Criminal Lawyers | Post-Conviction Relief Act Petitions in Philadelphia, PA

Many defendants who lose their trials or plead guilty are ultimately unhappy with the result and wish to appeal. Pennsylvania’s Post-Conviction Relief Act provides a mechanism for petitioners to attack their criminal convictions in the trial court and obtain a new trial or sentencing. PCRA Petitions can be extremely complicated and are difficult to win, but under the right circumstances, a PCRA Petition may allow you to obtain a new trial or sentencing. The most important thing to know is that as with direct appeals, there are extremely strict time limits for filing a Petition. Therefore, if you are considering an appeal or a PCRA, you should speak with a criminal defense attorney immediately. Our Philadelphia criminal appeals lawyers have extensive experience with direct appeals and PCRA Petitions. Call 267-225-2545 to speak with one of our award-winning defense attorneys today.   


If you lose a criminal trial in the Court of Common Pleas or plead guilty and are unhappy with the outcome, there are two types of appeals which could get you another trial or sentencing.

The first type of appeal is called a direct appeal. A direct appeal is filed in the Superior Court. A direct appeal in the Pennsylvania Superior Court deals with legal errors committed by the trial court. This means that if the trial court improperly denied pre-trial motions such as motions to suppress or motions in limine, gave improper jury instructions, or made erroneous evidentiary rulings, the Superior Court could reverse your conviction in a direct appeal. The Superior Court will not receive new evidence, re-weigh the evidence, or review issues which were not preserved (usually by way of objection) by trial counsel.

The second type of appeal is actually filed in the Court of Common Pleas as a Post-Conviction Relief Act Petition (“PCRA”). A PCRA Petition typically requests a new trial or sentencing due to the ineffectiveness of counsel, a change in constitutional law which occurred since trial, or the discovery of new evidence which would have led to a different result. There are important differences between the two types of appeals. A direct appeal is heard by a different panel of higher-ranking judges in the Superior Court, but a PCRA Petition is heard by the same trial judge who originally presided over the case unless the judge has retired or otherwise left the bench. In that case, a different judge would be assigned to rule on any Post-Conviction Relief Act Petitions.  


The most common claims which you can bring in a PCRA Petition are that you should receive a new trial or sentencing due to the ineffective assistance of counsel, the discovery of new evidence, or a change in constitutional law. The Act also allows for the DNA testing of evidence under certain circumstances. In general, direct appeals address some sort of legal error committed by the trial court, while PCRAs are more likely to challenge the performance of the defense lawyer at trial or address the discovery of new evidence.


The Pennsylvania and United States Constitutions both require defense counsel to be competent. Although counsel is presumed to be effective and competent, if your trial lawyer was legally ineffective and you were prejudiced as a result, then you could receive a new trial or sentencing. Ineffectiveness claims vary and could raise all sorts of deficiencies in trial counsel’s performance. For example, ineffectiveness claims could include:  

  1. The failure to thoroughly investigate the case, interview defense or alibi witnesses, and call those witnesses at trial;
  2. The failure to object to legal errors made by the trial judge or improper questioning or argument from the prosecution which results in the trial court making erroneous legal rulings or those issues being waived on appeal;
  3. The failure to file pre-trial motions such as Motions to Suppress or Motions in Limine which would have made a difference in the case;
  4. The failure to request certain jury instructions or object to improper jury instructions ;
  5. The failure to hire an expert witness when necessary for the defense; and
  6. The failure to file post-sentence motions or a direct appeal when requested by the defendant.

There are countless other issues which could be raised in a PCRA Petition, and identifying potentially meritorious issues requires a thorough review of the transcripts as well as a full investigation of the case to see if there was something that original counsel missed. In order to win on an ineffective assistance of counsel claim, the petitioner must show that 1) counsel was ineffective, 2) the petitioner was prejudiced as a result, and 3) there was no reasonable, strategic basis for trial counsel’s decision.                                                              


 Post-Conviction Relief Act Lawyer Demetra Mehta, Esq.

Post-Conviction Relief Act Lawyer Demetra Mehta, Esq.

In general, courts do not have any real time limit for addressing a PCRA Petition. Depending on the allegations in the Petition, the petitioner may request an evidentiary hearing which could result in witnesses testifying in a court hearing. For example, if the Petition alleges that defense counsel should have called an alibi witness at trial, then an evidentiary hearing would be necessary for the trial judge to hear from and rule on the credibility of the alibi witness. The court would also hear from trial counsel as to why counsel did not call the alibi witness to testify.

In cases in which a Petition alleges only some sort of legal error by counsel such as the failure to object to a clearly improper jury instruction, a hearing may not be necessary and a Petition could be granted without a hearing. In most cases, the petitioner will file a Petition requesting a hearing and/or relief and the Commonwealth will respond with a Motion to Dismiss the Petition. The trial court could then dismiss the Petition without a hearing, schedule argument on the Motion to Dismiss, or schedule an evidentiary hearing on the allegations in the Petition. If the trial court grants an evidentiary hearing, then the defense would call witnesses at the hearing and both sides would make argument before the court would rule on the merits of the Petition.


The amount of time before a PCRA Petition will be resolved varies in every case, and it depends on how complex the issues are and whether the trial court grants an evidentiary hearing. The courts will often grant a number of continuances for each side to file Petitions, write briefs, and prepare for evidentiary hearings, and the resolution of a PCRA Petition could take a year or more.


Yes, the denial of a PCRA Petition may be appealed to the Pennsylvania Superior Court by filing a notice of appeal within thirty days of the dismissal or denial of the Petition. The Pennsylvania Superior Court will review the allegations in the Petition and any transcripts from hearings in the Court of Common Pleas for legal error. For example, if the Common Pleas Judge concludes that the jury instructions used were proper, the Superior Court could rule on appeal that the jury instructions were not actually proper and a new trial should have been awarded by the PCRA court.


 PCRA Attorney Zak T. Goldstein, Esq.

PCRA Attorney Zak T. Goldstein, Esq.

Yes, you can file a PCRA Petition if you pleaded guilty. However, these are the most difficult types of PCRAs to win. The same rules apply to a PCRA attacking a guilty plea as a PCRA attacking a loss at trial. However, during the guilty plea colloquy, the defendant is typically questioned as to whether the defendant is making a knowing, intentional, and voluntary decision to plead guilty and whether the defendant is happy with the performance of his or her criminal defense lawyer. Because the guilty plea would have been rejected if the defendant did not seem to know what he or she was doing or if they were unhappy with the trial lawyer, it is much more difficult to win after a guilty plea.

Nonetheless, it is still possible to file a Post-Conviction Relief Act Petition alleging that trial counsel was ineffective in recommending a plea or in presenting mitigation evidence at sentencing. For example, if trial counsel had video or should have had video showing that the defendant was innocent, but trial counsel instead recommended that the defendant plead guilty, then it may be that trial counsel was ineffective in recommending a plea instead of a trial. Additionally, it may be possible to file a successful PCRA Petition in cases in which constitutional law changes after the guilty plea or if the defendant uncovers newly discovered evidence which would have made a difference in the trial court. For example, if an eyewitness comes forward who was unknown to the defense who could have credibly testified that someone else committed the crime, the existence of the witness could be the basis for attacking the guilty plea.


A Post-Conviction Relief Act Petition generally must be filed 1) while the defendant is still serving his or her sentence and 2) within one year of the sentence becoming final. This means that if a defendant received a lengthy sentence, a PCRA Petition typically does not have to be filed until after direct appeals to the Superior Court and/or Pennsylvania Supreme Court have been exhausted. There is also a sixty-day exception to the one-year rule in cases where the law changes or the defendant learns of new evidence which could not have reasonably been discovered prior to trial or a guilty plea. This means that if the defendant learns of a previously unknown witness who would have been helpful to the defense, the defendant could file a PCRA Petition within sixty days of learning of that witness even if the normal one-year deadline has expired. However, once the defendant has finished serving the sentence, it is no longer possible to file a PCRA Petition, and the only remedy for a wrongful conviction would be a pardon.


Whether you should file a PCRA Petition or pursue a direct appeal is heavily fact-specific and depends on the exact circumstances of your case. You should always consult with an experienced appellate attorney before making that decision as it not always possible to file both types of appeals. In general, it usually makes sense to pursue a direct appeal first because a direct appeal must be filed within thirty days of sentencing or the denial of post-sentence motions if post-sentence motions were filed. This means that if the direct appeal is not filed, the right to have the proceedings reviewed by the Superior Court is waived forever. A PCRA Petition, however, may be filed after the Superior Court rules on the direct appeal so long as the defendant is still serving the sentence. Therefore, unless there are truly no legitimate issues to raise in the direct appeal or the defendant’s sentence is going to expire before a direct appeal would be resolved and a PCRA is more likely to be successful, it usually makes sense to pursue the direct appeal first. Both areas of law are extremely complex, so you should always consult with an experienced Pennsylvania criminal appeals attorney before making a decision on which type of appeal to file.   

Case Study - Successful PCRA Petition in Commonwealth v. Z.S. 

Attorney Goldstein recently obtained a new sentencing hearing and ultimately immediate parole eligibility for a client who had been sentenced to 15-30 years in jail for a direct violation of probation. Z.S. was on probation for selling drugs when he was arrested and ultimately convicted of robbery. After receiving a sentence of 7.5 - 20 years for the robbery case which violated his probation, the probation judge held a violation of probation hearing. At that hearing, the judge sentenced Z.S. to 15-30 years consecutive to the sentence for the robbery charges. This led to an overall sentence which could have kept the defendant in jail for up to 50 years despite his young age at the time of the robbery conviction. 

Attorney Goldstein reviewed the transcripts from the Gagnon II hearing and realized that the judge committed significant legal errors during the hearing. It was apparent from the transcript that Z.S.'s original attorney should have promptly objected to these errors during the hearing and filed a timely appeal. Recognizing that the Post-Conviction Relief Act could provide Z.S. with a new sentencing hearing, Mr. Goldstein filed a Post-Conviction Relief Act Petition amending the defendant’s initial pro se filings and arguing that Z.S. should receive a new sentencing because defense counsel had been ineffective at the original hearing.

All criminal defendants have a constitutional right to the effective assistance of counsel under both the Pennsylvania and United States constitutions, and an ineffective performance by counsel at the trial, appeal, or probation levels can lead to a new trial, appeal, sentencing, or probation hearing. In this case, Z.S.'s defense counsel at the initial hearing failed to object when the probation judge found on the record that the defendant’s expressions of remorse were hollow solely because the defendant refused to waive his right to an in-person probation violation hearing and allow the hearing to be conducted by video from the state prison. The attorney also failed to file a motion to reconsider the sentence or appeal the excessive sentence to the Superior Court by way of direct appeal. Attorney Goldstein argued that all defendants have a constitutional right to be present for important hearings in their cases and that courts may not legally punish defendants for exercising those rights. When courts rely on illegal sentencing factors such as the decision to exercise a constitutional right, the defendant is entitled to a new sentencing hearing.

The Commonwealth filed a Motion to Dismiss the PCRA Petition, arguing both that the Petition was untimely because Z.S. did not formally title his pro se filing as a PCRA Petition and that original counsel was not required to object or litigate the issues on appeal in order to be effective. The Court agreed with Attorney Goldstein, denied the prosecution’s Motion to Dismiss, and granted the Amended PCRA Petition. The court ordered that the defendant receive a new sentencing hearing which, due to the passage of time since the original sentence, occurred in front of a different judge from the one who placed the defendant on probation and later sentenced him to 30 years in state prison. 

However, at the new sentencing hearing, the judge had the same authority to impose any type of sentence he saw fit. The judge could have re-sentenced the defendant to the same 15-30 year sentence or reduced the sentence to something substantially less. Due to the persuasive arguments of counsel and the compelling testimony from the defendant and his family members, the judge instead imposed a sentence of 3.5 – 7 years, which the defendant has already served. Accordingly, the defendant will become immediately eligible for parole instead of having to serve another 10 years before reaching parole eligibility.


 Goldstein Mehta LLC Criminal Defense Lawyers

Goldstein Mehta LLC Criminal Defense Lawyers

The preceding information is no substitute for legal advice from an experienced criminal defense lawyer who regularly handles PCRA Petitions and direct appeals. This area of law is particularly complex and often changes. There are also extremely strict deadlines which must be observed or critical rights could be waived forever. Our Philadelphia Criminal Defense Lawyers have successfully represented clients in PCRA Petitions and direct appeals to the Superior Court. We offer a free, 15-minute criminal defense strategy session to anyone who is considering appealing a wrongful conviction or filing a Post-Conviction Relief Act Petition. Call 267-225-2545 to speak with one of our award-winning defense attorneys today.