For the Defense - Vol. 5, Issue 3 - 44

rehabilitation. I am not sure how the prosecutor
NOTES:
Discuss
this waiver
with denying
your client
with
the same
Using the strategy above, people both in and
could
argue that
ARD
because
it is no
seriousness
would discuss
the offense"
waiver offurthers
any
office have had tremendous success with
1
longeryou
considered
a "prior
theoutside my
Commonwealth v. Mock, 219 A.3d 1155, 1164
30
constitutional
right.
motions.
protection
of society. Hopefully the defense canRule 600(Pa.
2019).Oftentimes, just making it plain
to
the
Commonwealth
thatv.you
intend 2020
to seriously
2
bring
such motions
before
judges
that
support
Commonwealth
Chichkin,
Pa. Super. 121
Request
discovery
early and
in writing.
That
way,
litigate this
issue
can
get you results. It is only one
the use of ARD.
(May
20,
2020).
if the Commonwealth fails to provide requested
weapon 3in18your
arsenal,
but because a win means
Pa.C.S.
§ 9102.
discovery, any required continuance will be on
4
The ripple effects from the Chichkin decision discharge,18
it is
a potent
weapon that should never
Pa.C.S.
§ 9122(c).
the prosecution. If you have to follow-up with the
5
will continue to be felt as the criminal justice be overlooked.
18 Pa.C.S. § 9122(c).
Commonwealth
about discovery
they defense
have failed
to
6
system responds.
And criminal
lawyers
Commonwealth v. Lutz, 495 A.2d 928, 936 (Pa.
hand over,
be sure to memorialize
such
in
in Pennsylvania
must continue
torequests
work together
NOTES: 1985).
a writing
as an email.
7
andsuch
collaborate
to effectively ride out those post-1 Commonwealth
Lutz, 495
A.2d162
atA.3d
935.323 (Pa. 2017).
v. Mills,
2
8 . Amend. VI; PA. CONST. art. 1, § 9.
Chichkin
waves.
U.S. ConSt
Commonwealth v. Morrow, 650 A.2d 907, 910-
If a continuance is required due to the
3
Commonwealth
v. DeBlase,
665 A.2d 427, 431 (Pa. 1995).
11 (Pa. Super.
1994).
Commonwealth's failure of diligence, be sure to
4
Barker9v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
Commonwealth v. Darkow, 626 A.2d 1173, 1175
put that on the record at the time the continuance
constitutional test); Commonwealth v. Preston, 904 A.2d
(Pa.
Super.
1993).
1, 10 (Pa. Super.
Ct. 2006)
(the Barker test is an entirely
is requested. Even if the judge does not rule in
10
Commonwealth
v. Stranges,
579
A.2d
separate
analysis
from
Rule 600
and therefore
needs
to 930,
be 933
your favor, you have at least preserved the issue for
raised separately).
(Pa. Super. 1990).
appeal.
5
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
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PANTONE

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90/78/39/30

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22/58/92

234/194/56

HEXIDECIMAL

#153A5B

#EAC137

All motions to dismiss pursuant to Rule 600 must be
made in writing.31 File your client's motion after the
365-day period has elapsed. If the trial judge rules
against you and subsequently the Commonwealth
causes another substantial period of delay, file
a new Rule 600 motion based on this additional
time and litigate it prior to any trial to preserve an
objection to the additional time period.
At the Rule 600 hearing, after the defense has
made a prima facie showing that the defendant
has not been brought to trial within 365 days,
the Commonwealth bears the burden of proving
that they have nonetheless acted with diligence.
This means that after the defense has made such
a prima facie showing, it is the Commonwealth
who should be required to put on its evidence
and the defense should only argue after the
Commonwealth has done so. Essentially, a Rule 600
hearing should proceed in form almost identically
to a suppression hearing. If the judge asks you
to argue prior to the Commonwealth's evidence,
make it clear that you could not possibly argue
on behalf of your client until you know what the
Commonwealth's evidence of diligence is.
If the Commonwealth appears at the Rule 600
hearing and does not present any evidence that
it acted with diligence-for instance, they did not
bring in the officer to testify to the attempts made
to find and apprehend the defendant-argue that
they have not met their burden because the burden
of proof includes the burden of production and
arguments of counsel are not evidence.
44

For The Defense l Vol. 5, Issue 3

v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
"prejudice" need be shown to obtain Rule 600 dismissal).
While Rule 600 has a more definitive time period, the sole
focus of Rule 600 is on the action of the Commonwealth.
Thus, a constitutional argument should be forwarded
when a delay prejudices a defendant and that delay was
primarily caused by the courts.
6
Pa.R.Crim.P. Rule 600(D)(1).

About the Author

Jason Dunkle attended the

Click here to view and/or
printPark
theCampus of
University
full notes section for Penn
this State
article.
and graduated

in 2000 with a Bachelor's
Degree in Political Science.
After graduating from
Penn State, Jason received
his Juris Doctor degree
from Ernst
the University
of
Katherine
is an
Pittsburgh School
of
Law.
He
began
his
legal
appellate attorney with the
career in a State Montgomery
College criminal
defense
firm.
County
Public
In 2012, Jason started his own firm, JD Law, P.C.,
Defender's Office. She
in State College, and continued to represent
handles
appeals
from allthat are
Penn State students,
alums,
and friends
units, juvenile
charged with criminal
offenses.to homicide,
and she also formulates
Jason is the Secretary
of the Pennsylvania
legal strategy
for pre-trial
Association
of
Criminal
Defense
LawyersCum
and
and trial units. Katherine graduated Magna
is from
standing
for Law
election
as Vice
Laude
Loyola
School,
NewPresident
Orleans of
the
Middle
District
of
PACDL.
He
has been
in 2007 and was on law review. She practiced
nominated as a Rising Star or a Super Lawyer
at Kaufman, Coren & Ress in Philadelphia out
every year since 2011, the longest continuous
of law
school,
and criminal
thereafter
did work
in thein Centre
streak
of any
defense
attorney
intersection
of
horseracing
law
and
§1983
for a
County.
number of years before following her passion
for indigent criminal defense.

About the Author

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