For the Defense - Vol. 7, Issue 4 - 18

gyqy
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.
* 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.
child abuser if her partner kicks or punches her in her
abdomen during her pregnancy and she does not leave
the relationship because she fears for her own life?41
Moving forward, will Pennsylvania resemble the accusatory
surveillance state envisioned by the late Superior Court Judge
Eugene Strassburger or will more sensible and reasonable minds
prevail? With the final results of the midterm election, the New Year
should cast some light on what to expect from our state legislature,
law enforcement, and prosecutors. But, regardless of the election
results, the seismic shift caused by repudiation of Roe will pose
serious challenges to criminal defense attorneys tasked with the
duty of protecting clients from criminal prosecution.
NOTES:
1
Roe v. Wade, 410 U.S. 113 (1973).
2 Dobbs v. Jackson Women's Health Organization, No. 19-1392, 2022 WL
2276808, 597 U.S. ____ (2022).
3
Planned Parenthood of Southeastern PA v. Casey, 505 U.S. 833 (1992).
4 https://www.nacdl.org/Document/
* 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.
AbortioninAmericaLegOverreachCriminalizRerpoRights.
5
7
8
18 Pa.C.S.A. §§ 3201 et seq.
18 Pa. C.S.A. § 3204.
18 Pa. C.S.A. § 3211.
9 18 Pa. C.S.A. § 3211(d).
10 18 Pa. C.S.A. § 3211(c)(1-2).
11 Id.
12 18 Pa. C.S.A. § 3205(1).
13 18 Pa. C.S.A. § 3205(2) ( " medical assistance benefits may be available
for prenatal care...the father of the unborn child is liable to assist in the
support of her child, even in instances where he has offered to pay for
the abortion. "
14
18 Pa. C.S.A. §§ 3205(a)(1).
15 18 Pa. C.S.A. § 3206(a).
16 18 Pa. C.S.A. § 3206(c).
17 18 Pa. C.S.A. §§ 3205(c) and 3206(i).
18 S.B. 378, Session of 2021 (Pa. 2021); H.B. 904, Session of 2021 (Pa.
2021).
19
The Mastriano bill includes language that " fetal heartbeat has become
a key medical predictor that an unborn individual will reach live birth; "
and that this finding is supported by " reliable and convincing evidence. "
S.B. 378, Section 1 (b)(6)(i), Session of 2021 (Pa.).
20
Roni, C. Rabin, Abortion Opponents Hear a 'Heartbeat.' Most Experts
Hear Something Else, tHe new yoRk tImes (Feb. 14, 2022), www.nytimes.
com/2022/02/14/health/abortion-heartbeat-debate.html.
21
18 Pa. C.S. A. § 3218(a).
22 Yuvi, Mastriano Said in 2019 that His Bill Would Treat Abortions
as Murder, tHe new yoRk tImes (Sep. 27, 2022), https://www.nytimes.
com/2022/09/27/us/politics/doug-mastriano-abortion-murder.html.
23
Montour Co. Pa.)
24
an Abortion, tHe new yoRk tImes (Sep. 22, 2014).
25
26
27
28
Id.
Id.
18 Pa. C.S.A. §§ 2603 - 2605; 18 Pa. C.S. § 2606.
29 Commonwealth v. Bullock, 913 A.2d 207 (2006).
30 Id. at 212.
31 Id.
32 Id. at 220.
33 18 Pa.C.S.A. § 2608(a)(3).
18 For The Defense l Vol. 7, Issue 4
www.schnader.com
Commonwealth v. Jennifer A. Whalen, CP-47-CR-26-2014 (C.P.Ct.
See, Emily Bazelon, A Mother is in Jail for Helping Her Daughter Have
18 Pa. C.S.A. § 03.
Vol. 4, Issue 4 l For The Defense 9
Schnader
is a proud supporter of
PACDL
Laurel Gift
Randall P. Hsia
Co-Chairs
Criminal Defense, Internal Investigations,
Ethics & Compliance Practices
lgift@schnader.com
412-577-5115
Fifth Avenue Place
120 Fifth Avenue
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Pittsburgh
PA 15222
rhsia@schnader.com
215-751-2462
1600 Market Street
Suite 3600
Philadelphia
PA 19103
Also see, Claire Kovach and Marc Stier, Pennsylvania Budget and Policy
Center, The Cost of Banning Abortion in Pennsylvania (Sept. 22, 2022)
(banning abortion would severely harm women in the state, especially
women of color and women with low incomes), http://www.krc-pbpc.org.
6
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
34 Butler County Senior Assistant Public Defender.
35 Commonwealth v. Dischman, 2018 Pa. Super. 238 (2018).
36 Id. at 4.
37 Id. at 12.
full notes section for this article.
38 In the Interest of L.J.B., 199 A.3d 868, 870 (Pa. 2018).
39 Allegheny Reproductive Health Center v. Pennsylvania Dep't of Human
Services, 26 MAP 2021.
40
Philadelphia Bar Association Resolution on Protecting Reproductive
Rights and Opposing Constitutional Amendments and Legislation That
Would Further Restrict Abortion Rights in Pennsylvania (Sep. 29, 2022),
https://philadelphiabar.org/?pg=ResSept22_2.
41
PANTONE
In Interest of L.B., 177 A.3d 308 (Pa. Super. 2017) (Strassburger, J.,
concurring).
2955C
CMYK
7406C
About the Author
90/78/39/30
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9/22/91/0
22/58/92
234/194/56
HEXIDECIMAL
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#EAC137
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.
Share this article
Caroline M. Roberto has been
engaged exclusively in federal and
state criminal defense practice
throughout Pennsylvania and
elsewhere for over 35 years. Ms.
Roberto is a Fellow of the American
College of Trial Lawyers and was the
2011 Josel Advocacy Award recipient
presented by the Pennsylvania
Association of Criminal Defense
Lawyers. Additionally, Ms. Roberto
co-founded the Women's Bar
Association of Western Pennsylvania and is a past president of
the Pennsylvania Association of Criminal Defense Lawyers. Ms.
Roberto earned a BA from Duquesne University and received her
law degree from the University of Memphis.
https://www.philadelphiabar.org/?pg=ResSept22_2 https://www.nacdl.org/Document/AbortioninAmericaLegOverreachCriminalizRerpoRights https://www.nacdl.org/Document/AbortioninAmericaLegOverreachCriminalizRerpoRights http://www.krc-pbpc.org http://www.nytimes.com/2022/02/14/health/abortion-heartbeat-debate.html http://www.nytimes.com/2022/02/14/health/abortion-heartbeat-debate.html https://www.nytimes.com/2022/09/27/us/politics/doug-mastriano-abortion-murder.html https://www.nytimes.com/2022/09/27/us/politics/doug-mastriano-abortion-murder.html http://www.schnader.com
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