Reducing and Modifying Bail in Pennsylvania

Posted by Joseph D. Lento | Jul 18, 2017 | 0 Comments

Who will set a defendant's bail in Pennsylvania?

Bail is usually set by the issuing authority.  In Philadelphia, the "issuing authority" will be determined by at which stage of the criminal process bail is addressed; at a defendant's preliminary arraignment in the Criminal Division of Philadelphia Municipal Court, a bail commissioner will set bail.  At any time thereafter, the issuing authority will most likely be a judge sitting in the Criminal Division of Philadelphia Municipal Court or the Court of Common Pleas.  In any of the other Pennsylvania counties, the issuing authority will generally be a magisterial district judge sitting in the applicable magisterial district court, or in some instances, a judge sitting in the Court of Common Pleas in the applicable county.

Can bail be changed?  Decreased?  Increased?

Bail may be modified by the issuing authority at any time before the preliminary hearing, upon the request of the defendant with the consent of an attorney for the Commonwealth of Pennsylvania (an assistant district attorney in most instances), or at a defendant's preliminary hearing upon the request of either party.  Many defendants and their families do not realize that although the goal of a bail motion is to have a defendant's bail lowered, bail can be increased if the prosecution can present compelling reasons for the court to do so. An effective defense attorney will be prepared to respond to any claims made by the prosecution in support of a request for increased bail.

How is bail handled in Philadelphia County?

In Philadelphia, bail is set by six bail commissioners who are appointed to the Criminal Division of the Philadelphia Municipal Court to four year terms.  A judge sitting in the Philadelphia Court of Common Pleas can set bail and can also raise or lower bail at any time before a finding of a defendant's guilt.  Philadelphia bail matters, as with as Pennsylvania counties, are controlled by the fact that once bail has been set or modified by a judge of the Court of Common Pleas, it may not be modified except by a judge of a court of superior jurisdiction or by the same judge or by another judge of the Court of Common Pleas either at trial, or after notice to the parties and a hearing.

In Pennsylvania, a court of "superior jurisdiction" to a Court of Common Pleas would be the Pennsylvania Superior Court or the Pennsylvania Supreme Court.  An effective defense attorney will recognize that bail arguments are generally won or lost either in Philadelphia Municipal Court or the Philadelphia Court of Common Pleas.  Taking the necessary steps to present the strongest argument for the lowest possible bail, or a reduced bail when applicable, must be performed before a defendant's preliminary arraignment in Philadelphia, or when bail is addressed by either the "Motions" judge in courtroom 805 of the Philadelphia Criminal Justice Center, the "Smart Room" judge, or the "trial" judge after a criminal case is scheduled for trial. To expect satisfaction at a later time would not be an effective strategy.

Does a motion need to be filed to have bail reduced?

Whether in Philadelphia or any of the Pennsylvania counties, when bail is addressed in the Court of Common Pleas of the applicable county (in contrast to when bail is addressed at a Philadelphia preliminary arraignment or in Philadelphia Municipal Court as explained below, or when bail is addressed in most Pennsylvania counties, in the applicable magisterial district court), the defendant's attorney or the prosecutor must present the appropriate judge with a motion to modify bail, and provide notice of the motion to opposing counsel.

After a motion is appropriately filed and served upon opposing counsel (either the prosecution generally in bail reduction matters, or the defense attorney in cases where the prosecution seeks to have a defendant's bail increased), a court hearing must be held on the motion.  Bail reductions can also be sought through a petition for a writ of habeas corpus, although this is not the standard practice.

"Habeas corpus" literally means to "produce the body," and a writ of habeas corpus is a court order to a person or agency holding someone in custody (such as a prison warden) to deliver the imprisoned individual to the court issuing the order and to show a valid reason for that person's detention.

Does a formal bail motion have to be filed in Philadelphia Municipal Court?

One exception to when a formal bail motion needs to be filed is when bail is addressed at a preliminary hearing in Philadelphia Municipal Court.  The reason being is that Philadelphia Municipal Court is a "lower" court than the Philadelphia Court of Common Pleas. 

If a defendant is scheduled for a preliminary hearing in Philadelphia Municipal Court, the defendant has been charged with at least one felony offense.  Unlike the Philadelphia Court of Common Pleas, however, an "oral" bail motion can be made by a defendant's at a Philadelphia preliminary hearing.  A formal bail reduction motion can also be filed in Philadelphia Municipal Court, although such a practice is uncommon. 

If the bail reduction motion, whether oral or formal, is denied, a defendant's attorney can thereafter file a formal (as would be required) bail reduction motion with the Philadelphia Court of Common Pleas.  There are strategic reasons why a bail reduction motion may be more or less effective in Philadelphia Municipal Court versus the Philadelphia Court of Common Pleas; such a determination will depend on a number of considerations including the defendant's charges, the judges prospectively involved, and so forth.  An experienced Philadelphia defense attorney will understand the best course of action when addressing bail in a Philadelphia criminal case.

How important is a bail hearing in Pennsylvania?

A bail hearing is a critical stage of the Pennsylvania criminal court process, and a critical stage of trial proceedings specifically.  Because the amount at which a defendant's bail will be set will often determine whether the defendant's family (or other concerned parties in the defendant's life) will be able to post bail, a defendant is entitled by law to be represented by his or her attorney.  This principle was upheld by the United States Supreme Court in the case of United States v. Johnson, 516 F.Supp. 696 (E.D.Pa.1981), affirmed without opinion 688 F.2d 826 (3d Cir.1982), and affirmed again without opinion 709 F.2d 1496 (3d Cir.1983).

How is "reasonable" bail determined in Pennsylvania?

In requesting that reasonable bail be set, defense counsel should bring to the attention of the court that will be setting bail all of the factors which would indicate that the defendant will remain in the area and appear for trial. 

These factors include all of the bail factors specified in Pennsylvania Rule of Criminal Procedure 523.  Any other supporting factors, and extenuating circumstances as applicable, should also be brought to the court's attention.  Ultimately, an effective defense attorney will present information and documentation that support the argument that the defendant will appear in court as and when required, and therefore, should be released on bail.

How long after bail is posted will a defendant be released in Philadelphia?

Throughout most of Pennsylvania, bail is posted with the issuing authority until after the docket transcript is sent to the Court of Common Pleas of the applicable county.  After the transcript has been sent to the Court of Common Pleas, bail must generally be posted with the Clerk of Courts of the applicable county.  Because bail for a person arrested and charged with a crime in Philadelphia is set by a bail commissioner at a preliminary arraignment, an important consideration regarding how quickly bail is posted in Philadelphia after it is set will determine how long it will take for a defendant to be released from custody on bail.  Pennsylvania.

In Philadelphia, if bail is not posted in a timely fashion after bail is set at the preliminary arraignment (usually within two hours), the defendant will be transported to the jail complex on State Road to be processed.  Once transported to State Road, even if bail is posted shortly after the approximate two-hour time frame expires, the defendant will not be released until after being processed by the jail which can take up to 24 hours or longer.  This is why if a person arrested in Philadelphia is trying to be released from custody as soon as possible after being arraigned, bail has to be posted immediately, or at least within approximately two hours.

Can cash be posted as bail in Pennsylvania?

Bail can be posted in cash in Philadelphia and throughout Pennsylvania.  Per Rule of Criminal Procedure 535(A), when cash is posted, the issuing authority or Clerk of Courts who accepts a deposit of cash in satisfaction of a monetary condition of bail must give the depositor an itemized receipt and note on the transcript (or docket when applicable) and bail bond the amount deposited and the name of the person who made the deposit.  In addition, when an issuing authority accepts such a deposit, the deposit, the docket transcript, and a copy of the bail bond must be delivered to the clerk of courts.

It should be noted that if a monetary condition of bail is increased, the original monetary condition remains in effect, and additional cash or other form of security is required only for the amount of the increase.

Can bail be reviewed by a Pennsylvania appellate court?

An order granting or denying release on bail, or mitigating the conditions of release prior to sentence is subject to appellate review pursuant to Chapter 15 of the Pennsylvania Rules of Appellate Procedure. As noted above, a defendant and his or her family must aim to get the best possible result when bail is initially set, or at any time thereafter in the Court of Common Pleas (or in Philadelphia Municipal Court when applicable). 

Appealing a decision either denying bail or not reducing bail to a reasonable amount will involve considerations that will not be favorable to prospectively having such a concern resolved in a timely fashion in light of how long it can take an appellate court to review such a decision (and that is assuming that the appellate court would rule in the defendant's favor).

A related consideration is that even if a defendant's bail is improperly set prior to trial, there is no rule that a new trial is required.  This principle limiting a defendant's interests was established by Commonwealth v. Floyd, 494 Pa. 537, 431 A.2d 984 (1981).

Can a person be released on bail while appealing a conviction in Pennsylvania?

A person can be released on bail if appealing a conviction from a Pennsylvania Court of Common Pleas if certain specific conditions are met.  A defendant's application for release pending appeal from a conviction is controlled by Pennsylvania Rule of Criminal Procedure 521 and must generally be made as soon as possible to the applicable trial court.

A defendant's application to the Pennsylvania Superior Court, the appellate court above a Pennsylvania Court of Common Pleas, for release on bail or for modification of the conditions of release must specifically and clearly state the rulings complained of and the amount of bail set in the lower court.  The defendant's application must also be accompanied by a copy of the information.

In Pennsylvania criminal law, an "information" is the name of the document, sometimes called a criminal complaint or petition, in which a prosecutor charges a criminal defendant with a crime, either a felony or a misdemeanor. The information tells the defendant what crime he or she is being charged with, as well as against whom and when the offense allegedly occurred.

In cases where bail is denied, a defendant's petition for bail will not be accepted by the prothonotary of the Pennsylvania Superior Court unless it contains a statement of the reasons for which the common pleas judge denied bail, as required under Pennsylvania Rule of Criminal Procedure 521(C).

If a defendant prevails and bail is reduced by a Pennsylvania appellate court, the bail must be entered in the lower court; this would generally be done with the Clerk of Courts in the applicable Court of Common Pleas.

Attorney for Philadelphia Bail Hearing | Pennsylvania Bail Lawyer

If you or a loved one has been arrested and charged with a crime, make no mistake, the initial setting of bail can mean the difference between sitting in jail, sometimes unfortunately for months, or being able to go home to be with family, return to work, and to fight the charges from the best position possible - out of custody. 

Whether bail is being initially set or needs to be lowered in Pennsylvania, be it in  Philadelphia, Bucks, Chester, Delaware, Montgomery, Berks, Lancaster, Lehigh, or Northampton County, contact LLF Law Firm today.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Attorney Joseph D. Lento passionately fights for the futures of his clients in criminal courtrooms in Philadelphia and across Pennsylvania as well as in New Jersey and nationwide. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. With unparalleled experience occupying several roles in the criminal justice system outside of being an attorney, Joseph D. Lento can give you valuable behind-the-scenes insight as to what is happening during all phases of the legal process. Joseph D. Lento is licensed in Pennsylvania, New Jersey, and New York, and is admitted pro hac vice as needed nationwide. In the courtroom and in life, attorney Joseph D. Lento stands up when the bell rings!


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