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PA Bulletin, Doc. No. 97-672

THE COURTS

Title 234--RULES OF CRIMINAL PROCEDURE

PART I.  GENERAL

[234 PA. CODE CH. 50]

Order Amending Rules 75 and 84; No. 219; Doc. No. 2

[27 Pa.B. 2116]

Order

Per Curiam:

   Now, this 18th day of April, 1997, upon the recommendation of the Criminal Procedural Rules Committee; this Recommendation having been published at 25 Pa.B. 5919 (December 23, 1995) and in the Pennsylvania Reporter (Atlantic Second Series Advance Sheets Vol. 672) before adoption, with a Final Report to be published with this Order:

   It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Pa.Rs.Crim.P. 75 and 84 are hereby amended in the following form.

   This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective July 1, 1997.

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

PART I.  GENERAL

CHAPTER 50.  PROCEDURE IN SUMMARY CASES

PART V.  PROCEDURE REGARDING ARREST WARRANTS IN SUMMARY CASES

Rule 74.  Issuance of Arrest Warrant.

   (1)  A warrant for the arrest of the defendant shall be issued when:

*      *      *      *      *

   (c)  the issuing authority has reasonable grounds to believe that the defendant will not obey a summons.

   (2)  A warrant for the arrest of the defendant may be issued when a defendant has entered a not guilty plea and fails to appear for the summary trial, if the issuing authority determines, pursuant to Rule 84(A), that the trial should not be conducted in the defendant's absence.

   [(2)] (3)  A warrant for the arrest of the defendant may be issued when:

*      *      *      *      *

   (b)  the issuing authority has, in the defendant's absence, tried and sentenced the defendant to pay a fine and costs, and the collateral deposited by the defendant is less than the amount of fine and costs imposed.

   Official Note: Adopted July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; amended January 31, 1991, effective July 1, 1991; amended April 18, 1997, effective July 1, 1997.

Comment

   [Paragraph (1) of this rule is derived from previous Rule 51B. Paragraph (2) of this rule is derived from previous Rule 65.]

*      *      *      *      *

   Ordinarily, pursuant to Rule 84, the issuing authority must conduct a summary trial in the defendant's absence. However, if the issuing authority determines that there is a likelihood that the sentence will be imprisonment or that there is other good cause not to conduct the summary trial, the issuing authority may issue a warrant for the arrest of the defendant pursuant to paragraph (2) in order to bring the defendant before the issuing authority for the summary trial.

   An arrest warrant issued under paragraph [(2)] (3) should state the amount required to satisfy the sentence.

Committee Explanatory Reports:

*      *      *      *      *

   Final Report explaining the April 18, 1997 amendments concerning arrest warrants when defendant fails to appear for trial published with the Court's Order at 27 Pa.B. 2117 (May 3, 1997).

PART VI.  GENERAL PROCEDURE IN SUMMARY CASES

Rule 84.  Trial in Defendant's Absence.

   [(a)] (A)  If the defendant fails to appear for trial in a summary case, the trial [may] shall be conducted in the defendant's absence, unless the issuing authority determines that there is a likelihood that the sentence will be imprisonment or that there is other good cause not to conduct the trial in the defendant's absence. If the trail is not conducted in the defendant's absence, the issuing authority may issue a warrant for the defendant's arrest.

   [(b)] (B)  ***

   [(c)] (C)  ***

   [(d)] (D)  ***

   Official Note: Adopted July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; amended February 1, 1989, effective July 1, 1989; amended April 18, 1997, effective July 1, 1997.

Comment

   In those cases in which the issuing authority determines that there is a likelihood that the sentence will be imprisonment or that there is other good cause not to conduct the trial in the defendant's absence, the issuing authority may issue a warrant for the arrest of the defendant in order to have the defendant brought before the issuing authority for the summary trial. See Rule 75(2). The trial would then be conducted with the defendant present as provided in these rules. See Rule 83.

   [Paragraphs (a)--(c) of this rule replace previous Rule 64.] Paragraph (d) [, which is derived from previous Rules 64(d) and 65(e),] was amended in 1989 to provide notice to the defendant of conviction and sentence after trial in absentia to alert the defendant that the time for filing an appeal has begun to run. See Rule 63(b)(3).

   [If the issuing authority determines that there is a likelihood that the sentence will be imprisonment, the issuing authority should issue a warrant for the defendant's arrest. The trial would then be conducted with the defendant present as provided in these rules. See Rule 83.]

   [With regard to] For the defendant's right to counsel, see Rule 316.

   For [procedures regarding] arrest [warrants] warrant procedures in summary cases, see Rules 75 and 76.

Committee Explanatory Reports:

   Final Report explaining the April 18, 1997 amendments mandating a summary trial in absentia with certain exceptions published with the Court's Order at 27 Pa.B. 2117 (May 3, 1997).

FINAL REPORT

Amendments to Pa.Rs.Crim.P. 75 and 84

PROCEDURES WHEN DEFENDANT FAILS TO APPEAR FOR SUMMARY TRIAL

Introduction

   On April 18, 1997, upon the recommendation of the Criminal Procedural Rules Committee, the Supreme Court amended Rules of Criminal Procedure 75 (Issuance of Arrest Warrant) and 84 (Trial in Defendant's Absence) to clarify when a district justice must conduct a trial in the defendant's absence, and when a district justice may issue an arrest warrant when a defendant has failed to appear for the summary trial. The amendments will be effective July 1, 1997. This Final Report highlights the Committee's considerations in formulating these amendments.1

Background

   The Committee recommended the amendments to Rules 75 and 84 in response to several questions concerning the Rule 84 (Trial in Defendant's Absence) procedures, which were raised in correspondence with the Committee.

   The questions may be summarized as follows:

   (1)  in summary cases, under what circumstances should a trial in the defendant's absence be held; and

   (2)  are district justices authorized to issue a warrant for the arrest of a defendant who has failed to appear for the summary trial?

   Prompted by these questions, the Committee reviewed the provisions of Rule 84. Paragraph (A) provides that if a defendant fails to appear for trial in a summary case, ''the trial may be conducted in the defendant's absence.'' (emphasis added) The Rule 84 Comment suggests that if ''the issuing authority determines that there is a likelihood that the sentence will be imprisonment, the issuing authority should issue a warrant for the defendant's arrest'' so that the trial may be conducted with the defendant present. We also looked at Rule 75 (Issuance of Arrest Warrant), which sets forth the procedures for issuing arrest warrants in summary cases. This rule does not provide for the issuance of an arrest warrant when a defendant has failed to appear for the summary trial.

   From our discussion of these rules and questions, the Committee concluded that the use of ''may'' in Rule 84(A) concerning when a trial in the defendant's absence should be conducted, and the procedural gaps in Rules 75 and 84 concerning whether arrest warrants may be issued in these cases, are the source of the confusion about the procedures for handling summary cases when a defendant fails to appear for trial. Recognizing the importance of having the summary case rules provide issuing authorities with clear guidance about how to proceed under the rules, we agreed that Rules 75 and 84 should be amended accordingly.

Discussion of Rule Changes

   (A)  Rule 84 (Trial in Defendant's Absence)

   The Committee agreed that in summary cases in which a defendant fails to appear for the trial, the general requirement should be that the trial will be conducted in the defendant's absence. However, we recognized that there are situations in which the trial should not be conducted in the defendant's absence. First, the defendant should not be tried in his or her absence if there is a likelihood that the sentence will be imprisonment. Second, it would be inappropriate to conduct the trial in the defendant's absence when there is a good reason for the defendant's failure to appear, such as cases in which the defendant is confined, for example, in an inpatient drug program, or is involved in an accident on the way to trial. To make this clear, Rule 84(A) has been amended to require that the trial be conducted in the defendant's absence, and to expressly provide for the two exceptions to the general requirement: (1) if there is a likelihood that the sentence will be imprisonment; and (2) if there is other good cause not to hold the trial in the defendant's absence.

   Rule 84(A) has also been amended to provide that, in cases in which the issuing authority determines that the summary trial should not be conducted in the defendant's absence, the issuing authority has the discretion to issue a warrant for the defendant's arrest in order to bring the defendant in for the trial.

   The Rule 84 Comment reiterates that an arrest warrant may be issued to bring the defendant before the issuing authority for trial, and cross-references Rule 75 (Issuance of Arrest Warrant). In addition, the Comment explains that when the defendant is brought in for trial on an arrest warrant, the trial is to be conducted as provided in Rule 83 (Trial in Summary Cases).

   (B)  Rule 75 (Issuance of Arrest Warrant)

   To fill the procedural gaps in Rule 75 discussed above, Rule 75 has been amended as follows:

   (1)  paragraph (2) expressly permits the issuing authority to issue an arrest warrant when a defendant has entered a plea of not guilty and has failed to appear for the summary trial, if the issuing authority determines, pursuant to Rule 84(A), that the trial should not be conducted in the defendant's absence; and

   (2)  the Comment explains that, ordinarily, when a defendant fails to appear for a summary trial, the trial must be held in the defendant's absence pursuant to Rule 84, and reiterates the two exceptions to this general rule discussed in Section (A).

______

   The Committee's Final 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 Committee's explanatory Final Reports.

[Pa.B. Doc. No. 97-672. Filed for public inspection May 2, 1997, 9:00 a.m.]


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