For the Defense - Vol. 6 Issue 3 - 6
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
rendered the incarceration penalty under Section
1543(b)(1.1)(i) unconstitutionally vague.9
* 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.
In a separate opinion, Justice Saylor agreed the
* 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
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
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.
The Eid decision does not specifically distinguish or
* 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.
address the remaining DUS subsections, which mostly
involve misdemeanors and felonies. Like the summary
offenses, these sections fail to specify a maximum term
of incarceration, though Title 75 specifies that the
statutory maximums in the Crimes Code do not apply
to traffic summaries.12
LAW OFFICES Id. at 1043.
Eid, 249 A.3d at 1046.
Nonetheless, Eid's logic can extend to the highergraded
subsections. Nothing in Section 6502 or
elsewhere in the statutory authority affirmatively
exports the statutory maximums of the Crimes Code
to Title 75. Justice Saylor's opinion is particularly
poignant that vagueness depends on " the ability of
ordinary citizens to understand the essential import "
of the law.13
A layperson would not know to apply the
penalty provisions in the Crimes Code to any Title 75
offense where the statutes themselves lack a crossreference
and fail to specify a maximum punishment.
In fact, the same infirmity is present throughout Title
* 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.
6 For The Defense l Vol. 6, Issue 3
Of note, the penalty provisions of the Crimes Code
are specifically referenced in 75 Pa.C.S. § 1571, so the
legislature knows how to impute adequate notice of
maximum penalties via the Crimes Code.
Following Eid, practitioners should look to challenge
convoluted sentencing schemes that only vaguely
or indirectly provide a maximum sentence, such as
75 Pa.C.S. § 3742(b)(2) (Accidents involving death or
personal injury), which provides for " imprisonment
A Professional Corporation
About the Author
Click here to view and/or print the
full notes section for this article.
Id. at 1045-46.
been held to override this statutory rule).
12 Compare 75 Pa.C.S. § 6502(c) with 18 Pa.C.S. §§ 1103-1104
(outlining statutory maximums under the Crimes Code).
14 See, e.g., 75 Pa.C.S. § 3804 (Penalties for DUI offenses).
15 See generally Commonwealth v. Walton, 397 A.2d 1179 (Pa.
1979); Commonwealth v. Flashburg, 352 A.2d 185 (Pa. Super.
About the Author
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
An outstanding reputation for succes
high profile criminal, personal injury,
domestic relations, and immigration c
Vol. 4, Issue 4 l For The Defense 9
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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James Baker is an Assistant
Public Defender in the Appeals
Division of the Allegheny
County Office of the Public
Defender. James is also
currently the Treasurer for
the Young Lawyer's Division
of the Allegheny County Bar
10 See id. at 1042-43 (referencing mandatory minimums for drug
offenses that are more than half the maximum sentence have
While the Court's ruling explicitly invalidated
the imposition of incarceration for summary DUS
convictions under Section 1543(b)(1.1)(i), this ruling
also applies directly to Section 1543(b)(1)(ii), which
similarly outlines " imprisonment for not less than 90
File your client's motion after the
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).
Commonwealth v. Eid, 249 A.3d 1030 (Pa. 2021).
2 Id. at 1033-34.
3 Id. at 1034-35.
4 Id. at 1039.
5 Birchfield v. North Dakota, 136 S.Ct. 2160 (2016).
6 Commonwealth v. Monarch, 200 A.3d 51 (Pa. 2019).
7 Eid, 249 A.3d at 1042.
8 Id. at 1044.
incarceration provision was unconstitutional, but he
would have relied on broader Due Process grounds that
the statute, without setting a limit on the maximum
sentence, permits arbitrary sentencing.11
also went further, challenging whether a layperson
would have adequate notice of a statutory maximum
supplied by a separate statute.
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
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
Unless and until the legislature amends the DUS
statute to specify a maximum term of incarceration,
defendants can be sentenced only to a fine. In the
meantime, defense counsel should continue to argue
that no traffic offense lacking a statutory maximum
and occurring before any such amendment becomes
effective can result in imprisonment.15
that sentences must generally conform to 42 Pa.C.S. §
9756(b)(1), that minimum confinement cannot exceed
half of the maximum, and distinguished cases where
statutes explicitly overrode this general rule. Applying
the minimum-maximum rule,10
a 6-month maximum
sentence would leave the " not less than " language
superfluous since courts could only impose a 90-day
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
of not less than 90 days. " Whereas the holding of Eid
readily applies across summary offenses in Title 75 that
contain no statutory maximum penalty, courts are likely
to be more reticent when addressing misdemeanor
and felony traffic offenses. Practitioners, particularly
when advising clients on potential outcomes, may find
it useful to consult their local Public Defenders office
or PACDL's listserv to see how far county judges have
accepted Eid's Due Process implications.
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