In the city of philadelphia can a criminal case be thrown out at the peliminary hearing?

Asked almost 2 years ago - Philadelphia, PA

possesion with intent to deliver is th e charge . The police claim they found it under passenger seat but got it out of the glove compartment. They took the passenger even though the driver was the owner of the car.

Additional information

there was 3 people in the car. THE CAR WAS PARKED AND THE KEY WAS NOT IN THE IGNITION. THE POLICE TOOK THE PASSENGER AND NOT THE DRIVER WHO WAS THE OWNER OF THE CAR

Attorney answers (6)

  1. Robert C. Keller

    Contributor Level 20

    8

    Lawyers agree

    Answered . A case can be dismissed at the preliminary hearing. The defendant needs an experienced criminal defense attorney to aggressively attack the Commonwealth's case. There are issues concerning the search and seizure that also need to be explorers. It is suggested that no more information be posted that the focus be on securing the right attorney.

  2. Michael Lawrence Doyle

    Pro

    Contributor Level 20

    6

    Lawyers agree

    Answered . It can be, but the standard for holding it over for trial is very low. As a result, it is important to realize that success at a preliminary hearing should not be measured by solely by whether charges are thrown out. There are many cases in which no charges are thrown out, but the answers given make it much more likely that you will succeed at trial.

    Michael L. Doyle
    (215) 900-5565

    This is not intended as individual legal advice and there is no attorney client relationship established by this... more
  3. Nicholas Milan Loncar

    Contributor Level 18

    7

    Lawyers agree

    Answered . Absolutely. If the government fails to show it has probable cause to keep the charges going forward, they can be dismissed. The Government has a low burden at preliminary hearing, so it is pretty unlikely to win at prelim. If you lose your preliminary hearing, don't be too concerned. The government will have to prove each element beyond a reasonable doubt at trial; this is a much higher standard.

  4. Michael Kotik

    Pro

    Contributor Level 13

    5

    Lawyers agree

    Answered . A case can be dismissed in Philadelphia at the preliminary hearing. Hire a good criminal defense attorney to represent you, he/she can explain to you in greater depth how the case can be dismissed.

    www.LEGALPHILLY.com

    Michael Kotik, Esq.
    Two Penn Center (Philadelphia)
    1500 John F. Kennedy Blvd., Suite 220
    Philadelphia, PA 19102
    267-265-4553 (Direct 24/7 Line)

    Answers are not of fact, but rather the opinion of the attorney answering the questions asked. At no time does... more
  5. William A. Jones Jr.

    Pro

    Contributor Level 20

    5

    Lawyers agree

    Answered . Having a case dismissed at the conclusion of a preliminary hearing is a possible outcome, but it is highly unlikely due to the very low burden required of the Commonwealth at that stage. Having a good attorney who is experienced in handling drug cases to prepare for and conduct the cross-examination of Commonwealth witnesses at the prelim is very, very important. Good luck.

  6. Stewart C Crawford Jr.

    Contributor Level 17

    4

    Lawyers agree

    Answered . A case most certainly be discharged at a preliminary hearing, however, you can also be re-arrested and re-charged. The purpose of the preliminary hearing is to test the sufficiency of evidence gathered by the Commonwealth; a Magistrate of District judge must decide whether or not the Commonwealth has enough evidence to make a prima facie case. Essentially, the Court must find: 1) that a crime has been committed, and 2) the defendant has probably committed it. If the Commonwealth fails to satisfy that test (i.e. demonstrating that a crime has occurred and the accused probably did it), then the defendant must be discharged. Pa. R. Crim. P 543. The Commonwealth’s burden of proof at the preliminary hearing is not as stringent as it would be at trial; the Commonwealth need not prove the elements of a crime beyond a reasonable doubt, although it must nevertheless furnish evidence to support the existence of each and every element of that crime. Com. v. Kelley, 664 A.2d 123, 126-27 (Pa. Super. Ct. 1995). While not ordinarily admissible at trial, hearsay evidence is allowed at the preliminary hearing and the Commonwealth may offer it to meet its burden of establishing prima facie case. Note, however, if hearsay testimony is the only basis for establishing an element of the crime at the preliminary hearing, it fails to meet the criteria for evidence upon which preliminary hearing judge may rely (i.e. hearsay alone cannot be considered by the Magistrate it must be corroborated by some other evidence). Com. v. Carmody, 799 A.2d 143 (Pa. Super. Ct. 2002).
    If the Commonwealth fails to provide enough evidence at the preliminary hearing to support a prima facie case and the accused is discharged, the Commonwealth is permitted to re-file those charges. Pa. R. Crim. P 544. Essentially, the Commonwealth can reinstitute the charge and re-arrest the defendant. This is not considered a violation of the double jeopardy doctrine (i.e. the rule against being tried more than once for the same crime) because a Magistrate's decision to dismiss criminal charges after a preliminary hearing is not appealable; therefore, the reinstitution of charges is the only recourse available to the Commonwealth to address an error by the Court. Com. v. Carbo, 822 A.2d 60 (Pa. Super. Ct. 2003). The authority of the Commonwealth to reinstitute charges is not unlimited. First, the charges must be reinstituted prior to the expiration of the applicable statute of limitations. In addition, the courts have held that the reinstitution may be barred in a case in which the Commonwealth has repeatedly rearrested the defendant in order to harass him or her. Reinstitution of charges could also be prohibited if it results in prejudice (i.e. harm to the accused). Com. v. Thorpe, 549 Pa. 343, 701 A.2d 488 (1997).

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