For the Defense - Vol. 6 Issue 3 - 13

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.
primarily caused by the courts.
6 Pa.R.Crim.P. Rule 600(D)(1).
* 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.
defense meet a standard of " highly detailed similarity "
or " signature " . The only metric is relevancy, tempered by
the Rule 403 limitations. The Court also noted that a trial
court can weigh these factors sufficiently.
Requiring a defendant who proffers third person
guilt evidence to meet the heightened similarity
threshold required of the Commonwealth ignores
the integral prejudice consideration for 404(b)
(2) evidence and the otherwise lenient bent of
our evidentiary rules, ... and negatively impacts
the defendant's constitutional right to present a
complete defense.
Thus, in order to secure both the probative
and exculpatory value of third person guilt
evidence and the constitutionally protected right
of a defendant to offer a complete defense, we
hold that Rules 401 through 403 provide the
correct approach for assessing third person guilt
evidence. Third person guilt evidence is admissible
if it is relevant, not otherwise excludable, and
surmounts the disqualifying considerations of
Pa.R.E. 403.
About the Author
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2
full notes section for this article.
Williams v. Ryan, 623 F.3d 1258, 1266 (9th Cir. 2010).
3
Commonwealth v. Yale, 249 A.3d 1001 (Pa. 2021).
Id. at 1004. Pa.R.E. 401 provides: Evidence is relevant if: (a) it has
any tendency to make a fact more or less probable than it would
be without the evidence; and (b) the fact is of consequence in
determining the action.
Pa.R.E. 402 provides " [a]ll relevant evidence is admissible, except
as otherwise provided by law. Evidence that is not relevant is not
admissible. " Pa.R.E. 403 provides " The court may exclude relevant
evidence if its probative value is outweighed by a danger of one
or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence. "
5
See Chambers v. Mississippi, 410 U.S. 284 (1973); Holmes v. South
Carolina, 547 U.S. 319 (2006). See also, the Pennsylvania cases
cited by the Court in Yale at pp. 1014 - 16.
About the Author
* 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.
Yale, 249 A.3d at 1023.
In this case, a meth operation was found in Mr. Yale's
residence when the police went with an arrest warrant for
a different person. Yale himself was not on the warrant
and there was no forensic evidence linking him to the
contraband. He had no priors and did not exhibit any
consciousness of guilt during the raid. The other guy, the
person named in the warrant, was hiding in the closet.
Plus, he had a prior conviction and an open matter, both
involving the same " one pot " method of meth production
that was found on the scene. Regardless, the trial court
chose to exclude the other guy's two prior cases.
Ultimately, the Supreme Court remanded the matter for
the trial court to determine whether the other person's
arrests/convictions, etc., were relevant within the context
of the defense strategy and whether any Rule 403
considerations were present.
Kudos are in order for our members, Robert Buttner, Esq.
of Scranton and Steven Greenwald, Esq. of the Luzerne
County Public Defender's Office, who preserved the issue
as well as a big shout out to Professor Jules Epstein of
Temple Law who argued the case before the Supreme
Court.
PANTONE
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NOTES:
1
22/58/92
234/194/56
HEXIDECIMAL
Commonwealth v. Yale, 249 A.3d 1001 (Pa. 2021), 9 MAP 2020,
2021 WL 1681926, (April 29, 2021) available at http://www.
pacourts.us/assets/opinions/Supreme/out/J-73-2020mo%20-%20
104761822133996364.pdf?cb=1.
#153A5B
#EAC137
6105 Spirit St., Apt. 447 * Pittsburgh, PA 15206 * (412) 889-7270
www.seriousdefense.com
Vol. 6, Issue 3 l For The Defense 13
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.
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Vol. 4, Issue 4 l For The Defense 9
Isla A. Fruchter is an Assistant
Defender in the Appeals
Division of the Defender
Association of Philadelphia.
Ms. Fruchter previously served
as a Member of the Board of
Directors of PACDL for many
years.
4
Remember that a Brady discovery request can be made for
potential alternative suspects " the government may not,
consistent with Brady, suppress information that another person
committed the crime for which the defendant is on trial... "
Stanton D. Levenson, P.A.
LA W OFFICES
51 years of experience focusing solely on providing
quality representation to individuals who have been
or who may be facing criminal charges.
Former President of PACDL, Member of American
Board of Criminal Lawyers, consistently selected in
Best Lawyers in America and PA. Super Lawyers.
http://www.pacourts.us/assets/opinions/Supreme/out/J-73-2020mo%20-%20104761822133996364.pdf?cb=1 http://www.seriousdefense.com
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