For the Defense - Vol. 6, Issue 1 - 40

affidavit of probable cause, the officer attested
the language of the Wiretap Act only permitted
Discuss
waiver with
your client
withalso
the argued
same that Using
thehe
strategy
people
both in and
that
reliedabove,
on the
CI interviews
as the basis
onethis
intercept
per order.
Katona
seriousness
you
would
discuss
the
waiver
of
any
outside
my
office
have
had
tremendous
success
with
for the warrant. Further, as to the
knowledge
of
the warrant was fatally tainted by the inclusion
30
constitutional
right.
Rule
600
motions.
Oftentimes,
just
making
it
plain
the magistrate, the Supreme Court noted that
of evidence derived from the illegally monitored
to the Commonwealth
that
you intend
seriously
references to the
recordings
in to
the
affidavit were
conversations.
The
trial
court
denied
Katona's
Request discovery early and in writing. That way,
litigatevague
this issue
can
getFinding
you results.
It is only
one
and
brief.
the
basis
for
the warrant
motion
to
suppress,
and
Katona
was
later
convicted
if the Commonwealth fails to provide requested
weapon
in
your
arsenal,
but
because
a
win
means
was independent of the recordings, the Supreme
and sentenced
after
a non-jury will
trial.be on
discovery,
any required
continuance
discharge,
it is affirmed
a potent weapon
that should
Court
the denial
of thenever
motion to
the prosecution. If you have to follow-up with the
be
overlooked.
suppress.
The Superior Court affirmed in an en banc
Commonwealth about discovery they have failed to
opinion. The majority drew a distinction between
hand over, be sure to memorialize such requests in
the suppression of the recordings and theNOTES:
NOTES:
a writing such as an email.
suppression of the information obtained by the 1 Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
1
91 A.3d
102. VI;
(Pa.PA.
2014).
. Amend
CONST. art. 1, § 9.
CI during the
conversations.
It concluded that 2 U.S. 2ConSt
If a continuance
is required
due to the
243 A.3d atv.187.
3
Commonwealth
DeBlase,
665 A.2d 427, 431 (Pa. 1995).
3
Katona
" had
a
reasonable
expectation
of
privacy
586
A.2d
887
(Pa.
1991).
Commonwealth's failure of diligence, be sure to
4
4
Barker
v.
Wingo,
407
U.S.
514,
530 (1972) (articulating the
243 A.3d at 204.
that on
histhe
words
would
not
be the
recorded,
but ... had constitutional
5
put that
record
at the
time
continuance
test); Commonwealth v. Preston, 904 A.2d
Id. at 205.
no reasonable
of privacy
Id. at
207. Ct. 2006) (the Barker test is an entirely
Super.
is requested.
Even ifexpectation
the judge does
not rulewith
in respect 1, 1067 (Pa.
Id.
at
813-4.from Rule 600 and therefore needs to be
separate
analysis
the information
itself,
which hethe
freely
8
yourto
favor,
you have at least
preserved
issuedisclosed
for
Id. at 815.
9 separately).
Id. at 816.
to the CI, who in turn relayed the information to 5 raised
appeal.
10
Pa.R.Crim.P.
Rule(internal
600(2)(a);
see alsomarks
Commonwealth
Id. at 826
quotation
and brackets omitted).
21
authorities. " The Superior Court then found that v. Kearse,
11
Id. 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
12
All motions
to dismiss
pursuant
to Rule
600 must
be
the warrant
did not
rely upon
evidence
obtained
Id. need be shown to obtain Rule 600 dismissal).
" prejudice "
13
31
Id. at 826-7.
File yourrecording
client's motion
the
made
in writing.
While
from
the unlawful
and after
determined
14 Rule 600 has a more definitive time period, the sole
581 A.2d 172 (Pa. 1990).
Rule
600
on the
action
the Commonwealth.
365-day
periodvoluntary
has elapsed.
If the trial
Katona's
disclosures
tojudge
the CIrules
qualified focus15 of120
A.3d
349is (Pa.
Super.
2015)of( " Ricker
I " ), appeal dismissed as
Thus,
a
constitutional
argument
should
be
forwarded
improvidently
granted,
170
A.3d
494
(Pa.
2017)
( " Ricker II " ).
against
youindependent
and subsequently
theTwo
Commonwealth
as an
source.
judges dissented,
16
A.3dprejudices
at 732. a defendant and that delay was
when
a233
delay
17
causes
another
substantial
period ofofdelay,
file
noting
that
the application
the independent
Id. caused
at 735. by the courts.
primarily
18
Id.
6
a new
Rule 600
motionisbased
this additional
source
doctrine
only on
appropriate
where the Pa.R.Crim.P.
Rule
19
240 A.3d
at600(D)(1).
466.
20
is any
trulytrial
independent
Id. at 467.
timeindependent
and litigate itsource
prior to
to preservefrom
an the
21
Id. here
at 470. to view and/or print the
tainted
and time
the investigative
team that Click
objection
to evidence
the additional
period.
22
See Commonwealth v. Henderson, 47 A.3d 797 (Pa. 2012).
engaged in the misconduct.
full notes section for this article.
At the Rule 600 hearing, after the defense has
made On
a prima
faciethe
showing
that the
defendant
appeal,
Supreme
Court
recounted the
has not
been
brought
to
trial
within
365
days,
origins of the independent source doctrine in
the Commonwealth
bears
burden of
federal law and
its the
evolution
inproving
Pennsylvania.
that Most
they have
nonetheless
acted
with
diligence.
recently, the Supreme Court of Pennsylvania
This decided
means that
thea defense
has made such
to after
adopt
more conservative
approach
Katherine Ernst is an
a prima
showing,
it is the
thatfacie
would
strike
theCommonwealth
appropriate balance
appellate
attorney
the
Attorney
Jessicawith
A. Fiscus
whobetween
should belaw
required
to put on
its evidence
enforcement
and
privacy interests.22
Montgomery
Public
started herCounty
career as
a staff
and The
the defense
should
only
argue afterthat,
the while the
Supreme
Court
re-iterated
Defender's
She
attorneyOffice.
for two
judges
Commonwealth
done so.
Essentially,
a Rule
600 the
independenthassource
rule
remained
viable,
sitting
on thefrom
Superior
handles
appeals
all Court
hearing
should
proceed
in forma almost
identically rule
courts
should
not enforce
true independence
of
Pennsylvania.
Today,
units, juvenile to homicide,she
the absence
of intentional
misconduct
to a in
suppression
hearing.
If the judgepolice
asks you
maintains
a private practice
and she
also formulates
or malfeasance.
Without addressing
whether the
to argue
prior to the Commonwealth's
evidence,
in Erie, Pennsylvania as a sole
legal strategy for pre-trial
length
Katona's
wiretap
violated
the Wiretap
make
it clearofthat
you could
not possibly
argue
practitioner and works partMagna Cum
Act, the
Supreme
that
thethe
police did and trial units. Katherine graduated
on behalf
of your
clientCourt
until opined
you know
what
time in the appellate division
Laude
from
Loyola
Law
School,
New
not engage in
misconduct
or malfeasance
as they
of the Erie County Public Defender's Orleans
Office. Her
Commonwealth's
evidence
of diligence
is.
acted pursuant to a court order.
in 2007
and
was on
law review.
She
practiced
private
practice
focuses
on direct
appeals,
the filing
If the Commonwealth appears at the Rule 600
of PCRA petitions
and
collateral
appeals, juvenile
at Kaufman,
Coren &
Ress
in Philadelphia
out
hearing
and
does then
not present
any evidence
thatwhether
The
Court
proceeded
to consider
defense,
and
family
law.
Attorney
Fiscus
received
a
of law school, and thereafter did work in the
it acted
diligence-for
instance,by
they
did not truly
the with
warrant
was obtained
evidence
Bachelor
of
Arts
from
the
University
of
Notre
Dame
intersection of horseracing law and §1983 for a
bringindependent
in the officerof
to testify
to the attempts
in 1997 and her law degree from the Case Western
the recordings.
To domade
this, the
number of years before following her passion
to find
andconsidered
apprehendwhether
the defendant-argue
that
Reserve University School of Law in 2000.
court
(1) the decision
to seek
for indigent criminal defense.
theythe
have
not metwas
their
burden because
the burden
warrant
prompted
by the alleged
tainted
of proof
includes
the(2)
burden
of production
and
evidence
and
whether
the magistrate
was
Share this article
arguments
of counsel
are not
evidence.
informed
of tainted
evidence.
In reviewing the
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For The Defense l Vol. 6, Issue 1

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For the Defense - Vol. 6, Issue 1

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