THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
PART II. LOCAL AND MINOR RULES
[234 PA. CODE CHS. 100, 200, 300, 1100 AND 6000]
Procedures in Cases in Which Summary Offense is Joined with Misdemeanor or Felony Charges
[29 Pa.B. 2444]
Introduction The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania adopt new Pa.R.Crim.P. 309 (Pretrial Disposition of Summary Offenses Joined with Misdemeanor or Felony Charges), and amend Pa.R.Crim.P. 101, 104, 141, 143, 145, 151, 179, 225, 313, 314, 315, 1120, 1122, and 6010. These rule changes clarify the procedures for handling cases in which a summary offense is joined with misdemeanor or felony charges both when the case is before the issuing authority and after the case is held for court. 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 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, Committee on Rules of Evidence, 5035 Ritter Road, Mechanicsburg, PA 17055 no later than Monday, June 21, 1999.
By the Criminal Procedural Rules Committee:
FRANCIS BARRY MCCARTHY,
Chair
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
CHAPTER 100. PROCEDURE IN COURT CASES
PART I. INSTITUTING PROCEEDINGS Rule 101. Means of Instituting Proceedings in Court Cases.
* * * * * Official Note: Original Rule 102(1), (2), and (3), adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 102 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 101, and made applicable to court cases only, September 18, 1973, effective January 1, 1974; Comment revised February 15, 1974, effective immediately; amended June 30, 1975, effective September 1, 1975; Comment amended January 4, 1979, effective January 9, 1979; paragraph (1) amended October 22, 1981, effective January 1, 1982; Comment revised July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; Comment revised January 31, 1991, effective July 1, 1991; Comment revised August 12, 1993, effective September 1, 1993; amended August 9, 1994, effective January 1, 1995; Comment revised January 16, 1996, effective immediately; Comment revised _____, effective _____.
Comment: * * * * * There are only a few exceptions to this rule regarding the instituting of criminal proceedings in court cases. There are, for example, special proceedings involving a coroner or medical examiner. See Commonwealth v. Lopinson, 234 A.2d 552 (Pa. 1967), and Commonwealth v. Smouse, 594 A.2d 666 (Pa. Super. 1991).
Except in cases in which a summary offense is a summary motor vehicle offense within the jurisdiction of a traffic court established pursuant to 42 Pa.C.S. §§ 1301--1342, [Whenever] whenever a misdemeanor or felony is charged, even if [a] the summary offense is also charged in the same complaint, the case should proceed as a court case under Chapter 100. See Commonwealth v. Campana, 304 A.2d 432 (Pa. 1973). In cases in which the summary traffic offense is within the jurisdiction of a traffic court, these summary traffic offenses should not be charged in the same complaint as the misdemeanors or felonies. Traffic Court has exclusive jurisdiction over summary traffic offenses. See 42 Pa.C.S. § 1302 and Commonwealth v. Masterson, 418 A.2d 664 (Pa. Super. 1980).
* * * * * Committee Explanatory Reports:
* * * * * Report explaining the January 16, 1996 Comment revisions published with the Court's Order at 26 Pa.B. 437 (February 3, 1996).
Report explaining the proposed Comment revisions concerning joinder of summary offenses and misdemeanor or felony charges published at 29 Pa.B. 2450 (May 8, 1999).
PART II. COMPLAINT PROCEDURES Rule 104. Contents of Complaint.
* * * * * Official Note: Original Rule 104, adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 104 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 132 September 18, 1973, effective January 1, 1974; amended October 22, 1981, effective January 1, 1982; amended November 9, 1984, effective January 2, 1985; amended July 25, 1994, effective January 1, 1995; renumbered Rule 104 and Comment revised August 9, 1994, effective January 1, 1995; Comment revised _____, effective _____.
Comment: This rule sets forth the required contents of all complaints whether the affiant is a law enforcement officer, a police officer, or a private citizen. When the affiant is a private citizen, the complaint must be submitted to an attorney for the Commonwealth for approval. See Rule 106. When the district attorney elects to proceed under Rule 107 (Approval of Police Complaints and Arrest Warrant Affidavits by Attorney for the Commonwealth), the police officer must likewise submit the complaint for approval by an attorney for the Commonwealth.
Except in cases in which a summary offense is a summary motor vehicle offense within the jurisdiction of a traffic court established pursuant to 42 Pa.C.S. §§ 1301--1342, whenever a misdemeanor or felony is charged, the summary offense should be charged in the same complaint, and the case should proceed as a court case under Chapter 100. See Commonwealth v. Campana, 304 A.2d 432 (Pa. 1973). In cases in which the summary traffic offense is within the jurisdiction of a traffic court, these summary traffic offenses should not be charged in the same complaint as the misdemeanors or felonies. Traffic Court has exclusive jurisdiction over summary traffic offenses. See 42 Pa.C.S. § 1302 and Commonwealth v. Masterson, 418 A.2d 664 (Pa. Super. 1980).
* * * * * Committee Explanatory Reports:
* * * * * Report explaining the August 9, 1994 renumbering rule and making Comment revisions published at 22 Pa.B. 6 (January 4, 1992); Final Report published with the Court's Order at 24 Pa.B. 4342 (August 27, 1994).
Report explaining the proposed Comment revisions concerning summary offenses joined with misdemeanor or felony charges published at 29 Pa.B. 2450 (May 8, 1999).
PART IV. PROCEEDINGS BEFORE ISSUING AUTHORITIES Rule 141. Preliminary Hearing.
* * * * * [(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.]
(D) In any case in which a summary offense is joined with a misdemeanor or felony charge, the issuing authority shall not proceed on the summary offense except as provided in Rule 143(E).
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) amended April 26, 1979, effective July 1, 1979; amended February 13, 1998, effective July 1, 1998; amended _____, effective _____.
Comment: * * * * * Paragraph (C)(3) is intended to make clear that the defendant 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, 333 A.2d 755 (Pa. 1975). This amendment was made to preserve the limited function of a preliminary hearing.
In cases in which summary offenses are joined with misdemeanor or felony charges, pursuant to paragraph (D), during the preliminary hearing, the issuing authority is prohibited from proceeding on the summary offenses, including the taking of evidence on the summary offenses, or adjudicating or disposing of the summary offenses except as provided in Rule 143(E).
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).
Report explaining the proposed amendments concerning summary offenses joined with misdemeanor or felony charges published at 29 Pa.B. 2450 (May 8, 1999).
Rule 143. Disposition of Case at Preliminary Hearing.
(A) At the conclusion of the preliminary hearing, the decision of the issuing authority shall be publicly pronounced.
[(a)] (B) If the Commonwealth establishes a prima facie case of the defendant's guilt, the issuing authority shall hold the defendant for court. [Otherwise, the defendant shall be discharged. In either event, the decision of the issuing authority shall be publicly pronounced.]
[(b)] (C) ***
(D) If the Commonwealth does not establish a prima facie case of the defendant's guilt, and no application for a continuance is made and there is no reason for a continuance, the issuing authority shall dismiss the complaint.
(E) In any case in which a summary offense is joined with misdemeanor or felony charges:
(1) If the Commonwealth establishes a prima facie case pursuant to paragraph (B), the issuing authority shall not adjudicate or dispose of the summary offenses, but shall forward the summary offenses to the court of common pleas with the charges held for court.
(2) If the Commonwealth does not establish a prima facie case pursuant to paragraph (C), upon the request of the Commonwealth, the issuing authority shall dispose of the summary offense as provided in Rule 83 (Trial In Summary Cases).
(3) If the Commonwealth withdraws all the misdemeanor and felony charges, the issuing authority shall dispose of the summary offense as provided in Rule 83 (Trial In Summary Cases).
Official Note: Original Rule 123, adopted June 30, 1964, effective January 1, 1965, suspended January 31, 1970, effective May 1, 1970. New Rule 123 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 143 September 18, 1973, effective January 1, 1974; amended January 28, 1983, effective July 1, 1983; amended August 9, 1994, effective January 1, 1995; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; amended _____, effective _____.
Comment: Paragraph [(b)] (D) was amended in 1983 to reflect the fact that a bail determination will already have been made at the preliminary arraignment, except in those cases [where] in which, pursuant to a summons, the defendant's first appearance is at the preliminary hearing. See Rules 109 and 110.
Rule 141(D) specifically prohibits an issuing authority at a preliminary hearing from proceeding on any summary offenses that are joined with misdemeanor or felony charges, except as provided in Rule 143(E). Paragraph (E) sets forth the procedures for the issuing authority to handle these summary offenses at the preliminary hearing. These procedures include the issuing authority (1) forwarding the summary offenses together with the misdemeanor or felony charges held for court to the court of common pleas, or (2) disposing of the summary offenses as provided in Rule 83 by accepting a guilty plea or conducting a trial whenever (a) the misdemeanor and felony charges are withdrawn or (b) a prima facie case is not established at the preliminary hearing and the Commonwealth requests that the issuing authority proceed on the summary offenses.
Under paragraph (E)(2), in those cases in which the Commonwealth does not intend to refile the misdemeanor or felony charges, the Commonwealth may request that the issuing authority dispose of the summary offenses.
In those cases in which a prima facie case is not established at the preliminary hearing, and the Commonwealth does not request that the issuing authority proceed on the summary offenses, the issuing authority should dismiss the complaint, and discharge the defendant unless there are outstanding detainers against the defendant that would prevent the defendant's release.
Nothing in this rule would preclude the refiling of one or more of the charges, as provided in these rules.
The requirements in paragraph (E) do not apply to summary motor vehicle offenses within the jurisdiction of a traffic court established pursuant to 42 Pa.C.S. §§ 1301--1342. Ordinarily, these offenses would not be joined with misdemeanor or felony charges, but would be filed separately.
See Rule 179 for the disposition of any summary offenses joined with misdemeanor or felony charges when the defendant is accepted into an ARD program on the misdemeanor or felony charges.
Committee Explanatory Reports:
Report explaining the August 9, 1994 amendments published at 22 Pa.B.6 (January 4, 1992); Final Report published with the Court's Order at 24 Pa.B. 4342 (August 27, 1994).
Final Report explaining the September 13, 1995 amendments published with the Court's Order at 25 Pa.B. 4116 (September 30, 1995).
Report explaining the proposed amendments concerning summary offenses joined with misdemeanor or felony charges published at 29 Pa.B. 2450 (May 8, 1999).
Rule 145. Dismissal Upon Satisfaction or Agreement.
* * * * * 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 and amended September 18, 1973, effective January 1, 1974; amended January 28, 1983, effective July 1, 1983; amended April 18, 1997, effective July 1, 1997 [.] ; Comment revised _____, effective _____.
Comment: * * * * * 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 which, along with the other enumerated criteria, gives the issuing authority discretion to dismiss, even when the affiant refuses to consent.
If a summary offense has been joined with a misdemeanor charge, and therefore is part of the court case, a dismissal of the case pursuant to this rule may include a dismissal of the summary offense. See the Comment to Rule 101 (Means of Instituting Proceedings in Court Cases).
* * * * * Committee Explanatory Reports:
Final Report explaining the April 18, 1997 amendments aligning the rule with Rule 88 published with the Court's Order at 27 Pa.B. 2119 (May 3, 1997).
Report explaining the proposed amendments concerning summary offenses joined with misdemeanor or felony charges published at 29 Pa.B. 2450 (May 8, 1999).
PART V. MISCELLANEOUS Rule 151. Withdrawal of Prosecution Before Issuing Authority.
In any court case pending before an issuing authority, the attorney for the Commonwealth, or his or her designee, may withdraw [the prosecution] one or more of the charges. The withdrawal shall be in writing.
Official Note: Adopted September 18, 1973, effective January 1, 1974; amended August 14, 1995, effective January 1, 1996; amended _____, effective _____.
Comment: This rule was amended in 1995 to make it clear that only the attorney for the Commonwealth or a designee has the authority to withdraw a prosecution.
In any case in which a summary offense is joined with the misdemeanor or felony charges, if all misdemeanor and felony charges are withdrawn pursuant to this rule, the issuing authority must dispose of the summary offense as provided in Rule 83 (Trial in Summary Cases). See Rule 143(E).
Committee Explanatory Reports:
Final Report explaining the August 14, 1995 amendments published with the Court's Order at 25 Pa.B. 3468 (August 26, 1995).
Report explaining the proposed amendments concerning summary offenses joined with misdemeanor or felony charges published at 29 Pa.B. 2450 (May 8, 1999).
PART VII. ACCELERATED REHABILITATIVE DISPOSITION COURT CASES Rule 179. Hearing, Manner of Proceeding.
[(a)] (A) ***
[(b)] (B) ***
[(c)] (C) ***
[(d)] (D) ***
[(e)] (E) ***
Official Note: Approved May 24, 1972, effective immediately; amended April 10, 1989, effective July 1, 1989; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; the April 1, 1996 effective date extended to July 1, 1996 ; amended _____, effective _____.
Comment: The phrase ''or civil'' was deleted from paragraph (b) in the 1989 general revision of the ARD rules. Whether a defendant's statement may be used in a noncriminal proceeding is a matter of substantive law.
In any case in which a summary offense has been joined with the misdemeanor or felony charges that have been disposed of by the defendant's acceptance into an ARD program, if the summary offense has not been disposed of prior to the ARD hearing, the trial judge may not remand the summary offense to the issuing authority for disposition, but must dispose of the summary offense at the ARD hearing. The Crimes Code § 110, 18 Pa.C.S. § 110, Commonwealth v. Caufman, 662 A.2d 1050 (Pa. 1995), and Commonwealth v. Campana, 304 A.2d 432 (Pa. 1973), vacated and remanded, 414 U.S. 808 (1973), on remand, 314 A.2d 854 (Pa. 1974), may require in a particular case that the trial judge have the defendant execute a ''Campana'' waiver prior to disposing of the summary offense at the ARD hearing.
* * * * * Committee Explanatory Reports:
Final Report explaining the September 13, 1995 amendments published with Court's Order at 25 Pa.B. 4116 (September 30, 1995).
Report explaining the proposed amendments concerning summary offenses joined with misdemeanor or felony charges published at 29 Pa.B. 2450 (May 8, 1999).
CHAPTER 200. INFORMATIONS AND INVESTIGATING GRAND JURIES
PART I. INFORMATIONS Rule 225. Information: Filing, Contents, Function.
[(a)] (A) ***
[(b)] (B) ***
[(c)] (C) ***
[(d)] (D) ***
Official Note: Adopted February 15, 1974, effective immediately; Comment revised January 28, 1983, effective July 1, 1983; amended August 14, 1995, effective January 1, 1996; amended _____, 1999, effective _____, 1999.
Comment: Before an information is filed, the attorney for the Commonwealth may withdraw one or more of the charges by filing a notice of withdrawal with the clerk of courts. See Rule 224(a). Upon the filing of an information, any charge not listed on the information will be deemed withdrawn by the attorney for the Commonwealth. See Rule 224(b). After the information is filed, court approval is required before a nolle prosequi may be entered on a charge listed therein. See Rule 313.
In any case in which there are summary offenses joined with the misdemeanor or felony charges that are held for court, the attorney for the Commonwealth must include the summary offenses in the information. See Commonwealth v. Hoffman, 594 A.2d 772 (Pa. Super. 1991).
When there is an omission or error of the type referred to in paragraph (c), the information should be amended pursuant to Rule 229.
Committee Explanatory Reports:
Final Report explaining the August 14, 1995 amendments published with the Court's Order at 25 Pa.B. 3468 (August 26, 1995).
Report explaining the proposed amendments concerning summary offenses joined with misdemeanor or felony charges published at 29 Pa.B. 2450 (May 8, 1999).
CHAPTER 300. PRETRIAL PROCEEDINGS [This is an entirely new rule.]
Rule 309. Pretrial Disposition of Summary Offenses Joined with Misdemeanor or Felony Charges.
(A) In any case in which a summary offense is joined with a misdemeanor or felony charge, and therefore is part of the court case, when there is a dismissal or a nolle prosequi of all misdemeanor and felony charges, unless the Commonwealth appeals the disposition, the trial judge shall dispose of the summary offense.
(B) In no event shall the trial judge remand the summary offense to the issuing authority for disposition.
Official Note: Adopted _____, effective _____.
Comment: In any case in which a summary offense is joined with a misdemeanor or felony charge, and therefore is part of the court case, when an appeal of a pretrial disposition of the misdemeanor and felony charge is taken, disposition of the summary offense should be delayed pending the appeal. See Pa.R.A.P. 1701 (Effect of Appeal Generally).
Notwithstanding the provisions of this rule, a dismissal of the prosecution pursuant to Rule 314 (Court Dismissal Upon Satisfaction or Agreement) may include the dismissal of the summary offense.
For the procedures for nolle prosequi see Rule 313 (Nolle Prosequi).
Committee Explanatory Reports:
Report explaining the proposed new rule published at 29 Pa.B. 2450 (May 8, 1999).
Rule 313. Nolle Prosequi.
[(a)] (A) ***
[(b)] (B) ***
Official Note: Formerly Rule 314, adopted June 30, 1964, effective January 1, 1965; Comment amended February 15,1974, effective immediately; renumbered Rule 313 and Comment amended June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; Comment revised January 28, 1983, effective July 1, 1983; amended August 12, 1993, effective September 1, 1993; amended August 14, 1995, effective January 1, 1996; amended _____, effective _____.
Comment: * * * * * Before an information is filed, the attorney for the Commonwealth may withdraw one or more of the charges by filing a notice of withdrawal with the clerk of courts. See Rule 224(a). Upon the filing of an information, any charge not listed on the information will be deemed withdrawn by the attorney for the Commonwealth. See Rule 224(b). After the information is filed, court approval is required before a nolle prosequi may be entered on a charge listed therein. 42 Pa.C.S. § 8932.
In any case in which a summary offense is joined with a misdemeanor or felony charge: (1) the judge may order a nolle prosequi on all the charges including the summary offense; and (2) if the judge has ordered a nolle prosequi on all the misdemeanors or felonies pursuant to this rule, the judge may not remand the summary offense to the issuing authority for disposition, but must dispose of the summary offense in the court of common pleas as required by Rule 309 (Pretrial Disposition of Summary Offenses Joined With Misdemeanor or Felony Charges).
Committee Explanatory Reports:
Report explaining the August 12, 1993 amendments published at 22 Pa.B. 3826 (July 25, 1992).
Final Report explaining the August 14, 1995 amendments published with the Court's Order at 25 Pa.B. 3468 (August 26, 1995).
Report explaining the proposed amendments concerning summary offenses joined with misdemeanor or felony charges published at 29 Pa.B. 2450 (May 8, 1999).
Rule 314. Court Dismissal Upon Satisfaction or Agreement.
* * * * * Official Note: Adopted June 30, 1964, effective January 1, 1965; amended September 18, 1973, effective January 1, 1974; formerly Rule 315, renumbered 314 and amended June 29, 1977, effective January 1, 1978; amended January 28, 1983, effective July 1, 1983; Comment revised _____, effective _____.
Comment: This rule applies only to courts of common pleas. Neither justices of the peace, Philadelphia Municipal Court judges, Pittsburgh Police Magistrates, nor any other issuing authority may dismiss a case under this rule, but rather only as provided in Rule 145. This rule was amended in 1983 to set forth concisely the criteria a defendant must satisfy before the Court has the discretion to order dismissal under this rule.
If a summary offense is joined with a misdemeanor or felony charge, and therefore is part of the court case, a dismissal of the case pursuant to this rule may include a dismissal of the summary offense. See the Comment to Rule 101 (Means of Instituting Proceedings in Court Cases).
Committee Explanatory Reports:
Report explaining the proposed Comment revisions concerning summary offenses joined with misdemeanor or felony charges published at 29 Pa.B. 2450 (May 8, 1999).
Rule 315. Motion for Dismissal.
[(a)] (A) ***
[(b)] (B) ***
Official Note: Formerly Rule 316, adopted June 30, 1964, effective January 1, 1965; amended June 8, 1973, effective July 1, 1973; amended February 15, 1974, effective immediately; renumbered Rule 315 and amended June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; Comment revised January 28, 1983, effective July 1, 1983; amended August 12, 1993, effective September 1, 1993; Comment revised _____, effective _____.
Comment: Cf. Pa.R.J.A. 1901 concerning termination of inactive cases.
In any case in which a summary offense is joined with a misdemeanor or felony charge, and therefore is part of the court case, a dismissal of the prosecution pursuant to paragraph (A) would include the dismissal of the summary offense. See the Comment to Rule 101 (Means of Instituting Proceedings in Court Cases).
Committee Explanatory Reports:
Report explaining the August 12, 1993 amendments published at 22 Pa.B. 3826 (July 25, 1992).
Report explaining the proposed amendments concerning summary offenses joined with misdemeanor or felony charges published at 29 Pa.B. 2450 (May 8, 1999).
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