Criminal Appeals

Under the Pennsylvania constitution, unlike the U.S. Constitution, there’s a right to a direct appeal.  The appeal process is much different than the trial process in a number of ways.  The notable differences are these:

• Appeals involve more legal research and writing than litigation, which means there is more desk work than court appearances. The hard work of an appeal is done in producing the brief and reproduced record to be submitted to the Pennsylvania Superior Court.

• Appeals are limited to a review of a narrow set of issues preserved in the trial court.

• Appeals are decided by a panel of three judges selected from the 15 commissioned judges on the Superior Court.
• There’s only one court appearance, and that’s oral argument, where each side is given 15 minutes of argument.

The Superior Court, being an “error-correcting court,” decides appellate issues under differing “Scopes and Standards of Review.”  The scope of review is the what the Superior Court looks at when addressing an issue on appeal.  And the standard of review is how the Superior Court looks at the issue.  

Generally, the Superior Court’s scope of review is either “plenary” (reviewing everything), or it’s more restricted.  Similarly, the Superior Court’s standard of review tends to be either one that is deferential, assessing for an “abuse of discretion,” or it’s one that is broad, where the Superior Court reviews an appeal on a “de novo” basis, meaning “anew.” The broader the standard of review, the better for the appealing party.  The more deferential the standard of review, the more difficult to prevail on appeal, which is tough enough.

According to Superior Court statistics for 2022, 77% of all appeals affirm the decision of the trial court. Annual Report of Statistics: Superior Court of Pennsylvania, 2022

In all cases, the Superior Court is bound by the factual findings of the fact-finder so long as they’re supported by the record on appeal.  In this regard, the Superior Court is stuck with the facts as found by the trial court and the law as decided by the Supreme Court. 

In Pennsylvania, the life of an appeal is lengthy and it follows this general trajectory:

• Notice of Appeal filed within 30 days of sentence or disposal of post-sentence motion.

• Trial court requests from appellant’s attorney a “Concise Statement of Matters Complained of on Appeal,” or what’s otherwise referred to as a “1925(b) Statement.”

• Trial court considers the 1925(b) Statement, then it issues an opinion detailing why the conviction and sentence should be upheld.

• After the trial court files its opinion, the trial record is sent up from the court of common pleas to the Superior Court.

• The Superior Court issues a briefing schedule, which generally requires that the Brief for Appellant be filed within 40 days.  The Commonwealth then is given 30 days from the date appellant’s brief is filed.  Briefing extensions are frequently granted.

• After the parties’ briefs are submitted, including any reply brief, the appeal may be scheduled for oral argument in the following weeks.
• After oral argument, the Superior Court then takes the appeal under advisement and issues an opinion within 90-120 days.

After the Superior Court has issued its opinion, either party can request reargument en banc before 9 judges of the Superior Court, or they can seek further review by the Pennsylvania Supreme Court by filing a Petition for Allowance of Appeal within 30 days of the Superior Court entering judgment. 

Further review, however, isn’t guaranteed, particularly before the Supreme Court.  Any further appeal in the Supreme Court is allowed only at the discretion of the Supreme Court, which accepts only a limited number of cases for specific and limited reasons.  Accordingly, for the majority of cases, the Superior Court’s disposition of an appeal is the end of the road for a criminal case.  

Not every criminal-defense attorney, or trial lawyer, is suited to do appellate work.  The work is intense in terms of legal research and writing, and not as exhilarating as a trial practice.   

Attorney James, however, both a trial and appellate lawyer, enjoys appellate work, and this firm was built up by handling appeals from the denial of post-conviction appeals (PCRAs) that Attorney James litigated in the Allegheny County Court of Common Pleas as court-appointed counsel. 

As of 2023, Attorney James has argued as counsel of record in approximately 50 cases pending before both of Pennsylvania’s intermediate appellate courts–the Superior Court and Commonwealth Court–which have included two en banc panels. These are a sampling of some of the appeals (not all criminal) that are representative of Attorney James’s appellate work:

• Comm. v. Luketic, 162 A.3d 1149 (Pa. Super. 2017): Successfully argued on appeal that the trial court’s jail sentence of 6 to 12 months violated the requirement that sentences be individualized.  The case was remanded for resentencing, which resulted in a probationary sentence.
• Comm. v. Durrett-King, 195 A.3d 255 (Pa. Super. 2018): Successfully argued on appeal that trial counsel rendered ineffective assistance in failing to raise an affirmative defense to client’s third-degree felony fleeing-and-eluding charge.  Case was remanded and the felony charge was ultimately vacated.
• Comm. v. Green, 203 A.3d 250 (Pa. Super. 2019) (en banc): Appeal of a felony forgery conviction, which initially resulted in a 2-1 decision that successfully vacated the client’s conviction.  The Superior Court granted reargument before the court en banc, which ultimately reinstated the forgery conviction by a vote of 6-3, clarifying the forgery statute in a precedent-setting opinion. The dissenting opinion summarizes the client’s main contention on appeal.
• T.S. v. Pennsylvania State Police, 231 A.3d 103 (Pa. Commw. 2020) (en banc): Successfully argued that Pennsylvania’s sex-offender registry (“Act 29”) was an unconstitutional ex post facto law, as applied to client, who was charged and convicted of sex crimes well before a sex-offender registry existed.
• In the Interest of M.Y.C., 230 A.3d 500 (Pa. Super. 2020): Appeal from a dependency adjudication, which affirmed the trial court’s adjudication of dependency on alternative grounds.
• Comm. v. Trainer, 287 A.3d 960 (Pa. Commw. 2022): Successfully argued on appeal that trial court improperly failed to return client’s firearm.  The Commonwealth Court agreed and reversed trial court’s improper order selling firearm.
• Comm. v. Hamilton, __ A.3d __ (Pa. Super. 2023): Successfully argued on appeal that trial counsel rendered ineffective assistance of counsel by agreeing to joinder of client’s homicide and theft cases.  Case was remanded with a grant of a new trial, thus vacating a 15-30 year sentence.
• Rand v. Young, 1375 WDA 2017 (Pa. Super., July 13, 2018): Civil appeal affirming the award of clients’ damages in a seller-disclosure/fraud action.