Does waiving the preliminary hearing waive my suppression motion?

No. Under Pa.R.Crim.P. 541(A)(1), a waiver precludes raising "the sufficiency of the Commonwealth's prima facie case" — and Rule 541 is silent on suppression. A stop, a search, a blood draw or a statement can still be challenged in the Court of Common Pleas. An attorney can confirm how this applies to your case.

What if the deal I waived for falls through?

Under Rule 541(A)(2), "If the defendant waives the preliminary hearing by way of an agreement, made in writing or on the record, and the agreement is not accomplished, the defendant may challenge the sufficiency of the Commonwealth's prima facie case."

Preliminary hearing · Waiver

Should I waive my preliminary hearing in Pennsylvania?

It gives up one specific thing. It is often described as giving up more.

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The short answer

Waiving the preliminary hearing gives up the right to test whether the Commonwealth can make out a prima facie case. It does not give up a suppression motion, and it does not concede guilt. Whether waiving is right depends on what you get for it, which in several central Pennsylvania counties is access to ARD.[1]

What the rule actually says

Pa.R.Crim.P. 541 prints capital subsection letters.

541(A): "The defendant who is represented by counsel may waive the preliminary hearing at the preliminary arraignment or at any time thereafter."
541(A)(1): "The defendant thereafter is precluded from raising the sufficiency of the Commonwealth's prima facie case unless the parties have agreed at the time of the waiver that the defendant later may challenge the sufficiency."
541(A)(2): "If the defendant waives the preliminary hearing by way of an agreement, made in writing or on the record, and the agreement is not accomplished, the defendant may challenge the sufficiency of the Commonwealth's prima facie case."

What a waiver does not give up

What Rule 541 forfeits is defined narrowly — and the rule says so twice.

Rule 541(A)(1) speaks of "the sufficiency of the Commonwealth's prima facie case."
Rule 541(C)(2) requires the defendant to certify an understanding that "by waiving the right to have a preliminary hearing, he or she is thereafter precluded from raising challenges to the sufficiency of the prima facie case."

Waiving a preliminary hearing does not waive a motion to suppress.

Rule 541 forfeits only the sufficiency challenge. Suppression runs under a different rule: Pa.R.Crim.P. 581(B) provides that a suppression motion "shall be made only after a case has been returned to court and shall be contained in the omnibus pretrial motion set forth in Rule 578,"[4] and Pa.R.Crim.P. 579(A) requires that motion to be "filed and served within 30 days after arraignment," absent the exceptions those rules state.[5] So a stop, a search, a blood draw or a statement can still be challenged in the Court of Common Pleas after a waiver — but Rule 581(B) adds that "[i]f timely motion is not made hereunder, the issue of suppression of such evidence shall be deemed to be waived." That deadline, not the waiver, is what actually loses a suppression issue. An attorney can confirm how this applies to your case.

The waiver has to be certified in writing, and it cannot be given at the preliminary arraignment without counsel

Under 541(B), "The defendant who is not represented by counsel at the preliminary arraignment may not at that time waive the preliminary hearing."

The Comment adds that "the defendant who elects to proceed pro se may waive the preliminary hearing at a time subsequent to the preliminary arraignment." The bar is on waiving unrepresented at that first appearance, not on waiving at all.

Under 541(C), a defendant who waives and consents to be bound over, and the defense attorney, if any, "shall certify in writing" that the issuing authority told the defendant of the right to have a preliminary hearing, that a represented defendant understands the preclusion described above, and that "the defendant voluntarily waives the hearing and consents to be bound over to court."

The Comment to Rule 541 explains that paragraph (A)(1) was written to address the situation where a defendant waives in return for a benefit — such as a reduction in bail or the withdrawal of charges — and then attacks the prima facie case later by pre-trial means.

Waiving is usually a trade

A waiver is normally given in exchange for something, and the Comment to Rule 541 contemplates exactly that. In central Pennsylvania, the most common thing on the other side of the trade is ARD — and the counties handle it differently.

Cumberland County — the county's published Central Court DUI information sheet makes waiver a condition of its Fast Track ARD/DUI program: "Preliminary hearing must be waived to be eligible." Its Regular ARD/DUI program is the traditional post-hearing process. Confirm which track applies before the hearing date. See Cumberland County preliminary hearings.
Dauphin County — the published ARD process allows the application to be completed "either at his/her preliminary hearing, or at his/her formal arraignment," with application at the preliminary hearing requiring that arraignment be waived. See Dauphin County preliminary hearings.
Lancaster County — the published DUI ARD process lists "Waive your preliminary hearing" as the first step, and applications "must be submitted by the offender's preliminary hearing date and no later than the formal arraignment date." Non-DUI ARD uses a separate application. See Lancaster County DUI defense.
York County — the District Attorney's published process runs the other way, and filing "must occur after the preliminary hearing, however, the application must be submitted within 30 days from the original arraignment date, absent an excusal by the Court." See York County preliminary hearings.

The point: in some counties the waiver decision and the ARD decision are the same decision, made on the same morning. In others they are not. That is why the answer depends on your county and on what is offered in exchange. More on the Pennsylvania ARD program.

Once it is waived

Under 541(D), once the preliminary hearing is waived and the case bound over, "if the right to a preliminary hearing is subsequently reinstated, the preliminary hearing shall be held at the court of common pleas unless the parties agree, with the consent of the common pleas judge, that the preliminary hearing be held before the issuing authority."

Under 541(E), "[w]hen the defendant waives the preliminary hearing, the case shall proceed as provided in Rule 543(C)" — bail is set or the existing order continued, compliance with processing and fingerprinting can be made a condition of bail, and the defendant is advised that failing to appear without cause at a proceeding requiring their presence "may be deemed a waiver of the right to be present, and the proceeding may be conducted in the defendant's absence."

Under Rule 543(G), "Except as provided in Rule 541(D), once a case is bound over to the court of common pleas, the case shall not be remanded to the issuing authority."[3]

Rule 541 contains no procedure for simply withdrawing a waiver. It addresses only reinstatement, and where the hearing is then held.

What you would be giving up

Holding the hearing has real value under Rule 542.[2]

· Under 542(C), "[t]he defendant shall be present at any preliminary hearing except as provided in these rules, and may" be represented by counsel; cross-examine witnesses and inspect physical evidence offered against the defendant; call witnesses on the defendant's behalf, other than witnesses to good reputation only — which the Comment limits to negating a prima facie case, "not merely for the purpose of discovering the Commonwealth's case"; offer evidence on the defendant's own behalf, and testify; and "make written notes of the proceedings, or have counsel do so, or make a stenographic, mechanical, or electronic record of the proceedings."
· Under 542(D), the Commonwealth's burden to show "a prima facie case that (1) an offense has been committed and (2) the defendant has committed it."
· Under Rule 543(B), the possibility that where no offense is made out, "the issuing authority shall discharge the defendant."

Balance that honestly. Under Rule 542(E), "Hearsay evidence shall be sufficient to establish any element of an offense, including, but not limited to, those requiring proof of the ownership of, non-permitted use of, damage to, or value of property," and the Comment states that "The presence of witnesses to establish these elements is not required at the preliminary hearing." The Comment follows that sentence with the signal "But compare" — Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d 172 (Pa. 1990), a plurality decision disapproving reliance on hearsay testimony as the sole basis for establishing a prima facie case.

The honest conclusion: in many cases the hearing will not end the case — which is precisely why what you are offered in exchange matters. For how the hearing itself works, see the Pennsylvania preliminary hearing guide.

FAQ

Frequently asked questions.

Common questions about waiving a Pennsylvania preliminary hearing.

No. Under Pa.R.Crim.P. 541(A)(1), a waiver precludes raising "the sufficiency of the Commonwealth's prima facie case" — and Rule 541 is silent on suppression. A stop, a search, a blood draw or a statement can still be challenged in the Court of Common Pleas. An attorney can confirm how this applies to your case.
Rule 541 contains no procedure for simply withdrawing a waiver. It addresses only reinstatement: under Rule 541(D), if the right to a preliminary hearing is subsequently reinstated, the hearing is held at the court of common pleas unless the parties agree, with the consent of the common pleas judge, that it be held before the issuing authority. Under Rule 543(G), except as provided in Rule 541(D), a case bound over to the court of common pleas is not remanded to the issuing authority.
No. A waiver gives up the right to test whether the Commonwealth can make out a prima facie case. It does not concede guilt.
Not at the preliminary arraignment. Under Rule 541(B), "The defendant who is not represented by counsel at the preliminary arraignment may not at that time waive the preliminary hearing." Under Rule 541(C), the waiver must be certified in writing.
A waiver is normally given in exchange for something. The Comment to Rule 541 contemplates a waiver in return for a benefit such as a reduction in bail or the withdrawal of charges, and in several central Pennsylvania counties the published ARD process ties the ARD application to the waiver.
Under Rule 541(A)(2), "If the defendant waives the preliminary hearing by way of an agreement, made in writing or on the record, and the agreement is not accomplished, the defendant may challenge the sufficiency of the Commonwealth's prima facie case."

[1]Pa.R.Crim.P. 541 — Under 541(A) a defendant represented by counsel may waive the preliminary hearing; under 541(A)(1) the defendant is thereafter precluded from raising the sufficiency of the Commonwealth's prima facie case unless the parties agreed at the time of the waiver that the defendant later may challenge it; under 541(A)(2), if the waiver was by an agreement made in writing or on the record and the agreement is not accomplished, the defendant may challenge the sufficiency. Rule 541 says nothing about suppression.
[2]Pa.R.Crim.P. 542 — Rule 542(D) sets the prima facie standard; Rule 542(C) requires the defendant to be present at any preliminary hearing except as provided in these rules, and then lists five things the defendant may do; Rule 542(E) governs hearsay.
[3]Pa.R.Crim.P. 543 — Amended January 4, 2022, effective July 1, 2022, 52 Pa.B. 346. Rule 543(B) governs holding for court and discharge; 543(D)(3) governs a hearing conducted in the defendant's absence; 543(G) bars remand once a case is bound over, except as provided in Rule 541(D).
[4]Pa.R.Crim.P. 581 — Suppression of Evidence. Rule 581(B) provides that a suppression motion shall be made only after a case has been returned to court and shall be contained in the omnibus pretrial motion set forth in Rule 578, and that if a timely motion is not made the issue of suppression of such evidence shall be deemed to be waived.
[5]Pa.R.Crim.P. 579 — Time for Omnibus Pretrial Motion. Rule 579(A) requires the omnibus pretrial motion for relief to be filed and served within 30 days after arraignment, unless the opportunity did not exist, the parties were unaware of the grounds, or the time for filing has been extended by the court for cause shown.

Statutes are summarized for public reference. Confirm current text at palegis.us. This page is attorney advertising, not legal advice.

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