For the Defense - Vol. 9, Issue 3 - 20
* 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.
Standing Ground for Third Parties
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.
was reasonable. For example, was the defendant the victim
of an attempted robbery in a dark parking garage? If so, his
belief that the object in the aggressor's hand was a deadly
weapon, based on his aggressive posture and movements, may
have been reasonable, whether in fact it was even a weapon
at all. Additionally, we all know that some things are deadly
weapons, a gun, a knife, a baseball bat, etc., but what about
non-traditional weapons? Whether it's a car, a walking stick, a
heavy belt buckle, or a bottle of caustic chemicals, so long as
it was wielded in such a way as to be " readily or apparently
capable of lethal use, " the defensive user of deadly force is
arguably entitled to the stand-your-ground defense. Even a
bare-handed assailant may be wielding a deadly weapon if,
for example, the difference in size or strength is so stark as to
make the assailant's body capable of lethal use in context. Or,
where three unarmed aggressors are attacking a single person,
such disparity of force may be sufficient.
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
* 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.
Duty to Retreat
So, you may be asking
yourself,
given
* 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.
Civil Immunity for Justified Acts
20 For The Defense l Vol. 9, Issue 3
Significantly, per 18 Pa.C.S. § 506, the Stand Your Ground
Doctrine also applies to individuals who act in defense of
another person. When using deadly force on behalf of a third
party, the actor essentially " steps into the shoes " of that
person. In this context, the actor's reasonable belief takes on
an interesting dimension. While he stands in the other person's
shoes in relation to the availability of the Stand Your Ground
Doctrine, the element of the existence of a threatened injury
is determined by the actor's reasonable perception. Imagine
a scenario in which the actor happens across an aggressor
threatening another person with what the actor perceives is
a deadly weapon. However, the person being threatened is
fully aware that the weapon is a prop, or that the person is
his friend and is merely joking and knows that he is not in any
actual danger. While the third-party would not be justified in
using deadly force, because the actor believes the threatened
injury to the third-party to be real and the right to the defense
is based on the actor's reasonable perception of the situation,
the actor is entitled to the Stand Your Ground Doctrine's
protections and may lawfully use lethal force.
File your client's motion after the
* 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.
5
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.
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.
Important Takeaways
Pennsylvania's
Stand Your
Ground Doctrine,
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2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
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force was directed nevertheless brings a civil action, the actor is
entitled to attorney fees and costs, when he prevails in having
the case dismissed or if there is a finding that he is immune.
Of course, injuries to third-parties are also possible when
deadly force is utilized, and nothing precludes a third-party,
who sustains injuries because of the justified use of force, from
suing the actor.
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
File your client's motion after the
legalizing the sort of high noon, Old-West gunslinging feared
by opponents of H.B. 40, continues to impose strict limits on
when an actor may be entitled to a justification defense. To
avail himself of the defense, the person using deadly force must
show that he had a subjectively reasonable belief that doing so
was necessary, which is what many trials will revolve around.
While the availability of the defense is a great asset to those
who do everything " by the book, " like the archetypal armed
citizen who shoots an armed back-alley mugger dead on the
spot, this is not the case in many instances. Oftentimes, cases
that do make it to trial will involve defendants who made at
least one significant error in judgment, whether by using force
unnecessarily or by playing some role in causing the altercation
that led to the necessity to use deadly force, and defense counsel
will have to go to great lengths to prove to the jury that these
missteps are not fatal to the defendant's claim of justification.
As in all criminal cases, careful attention by defense counsel to
the way the facts of any given situation interact with the law
is essential, and a good attorney will avail their client of the
strong protections of the stand-your-ground defense to move
the trial to a speedy and favorable resolution.
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.
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
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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).
5
NOTES:
1
Castle and Stand Your Ground Doctrines, whether the duty
to retreat has been completely abolished in Pennsylvania.
The answer is no, especially in the context of the Stand Your
Ground Doctrine, because if your client does not meet all the
requirements, the default provision-assuming, arguendo,
that such is constitutional-is the duty to retreat. For example,
if we were, for purposes of this article, to agree that a violation
of a business's no-firearm policy results in an individual no
longer having a right to be in that business, and your client
nevertheless finds himself in that business when the attack
occurs, he would presumably have a duty to retreat, if he
could do such safely. If he could not retreat safely, then he'd be
authorized to utilize appropriate force.
* 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.
Pennsylvania's
Like other states, Pennsylvania also provides civil immunity
for an actor, who justifiably uses force, whether under the
Castle or Stand Your Ground Doctrines.29
As a result, a person
who acts lawfully in the defense of himself or another is civilly
immune for the injuries sustained by the person against whom
the justified force was directed. If the person against whom
About the Author
Click here to view and/or print the
full notes section for this article.
About the Author
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).
I would like to thank my colleagues, Kevin Fenchak and Dillon Harris, for
assisting in the writing and editing of this Article.
About the Author
Click here to view and/or print the
full notes section for this article.
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
Joshua Prince, while extremely well
known for his Second Amendment
advocacy, he has handled numerous
other constitutional issues, including
freedom of speech, freedom of
religion, parental rights, due process,
equal protection and the right of the
people to be free of unreasonable
searches and seizures. In relation to his
ardent protection of Article I, Section
21 of the Pennsylvania Constitution
and the Second Amendment of
* 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.
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
Share this article
the United States Constitution, he is the Chief Counsel of the
Firearms Industry Consulting Group, a division of Civil Rights
Defense Firm, P.C., where he concentrates his practice in the area
of Firearms Law, at both the state and federal level, representing
individuals, gun clubs/ranges and Federal Firearms Licensees
(FFLs). He actively represents individuals and gun clubs/ranges
at the state level throughout Pennsylvania and Maryland and
FFLs at the federal level throughout the United States, and
even some internationally. He also has an extensive knowledge
of National Firearms Act issues, including issues relating to the
inaccuracy of the National Firearms Registration and Transfer
Record (NFRTR) and protection of veteran bring-back firearms.
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.
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).
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https://nxt-staging-books.s3.amazonaws.com/nxtbooks/PACDL/FORTHEDEFENSE_vol9_issue3_2024/src/Notes.Prince.Final.pdf
http://www.FirearmsIndustryConsultingGroup.com
http://www.CivilRightsDefenseFirm.com
http://www.CivilRightsDefenseFirm.com
For the Defense - Vol. 9, Issue 3
Table of Contents for the Digital Edition of For the Defense - Vol. 9, Issue 3
Contents
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