Philadelphia Criminal Law Blog : Philadelphia Criminal Defense Lawyer & Attorney : Peter C. Amuso Law Firm : Montgomery, Bucks, Chester, Delaware County Pennsylvania

 You've been arrested, you've posted bail, and you had your preliminary hearing.  At the end of your preliminary hearing, the judge held over your charges for trial, and gave you a date for your arraignment.

Are you going to jail after your arraignment?  Will you have to testify?  Can your family be there?  What happens at the arraignment?

Two words: not much.  

The Formal Arraignment is an important procedural moment in the life of a criminal case, as that is when the case formally begins in the Court of Common Pleas.  Your lawyer has to enter his appearance, even if he represented you at the preliminary hearing.  The District Attorney's Office presents the "Information, " or the official statement on what charges have been brought against you as a result of your preliminary hearing.

But nothing of substance happens.  In Philadelphia, judges do not preside over arraignments- trial commissioners do.  In the suburban counties, most counsel advise their client to waiver the arraignment, using a special form signed by both the attorney and the client.  A copy of the information and discovery from the government usually arrives in the mail about two weeks later.

Indeed, it is at the Pre-Trial Conference about two months later  where will progress will occur.  At that point the legal issues will be clearer to all involved.  If the matter cannot be resolved then, it goes on a trial list for a few weeks after that.

Bottomline: In Philadelphia and the suburbs, you will go to trial roughly 6-7 months after you are arrested.  Investigations and interviews should occur early on in the process.

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I've written earlier about the need to hire a lawyer as soon as possible if you are facing, or think you will be facing criminal charges.

Over the weekend, one important procedural milestone came up twice in conversations with folks: the preliminary hearing, which occurs ten days after you are arrested. Often times, lawyers will charge a small fee to "cover" the preliminary hearing.  Just as often, a defendant will wait until after the preliminary hearing before hiring a private attorney, "just to see how things shake out" before spending money.

Here's how things will shake out, 9 times out of 10: the judge will hold all the charges over for trial, and you will have lost your only opportunity to cross-examine witnesses before your trial. 

I cannot emphasize about important the preliminary hearing is in the preparation of your case.  In Philadelphia, in particular, it is your best chance to get the most serious charges dismissed, although I have had success getting charges dismissed recently in the suburban counties as well.  And whether any charges get dismissed or not, your attorney can lay the groundwork for a suppression motion or other procedural tools later on in the process, by cross-examining investigators and witnesses at the preliminary hearing.  In Philadelphia, an official transcript of every preliminary hearing is made automatically.  In the suburbs, however, there is usually no court reporter, and thus no transcript you can use later.  I always bring a court reporter to the preliminary hearings I handle privately in the suburbs.

In short it, if you are going to hire someone to represent you, do it before the preliminary hearing.

 

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One of the most frequent questions I get comes from people who call me after their trial is over:

"How can I get my record expunged?" 

That is, folks want to erase any record of their arrest or conviction from their public criminal files.  Expungements have become increasingly important as the internet has made significant portions of criminal records readily available to potential employers or schools.  In the old days, if you were convicted of simple assault during a hunting trip in McKean County, someone would have to make the seven hour drive to Smethport, wait until the Prothontary and Clerk of Courts Office opened, and spend a day going through stacks of old files. 

Now, they can just type your name here.

First, a hard truth: a conviction cannot be expunged in Pennsylvania.  It doesn't matter how long ago it was, how young you were, or how it will negatively impact your ability now to get a security clearance or a promotion.  Once you are convicted of a misdemeanor or a felony, it stays on your record.

The only exceptions to this ironclad rule are summary offenses, also known as citations.  These are matters like very small shoplifting offenses or disorderly conduct citations, were you simply paid a fine to the local district judge.  Under a new law, if you remain arrest and conviction-free for five years following your summary conviction, you can get that conviction expunged.

Even if you can't get those old convictions expunged, you can be pardoned by the Governor. Unlike the politics and histrionics surrounding Presidential pardons, any citizen can apply for a pardon directly through the Board of Pardons in Harrisburg.

If you are acquitted of a charge, that is found not guilty, you are entitled to an expungment of that charge from your record.

The tricky part comes if you pled guilty to one charge.  Are you entitled to an expungment of the remaining charges?  Often, the state will argue that you are not, as law enforcement needs to keep records of what you were suspected of doing.  Of course, if the state withdraws a charge because they do not have enough evidence to convict you, then should get that information expunnged.  Commonwealth v. Hanna is a case decided in January that covers the finer points of this nuanced issue.

If after reading this, you think you are eligible for an expungement, talk to a lawyer who can explain the process of pettioning for an expungment, which typically involves consultation wtih the local District Attorney's Office.  A lawyer can also help you through the pardons process, although you do not need a lawyer to apply for a pardon.

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It happened again today- a mother called me to hire me to represent her son, who is facing assault charges, months after the crime occurred and much damage has been done to his case.  

When I asked her when the preliminary hearing was scheduled, she told me that her son had represented himself at the preliminary hearing and waived it.  When I asked her whether her son had received the evidence from the District Attorney's Office, she said he had not asked for it as he was just trying to "deal with the situation on his own."  Now, with the case put on the trial list, he panicked and confessed to his mother that he had been arrested and charged months ago and asked for her help.

Now, I am certainly willing to represent him, and there is still much I can do for him.  However, critical deadlines have been missed and significant opportunities to learn more about the case have been lost.  The assistant district attorney on the case is much less willing to talk about a favorable offer now then she was before preparing the case for six months.

If you are someone who has just been arrested, or told there is warrant out for your arrest, or you just think that you may be charged with a crime, run, do not walk, to your nearest criminal defense attorney.  I am not just writing this in my own self-interest, but in your interest.  Invariably, the earlier someone comes to me, the better the results I can get for them.  it is easier to talk to a police officer deciding whether or not to charge someone, then it is to a prosecutor who has spent valuable resources on an expert witness who has completed his report.

Be sure to talk to any attorney you are considering hiring before you hire them.  Do not hire someone you with whom you are not comfortable, or in whom you do not have confidence that they will do an excellent job for you.

But hire someone.  You cannot deal with the situation "on your own."   it is not going to simply "go away."  Your family will still love you when you tell them the truth.  If you ignore it, it will just get worse.

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I have written in the past about how to bail out a loved one in Philadelphia.  But wait, you say- there are many places to get into trouble outside of South Street or Manayunk.  There's an active nightlife across Montgomery County- from Conshohocken to Skippack, with Norristown and Pottstown in between.  So how do you post bail for a loved one in Montco? 

The short answer is that you go to the county prison in Eagleville to post the bail, and your loved one will be released to you there.  If, however, bail is too high for you to post, your first stop will be a bail bondsman, who will then post the bail at the county prison for you.

A preliminary arraignment happens much faster in Montgomery County then it does in Philadelphia (mainly due to the organization of the criminal justice system by each small municipality), and so you usually won't have time to drive to whatever police station before the arraignment occurs and your child is transported to the county prison.  Therefore, you will have to post bail at the county prison, a facility formally known as the Montgomery County Correctional Facility, and informally known as Eagleville, after its location.

Another major difference between bail in Montgomery County and in bail in Philadelphia, is that, at least at the preliminary arraignment, bail in Montgomery County is often set as "straight bail" or "cash" ("STBL" on the docket sheet).  This means that a person has to post the entire amount of the bail in order to be released.  In Philadelphia, only 10% has to be put down.

So what to do if your son is initially charged with an aggravated assault after a bar fight, and bail is set at $150,000?  You call a private businessman called a bail bondsman, and pay them a percentage of the bail.  This is usually 8-10% of the bail depending on the circumstances.  Based on this payment, which is non-refundable, and a stack of paperwork you fill out, the bondsman will then go and post the full amount of the bail with the county.  Your child will then be released from prison.

Any criminal defense attorney worth their salt already has a relationship with a particular bail bondsman, which should make the process smoother.

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All of the information in my earlier post concerning bail procedures remains accurate, with one major exception: the cashier's office in the Criminal Justice Center now takes Visa and Mastercard!  This is a major improvement, as often the biggest obstacle on getting a loved one out of jail in the middle of the night was coming up with the cash to do so when your local bank is closed.

One detail, however, has not changed: the cashier needs to see proof of your social security number if you are posting $10,000 or more in bail.  In Philadelphia, almost all bail is set at 10% cash.  That is, if someone bail is set at $200,000, someone will have to give the cashier at the CJC $20,000.  So, if your loved one has a bail set at $100,000 or more, bring something with proof of your social security number when you post the bail.

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You were out late.  Something happened.  You've been arrested.  What happens next?

In future posts I will cover this process in more detail (particularly to note the differences between Philadelphia and the counties, and between each county) here is a quick, simple roadmap of the Pennsylvania criminal justice process:

1.  Arrest: the police see you commit a crime and they apprehend you.

2.  Preliminary Arraignment (24 hours after arrest): within 24 hours (and usually much sooner) the police take you in front of a local judicial officer.  In the counties, this is a Magisterial District judge (descendent of the old justices of the peace), and you appear in front of him or her in person.  In Philadelphia, the police take you to a room with a video screen where you see a Bail Commissioner sitting in the basement of the Criminal Justice Center.  Either way, the person presiding informs you of the charges against you, and sets bail.  You will get a copy of the criminal complaint filed against you by the police, which includes a statement (the "affidavit of probable cause") that gives the police officer's version of events.  Typically, the lawyers (if they are there) do very little: you do not enter a plea, nor is evidence heard.  Unless you are facing very serious charges, or cannot afford to post bail (usually a cash payment of 10% of the bail is required), you will be released at this time with a written notice of your next hearing. 

3.  Preliminary Hearing (10 days after arrest):  Here's where your lawyer gets involved.  The preliminary hearing is usually scheduled for 10 days after your Preliminary Arraignment, although it can be held later, and can usually be postponed once by your lawyer if necessary.  At the Preliminary Hearing, the government (called the "Commonwealth" in Pennsylvania), has to show the Municipal Judge (or a Magisterial District Judge in the counties) that there is enough evidence to establish "probable cause" that you did what the police say you did.  Your lawyer will typically not put on any witnesses or provide any evidence, but he will cross-examine the Commonwealth's witnesses (typically the arresting police officer and one or two witnesses to what happened.)  The judge decides if there is enough evidence to hold your case over for trial.  If there is not, he dismisses the case (although the Commonwealth could re-arrest you once it gets additional evidence.)  If there is enough evidence, you are given written notice of your next hearing.

4.  Arraignment (60 days after arrest): Here is where you appear in front of a state trial judge (a judge of the Court of Common Pleas), and enter a plea of guilty or not guilty, although typically, the plea of not guilty is entered at this stage, as the plea can be changed later in the process. If you have not already received it, you will get a copy of the "information"- the formal charges on which you will stand trial. Typically, a timetable is set for preparation for trial (the investigation process called "discovery").

5.  Trial (6 months to a year or more after arrest): The different procedures by which Philadelphia and the counties get a case ready for trial are too many to go into detail in this post.  Suffice it to say that your trial will typically occur anywhere from a few months after your arraignment to a year.

6.  Sentencing (immediately after trial or 30 to 60 days later):  If you are convicted, depending on the charges and the judge, you may be sentenced right away, or the judge may order a pre-sentence report that will detail your background and criminal history.

7.  Appeal (30 days after final order): Your have 30 days from the final court order in your case to file an appeal.

At any point along here, a deal can be struck with the prosecution for a guilty plea, or the prosecution can withdraw the matter.  The facts of any particular case can make the process go slower or go faster, but these are the basic seven steps in a Pennsylvania criminal trial.

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The Philadelphia criminal justice system has two components: the Municipal Court and the Court of Common Pleas.  The simplified version of this structure is that the Municipal Court is the lower of the two courts, and handles misdemeanor cases, while the Court of Common Pleas is the higher court, and handles the more serious felony matters. 

To make things a little more complicated, the Municipal Court conducts the preliminary hearings for all felonies, before the actual trials in those matters are held at a later date in the Court of Common Pleas.  As an organizational matter, the Municipal Court conducts these preliminary hearings in courtrooms both in the Criminal Justice Center in Center City (the "CJC" in court lingo) and at various police district headquarters throughout Philadelphia.  Conversely, for the misdemeanor matters the Municipal Court controls, it conducts a brief status conference in CJC Courtroom 404 before setting a date for the trial.

Thus, by looking at the courtroom number on the piece of paper you got in the mail ordering you to appear in court, you can tell how serious the charges against you are:

If you have been ordered to appear in CJC 404, you know you are not being charged with a felony. 

Conversely, if you are being ordered to appear for a hearing at the 8th Police District Headquarters in the Northeast (or any other courtroom other than CJC 404) you know that you are facing at least one felony charge. 

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Usually the phone call comes in very early in the morning or very late at night: "My son (or daughter or nephew or niece) was down on South Street (or Columbus Boulevard or Main Street in Manayunk) and there was a fight, he or she was picked up by the police, and now he (or she) is in jail.  How can I get him (or her) out?"

The short answer is that it is a two step process.  First, you go to the basement of the Criminal Justice Center in Center City with sufficient cash to post bail for your loved one.  If you have an attorney, he or she will meet you there.  Second, after a brief hearing is held, and bail is posted, you travel to the particular police district headquarters where he or she is being held, and your loved one will be released to you.

The Criminal Justice Center (or "CJC" in court lingo) is catty-corner from Philadelphia City Hall,  and next to the Masonic Temple, at the corner of Filbert and 13th Streets.  It is a modern, pink sandstone building completed in 1995, and there is a large (and expensive) parking garage next door.  It is in the basement of the CJC that the Preliminary Arraignment Court operates 24 hours a day, 365 days a year.  Your loved one will usually have his or her Preliminary Arraignment between 16 and 24 hours after arrest, although your lawyer will be able to give you a more precise answer.  The Preliminary Arraignment is where the defendant is formally informed of the charges against him or her, and when bail is set.  No plea is entered, no evidence is heard.  A Bail Commissioner, not a judge, is the presiding judicial officer. In fact, your loved one is not even present in the courtroom, but rather participates via close-circuit television from the police district where he or she is being held.

Unless he or she is charged with murder, your son or daughter has the right to bail.  The amount of bail, and the conditions of release, are determined by the Bail Commissioner.  These determinations are based on the seriousness of the charges, your loved one's criminal history, his or her ties to the community, and record of attendance at previous court hearings, if any.  If your loved one has not retained an attorney, the public defender assigned to the Preliminary Arraignment Court will make these arguments for him or her. The Bail Commissioner's decision can be appealed immediately to a Municipal Court judge.

Typically, bail is set at a certain dollar amount, and 10% of that amount must be paid in cash before the defendant can be released.  You pay that cash amount at the cashier's office, also located in the CJC basement.  Once you post bail, you can go to the police district where your child (or nephew or niece) is being held, and they will be released to you.

Depending on the nature of the charges, the next hearing will take place in 3 to 10 days for more serious cases, and in 20 days for less serious cases.  This is the time to call a lawyer, if you have not already done so, or to contact the Public Defender's Office.

But for now, your loved one is safe at home with you.

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