Does a Person Have a Right to a Preliminary Hearing in Pennsylvania?

Posted by Joseph D. Lento | Jul 19, 2017 | 0 Comments

Because a preliminary hearing is such an important court proceeding in Pennsylvania, and can determine the ultimate outcome of a criminal case, a question that should be answered is, "Do I have a right to a preliminary hearing in Pennsylvania?"

A Person Charged with a Crime in Pennsylvania is Entitled to a Preliminary Hearing in Many, but Not All Instances

The unfortunate answer is that a person charged with a crime in Pennsylvania does not have a federal or state constitutional right to a preliminary hearing.  Under Rule 540 and 542 of the Pennsylvania Rules of Criminal Procedure, however, a defendant is entitled to a preliminary hearing before the Commonwealth of Pennsylvania may file an "information" against the defendant.

What is an "information" in Pennsylvania criminal law?

An "information" is a formal written accusation of an offense made by the attorney for the Commonwealth of Pennsylvania (the District Attorney of the applicable Pennsylvania County for example) upon which a defendant may be tried for the crime or crimes charged.  An information replaces an "indictment" in Pennsylvania Counties in which the indicting grand jury has been abolished (Philadelphia for example).

Under exceptional circumstances only, when the attorney for the Commonwealth of Pennsylvania certifies to the Court of Common Pleas of the applicable Pennsylvania County that a preliminary hearing cannot be held for "good cause," the Court may grant leave for the Commonwealth to file an information without a preliminary hearing.

What will be considered "good cause?"

Although every defendant's case is unique, good cause was shown in the case of Commonwealth v. Cassidy, 423 Pa.Super. 1, 620 A.2d 9 (1993), when the Commonwealth of Pennsylvania explained the complexity of the case and the expenses that would be incurred for a hearing that would merely reiterate the "prima face" case which had been made more than adequately in the grand jury presentment.

The case of Commonwealth v. Boyle, 470 Pa. 343, 368 A.2d 661 (1977), held that it is within the sound discretion of the trial judge whether to grant leave to proceed without a preliminary hearing, and failure to obtain leave to do so will require reversal of any subsequent conviction.  In addition, the case of Commonwealth v. Wasserman, 446 Pa. 430, 353 A.2d 430 (1976), held that the Commonwealth must move forward with a matter expeditiously, for the Commonwealth may not without good cause delay enlisting the Court's authorization until the expiration of the statute of limitations is imminent. 

Is a fugitive from justice entitled to a preliminary hearing in Pennsylvania?

When a person charged with criminal offenses in Pennsylvania is a fugitive from justice, the Commonwealth of Pennsylvania has been deemed to be justified to proceed with its prosecution against the person charged without a preliminary hearing having to be held.

If I miss my preliminary hearing, can it take place without me?

When a person charged with a crime fails to appear for a preliminary hearing without "good cause," and the issuing authority (usually a judge; see below) determines that the defendant received notice, the defendant will be considered to have waived his or her right to be present at any further proceedings before the issuing authority.  If defendant is thereafter arrested or appears voluntarily, the defendant's "waiver" is no longer in effect.

Which kind of judge will preside over my preliminary hearing?

In Philadelphia criminal cases, a judge sitting in the Criminal Division of Philadelphia Municipal Court in Philadelphia criminal cases will preside over a defendant's preliminary hearing.  In criminal cases which take place in the Pennsylvania Counties, a magisterial district judge, or in limited instances, a court of common pleas judge will preside over a defendant's preliminary hearing.

Once a defendant fails to appear, the issuing authority proceeds in the same manner as though the defendant was present.  The decision about how to proceed is left to the issuing authority, who may conduct the preliminary hearing, hold the preliminary hearing for the purpose of taking testimony of the witnesses who are present and then continue the hearing to a later date.  When a preliminary hearing is continued, the issuing authority must send the required notice of the continuance to the defendant, even though the defendant failed to appear at the initial proceeding.

When the defendant's case is "held for court" or the preliminary hearing is continued, the issuing authority must issue a warrant for the defendant.  If the preliminary hearing proceeds "in absentia" (is held in the defendant's absence) and the case is dismissed, a warrant will not be issued.

Is a preliminary hearing required in juvenile cases in Pennsylvania?

In Pennsylvania, juvenile delinquency proceedings have different rules than adult criminal court proceedings.  This is due in part because Pennsylvania juvenile courts are guided by different principles than adult criminal courts.  Whereas the goal of juvenile court is for the treatment, supervision, and rehabilitation of the juvenile offender, adult criminal court does not generally concern itself with such constructive principles - Punishment is often a primary concern when an adult is convicted of a crime.  Because Pennsylvania juvenile court has different rules and principles, it may not be a surprise that the rules regarding whether a juvenile defendant is entitled to a preliminary hearing are different than those of adult criminal court.

Preliminary hearings are in fact not required when a juvenile has been transferred for prosecution as an adult since, under the Pennsylvania Juvenile Act (codified as 42 Pa.C.S.A. § 6355), the juvenile transfer hearing acts as a preliminary hearing.

What is a juvenile transfer hearing?  What is a "certification" hearing? 

The juvenile transfer hearing is, as its name implies, the hearing that transfers the juvenile case to adult criminal court.  In Philadelphia, this hearing is known as a "certification" hearing.  When a juvenile is transferred from adult court to juvenile court in Philadelphia, the juvenile is "decertified."

Does Philadelphia Municipal Court have any special rules regarding preliminary hearings?

In Philadelphia Municipal Court cases, the municipal court proceedings serve as the preliminary hearing when case is appealed for a "de novo" trial in the Philadelphia Court of Common Pleas.

What is a "de novo" appeal in Philadelphia Municipal Court?

In a de novo appeal, the defendant will receive a brand new trial in the Philadelphia Court of Common Pleas - Criminal Division and the defendant will have the right to a jury trial.  Since it is a brand new trial, the defendant can be found guilty or not guilty. ("de novo" is from the Latin, meaning “from the new" - when a court hears a case de novo, it is deciding the issues without reference to the legal conclusions or assumptions made by the previous court to hear the case). 

If the defendant is found guilty, the defendant can receive the same sentence, a lesser sentence, or a greater sentence than the defendant received at the Philadelphia Municipal Court trial. 

Special Preliminary Hearing Rules Involving Cases of Sudden or Violent Death

Although rarely invoked, in case of sudden or violent death in Pennsylvania, a coroner's inquest (an inquiry to ascertain the facts relating to the incident) may take the place of a preliminary hearing, and the coroner or a properly authorized designee may act as the committing magistrate or issuing authority.  At the coroner's inquest, the Commonwealth of Pennsylvania must make a prima facie showing that a crime has been committed and that the accused is the person who committed it before the case may be sent to court. 

When acting as an issuing authority an the inquest, the coroner determines whether the Commonwealth of Pennsylvania produced evidence that, if accepted as true, would allow a trial court to allow the case to go to a jury.

What remedy is available if my right to a preliminary hearing has been denied?

When no preliminary hearing has been held and none of the recognized exceptions to the holding of a preliminary hearing exist, the proper remedy is to quash (nullify, void, or declare invalid) the information.  Not every denial or abridgement of a defendant's right to a preliminary hearing warrants reversal and discharge after an otherwise fair trial and conviction however.  That is because when the "equivalent" of a preliminary hearing has been held, the denial of a formal preliminary hearing may be deemed harmless error.

To be granted relief, a defendant must demonstrate not only the denial or abridgement of the preliminary hearing, but also "actual prejudice."  Because an important function of a preliminary hearing is to protect an individual from unlawful detention and coercive interrogation, detention would be one form of prejudice to the defendant.  Demonstrating "actual prejudice" is a difficult standard to meet however.

In one Pennsylvania case in which the defendant sought relief for the denial of his right to a preliminary hearing, a defendant was released on bail pending commencement of trial the following day.  No prejudice was found, however, despite the fact that bail is clearly a restraint on liberty.  In another Pennsylvania case, the defendant was not able to establish prejudice from the denial of a preliminary hearing by merely asserting that, had a preliminary hearing been held, the defendant would have been able to present an unspecified witness to present unspecified impeachment testimony (the process of calling into question the credibility of an individual testifying).

If a prima facie case is held on one criminal offense, an information may not be presented for a separate, noncognate (unrelated) offense. (A prima facie case will be established when there is sufficient cause to continue to trial.)  Under Pennsylvania law, a preliminary hearing is not only a prerequisite to an information, but the requirement for a preliminary hearing also applies separately to each criminal charge.  Implicit in this principle is the requirement that the defendant must have been held for court at the preliminary hearing as to each criminal charge on which the information is based.  If the defendant has not been held for court as to each criminal charge, the proper remedy is to quash the counts in the information for which a prima facie case was not established. 

In one Pennsylvania case for example, a defendant who was held for court on Possession of a Controlled Substance should not have been indicted and convicted on the charges of Possession and Manufacture of a Controlled Substance.  The defendant was entitled to have the count charging Manufacturing of a Controlled Substance quashed.

These rules are no so straightforward however - If the prosecutor believes, however, that a higher grade offense, cognate (related) to the one referred to by the issuing authority, is properly chargeable against a defendant, the information may be properly drawn.

Philadelphia Preliminary Hearing Attorney | Lawyer for Preliminary Hearing in Pennsylvania

When faced with criminal charges, it is critical to take the necessary steps as early as possible to secure the best possible outcome.  Because a preliminary hearing is one of the earliest court proceedings a defendant will face, the defendant must protect their rights and ensure their interests are represented. 

If you or a loved one has been arrested and charged with a crime in Pennsylvania, including, but not limited to Philadelphia, Bucks, Chester, Delaware, Montgomery, Berks, Lancaster, Lehigh, or Northampton County, contact attorney Joseph D. Lento today

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Attorney Joseph D. Lento passionately fights for the futures of his clients in criminal courtrooms in Philadelphia and across Pennsylvania as well as in New Jersey and nationwide. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. With unparalleled experience occupying several roles in the criminal justice system outside of being an attorney, Joseph D. Lento can give you valuable behind-the-scenes insight as to what is happening during all phases of the legal process. Joseph D. Lento is licensed in Pennsylvania, New Jersey, and New York, and is admitted pro hac vice as needed nationwide. In the courtroom and in life, attorney Joseph D. Lento stands up when the bell rings!


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Attorney Joseph D. Lento has more than a decade of experience successfully resolving clients' criminal charges in Philadelphia and the Pennsylvania counties. If you are having any uncertainties about what the future may hold for you or a loved one, contact the Lento Law Firm today! Criminal defense attorney Joseph D. Lento will go above and beyond the needs of any client, and will fight until the final bell rings.

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