PA Criminal Appeals FAQ

The criminal appeals process in Pennsylvania can be lengthy and overwhelming. Below are some of the most common questions and answers related to criminal appeals.

How Do I File a Criminal Appeal in PA?

Every defendant has the right to file an appeal in Pennsylvania. After you're convicted, you have 10 days to file a motion with the trial court. Once the court receives the motion, you then have 30 days to file a motion of appeal. The Pennsylvania Courts' appeals deadlines are strict, and submitting the required documents late will prevent you from seeking your appeal. The best way to start a criminal appeal in Pennsylvania is to let your criminal defense lawyer handle the process for you.

How Do Criminal Appeals Work in PA?

The criminal appeals process in Pennsylvania involves four steps. Keep in mind that an appeal is not an automatic retrial. You can't submit new evidence or question new witnesses. The purpose of the appellate court is to take a closer look at the original trial. The appellate court determines if the evidence supports your verdict or if the lower court made a mistake that affected your rights.

Step One: Filing a Motion

After conviction, your first step in the appeals process is filing a motion with the court that tried you. The motion challenges the court record, calling the legality of the case into question. The court can take up to 120 days to respond to a motion. The judge usually doesn't overturn a ruling because of a motion and will issue a written opinion as a response to your motion. This opinion is a 1925(b) Opinion.

Step Two: Submitting a Notice of Appeal

After you receive the trial court judge's written opinion, you have 30 days to submit a formal notice of appeal to the trial court. The trial court will transfer your appeal to an appellate court. You must then file a few more documents, including an appellant brief and a Statement of Errors Complained of on Appeal.

Step Three: Sending the Appellate Brief

Your appeals attorney can prepare your brief, a document containing the legal arguments challenging your trial. The appellate court has 30 days to respond with their own brief. A panel of three judges will consider these briefs and the record of the court trial. At this phase, you cannot enter new evidence or question witnesses.

Step Four: Appeal Judges' Opinions

Each of the three judges will then write an opinion on your case, and when they disagree, the majority wins. The opinions of these appeal judges are usually the final step in most Pennsylvania appeals cases.

Do I Have Grounds for a Criminal Appeal in PA?

You should appeal your criminal conviction if you feel that your case was not handled correctly and the mistakes caused you to lose your trial. An appeal doesn't challenge a jury's decision; it challenges the legal aspects of your trial.

It's important to establish proper grounds for your appeal because the appellate court will consider your appeal from this basis. The action the court takes if you win your appeal will be directly related to your claims. If your only claim is that the jury came to the wrong decision, you will not be as likely to win your appeal. An experienced criminal defense lawyer can help you determine what proper grounds for an appeal are, including some of the following:

  • The judge excluded evidence that would've helped your case
  • The judge didn't consider critical information
  • The prosecution made arguments that were against the rules of evidence
  • The prosecution's witnesses lied under oath
  • Your sentence is inappropriate or excessive
  • The jury didn't receive clear instructions from the judge

How Long Do I Have to File a Criminal Appeal in PA?

From the date of sentencing, you have 10 days to file a motion requesting an appeal with the trial court. Once the trial court receives your motion, you then have 30 days to submit a notice of appeal. If you want to appeal your criminal conviction in Pennsylvania, don't wait because the deadlines pass very quickly.

It's also important to understand that you cannot appeal until you are convicted. If you're charged with a crime, you cannot yet start seeking an appeal.

What Is a Direct Appeal in PA?

There are two types of criminal appeals in Pennsylvania. One is a direct appeal, and the other is a collateral appeal. The direct appeal process is usually the first option that defendants pursue. A direct appeal follows the criminal appeals process outlined above.

Typically, a direct appeal asks for something specific from the appellate court. You could request a new trial, a dismissal of the charges against you, or a resentencing. Again, a direct appeal does not challenge the facts of the case. A direct appeal goes to the Superior Court first. If you don't like the opinions you received, you might have a chance to take your appeal to the Pennsylvania Supreme Court and then the U.S. Supreme Court.

How Long Does a Criminal Appeal Take in PA?

The length of a criminal appeals process depends on each case. You and the courts must meet certain deadlines. Much of it comes down to how quickly the attorneys and trial judge involved can work. On average, an appeal can take a year, sometimes more. Appeals attorneys can request extensions, and the trial judge can take a long time to write the 1925(b) Opinion in response to your motion. These actions could make the appeal take a few years. If all the parties involved in the appeal process move quickly, however, the criminal appeal could take less than one year.

What Is the PCRA Process and How Does it Work?

If your direct appeal was unsuccessful, your next option might be a PCRA petition. Pennsylvania's Post Conviction Relief Act (PCRA) gives you the right to challenge your conviction on constitutional or statutory grounds. A PCRA petition is not an appeal and, if successful, may grant you a new trial.

Step One: Sending the PCRA petition

Generally, you have one year following your appeal decision to file a PCRA petition. Your attorney can send the petition to the Commonwealth of Pennsylvania on your behalf. The Commonwealth then has 30 days to respond, and they usually come back with a motion dismiss your PCRA petition.

Step Two: Filing a brief

After receiving the motion to dismiss, your attorney then files a brief, containing legal arguments as to why you should be entitled to relief.

Step Three: The court's decision

One the judge receives your brief, they will either issue a 907 notice to dismiss the petition or grant you a hearing. If the court wants to dismiss your PCRA petition, you have 20 days to contest, or 30 days to appeal if the petition has already been dismissed. If the court grants you a hearing, they will schedule a date for you. At the hearing, you can have witnesses and evidence. The point of the hearing is to earn you a new trial for your previous conviction.

How long does a PCRA petition take?

How long your PCRA petition takes depends on the Pennsylvania courts you're dealing with. Some counties work quickly, taking only a few months, others take one year or more.

When Would I File a Habeas Corpus Petition?

In some situations, you may be able to file a habeas corpus petition if you have exhausted all other appeal options. A habeas corpus petition challenges the legality of a Pennsylvania prisoner's confinement. When you file for habeas corpus, you petition Pennsylvania for the right to present yourself and your case before federal court.

You must meet certain requirements to file a petition for habeas corpus in Pennsylvania:

  • You must be convicted of a crime and serving your sentence in Pennsylvania
  • It must be your first habeas corpus petition
  • The petition must be filed within 180 days of the Pennsylvania Supreme Court's final decision
  • You can only challenge one conviction

A habeas corpus petition must state how your rights have been violated under federal law. You should rely on the services of a criminal defense attorney to file a habeas corpus petition on your behalf, as it increases your chances of a favorable outcome.

How Much Does a Criminal Appeal Cost in PA?

Pursuing a criminal appeal can be costly. Aside from attorney's fees, the courts will also ask for fees for certain documents you file. Keep in mind that an attorney's work for an appeal differs from trial work. An appeal involves a great deal more research and writing than trial preparation. If you're curious about the costs of a criminal appeal, consult with your attorney to find out what they're spending their time on.

What Are Pennsylvania's Courts of Appeal?

Pennsylvania has three courts of appeal. They are the Superior Court, the Commonwealth Court, and the Supreme Court.

  • Superior Court: Hears criminal and civil cases that went to trial in the Courts of Common Pleas
  • Commonwealth Court: Hears cases that involve the Commonwealth of Pennsylvania or interpretation of state statute
  • Supreme Court: Accepts cases from Superior Court and Commonwealth Court, only after a party files a Petition for Allowance of Appeal

What Does the Court Consider During an Appeal?

Appellate courts usually reverse an error of law rather than an error of fact. These courts consider if the trial court made a mistake concerning evidence, the jury, or prosecuting parties' conduct.

Legal errors that could be appealed for example:

  • Suppression of statement: A statement you made to law enforcement was used as evidence even though it violated your Miranda rights.
  • Suppression of evidence: The trial court denied your motion to suppress a piece of evidence, so the appeal court might overturn it and give you a new trial.
  • Excessive sentence: Your sentence was disproportionate to the crime you were convicted for.

How Do I Appeal a DUI Conviction in PA?

Pennsylvania takes Driving Under the Influence (DUI) seriously. If convicted, the penalties range from six months' probation and a $300 fine to five years in prison and a $10,000 fine. Wanting to appeal, whether you're a first-time offender or a subsequent offender, is understandable.

If you're found guilty of your DUI charge, you can appeal it like any other criminal conviction. You must send your notice to appeal within 30 days. When your DUI case passes to Superior Court, your attorney must file a brief, stating legal errors that the trial court made the type of relief you're seeking.

The prosecution has 30 days to respond, by submitting their own brief. Once the appellate court has all the briefs, it will hear oral arguments, and a panel of judges will come to a decision on your appeal. You can't introduce new evidence for oral arguments.

How Do I Appeal Marijuana a Conviction?

Although recreational marijuana use has become popular in Pennsylvania, the Commonwealth still outlaws it. In most parts of Pennsylvania, possessing or selling marijuana is a criminal offense, with the exception of Philadelphia and a few other cities that have made it a civil offense instead. If you're charged with a marijuana offense and convicted, you have the possibility to appeal, as you do with all criminal convictions in Pennsylvania.

The Board of Pardons has introduced a new program, however, that would pardon and expunge some non-violent criminal convictions related to marijuana. With this expedited review, those convicted of possessing small amounts of marijuana, drug paraphernalia and those with a felony conviction can apply for a pardon from the Governor. A pardon forgives your offense as if it never happened. It's expunged from your record, wiping your slate clean.

Can I Appeal a Conviction for a Violent Crime?

You have the right to appeal any criminal conviction in Pennsylvania, whether the crime was violent or non-violent. Like all criminal appeals cases, you're more likely to have a successful appeal if you argue your trial contained errors, rather than the judge or jury made the wrong decision.

The result of your appeal will depend on what you ask for—a retrial, a conviction reversal, a new sentencing hearing, etc. The circumstances of your case will determine the nature of your appeal (if you succeed at appealing).

What's the Difference Between Trial by Judge and Trial by Jury?

When your criminal case goes to trial, you usually have the choice between a jury trial and a bench trial. Anyone accused of a crime in Pennsylvania has the Constitutional right to a trial by jury. If you have a jury at your trial, there will be a group of 12 people plus two alternates who listen to the trial and deliberate on your sentence. In any trial, the judge is always in charge of issues of law and the jury, if there is one, decides issues of fact.

A bench trial is a trial by a judge. The judge presides over the trial and gives you your verdict, taking charge of issues of fact and of law. A bench trial usually proceeds faster than a trial by jury since the attorneys don't have to take the time to select jurors. A trial by judge is advantageous if your defense is related to a technical matter of the law that non-lawyers or non-legal professionals wouldn't understand. No matter which type of trial you have, you can appeal the conviction.

What Are the Levels of Criminal Offenses in PA?

Crimes in Pennsylvania are split into three categories: summary offense, misdemeanor, and felony. Felonies are further split into first-degree, second-degree, and third-degree, with murder in its own felony category. If you're convicted of a felony, the judge can use their discretion in determining your sentence, as long as they don't go over the maximum sentence set by the state.

A first-degree felony carries a maximum sentence of 20 years, second-degree is 10 years, and third-degree is seven years. Some crimes, like rape, have fixed sentencing terms. Other factors, like aggravated assault, if the crime was violent or non-violent, and a prior criminal record can change the severity of your sentence. In some cases, you may receive an alternative sentence to prison, such as probation, drug treatment, partial confinement, or a fine.

Can I Appeal a PA Criminal Conviction if I'm An Out of State Offender?

If you were visiting Pennsylvania and arrested and charged with a crime, your case must be resolved in Pennsylvania, even if you live out-of-state. Common offenses that visitors and tourists are charged with include drug charges, DUI, marijuana charges, property and theft offenses, or sex crimes. In many situations, visitors to Pennsylvania face criminal charges because they are unfamiliar with local laws.

If you don't attempt to resolve your criminal case in Pennsylvania, you could face penalties, a criminal record, or multiple court appearances. If you stand trial and are convicted, you still have the option to appeal. The appeals process will take place in Pennsylvania as well, with your case moving from the trial court to the Superior Court.

How Do I Appeal a Firearms Conviction in PA?

In Pennsylvania, it is illegal to possess or use certain weapons. You could be charged with a criminal offense for carrying weapons without a lawful purpose or without a license. If convicted, you may lose your right to carry firearms at all.

Appealing firearms convictions differs from other criminal appeals processes. Many defendants wonder about appealing a firearms conviction because they'd like to restore their firearm rights in Pennsylvania. To fully restore your firearm rights, however, you must have your conviction expunged. If you were convicted of a felony that caused the loss of your firearm rights, then you must seek a pardon to overturn the conviction. An experienced criminal defense and criminal appeals attorney can help you determine how to proceed in restoring your firearms rights if they've been taken away.

Will My Appeal Succeed?

The success of an appeal depends on the details of your case. It also depends on your criminal appeals attorney and how effectively they make a case for your appeal. For appeals that question the legal merits of the trial decision, more than half affirm or uphold the decision of the trial court. Only about 10% of appellate courts tend to reverse or modify the trial court decision.

Although you have the right to pursue an appeal for any criminal conviction in Pennsylvania, always keep in mind that your appeal might not be successful. You shouldn't necessarily consider the appeal as a “fallback” option, and should focus on defending yourself as effectively as possible during your trial. Hiring an experienced defense attorney who will fight for you and exercise all options is a smarter move than relying solely on an appeal. The best way to handle your criminal charge is to choose an attorney who's well-versed in both criminal defense and criminal appeals.

Can I Appeal to the Federal Courts for a Crime in PA?

If you don't feel that the Commonwealth of Pennsylvania afforded you your minimally guaranteed constitutional rights, you can file a petition for habeas corpus in federal court. Doing so allows a court that is not bound by Pennsylvania procedure to review your case. Even if your conviction and sentence were carried out in Pennsylvania, according to Pennsylvania laws, a federal court has the authority to override the Commonwealth's decision.

Filing a habeas corpus petition doesn't guarantee that federal judges will review your case. Also, if you're contesting the Pennsylvania Constitution, you cannot file a habeas corpus petition. The federal court may accept your petition and review your case if the state court's decision contradicted federal law, or if the state court's decision was unreasonable related to the facts or evidence. You must also have already tried a direct appeal with the Superior Court in Pennsylvania, petitioned for review from the Pennsylvania Supreme Court, and filed a PCRA petition.

What Happens with My Appeal if I'm a First Time Offender in PA?

If you're a first-time offender convicted of a crime in Pennsylvania, you're likely feeling overwhelmed and intimidated. Having no prior criminal record may be an advantage for you in some cases, as judges take prior offenses into account when sentencing.

Keep in mind that if you pleaded guilty in your case, you cannot appeal the verdict. Appeals only address convictions, not pleas. To change your guilty plea, you must make a motion to withdraw your plea. If you're a first-time offender who's been convicted, you can appeal, however. Pennsylvania also has a program for first-time offenders called the Accelerated Rehabilitative Disposition (ARD) program, which you might be eligible for as well.

How Do I Appeal a Conviction for Property Theft Offenses?

Property crimes and theft are a wide category of offenses, ranging from petty theft and trespassing to identity theft and arson. If convicted, you could face a summary charge and 90 days in jail or a first-degree felony and 20 years in jail. Considering how severe these penalties are, you should always consider appealing if you have a property crime or theft conviction.

To appeal a conviction for property theft, you must submit a notice for appeal within 30 days of your conviction. The trial court judge will respond to your notice within 120 days, and your case will move to the appellate court. Navigating the Pennsylvania criminal appeals process is difficult without the assistance of a defense and appeals lawyer. If you want to fight your property crime or theft conviction, you'll need an experienced attorney by your side.

Can I Still Appeal if I'm a Juvenile?

If you're a juvenile found guilty of a criminal offense in Pennsylvania, you'll have an adjudication, the juvenile court version of a conviction. Adjudication doesn't always result in prison time, as the focus of the juvenile criminal justice system in Pennsylvania isn't punishment but rehabilitation. You'll receive your sentence at a disposition hearing.

As a juvenile, you can appeal the court's delinquency adjudication or disposition hearing decision. You have 30 days to file your appeal after the date of the final disposition hearing. The appeals process works in the same way for juveniles as it does for adults. Your case goes to an appellate court where your attorney and the court's attorney file briefs concerning the possible legal errors of the delinquency adjudication court, and a panel of judges issues a decision.

What Happens if You Win an Appeal?

Winning an appeal doesn't necessarily overturn your conviction. What happens after a successful appeal depends on the legal issues your appeal request addressed. Keep in mind that the prosecutor also has the right to appeal if you win. They can try to take your case to a higher court for a new ruling.

If the appellate court reverses the trial court's decision, you can have a new trial. It doesn't wipe away your criminal charges, but it does give you a second chance at your trial. The appellate court might also rule that the trial court entered evidence that should not have been used, and if the prosecutor decides they cannot win the case without that particular evidence, they may dismiss your case.

Another possible result of an appeal is a plea bargain. The prosecutor might offer you a lesser sentence if you agree to plead guilty, or dismiss other charges if you plead guilty to just one.

Keep in mind that even you're granted a retrial after winning an appeal, it's possible the retrial will result in a harsher sentence than your previous one. If your original trial was by judge, the judge in your retrial cannot give you a harsher sentence. If the original trial was by jury, however, the new jury or judge can give you a more severe sentence.

Can Your Appeal Be Denied in PA?

It's possible Superior Court will deny your direct appeal. You can then file a petition for allowance of appeal with the next highest court, the Pennsylvania Supreme Court. The Supreme Court has discretionary review, however. The court doesn't have to accept your appeals case, and only accepts a small percentage of cases to hear each year. If your appeal case isn't of significant importance, there's a chance the Pennsylvania Supreme Court won't accept it.

If the Pennsylvania Supreme Court denies the appeal or refuses to hear it, you have 90 days to file a petition with the U.S. Supreme Court.

Your conviction becomes final in the following situations:

  • When the U.S. Supreme Court denies your petition
  • 90 days after the Pennsylvania Supreme Court denies your petition for allowance of appeal (if you don't file with the U.S. Supreme Court before the 90 days are up)
  • 30 days after the appellate court in Pennsylvania denies your appeal (if you don't file allowance of appeal with the Pennsylvania Supreme Court before the 30 days up)

What Is the Accelerated Rehabilitative Disposition Program?

The ARD program allows first-time offenders to complete treatment and rehabilitation rather than proceed with their trial. The purpose of the program is to free up resources in the criminal justice system and prevent a repeat offense. Expunging the charges against first-time, non-violent offenders through a rehabilitative supervision program is speedier than letting the case go to trial.

To qualify, you must have no prior criminal record and your first offense must be non-violent. You also cannot have gone through the ARD program already. Most of the defendants admitted into the ARD program have DUI charges.

Joseph D. Lento and his team at the Lento Law Firm are experienced criminal defense and appeals attorneys who can help you navigate the appeals process. If you want to appeal your criminal conviction or explore your post-conviction relief options, contact the Lento Law Firm today by calling 888-535-3686 or filling out our online form.

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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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