After a person is arrested in Philadelphia, one of the first court proceedings that will take place, and also one of the most important, is the preliminary hearing if the person is charged with any felony offenses. Whether a person is a first-time offender or has a history of arrests and/or convictions, a preliminary hearing will be scheduled if the case involves a felony charge (or felonies). This will be the case regardless of the nature of the criminal case itself - A domestic violence, assault, drug, gun / firearm case can all involve felony charges, and generally will involve serious felony charges to boot. Even a DUI case in Philadelphia can involve felony charges at times.
Making an honest or unfortunate mistake, or just being at the wrong place at the wrong time in Philadelphia can cause severe complications for anyone; especially when a person is charged with felonies. The stakes can be even higher for defendants whose work and employment may be on the line because of an arrest, or college students who have their academic and professional careers to be concerned about. Whether the person charged lives an average life or has unique concerns, understanding what takes place at a Philadelphia preliminary hearing will help ease the burden of fighting the criminal charges.
What is a preliminary hearing in Philadelphia?
Preliminary hearings in Philadelphia are conducted for felony offenses only. If charges are "held for court," meaning that the prosecution has met its burden, a case is "bound over" to the Philadelphia Court of Common Pleas. If the felony charge(s) are dismissed, for lack of prosecution ("LOP") or lack of evidence ("LOE"), misdemeanors are "remanded" and tried before a Philadelphia Municipal Court judge.
What must the prosecution prove at a Philadelphia preliminary hearing?
The purpose of a preliminary hearing, in Philadelphia or anywhere throughout Pennsylvania, is narrow. The hearing is held to determine whether or not a criminal offense may have been committed and whether the person charged may have been involved in that crime. The burden of proof for the prosecution is very low. All that the prosecution must prove is a "prima facie" case (based on the first impression). in other words, to prove that it looks like a crime may have been committed by the person charged
It is important for defendants and their families to understand that a preliminary hearing, whether in Philadelphia or elsewhere in Pennsylvania, is not a trial. The judge will not find the person charged "Guilty" or "Not Guilty" at a Philadelphia preliminary hearing. The judge will only determine if there is sufficient evidence to hold a case for trial.
Where do preliminary hearings take place in Philadelphia?
All Philadelphia preliminary hearings take place at the Criminal Justice Center with the exception of criminal cases involving adult defendants against juvenile complainants. Preliminary hearing involving adult defendants and juvenile defendants take place at Philadelphia Family Court; many of these cases involve sexual offenses in Philadelphia. The Criminal Justice Center, also known as the "CJC," is located at 1301 Filbert Street, Philadelphia, PA 19102. Philadelphia Family Court is located at 1501 Arch Street, Philadelphia, PA 19102.
Who will preside over my preliminary hearing in Philadelphia?
All preliminary hearings in Philadelphia are presided over by a Philadelphia Municipal Court judge with the exception of preliminary hearings which take place at Philadelphia Family Court (and re-arrest preliminary hearing explained below). In criminal cases involving juvenile complainants, a Philadelphia Court of Common Pleas judge with cross-jurisdictional powers presides over the matter.
Can I be arrested again after my preliminary hearing in Philadelphia?
Unfortunately, yes. From time to time, the Philadelphia District Attorney's Office (known as the "Commonwealth" in criminal court proceedings; short for the "Commonwealth of Pennsylvania") may withdraw criminal charges on matters that have been remanded for lack of evidence on the felony charges, discharged for lack of evidence, or dismissed for lack of prosecution, and proceed to re-arrest the defendant.
The defendant's attorney will be notified by either the Philadelphia Detective Division which is to perform the re-arrest or the Philadelphia District Attorney's Office at which time the defendant and his or her attorney should make arrangements to have the defendant surrendered.
A re-arrest preliminary hearing in Philadelphia is held before a Court of Common Pleas judge. At a re-arrest preliminary hearing, the Philadelphia District Attorney's Office may proceed via transcript of the previous proceeding if there is no additional evidence to be placed on the record, or via live testimony where there is additional evidence to be presented.
What are the "rules" of Philadelphia preliminary hearings?
As of April 5, 2010, pursuant to Administrative Directive for Criminal Cases in the Municipal Court of Philadelphia, Judicial Administration No. 344, all preliminary hearings in the Municipal Court of Philadelphia shall have the first priority of cases for being heard on any given day.
A defense attorney is to attend preliminary hearings prior to attending any other proceedings in the First Judicial District of Pennsylvania (the judicial body governing the Philadelphia Court of Common Pleas and Municipal Court) or any other Pennsylvania judicial district or federal court. Exceptions to the directive are: 1) where the defendant's attorney has obtained a continuance from the presiding judge 48 hours in advance and has notified the Philadelphia District Attorney's Office; or 2) where the defendant's attorney is on trial in another proceeding in the First Judicial District or another judicial district in Pennsylvania or in federal court.
Preliminary hearings, like most other criminal cases in Philadelphia, are "zoned" by which geographic area of the city the criminal act took place:
- Cases involving the South Detective Division are heard on the 5th floor of the Criminal Justice Center
- Cases involving the East Detective Division are heard on the 6th floor of the Criminal Justice Center
- Cases involving the Southwest Detective Division are heard on the 7th floor of the Criminal Justice Center
- Cases involving the Northwest Detective Division are heard on the 8th floor of the Criminal Justice Center
- Cases involving the Central Detective Division are heard on the 9th floor of the Criminal Justice Center
- Cases involving the Northeast Detective Division are heard on the 10th floor of the Criminal Justice Center
The Philadelphia Police Districts in each Detective Division Bureau are as follows:
- South: 12th, 16th, 18th, 19, 77th, and 92nd
- East: 24th, 25th, and 26th
- Southwest: 5th, 14th, 35th, and 39th
- Northwest: 2nd, 7th, 8th, and 15th
- Central: 6th, 9th, 22nd, and 23rd
- Northeast: 1st, 3rd, 4th, and 17th
Can a preliminary hearing be continued in Philadelphia?
Continuances must be addressed to the presiding judge in the courtroom in question. A defense attorney (or the general public) can access that information at www.courts.phila.gov under "Court news" View judicial schedules. Continuances should, if possible, be made 48 hours in advance. In emergency situations, a defense attorney may call the courtroom on the day of the hearing to make a continuance request.
In requesting a continuance of a preliminary hearing in advance, the defendant's attorney should email or fax the applicable zone Division Chief of the Philadelphia District Attorney's Office. A continuance request must include the defendant's name, the case number, and the next court date with the courtroom number. The subject line of an email must include "Continuance Request."
How long after my arrest in Philadelphia will my preliminary hearing be scheduled?
Preliminary hearing are conducted 14 to 21 days after arrest. A defendant's criminal file is sent to the proper division courtrooms for the preliminary hearing based on the "DC" number (the Philadelphia Police district control number) or are sent to the Philadelphia specialized diversionary courtrooms (for example, cases involving domestic abuse / domestic violence charges, gun / firearm cases, and drug cases involving multiple defendants).
What should I expect on the day of my preliminary hearing?
A defendant's preliminary hearing may be conducted in a preliminary hearing room or a "hybrid" room of the Criminal Justice Center (except in cases involving adult defendants and juvenile victims as explained above). Standard preliminary hearing courtrooms generally open at 8 AM with cases starting at 8:30 AM. Most CJC courtrooms ending in "03" have a start time of 8 AM.
Preliminary hearings for domestic violence cases in Philadelphia will be scheduled for what is informally known as "Love Court." These cases are heard in courtroom 906 of the Criminal Justice Center. Preliminary hearings in domestic violence court start at 10:30 AM. The courtroom itself will generally open at 10 AM.
If a defendant or his or her family is not certain what time his or her preliminary hearing starts in Philadelphia, the criminal docket can be checked at https://ujsportal.pacourts.us/DocketSheets/MC.aspx
Is discovery available at the time of my preliminary hearing in Philadelphia?
Discovery in a Philadelphia criminal case generally encompasses the applicable Philadelphia Police Department reports (including the "48" and "49"), witness statements, photographs and video when applicable, any statements made by the defendant either at the time of his or her arrest, or at anytime relevant to the matter, and so forth.
Historically, discovery has not been available has not been available to defense attorneys prior to the defendant's preliminary hearing. Efforts have been made to provide (limited) discovery at the earliest time in the course of the proceedings with the goal of expediting the flow of case traffic through the system, to provide pre-preliminary hearing offers, and to provide sufficient information to determine whether or not to waive a preliminary hearing (such as eligibility for diversionary programs which are generally reserved for first-time offenders in Philadelphia).
Philadelphia, unlike suburban Magisterial District Courts outside the city, does not provide an Affidavit of Probable Cause. Instead, a "PARS" Report is generated for every arrest in Philadelphia. It is a summary of the facts which led to the arrest / stop / search / seizure of the criminal defendant. It is available to a defense attorney at the preliminary hearing in Philadelphia, but is only generally provided upon request. It is important to request the PARS report prior to the preliminary hearing to apprise the defendant of the testimony which he or she may expect against him/her, and to determine whether a pre-preliminary hearing offer from the Philadelphia District Attorney's Office (if any) is viable.
In addition, if the Philadelphia District Attorney's Office plans to utilize the defendant's statement during the preliminary hearing, the defendant's attorney is entitled to receive (or at least review) a copy of it in advance. The defendant's attorney should ask the Assistant District Attorney in the courtroom if a statement will be utilized, or whenever possible, should make efforts to obtain this information prior to the preliminary hearing.
Is there a court reporter at a Philadelphia preliminary hearing?
Unlike Magisterial District Courts outside of Philadelphia, all preliminary hearings in Philadelphia are stenographically recorded. It is important during the preliminary hearing to make all inquiries regardless of objection and whether the objection has been sustained. Should a witness later die, become incapacitated, or otherwise rendered unable to testify at the trial of the matter, the transcript cannot be utilized in lieu of live testimony if the defense can demonstrate that there was not a full and fair opportunity to cross-examine the witness at the preliminary hearing.
What is a pre-preliminary hearing offer in Philadelphia?
In some instances, an offer for a guilty plea will be made at the preliminary hearing. The offers is usually conditioned upon the defendant waiving his or her preliminary hearing. Additionally, offers for Intermediate Punishment and Accelerated Rehabilitative Diversion (ARD) often require the defendant's waiver of the preliminary hearing. After the PARS report is received, and an offer is made, it will be important for you to discuss the offer with your client prior to the hearing. If the defendant requests time to consider the offer, or to discuss the offer with his or her family, a continuance will generally be granted by the presiding judge for consideration of the offer.
If the offer is accepted, the defendant's attorney should indicate during the defendant's colloquy (a highly formalized conversation on the record) that the waiver of the preliminary hearing is conditioned upon the acceptance of a guilty plea offer / Accelerated Rehabilitative Diversion (ARD) offer / Intermediate Punishment (IP) offer. The offer should also be stated on the record. If the defendant is subsequently, for whatever reason, disqualified from the program, the defendant will be entitled to a preliminary hearing.
In almost all instances, a preliminary hearing should not be waived in Philadelphia unless the defendant gets some (major) benefit in return.
Can a line-up be requested a Philadelphia preliminary hearing? How do line-ups in Philadelphia work?
Line-ups in the Philadelphia Municipal Court are governed by Local Rule 553:
- In all cases where a Philadelphia Municipal Court judge determines that a line-up is appropriate and the defendant is not in custody, the judge shall issue a "short certificate" (a court order) ordering the defendant, defense counsel, and the witnesses to appear at the prescribed time, date, and location for that purposes, usually the Curran Fromhold Correctional Facility, also known as "CFCF," located at 7901 State Road, Philadelphia, PA 19136. The defendant's attorney must appear at the line up unless the attorney's presence is waived by the defendant. A defense attorney's willful failure to appear at a line-up shall constitute contempt of court punishable by sanction. Willful failure of any of the parties ordered to appear shall constitute a waiver of their presence.
- The defendants shall sign a short certificate.to indicate receipt and notification of the time and place of the line-up A copy of the short certificate is made part of the official court record.
- In cases in which the defendant is in custody pending the preliminary hearing, arrangements will be made by the Philadelphia Department of Prisons for the defendant to be transported to the line-up unit of the Curran Fromhold Correctional Facility, and when housed in a jail other than CFCF, to be transported to CFCF as necessary for purposes of the line-up
- A Philadelphia Police detective supervises the line-up procedure. The assigned detective is stationed at Curran Fromhold Correctional Facility, and will appear in court at the CJC as necessary regarding cases involving line-ups.
Line-up requests must be made at the preliminary hearing level. A line-up request is made orally, which means that a formal written motion does not have to be filed with the Philadelphia Court. An experienced defense attorney will sequester the defendant in another courtroom or anteroom at the CJC if the defendant is on bail. ("Sequestered" in this instance means to remain outside the preliminary hearing courtroom.) The reason in doing so is to insure that the complaining witness(es) does/do not have an opportunity to view the defendant in the courtroom when the defendant's name is called.
An experienced defense attorney will also notify the court staff that the defendant is sequestered (when the cases listed in the applicable courtroom are first statused) so that a bench warrant is not issued for the defendant's failure to appear.
If the Philadelphia District Attorney's Office is not ready to proceed with its criminal case against the person charged, and if there is any question as to the necessity for a line-up, the defendant's attorney should ask the judge to "preserve" the line-up on the record. The defendant's attorney can ask the judge to sign the subpoena for the next court date if the defendant is sequestered.
Can a preliminary hearing in Philadelphia be waived?
Preliminary hearings can be waived by a defendant only with the approval and presence of the defendant's attorney.
Preliminary hearing must be waived for a defendant to qualify for Philadelphia Intermediate Punishment (IP) program or where a defendant has been accepted (or conditionally accepted) into Philadelphia's ARD program as a felony offender.
A defendant's waiver of his or her preliminary hearing must be knowing, voluntary, and intelligent. In some instances, the Court will ask the defendant's attorney to sign the transcript.
If a defendant who has been conditionally approved for ARD as a felony offender is ultimately not accepted in the program, the defendant, as noted above, is entitled to a preliminary hearing.
Can bail be reduced at a preliminary hearing in Philadelphia? How do bail reductions work?
Bail motions for defendants at the preliminary hearing state of the Philadelphia criminal court process, like most motions in Philadelphia Municipal Court, are generally made orally on the record at the time of the preliminary hearing.
Bail should be addressed at the defendant's preliminary hearing (or prior when circumstances allow) if:
- The defendant's bail falls outside of the guidelines established by the Philadelphia Court System.
- The defendant's preliminary hearing has been continued at least one time and the complaining witness(es) has/have failed to appear.
- The defendant has had a preliminary hearing and the bail is not commensurate with the criminal charges for which the defendant was held for court.
Prior to addressing the issue of bail, an experienced defense attorney will:
- Ascertain, when necessary, from the Philadelphia District Attorney's Office (and the Philadelphia Court if there is any question as the records otherwise) whether the defendant has a history of failures to appear ("FTA's") for prior court proceedings. (A first-time offender in Philadelphia charged with felony offenses should not, by the nature of being first-time offender, have any prior failures to appear. FTA's can be an issue in defendant's cases who have had multiple prior court cases.)
- Review the defendant's criminal history for a history of violence.
- Review the facts of the arrest as set forth in the PARS report (explained above) and be prepared to point out the weaknesses in the criminal allegations against the person charged.
- Have, whenever possible, family members present to show support and speak on the defendant's behalf.
- Have a comprehensive understanding of the defendant's work, education, and social history including ties to Philadelphia to assess the defendant's "risk of flight."
An appeal for denial of a bail reduction or bail motion in Philadelphia must be made in writing and filed with the Philadelphia Clerk of Courts, located on the second floor of the Criminal Justice Center. The motion will assigned to the appropriate Philadelphia Court of Common Pleas judge for determination. In most instances, the "miscellaneous" judge in courtroom 805 of the CJC will be assigned to address the bail motion.
It is important to note that a Philadelphia Municipal Court judge cannot overrule the decision of a Common Pleas judge regarding bail. If a defendant has previously had his or her bail set, re-set, or reviewed by a Common Pleas judge, a Municipal Court judge may not (and will not) change that decision.
Philadelphia Preliminary Hearing Attorney | Philadelphia Criminal Defense Attorney
Whether you or your loved one has been down the road before in Philadelphia, the importance of a preliminary hearing cannot be emphasized enough. Major strategic decisions have to be made both prior to and at the preliminary hearing itself to give the person charge the best chance of achieving a favorable outcome.
Attorney Joseph D. Lento has been passionately fighting for clients in Philadelphia from pre-arrest through the preliminary hearing to trial. Contact him today to learn how he can help with you or your loved one's felony charges and preliminary hearing.