For the Defense - Vol. 6, Issue 4 - 15

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
The concurrence also took issue with the origin of the
" common sense of the community " test. Although the
Supreme Court first used this language in the context of
EWOC claims in Commonwealth v. Mack,41
which found
* 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.
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.
that 18 Pa.C.S. § 4304 was not unconstitutionally vague,
Justice Wecht noted that the language was from an older
opinion, Commonwealth v. Randall, which used religion
to justify use of that standard: " We are a religious people
whose institutions presuppose a Supreme Being. Our
Federal and State Constitutions assume that the moral
code which is part of God's order in this world, exists as
the substance of society. " 42
Justice Wecht wrote that attempts to " saturate our
law with the commands of 'a Supreme Being' " are from
a " bygone era " and " smack of nothing so much as
breathtaking sanctimony. " 43
" A predictable and fair application of Section 4304(a)(1) is
unattainable if criminal culpability sways upon the fickle tides
of judicial divination of communal norms and sensibilities. " 44
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
Instead, the concurrence explained, statutory
interpretation must guide judicial decision-making.45
File your client's motion after the
The " common sense of the community " approach,
Justice Wecht wrote, " recalls the bad old days of the
common law of crimes, when courts took it upon
themselves to decide whether certain conduct should, as
a matter of public policy, be declared criminal. " 46
* 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.
NOTES:
1
Commonwealth v. Howard, 257 A.3d 1217, 1230 (Pa. 2021).
2 Id. at 1226.
3 Id. at 1227. See Commonwealth v. Cardwell, 515 A.2d 311, 315 (Pa.
* 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.
Super. 1986).
4
5
18 Pa.C.S. § 302(b)(2)(ii).
Prong two of Cardwell's test requires evidence that the accused
is " aware that the child is in circumstances that threaten the child's
physical or psychological welfare. " 515 A.2d at 315 (emphasis added). A
later version of this test uses a weaker standard, requiring evidence of
awareness that " the child is in circumstances that could threaten " her
welfare. See, e.g. Commonwealth v. Lynn, 114 A.3d 796, 819 (Pa. 2015)
(emphasis added); Commonwealth v. Pahel, 689 A.2d 963, 964 (Pa. Super.
1997) (emphasis added).
6
Howard, 257 A.3d at 1233 (Wecht, J., concurring).
The other two concurrences also did not use the
" common sense of the community " test.47
The dissent,
by Justice Mundy did, and found that Ms. Howard should
have taken mitigating steps, such as using a seatbelt or
sitting in the backseat with her daughter.48
In employing this standard, the OAJC noted that neither
party asked the Court to reconsider Lynn or reject the
test.49
The OAJC concluded that " further consideration
of Justice Wecht's thoughtful observations as to the
continued vitality of the standard should be deferred to a
future case where the question is squarely before us and
the parties have fully brief[ed] the issue. " 50
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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.
7 Id. at 1233, 1236.
8 Id. at 1236.
9 Howard, 257 A.3d at 1228 n 16.
10 Id. at 1219.
11 Id.
12 Id. at 1219-20.
13 Id. at 1219 n 1.
14 Id. at 1220.
15 Id.
16 See Id. at 1221 (emphasis in original) (internal citations omitted).
17 Id.
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NOTES:
1
21
18 Justice Todd wrote the OAJC, and Justice Donohue joined.
19 18 Pa.C.S. § 4304(a)(1).
20 18 Pa.C.S. § 302(b)(2).
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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
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3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
language " that could threaten. "
22
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).
See, e.g., Cardwell, 515 A.2d at 315; Lynn, 114 A.3d at 819.
23 Howard, 257 A.3d at 1220 n 4.
24 Id. at 1227-28.
25 Id. at 1227.
26 Id.
27 Id.
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).
5
28 Id. at 1233, 1239 (Wecht, J., concurring) (emphasis added).
29 Id. at 1231 n 1 (Dougherty, J., concurring).
30 Id. at 1231-32.
31 Id. at 1231 (Saylor, J., concurring).
32 114 A.3d at 798-801.
33 Id. at 818-19, 826.
34 See Id. at 1224 n 10.
35 See Id.
36 Id. at 1228 n 16, 1230.
37 Id. at 1230. See 75 Pa.C.S. § 4581.
38 Howard, 257 A.3d at 1228-29.
About the Author
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full notes section for this article.
39 Id. at 1233, 1236 (Wecht, J., concurring).
40 Id. at 1236.
41 Commonwealth v. Mack, 359 A.3d 770, 772 (Pa. 1976).
42 Howard, 257 A.3d at 1234-35 (Wecht, J., concurring) (quoting
Commonwealth v. Randall, 133 A.2d 276, 280 (Pa.Super. 1957)).
43
Id. at 1235.
44 Id. at 1236.
45 Id. at 1235-36.
46 Id. at 1235.
47 Id. at 1231-33 (Saylor, J., concurring) (Dougherty, J., concurring).
48 Id. at 1239-41 (Mundy, J., dissenting).
49 Id. at 1228 n 16.
50 Id.
About the Author
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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
#153A5B
#EAC137
As discussed in note 5, supra, the original version of the tripartite test
uses the language " that threaten " while some later versions use the
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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. 6, Issue 4 l For The Defense 15
Vol. 4, Issue 4 l For The Defense 9
Jamie Schuman has worked at
the Allegheny County Office of
the Public Defender since 2014.
She is currently Manager of
Policy there, a position in which
she works on projects related
to criminal-justice reform
and maintains an appellate
caseload. She was appellate
attorney in Commonwealth v.
Howard.
For the Defense - Vol. 6, Issue 4

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