FAQs

Do I need a lawyer?

What is the typical procedural process associated with a criminal arrest?

If I am arrested, do the police have to read me my rights?

Do I ever have to consent to allow law enforcement officials to search my person, automobile or home?

What should I do if I am arrested?

During the investigation, the police lied to me… Can they do that?

Should I represent myself?

What do the classifications of summary offense, misdemeanor and felony mean?

What is the difference between probation and parole?

  1. Do I need a lawyer?

    • If you are being questioned by the police…
    • If you are under criminal investigation or indictment…
    • If you are charged with a criminal offense…

    • You need a lawyer.

  2. What is the typical procedural process associated with a criminal arrest?

    • Arrest
      • Law enforcement authorities may effectuate a lawful arrest by any of the following methods:
        • Probable Cause arrest at time of alleged incident.
        • Filing of Criminal Complaint and issuance of Arrest Warrant.
        • Summons to appear issued by mail.

    • Preliminary Arraignment
      • Must occur within 72 hours of initial arrest. Usually conducted by a Magisterial District Judge. At the Preliminary Arraignment:
        • the accused is provided with a copy of the Criminal Complaint, which is being filed against him or her;
        • the issuing authority sets bail and may impose additional conditions of release; and
        • a Preliminary Hearing date is scheduled.

    • Preliminary Hearing
      • Must be scheduled within ten (10) days of the initial arrest; however, it may be rescheduled or continued for good cause.
      • Purpose is not to determine guilt or innocence. The sole purpose of a Preliminary Hearing is to determine whether or not the Commonwealth can establish a prima facie case against the accused. In order to meet their initial burden, the Commonwealth need only establish that a crime was probably committed and that the accused is probably the individual who committed it.
      • In addition to the extremely low burden of proof, the Pennsylvania Rules of Criminal Procedure dictate that the presiding Magisterial District Judge may not take the credibility of the prosecution’s witnesses into account in making a determination of whether sufficient evidence exists to bind the charges over to the Court of Common Pleas. Therefore, the magistrate is compelled to accept as true all evidence presented by the Commonwealth at a Preliminary Hearing. Consequently, given the nature of a Preliminary Hearing, it is usually better not to present any defense witnesses and/or reveal any of the defense strategy to the prosecution at this early stage.

    • Formal Arraignment
      • At the Formal Arraignment, the accused receives the Criminal Information, which reflects the actual charges that must be defended against at trial.
      • The accused enters a plea of guilty or not guilty.
      • Defense counsel formally enters their appearance on behalf of the accused.
      • A Pre-Trial Conference date is scheduled.

    • Pre-Trial Conference
      • The accused, defense counsel and the assistant district attorney must attend the Pre-Trial Conference and appear before the assigned judge.
      • At the conclusion of the conference, the court issues a scheduling order, which establishes dates for discovery, motions, responses, omnibus hearings, guilty plea and trial.

    • Trial
      • If the matter is not otherwise resolved, then it must proceed to trial in the Court of Common Pleas. Trial may commence in front of a judge or in front of a jury.
      • If an accused is incarcerated, then trial must commence within 180 days from the filing of the Criminal Complaint pursuant to the Rules of Criminal Procedure.
      • If the accused is not incarcerated, then trial must commence within 365 days from the filing of the Criminal Complaint pursuant to the Rules of Criminal Procedure.
      • If the trial results in an acquittal, then the matter is concluded.
      • If the trial results in a conviction on any or all of the charges, then the matter proceeds to sentencing.

    • Sentencing
      • Prior to sentencing, a Pre-Sentence Investigation will be conducted, which details the defendant’s criminal background, education, social and work histories. The report will also offer the sentencing judge a recommendation for sentencing based upon the sentencing guidelines.
      • According to the Rules of Criminal Procedure, a defendant has a right to be sentenced within ninety (90) days of the date of conviction or guilty plea.

    • Appeal
      • After the court has imposed sentence, a defendant has a right to file a written post-sentence motion within ten (10) days.
      • The judge must decide that post-sentence motion within 120 days, and if the judge fails to do so the motion is deemed denied by operation of law.
      • The defendant also has a right to file a notice of appeal with the Superior Court of Pennsylvania within 30 days of imposition of sentence.
      • If a timely post-sentence motion was filed with the trial court, the notice of appeal to the Superior Court must be filed within 30 days of the entry of the order deciding the motion, or, if the judge fails to decide the motion, within 30 days of the entry of the order denying the motion by operation of law.
      • A defendant has the Constitutional right to assistance of counsel in the preparation of any post-sentence motion or appeal.

  3. If I am arrested, do the police have to read me my rights?

    • This is a common misconception that most individuals pick up from watching television programming and movies based upon the criminal justice system. Pursuant to the well-know United States Supreme Court decision in Miranda v. Arizona, an individual that is being subjected to “custodial interrogation” must be advised of their constitutional rights and make a knowing, intelligent and voluntary waiver of those rights. The Supreme Court held that incriminating statements that were elicited during “custodial interrogation” would not be considered admissible evidence unless the accused was informed of his rights and made a knowing, intelligent and voluntary waiver.

      As such, any statements that an accused makes prior to being arrested are fully admissible at trial barring any other evidentiary concerns. Likewise, statements that an accused makes that are not in response to “custodial interrogation” and/or police questioning are also admissible.

  4. Do I ever have to consent to allow law enforcement officials to search my person, automobile or home?

    • Under very limited circumstances, a police officer can search your person without your consent and without a warrant. This type of search is referred to as a Terry Stop. If a police officer has a reasonable suspicion that an individual is presently armed and dangerous, then the officer has the authority to pat down the exterior of the individual’s clothing to check for weapons to ensure officer safety. The police officer does not have the authority to search the inside of your pockets or clothing unless he can feel a weapon or readily identifiable contraband.

      Otherwise, an individual is never required to consent to a search by the police. Although law enforcement officials may threaten to detain individuals until a search warrant is obtained, you have the absolute constitutional right not to give consent. It is almost never a good idea to give consent to search to the police, despite what law enforcement officials may say to convince you otherwise.

  5. What should I do if I am arrested?

    • Immediately ask to call a criminal defense attorney. Do not say anything to the police that could incriminate you at a later date. Do not answer any questions without an experienced criminal defense attorney present.

  6. During the investigation, the police lied to me… Can they do that?

    • Unfortunately, federal and state appellate courts have consistently ruled that law enforcement officials and police officers may lie and/or manipulate information in order to obtain a confession from a suspect. Consequently, that is even greater motivation to wait to answer any questions until you have a criminal defense attorney present.

  7. Whould I represent myself?

    • We have all heard the popular expression, “a person who represents himself has a fool for a client.” Although harsh, it is really a true statement. As a pro se defendant, you will be squaring off against the vast resources of the criminal justice system. Moreover, you will be attempting to negotiate with and argue complex legal matters against an assistant district attorney who is educated, trained and skilled in the art of lawyering. It is never a wise decision to proceed in a criminal matter without the representation of an experienced and skilled criminal defense attorney.

  8. What do the classifications of summary offense, misdemeanor and felony mean?

    • A summary offense is a very low-level offense that many would equate to a traffic ticket. However, there are potentially serious consequences that can accompany a summary offense. Specifically, the maximum penalty for most summary offenses is ninety (90) days of incarceration and/or a $300 fine. Also, certain summary offenses may involve suspension of your drivers license or may have significant impact upon future employment, education and/or housing. It is vital not to underestimate the potential impact that a summary offense may carry.

      A misdemeanor offense can range from a maximum term of incarceration of 30 days up to a maximum term of incarceration of five (5) years.

      A felony offense is the most serious classification of crime. Felonies can range from a maximum of five (5) years of incarceration up to the death penalty.

  9. What is the difference between probation and parole?

    • A term of probation is a criminal sentence that is to be served independently while under the supervision of the court.

      Parole is a means of completing a sentence of incarceration.

      Both probation and parole may be revoked if the offender is arrested for a new crime or violates any of the technical conditions of release. The revocation process is generally administrative in nature. As such, the offender must be given notice and an opportunity to be heard by an impartial decision-maker. In the case of parole, if revoked, the parolee generally goes back to jail and serves the remainder of his or her sentence of incarceration. In the case of probation, if the offender is found in violation, then the sentencing judge may re-sentence the individual. At the time of re-sentencing, the original probationary period may be restructured as a sentence of incarceration.