For the Defense - Vol. 6, Issue 2 - 16

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
Post-Verdict
* 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.
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
lower court before taking an appeal.9
Direct Appeal
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.
PCRA
Finally, if the Alexander issue was preserved at any
* 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.
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stage, it can be raised in a timely PCRA petition. If the
issue was not preserved and counsel acted ineffectively
in failing to preserve it (for instance, by ignoring
the Alexander decision or failing to raise a state
constitutional claim), you can raise a PCRA ineffective
assistance claim.
Hopefully, the cases discussed herein will help make
the Alexander issue viable for clients who were early
to the party.
If a case was already on appeal when Alexander
was decided, there is a claim that the issue, though
unpreserved, can be raised for the first time on appeal.
An appellate court may arguably grant relief based on
a change of law for an unpreserved issue where the
Pennsylvania Supreme Court overrules one of its prior
decisions that is directly on point on the specific issue.10
Justice Saylor described this narrow exception to the
Cabeza preservation rule in his concurring opinion in
Commonwealth v. Hays.11
File your client's motion after the
However, in the recent Commonwealth v. Grooms
case,12 the Superior Court found that the Alexander
issue was waived, though it reversed denial of
suppression on other grounds. (This finding of waiver
is dicta and is arguably wrong under the narrow
Cabeza exception described in Hays.) In another recent
case, Commonwealth v. Shaw, decided shortly after
Alexander came down, the Superior Court remanded
the case for proceedings consistent with the Alexander
decision.13
If a motion to suppress was denied and your client
has been found guilty but has not yet been sentenced,
you can make an Oral Motion for Extraordinary Relief
(OMER). Though such motions are made orally, you may
file a brief in support ahead of time. The Comment to
Pa.R.Crim.P. 704(B) states that an OMER is appropriate
" where there has been a change in case law. "
If the OMER is denied, or if you did not raise the
Alexander issue in the case prior to sentencing, you
must file a post-sentence motion to preserve the issue
for appeal.8
In general, all claims must be raised in the
5
suppression, because " there has been an intervening
change in the controlling law. " 7
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.
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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).
NOTES:
1
About the Author
Click here to view and/or print the
Thanks also to Rob Perkins for your collaboration.
2
full notes section for this article.
5 See, e.g., Commonwealth v. Torres, 176 A.3d 292, 295-97 (Pa.
243 A.3rd 177 (Pa. 2020).
3 91 A.3rd 102 (Pa. 2014).
4 469 A.2d 146 (Pa. 1983).
Super. 2017).
6
See Commonwealth v. James, 69 A.3d 180, 184-86 (Pa. 2013).
7 See Commonwealth v. Starr, 664 A.2d 1326, 1331-32 (Pa. 1995).
8 See Pa.R.Crim.P. 720.
9 See Pa.R.App.P. 302.
10 Commonwealth v. Hays, 218 A.3d 1260 (Pa. 2019), and
concurring opinion, Saylor, C.J., at 1267-69.
11
Id.
Super. 2021), at *4 n 8.
13
12 Commonwealth v. Grooms, --- A.3d --- 2021 WL 710438 (Pa.
About the Author
Commonwealth v. Shaw, 246 A.3d 879, 886 (Pa. Super. 2021).
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
Thank you to Len Sosnov for being lead counsel in Alexander
and for helping to flesh out the issues discussed in 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
Cheryl Brooks is an Assistant
Defender in the Appellate
Division of the Defender
Association of Philadelphia,
where she also worked as a
trial lawyer for many years.
She serves on PACDL's Amicus
and Publications Committees.
She was co-counsel in
Commonwealth v. Alexander.

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