For the Defense - Vol. 9, Issue 4 - 38

argued for the admissibility of the conviction; and 3) the trial court
" definitely ruled to admit the prior conviction. " 18
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
2. No, Mr. Stevenson Didn't " Open the Door. "
* 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.
3. A little help from our civil friends.
* 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.
It is worth noting that the Supreme Court found further support
for its decision by looking at several Pennsylvania civil cases. Like
Mr. Stevenson, each of the civil litigants: (1) filed a pretrial motion
in limine; and (2) received an adverse ruling. While each of the civil
cases cited involved different circumstances leading to appeals,
Pennsylvania's appellate courts reached the same outcomes: no
waiver, no " opening the door, " and, importantly, no need to
repeatedly object to the adverse ruling.
The Stevenson Court concluded that Ohler's majority holding was
at odds with Pennsylvania precedent.
Conclusion: Where does a trial lawyer go from here?
While defense lawyers across the Commonwealth have every
reason to celebrate Stevenson, we must remain vigilant. We now
know that a criminal defendant will not waive his or her right
to appellate review of the admissibility of a prior conviction for
impeachment purposes when, like Mr. Stevenson, introduction of
that evidence followed an adverse motion in limine ruling.
That said, we must remind ourselves of a few simple truths in
* 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.
38 For The Defense l Vol. 9, Issue 4
a post-Stevenson era. First, Stevenson's protections for appellate
review only extend to criminal defendants in state court. Second,
Stevenson turned on the defense counsel's motion in limine, the
adverse ruling he received, and the strategic decisions made by his
lawyer. While oral motions in limine are often necessary, the better
practice is to anticipate the issue, prepare a written motion and
file it immediately before or at trial. If the past seventeen years in
federal court have taught me one lesson, it is that written advocacy
affords practitioners the opportunity to comprehensively preserve
issues in a way that is nearly impossible for even the most skilled
oral advocate.
Federal practitioners: we must remain vigilant. Ohler is still the
law of the land in Pennsylvania's three federal judicial districts and
beyond. And not only does Stevenson not apply in federal court,
but federal practitioners must also object at every opportunity
Fewer phrases shake the boots of a defense attorney more than
a suggestion that we " opened the door. " Following Stevenson,
criminal defense attorneys can also rest assured that they will not
" open the door " by following in the footsteps of Mr. Stevenson's
lawyer.
In addition to finding the Superior Court applied Conner too
and Commonwealth
broadly, the Stevenson Court also characterized the Superior
Court's reliance on Commonwealth v. Lewis19
v. Stakley20 as " inapt " and " ill-suited " for resolving Stevenson's
case.21
In Lewis, the Superior Court found waiver when the
Commonwealth elicited evidence concerning prior drug transactions
of co-defendants when (it concluded) that defense counsel opened
the door for further questions by the Commonwealth.22
In Stakley,
the Superior Court found waiver when the Commonwealth elicited
testimony concerning the defendant's " unsuitable " discharge from
the U.S. Army where prior questioning by defense counsel opened
the door to such testimony by suggesting that his clint was
" honorably discharged. " 23
The Supreme Court easily distinguished
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
Lewis and Stakley from Mr. Stevenson's facts, noting that " open the
door " cases do not concern situations where the defendant first
lodged an objection to evidence then later elicited that evidence
after an adverse ruling.24
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.
PANTONE
Stevenson won't make your next jury trial easier or less
2955C
CMYK
NOTES:
1
4
stressful but, at least if you are trying a case in the courts of this
Commonwealth, you will have one less reason to lose sleep.
90/78/39/30
RGB
9/22/91/0
22/58/92
NOTES:
1
3 See id.
2022).
5
7 Ohler v. United States, 529 U.S. 753 (2000).
8 Id.
5
9 Ohler, 529 U.S. at 755.
234/194/56
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).
2 Stevenson at 1267.
Commonwealth v. Stevenson, 318 A.3d 1264 (PA. 2024).
#1
4 See Commonwealth v. Stevenson, 287 A.3d 903, 906-07 (Pa. Super. Ct.
Ohler v. United States, 529 U.S. 753 (2000).
6 Stevenson, 318 A.3d at 1282-1283.
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).
own evidentiary rules to be less forfeiture oriented in the wake of Ohler.
12
Commonwealth v. Connor, 341 A.2d 81 (Pa. 1975).
13 Id.
14 Id. at 84.
15 Conner, 341 A.2d at 83-84.
16 Id.
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).
17 See Stevenson, 318 A.3d at 1279.
18 Id. at 1279-80.
20 Commonwealth v. Stackley, 365 A.2d 1298 (Pa. Super. Ct. 1976) (en banc).
21 Stevenson, 318 A.3d at 1280.
22 See Lewis, 885 A.2d at 55.
23 Stakley, 365 A.2d at 430.
About the Author
Click here to view and/or print the
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
24 See Stevenson, 318 A.3d at 1280.
7406C
2
90/7
before, during, and after trial. Practitioners should habitually file
comprehensive post-trial motions and supporting briefs to protect
clients from issue forfeiture or waiver.
Finally, we should all be mindful of Stevenson's limitations. The
Pennsylvania Supreme Court's decision is limited to appellate review
of the admissibility of a prior conviction for impeachment purposes
under the limited circumstance where the defendant preemptively
introduced evidence on direct examination following a trial court's
definitive ruling against him on a motion in limine.
22
10 Joining Justice Souter were Justices Stevens, Ginsburg, and Breyer.
11 As reflected in the Stevenson opinion, many states have interpreted their
full notes section for this article.
19 Commonwealth v. Lewis, 885 A.2d 51 (Pa. Super. Ct. 2005).
Heidi R. Freese is a Shareholder
at Tucker Arensberg, where she
focuses primarily on state and
federal criminal defense. She is the
former Federal Public Defender for
the Middle District of Pennsylvania
(2017 to 2024). Prior to her
appointment, she served as an
Assistant Federal Public Defender
for 10 years, where she handled
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.
hundreds of complex federal criminal matters. She teaches
Federal Criminal Practice at Penn State Dickinson Law and is
she is involved in diversity initiatives and community service
to local sports organizations.
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