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Appeals

The Law Offices of Lonny Fish

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Have you been convicted of a Crime and wish to Appeal?   I am the lawyer in Pennsylvania for you. You have thirty (30) days from sentencing to file a Notice of Appeal to the Superior Court, unless Post Sentence Motions have been filed. If Post Sentence Motions are filed, you have thirty (30) days from the denial of those motions, whether it be by the Court or operation of law, to file a Notice of Appeal to the Superior Court.

Our firm services all 67 counties in PA for Criminal Appeals including Philadelphia County, Delaware County, Bucks County, Chester County, Montgomery County, Berks County, Lancaster County, Dauphin County (Harrisburg), York County, Lehigh County, Northampton County and Allegheny County (Pittsburg).

Our firm provides the following Appellate Services:

  • Direct Appeal to Superior Court
  • Post-Trial Motions
  • PCRA or Post Conviction Relief Act
  • State Probation and Parole Appeals
  • Appeals to the Supreme Court of Pennsylvania
Direct Appeal to Superior Court

Direct Appeals are one of the first lines of attack post-sentencing.   In Direct Appeal to the Pennsylvania Superior Court, one generally argues errors in law.  Some remedies include vacating of sentences or a remand for trial or sentencing.   Common claims on Direct Appeal to the Pennsylvania Superior Court are:

  1. Insufficient evidence
  2. Verdict against the weight of the evidence
  3. Abuse of Discretion in denying Motions to Suppress or other Pre-trial Motions
  4. Errors in Jury instructions or instructions in law
  5. Abuse in Discretion in overruling particular objections or other evidentiary rulings
  6. Failure to Declare a Mistrial
  7. Excessive Sentence

Once a notice of Appeal is filed it is required to file a 1925(b) statement.  This is, in other words, a statement of matters for which you are appealing.  In this statement, one must be complete as any issues not raised are waived.   Once the Trial Court receives the statement, it will the write and Opinion.    Once the Opinion is received, Counsel is given a briefing schedule and once briefs and other filings are compete,  oral argument is possible. 

Post-Sentence Motions

You have ten (10) days from sentencing to file post sentence motions.   Those motions include:

  •  (i)   A motion challenging the validity of a plea of guilty or nolo contendere, or the denial of a motion to withdraw a plea of guilty or nolo contendere;
  • (ii)   A motion for judgment of acquittal;
  • (iii)   A motion in arrest of judgment;
  • (iv)   A motion for a new trial; and/or
  • (v)   A motion to modify sentence.
Post Conviction Relief Act or PCRA

To be eligible for relief under the PCRA, a defendant must have been convicted of a crime in PA and serving a sentence, whether in prison or on parole or probation.   PCRA’s are generally filed after appeals to the Superior or Supreme Court.  However, if one does not pursue a direct appeal, he/she can seek relief under the PCRA.   PCRA’s are generally time barred one year from when the Order or sentence is final, with a few exceptions.   PCRA’s are premature if the Superior Court or another appellate Court is reviewing the case, with a few exceptions. 

Some grounds for relief are:

  • Ineffective Assistance of Counsel
  • After Discovered Evidence or Newly Discovered Evidence
  • Failure to Disclose Evidence
  • Prosecutorial Misconduct
  • Failure to Protect Appellate Rights
  • Plea of Guilty Unlawfully Induced
  • Ineffective Assistance of Counsel

Everyone has a constitutional right to COMPETENT counsel.  One is eligible for relief when counsel’s act or omission “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.”   It must be proven that (1) the issue underlying the claim of ineffectiveness has arguable merit, an (2) counsel did not have a reasonable basis for the act or omission.   The act or omission must have had an adverse effect on the proceedings.

Counsel can be ineffective for not filing pre-trial motions such as motions to suppressor motions to sever.    Trial counsel can be ineffective for failing to present evidence, failing to cross examine, failing to object, and failing to request certain jury instructions.  

After Discovered Evidence or Newly Discovered Evidence

PCRA’s are generally time barred one year from when the Order or sentence is final.  One exception is after discovered evidence.  After discovered evidence must be promptly presented.   The evidence must have been unavailable at the time of trial through reasonable diligence.   Among other requirements, the evidence be proven to compel a different verdict.    Some common forms of newly discovered evidence is recantation testimony, DNA evidence or other eye-witness testimony. 

Failure to Disclose Evidence

The prosecutions failure to disclose exculpatory evidence in violation of Brady v. Maryland may undermine the truth determining process and require a new trial.  Brady material is evidence that is in the possession of the prosecution or the police that is material to the guilt or innocence or to the punishment of a defendant.   There withholding of Brady material must have affected the outcome of trial and not be readily obtainable by the defense.  

Prosecutorial Misconduct

In addition to Brady violations, other claims of prosecutorial misconduct that violate due process may require a new trial.  Other examples include improper remarks to the jury throughout the trial including opening and coding statements.  In order to prevail, the act must have undermined the truth determining process.  

Failure to Protect Appellate Rights

If counsel fails to file a timely appeal or post-trial motion, one is entitled to relief.   Said relief would include reinstatement of appellate rights.   If counsel is ineffective in appeal, appellate rights can be reinstated as well.

Plea of Guilty Unlawfully Induced

One who has pled guilty may seek post-conviction relief where the plea was unlawfully induced.  One must assert their innocence in this process.   It must be proven that the plea was a result of a manifest injustice.   The proposed relief would be a withdrawal of the plea and a trial. 

State Probation and Parole Appeals

Has the Pennsylvania Board of Probation and Parole issued a revocation decision?  An inmate will receive a “green sheet”, with a revocation decision and reasons for it.  Common reasons for appeal are:

  • Insufficient Evidence
  • Error of Law (Timeliness, jurisdiction, hearsay, etc.)
  • Violation of Constitutional law (Due process, double jeopardy, etc.)
  • Recommitment Challenge
  • Sentence Credit Challenge
  • Insufficient Reasons for sentences above presumptive ranges.

Appeals are first taken by completing an Administrative remedies form.  If the administrative appeal is denied, it can be followed by an appeal to Commonwealth Court.

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1500 Walnut St.
Suite 2000
Philadelphia, PA 19102

Phone: 215-732-3474

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