For the Defense - Vol. 6, Issue 2 - 27

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.
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* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
NOTES:
1
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Coleman v. Alabama, 90 S. Ct. 1999, 2003 (1970).
improvidently granted).
4
(Pa. 1990) (plurality).
5
7
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.
2 Commonwealth v. McBride, 595 A.2d 589, 591 (Pa. 1991).
3
Pa.R.Crim.P. 542(E) (2011 version).
6 Pa.R.Crim.P. 542(E) (as amended).
* 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 appeal as improvidently granted.
8
This strategy, of course, contradicts the four purposes for
requiring the " guiding hand " of counsel at preliminary hearings.
See Coleman, 90 S. Ct. at 2003 ( " First, the lawyer's skilled
examination and cross-examination of witnesses may expose fatal
weaknesses in the State's case that may lead the magistrate to
refuse to bind the accused over. Second, in any event, the skilled
interrogation of witnesses by an experienced lawyer can fashion
a vital impeachment tool for use in cross-examination of the
State's witnesses at the trial, or preserve testimony favorable to
the accused of a witness who does not appear at the trial. Third,
trained counsel can more effectively discover the case the State
has against his client and make possible the preparation of a
proper defense to meet that case at the trial. Fourth, counsel can
also be influential at the preliminary hearing in making effective
arguments for the accused on such matters as the necessity for an
* 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.
early psychiatric examination or bail. " ).
9
165 A.3d 19 (Pa. Super. 2017).
10 Commonwealth v. McClelland, 165 A.3d 19, 22 (Pa. Super.
2017).
11
Id.
12 Id.
13 Id.
14 Id.
15 Id.
16 Id.
17 Id. at 26-27.
Commonwealth v. Ricker, 120 A.3d 349 (Pa. Super. 2015).
Following the Superior Court's disposition in Ricker, the
Supreme Court of Pennsylvania accepted allowance of appeal
to consider whether a criminal defendant has a state or federal
constitutional right to confront witnesses against him at a
preliminary hearing. Ultimately, the Supreme Court dismissed
Commonwealth v. Ricker, 170 A.3d 494, 517 (Pa. 2017) (Wecht,
J., dissenting from Order dismissing appeal as having been
Commonwealth ex rel. Buchanan v. Verbonitz, 581 A.2d 172
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of evidence is relaxed preliminary hearings,
competency of the declarant would seem
to be a core issue that should be explored.
A police officer testifying regarding the
statements of a child witness would not be
sufficient to establish the elements of the
offense.
While the McClelland Court definitively held that
a prima facie case may not be comprised entirely
of hearsay, many new questions were generated
by its disposition. The decision itself provides little
guidance in resolving these questions. Justice
Wecht's concurring opinion, and his dissenting
opinion in Ricker, both serve as a roadmap for
defense counsel to transform preliminary hearings
from a hollow formality to a substantive critical
proceeding.
18 Id. at 28.
2013).
20
21 Id.
Id. at 22.
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.
24 Id. at 31.
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25 Id.
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26 Commonwealth v. McClelland, 223 A.3d 717 (Pa. 2020).
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
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29 Id.
27 Id. at 734.
28 Id. at 735.
2016)).
31
Id.
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#EAC137
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
19 Id. at 29 (citing Commonwealth v. Turner, 80 A.2d 754 (Pa.
22 Id. Judge Strassburger authored a dissenting opinion. In it, he
appropriately pointed out that, although the only restraint on
liberty in McClelland's case was requiring him to stand trial, the
attendant liberty interest in other cases may be quite different,
such as where a defendant is held without bail or cannot afford
bail. Id. at 33.
23
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).
32 Id. at 739.
33 Id. at 742.
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).
34 Pa. R. Evid. 801-807.
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30 Id. (citing Commonwealth v. Veon, 150 A.3d 435, 443 (Pa.
* 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.
35 , - A.3d - , 2021 WL 1165409 (Pa. Super. filed March 29, 2021).
36
See Commonwealth v. Mignogna, 585 A.2d 1 (Pa. Super. 1990)
( " [A] defendant must establish the existence of actual prejudice
arising from a denial of due process at the preliminary hearing in
order to be afforded the remedy of discharge. " ).
* 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.
Defender. Stephanie's current practice focuses on postconviction
matters and direct appeals before the Superior
and Supreme Courts of Pennsylvania and the United
States Court of Appeals for the Third Circuit.
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.
Public Defender.
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Vol. 6, Issue 2 l For The Defense 27
Vol. 4, Issue 4 l For The Defense 9
Michael Ovens is a criminal
defense attorney representing
clients throughout western
Pennsylvania in both state and
federal court. Prior to entering
private practice, Michael
spent nearly seven years as an
Assistant Public Defender at the
Allegheny County Office of the
Stephanie M. Noel is an
attorney at Difenderfer,
Rothman & Haber, P.C., a
criminal defense firm in
Pittsburgh. Prior to joining her
law firm, Stephanie proudly
served as an Assistant Public
Defender at the Allegheny
County Office of the Public

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