For the Defense - Vol. 8, Issue 3 - 66

inconsistent with what we know about how survivors
of sexual violence often react.
prejudice an accused's right to a fair trial before an impartial jury
in this Commonwealth. It recommended Pa.SSJI (Crim.) §4.13A
should remain as written.
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
PACDL objected to the removal of Pa.SSJI (Crim.) §4.13A and
noted that it is derived from a statute in the Pennsylvania Crimes
Code which has been in existence for over 50 years6
* 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.
and that
the premise of this instruction is grounded in well-established
Pennsylvania caselaw: " The presumption follows that if a
complaint is made promptly after the alleged offense, the victim
has not had time to fabricate the story and the story is given
more credibility. " 7
PACDL suggested that there is nothing to prevent the
Commonwealth from explaining to a jury that lack of prompt
complaint whether through lay witnesses or, assuming the
standard of Pa.R.Crim.P. 702 ( " the Frye standard " ) is met, through
expert witnesses. In fact, in holding that the Commonwealth may
proactively, in its case in chief, explain lack of prompt complaint,
even through alleged prior bad acts of the defendant, the
Pennsylvania Supreme Court explained:
In Commonwealth v. Lane, this Court elaborated on
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
* 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.
* 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.
66 For The Defense l Vol. 8, Issue 3
9
the relevance and potential importance of a lack of
prompt complaint in evaluating a sexual assault victim's
credibility. 555 A.2d at 1250-51: See also Snoke, 580
A.2d at 297. Lane involved the defendant's conviction
for, inter alia, the rape of an 8-year-old girl. On appeal,
this Court examined the propriety of the trial court's
decision to grant a Commonwealth challenge for cause
concerning a prospective juror, who had expressed
concern during voir dire that he would have difficulty
ignoring the length of time that elapsed between
the alleged rape and when it was reported. 555 A.2d
at 1248. This Court affirmed the Superior Court's
ruling that the jurors' dismissal was an error, in part,
because a juror had a legitimate question about a
potential weakness in the Commonwealth's case. Id.
at 1249. In reaching this conclusion, the Court noted
that evidence concerning the timeliness of a complaint
is contemplated both by statute (Section 3105 of the
Crimes Code) and by the principle recognizing that a
witness may be impeached if he or she remains silent on
an occasion where it would have been natural to have
spoken. See Lane, 555 A.2d at 1250 (citing Charles E.
Torcia, Wharton's Criminal Evidence, Section 436 (14th
Ed. 1986)). Because questions of the complainant's
sincerity are raised if it is established that the delay in
reporting was " either unreasonable or unexplained, "
the Lane Court observed, an " inference of insincerity
is only justified where the facts of the case fail to
disclose a reasonable explanation for the challenged
time lapse prior to the complaint. " Lane, 555 A.2d at
1250. Although a lack of prompt complaint should
not be dispositive of the merits of a case, the Court
stated, a delayed report may produce justifiable doubts
concerning the truth of the complaint. A complainant,
for instance, may have delayed a report to protect a
guilty third-party; to exact revenge against the accused;
or to acknowledge the offensiveness of an encounter.
Id. at 1250-51. Furthermore, in cases where the victim
is a child, this Court commented on the importance
of questioning whether " the immaturity of the
child occasioned the delay as opposed to a design to
deceive. " Id. at 1251.8
File your client's motion after the
PACDL noted that failure to provide a jury with well-settled
Pennsylvania law on this issue, while convenient to those who
believe every complainant is being truthful, would undoubtedly
5
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.
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3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
NOTES:
1
then instruct on the specific statute.
2
3
Commonwealth v. Howard, 257 A.3d 1217 (Pa. 2021).
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).
determine criminality. 257 A.3d 1217, 1234-1239.
4
5
6
Commonwealth v. Erney, 698 A.2d 56, 59 (Pa. 1997).
Id. (emphasis added).
18 Pa.C.S. §3105.
7 Commonwealth v. Snoke, 580 A.2d. 295, 297 (Pa. 1990) (additional
citation omitted).
8
Commonwealth v. Dillon, 925 A.2d 131, 137-38 (Pa. 2007).
About the Authors
About the Author
Click here to view and/or print the
full notes section for this article.
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
Jordan Barnett is the Director of Operations
and Data Governance for the Defender
Association of Philadelphia. He has worked
at the Defender Association for the past
19 years. He was an E. Barrett Prettyman
Fellow in the Criminal Defense Clinic at the
Georgetown University Law Center and
worked as a staff attorney at the Orleans
Public Defender in 2007.
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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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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).
A better amendment might be (a) " that the defendant's conduct
violated (a particular) sexual offense. " Doing so would allow the court to
The concurring opinion continues for several pages to condemn
moralistic language of the " common sense of the community... " to
PACDL will remain vigilant on this issue and continue to
inform its members and the Committee of further concerns as
the proposal to modify the suggested standard criminal jury
instructions is being considered. PACDL wants to acknowledge
the efforts of Attorneys Ryan Smith, Ashley Shapiro, Jordan
Barnett, Caroline Donato, Peter Kratsa, Heather Mattes, Joseph
Lesniak, Grant Bloomdahl, and Philip Press for preparing
comments on a very short deadline. If you are interested in
lending your talent and experience to the Rules Committee,
please contact PACDL.
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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Ashley E. Shapiro is a partner at Stradley
Ronon with offices in Philadelphia and
Cherry Hill. She is an accomplished litigator
in New Jersey and Pennsylvania with
extensive experience in criminal defense,
internal investigations, and corporate
compliance matters. Ashley has successfully
represented individuals and corporations
in criminal and regulatory enforcement
actions, including federal and state
government investigations and grand
juries, allegations of political/public corruption, health care fraud, Medicare/
Medicaid fraud, wire fraud, bank fraud, tax violations and RICO. Her practice
covers various sectors, such as health care and life sciences, higher education,
financial services and environmental and energy. Ashley serves on the Board of
Directors of the Pennsylvania Association of Criminal Defense Lawyers and is
Co-Chair of the Rules Committee.
For the Defense - Vol. 8, Issue 3

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