Matters of the heart and/or familial relationships can be a source of great happiness, but can also be a source of great trouble.  Unfortunately, it is all too common for family members and loves ones to have problems develop in their relationships; regardless of whether these relationships are between family members or are romantic in nature.  Such problems can lead to the involvement of the police, and being charged with a domestic violence offense in Philadelphia carries severe potential consequences. 

Understanding how domestic violence cases in Philadelphia are addressed by the Philadelphia court system and the Philadelphia District Attorney's Office is critical to achieving the best possible outcome when faced with the burden of having to defend against such charges.

Where are Philadelphia domestic violence cases prosecuted?

Currently, felony domestic abuse cases listed for preliminary hearings and misdemeanor domestic abuse cases listed for trial are heard daily in courtroom 906, and on Mondays and Thursdays in room 403.  Both courtroom 906 and 403 are located in the Philadelphia Criminal Justice Center (also known as the "CJC," located at 1301 Filbert Street, Philadelphia, PA 19107. 

In many domestic abuse cases, the defendant is charged with criminal contempt for violating a previously-issue protection from abuse (PFA) order. If the contempt is charged along with a felony, then the case will stay in 906/403 for a preliminary hearing.  If the contempt is charged with misdemeanor offenses only, and all the charges will not be heard in room 906/403, but rather, in the Criminal Division of Philadelphia Family Court in the applicable courtroom on a Tuesday or Thursday.  Philadelphia Family Court is located at 1501 Arch Street, Philadelphia, PA 19102. 

Domestic abuse cases are properly considered serious and sensitive by Philadelphia Municipal Court judges in room 906/403 since the charges often involve violence. Domestic abuse cases deal with human and family relationships implicating a wide range of emotional and social service/mental health problems.  Because of the complex nature of domestic abuse cases, an effective defense attorney must be not only a strong advocate, but in many instances, must also be a "social worker" and "problem solver" to help achieve the best possible outcome.  

What follows is a check list of issues/considerations for a defendant and the defendant's attorney for domestic abuse cases listed in room 906/403 of the Criminal Justice Center.

Is the domestic violence case property listed in courtroom 906/403?

Cases are listed into Philadelphia Domestic Abuse Court from preliminary arraignment at a time when the police and Philadelphia District attorneys office may have incomplete or in accurate information about the relationship between the complainant and the defendant.  (The "police" involved with a domestic violence arrest in Philadelphia will most often be the Philadelphia Police Department, but may also be the Pennsylvania State Police in limited instances.) 

Often, upon full development of the facts, the case is not a true domestic abuse case, but one between neighbors or mere acquaintances who happen to be a man and woman. If the case is not a true domestic abuse case (i.e.: between a husband/wife, parent/child, boyfriend/girlfriend, and so forth), then the case should be given a regular Philadelphia Municipal Court listing not in Domestic Abuse Court.

How does a defendant get discovery in a domestic abuse case?

Unlike regular Philadelphia Municipal Court cases which are generally first listed in room 404 of the Criminal Justice Center, Philadelphia domestic abuse cases do not have a dedicated courtroom or listing to obtain discovery.  Therefore, for misdemeanor cases, the first listing in 906/403 serves as an opportunity to obtain discovery in those cases which will be tried and not settled without a trial.

If the defense attorney is certain that the case will be tried and intends to be ready for trial at the first listing, then a formal written request for complete discovery should be made to the Philadelphia District Attorney's  Municipal Court unit in advance of trial.  As with any other case, an effective defense attorney cannot properly try a domestic abuse case without complete discovery prior to trial. For felony cases, discovery is not provided before the preliminary hearing, but rather, is provided after the case is "held for court" in accordance with the time limits and provisions of the discovery rules of the Pennsylvania Rules of Criminal Procedure.  (Per the Rules, discovery in felony domestic abuse cases will generally be available in full or at least in part at the time of the defendant's formal arraignment which is two weeks after a felony case is "held for court.")

Is there the possibility of discharge or status listings in misdemeanor domestic abuse cases in Philadelphia?

As noted above, domestic abuse cases charging only misdemeanor offenses are listed for trial in courtrooms 906 or 403. Before engaging in a trial and risking a conviction, an effective defense attorney should seriously explore with the Philadelphia District Attorney's Office whether the case can be settled by a mutually-agreed disposition short of trial and conviction.  To do so, the defendant's attorney will need to understand the current relationship of the parties, and the underlying social service/mental health/behavioral considerations which resulted in the allegations of criminal behavior.

To achieve a mutually-acceptable settlement, the defense attorney needs to offer a solution to these underlying problems. If the complainant does not wish to prosecute, the Philadelphia District Attorney's Office will often agree that the prosecution can be withdrawn. Also, a motion to discharge has a good chance of being granted if the complainant fails to appear without reason at a second or third listing or after a "Must be Tried order.

If the complainant in a misdemeanor or non-violent felony case appears and does not wish to prosecute on the condition that the defendant receives anger management or other social services, then the Philadelphia District Attorney's Office may recommend a status listing in the Domestic Violence ("DV") Diversion program.  The DV Diversion program has two separate programs - Tier 1 and Tier 2.  Per the DV Diversion program in general, if the defendant, after an evaluation, complies with treatment recommendations and has no further problem with the complainant, the case will be discharged in three to six months.  

Tier 1 of the DV Diversion program is generally recommended for "less serious" domestic violence cases, whereas Tier 2 of the DV Diversion program is reserved for "more serious" domestic violence cases and has more rigid conditions. For example, a Tier 2 participant would have to tender a "conditional" guilty plea to enter the program.  If the defendant is compliant with treatment and all other terms of the program, at the end of a six-month period, the defendant can withdraw his conditional guilty plea (with no objection from the Philadelphia District Attorney's Office if the defendant was compliant) and prosecution of the case would be withdrawn at that time.  One year after the case is withdrawn, the criminal record will be automatically expunged by the Court.

What happens if the defendant is in jail after being charged with domestic violence offenses in Philadelphia?

If the defendant is in jail in lieu of bail (which is often case in domestic abuse cases in Philadelphia because bail is regularly set high by the Court) and a prospective disposition via the DV Diversion program is agreed upon by the Philadelphia District Attorney's Office, the complainant, the defendant, and the defendant's attorney, the defendant's attorney should request that the defendant be permitted to "sign his own bail" so that the defendant may comply with the DV Diversion program conditions.

If the defendant is in jail with a violation of probation/parole (VOP) detainer or on other open cases, then the DV Diversion program will generally not be offered as a prospective resolution to the domestic violence case.  In these cases, if the complainant does not want to prosecute, the defendant's attorney should seek a short status listing with a discharge if there are no further problems.

What are possible trial issues in misdemeanor domestic abuse cases?

Misdemeanor domestic abuse cases are often tried when the defendant wishes to plead "not guilty" and have a trial, or the case is otherwise incapable of disposition as suggested in the above section (titled, "Is there the possibility of discharge or status listings in misdemeanor domestic abuse cases in Philadelphia?")  In these cases, the theories of defense which an effective defense attorney must explore are: 1) self-defense; 2) credibility, including a complainant's motive to falsely accuse, embellish injuries suffered, or have bias against the defendant; 3) insufficient proof of any element of the crimes charged; 4) mutual flight (which reduces the grade of Simple Assault to a third degree misdemeanor; or 5) that the Commonwealth's evidence properly proved a lesser included offense (LIO) such as a summary grade Harassment. 

In domestic abuse cases where the defendant is a woman, then, in addition to the theories mentioned above, the defendant's attorney should consider the "Battered Woman's Syndrome" (see below section titled, "What is 'Battered Woman's Syndrome' and how does it relate to Philadelphia domestic violence cases?).

What happens at a felony domestic abuse preliminary hearing?

In felony cases, particularly non-violent felonies, although approval of the Philadelphia District Attorney's Office is unlikely in most instances, the possibility of DV Diversion (as referenced above for misdemeanors) should generally also be explored. Since felony charges are more serious, the chance of avoiding a preliminary hearing, trial, and the possibility of conviction is less likely.

In some felony cases, however, if the defendant's attorney effectively negotiates with the Philadelphia District Attorney's Office, the District Attorney may be willing to withdraw the felony charge(s) in return for a negotiated guilty plea to a misdemeanor grade offense and a negotiated sentence of probation or "time served" conditioned upon the defendant's entrance into a rehabilitation or anger management program. This potential disposition should be seriously considered for a felony defendant since it will avoid a felony case being held for trial in Philadelphia Common Pleas Court with the possibility of a more severe sentence upon conviction.

The negotiated plea to a misdemeanor grade offense is even more desirable when the felony charge is a F1 Aggravated Assault or F1 Burglary which upon conviction could result in a first or second "strike" for defendants with a previous "strike" conviction) under the "Three Strikes" legislation.

For custody defendants where the negotiated misdemeanor plea is conditioned upon parole to an inpatient program, then a court referral under the Forensic Intensive Recovery (F.I.R.) program is required.  From the time of the F.I.R. referral to release into an inpatient program is currently taking 6 to12 weeks.

In felony cases which go to a preliminary hearing, the typical defense theories which need to be explored are referenced in the above section titled, "What are possible trial issues in misdemeanor domestic abuse cases?"

What is "Battered Woman's Syndrome" and how does it relate to Philadelphia domestic violence cases?

On occasion, a woman will be charged with Aggravated Assault and/or Simple Assault against a man with whom she has/had an intimate relationship. In addition to the typical defense theories mentioned for a male defendant, a female defendant's attorney in Philadelphia domestic violence cases should explore the "Battered Woman's Syndrome."  This will involve not only fully investigating the incident in question, but will also involve investigating the history of the relationship between the parties including prior complaints of abuse which the woman defendant may have filed. The leading appellate cases discussing the admissibility of "Battered Woman's Syndrome" evidence in Pennsylvania are:

• Commonwealth v. Stonehouse, 555 A.2d 772 (Pa. 1989)
• Commonwealth v. Miller, 634 A.2d 614 (Pa. Super 1993)

What are common evidentiary issues in Philadelphia domestic abuse cases?

Just as every relationship is unique, every domestic abuse case is also unique.  Although every domestic abuse case involves its own particular set of facts and circumstances, common evidentiary issues often arise. Such common evidentiary in Philadelphia domestic abuse cases include:

• The use of a complainant's prior inconsistent statement and substantive evidence at trial - Relevant Pennsylvania cases regarding this issue include: Commonwealth v. Lively, 610 A.2d 1117, Commonwealth v. Wilson, 707 A.2d 1114, and Commonwealth v. Chmiel, 738 A. 2d 406.

• Whether a complainant's statement about the domestic violence incident to a third party (usually a Philadelphia Police Officer) qualifies as an excited utterance exception to the hearsay rule - The relevant Pennsylvania case regarding this issue is Commonwealth v. Keys, 814 A.2d 1256.

• Whether a complainant's statement about the incident to a third party (usually a Philadelphia Police Officer) violates the defendant's constitutional right to confront and cross-examine the witnesses against him or her - Relevant United States Supreme Court cases regarding this issue include: Crawford v. Washington, 124 S. Ct. 1354 (2004), Davis v. Washington, 126 S. Ct. 2266 (U.S. 2006), and Hammon v. Indiana.

Can the defendant's attorney speak with the complainant in a domestic violence case?

As with every other kind of criminal case, the defense attorney has a right to speak with the complainant prior to trial or hearing. The complainant also has a right to speak with or not to speak the defense attorney. Due to the emotional and highly-charged nature of many domestic abuse cases, the defense attorney must be extra careful  when approaching a complainant to discuss a domestic violence case.  The defense attorney must always first identify themselves and their function as counsel for the defendant.

The defense attorney also must never directly or indirectly suggest or even intimate to a complainant that he or she should leave court, not come back to court, disobey a subpoena, or not testify. If the complainant does not wish to prosecute or testify, then this fact, when appropriate, can be brought to the attention of the Court and.or the Philadelphia District Attorney's Office.  The most effective discussions with complainants in domestic violence cases usually involve ascertaining the underlying social service problems and what the complainant believes are possible solutions.

Philadelphia Domestic Violence Attorney | Lawyer for Philadelphia Domestic Abuse Charges

If you or a loved one is facing domestic violence charges, or have questions or concerns as to how to best proceed, including whether a DV Diversion program is appropriate for the circumstances at hand, contact attorney Joseph D. Lento today.