For the Defense - Vol. 8, Issue 3 - 69

benefit to public safety. Adhering to the court
rules, including a timely, fair and meaningful
appellate process, is crucial to preventing youth
from unnecessarily enduring the risk of physical
abuse, disruption of healthy development, and
denial of quality education that plague placements
in Pennsylvania and disproportionately fall on youth
of color and youth with disabilities.
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.
Supreme Court to clarify for the bench and bar that judicially
crafted workarounds cannot " fix " the unconstitutional
statutory scheme which equates acceptance of ARD with a
criminal conviction.
Amicus Committee members Cheryl Brooks, Peter
Goldberger, and Leonard Sosnov substantially assisted Mr.
McNeil in drafting the brief.
In the Interest of N.E.M, 8 EAP 2023 and 9 EAP 2023
Amicus Author: Juvenile Law Center, Philadelphia
Filing Date: June 26, 2023
* 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.
* 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.
PACDL and several other legal organizations joined the
brief of the Juvenile Law Center In the Interest of N.E.M.
which involved the Pennsylvania Juvenile Act and associated
court rules relating to placement of youth in out-of-home or
other confinement settings. The brief argued that it was a
violation of the Juvenile Act and related court rules to order
an out-of-home placement without explaining the reasons
for doing so and providing a record for review and that the
Superior Court erred in denying the juvenile's petition for
specialized review without an opinion. To give meaning
to these procedural requirements, and allow for oversight
and accountability, juveniles must be afforded the right to
specialized appellate review of any order that places them
out of the home.
Noting that Pennsylvania relies on out-of-home youth
placements far more than other states, particularly including
cases involving non-criminal acts and technical violations, the
brief argued that,
the Juvenile Act's limitations on youth confinement
stem from a deep history and research that
underscore the trauma and other harmful effects
of removing youth from their homes and placing
them in institutional settings, with no substantial
* 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.
* 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.
File your client's motion after the
adherence to the rules in view of the myriad devastating
harms youth face in out-of-home placements.
Amicus Participation
The Amicus Committee invites suggestions concerning
matters that would benefit from PACDL's amicus support. 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.
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
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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HEXIDECIMAL
The Amicus Committee also seeks additional participants
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
#153A5B
#EAC137
PANTONE
to review and prepare Amicus Briefs. If you have interest,
please contact pacdl@pacdl.org.
NOTES:
1
banc); Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020).
2
Jersey, 530 U.S. 466 (2000); Chichkin, 232 A.3d at 968-71.
3
About the Authors
Commonwealth v. Richards, 284 A.3d 214 (Pa. Super. 2022) (en
Alleyne v. United States, 570 U.S. 99 (2013); Apprendi v. New
Commonwealth v. Verbeck, 290 A.3d 260 (Pa. 2023).
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).
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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).
#153A5B
#EAC137
About the Author
Click here to view and/or print the
full notes section for this article.
plan in appeals to the Pennsylvania Supreme Court and on petition for
certiorari to the U.S. Supreme Court in 2022. 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 and serves as the Chairperson of the PACDL Amicus Committee.
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
Vol. 8, Issue 3 l For The Defense 69
Vol. 4, Issue 4 l For The Defense 9
Brian McNeil is a Senior Assistant
Public Defender at the York County
Public Defender's Office. He represents
indigent criminal defendants in direct
appeals and PCRA matters. He moved
to Pennsylvania in 2016, after 11 years
at the Office of the State Appellate
Defender in Chicago.
Donna A. Walsh's practice focuses on
litigation, appeals, employment law,
and white collar criminal defense
at Myers, Brier & Kelly, LLP. Donna
was a member of the MBK team that
successfully defended parallel state
and federal constitutional challenges
to Pennsylvania Election Code
provisions authorizing no excuse mailin
voting in 2020 and participated
in the successful defense of the new
state legislative reapportionment
Amicii urged the Supreme Court to require faithful

For the Defense - Vol. 8, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 8, Issue 3

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For the Defense - Vol. 8, Issue 3 - 2
For the Defense - Vol. 8, Issue 3 - Contents
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