For the Defense - Vol. 8, Issue 1 - 26

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
example of the hearsay authentication of a record that was actually
self-authenticating.53
But that doesn't work when a constitutional
* 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.
ame
ny
way,
ed
n
* 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.
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h the
led to
sts in
to
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uance
n
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.
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ue for
right is at issue, because if there's no burden on the exercise of
the right, there's no violation at all. Thus, when a court says that
admitting evidence of a defendant's silence was " not prejudicial, "
it is functionally saying that it was not error-because, in the
court's view, the defendant suffered no burden at trial from having
invoked her right to silence.
When the Pennsylvania Supreme Court first applied DiNicola's
holding that the reference to silence " is not innately prejudicial "
outside the ineffectiveness context, in Molina and Adams,54
it just that way: to define the scope of substantive protections for
pre-arrest silence, a question it hadn't previously decided.55
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.
2018).
4
5
verdicts, I refer primarily to " verdicts " in this piece.
7
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Story, 383 A.2d at 162; Fulton, 179 A.3d at 493; Chapman, 386
U.S. at 24.
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it used
NOTES:
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* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
was problematic because the court did not acknowledge that
" prejudice " in DiNicola sets a much higher standard than the burden
on the exercise of a right that defines a constitutional violation.
Would the court have given more protection to pre-arrest silence
had it used the right standard for " prejudice " ? That's impossible to
say for certain, but counsel should be alert to the question in prearrest
silence cases.56
File your client's motion after the
In contrast, when the Superior Court confronted the right-tosilence
claim in Rivera, it was not writing on a blank slate; state
and federal precedent compelled the conclusion that Mr. Rivera's
constitutional rights were violated when the court allowed
testimony about his post-arrest, post-Miranda silence.57
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
But the
Superior Court functionally overwrote those rights by allowing
DiNicola and Adams to govern harmless error.58
This was not just a
ust be
er the
rules
ealth
e
nal
ve an
s
nt
,
ing
ce.
uch
h
e
* 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.
5
NOTES:
1
below the terminology to watch out for.
2
mistake of appellate procedure. When the Superior Court said that
Mr. Rivera suffered no prejudice, or de minimis prejudice, from the
improper testimony, it effectively said there was no constitutional
violation at all-because there was no burden on his constitutional
rights.
Rivera concretely illustrates how a court's mistake on " prejudice "
in the constitutional context not only leaves your client stuck with
" no harm " -it also means " no foul. " Insisting the prosecution meet
the strict harmless-error standard, properly defined, is resisting the
erosion of your client's substantive rights.59
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cally
u
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e
the
* 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.
26 For The Defense l Vol. 8, Issue 1
This is not the same as when an error requires relief in postconviction
ineffective-assistance cases. Letting the prosecutor or
the court confuse those standards will hurt your client. I discuss
The standard itself is discussed below. Federal courts apply a
lower standard to non-constitutional errors.
This article focuses on Pennsylvania law, but also discusses
federal cases that apply the constitutional harmless-error
standard Pennsylvania adopted for all criminal cases. Moreover,
when a state court error violates a federal constitutional right,
the state court reviewing it must apply that standard at a
About the Author
Click here to view and/or print the
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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.
5
That 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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Chapman, 386 U.S. at 24 (referring to " constitutional error " ).
What it means to say an error " prejudiced " the defense,
triggering the prosecution's burden to show harmless error to
avoid reversal, is addressed below. Defense counsel should be
alert to the confusion the term has caused.
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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).
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).
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).
About the Author
Click here to view and/or print the
full notes section for this article.
About the Author
7406C
recently in Commonwealth v. Fulton, 179 A.3d 475, 493 (Pa.
Story, 383 A.2d at 164; see Fulton, 179 A.3d at 493.
E.g., Fulton, 179 A.3d at 493; Story, 383 A.2d at 164. Though
appellate cases naturally refer to " appellate " review, as noted
above the same standard applies when seeking relief in the trial
court.
6
E.g., Commonwealth v. King, 234 A.3d 549, 564 (Pa. 2020).
For simplicity, and because most of the lead cases address trial
In fact, the Pennsylvania Supreme Court held in Commonwealth
v. Hamlett, 234 A.3d 486 (Pa. 2020), that a reviewing court
may raise and find harmless error sua sponte when the
Commonwealth does not show (or even try to show) it. The
majority hedged that ruling by saying that " sua sponte review is
extraordinary and should be disfavored, " and courts may choose
not to shoulder the Commonwealth's burden. 234 A.3d at 493. A
forceful dissent by Justice Wecht endorsed the excellent analyses
by Hamlett's counsel, Stephanie M. Noel of Pittsburgh, and by
counsel to PACDL as amicus curiae, Patrick A. Casey of Scranton.
A pending Pennsylvania Supreme Court case in which this
author represents the appellant, Commonwealth v. Rivera (22
MAP 2022, argued Nov. 29, 2022), may test the limits of the
court's patience for doing the Commonwealth's job for it under
Hamlett. Both the Commonwealth and the Superior Court used
the wrong test for harmless error in Rivera-twice, on that
record, with the Superior Court granting rehearing the first time,
then taking a different, but still wrong (appellant argues), path
to affirming. If the court agrees that the second attempt to find
harmlessness failed too, it will have to decide whether to remand
to give the Commonwealth and Superior Court a third bite at the
apple, or simply order a new trial.
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
minimum. Commonwealth v. Story, 383 A.2d 155, 162 (Pa. 1978).
3
Story, 383 A.2d at 163-64 (adopting standard from Chapman v.
California, 386 U.S. 18, 24 (1967)); quoted and reaffirmed more
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
and trial units. Katherine graduated Magna Cum
Laude from Loyola Law School, New Orleans
Vol. 4, Issue 4 l For The Defense 9
Lisa A. Mathewson has defended
clients in criminal matters for
twenty-five years. Her appellate
practice spans multiple circuits
and the U.S. Supreme Court-and
recently, Pennsylvania's appellate
courts-and she puts her " law
geek " bona fides to work for
clients in grand jury and trial
matters too. Ms. Mathewson is
a Vice-Chair of NACDL's Amicus
Curiae Committee, with responsibility for the Third Circuit,
and former Co-Chair of NACDL's White Collar Committee.
Before starting Mathewson Law in 2009 she was a partner
in a boutique Philadelphia white-collar defense firm and
practiced with a large international firm after an appellate
clerkship. She is consistently recognized by Best Lawyers in
America and Pennsylvania Super Lawyers for white-collar
criminal defense.
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