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PA Bulletin, Doc. No. 98-1978

THE COURTS

PART I.  GENERAL

[234 PA. CODE CH. 1100]

Rule 1117 Relating to Presence of the Defendant

[28 Pa.B. 5868]

Introduction

   The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania approve revisions to the Comment to Rule 1117 (Presence of the Defendant) to clarify 1) the procedures concerning waiver of a defendant's presence at trial, and 2) the procedures when a defendant fails to appear for a trial de novo. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.

   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 Comment revisions 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 Wednesday, January 13, 1999.

By The Criminal Procedural Rules Committee

FRANCIS BARRY MCCARTHY,   
Chair

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

PART I.  GENERAL

CHAPTER 1100.  TRIAL

Rule 1117.  Presence of the Defendant.

*      *      *      *      *

   Official Note: Adopted January 24, 1968, effective August 1, 1968; amended October 28, 1994, effective as to cases instituted on or after January 1, 1995; revised __________ , 1998, effective__________ .

Comment:

   Nothing in this rule is intended to preclude a defendant from waiving the right to be present at any stage of the trial. See Commonwealth v. Vega, _____ A.2d ____ (Pa. 1998) (requirements for a knowing and intelligent waiver of a defendant's presence at trial includes a full, on-the-record colloquy concerning consequences of forfeiture of the defendant's right to be present).

   Paragraph (c) was added in 1994 to make it clear that the trial judge may dismiss a summary case appeal when the judge determines that the defendant is absent without cause from the trial de novo. If the appeal is dismissed, the trial judge should enter judgment and order execution of any sentence imposed by the issuing authority. When the sentence imposed by the issuing authority includes imprisonment, the trial judge should take the necessary steps to bring the defendant before the court for the execution of the sentence of imprisonment.

Committee Explanatory Reports:

*      *      *      *      *

   Report explaining the proposed revisions concerning waiver of presence and execution of sentence published at 28 Pa.B. 5869 (December 5, 1988).

REPORT

Revisions to Pa.R.Crim.P. 1117

WAIVER OF PRESENCE AT TRIAL; PROCEDURES WHEN A DEFENDANT FAILS TO APPEAR FOR A TRIAL DE NOVO

   The Committee is proposing a revision of the Comment to Rule 1117 (Presence of the Defendant) to address the requirements for the waiver of a defendant's presence at trial, and to clarify the procedures when a defendant fails to appear for a trial de novo.

A.  Waiver of Presence

   Rule 1117(a) requires that the defendant be present at all stages of the trial. On October 1, 1998, the Supreme Court, in a plurality opinion, decided Commonwealth v. Vega, ____ A.2d ____ (Pa. 1998), which sets forth the requirements of a knowing and intelligent waiver of a constitutional right in general, and specifically, a defendant's waiver of the right to be present at trial. Noting that Rule 1117 is silent concerning waiver, the Committee agreed that a citation to Vega should be added to the Rule 1117 Comment to make it clear that Rule 1117 is not intended to prohibit a defendant from waiving the right to be present at any stage of the trial, and that the court must conduct a colloquy of the defendant before permitting the waiver.

B.  Failure to Appear for Trial de Novo

   The Committee received correspondence concerning the procedures for executing sentence under Rule 1117(C), which provides that in summary cases appealed for a trial de novo, the trial judge may dismiss the case when the judge determines that the defendant is absent without cause, and enter judgment on the sentence of the issuing authority. The correspondence pointed out that in those cases in which an issuing authority has ordered imprisonment as part of a sentence and the defendant fails to appear for the trial de novo, there are no procedures to bring the defendant before the court for execution of the sentence of imprisonment. As a result, in some cases, the defendant may not serve the sentence, or the institution may refuse to accept the defendant without a document indicating the time and date of commencement of sentence. In light of this, the Committee agreed that it would be helpful to the bench and bar if there was some guidance concerning the sentencing procedures in these cases. Accordingly, we agreed that the Rule 1117 Comment should be revised to make it clear that when the sentence imposed by the issuing authority includes imprisonment, the trial judge should take the necessary steps to bring the defendant before the court for the execution of the sentence of imprisonment.

[Pa.B. Doc. No. 98-1978. Filed for public inspection December 4, 1998, 9:00 a.m.]


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