Pennsylvania’s Post Conviction Relief Act (PCRA)

The PCRA is an indirect method of appeal in criminal cases. A direct appeal is when a criminal case is appealed from the Court of Common Pleas, where the accused lost the case, and wants to challenge some aspect of it. For more on direct appeals, read my post here. An indirect appeal in a PCRA allows the person to have the case reconsidered when a direct appeal to the Superior Court has been denied.

The PCRA must be filed within one year of the denial of the final direct appeal, or after the conviction if the defendant chooses not to use direct appeals. The one year rule does have some exceptions. The basic exceptions include: where counsel effectively abandons the defendant in the PCRA process, where the petition is an extension of a previously filed petition that was within the one year limit, where the government blocked the petition in some manner, where the new evidence could not have been known within the one year limit, and finally, where the court has determined that constitutional rights are such that the extension must be given.

PCRA is limited on its grounds for appeal. The full text of the act can be read here, but I will summarize it briefly. Under 42 Pa.C.S.A. § 9541 et seq, you may only begin the process for the PCRA if your conviction or sentence resulted from:

  • A violation of the Constitution of Pennsylvania or of the United states, or of the laws of the United States, and the violation occurred under circumstances which so undermined the process that no reliable adjudication of truth could have taken place
  • There was ineffective assistance of counsel such that no reliable determination of truth could have taken place
  • A plea of guilty was gotten under circumstances which make it likely that the defendant was induced to falsely make the statement and the defendant is innocent
  • Government officials wrongly obstructed the defendant’s right to appeal where an issue for appeal was present and capable of being appealed
  • New evidence has come to light which would have changed the outcome of the trial
  • A sentence was imposed which was greater than the lawful maximum
  • The court proceeding took place in a tribunal which did not have jurisdiction

Additionally, the statute requires that the allegation in the petition has not been previously litigated in court (it is a new issue) and it has not been waived by a failure to raise the issue (you didn’t bring it up and you were only permitted to bring it up at a certain point of the proceeding). The failure to litigate the issue cannot be the result of a rational or strategic move by the defendant’s attorney at trial.

You may notice the phrase “reliable adjudication of the truth” or “reliable determination of the truth.” These phrases are synonymous and mean that, because of what happened at trial, the facts or process was so distorted that no one could have discovered the truth. The courts have stated that the issue must go directly to the truth-determining process. (Commonwealth v. Bennett, 2007).

Another thing to mention is the process that a person must be given for the court to have properly reviewed the PCRA claim. Although the amount of due process required is less stringent than at trial, a defendant who petitions is still entitled to present his or her claims in a meaningful time and have them considered in a meaningful manner.

A petition for post-conviction relief must conform to certain processes and is subject to parameters defined by statute and the court. When you consider a PCRA, you also need to consider what attorney you will hire, and find one with the experience and the dedication to see the petition through. Failure to obtain the right counsel can result in the denial of your petition.

Call Shannon K. McDonald to discuss your potential PCRA petition today.

What is a “Search” Under the Fourth Amendment?

The broad rules for what a “search”is are determined by whether a person has a privacy interest. Searches can be a physical search of items or a person, and can also be of conversations. Any evidence which could be considered incriminating can be discovered by a search, whether tangible or intangible. When a search is “reasonable” the evidence will be permitted in court. When a search is deemed unreasonable, the evidence will probably be excluded (there are exceptions to this rule).

The appropriateness of a search is determined by the nature of the privacy interest, the scope, conduct, and duration of the search. Therefore, beyond a few generalizations, the “reasonableness” of a search is an inquiry into the facts around the search.

I promised some broad generalizations. So here they are, but take them with a grain of salt. The law is filled with exceptions and that holds true for the rules for a reasonable search.

  1. Generally privacy interests exist:
  • Where a person has an expectation that his words or actions are private. (This includes the home or where conversations being held are otherwise intended to be kept private, such as a phone booth.)
  • Where a person is invited or temporarily residing.
  1. Generally privacy interests do not exist/ are lessened:
  • Where and item is in plain view and the criminality of the item is immediately apparent.
  • In public places holding a conversation which others could reasonably overhear.
  • In registered vehicles on public highways or vehicles capable of moving on public highways (including RV’s).
  • Where a police or peace officer’s safety is in question.
  • At a person’s place of business has a lesser expectation of privacy
  • In a field surrounding a home or in an area around a home which is in plain view from the street.

A search is generally reasonably begun in 2 situations: when there is a warrant for the search, and when there is probable cause and exigent circumstances allowing a peace officer to avoid getting a warrant.

  1. A warrant requires an affidavit of probable cause (a sworn statement that shows why there is probable cause to believe criminal activity or criminal paraphernalia exists) and a precise description of the persons, places, and items to be search and what can be expected to be found. Having a warrant generally means the search will be reasonable.
  2. Alternatively, a search can be reasonable at its inception when the is probable cause and exigent circumstances. Again probable cause refers to the probability that criminal activity is taking/has taken place and/or that criminal paraphernalia will be found on location. This probable cause must be combined with an exigent circumstance. There is a long list of court cited exigent circumstances, including officer safety, a need for immediate response to a situation, community safety, invitation to search, and others. The inquiry of reasonableness of this search is always fact based.

However, even a search that is “lawful at its inception can violate the Fourth Amendment if its execution unreasonably infringes interests protected by the Constitution.” (Illinois v. Caballes, United States Supreme Court) Therefore, even when there is a warrant or probable cause combined with exigent circumstances, if the search goes beyond a reasonable scope, duration or if conduct of the officers involved is unreasonable, then the search may not be reasonable.

Appealing a Court’s Determination

What is an appeal?

An appeal is a petition for a review of a lower court’s decision.  There can be various grounds for the appeal. These include a mistake of law, a mistake of fact, or an error in the process. A mistake of law may mean the wrong law was applied, or that the correct law was applied but in an incorrect manner. A mistake of fact may occur when a new fact is discovered, or when a jury clearly disregards a fact. Finally, a mistake of process may occur when the correct procedure is not followed at the trial level. This may include certain deadlines, disclosure of evidence, or improper action in the courtroom.

An appeal is not to be regarded as a chance to re-do the trial. The appeal is a separate petition and may ask for forms of relief, including to hold a new trial. The appeal itself is a proceeding which uses certain methods to review the actions at or before trial for propriety. The court may then choose to reverse the trial courts opinion, remand for a new opinion, remand for a new trial, or a number of other options. You should discuss with your attorney what options you may have to appeal a decision.

When is an appeal appropriate?

The most common time for an appeal is after a trial and a verdict has been reached or a final opinion given. At this time a party has 30 days to file a notice of appeal. Appeals are only given if filed in the appropriate window. You should discuss with an attorney whether you have a right to appeal an adverse decision when the decision is finalized.

There are other times when an appeal may be filed, and there are times that despite an adverse decision, the appeal is not possible. An appeal may also be filed after verdicts on certain motions. The motion will be one which would irreparably harm you if it is not granted, this can only be determined on a personalized basis. There is no way of generalizing what motions are directly appealable. Additionally, sometimes even though the courts decision is adverse to you, you may not be able to appeal. This occurs when an issue becomes moot, or when your trial attorney failed to preserve an issue for appeal.

To what court will I appeal?

The Commonwealth of Pennsylvania runs a unified court system, the description of which can be found here. Which court your attorney files an appeal in will depend on what court your case originated.

If the appeal is from a local or some state government agencies it can usually be appealed to the Court of Common Pleas. Otherwise the Court of Common Pleas is a trial court.

The Commonwealth Court was created to alleviate the burden of appeals on the Superior and Supreme Courts. This court hears appeals relating to state administrative agencies, state government, and matters involving internal affairs of non-profit corporations.

The Superior Court is mainly an appeals court with petitions originating from the Court of Common Pleas. This includes civil and criminal appeals.

The Supreme Court handles appeals originating from any court, depending on the type of appeal. Some cases are automatically appealed or heard as a matter of right, while for other cases the Supreme Court has discretion whether to hear the appeal.

Who can help me with an appeal?

When the decision you obtained is negative, you may wish to think about appealing the decision. Whether it is a decision by a government agency, a civil trial, or a criminal problem, the process takes time and a lot of writing and research. It is crucial that you contact an attorney about an appeal as soon as possible. Shannon K. McDonald is an experienced attorney who has handled many appeals issues. Talk to your attorney and discuss the possibility of an appeal, and for further information and a free consultation, contact Shannon K. McDonald today.