For the Defense - Vol. 7, Issue 2 - 20

About the Authors
Publication (April 11, 2019).
7
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
appropriate as a conclusion).
8
connect with any tower within 21.7 miles " ).
9
A.3d 1101 (Pa. 2020).
10
See George v. State, 2021 Ala. LEXIS 1, *15 (Ala. January 8, 2021)
(testimony by prosecution expert acknowledging that a phone may
register up to 20 miles away but maintaining a 3 to 5 mile range is
* 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.
that the proffered testimony was not " novel " scientific evidence.
11
* 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.
dissenting).
12
13 Id.
14
See Steven Becker, Interpreting Vehicle EDR (Black box) Data &
Recognizing Errors - Expert Article, https://www.robsonforensic.com/
articles/interpreting-vehicle-edr-black-box-data-recognizing-errorsexpert-article
(last visited January 24, 2022).
15
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
system/content-uploads/SST_FAQ_January_2018.pdf.
16
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.
2021).
18
2020).
19
Police-Departments-Use-of-ShotSpotter-Technology.pdf.
20
Id. at 3.
21
See ShotSpotter, FAQ, available at https://www.shotspotter.com/
Id.
17 See, e.g., Commonwealth v. Weeden, 253 A.3d 329 (Pa. Super. Ct.
File your client's motion after the
United States v. Jones, 1 F. 4th 50 (D.C. Cir. 2021); United States v.
Godinez, 7 F. 4th 628 (7th Cir. 2021); United States v. Goncalves, 537 F.
Supp. 3d 71 (D. Mass. 2021); United States v. Diaz, 2020 WL 6083404
(S.D.N.Y. Oct. 15, 2020); United States v. Carter, 2020 WL 3893023 (D.D.C.
July 10, 2020); Smith v. City of Milwaukee, 2020 WL 607050 (E.D. Wis.
Feb. 7, 2020); United States v. King, 439 F. Supp. 3d 1051 (N.D. Ill. Feb. 11,
* 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.
gunshot-detecting-ai.
22
23 Id. at 336.
25 Commonwealth v. Loughnane, 128 A.3d 806, 814 (Pa.Super. 2015)
(involving the process of obtaining a screen shot from a video).
26
printouts from computers and other machines " ).
27
Commonwealth v. LaLonde, 2014 Pa. Super. Unpub. LEXIS 4656, *40
(Pa. Super. Apr. 28, 2014) (noting that 901(b)(9) " generally applies to
Commonwealth v. McKellick, 24 A.3d 982, 998 n.2 (Pa.Super. 2011)
(Donohue, J., dissenting) (noting that " no Pennsylvania appellate
court has ruled on the applicability of Rule 901(b)(9) to authenticate
photographs or video records. " ).
28
901(b)(9).
29
As the majority in McKellick deemed the recording to be only
demonstrative evidence, it did not address the requirements under Rule
* 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.
20 For The Defense l Vol. 7, Issue 2
notice, stipulations, or expert testimony " )
30
See, e.g., United States v. Lizarraga-Tirado, 789 F.3d 1107, 1110 (9th Cir.
2015); State v. Brown, 818 S.E. 2d 735, 740 (S.C. 2018); see also, Weinstein,
1 Federal Evidence § 901.40 (2021)( " the admissibility of process or system
results contemplated by Rule 901(b)(9) may frequently involve judicial
State v. Brown, 818 S.E. 2d 735, 740 (S.C. 2018) (emphasis in original).
31 Lizarraga-Tirado, 789 F.3d at at 1110.
See, e.g., Inspector General for the City of Chicago, The Chicago
Police Department's Use of Shotspotter Technology, at 4 (Aug. 24, 2021)
available at https://igchicago.org/wp-content/uploads/2021/08/ChicagoTodd
Feathers, Police Are Telling ShotSpotter to Alter Evidence From
Gunshot-Detecting AI (July 26, 2021), available at https://www.vice.com/
en/article/qj8xbq/police-are-telling-shotspotter-to-alter-evidence-fromCommonwealth
v. Weeden, 253 A.3d 329, 334 (Pa. Super. Ct. 2021).
24 Poelcher v. Zink, 101 A.2d 628, 631 (Pa. 1954) (emphasis added).
5
People v. Shanks, 467 P.3d 1228 (Colo. Ct. App. 2019) (testimony by
defense expert that " One cannot say a cell phone is near a tower simply
because it connects to that tower. A cell phone can be serviced by and
Commonwealth v. Nevels, 203 A.3d 229, 241 (Pa. Super. 2019), aff'd, 235
Similarly, in an unpublished decision, Commonwealth v. Baker, 2017
Pa. Super. Unpub. LEXIS 2934 (Pa. Super. March. 23, 2018), a defense
challenge was raised under Frye and Rule 702, no defense expert was
presented, and the Superior Court affirmed the trial court determination
Commonwealth v. Gary, 91 A.3d 102, 153 (Pa. 2014) (Todd, J.,
See, e.g., Commonwealth v. Safka, 95 A.3d 304, 308 (Pa. Super. 2014).
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.
PANTONE
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CMYK
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NOTES:
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RGB
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HEXIDECIMAL
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
#153A5B
#EAC137
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).
About the Author
Click here to view and/or print the
full notes section for this article.
Jules Epstein is the Edward D.
Ohlbaum Professor of Law and
Director of Advocacy Programs
at Temple University Beasley
School of Law. He is a former
partner at the highly respected
Philadelphia criminal defense
and civil rights firm of Kairys,
Rudovsky, Messing, Feinberg,
& Lin LLP, where he remains of
counsel. A 1978 graduate of
the University of Pennsylvania
School of Law, Professor Epstein began his legal career
with the Defender Association of Philadelphia. He was an
adjunct professor at the University of Pennsylvania from
1988 through 2006, has taught in and prepared materials
for countless continuing legal education programs, and
has authored dozens of articles and book chapters on
criminal law and evidence topics. He served as a Professor
of Law and the Director of the Taishoff Advocacy,
Technology, and Public Service Institute at Widener School
of Law before joining the faculty at Temple.
Professor Epstein's work has concentrated, in recent
years, on capital case, eyewitness, and forensics issues.
He has taught death penalty law nationally to judges
and attorneys and continues to handle capital cases at
the appellate and post-conviction stages. In the area of
eyewitness evidence, he has lectured, authored both
articles and book chapters, and served as an expert
witness.
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
Meredith A. Lowry focuses her
practice on white-collar criminal
defense and government
investigations. She regularly
conducts internal investigations,
counsels clients in responding
to grand jury and government
inquiries, advocates for clients
under criminal investigation,
and defends clients charged
with federal and state crimes
in trials and other proceedings. Prior to joining Klehr
Harrison Harvey Branzburg LLP, Meredith practiced
at several boutique criminal defense firms. During
law school Meredith served as a judicial intern for
the Honorable Karen M. Williams of the U.S. District
Court for the District of New Jersey and interned at the
Pennsylvania Innocence Project. She graduated from
Drexel University's Thomas R. Kline School of Law.
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.
https://www.robsonforensic.com/articles/interpreting-vehicle-edr-black-box-data-recognizing-errors-expert-article https://www.robsonforensic.com/articles/interpreting-vehicle-edr-black-box-data-recognizing-errors-expert-article https://www.robsonforensic.com/articles/interpreting-vehicle-edr-black-box-data-recognizing-errors-expert-article https://www.shotspotter.com/system/content-uploads/SST_FAQ_January_2018.pdf https://www.shotspotter.com/system/content-uploads/SST_FAQ_January_2018.pdf https://www.igchicago.org/wp-content/uploads/2021/08/Chicago-Police-Departments-Use-of-ShotSpotter-Technology.pdf https://www.igchicago.org/wp-content/uploads/2021/08/Chicago-Police-Departments-Use-of-ShotSpotter-Technology.pdf https://www.vice.com/ https://www.vice.com/en/article/qj8xbq/police-are-telling-shotspotter-to-alter-evidence-from-gunshot-detecting-ai https://www.vice.com/en/article/qj8xbq/police-are-telling-shotspotter-to-alter-evidence-from-gunshot-detecting-ai
For the Defense - Vol. 7, Issue 2

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