THE COURTS

Title 234--RULES OF CRIMINAL PROCEDURE

PART I.  GENERAL

[234 PA. CODE CHS. 50 AND 100]

Order Amending Rule 141 and Revising the Comment to Rule 83; Doc. No. 2

[28 Pa.B. 1126]

   The Criminal Procedural Rules Committee has prepared a Final Report explaining the February 13, 1998 amendment of Rule of Criminal Procedure 141 (Preliminary Hearing) and the revision of the Comment to Rule of Criminal Procedure 83 (Trial in Summary Cases). These changes clarify the procedures iin summary trials and preliminary hearings when an attorney for the Commonwealth is not present to prosecute. The Final Report follows the Court's Order.

Order

Per Curiam:

   Now, this 13th day of February, 1998, upon the recommendation of the Criminal Procedural Rules Committee; this Recommendation having been submitted without publication pursuant to Pa.R.J.A. 103(a)(3), and a Final Report to be published with this Order:

   It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that:

   (1)  Pa.R.Crim.P. 141 is hereby amended, and

   (2)  the revision of the Comment to Pa.R.Crim.P. 83 is hereby approved, in the following form.

   This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective July 1, 1998.

Annex A

TITLE 234.  RULES OF
CRIMINAL PROCEDURE

PART I.  GENERAL

CHAPTER 50.  PROCEDURE IN SUMMARY CASES

PART VI.  GENERAL PROCEDURES IN
SUMMARY CASES

Rule 83.  Trial in Summary Cases.

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   Official Note:  Adopted July 12, 1985, effective January 1, 1986; amended September 23, 1985, effective January 1, 1986; effective date extended to July 1, 1986; amended February 2, 1989, effective March 1, 1989; amended October 28, 1994, effective as to cases instituted on or after January 1, 1995; Comment revised April 18, 1997, effective July 1, 1997; amended October 1, 1997, effective October 1, 1998; Comment revised February 13, 1998, effective July 1, 1998.

Comment

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   Paragraph (E)(2)(b) is included in the rule in light of North v. Russell, 427 U.S. 328 (1976). For the procedures for taking, perfecting, and handling an appeal, see Rule 86.

   As the judicial officer presiding at the summary trial, the issuing authority controls the conduct of the trial generally. When an attorney appears on behalf of the Commonwealth, or on behalf of a municipality pursuant to paragraph (C), the prosecution of the case is under the control of that attorney. When no attorney appears at the summary trial on behalf of the Commonwealth or a municipality, the issuing authority may ask questions of any witness who testifies, and the affiant may request the issuing authority to ask specific questions. In the appropriate circumstances, the issuing authority may also permit the affiant to question Commonwealth witnesses, cross-examine defense witnesses, and make recommendations about the case to the issuing authority.

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   For the statutory authority to sentence a defendant to pay restitution, see 42 Pa.C.S. § 9721(c) and 18 Pa.C.S. § 1106(c). See also 18 Pa.C.S[,]. § 1106(c)(2)(iv), which prohibits the court from ordering the incarceration of a defendant for failure to pay restitution if the failure results from the defendant's inability to pay.

   Before imposing both a fine and restitution, the issuing authority must determine that the fine will not prevent the defendant from making restitution to the victim. See 42 Pa.C.S[,]. §§  9726(c)(2) and [§]  9730(b)(3).

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Committee Explanatory Reports:

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   Final Report explaining the October 1, 1997 amendments to paragraph (E) and the Comment concerning the procedures at the time of sentencing published with the Court's Order at 27 Pa.B. 5414 (October 18, 1997).

   Final Report explaining the February 13, 1998 Comment revision concerning questioning of witnesses published with the Court's Order at 28 Pa.B. 1127 (February 28, 1998).

CHAPTER 100.  PROCEDURE IN COURT CASES

PART IV.  PROCEEDINGS BEFORE ISSUING AUTHORITIES

Rule 141.  Preliminary Hearing.

   [(a)] (A)  The attorney for the Commonwealth may appear at a preliminary hearing and:

   (1)  assume charge of the prosecution; and

   (2)  recommend to the issuing authority that the defendant be discharged or bound over to court according to law.

   [(b)] (B)  When no attorney appears on behalf of the Commonwealth at a preliminary hearing, the affiant may [request the issuing authority] be permitted to ask questions of any witness who testifies.

   [(c)] (C)  The defendant shall be present at any preliminary hearing except as provided in these rules, and may [, if he desires]:

   (1)  be represented by counsel;

   (2)  cross-examine witnesses and inspect physical evidence offered against [him] the defendant;

   (3)  call witnesses on [his own] the defendant's behalf, other than witnesses to [his] the defendant's good reputation only [,];

   (4)  offer evidence on [his] the defendant's own behalf and testify; and

   [(4)] (5)  make written notes of the proceedings, or have [his] counsel do so, or make a stenographic, mechanical, or electronic record of the proceedings.

   [(d)] (D)  If a prima facie case of the defendant's guilt is not established at the preliminary hearing, and no application for a continuance, supported by reasonable grounds, is made by an interested person, and no reason for a continuance otherwise appears, the issuing authority shall discharge the defendant.

   Official Note:  Formerly Rule 120, adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970; revised January 31, 1970; effective May 1, 1970; renumbered and amended September 18, 1973, effective January 1, 1974; amended June 30, 1975, effective July 30, 1975; amended October 21, 1977, effective January 1, 1978; paragraph [(d)] (D) amended April 26, 1979, effective July 1, 1979; amended February 13, 1998, effective July 1, 1998.

Comment

   As the judicial officer presiding at the preliminary hearing, the issuing authority controls the conduct of the preliminary hearing generally. When an attorney appears on behalf of the Commonwealth, the prosecution of the case is under the control of that attorney. When no attorney appears at the preliminary hearing [in] on behalf of the Commonwealth, the issuing authority may ask questions of any witness who testifies, and the affiant may request the issuing authority to ask specific questions. In the appropriate circumstances, the issuing authority may also permit the affiant to question Commonwealth witnesses, cross-examine defense witnesses, and make recommendations about the case to the issuing authority.

   [The 1975 modification to paragraph (c)] Paragraph (C)(3) is intended to make clear that the defendant [can] may call witnesses at a preliminary hearing only to negate the existence of a prima facie case, and not merely for the purpose of discovering the Commonwealth's case. The modification changes the language of the rule interpreted by the Court in Commonwealth v. Mullen, [460 Pa. 336,] 333 A.2d 755 (Pa. 1975). This amendment was made to preserve the limited function of a preliminary hearing.

   [For suspension of Act of Assembly see Rule 159(g).]

Committee Explanatory Reports:

   Final Report explaining the February 13, 1998 amendments concerning questioning of witnesses published with the Court's Order at 28 Pa.B. 1127 (February 28, 1998).

FINAL REPORT

Procedures in Summary Trials and Preliminary Hearings When an Attorney for the Commonwealth Is Not Present to Prosecute

Introduction

   On February 13, 1998, upon the recommendation of the Criminal Procedural Rules Committee, the Supreme Court amended Rule of Criminal Procedure 141 (Preliminary Hearing) and approved the revision of the Comment to Rule of Criminal Procedure 83 (Trial in Summary Cases) to clarify the procedures in summary trials and preliminary hearings when an attorney for the Commonwealth is not present to prosecute. These changes will be effective July 1, 1998. This Final Report highlights the Committee's considerations in formulating these amendments.¹

Discussion

   In correspondence with the Committee, a few attorneys and district justices pointed out that, although Rules 83(c) and 141(b) govern procedures before a district justice in cases in which the attorney for the Commonwealth does not appear, the provisions are not identically worded. Under Rule 83(c), when ''no attorney appears on behalf of the Commonwealth, the affiant may be permitted to ask questions of any witness who testifies.'' (emphasis added). Under Rule 141(b), when ''no attorney appears on behalf of the Commonwealth at a preliminary hearing, the affiant may request to ask questions of any witness who testifies.'' (emphasis added). These differences in the two provisions have generated confusion and the following questions: Does the affiant ask all the questions? Does the district justice ask the questions which the affiant poses? May an affiant's questions extend to cross- examining defense witnesses? Should there be different procedures for summary trials and preliminary hearings when an attorney for the Commonwealth is not present?

   After reviewing the procedures for summary trials and preliminary hearings and the questions, the Committee concluded that the procedures should be the same for summary trials and preliminary hearings. District justices should have complete discretion about how to handle a case if an attorney for the Commonwealth does not appear, including the extent of the questioning by the affiant. In view of this, Rule 141(B) has been amended so that both Rule 141(B) and Rule 83(C) provide that ''the affiant may be permitted to ask questions of any witness who testifies'' in cases in which the attorney for the Commonwealth does not appear.

   The Comments to both rules have been revised to make it clear that the district justice controls the conduct of the summary trial or the preliminary hearing, including the questioning of witnesses when there is no attorney for the Commonwealth present, and to provide district justices with guidance about the various questioning options available when the attorney for the Commonwealth does not appear. For example, the district justice could ask the questions, or the district justice could permit the affiant to ask the questions, or any combination of the two.

[Pa.B. Doc. No. 98-327. Filed for public inspection February 27, 1998, 9:00 a.m.]

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¹  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.

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