What is a Preliminary Hearing in Pennsylvania? What purpose does it serve?

Posted by Joseph D. Lento | Jul 12, 2017 | 0 Comments

After a person is arrested and charged with a crime in Pennsylvania, the preliminary hearing will be one of the first court proceedings in many instances.  Outside of Philadelphia, in Pennsylvania counties such as Bucks, Chester, Delaware, Montgomery, Berks, Lancaster, Lehigh, and Northampton for example, most persons charged with criminal offenses will have to appear for a preliminary hearing at the applicable magisterial district court.  In Philadelphia, persons charged with a felony offense(s) will have to appear for a preliminary hearing. 

Detached Judgment of a Neutral Magistrate

Whether in Philadelphia or in any of the other 67 Pennsylvania counties, a person may be held in custody while waiting for his or her preliminary hearing to take place.  Because pretrial confinement will result in considerable hardship on the accused, who is known as the "defendant" in Pennsylvania criminal court proceedings, the detached judgment of the neutral magistrate is critical if the Fourth Amendment of the United States Constitution is to provide meaningful protection from unlawful interference with liberty.  In Philadelphia, a "neutral magistrate" will be a judge sitting in the Criminal Division of Philadelphia Municipal Court, and in most Pennsylvania counties in most instances, a "neutral magistrate" will be a magisterial district justice. 

What is the purpose of the preliminary hearing in Pennsylvania?

Because this "detached judgement" of the "neutral magistrate" is so important to a defendant's rights when arrested and charged with a crime, the United States Supreme Court has held that Fourth Amendment requires a judicial determination of probable cause as a prerequisite to any extended restraint of liberty following a defendant's arrest.  Although this determination may, under the Fourth Amendment, be reached in a variety forums, Pennsylvania has traditionally viewed the preliminary hearing as serving this function.  In most Pennsylvania counties, a defendant's preliminary hearing date may be held before a judge of the applicable Court of Common Pleas, it is generally held before a magisterial district judge (also known as a "magisterial district justice").  Despite the preliminary hearing's purpose at least in part to protect the defendant's rights, tt may come as a surprise there is no right to have a law-trained person (an attorney / lawyer) preside over the hearing.

When will the preliminary hearing be held?

Per Rule 540(E)(1) of the Pennsylvania Rules of Criminal Procedure, a defendant's preliminary hearing should be held within 3 to 10 days of the preliminary arraignment or earlier by agreement of the defendant and prosecutor, but may be continued for cause shown. There are no guidelines for what constitutes "cause shown" however.

Can my criminal charges be dismissed if my preliminary hearing does not take place within a certain amount of time?

Generally, failure to hold a preliminary hearing within ten days does not require dismissal of the charges because dismissal of the charges is considered too drastic a remedy for minor technical defects in the preliminary hearing proceedings when there has been substantial compliance with the time requirements. The only relief available to a defendant when a preliminary hearing is not timely held under Pennsylvania Rule of Criminal Procedure 540(A)(1) is release from custody until the preliminary hearing is held.

For example, when a defendant was in custody and had not had a preliminary hearing within two months of the preliminary arrangements, he was entitled to a writ of habeas corpus releasing him from custody.  ("Habeas corpus" literally means to "produce the body," and a writ of habeas corpus is a court order to a person or agency holding someone in custody (such as a prison warden) to deliver the imprisoned individual to the court issuing the order and to show a valid reason for that person's detention.)

What happens if I was arrested without a warrant in Pennsylvania?

The United States Supreme Court has held that there must be a judicial determination of probable clause within 48 hours of a warrantless arrest before a defendant may be detained.

What happens if my preliminary hearing is continued?

When a continuance beyond the original 10-day period is necessary, the defendant must be insured as speedy a preliminary hearing as practicable, the magisterial district judge should not wait to set a date for the continued preliminary hearing pending responses from either the assistant district attorney (the prosecutor) or the defendant's attorney.

All the same rules apply when the need for a preliminary hearing to be continued arises due to the schedule and/or constraints of the magisterial district justice. The court "record" should state the reason for the need for the delay, the reason for the particular date assigned for the continued preliminary hearing, and the reason is that the particular date was chosen.

For example, when a 79-day delay in scheduling a preliminary hearing was caused by the magisterial district justice's attendance at a committee and a judicial convention, the requisite "cause shown" was not established when the reasons for the particular dates chosen for the continued preliminary hearing did not appear of "record."

The Preliminary Hearing is to Protect an Individual's Rights

The purpose of a preliminary hearing in Pennsylvania is to protect an individual's right against unlawful arrest and detention by requiring that the prosecution (known as the "Commonwealth" in Pennsylvania court proceedings) establish a "prima facie" case.

What is a "prima facie" case?

A prima facie case will be established when there is sufficient cause to continue to trial; during this prima facie stage of the legal process, it is only necessary to present some credible evidence of each element of the criminal case. By contrast, successfully prosecuting the defendant during trial requires that he is guilty of each element of the crime be proven "beyond a reasonable doubt."

This prima facie judicial determination must be distinguished from a police officer's probable cause to arrest, with or without a warrant, and, procedurally, from a pretrial determination of probable cause at a hearing on a motion to suppress.

Will the preliminary hearing be held via video like the preliminary arraignment is in Philadelphia?

A court or issuing authority may not used to wait audiovisual communication at a preliminary hearing unless the defendant consents or otherwise wasting right to be present.

Who will preside over a preliminary hearing in Pennsylvania?

As the judicial officer presiding at the preliminary hearing, the issuing authority (the Philadelphia Municipal Court judge, or the magisterial district justice in the Pennsylvania counties) generally controls the conduct of the preliminary hearing, except as limited by statute or rule. For example, the presiding judicial officer at a preliminary hearing on Pennsylvania DUI-related offenses codified as 75 Pa.C.S.A. 1543(b)(1.1) - Driving While Operating Privilege is Suspended or Revoked, 3802 - Illegally Operating a Motor Vehicle not Equipped with Ignition Interlock, and/or 3808(a)(2) - Tampering with an Ignition Interlock System, may not reduce or modify the original charges without the consent of the Commonwealth.

Who will "prosecute" the case at the preliminary hearing?

When an attorney appears on behalf of of the Commonwealth (as will always be the case in Philadelphia and more active Pennsylvania County magisterial district courts), the prosecution of the case is under the control of that attorney. When no attorney appears on the behalf of the Commonwealth, the issuing authority may ask questions of any witness who testifies, and the affiant (the police officer for example in less active district courts) may request the issuing authority to ask specific questions. In appropriate circumstances, the issuing authority may also permit the affiant to question Commonwealth (prosecution) witnesses, cross-examine defense witnesses, and make recommendations about the case to the issuing authority.

How will a "prima facie" case be established at a preliminary hearing?

In order to satisfy the burden of establishing a prima facie case, the Commonwealth must produce legally competent evidence which demonstrates the existence of each of the material elements of the crime charged against the defendant(s), and legally competent evidence which demonstrates the existence of facts which connect the accused to the crime charged. In other words, a prima facie case in support of a defendant's guilt consists of evidence that, if accepted as true, would warrant submission of the case to a jury at the time of trial.  Proof of a defendant's guilt "beyond a reasonable doubt" does not need to be established at the preliminary hearing stage, nor is grading of the charged criminal offense(s) required.

The concept of establishing a prima facie case is directly connected to a showing of probable cause. That is, in order for the Commonwealth to establish a prima fascia case against the defendant, the Commonwealth must show probable cause that the defendant committed the offense.  Therefore, there is no legal distinction between a finding by a magistrate that the Commonwealth did not establish probable cause that the defendant committed the violations for which he or she was charged, and a finding that the Commonwealth did not establish a prima fascia case.

For example, when the evidence used to establish a prima fascia case included the hearsay statement of a material prosecution witness who did not testify at the preliminary hearing, the Pennsylvania Superior Court reviewed all of the evidence presented at the preliminary hearing and found that a prima fascia case would have been made out even if the hearsay evidence had been excluded . Therefore, a denial of rights during a preliminary hearing will not require reversal of the verdict absent specific prejudice caused by the violation . Any deficiency in the preliminary hearing will be rendered harmless upon a determination at trial that the Commonwealth evidence is sufficient to be submitted to the jury.

Challenging a Defect in the Preliminary Hearing

Pennsylvania case law on preliminary hearings provides a mechanical standard of review: The Pennsylvania Superior Court held that "[o]ur function is to take the facts proven by the Commonwealth at the preliminary hearing and to determine whether the some of those facts fits within the statutory definition of the types of conduct declared by the Pennsylvania legislature in the crimes code to be illegal conduct. If the proven facts fit the definition of the offenses with which the defendants are charged, then a prima facie case was made out as to such offense or offenses. If the facts do not fit the statutory definitions of the offenses charged against the [defendants,] then they are entitled to be discharged."  Commonwealth v. Lacey, 344 Pa.Super. 576, 496 A.2d 1256 (1985).

In addition, because a defect in the preliminary hearing is rendered moot after a defendant is tried and convicted, in order to preserve the issue the defendant must take a direct appeal from a trial court's denial of a petition for habeas corpus before trial.

Can the prosecution "amend" the complaint at a preliminary hearing?  Can charges be added or changed at a preliminary hearing?

The Commonwealth may amend the complaint at the preliminary hearing. For example, the Pennsylvania Superior Court held that the attorney for the Commonwealth was permitted to amend a complaint, after the Commonwealth's case-in-chief but before the close of the plenary hearing, on charges of the murder in the first and third degree to murder in the first and third degree as an accomplice.

Amending charges at a preliminary hearing in Philadelphia and the Pennsylvania Counties is a common practice by the Philadelphia District Attorney's Office and the applicable Pennsylvania Counties' District Attorney's Office respectively.  An effective defense attorney must be prepared to face such a challenge in case the prosecution intends to amend or add charges at a preliminary hearing.  Recognizing which criminal offenses can be amended or added is as important as understanding the offenses charged at present.

Considerations When a Preliminary Hearing Involves Summary and Misdemeanor Offenses

When summary and misdemeanor offenses arise from the same set of facts and are charged in the same complaint, they constitute a "court case" under the Pennsylvania Rules of Criminal Procedure. As a court case, both the summary and misdemeanor charges proceed to a preliminary hearing for the establishment of a prima facie case. If a summary offense is discharged, it is discharged as a court case would be: the discharge is not an acquittal for purposes of Double Jeopardy consequences.

What other purposes does the preliminary hearing serve in Pennsylvania?

Although a preliminary hearing is primarily a procedure for assuring that sufficient evidence exists to warrant holding a defendant for court, the preliminary hearing serves several other functions. For example, the Commonwealth may use the preliminary hearing to judge the adequacy of its case or to preserve testimony of a Commonwealth witness who may not be available at the time trial. The preliminary hearing may also function as a discovery tool for the defense attorney by allowing the defense attorney to cross-examine Commonwealth witnesses and to inspect the physical evidence offered against the defendant. The prelimianrt hearing also provides an early opportunity for a defense attorney to make argument on such matters as the necessity for a psychiatric examination or to set or reduce bail.

Is a preliminary hearing open to the public?

A defendant has a right to a public preliminary hearing under Article 1, § 9 of the Pennsylvania Constitution, and under the Sixth Amendment of the United States Constitution. Prejudice to the defendant is presumed when a preliminary hearing is closed, but a public trial may eliminate the problem. When a defense attorney objects to the closure of a preliminary hearing, the defense attorney may then petition for certification of an interlocutory order or petition pursuant to Chapter 15 of the Pennsylvania Rules of Appellate, 

Pennsylvania Preliminary Hearing Attorney | Lawyer for Preliminary Hearing in Philadelphia

When faced with criminal charges, it is critical to take the necessary steps as early as possible to secure the best possible outcome.  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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