Tag Archives: Preliminary Arraignment

After an Arrest in Pennsylvania, You Get a Free Phone Call, Right? Well, Not Exactly…

Having watched a lot of Law & Order, most individuals believe that upon arrest, they will be provided at least one free phone call but that isn’t exactly true in Pennsylvania.

Upon arrest, there is no immediate right to a phone call in Pennsylvania. Within a reasonable time of being arrested, the Police officer must either release the defendant or bring the defendant before a Magisterial District Judge to be preliminarily arraigned on charges.

What is a reasonable time? Unfortunately, this is has never been strictly defined in PA and has varied on a case by case basis. One day is generally accepted to be the longest acceptable time to be held without being arraigned.

Moreover, the police do have the authority to arrest people and then release them to be charged later by citation or summons. This type of arrest and release is only allowed in public drunkenness and DUI cases, or in cases in which the individual cannot immediately verify their identity.

There is no right to call anyone during that period of time.

If the police do choose to question a defendant, the individual’s Miranda Rights are implicated. The police must advise a defendant of those rights, including the right to counsel. If a defendant invokes his right to counsel (which you should ALWAYS do IMMEDIATELY, regardless of what the police threaten you with or promised to you), questioning must cease, although there are plenty of examples where the police or a different police officer continues asking questions. In our experience, in most instances, the police will simply end questioning upon invocation of counsel and will not give a defendant an opportunity to obtain counsel.

After the police prepare the charges, a defendant will be brought before a Magisterial District Judge for preliminary arraignment. A defendant does not have a right to contact anyone, including counsel, before or at arraignment. Some judges have also made it difficult for lawyers who know that their client has been arrested to appear at preliminary arraignment (we believe that this a violation of the 6th amendment but have never had a chance to litigate it).

However, after preliminary arraignment, a defendant does have a right to contact individuals, including his/her attorney. The Pennsylvania Rules of Criminal Procedure, Rule 540 states:

 (H)  After the preliminary arraignment, if the defendant is detained, the defendant shall be given an immediate and reasonable opportunity to post bail, secure counsel, and notify others of the arrest. Thereafter, if the defendant does not post bail, he or she shall be committed to jail as provided by law.

There is no case law interpreting this provision.

At this point, depending on the county, the defendant may be held in custody by the police, the sheriff or a constable. In our experience, the magisterial district judge will normally allow for multiple phone calls.

But, what if my attorney’s phone number is in my wallet or on my phone? Generally, a Judge will allow a defendant to review his/her cell phone or wallet for any phone numbers. We have also seen cases in which the Judge will allow a defendant to use a phone book or will direct court staff to do an internet search to get a phone number. We’ve also seen judges put a defendant in a room with a phone and tell them that they have 15 minutes to call whoever they want.

The only time that we have seen a defendant not be allowed to check their cell phone is if the phone may constitute or contain evidence of a crime. For example, drug dealers often exchange text messages about drug deals. A court would not give a defendant the chance to delete text messages.

So, while there is no obligation to allow a defendant to have access to a wallet or cell phone, the arraigning court does regularly allow it. Even if a defendant is not given that access, they can certainly use a phone book to look up their attorney’s number, or they can call a family member or have a family member call their attorney.

If you or someone you know has been charged with a crime, contact Prince Law Offices, P.C. today to discuss YOUR rights and legal options.

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I just got notice for a preliminary arraignment, what is a preliminary arraignment?

It is very upsetting when ones liberty is placed in jeopardy. However, of all the criminal proceedings, a preliminary arraignment is a minor proceeding.

All the preliminary arraignment is, is for the Magisterial District Judge to inform you: of your right to counsel, your charges, a copy of the criminal complaint and affidavit of probable cause, set the preliminary hearing date, and set bail.

Briefly, bail is usually secured or unsecured, along with conditions, one of which is to show up for criminal proceedings. Secured is nothing more than a monetary amount that must be posted in order to be released and to guarantee that you will show up for all required criminal proceedings. Unsecured, is a monetary amount held is limbo, along with any other conditions set, and your guarantee that you will show up for all required criminal proceedings. Failure to abide by conditions of bail will result in a bench of warrant for your arrest being issued, having to post the amount of bail set, and possibly losing your freedom until the outcome of bail hearing or outcome of your case. Sometimes bail is set Release on Recognizance (ROR). See Pa. R. Crim. P. 524. Types of Release on Bail.

 Again, “The preliminary arraignment required by the Pennsylvania Rules of Criminal Procedure is a procedure designed to inform the accused of the nature of the charges against him and to protect the accused’s right to counsel, right to bail and his right to a preliminary hearing.” Commonwealth v. Williams, 484 Pa. 590, 400 A.2d 1258, 1260 (Pa. 1979).

“Rule 540.  Preliminary Arraignment

(A) In the discretion of the issuing authority, the preliminary arraignment of the defendant may be conducted by using two-way simultaneous audio-visual communication. When counsel for the defendant is present, the defendant must be permitted to communicate fully and confidentially with defense counsel immediately prior to and during the preliminary arraignment.

(B) If the defendant is under the age of 18 at the time the complaint is filed and is charged with one of the offenses excluded from the definition of “delinquent act” in paragraphs (2)(i), (2)(ii), and (2)(iii) of 42 Pa.C. S. § 6302, the issuing authority shall determine whether the defendant’s parents, guardian, or other custodian have been notified of the charge(s). If the parents, guardian, or other custodian have not been notified, the issuing authority shall notify them.

(C) At the preliminary arraignment, a copy of the complaint accepted for filing pursuant to Rule 508 shall be given to the defendant.

(D) If the defendant was arrested with a warrant, the issuing authority shall provide the defendant with copies of the warrant and supporting affidavit(s) at the preliminary arraignment, unless the warrant and affidavit(s) are not available at that time, in which event the defendant shall be given copies no later than the first business day after the preliminary arraignment.

(E) If the defendant was arrested without a warrant pursuant to Rule 519, unless the issuing authority makes a determination of probable cause, the defendant shall not be detained.

(F) The issuing authority shall not question the defendant about the offense(s) charged but shall read the complaint to the defendant. The issuing authority also shall inform the defendant:

(1) of the right to secure counsel of choice and the right to assigned counsel in accordance with Rule 122;

(2) of the right to have a preliminary hearing, except in cases being presented to an indicting grand jury pursuant to Rule 556.2; and

(3) if the offense is bailable, the type of release on bail, as provided in Chapter 5 Part C of these rules, and the conditions of the bail bond.

(G) Unless the preliminary hearing is waived by a defendant who is represented by counsel, or the attorney for the Commonwealth is presenting the case to an indicting grand jury pursuant to Rule 556.2, the issuing authority shall:

(1) fix a day and hour for a preliminary hearing which shall not be later than 14 days after the preliminary arraignment if the defendant is in custody and no later than 21 days if not in custody unless:

(a) extended for cause shown; or

(b) the issuing authority fixes an earlier date upon request of the
defendant or defense counsel with the consent of the complainant and
the attorney for the Commonwealth; and

(2) give the defendant notice, orally and in writing,

(a) of the date, time, and place of the preliminary hearing,

(b) that failure to appear without cause for the preliminary hearing
will be deemed a waiver by the defendant of the right to be present at
any further proceedings before the issuing authority, and will result
in the case proceeding in the defendant’s absence and in the issuance
of a warrant of arrest, and

(c) if the case is held for court at the time of the preliminary
hearing that if the defendant fails to appear without cause at any
proceeding for which the defendant’s presence is required, including
the trial, the defendant’s absence may be deemed a waiver of the right
to be present, and the proceeding may be conducted in the defendant’s
absence.

(H) After the preliminary arraignment, if the defendant is detained, the defendant shall be given an immediate and reasonable opportunity to post bail, secure counsel, and notify others of the arrest. Thereafter, if the defendant does not post bail, he or she shall be committed to jail as provided by law.

(I) If a monetary condition of bail is set, the issuing authority shall accept payment of the monetary condition, as provided in Rule 528, at any time prior to the return of the docket transcript to the court of common pleas.”

Pa. R. Crim. P. 540

Attorneys usually are not present or even appointed for preliminary arraignments, unless there are serious charges because more likely than not one with serious charges, like murder, would not be released on bail, and even if an attorney is present for serious offenses, more likely than not one would not be released at a preliminary arraignment.

Briefly, there are several different criminal proceedings after preliminary arraignment: preliminary hearing, formal arraignment, pretrial motions, pretrial conferences and status hearings. There is only a trial if you case survives the preliminary hearing, survives any pretrial motions, or if you are eligible for a sentence alternative program and accepted into the program, like Accelerated Rehabilitative Disposition (ARD) then there would be no trial, otherwise the final step is trial, then if found guilty one may appeal the guilty verdict.

Remember, all the preliminary arraignment is, is for the Magisterial District Judge to inform you: of your right to counsel, your charges, a copy of the criminal complaint and affidavit of probable cause, set the preliminary hearing date, and set bail.

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