THE COURTS
PART I. GENERAL
[234 PA. CODE CHS. 50 AND 100]
Withdrawal of Changes and Dismissal Upon Satisfaction or Agreement in Summary Criminal Cases
[26 Pa.B. 3630]
Introduction The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania adopt new Rules of Criminal Procedure 87 (Withdrawal of Charges in Summary Cases) and 88 (Dismissal in Summary Cases upon Satisfaction or Agreement), and amend Rule 145 (Dismissal upon Satisfaction or Agreement). The new rules would provide uniform procedures in summary criminal cases for the withdrawal of charges and for the dismissal of a case upon satisfaction being made to an aggrieved person or an agreement to make satisfaction. The following explanatory Report highlights the Committee's considerations in formulating this proposal.
Please note that the Committee's Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Reports.
The text of the proposed new rules and rule changes precedes the Report.
We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel, Anne T. Panfil, Chief Staff Counsel, Supreme Court of Pennsylvania, Criminal Procedural Rules Committee, P. O. Box 1325, Doylestown, PA 18901, no later than Monday, September 15, 1996.
By the Criminal Procedural Rules Committee:
FRANCIS BARRY MCCARTHY,
Chair
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
CHAPTER 50. PROCEDURE IN SUMMARY CASES
PART VI. GENERAL PROCEDURES
IN SUMMARY CASESRule 87. Withdrawal of Charges in Summary Cases.
(a) In any summary case pending before an issuing authority, at any time before the completion of the summary trial or acceptance of a guilty plea, the issuing authority may permit the affiant to withdraw one or more of the charges.
(b) When an issuing authority permits an affiant to withdraw one or more of the charges, the issuing authority shall record the withdrawal on the transcript, and promptly shall notify the defendant in writing.
Official Note: Adopted , 1996, effective , 1996.
Comment This rule permits the withdrawal of charges in summary cases pending before an issuing authority.
To ensure that an adequate record is made of any withdrawals, the issuing authority is required to includein the transcript of the case the fact that he or she permitted the withdrawal. In addition, the issuing authority must give the defendant written notice of the withdrawal.
For the procedures for withdrawal of charges in a court case pending before an issuing authority, see Rule 151.
Committee Explanatory Reports:
Report explaining the provisions of new Rule 87 published at 26 Pa.B. 3632 (August 3, 1996).
Rule 88. Dismissal in Summary Cases Upon Satisfaction or Agreement.
(a) When a defendant is charged with a summary offense, the issuing authority may dismiss the case upon a showing that:
(1) the public interest will not be adversely affected;
(2) the attorney for the Commonwealth, or in cases in which no attorney for the Commonwealth is present at the summary proceeding, the aggrieved party, consents to the dismissal;
(3) satisfaction has been made to the aggrieved person or there is an agreement that satisfaction will be made to the aggrieved person; and
(4) there is an agreement as to who shall pay the costs.
(b) When an issuing authority dismisses a case pursuant to paragraph (A), the issuing authority shall record the dismissal on the transcript.
Offical Note: Adopted , 1996, effective , 1996.
Comment This rule permits an issuing authority to dismiss a summary case when the provisions of paragraph (A) are satisfied.
Paragraphs (a)(1) through (4) set forth those criteria that a defendant must satisfy before the issuing authority has the discretion to dismiss the case under this rule.
The requirement in paragraph (a)(2) that, when the attorney for the Commonwealth is present at the summary proceeding, he or she must consent to the dismissal, is one of the criteria, along with the other enumerated criteria, which gives the issuing authority discretion to dismiss a case under this rule, even when the aggrieved person refuses to consent.
The requirement in paragraph (b) that the issuing authority include in the transcript of the case the fact that he or she dismissed the case is intended to ensure that an adequate record is made of any dismissals under this rule.
For dismissal upon satisfaction or agreement in a court case charging a misdemeanor which is pending before an issuing authority, see Rule 145.
For dismissal upon satisfaction or agreement by a judge of the court of common pleas, see Rule 314.
Committee Explanatory Reports:
Report explaining the provisions of new Rule 88 published at 26 Pa.B. 3632 (August 3, 1996).
CHAPTER 100. PROCEDURE IN COURT CASES
PART IV. PROCEEDINGS BEFORE ISSUING AUTHORITIES Rule 145. Dismissal Upon Satisfaction or Agreement.
When a defendant is charged with a misdemeanor [which is not alleged to have been committed by force or threat thereof], the issuing authority may dismiss the case upon a showing that:
(a) the public interest will not be adversely affected; [and]
(b) [either the aggrieved person or] the attorney for the Commonwealth, or in cases in which there is no attorney for the Commonwealth present, the aggrieved person, consents to the dismissal; [and]
(c) satisfaction has been made to the aggrieved person or there is an agreement that satisfaction will be made to the aggrieved person; and
(d) there is an agreement as to who shall pay the costs.
Official Note: Formerly Rule 121, adopted June 30, 1964, effective January 1, 1965; suspended effective May 1, 1970; revised January 31, 1970, effective May 1, 1970; renumbered Rule 145 and amended September 18, 1973, effective January 1, 1974; amended January 28, 1983, effective July 1, 1983; amended ______ , effective ______ .
Comment [The 1973 amendment added the first sentence of former paragraph (b) and all of former paragraph (c).
Former paragraphs (a) and (b) were deleted in 1983 as unnecessary in view of the Judiciary Act Repealer Act, which repealed the statutes requiring the issuing authority to make an effort to effectuate a settlement. See 42 P. S. § 20002(a)[916] (Supp. 1982).]
[Former paragraph (c) was amended in 1983 to] Paragraphs (a) through (d) set forth [concisely] those criteria that a defendant must satisfy before the issuing authority has the discretion to dismiss the case under this rule. The requirement in paragraph (b) that, when the attorney for the Commonwealth is present, he or she must consent to the dismissal is one of the criteria [in every case was deleted as an unnecessary criterion at this stage of the proceedings. However, it is retained as an alternative criterion] which, along with the other enumerated criteria, [would give] gives the issuing authority discretion to dismiss, even when the aggrieved [party] person refuses to consent. [If the aggrieved person consents, the issuing authority may consider whether the attorney for the Commonwealth objects to the dismissal, but it is not bound by that objection.]
For dismissal upon satisfaction or agreement in summary cases, see Rule 88.
For court dismissal upon satisfaction or agreement, see Rule 314.
Committee Explanatory Reports:
Report explaining the ______ , 1996 amendments published at 26 Pa.B. 3632 (August 3, 1996).
REPORT
Proposed New Pa.Rs.Crim.P. 87 and 88;
Amendments to Pa.R.Crim.P. 145:
Withdrawal of Charges and Dismissal Upon Satisfaction or Agreement in Summary Criminal Cases Introduction
The Committee is recommending the adoption of new Rules 87 (Withdrawal of Charges in Summary Cases) and 88 (Dismissal in Summary Cases upon Satisfaction or Agreement) to fill a gap in the summary case rules. Under the present rules, there are no procedures for withdrawing charges in summary cases pending before an issuing authority, or for a district justice to dismiss a summary criminal case when the aggrieved person has received satisfaction from the defendant or the defendant has made an agreement to satisfy the aggrieved person.
Recent inquiries with the Committee suggested that some members of the minor judiciary are permitting charges to be withdrawn in summary cases and are dismissing summary cases upon satisfaction or agreement, following Rules 151 (Withdrawal of Prosecution Before Issuing Authority) and 145 (Dismissal upon Satisfaction or Agreement), even though these rules specifically apply to court cases. Other members of the minor judiciary are reluctant to proceed in this manner in summary cases without specific authorization in the rules.
In view of the lack of uniformity and the confusion about the appropriate procedures, the Committee agreed to provide specific procedures in Chapter 50 of the rules for withdrawing charges in summary cases pending before issuing authorities, and for dismissing summary cases when there has been satisfaction or an agreement for satisfaction.
Discussion of Rule Changes
Proposed New Rule 87 (Withdrawal of Charges in Summary Cases)
Paragraph (A) authorizes an issuing authority to permit an affiant to withdraw one or more charges at any time before the completion of the summary trial or the acceptance of a guilty plea, and is comparable to the procedures for court cases under Rule 151 (Withdrawal of Prosecution Before Issuing Authority). However, because of the minor nature of summary cases, and because there is rarely an attorney for the Commonwealth assigned to summary criminal cases, the Committee agreed that the Rule 88 procedures should not require the approval of the attorney for the Commonwealth or that the withdrawals had to be made by the attorney for the Commonwealth or his or her designee.
Paragraph (B) requires that the issuing authority record on the transcript any withdrawals he or she permits, and promptly notify the defendant in writing that the charges have been withdrawn. Because summary case proceedings are not of record, the Committee added these requirements to provide some checks and balances and a means of monitoring these cases.
The Comment provides a gloss on the new procedures, and cross-references Rule 151 for similar procedures in court cases.
Proposed New Rule 88 (Dismissal In Summary Cases Upon Satisfaction or Agreement)
New Rule 88 provides the procedures for the dismissal of summary cases when a defendant has either settled with the aggrieved person or agreed to settle, and is comparable to the Rule 145 procedures in court cases.
Paragraph (A)(1)--(4) sets forth the criteria that must be met before an issuing authority has the discretion to dismiss a case under this rule, and parallels Rule 145(a)--(d). As explained in the Comment, all the criteria must be satisfied before an issuing authority may dismiss a case.
Paragraph (B) requires that the issuing authority record on the transcript any dismissal pursuant to satisfaction or agreement. This requirement creates a record of the dismissal.
The Comment cross-references Rule 145. It also cross-references Rule 314 for similar procedures in court cases pending before a judge of the court of common pleas.
Proposed Amendments to Rule 145 (Dismissal Upon Satisfaction or Agreement)
When the Committee developed new Rule 88, we reexamined Rule 145, which applies to court cases pending before an issuing authority. As the result of this examination, we are recommending the following amendments to Rule 145.
In the introductory paragraph to Rule 145, the present limitation that dismissals upon satisfaction are only authorized in cases in which the misdemeanor is ''not alleged to have been committed by force or threat thereof'' has been deleted. Several members noted that many of the cases which come before the minor judiciary for dismissal upon agreement typically include misdemeanors arising out of drunken brawls or arguments between friends or neighbors that deteriorate into shoving matches or punches. Although these cases involve ''force'' or a ''threat of force,'' the incidents are relatively minor, and, after a cooling-off period, the parties prefer to have the matters dismissed if the damages are paid. Based on these considerations, the Committee agreed that cases involving force or the threat of force should not be excluded from the possibility of a Rule 145 dismissal, particularly since the rule is limited to misdemeanors.
The Committee also reviewed the criteria for dismissal set forth in Rule 145(a)--(d), and concluded that these criteria should be retained. However, because we are proposing the deletion of the ''force or threat of force'' exclusion, and to accommodate the realities of day-to-day practice, the Committee agreed that Rule 145(b) needed revision.
Paragraph (b) presently requires a showing that ''either the aggrieved person or the attorney for the Commonwealth consents to the dismissal.'' A question arose about what happens when the attorney for the Commonwealth disagrees with the dismissal but the aggrieved party consents. Although the present Comment suggests that the attorney for the Commonwealth's disagreement would only be one consideration for the district justice in determining whether to dismiss a case, some members expressed the view that, if Rule 145 were amended to delete the ''force or threat thereof'' language, a dismissal should not be permitted if the attorney for the Commonwealth does not agree. Other members observed that requiring the consent of the attorney for the Commonwealth and the aggrieved party, or requiring the consent of the attorney for the Commonwealth in every case, would unduly complicate the procedure, particularly in those judicial districts which, because of limited resources, do not ordinarily have a representative from the district attorney's office present at proceedings before the district justice.
In view of these considerations, the Committee agreed that Rule 145(b) should be amended to provide that, if the attorney for the Commonwealth is present at the proceeding, the attorney for the Commonwealth's consent is one of the four criteria that must be met before the district justice may dismiss the case. If the attorney for the Commonwealth is not present, then the aggrieved person must consent to the dismissal.
The Comment has been revised to reflect these changes, and cross-references new Rule 88 for the procedures in summary cases.
[Pa.B. Doc. No. 96-1248. Filed for public inspection August 2, 1996, 9:00 a.m.]
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