For the Defense - Vol. 8, Issue 3 - 17

Final Order Granted
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
* 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.
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.
Sometimes, the truth can be difficult for the Court to discern,
with limited time and resources. I have spoken to victims and clients
about the gap between what you know, and what you can prove.
Some cases fall into that gap, and the truth remains hidden. In
many domestic situations, there are only two people who know the
truth of what occurred between them, and the Court must make a
credibility determination based upon the testimony as presented.
A plaintiff actively attempting to deceive the court to achieve their
selfish purposes can occasionally prevail.
The defendant may decide to forgo the expense and stress of
preparing for a hearing. If the court then enters a final order against
the defendant, either following a hearing or from an agreement
to a final order, your client still has options. You may file a Motion
for Reconsideration or appeal to the Superior Court. Both actions
have strict deadlines; it is essential to file within those deadlines. A
successful challenge to the entry of a final PFA Order would require
proof that the trial court made a mistake in its ruling.
If there are children, a final PFA order addressing custody does
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
not prevent initiating a custody action or seeking to modify
custody. Family court devotes more resources to determining the
best interests of a child, which makes it the preferred forum for
issues related to the care of children. The issue of custody may be
resolved far more favorably in family court than the language of the
existing final PFA order, depending on the individual circumstances
of the client.
File your client's motion after the
Whether to pursue those options involves an assessment of the
* 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.
Bad Faith Action
strength of your client's case, as well as financial and emotional
resources for further legal action. If successful in seeking
reconsideration or appeal, then the court can dismiss the case,
and the client can consider additional remedies for the wrongful
accusation.
Sealing Record from Public View
If there is evidence which may likely result in the issuance of a
final PFA order against your client after a hearing, you may wish
to consider entering into an agreement for such an order. Entering
into an agreement for a final PFA order would make available to
your client in the future the option to seal the record, meaning
the record of the final PFA order could not be found by a public
records search. Under 23 Pa. C.S. § 6108.7, the defendant can apply
to seal the record ten years after the expiration of a final PFA order
entered into by way of a consent agreement, if certain conditions
as laid out in the statute are met.
While this remedy does not clear the existence of a final PFA
* 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.
from the court record, it does safeguard the defendant from an
action being visible to those members of the public curious about
your client in their present life. Sealing the record may provide
peace of mind, allowing the wrongful accusation from their past
to remain in the rearview mirror.
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
NOTES:
1
PANTONE
2955C
CMYK
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
HEXIDECIMAL
#153A5B
#EAC137
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).
5
NOTES:
1
About the Author
Click here to view and/or print the
Ferko-Fox v. Fox, 68 A.3d 917, 924 (Pa. Super. 2013).
2 See P.E.S. v, K.L., 720 A.2d 487 (Pa. Super. Ct. 1998).
full notes section for this article.
3 Commonwealth v. J.T., 420 A.2d 1064, 1065-66 (Pa. Super. Ct. 1980).
4
For an excellent discussion proposing extending the availability of
expungements to defendants who entered into an agreement for a final
PFA order, see Kyle Semroc, " PFA " Record Expungement as a Tool for
Settlement: Due Process and the Pennsylvania Protection from Abuse Act,
122 dIck. L. rev. 939 (2018).
About the Author
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
Those that have leveled false accusations of abuse to gain an
advantage in divorce or custody actions may temporarily prevail,
yet there are consequences to filing fabricated or exaggerated
claims with the court. The timely gathering of evidence may
facilitate the ability to prove a PFA action was initiated in bad faith.
Defendants facing a false accusation of abuse will benefit from
weighing their options carefully; consulting with an experienced
attorney can provide a more objective analysis of an emotionally
charged situation.
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9/22/91/0
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234/194/56
Just as the Boy in Aesop's fable learned that crying for help when
he did not need it damaged both his individual standing and the
community at large, so too does a wrongfully filed petition for a
Protection from Abuse order negatively impact both the individual
submitting the filing and the community receiving the filing. Not
every call for help is genuine; not every story has a villain.
7406C
prosecution for falsification and intimidation. Section 6106 (a.1)
mentions the " knowingly " standard of the plaintiff's state of mind
for considering false reports filed under this statute. Whether
there is sufficient evidence to prove the plaintiff knowingly filed
a wrongful allegation of abuse will inform your client's decision to
pursue this remedy. Clearly these provisions discourage the misuse
of the protections made available by the Protection from Abuse
Act.
295
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22/58
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Finally, the defendant may recover damages as well as legal fees
expended in defending against a false accusation, by initiating an
action against the plaintiff. Under 23 Pa. C.S. § 6117(b), a defendant
may recover against a plaintiff who filed an action in " bad faith. "
Further, under 23 Pa. C.S. § 6122, the statute acknowledges the
availability of an action for wrongful use of civil process or criminal
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. 8, Issue 3 l For The Defense 17
Vol. 4, Issue 4 l For The Defense 9
Stacy Forchetti is an attorney in the
family law practice group at Weir
Greenblatt Pierce LLP, and specializes in
divorce, support, custody, and Protection
from Abuse matters. Ms. Forchetti clerked
for the Honorable Emanuel A. Bertin in
Montgomery County and later joined the
Philadelphia District Attorney's Office,
where she litigated hundreds of cases
and dozens of jury trials over her twelve
years as a prosecutor. At the time of
her departure for private practice, Ms.
Forchetti was the designated Assistant District Attorney for shootings
in the Northwest section of Philadelphia. In private practice, Ms.
Forchetti turned her focus to family law, having trained as a mediator.
Ms. Forchetti continues to give voice to the voiceless through her work
as a board member for the Vidocq Society. She is also serves on the
board of FemCity and the Walnut Club, and is active with the Junior
League of Philadelphia. Ms. Forchetti also has coached Central High
School's Mock Trial Team since 2015.
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