For the Defense - Vol. 8, Issue 3 - 33

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
A Note on Pending Litigation
* 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.
My Client Has an Old Report. What Can I Do?
* 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 law allows for the Secretary of DHS to expunge records from
the statewide registry for " good cause shown. " To begin this process,
one must submit a petition to the Secretary in conformity with the
CPSL.11
File your client's motion after the
I have never had a petition granted. That said, once the
* 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.
Secretary denies the petition for expungement, litigants can appeal
that decision. The case then goes to BHA for a hearing on whether
the Secretary properly denied the petition. It is not a hearing on
the merits of the underlying report, but a hearing on whether
there is good cause for the person to be removed and whether the
Secretary abused her discretion in denying the request. These cases
are litigated by counsel out of Harrisburg, not the county agency,
and I have had some luck getting counsel to agree to have cases
expunged at this level.
These petitions, or hearings on them, are like a criminal pardon
request. They are an opportunity for litigants to explain how they
have grown, what they have done, and why being on the registry
is no longer a good thing and is no longer necessary to protect the
public.
How Will a Criminal Conviction or ARD Impact the
Indicated Report?
Where there is " a judicial adjudication based on a finding that
a child who is a subject of the report has been abused and the
adjudication involves the same factual circumstances involved in
the allegation of child abuse " the indicated report will be relisted
as a founded report.12
A " judicial adjudication " includes a guilty
* 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.
plea. Similarly, when there is an acceptance into ARD " and the
reason for the acceptance involves the same factual circumstances
involved in the allegation of child abuse " the report will be relisted
as founded.13
Once a report is founded based on a criminal conviction or
adjudication of dependency, the only way to challenge the report
is to file an appeal and challenge whether the underlying criminal
On July 11, 2023, the Commonwealth Court handed down
a decision in S.F. v. DHS10
which held that the current process for
challenging indicated reports as applied to teachers does not
meet Constitutional Due Process standards and that " teachers
must be afforded a pre-deprivation hearing before an impartial
[administrative law judge (ALJ)] before being listed as a perpetrator
in an indicated report on the ChildLine Registry and in a founded
report, based on ARD. " This article does not examine this recent
case, but practitioners should know that it is an issue that only
applies to teachers, so far. But given the arguments and rationale in
the case, the same holding could easily apply to other professionals
whose jobs require a ChildLine clearance.
Even so, in exigent circumstances and by calling DHS repetitively,
this can be sped up. If you lose, all cases can be appealed to the
Commonwealth Court within thirty days of the ALJ's ruling.
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
However, if the founded report is based on an admission into
the ARD program, an alleged perpetrator can still challenge the
underlying basis of the report in a full hearing.14
2955C
CMYK
7406C
90/78/39/30
NOTES:
1
RGB
9/22/91/0
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
HEXIDECIMAL
#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).
PANTONE
2955C
7406C
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
CMYK
90/78/39/30
RGB
9/22/91/0
22/58/92
234/194/56
HEXIDECIMAL
NOTES:
1
2
3
#153A5B
#EAC137
23 Pa.C.S.A. § 6331.
23 Pa.C.S.A. § 6335.
Confusingly, Philadelphia's child welfare agency is called the Department
of Human Services, just like the statewide agency. In this article DHS will
About the Author
Click here to view and/or print the
refer to the statewide agency.
4
full notes section for this article.
6 23 Pa.C.S.A. § 6341(c.2)(4).
23 Pa.C.S.A. § 6341(a)(2).
5 23 Pa.C.S.A. § 6338.1(a).
See BHA Standing Practice Order: https://www.dhs.pa.gov/about/
DHS-Information/Documents/Standing%20Practice%20Order%20-%20
7
Formal%20Appeals.pdf
8
and%20Appeals/s_002533.pdf.
9
10 S.F. v. DHS, 574 M.D. 2020.
11 23 Pa.C.S.A. §6341(a)(1).
23 Pa.C.S.A. §6303.
12
13 Id.
https://www.dhs.pa.gov/docs/Publications/Documents/Hearings%20
G.V. v. Department of Public Welfare, 91 A.2d 667 (Pa. 2014).
14 See J.F. v. Department of Human Services, 245 A.3d 658 (Pa. 2021).
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
Conclusion
Indicated reports, the CPSL, the statewide registry, and criminal
22/58/92
234/194/56
child abuse cases go hand-in-hand. Criminal practitioners, although
they may not handle these administrative cases, would be wise to
understand the collateral consequences of these reports on clients
and how the administrative system interplays with the criminal
process.
adjudication is based on the " same factual circumstances involved
in the allegation of child abuse. " This is a broad definition. In most
cases when there is an indicated report of child abuse, even if the
indicated perpetrator pleads guilty to endangering the welfare of
a child (EWOC) or 'non-violent' offense, it will likely still meet the
definition of a founded report. Thus, once a report is founded, it is
nearly impossible to have the report expunged.
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.
and small firms integrate technology into their practice to be more
productive and generate more revenue.
Share this article
Vol. 8, Issue 3 l For The Defense 33
Vol. 4, Issue 4 l For The Defense 9
Joshua Camson is a criminal defense
attorney and partner at Miller, Turetsky,
Rule & McLennan. He has represented
clients throughout the Commonwealth
in criminal, administrative, and
dependency cases and regularly
handles appeals in the Superior Court,
Commonwealth Court, and Pennsylvania
Supreme Court. A former contributor
to Lawyerist.com and former comedy
writer at BitterLawyer.com, Josh also
runs a consulting firm helping solo
https://www.dhs.pa.gov/about/DHS-Information/Documents/Standing%20Practice%20Order%20-%20Formal%20Appeals.pdf https://www.dhs.pa.gov/about/DHS-Information/Documents/Standing%20Practice%20Order%20-%20Formal%20Appeals.pdf https://www.dhs.pa.gov/about/DHS-Information/Documents/Standing%20Practice%20Order%20-%20Formal%20Appeals.pdf https://www.dhs.pa.gov/docs/Publications/Documents/Hearings%20and%20appeals/s_002533.pdf https://www.dhs.pa.gov/docs/Publications/Documents/Hearings%20and%20appeals/s_002533.pdf http://www.Lawyerist.com https://www.BitterLawyer.com

For the Defense - Vol. 8, Issue 3

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