Philadelphia Court of Common Pleas Judge Reinstates Murder Charges Against Former Police Officer – Why did the judge overrule the lower court?  The difference between preliminary hearings and trials

Recently, a Philadelphia Court of Common Pleas judge overruled the decision of Municipal Court and reinstated murder charges against former Philadelphia Police Officer Mark Dial.  Dial was remanded to the county jail and will now face a Murder trial where he would receive a mandatory life sentence if he was convicted on the lead charge. 

The Philadelphia District Attorney’s Office filed the appeal and made the argument that the lower Court judge made the wrong decision given that the proceeding before the lower Philadelphia court was a preliminary hearing and not a trial.  Specifically, the prosecutors argued that the lower court erred when that judge stated that prosecution failed to present sufficient evidence.  The judge agreed with the prosecutors and reinstated the charges.  The Court specifically stated that the defense had raised trial issues at a preliminary hearing. 

This case presents an opportunity to explain preliminary hearings in Pennsylvania. 

What is a Preliminary Hearing? 

An accused person in Pennsylvania has the right to a preliminary hearing with exception to those matters where a grand jury is used in a prosecution. The purpose of a preliminary hearing is to prevent the Commonwealth (State) from unlawfully arresting and detaining someone for a crime which was either never committed or for which there is no evidence of the accused’s involvement.

At a preliminary hearing, the District Attorney must establish at least a “prima facie” level of proof that a crime was committed and that the accused person was the one who committed that crime. This is a substantially lower level of proof then that required at trial which is guilt beyond a reasonable doubt. At a preliminary hearing the district attorney must present legally competent evidence which connects the accused to a crime regardless of the crime.

What evidence is admissible at a Preliminary Hearing? 

Unlike at a trial, hearsay evidence is admissible at a preliminary hearing. Hearsay is an out of court statement offered for the truth which usually takes the form of another person’s words but can also be documents for which there are some exceptions (medical documents, business records). Hearsay is an extremely complicated legal topic and the purpose of this article is not to explain it.

Law students and attorney’s themselves struggle with the concept frequently but it’s important to keep in mind that a witness can only testify based on their observations. They can’t testify about something that was told to them by another person. The primary reason behind this concept is the issue of reliability as to what was actually said. While there are exceptions to the hearsay rule those exceptions are beyond the scope of this short article.

While the Commonwealth (District Attorney) can present hearsay evidence during a preliminary hearing, it can’t base its whole case on that hearsay evidence. In Pennsylvania, many prosecutors have argued that the recent case of Commonwealth v. Ricker allows them to freely use hearsay evidence. While this is true, an older case, Commonwealth v. Buchanan, a Pennsylvania Supreme Court decision, specifically says that fundamental due process prevents the prosecution from presenting a case solely based on hearsay evidence.

Why are preliminary hearings important? 

The preliminary hearing is extremely important to your case and you should never assume that it doesn’t matter or it is in some way insignificant.

There are situations where waiving a preliminary hearing makes strategic sense but this is only after a careful evaluation of the advantages and disadvantages of going forward with it.

What should your criminal defense lawyer do at a preliminary hearing?

If your criminal defense lawyer is advising you to move forward with the hearing his or strategies should focus on the following 3 points:

1. Collect information

This hearing is your first opportunity to evaluate the strength of the prosecution’s case usually in the form of one of their strongest witnesses. Most experienced judges won’t allow a defense attorney to ask questions about possible illegal search and seizure issues, or questions meant to impeach the credibility of a witness. These types of questions are for pre-trial and trial but that doesn’t mean that your defense lawyer should ignore them completely. During the hearing your attorney should collect information about the lighting conditions, the witness’s position in relation to the incident, the length of the observation and what, if anything, was happening around the witness during the observation.

2. Ask only leading questions of the prosecution’s witnesses.

Preliminary hearings are for the prosecution to present its prima facie case against the accused and not to establish guilt. Your defense attorney, however, must use this opportunity to lock the prosecution’s witnesses into an answer and there is no better way of doing it than leading questions. Leading questions, unlike open-ended questions (aka non leading) imply the answer in the question itself. For instance, a leading question is something like, “it was raining out, correct?” A non-leading question is “what was the weather like on the day in question?” Leading questions allow your attorney to control the witness’s response and doesn’t allow the witness to add further details which could hurt your case.

3. Argue what wasn’t argued.

The prosecution’s burden at a preliminary hearing is very low and challenging their argument will do little if anything to cause the judge to dismiss or downgrade charges. It is much stronger to argue what the prosecution didn’t present. In a drug case, for instance, where the charge is possession with the intent to deliver (PWID) your attorney should focus on the lack of observed sales, lack of drug sale paraphernalia (bags, scales, etc.) and the absence of money. On a gun or firearm charge your attorney should look at the location of the gun if the person is charged with the illegal possession of handgun. This particular charge requires the gun be out of the person’s home or place of business. On a drunk driving or DUI charge your criminal defense lawyer should look at the length of the officer’s observation if you are charged with general impairment under Section 3802(a)(1).

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