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The preliminary hearing is one of the most important pre-trial criminal proceedings because it is invaluable tool to learn what the Commonwealth’s case is, what the police officers will say and what they want, along with what witnesses will say against you. The preliminary hearings main purpose is to make sure that you are not improperly detained. A preliminary hearing is not a full trial; it does not determine guilt or innocence. It is a test of the sufficiency of the Commonwealth’s evidence.


In order for the Commonwealth, whether by a District Attorney-intern or actual District Attorney—or in some counties a police officer, to get past a preliminary hearing is that there is a prima facie case that

  1. An offense has been committed and
  2. The defendant has committed it. Pa. R. Crim. P. 542 (D).


Simply put, all the Commonwealth must prove is whether more likely than not a crime occurred and
the alleged defendant committed the crime, and all or some the charges that survive the preliminary hearing will be held (Held for Court HFC) for the Court of Common Pleas and a date will be set for formal arraignment. 

Depending on what the alleged offender would like to accomplish, the case will either go to trial, plea, plea and be sentenced to some type of sentence alternative, or may even be dismissed with a Habeas Corpus or evidence suppressed with a Suppression hearing, and dismissed.  What happens after a preliminary hearing depends on the facts of the case, evidence gathered (discovery) the alleged defendants prior record, if any, and the rapport with the Police Officers involved and District Attorney.  In what county the alleged crime occurred will can also determine the outcome of the case.

Under Pennsylvania’s Rule of Criminal Procedure, the alleged offender has: a right to counsel; cross-examine witnesses and inspect physical evidence offered against the defendant; call witnesses on the defendant’s behalf, other than witnesses to the defendant’s good reputation only; offer evidence on the defendant’s own behalf, and testify; and make written notes of the proceedings, or have counsel do so, or make a stenographic, mechanical, or electronic record of the proceedings. See Pa.R.Crim.P.542.

Witnesses can be used to negate the Commonwealth’s evidence, not to discover the Commonwealth’s case, and credibility is not an issue for a preliminary hearing since the preliminary hearing is not a full trial, not about guilty or innocence, it is only about the prima facie case, whether:

  1. A crime occurred and
  2. The alleged defendant committed the crime. 



                                  Hearsay can be used at the Preliminary Hearing

Hearsay is an out of court statement, not under oath, offered to prove the truth of the matter asserted. The statement can oral, written, or non-verbal as long as the one who made the statement intends it as an assertion. See Pa.R.E. 801.

Hearsay is allowed to establish a prima facie case. “Hearsay evidence shall be sufficient to establish any element of an offense, including, but not limited to, those requiring proof of the ownership of, non-permitted use of, damage to, or value of property.” Pa. R. Crim. P. 542 (E).  However, a prima facie case, at a preliminary hearing cannot be used as the sole basis for establishing a prima facie case. Cited in the comments of Rule 542 is Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d 172 (Pa. 1990) (plurality) (disapproving reliance on hearsay testimony as the sole basis for establishing a prima facie case).  Moreover, an alleged defendant does have the right to confront witnesses and inspect evidence at a preliminary hearing, whether this effects the outcome of the case depends on the MDJ, and if a Habeas Corpus is filed, which is basically another preliminary hearing at Common Pleas Court, with a Common Pleas Judge, using the record from the preliminary hearing.

Most MDJ’S and Common Plea Judges will most likely state that the Confrontation Clauses—Sixth Amendment and Pennsylvania Constitution Art. I, § 9—are for trial, however, in dicta, not binding, but persuasive the US Supreme Court stated otherwise.  See Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975),

Several things happen at a preliminary hearing either: charges are dismissed at the hearing; charges are withdrawn per agreement; stipulating to the Commonwealth’s evidence to withdraw charges and preserve a Habeas Corpus motion, or the alleged defendant waives his right to a preliminary hearing, possibly to withdraw charges and/or for a sentence alternative—ARD, Drug Court, Behavioral Health Court, etc.

It must also be noted that most counties require the defendant waive their preliminary hearing in order to get into sentence alternative programs, and for pleas. When one does not want to fight, or not go to trial, District Attorneys usually favor waiver.

When you have been accused of a crime, you find yourself facing a myriad of questions. Without proper legal guidance, you can easily make the wrong choices in this delicate time. The David Cohen Law Firm, LLC, has walked through the criminal courts multiple times with clients, helping them protect their rights and interests even in the face of serious accusations. If you have been accused of a crime, don’t put your freedom on the line. Trust David Cohen to help.

Philadelphia Police Officer Turned Pennsylvania Criminal Defense Attorney

The David Cohen Law Firm, LLC, is a Pennsylvania-based law firm offering criminal defense services to clients throughout the state. Because Attorney Cohen is an ex-Philadelphia police officer, he has a unique understanding of the way criminal cases and arrests should be handled. He is able to be an aggressive advocate for you, understanding how justice should be, and often isn’t, properly served.

Protect Your Freedom with the Right Legal Help

The criminal court system is supposed to treat the accused as if they are innocent until proven guilty, but this is not always the case. Entering the courts without the services of an experienced criminal defense attorney is dangerous. You put your freedom and future well-being on the line when you do. At the David Cohen Law Firm, LLC, we help balance the scales of justice. We believe that your legal issue is the most important one to you, and are ready to provide aggressive, effective advocacy for your case.

You don’t have to enter the criminal court system without an advocate. Attorney Cohen is ready to provide aggressive representation to ensure your rights are protected. He takes the time to get to know each client and the client’s goals, ensuring the best possible outcome for you. The team at David Cohen Law Firm, LLC, understands the requirements of the various Diversionary Courts in Philadelphia, and we bring that understanding to every case we handle.

Our firm handles all criminal cases, including everything from simple speeding tickets to actual felonies, so you can be certain that your case will be handled by a knowledgeable and skilled legal team. Serving the people of Montgomery County, Philadelphia, Chester County and many other counties throughout Pennsylvania, Attorney David Cohen is the partner you want on your side as you begin to navigate these confusing waters.

Criminal Defense

Preliminary Hearing

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