For the Defense - Vol. 6 Issue 3 - 33

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
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would have been able to obtain a second warrant
with the additional information.
The question, as
* 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.
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* 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.
issue2_2021/index.php#/p/14.
2
3
Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020).
* 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.
Commonwealth v. Johnson, 240 A.3d 575 (Pa. 2020).
5
* 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.
Commonwealth v. Johnson, 231 A.3d 807 (Pa. 2020).
7 Batson v. Kentucky, 476 U.S. 79 (1986).
Harrison v. United States, 88 S.Ct. 2008 (1968).
11 Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).
12 Commonwealth v. Barr, 240 A.3d 1263 (Pa. Super. 2020).
13
arrest).
14
See generally Commonwealth v. Shaw, 246 A.3d 879 (Pa. Super.
2021). Cases decided after our Supreme Court's landmark decision
in Commonwealth v. Walker, which opened the previouslyclosed
door for calling eyewitness identification experts, are
also instructive. For example, in Commonwealth v. Selenski,
defendant sought permission to call an eyewitness identification
expert at trial before Walker was decided. Commonwealth v.
Selenski, 117 A.3d 1283, 1283-85 (Pa. Super. 2015). The trial court
refused permission, and the defendant was convicted. Id. On
appeal, the Superior Court held that, in light of the Supreme
Court's intervening decision in Walker, which lifted Pennsylvania's
per se ban on eyewitness identification expert testimony,
defendant's case must be remanded to the trial court. Id.
4
File your client's motion after the
Note that in Commonwealth v. Bishop, 217 A.3d 833 (Pa. 2019),
our Supreme Court held that when defendants raise claims
for departure from federal constitutional jurisprudence on
independent state grounds, some analysis explaining the grounds
for departure is required at the trial court level. At a minimum,
the defendant must offer some reasonably developed, colorable
analysis that would support departure. Where trial counsel fails
to offer this analysis, any departure claim on appeal will be
deemed waived.
6
8 Commonwealth v. Basemore, 875 A.2d 350 (Pa. Super. 2005).
9
Note that " [a]n order pertaining to bail is ordinarily subject
to immediate review pursuant to Pa.R.A.P. 1762(b)(2). "
Commonwealth v. Parsons, 166 A.3d 1242, 1245 (Pa. Super. 2017).
10
* 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.
requirement).
15
Birchfield v. North Dakota, 136 S.Ct. 2160 (2016) (holding that
blood tests, which are significantly more intrusive that breath
tests, may not warrantlessly be administered incident to a DUI
Commonwealth v. Myers, 164 A.3d 1162 (Pa. 2017)
(holding that Pennsylvania's implied consent statute does not
authorize warrantless blood tests of unconscious drivers, nor
does it constitute an independent exception to the warrant
Interestingly, the judge who granted the motion to suppress
was the same judge who signed off on the warrant.
presented, clearly alleges a failure on the part of the
Commonwealth to preserve the inevitable discovery
issue for appellate review, but the Superior Court found
that the inevitable discovery issue is a " subsidiary issue
of [the] probable cause issue. "
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.
proudly supports
Pennsylvania Association of
Criminal Defense Lawyers
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Commonwealth v. Tilley, 780 A.2d 649, 652 (Pa. 2001) (quoting
Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa. 1983)). Note
that the nuance of retroactivity rules is beyond this article's
scope. To read more about retroactivity issues, and to learn
more about strategies to avoid a waiver finding even if the issue
wasn't preserved, we recommend Cheryl Brooks' recent article in
For the Defense. A link to that article is available here: https://
www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_
NOTES:
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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
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
Melissa H Maxman
Managing Partner, Washington, D.C.
+1 202 851 2071
mmaxman@cohengresser.com
www.cohengresser.com
New York | Paris | Washington DC | London
About the Author
Click here to view and/or print the
About the Authors
full notes section for this article.
Defender. Stephanie's current practice focuses on postconviction
matters and direct appeals before the Superior
and Supreme Courts of Pennsylvania and the United
States Court of Appeals for the Third Circuit.
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. 6, Issue 3 l For The Defense 33
Vol. 4, Issue 4 l For The Defense 9
Rob Perkins owns a law practice
based in Pittsburgh that focuses
on complex state and federal
criminal defense, including
serious felony trials, appeals,
and post-conviction litigation.
Rob has published several
articles and taught continuing
education courses related
to criminal law. Rob also currently serves on PACDL's
Publications Committee.
Stephanie M. Noel is an
attorney at Difenderfer,
Rothman & Haber, P.C., a
criminal defense firm in
Pittsburgh. Prior to joining her
law firm, Stephanie proudly
served as an Assistant Public
Defender at the Allegheny
County Office of the Public
We congratulate their
continued outstanding service.
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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).
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