Philadelphia Criminal Defense Blog

Zak Goldstein 10/19/23 Zak Goldstein 10/19/23

PA Superior Court: Prison Sentence Okay For Adult Charged With Crimes Committed Decade Ago When Juvenile

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Torres, upholding the defendant’s convictions and lengthy prison sentence for rape of a child and related charges even though the defendant committed the crimes while he was a juvenile himself. In this case, the Superior Court approved of a long jail sentence for a defendant who committed serious sex crimes when he was a juvenile but was not arrested and charged until years later when he was an adult.

Had the defendant been prosecuted when the crimes happened, he would have been prosecuted in family court and likely received a year or two in a treatment facility. But because he was not prosecuted until a decade later, he was charged an adult, and he received a sentence of 19 - 40 years’ incarceration. This is obviously an absurd result, and the defendant will hopefully appeal to the Pennsylvania Supreme Court.

The Facts of Torres

Between June 2008 and March 2011, Torres lived with his mother, four of his younger half-siblings, and his maternal grandmother in Lancaster Township. During that period, he sexually abused three of his half-siblings; his half-sister and two half-brothers. At the time of the offense, the three children were between the ages of two-and-a-half and six years old, and Torres was between the ages of 13 to 15. He was often left in charge of his younger half siblings because their mother was working sixteen hour days to support their family.

The half-sister reported that Torres would make her go to his bedroom and digitally penetrate her vagina, force her to perform oral sex on him, force her to swallow his ejaculate, and force her to have sex with him. In May 2009, she told her mother, and her mother called the police. The half-sister was interviewed by Lancaster County Children’s Alliance, but she did not tell the interviewer about the abuse. The other half-siblings were not interviewed at the time, and no charges were filed.

Almost nine years later, in March 2018, the half-sister told her parents again that Torres sexually abused her in the past. After this report, Torres’ two younger half-brothers disclosed the abuse they suffered at the hands of Torres. The details are not necessary for reviewing the legal issues, but the abuse was unquestionably horrific.

Although Torres committed these crimes as a juvenile, the Commonwealth filed the charges in 2018 when Torres was 23 years old. Accordingly, prosecutors charged Torres as an adult instead of as a juvenile.

Procedural History

After the prosecution filed charges, Torres filed a motion to dismiss. He claimed that the Commonwealth acted in bad faith by failing to investigate the half-sister’s report and failing to interview the other children in 2009, which led to the adult charges instead of family court charges. He argued that he could not be charged in adult criminal court with offenses he committed as a juvenile and that he should be prosecuted in Family Court under the Juvenile Act. The trial court denied Torres’s motion in November 2020.

A jury convicted Torres of all the sexual offenses after a three-day trial that began on August 23, 2021. The probation department conducted a pre-sentence investigation. Torres appeared for sentencing in 2022, and the trial court sentenced Torres to 19 to 40 years’ incarceration even though he had committed these crimes as a juvenile.

Torres filed a post-sentence motion arguing that the “adult-based sentence” violated his constitutional rights given that the crimes were committed when he was a juvenile and the sentence would have focused on treatment and rehabilitation if he had been charged closer in time to when they occurred. The trial court denied the post-sentence motion, and he appealed.

The Superior Court Appeal

On appeal, Torres first asserted that the trial court violated his due process rights when it denied his motion to dismiss, arguing the nine-year gap between the police report and the filing of charges prejudiced him because he lost the ability to have the charges handled in juvenile court. Next, Torres claimed the adult-based punishment of 19-40 years in prison constituted cruel and unusual punishment because Torres was between the ages of 13 and 15 years old when the crimes were committed. Lastly, Torres claimed the trial court abused its discretion by sentencing him to an aggregate period of 19-40 years’ incarceration.

The Superior Court denied all of Torres’s claims.

In denying Torres’s first claim, the Superior Court based its decision on precedent set in the Pennsylvania Supreme Court’s recent 2023 decision in Commonwealth v. Armolt. There, the Supreme Court rejected the argument that a 42-year-old-male who committed offenses when he was a juvenile should be tried in juvenile court because the Commonwealth’s bad faith in delaying the charges caused him to lose the benefits of juvenile court. The Supreme Court explained that no bad faith existed because, for the purposes of the Juvenile Act, a “child” is defined as someone under the age of 18 or someone under the age of 21 who committed an act of delinquency before reaching the age of 18 years. The Supreme Court found that the Juvenile Act only extends juvenile jurisdiction to those who committed an offense while under the age of 18 if they are prosecuted before they turn 21.

The Superior Court applied the Supreme Court’s reasoning to Torres’s case because he was between 13 and 15 when the offense occurred but 23 when charged, so the Juvenile Act did not apply to him. Because the Juvenile Act did not apply, the Superior Court approved of the trial court’s denial of Torres’s motion to dismiss appropriate.

The Superior Court also rejected his challenge to the sentence. The Superior Court reasoned that the Eighth Amendment’s prohibition against cruel and unusual punishment does not require strict proportionality between the crime committed and the sentence imposed. Instead, the Eighth Amendment forbids extreme sentences that are grossly disproportionate to the crime. The Superior Court opined that most cases where cruel and unusual punishment has been found involved life sentences for juveniles tried as adults. The Court instead explained that Torres was sentenced to 19-40 years in prison and not a life sentence, making those cases inapplicable. Further, the Court decided that because the Juvenile Act did not apply, Torres was not entitled to any special sentencing benefits.

Finally, the Superior Court decided the trial court did not abuse its discretion in imposing a long sentence. The Superior Court noted a sentencing judge has broad discretion because that judge is in the best position to “view the defendant’s character, displays of remorse, defiance, or indifference, and the overall effect and nature of the crime”. The Superior Court further explained that the sentencing court considers the crime’s effect on the victims and community as a whole along with the defendant’s prior record, age, personal characteristics, and potential for rehabilitation. Finally, the Court explained that when a trial court has the benefit of a pre-sentence investigation report, its discretion should not usually be disturbed. Here, the sentencing judge had a pre-sentence investigation and conducted a full hearing. At Torres’s sentencing hearing, the trial court provided a full history of Torres’s life, paying close attention to his upbringing including, the sexual, physical, and emotional abuses Torres himself endured as a child. The Superior Court confirmed that the trial court considered all the proper sentencing factors and found the sentence appropriate, ultimately upholding the sentence.

The decision in Torres clearly illustrates just how much leeway and discretion the prosecution and trial courts have when it comes to criminal cases. Had the Commonwealth prosecuted Torres as a juvenile when the allegations first came to light, while he was under the age of 18, he certainly would have avoided an aggregate 19–40-year sentence and would likely not be under any court supervision at this time. The case also shows the enormous difference between being charged as a juvenile and being charged ten years later as an adult. When charged as a juvenile, the consequences are likely to focus on treatment. But when charged for something old as an adult, even if the defendant has stayed out of trouble for a decade or more, the defendant could face decades in prison. The system is clearly in need of major reform.

Facing criminal charges? We can help.

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 10/9/23 Zak Goldstein 10/9/23

Third Circuit: Defendant Has Reasonable Expectation of Privacy in Girlfriend's Rental Car

Criminal Defense Attorney Zak Goldstein — Criminal Defense Lawyer Zak T. Goldstein, Esquire

The United States Court of Appeals for the Third Circuit has decided the case of United States v. Christopher Montalvo-Flores, finding that the District Court should have found that the defendant had a reasonable expectation of privacy in a rental car he was operating. The evidence from the suppression hearing showed that his girlfriend loaned him the car, but it also showed that he did not sign the rental paperwork and he did not have a driver’s license. Nonetheless, the Court found that he had a reasonable expectation of privacy in the vehicle and therefore could challenge an unlawful search of that vehicle.

The Facts of Montalvo-Flores:

In November 2019, officers executed an arrest warrant at a hotel in New Jersey for Montalvo-Flores, the defendant, in connection with his suspected involvement in a robbery. A search incident to arrest of the defendant yielded keys to an Enterprise rental car that was leased by his girlfriend. Although the defendant insisted that the keys were his, officers had knowledge that the defendant did not have a valid driver’s license. Police officers located the car in the hotel parking lot, they discovered that it was not reported lost or stolen, and they learned that its registered owner was Enterprise Rental Car Company. Earlier that day, police officers observed the girlfriend give the defendant the keys. They also observed the defendant operating the rental car.

Police officers then called Enterprise’s regional risk manager to obtain permission to search the car. The officers told Enterprise’s manager that the defendant was operating the car while involved in criminal activity. The Enterprise manager, noting that the rental contract prohibited the use of the car for criminal purposes and that the defendant was not listed on the rental agreement, purported to give officers consent of the lessee, the girlfriend, to search the car. Inside the car, officers found 304 grams of cocaine in the trunk and $35 in the center console. As a result, the defendant was charged with possession of intent to distribute cocaine in federal court.

The Procedural History

The defendant moved to suppress the cocaine and money that officers recovered after searching the rental car. He argued that he lawfully possessed and controlled the car based on permission to use the car given to him by his girlfriend. In response, the government acknowledged that the girlfriend gave him permission to operate it, but the prosecution asserted that police lawfully searched the car without a warrant because the defendant lacked a legitimate expectation of privacy due to his lack of a valid driver’s license and the fact that he was not listed on the car’s rental agreement. The government also argued that the police had consent from the car’s registered owner, Enterprise, to search the car. The United States District Court held a hearing on the motion to suppress ion order to determine the legality of the search and whether the drugs and money would be admissible at trial.

The Suppression Hearing

During the suppression hearing, the officers acknowledged that the defendant’s girlfriend rented the car and that the defendant possessed the keys. Detective Holmes, the main witness for the government, testified that prior to the search, fellow officers observed the girlfriend giving the defendant the car and that fellow officers observed the defendant operate the car. The government also acknowledged the defendant’s possession of the car when a witness for the government testified that he called Enterprise and told the agent that the person operating the car did not have a license, had warrants, and was part of an armored truck robbery. The officers used the keys to open the car and found the cocaine and cash that the defendant moved to suppress after the Enterprise agent gave permission to search.

The District Court denied the defendant’s motion to suppress, holding that he lacked standing because he failed to establish a reasonable expectation of privacy. The District Court based its opinion on Byrd v. United States, 138 S. Ct. 1518 (2018). The District Court concluded that, contrary to evidence given at the suppression hearing, the defendant “was never observed possessing, operating, or otherwise exercising any sort of control over the rental vehicle aside from possessing the keys thereto.” After the denial of the suppression hearing, the Defendant proceeded by way of stipulated bench trial. The District Court found him guilty of possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). He was sentenced to 40 months of incarceration followed by three years’ supervised released. He appealed to the United States Court of Appeals for the Third Circuit.

The Third Circuit’s Ruling

The United States Court of Appeals for the Third Circuit reversed. It found that the defendant had a reasonable expectation of privacy in his girlfriend’s rental car. The Court of Appeals opined that there was clear error in the District Court’s factual finding that the Defendant “was never observed possessing, operating, or otherwise exercising any sort of control over the rental vehicle aside from possessing the keys thereto.”

The Court began by citing Katz v. United States, 389 U.S. 347, 361 (1967) in explaining that when making a reasonable expectation of privacy analysis, a trial court must begin with a two-prong approach to determine first, whether the defendant “exhibited an actual (subjective) expectation of privacy, and second, whether his expectation was one that society is prepared to recognize as “reasonable.” The Court noted that the defendant bears the burden of proving each element.

In finding a reasonable expectation of privacy, the Third Circuit based its opinion on the unrebutted testimony of the detective. That testimony showed the defendant proved the first prong when the officers took his keys from him and he exclaimed “those are my rent-a-car-keys!” Officers needed the keys to open the locked car parked outside his hotel. This showed that the defendant believed he had privacy in the car and took steps to preserve his privacy.

During its analysis of the second prong, the Court explained that when deciding whether the expectation of privacy is reasonable, a must make a fact-based analysis dependent on the strength of the defendant’s interest in the car and the nature of his control over it, noting that ownership is not necessary. The Third Circuit cited a case where the Supreme Court held that “the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.” Noting that “one who . . . lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude.” The Appeals Court listed several facts to show that the defendant’s expectation of privacy was reasonable, noting: the lessee, the girlfriend, was the defendant’s girlfriend; she gave the car’s keys to him; he possessed the keys when arrested; the car was parked outside his hotel room; it was locked; and he was observed by police possessing and operating it. The Court reasoned that the context strongly suggested that the defendant had dominion and control of the car with his girlfriend’s permission finding the District Court’s determination was clear error.

Because the Appeals Court found the defendant had a reasonable expectation of privacy in the car, the government needed to justify its warrantless search at the suppression hearing by showing probable cause to search the car. The Appeals Court vacated the defendant’s conviction and the denial of his motion to suppress, and it ordered the case be remanded for further proceedings. This case demonstrates the fact-specific nature of suppression hearings and how a good attorney can establish a legitimate privacy interest through tactical cross-examination. This ruling shows that while a defense attorney may do a good job through skillful cross-examination in establishing a legitimate privacy interest of the defendant, trial courts do not always make the proper rulings. This case recognizes that while the initial battle may be lost the war for innocence does not stop at “guilty.”

Facing criminal charges or appealing a conviction in state or federal court? We can help.

Criminal Defense Attorney Zak T. Goldstein, Esquire

Zak Goldstein 9/26/23 Zak Goldstein 9/26/23

Not Guilty: Attorney Goldstein Obtains Full Acquittal in Rape Case

Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire, recently obtained a full acquittal in a rape case. In Commonwealth v. P.S., the defendant was charged in Philadelphia with rape of a child and related charges for allegedly assaulting his biological daughter. According to the complainant, the assaults began when she was between the ages of 3 - 5 and continued until she was about 13 or 14. She did not report them until she was around 16, but prosecutors arrested P.S. and charged him with a number of sex crimes.

P.S. retained Attorney Goldstein to defend against the allegations. Attorney Goldstein investigated the case, obtained discovery from the District Attorney’s Office, and learned that the complainant’s mother, from whom the client had separated shortly before the allegations were first made in Family Court, had been claiming that P.S. assaulted the complainant for years. Attorney Goldstein investigated further and obtained family court transcripts which showed that the complainant had told judges that the assaults did not actually happen and that there was a lengthy history of litigation over child custody and child support. The family court records showed that the complainant’s mother had made these unfounded allegations supposedly on behalf of her daughter anytime she wanted to deny P.S. from having custody, but she had continued to let him see her and had never gone to the police. This behavior obviously did not make sense if the mother believed that child abuse was actually occurring.

P.S. proceeded to trial before a judge in the Philadelphia Court of Common Pleas. The complainant testified that P.S. assaulted her, but her testimony differed wildly from what she had told social workers in a videotaped interview which took place at the Philadelphia Children’s Alliance. Through cross-examination, Attorney Goldstein was able to show that P.S.’s story had changed repeatedly, she had previously told a judge that the assaults did not actually happen, all of her medical exams had been totally normal, and her mom had been telling her that her father had molested her since she was about three years old. Finally, when the complainant’s mother testified, it quickly became clear that she had fabricated the allegations by insisting that these horrible things happened only after she began suing P.S. for child custody and child support.

The trial judge promptly acquitted P.S. at the end of the one day waiver trial. The judge found that the allegations were fabricated and that the complainant’s mother had essentially traumatized her daughter and put her up to making the allegations. Instead of facing decades in prison and a lifetime of Megan’s Law registration, P.S. has now been found not guilty and will be eligible to have the charges expunged.

Allegations of child abuse and child sexual assault are among the most serious possible charges and the most difficult to defend. Judges and juries often have a difficult time believing that children could lie about something so horrible. Fortunately, our attorneys are experienced in investigating these cases and cross-examining the complainants and witnesses in order to effectively fight back against false charges. We have won many of these cases at preliminary hearings, at trial, on appeal, and in PCRA litigation.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

Zak Goldstein 9/24/23 Zak Goldstein 9/24/23

How to Get Your Bail Reduced in Philadelphia, PA

Award-Winning Philadelphia Criminal Defense Lawyers for Bail Motions and Bail Reductions

The Philadelphia criminal defense lawyers of Goldstein Mehta LLC have successfully defended thousands of clients at trial and on appeal. In many cases, the first thing we are able to do for a client is file a bail reduction motion in order to get the client out of jail. Once the client's bail is reduced and the client gets out of jail, the client is in a much better position to fight the case. We offer a free 15 minute criminal defense strategy session to any potential client. Call 267-225-2545 to speak with one of our defense attorneys about a bail motion today.

What is Bail?

If you have been arrested or are facing criminal charges, one of the first issues that you will face is the setting of bail. Bail is the amount of money that you are required to pay in order to be released prior to trial. If you cannot pay that amount, you will be held in custody until the case is resolved, so fighting for a low bond amount can be one of the most important issues in a criminal case. Unlike New Jersey and the Federal system, Pennsylvania requires defendants to pay cash in exchange for release. This means that most defendants must pay money in order to be released from custody pending trial.

Bail is extremely important for a number of reasons. A defendant who makes bail will be released pending trial and have a number of significant benefits. For example, the defendant will be able to be a much more active participant in defending the case as the defendant will be able to review the discovery, help locate evidence and witnesses, and prepare for trial. Further, a defendant who is not in custody will be able to continue working and living a normal life while waiting for the case to be resolved.

Demetra Mehta, Esq. - Philadelphia Criminal Defense Lawyer

On the other hand, a defendant who cannot afford the required amount could spend months or even years in the county prison awaiting trial. The defendant could lose his or her job, home, and contact with friends and family. It will also be much more difficult for the defendant to review all of the discovery, particularly if the discovery is lengthy or the Commonwealth has video evidence. Additionally, the fact that the defendant is in custody makes it much harder to reject a plea deal that would get the defendant out of jail even if the defendant is innocent. In many cases, completely innocent people plead guilty to crimes they did not commit because they simply cannot afford to wait any longer for a trial while they are in jail.

If you have been arrested and are facing criminal charges, it is extremely important that you retain a criminal defense lawyer who will aggressively challenge any efforts by the prosecution to have bail set at a level that you cannot afford. It is also important to retain a lawyer who will continue to fight for bail reductions at each court date in the event that you are unable to pay the initial amount.

When is bail first set?

The amount that the defendant must pay is initially set at the preliminary arraignment. The preliminary arraignment is the first step in every criminal case in Pennsylvania. In Philadelphia, preliminary arraignment occurs after a defendant has been arrested. The defendant will typically be held at the police station and processed for 10-20 hours, and the defendant will then be brought before a commissioner for a video hearing. If the defendant has already retained counsel, then the defense lawyer may be present in person or by phone for the preliminary arraignment. If the defendant has not retained counsel, then the defendant will be represented by a paralegal or legal intern from the public defender’s office. The Commonwealth is represented at preliminary arraignment by a paralegal, as well. Both sides may make recommendations and arguments as to what the bond should be, and the commissioner will then determine how much the defendant must pay to get out of jail.

If the defendant can post 10% of that amount, then the defendant will be released. If not, the defendant will be held in custody pending the next court date or until the defendant can pay. With the exception of of the Special Victims Unit, the Philadelphia Police almost always initiate cases by making arrests; they rarely notify a defendant of charges and give the defendant a chance to turn themselves in. If you did retain an attorney who contacted the police while an investigation was still underway, then the police may give your attorney the courtesy of notifying them of the warrant and allowing you to turn yourself in. In the suburban counties, however, a detective may initiate a case with a phone call informing the defendant of an arrest warrant or a summons. The defendant may then retain a criminal defense lawyer, go to the police station, spend a couple of hours getting processed, and then appear before the local Magisterial District Justice for the preliminary arraignment.

Is arraignment court open on the weekend and holidays?

The preliminary arraignment can take place at any time. Arraignment court is open 24 hours a day and 365 days per year. This includes weekends and holidays, so even if someone is arrested on a Friday night, they will not necessarily be held until Monday before they see a judge and have bail set. Instead, they would likely see a magistrate sometime within 24 hours of the arrest. The court typically hears a list of cases and sets bail for those who have been arrested every three or four hours. It is possible for supporters to be there in person for the proceedings, but the hearings often occur without much notice, and family members do not always know a defendant has been arrested before the hearing takes place. Retaining a criminal defense attorney as soon as your loved one is arrested or before they turn themselves in may allow you to get some advance notice as to when the hearing will take place.

How is the initial bail determined?

The initial bail is determined by the commissioner or magistrate after hearing argument from defense counsel and the prosecution. The magistrate will typically consider a number of factors, including:

The seriousness of the charges,
The bail guidelines (although they have not been updated in years and are often disregarded)
The strength of the evidence,
The defendant’s criminal record or lack thereof,
The defendant’s employment status,
Whether the defendant voluntarily turned themselves in or was arrested,
The defendant’s ties to the community and whether the Court was able to verify the defendant’s address, and
Whether the defendant has retained counsel.

In general, felonies, crimes involving weapons such as firearms, and violent crimes like Robbery and Aggravated Assault are far more likely to result in higher bail. Misdemeanors and less serious, non-violent felonies may result in low bails or even ROR or SOB. Gun charges, in particular, result in particularly high amounts in Philadelphia. For example, even defendants with strong ties to the community, jobs, and no prior record often face the prospect of bail being set at $50,000 or more for a weapons offense. Fortunately, an experienced criminal defense attorney will often be able to have it reduced below that amount.

ROR stands for Released on Recognizance, which means the defendant does not have to pay anything to be released.

SOB means Sign On Bond, which means that the defendant could owe money if the defendant fails to appear for court, but the defendant does not have to pay anything to be released. For example, if bail is set at $50,000 Sign On Bond, the defendant would be required to sign an agreement to pay $50,000 if the defendant flees and does not appear for court, but the defendant would not be required to pay anything. If the defendant cannot afford the amount set by the magistrate, then the issue may be appealed to a higher ranking judge or a motion may be made at a subsequent court date.

How can I get my bail reduced?

Zak T. Goldstein, Esq. - Philadelphia Criminal Defense Attorney

If the defendant cannot pay the initial amount, then bail can be addressed at almost every court hearing. In Philadelphia, the first listing of the preliminary hearing will typically take place within two or three weeks of preliminary arraignment. Motions for bail reductions may be made orally at every listing of the preliminary hearing. This means that if the case is continued or even if the defendant is held for court at the preliminary hearing, then the defense may make a motion and ask the Municipal Court judge, who ranks higher than the commissioner, to reduce bond to something the defendant can afford.

If the Municipal Court judge denies the motion, then the defense attorney may make the motion again at the next listing assuming that there has been some change in circumstances. The passage of time will often be considered a change in circumstances. This is particularly true if the prosecution is not ready to proceed.

While a case is in the Municipal Court for the preliminary hearing or if a Municipal Court judge denies a motion, the defense may file a written Motion for a Bail Reduction in the Court of Common Pleas. Once a written motion has been filed, the Court of Common Pleas will typically hold a hearing on the motion within five business days. The Common Pleas Motions Judge has the power to overrule the Municipal Court Judge or commissioner and reduce the amount required for bond.

The bail motion will often sound much the same as the arguments made at preliminary arraignment. However, because the defendant will have advance notice of the bail hearing, it is usually possible to be more prepared for it and have friends and family present so that the judge can see that the defendant has ties to the community. The presence of friends and family can be very helpful in terms of getting a defendant's bail reduced. The defense will also have time to obtain helpful documentation such as proof of employment, education, and community ties.

What is early bail review in Philadelphia?

Recently, the Philadelphia courts began providing a hearing called early bail review in between the preliminary arraignment and the preliminary hearing. Currently, early bail review hearings will take place within about a week of arrest for defendants who are unable to post bail but who do not have any probation detainers and for whom bail was set at $250,000 or less. That means if someone is arrested, has no probation or parole detainer, and cannot post a bail of $100,000 (10%), they would typically see a Municipal Court judge within about a week for a bail hearing. The public defender or private defense attorney would then be able to advocate for reduced bail, and the judges are often receptive to these arguments as the purpose of these hearings is to try to reduce the prison population. The benefit of this hearing is that it takes place earlier than the preliminary hearing. There is a downside, however, which is that the denial of a bail reduction at the early bail review may be something the preliminary hearing judge considers in reviewing a subsequent bail motion. In other words, if the early bail review judge denies a bail motion, the preliminary hearing judge may be less willing to overrule their colleague and reduce bail even if the Commonwealth is not ready at the preliminary hearing. Therefore, it is very important to be prepared to make the best possible argument at an early bail review hearing.

Are there crimes for which there is no bail?

The Pennsylvania Constitution provides that all defendants are entitled to bail with the exception of defendants who are charged with homicide. Because homicide may be a capital offense or carry a mandatory life sentence, defendants who are charged with homicide are not entitled to bail.

Additionally, a court may deny bail or later revoke it if the prosecution can prove that “no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great.” If bail is revoked or denied, then the defendant cannot be released until the case has been resolved or a judge reconsiders the ruling no matter how much the defendant can afford to pay. However, in some instances, it may be possible to ask a judge to reconsider a decision to revoke or deny bond.

How much of the bail do I have to pay?

In most cases, the defendant is required to pay 10% of the bail amount. For example, if the defendant’s bail is set at $50,000, then the defendant would usually be required to pay $5,000. If the bail is set at $50,000 SOB, then the defendant would not have to pay anything. If the defendant has some money but cannot quite come up with 10%, then it may be possible to hire a bail bondsman. The bondsman will usually charge something less than 10% up front to post bond, but the bondsman will keep a larger percentage in the long run. The bondsman could also require more than 10% but allow for monthly payments in order to make it more affordable. In Philadelphia, the court will return almost all of the money 35 days after the case is resolved.

What is a 600(B) motion or a Speedy Trial motion? How long can a defendant be held before trial if the defendant cannot afford bail?

If the Municipal Court and Common Pleas judges all deny the regular bail motions, there is one more motion which can be filed after the defendant has been held for 180 days of time which is not due to defense continuance requests. If the defendant has been held for 180 days, then the defense may file a motion under Pennsylvania Rule of Criminal Procedure 600(B). Rule 600(B) provides:

(B) PRETRIAL INCARCERATION

Except in cases in which the defendant is not entitled to release on bail as provided by law, no defendant shall be held in pretrial incarceration in excess of

(1) 180 days from the date on which the complaint is filed; or

(2) 180 days from the date on which the order is filed transferring a court case from the juvenile court to the trial or criminal division; or

(3) 180 days from the date on which the order is filed terminating a defendant’s participation in the ARD program pursuant to Rule 318; or

(4) 120 days from the date on which the order of the trial court is filed granting a new trial when no appeal has been perfected; or

(5) 120 days from the date of the written notice from the appellate court to the parties that the record was remanded.

This means that the Court is required to set nominal bail and release the defendant if the defendant is unable to make bail after 180 days. The Court may attach various conditions such as house arrest with electronic monitoring and reporting to a Pre-Trial Court Officer, but the Court is supposed to let the defendant out of jail pending trial after six months.

In cases where the Court grants the 600(B) motion, it is very common for the prosecution to then move to revoke bail and argue that the defendant is such a danger to the community or such a flight risk that bail should be revoked. In that case, the judge will have to decide based on the nature of the allegations and the defendant’s background whether the defendant should be released on nominal bail or whether the defendant’s bail should be revoked. Unless the allegations are particularly horrific or the defendant has an extremely lengthy criminal record, most judges will grant the 600(B) motion and release the defendant on house arrest. In the recent case of Commonwealth v. Talley, the Pennsylvania Supreme Court instructed trial judges to take this rule very seriously and held that the Commonwealth must meet a heavy burden and introduce real evidence at a hearing on a motion to revoke bail in order to properly have a defendant’s bail revoked. Therefore, it is extremely important to file the 600(B) motion at the earliest possible date as every day after that date is time which the defendant may not have to spend in custody.

Can I appeal a bail ruling?

Yes, a judge’s ruling on a motion to reduce bail can be appealed. First, the bail magistrate’s ruling from the preliminary arraignment can be appealed to the on-call emergency Municipal Court judge. Even if preliminary arraignment takes place in the middle of the night, the defense attorney (or the prosecutor if the Commonwealth thinks the bail is too low) may ask for a bail appeal and have the bail ruling reviewed by a Municipal Court judge on an emergency basis. The court would set up a conference call between the parties for both sides to make argument on what the bail should be.

Second, the ruling of a Municipal Court judge can be appealed to a Common Pleas judge by filing a bail motion. It then typically takes about a week or two to get a hearing before a Common Pleas judge.

Finally, if the defendant is still unhappy with a bail ruling after it has been reviewed by a Common Pleas judge, it is possible to file a petition for specialized review with the Pennsylvania Superior Court. The Superior Court would then review the trial court’s decision on a bail motion or a Commonwealth motion to revoke bail. Accordingly, it is usually possible to have a bail decision reviewed by a higher court, particularly where a defendant has been held without bail or at an extremely high bail.

We Can Help With Bail Motions in Philadelphia and the Surrounding Counties

Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges, we can help. We recognize the importance of being home with your friends and family while you are fighting a case, and we will aggressively fight to have the lowest possible bail set. If necessary, we will fight for bond reductions at every opportunity. We have won countless motions to reduce bail as well as numerous Speedy Trial/Rule 600(B) motions for nominal bail. Call 267-225-2545 today for a free criminal defense strategy session with one of our award-winning Philadelphia criminal defense lawyers.