For the Defense - Vol. 6, Issue 2 - 14

a writing such as an email.
NOTES:
1
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
* Request discovery early and in writing. That way,
if the Commonwealth fails to provide requested
discovery, any required continuance will be on
the prosecution. If you have to follow-up with the
Commonwealth about discovery they have failed to
hand over, be sure to memorialize such requests in
a writing such as an email.
* If a continuance is required due to the
Commonwealth's failure of diligence, be sure to
put that on the record at the time the continuance
is requested. Even if the judge does not rule in
your favor, you have at least preserved the issue for
appeal.
NOTES:
1
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.
243 A.3d 177, 207-09.
3
91 A.3d 102 (Pa. 2014).
5 Alexander, 243 A.3d at 207-09 (emphasis supplied).
6
concurring).
7
* If a continuance is required due to the
Commonwealth's failure of diligence, be sure to
put that on the record at the time the continuance
is requested. Even if the judge does not rule in
your favor, you have at least preserved the issue for
appeal.
And finally, Commonwealth Argument No.
7: Defendant never cited to the Pennsylvania
Constitution in his motion, and as such, the
Alexander claim is waived.
This is a valid claim! Please ensure that you cite Art. I, §
8 of the Pennsylvania Constitution in your motion. If you
do not, and instead only cite the federal constitution, you
are out of luck because the federal constitution permits
warrantless car searches based on probable cause alone.36
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.
In composing this article, we collected ideas and strategies
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
Internal citations and punctuation are omitted throughout
unless otherwise noted.
4
from PACDL colleagues - including particularly Len Sosnov,
Robin Forrest, and Cheryl Brooks - then organized what we
learned into a primer on how to prepare to effectively litigate an
Alexander-related suppression issue. We also recognize and thank
the PACDL members who shared the trial court opinions cited
here along with the practitioners whose excellent advocacy led
to the opinions. Which is all to say that the credit for the good
File your client's motion after the
litigation strategies discussed here goes to others and not us.
2
22/58/92
234/194/56
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
HEXIDECIMAL
#153A5B
#EAC137
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
File your client's motion after the
Using the strategy above, people both in and
outside my office have had tremendous success with
Rule 600 motions. Oftentimes, just making it plain
to the Commonwealth that you intend to seriously
litigate this issue can get you results. It is only one
weapon in your arsenal, but because a win means
discharge, it is a potent weapon that should never
be overlooked.
5
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NOTES:
1
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22/58/92
234/194/56
22/58/92
234/194/56
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
HEXIDECIMAL
HEXIDECIMAL
#153A5B
#153A5B
#EAC137
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
* 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.
the trial court's finding of probable cause. Id. at *8.
9
10
CP-21-CR-534-2020.
CP-21-CR-2219-2020.
detail.
12
13
14
CP-22-CR-995-2020.
CP-67-CR-4198-2020.
* 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.
companion Alexander article in this issue.
15
See id.
See both of the opinions issued in Cumberland County as well
as the opinion issued in York County, all of which were discussed
above.
17
16
107 A.3d 185, 194-97 (Pa. Super. 2014) (Wecht, J.). By way of
brief background, the Perel Court explained that, under the
inevitable discovery exception to the warrant requirement
(sometimes alternatively referred to as the 'independent source
14 For The Defense l Vol. 6, Issue 2
Grooms, 2021 WL 710438, at *4 n.8 (Feb. 24, 2021). See also
Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa. 1983). Note
further that the retroactivity rules may apply differently in the
post-conviction context. The nuances of retroactivity are beyond
this article's scope. To read more on retroactivity, check out the
Justice Dougherty also mentioned Alexander in his concurring
opinion in Commonwealth v. Mason, but the mention was in
passing and not relevant to this article. See Mason,---- A.3d ----,
2021 WL 1134593, at *10 (Pa. Mar. 25, 2021) (Dougherty, J.,
Shaw, ---- A.3d ----, 2021 WL 610152, at *5-6 (Pa. Super. Feb. 17,
2021). Incidentally, the Shaw Court also instructed the trial court
on remand to reconsider its probable cause finding in light of
Commonwealth v. Barr, which held that the smell of marijuana
emanating from a car alone does not provide probable cause to
* 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.
5
search. Id. (citing Barr, 240 A.3d 1263, 1283-88 (Pa. Super. 2020)).
8
Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
constitutional test); Commonwealth v. Preston, 904 A.2d
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
separate analysis from Rule 600 and therefore needs to be
raised separately).
About the Author
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
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
Click here to view and/or print the
full notes section for this article.
Grooms, ---- A.3d ----, 2021 WL 710438, at *4 and *4 n.8 (Feb. 24,
2021). Note, however, that the trial court nevertheless reversed
11 This opinion is brief and does not discuss the facts in great
* 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.
About the Author
Click here to view and/or print the
full notes section for this article.
Andrew Capone is the
Manager of the Trial Division
at the Allegheny County Public
Defender's Office. Passionate
about criminal defense, he has
tried over fifty jury cases to
verdict in nearly every type of
criminal case ranging from DUI
to Homicide. In addition to his
Katherine Ernst is an
appellate attorney with the
Montgomery County Public
Defender's Office. She
handles appeals from all
units, juvenile to homicide,
and she also formulates
legal strategy for pre-trial
trial work, he oversees a national recruiting program
and is responsible for training Public Defender Attorneys
on motions practice. Dedicated to a holistic model of
criminal defense, Attorney Capone's experience dealing
with complex and high-profile cases involving severe
mental illnesses, including the defense of legal insanity,
has paved the way for training programs focused on
aggressive and creative defense advocacy.
Share this article
and trial units. Katherine graduated Magna Cum
Laude from Loyola Law School, New Orleans
in 2007 and was on law review. She practiced
at Kaufman, Coren & Ress in Philadelphia out
of law school, and thereafter did work in the
intersection of horseracing law and §1983 for a
number of years before following her passion
for indigent criminal defense.
Share this article
Vol. 4, Issue 4 l For The Defense 9
Vol. 4, Issue 4 l For The Defense 9
Katherine Ernst is an
appellate attorney with the
Montgomery County Public
Defender's Office. She
handles appeals from all
units, juvenile to homicide,
and she also formulates
legal strategy for pre-trial
and trial units. Katherine graduated Magna Cum
Laude from Loyola Law School, New Orleans
in 2007 and was on law review. She practiced
at Kaufman, Coren & Ress in Philadelphia out
of law school, and thereafter did work in the
intersection of horseracing law and §1983 for a
number of years before following her passion
for indigent criminal defense.
Rob Perkins owns a law practice
based in Pittsburgh that focuses
on complex state and federal
criminal defense, including
serious felony trials, appeals,
and post-conviction litigation.
Rob has published several
articles and taught continuing
education courses related
to criminal law. Rob also currently serves on PADCL's
publications committee.
#EAC137
rule'), " the fruits of an unconstitutional search are admissible
where the prosecution can establish ... that the information
ultimately or inevitably would have been discovered by lawful
means. " Id. Importantly, the Court recognized that " the
inevitable discovery doctrine is not a substitute for the warrant
requirement. Police must demonstrate that the evidence would
have been discovered absent the police misconduct, not simply
that they somehow could have lawfully discovered it. " Id. The
Court further elaborated that under " the Dissent's view, police
only need to seize the item or search the premises and then
invoke the inevitable discovery doctrine with the assertion that
they 'could have obtained a warrant.' The inevitable discovery
doctrine does not operate in such a constitutionally impoverished
manner. " Id. (emphasis in original).
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
constitutional test); Commonwealth v. Preston, 904 A.2d
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
separate analysis from Rule 600 and therefore needs to be
raised separately).
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
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).
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For the Defense - Vol. 6, Issue 2

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