bail and could increase bail or leave bail the same. If the judge increases bail, the defendant could be taken into custody until the new bail amount is paid. The defendant would then be released. It is relatively rare for this to happen, so it is unlikely that you would go to jail at the preliminary hearing even if the prosecution presents sufficient evidence.
Will I get sentenced at the preliminary hearing?
A criminal defendant will not receive a sentence or even a finding of guilt or innocence at the preliminary hearing. Instead, the purpose of the hearing is only to determine whether or not the Commonwealth can prove a prima facie case that the defendant committed the crimes charged such that the case should proceed to the trial level. Because the judge does not find the defendant guilty or not guilty, there is no sentencing proceeding that would follow the hearing. It is possible that the charges could be dismissed and the case could be over, but a defendant would never be found guilty or sentenced following the proceedings.
Does every criminal case in Pennsylvania get a preliminary hearing?
No, there are at least four situations in which you may not receive a preliminary hearing if you are charged with a crime in Pennsylvania.
First, if you are charged with a misdemeanor in Philadelphia Municipal Court, you will not get a preliminary hearing. Instead, the case will go right to trial in front of a Municipal Court Judge. If you lose the trial and wish to appeal, however, you may file for a trial de novo, and the trial transcript will then be treated similarly to a preliminary hearing transcript.
Second, in Philadelphia, the Commonwealth occasionally proceeds by way of indicting grand jury instead of providing a defendant with a preliminary hearing. In cases where the Commonwealth files a motion alleging that it is concerned about witness intimidation, the Commonwealth may proceed by presenting the evidence in secret to a panel of grand jurors. The grand jurors will then vote on whether to indict the defendant.
Third, in cases involving lengthy investigations conducted by investigating grand juries, the Commonwealth may file a motion to bypass the preliminary hearing under certain circumstances and attempt to use the grand jury’s presentment instead of providing the defendant with a preliminary hearing. This motion is often subject to challenge by the defense. The options for challenging the use of an indicting grand jury, however, are limited. A defendant in that situation, however, may still file a motion to quash in Philadelphia.
Finally, defendants in summary citation cases are not entitled to a preliminary hearing. Instead, the case will go right to trial before a magistrate or Municipal Court judge. Like defendants found guilty in Philadelphia Municipal Court cases, a defendant who has been found guilty of a summary has the right to a de novo appeal to the Court of Common Pleas.
Therefore, most defendants who are charged with a crime in Pennsylvania receive a preliminary hearing, but there are some cases which will not involve one.
The Philadelphia Criminal Lawyers of Goldstein Mehta LLC Can Help
Our Philadelphia Criminal Defense Lawyers offer a 15-minute, complimentary criminal defense strategy session. We know that picking up the phone and calling an attorney can be intimidating, so in this video, I explain what you can expect when you call us. Call 267-225-2545 to speak with one of our criminal defense lawyers.
If you have an upcoming preliminary hearing, you need representation from one of our experienced criminal defense lawyers immediately. We have successfully moved for the dismissal of entire cases and some of the most serious charges on countless occasions. We also use this initial hearing to begin building a defense to the charges by getting the witnesses on the record. And in other cases, we have successfully been able to work out the case for a favorable resolution for the defendant. If you are facing criminal charges or under investigation, call 267-225-2545 for a free 15-minute criminal defense strategy session.
Related Articles: Pennsylvania Supreme Court Justices Can't Agree On Admissibility of Hearsay At Preliminary Hearing
