For the Defense - Vol. 8, Issue 1 - 43

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
committed one crime without committing the other. In other
words, the defendant could not have recklessly caused serious
bodily injury without recklessly placing the victim in danger of
serious bodily injury.20
According to the Edwards dissent, its facts*
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.
PennDOT Suspensions Do Not Merge
Court has
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.
disqualifications, and revocations categorically do not merge
pursuant to 75 Pa.C.S. § 1532.
File your client's motion after the
held
that PennDOT
In Bell v. PennDOT, the Pennsylvania Supreme Court refused to
employ a criminal merger analysis for PennDOT suspensions and
upheld consecutive PennDOT suspensions.22
* 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.
based approach was superior to the majority's statutory-elements
approach because, " [a]pproaching the merger of convictions
along factual lines produces a sentence that is based in reality
and consistent with legislative intent as expressed in the Crimes
Code and Sentencing Code. " 21
Edwards impacts Deana's Law because under the dissent's
approach, offenses would merge more frequently (e.g.
would merge with Fleeing and Eluding while DUI). And, since
Edwards was a 4 to 3 decision, the merger doctrine is unsettled.
Therefore, practitioners must be prepared to argue the majority's
statutory-elements test and the dissent's facts-based test for nonDUI
offenses that could merge for purposes of Deana's Law.
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
Deana's Law and Pennsylvania criminal merger cases do not
impact PennDOT civil penalties because the Pennsylvania
Supreme
* 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.
DUI
5
suspensions,
The motorist in Bell was convicted in criminal court of DUI/
Highest Rate (75 Pa.C.S. § 3802(c), Homicide by Vehicle while DUI
(75 Pa.C.S. § 3735.3), and Homicide by Vehicle (75 Pa.C.S. § 3732.4).
As a result, PennDOT suspended the motorist's license for a total
of 7 years: 1 year for DUI, 3 years for Homicide by Vehicle while
DUI, and 3 years for Homicide by Vehicle. The motorist argued
and convinced the trial court to merge the two distinct 3-year
suspensions for Homicide by Vehicle while DUI and Homicide by
Vehicle into a single 3-year suspension.
On appeal, the Pennsylvania Supreme Court overturned the trial
court's decision and upheld the 7-year suspension. The Bell court
held PennDOT suspensions do not merge, regardless of whether
the criminal convictions triggering the suspensions merged at
sentencing.23
Applying conventional statutory interpretation to
the statute's plain terms, the Pennsylvania Supreme Court found
that, " Sections 1532(a) and (a.1) assign civil consequences for
separately numbered criminal acts with no mention of merging
those suspensions. " 24
* 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.
because " [o]perating privilege suspensions are collateral civil
consequences, not criminal penalties, (so) they do not violate a
motorist's equal protection or due process rights. " 25
In sum, Bell unequivocally held that criminal merger principles
do not apply to PennDOT suspensions so PennDOT suspensions
do not merge.
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.
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.
4
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
File your client's motion after the
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.
Conclusion
5
PANTONE
2955C
7406C
CMYK
90/78/39/30
9/22/91/0
PANTONE
RGB
2955C
CMYK
7406C
NOTES:
1
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
HEXIDECIMAL
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).
NOTES:
1
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).
42 Pa.C.S. § 9765 (2002) (effective February 9, 2003).
3 871 A.2d 254 (Pa. Super. 2005).
4
Pa.C.S.A. § 3802. " Id. at 267 n. 9.
5
* 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.
About the Author
Click here to view and/or print the
Id. at 264 (quoting Commonwealth v. McCurdy, 735 A.2d 681
full notes section for this article.
impairment/refusal)).
6
Id. at 265.
(Pa. 1999) (emphasis added).
7
8 Id. at 266.
9 Commonwealth v. Given, 244 A.3d 508 (Pa. Super. Ct. 2020)
(Bowes, J., concurring and dissenting).
10
Id. at 509.
13 Id. at 514.
11 Id. at 512 (emphasis in original).
12 Id.
Share this article
14 Commonwealth v. Edwards, 256 A.3d 1130 (Pa. 2021) (4-3
Vol. 4, Issue 4 l For The Defense 9
decision) (Donohue, Todd, and Wecht dissenting).
15
18 Pa.C.S. § 2702(a)(1).
About the Author
Bell further held that merger did not apply
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
#153A5B
#EAC137
75 Pa.C.S. § 3804(c.2) (effective November 15, 2022) (emphasis
added). This article assumes the PA General Assembly intended
75 Pa.C.S. § 3804(c.2) to apply to Tier 3, 3rd and subsequent
DUI offenses only, and not Tier 1 or Tier 2 3rd and subsequent
offenses.
2
About the Author
Click here to view and/or print the
22/58/92
234/194/56
HEXIDECIMAL
full notes section for this article.
90/78/39/30
RGB
9/22/91/0
#153A5B
#EAC137
22/58/92
234/194/56
Williams adjudicated convictions under Pennsylvania's prior
DUI statute, but held, " [T]he relevance of this analysis continues,
even in light of the recent reenactment of the DUI statute at 75
But cf. Commonwealth v. Hill, 238 A.3d 399 (Pa. 2020) and
Commonwealth v. Farrow, 168 A.3d 207 (Pa. Super. Ct. 2017)
(Double Jeopardy analyses required for merging 75 Pa.C.S. §
3802(a) (general impairment) offenses where there is enhanced
grading (e.g., DUI general impairment/accident and DUI general
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.
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).
Pennsylvania criminal merger law is complex. But, practitioners
can better navigate the merger language in Deana's Law by
remembering that DUI offenses merge under the single harm
doctrine, Commonwealth v. Edwards controls non-DUI offense
merger, and PennDOT penalties do not merge pursuant to
Commonwealth v. Bell.
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 1 l For The Defense 43
Vol. 4, Issue 4 l For The Defense 9
Joshua Goldberg manages
his own firm, Goldberg Legal
Services LLC, in Pittsburgh, PA
where he focuses on criminal
defense, traffic and DUI
litigation. Mr. Goldberg is the
author and publisher of the PA
Driver Sanctions chart and In re
PA Expungements chart.
https://nxt-staging-books.s3.amazonaws.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue1_2023/src/docs/FINAL_Magazine_Notes_Goldberg_Merger.pdf
For the Defense - Vol. 8, Issue 1

Table of Contents for the Digital Edition of For the Defense - Vol. 8, Issue 1
