For the Defense - Vol. 8, Issue 1 - 40

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
* 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.
mens rea will suffice for a conviction and that it is enough to
show that a defendant " had reason to know " the item was
stolen. PACDL also supported Mr. Barradas's contention that a
split of authority in the courts of appeals on the question of what
sources a federal court may look to in ascertaining the realistic
prospects of conviction on a state criminal charge warrants the
Supreme Court's review. The brief was drafted by Robert Byer,
Christopher Casey, and Ryan Monahan of Duane Morris, LLP with
substantial assistance from PACDL Amicus Committee members
Cheryl Brooks and Peter Goldberger. The case is docketed at No.
22-595 in the U.S. Supreme Court.
Last year, PACDL filed amicus briefs in a pair of appeals to the
Pennsylvania Supreme Court involving the standard for admission
of machine-generated evidence. The cases are Commonwealth v.
Wallace, 93 MAP 2021, and Commonwealth v. Weeden, 19 WAP
2022.
As a matter of first impression, the Superior Court held in
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
Wallace that computer-generated global positioning system
( " GPS " ) data from a GPS monitoring device is not a " statement "
and therefore does not qualify as hearsay under Rule 801 of the
Pennsylvania Rules of Evidence.3
File your client's motion after the
The GPS data was admitted in
* 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.
Wallace as a business record without any showing concerning the
accuracy or reliability of the data. Together with the Defender
Association of Philadelphia, PACDL urged the Supreme Court in
Wallace to conclusively declare that GPS and other data evidence
must meet the threshold of reliability-the sine qua non for
admitting hearsay and all other evidence-prior to its admission.
In the amici filing, PACDL and the Defender Association itemized
the many forms of digital or machine-generated proof offered
in criminal prosecutions, including cell site location information
( " CSLI " ), network event location systems ( " NELOS " ) data, event
data recorders or " black boxes, " and photo time-stamps, and
advocated that Rule 901(b)(9) of the Pennsylvania Rules of
Evidence requires proof of process accuracy as a condition for
admission of such digital and machine-generated proof. The
Supreme Court heard oral argument in Wallace in September
2022.
* 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.
40 For The Defense l Vol. 8, Issue 1
PACDL asserted a similar position in Weeden which involved
admission of data generated by technology that utilizes
microphones to identify and locate the sound of gunshots.4
The defendant's conviction in Weeden was based, in part, on a
ShotSpotter report attesting to the time and location of gunshots
that was admitted without any witness testimony concerning the
accuracy or reliability of the technology used to generate the
report. As in Wallace, PACDL urged the Supreme Court in Weeden
to address and affirm the role of and need for adequate evidence
of reliability and authentication when machine-generated proof
is offered in criminal cases.
PACDL Amicus Committee members Cheryl Brooks, Jules Epstein
and Meredith Lowry developed the arguments and drafted the
Wallace and Weeden briefs.
As these cases illustrate, PACDL's Amicus Committee regularly
submits amicus briefs on criminal law issues in cases pending
in Pennsylvania's appellate courts as well as in the U.S. Court
5
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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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
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).
NOTES:
1
%20Brief.pdf
2
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).
See 8 U.S.C. §§ 1101(a)(43)(G), 1227(a)(2)(A)(iii).
3 See Commonwealth v. Wallace, 244 A.3d 1261, 1272
(Pa. Super. 2021).
4
See Commonwealth v. Weeden, 253 A.3d 329, 333-34
(Pa. Super. 2021).
About the Author
About the Author
Click here to view and/or print the
full notes section for this article.
Donna A. Walsh's practice
focuses on litigation, appeals,
employment law, and white
collar criminal defense at
Myers, Brier & Kelly, LLP.
challenges to Pennsylvania Election Code provisions
authorizing no excuse mail-in voting in 2020 and
participated in the successful defense of the new
state legislative reapportionment plan in appeals to
the Pennsylvania Supreme Court and on petition for
certiorari to the U.S. Supreme Court in 2022.
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
She was selected to the Top 50 Women Pennsylvania
Super Lawyers for 2020 and has repeatedly been voted
to the list of Pennsylvania Super Lawyers. She was also
named to City & State Pennsylvania's 2022 Law Power
100 list. She is a graduate of Bucknell University and the
University of Pittsburgh School of Law.
Donna was a member of the
MBK team that successfully
defended parallel state
and federal constitutional
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of Appeals for the Third Circuit and the U.S. Supreme Court.
The diverse and engaged Amicus Committee, which consists
of appellate law specialists, law professors, public defenders,
and criminal defense practitioners, investigates and evaluates
opportunities to provide amicus support, develops policy positions
for PACDL briefs, and drafts and edits PACDL amicus filings. PACDL
has submitted nearly 120 amicus briefs since 1990 and remains on
the lookout for opportunities to assist courts by sharing PACDL's
unique perspective on application and enforcement of the
criminal laws. Suggestions for providing amicus support are most
welcome. If you are aware of a pending matter where the court
would benefit from PACDL's perspective, you are encouraged to
reach out via the link in the PACDL website.
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The brief is available at https://www.supremecourt.gov/
DocketPDF/22/22-293/242292/20221003125252896_35295545_
1-22.10.03%20-%20Novak-Parma%20-%20Onion%20Amicus
#153A5B
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https://www.pacdl.org/files/PACDL%20Amicus%20application%20fillable.pdf https://www.supremecourt.gov/DocketPDF/22/22-293/242292/20221003125252896_35295545_1-22.10.03%20-%20Novak-Parma%20-%20Onion%20Amicus%20Brief.pdf
For the Defense - Vol. 8, Issue 1

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