For the Defense - Vol. 9, Issue 4 - 32

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
By hiring a forensic psychiatrist as an expert witness early in
* 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.
the process, we were able to guide the case in the direction most
advantageous to our client at each step of the way. Initially, we
determined that if we were going to try the case, we would do it
non-jury since we would be presenting the mental health defense
of Dissociative Identity Disorder (DID), colloquially referred to as
multiple personality disorder. We understood this theory might
either be too complex for some jury members to understand or
might not resonate.
As things progressed and our client's mental health devolved,
our communication with them became strained in that they were
having trouble processing the information they were receiving,
leading them to call/text us repeatedly and often in a panic. Our
expert was able to buffer information to our client, particularly
with respect to their mental health defense, as well as advise us on
how to best approach our client and communicate information
to them.
* 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.
We also determined that our client's desired case outcome-no
jail time - could only be accomplished by way of a plea bargain.
Our expert's analysis and report were critical tools in our plea
negotiation discussions. Our expert determined that our client
had themself experienced sexual trauma of an extreme nature
in their childhood. Uncovering this evidence led to the DID
diagnosis, which explained our client's actions and reactions
during the sexually criminal behavior alleged by the victim. We
were able to use the expert's diagnosis to tell the prosecutor the
story of our client - who they were and how they got to this point.
In addition to answering the Two Big Questions, this humanized
our client to the prosecutor as a damaged person themself in
need of mental health treatment. Seeing our client in this light
made the prosecutor amenable to working with us.
File your client's motion after the
Our client did not feel capable of allocution at their sentencing
hearing. Both their expert and their treating physician's letters
stood in their stead to detail to the court their treatment steps
and outcomes to date, and to answer the Two Big Questions.
By enlisting a mental health professional to our defense team
early in the process, we were able to use their evaluation to
negotiate the 7 felony and 7 misdemeanor counts down to a
guilty plea to 1 felony and 2 misdemeanor counts and avoid our
client's biggest fear: commitment to a prison or mental health
facility.
Ultimately, our client was sentenced to 6 years of probation
to run concurrently to each other, and lifetime sex registration
requirements with a provision carved out allowing them to have
unsupervised contact with their biological children.
Accomplishing These Goals Without Using an Expert Witness
* 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.
32 For The Defense l Vol. 9, Issue 4
If you are presented with a client who already is actively
engaged in mental health treatment at the time they hire you,
you can accomplish these goals without hiring an expert witness.
By way of example, our client X was charged with indecent
exposure and fleeing and eluding and was prosecuted across
two different Pennsylvania jurisdictions for what we argued
(and still believe to be!) one continuous course of conduct. By
getting into treatment immediately following their arrest, at
sentencing in each jurisdiction, our client was able to use their
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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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
HEXIDECIMAL
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3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
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This article does not contemplate the use of one specific type
of mental health expert, i.e., psychiatrist, or social worker, but
rather the use of an expert who best fits the facts and budget of
your case.
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).
#153A5B
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
About the Authors
About the Author
Click here to view and/or print the
full notes section for this article.
Stanton D. Levenson, P.A., has
over 50 years of solid experience
in all aspects of criminal defense.
A fellow of the American Board
of Criminal Lawyers, Attorney
Levenson is a past president of
the Pennsylvania Association of
Criminal Defense Lawyers and
past chairperson of the Allegheny
County Bar Association Judiciary
Committee and is currently active in a variety of local, state
and national bar and civic organizations. He is listed in
Best Lawyers in America, Pennsylvania Super Lawyers, and
frequently lectures on substantive, trial, appellate and ethical
topics.
Amy B. Levenson Jones has decades of litigation experience,
both criminal and complex commercial. Having practiced
for over a decade in New York and Washington, DC before
returning to her hometown
of Pittsburgh, PA, Amy has
represented clients across the
nation, before federal and state
courts as well as arbitration and
administrative tribunals. She is a
tenacious and skilled advocate for
clients accused of serious criminal
offenses.
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. 4, Issue 4 l For The Defense 9
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treatment records and reports to lend credibility to their answers
to the Two Big Questions. While their charges carried a potential
sentence of 7 years in prison in each jurisdiction, they received 2
years of probation, to run concurrently in both jurisdictions, with
conditions to continue mental health treatment, and they were
not required to be on the sex registry.
A mental health expert witness can be a crucial tool in a sex
offense case. They can help you communicate with your client,
present your client's story to the fact finder, and humanize your
client to the prosecutor, all of which can help you reach a result
designed to best serve your client's interests.
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For the Defense - Vol. 9, Issue 4

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