For the Defense - Vol. 5, Issue 3 - 30

discharge, it is a potent weapon that should never
the prosecution. If you have to follow-up with the
be overlooked.
Commonwealth about discovery they have failed to
hand over, be sure to memorialize such requests in
expert look at the report generated by SCRAM. Also,
into an agreement with the Vigilnet not to tamper
NOTES:
a writing
such
asthere
an email.
1
be aware
that
may be two reports, the one from
with the device,
as well
as acknowledging
Commonwealth
v. Mills,
162 A.3d
323 (Pa. 2017). other
2
SCRAM
and
a
local
one.
Be
aware
of
how
the
rules
criteria.
For
purposes
of
this
article,
U.S. ConSt. Amend. VI; PA. CONST. art.
1, § 9.however, I will
* If a continuance is required due to the
3
governing hearsay and expert testimony may apply in
not
delve
into
those
arguments
since
Ms.
Manzi
Commonwealth v. DeBlase, 665 A.2d 427,
431
(Pa.
1995).never
Commonwealth's failure of diligence, be sure to
4
Barker
v. Wingo,
514, 530
(1972) (articulating
this unique context. Familiarize yourself with the Frye
disputed
that407
sheU.S.
agreed
to follow
the rules. the
putstandard
that onand
the be
record
at the
7
constitutional
Commonwealth
v. Preston,
904atA.2d
prepared
totime
raise the
thatcontinuance
issue at the
Testimonytest);
Notes
of Feb. 23, 2017
Hearing
96,
1, Manzi
10 (Pa. Super.
Ct. 2006) (the Barker test is an entirely
is requested.
appropriateEven
time.if the judge does not rule in
(No. CP-67-CR-0005560-2016).
separate
analysis fromv.Rule
600 and
be
8
Commonwealth
Manzi,
No. therefore
465 MDAneeds
2017,to2018
your favor, you have at least preserved the issue for
raised separately).
Review
the
SCRAM
corporate
website
so
you
are
WL
1457554
(Pa.
Super
Ct.
Mar.
27,
2018)
1-2
n.
1
(The
appeal.
5
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
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familiar with what they claim their products can

* Alldo.
motions
to dismiss
pursuant
Rulemakes
600 must
be
See if what
SCRAM
is sayingtoeven
sense.
31
The
Violation
Petition
in
this
case
was
based
on
the
made in writing. File your client's motion after the
allegation
thathas
Ms.elapsed.
Manzi tampered
with
her rules
monitor
365-day
period
If the trial
judge
because, over a several-hour period, there was a
against you and subsequently the Commonwealth
single TAC reading of .007%. This aberrant reading
causes
substantial
period
ofby
delay,
file
very another
easily could
have been
caused
environmental
a new
Rule
600 than
motion
based on
this additional
factors
rather
by alcohol
consumption.
Moreover,
time
andmore
litigate
it prior
any
trial
to preserve
in the
likely
eventto
that
the
reading
wasn't an
based
on
alcohol
consumption,
that
begs
the
question:
why
objection to the additional time period.
would someone tamper with the monitor and then

* Atnot
thedrink?
Rule 600 hearing, after the defense has
made a prima facie showing that the defendant
The been
number
one lesson
for within
me in this
was that
has not
brought
to trial
365case
days,
the
Commonwealth
expects
the
risk
and
money
the Commonwealth bears the burden of provingfactors
to weigh substantially on its side and does not expect
that they have nonetheless acted with diligence.
challenges to the SCRAM monitors. Until such time as
This
means that
aftermore
the defense
made
challenges
become
common,has
it may
besuch
worth the
a prima
facie
is the Commonwealth
fight, to
seeshowing,
what the it
Commonwealth
is willing to do
regarding
individual
who
should your
be required
to client.
put on its evidence
and the defense should only argue after the
One final note.
the Superior
Court600
to
Commonwealth
hasI petitioned
done so. Essentially,
a Rule
publish this decision and was denied. I believe the
hearing should proceed in form almost identically
reason for that is that they would rather have a case
to where
a suppression
hearing. If the
asksqualified
you
the Commonwealth
has judge
an expert
to
to testify
argue about
prior to
Commonwealth's
evidence,
thethe
science
appear and testify.
I believe
thatitwas
thethat
message
the Court
was conveying
make
clear
you could
not possibly
argue in the
footnote
pointing
out
that
the
Commonwealth
on behalf of your client until you know what thehad
offered no support
for their
that
Commonwealth's
evidence
ofposition
diligence
is. the SCRAM
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* If the Commonwealth appears at the Rule 600
hearing and does not present any evidence that
NOTES:
it acted
with diligence-for instance, they did not
bring
in
the officer to testify to the attempts made
1
The device in this case was a SCRAM device from
to Alcohol
find andMonitoring
apprehend
the defendant-argue that
Systems, Inc. ("AMS") worn as an
they
have
not
met
their
burden because the burden
ankle bracelet.
2
of proof
includes the
burdenNo.
of 465
production
and2018
Commonwealth
v. Manzi,
MDA 2017,
WL 1475654
(Pa. Super.
Mar.
27, 2018) (unpublished
arguments
of counsel
areCt.
not
evidence.
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non-precedential decision) (York Co. Ct. Pleas No. CP67-CR-0005560-2016).
3
This is a Transdermal Alcohol Content ("TAC")
reading, not a confirmed consumption, just alcohol on
the skin.
4
Testimony Notes of Feb. 23, 2017 Hearing at 13, line
6-7, Manzi (No. CP-67-CR-0005560-2016).
5
Testimony Notes of Feb. 23, 2017 Hearing at 56, line
14, Manzi (No. CP-67-CR-0005560-2016).
6
To rehabilitate its witness, the Commonwealth,
attempted to establish the fact that Ms. Manzi entered
30

For The Defense l Vol. 5, Issue 3

#EAC137

Commonwealth references a probation violation in

v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
their Statement.
Superior
Court
that this
"prejudice"
need be The
shown
to obtain
Rule noted
600 dismissal).
was
incorrect,
even
though
there
is
some
overlap
While Rule 600 has a more definitive time period, the solein
theof
two).
focus
Rule 600 is on the action of the Commonwealth.
9
Testimony
Notes argument
of Feb. 1,should
2017 Hearing
at 10-11,
Thus, a constitutional
be forwarded
Manzi
(No.
CP-67-CR-0005560-2016).
when a delay prejudices a defendant and that delay was
10
primarily
caused by the courts.
Commonwealth's
Brief at 14-28, Commonwealth
6
Pa.R.Crim.P.
v. Manzi, Rule
No. 600(D)(1).
465 MDA 2017, 2018 WL 1475654 (Pa.

Super. Ct. Mar. 27, 2018) (it had no obligation to
presenthere
evidence
the scientific
of the
Click
to on
view
and/orworkings
print the
SCRAM
bracelet).
full notes section for this article.
11
Commonwealth v. Manzi, No. 465 MDA 2017 at 8,
2018 WL 1457554 (Pa. Super Ct. Mar. 27, 2018).
12
Id. at 9 n.5.
13
Brief for the Commonwealth at 16, 18,
Commonwealth v. Manzi, No. 465 MDA 2017, 2018 WL
1475654 (Pa. Super. Ct. Mar. 27, 2018).
14
Katherine
Ernst
an 2018
Commonwealth v. Manzi,
No. 465
MDA is
2017,
WL 1475654, at 10, n.6appellate
(Pa. Super.attorney
Ct. Mar. 27,
2018).
with
the

About the Author

County Public
About the Montgomery
Author
Defender's
Office. She
handles appeals from all
Attorney Jack Graybill II
units, juvenile to homicide,
served as a police officer for
and she
also formulates
15 years
before obtaining
legalhis
strategy
for pre-trial
law degree
from
and trial units. Katherine graduated
Magna
Widener UniversityCum
School
Laude from Loyola Law School,
New Orleans
Law, Harrisburg
in 2012.
in 2007 and was on law review.
practiced
He hasShe
a B.S.
in Business
at Kaufman, Coren & RessAdministration
in Philadelphia from
out West
of law
school,
and thereafter
did work
in the
Virginia
University.
He practices
several
areas of law
as a member
of Kearneylaw
Galloway
Graybill,
intersection
of horseracing
and §1983
for aLLC in
York, of
Pennsylvania.
number
years before following her passion
for indigent criminal defense.

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