THE COURTS
PART I. GENERAL
[234 PA. CODE CH. 50]
Rule 71, Procedure Following Arrest Without Warrant; Rule 81, Collateral; No. 243; Criminal Procedural Rules; Doc. No. 2
[29 Pa.B. 2774] The Criminal Procedural Rules Committee has prepared a Final Report explaining the May 14, 1999 changes to Rules of Criminal Procedure 71 and 81 concerning trials after arrests without a warrant and collateral in summary cases. The Final Report follows the Court's Order.
Order Per Curiam:
Now, this 14th day of May, 1999, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 26 Pa.B 4892 (October 12, 1996), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 681/682), 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 Pa.R.Crim.P. 71 is hereby amended and the revision of the Comment to Pa.R.Crim.P. 81 is approved, all in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective July 1, 1999.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
CHAPTER 50. PROCEDURE IN SUMMARY CASES
PART IV. PROCEDURES IN SUMMARY CASES WHEN DEFENDANT IS ARRESTED WITHOUT WARRANT Rule 71. Procedure Following Arrest Without Warrant.
[(a)] (A) When a defendant has been arrested without a warrant, the defendant shall be either released from custody pursuant to paragraph [(b)] (B) or taken before the proper issuing authority under paragraph [(c)] (C).
[(b)] (B) When a defendant has been arrested without a warrant, the arresting officer may, when the officer deems it appropriate, promptly release the defendant from custody when the following conditions have been met:
* * * * * [(c)] (C) When the defendant has not been released from custody under paragraph [(b)] (B), the defendant shall be taken without unnecessary delay before the issuing authority where a citation shall be filed against the defendant. The defendant shall be given an immediate trial unless:
(1) the Commonwealth is not ready to proceed, or the defendant requests a postponement or is not capable of proceeding, and in [either event] any of these circumstances, the defendant shall be given the opportunity to deposit collateral for appearance on the new date and hour fixed for trial, or
* * * * * Official Note: Adopted July 12, 1985, effective January 1, 1986; Comment revised September 23, 1985, effective January 1, 1986; January 1, 1986 effective [date] dates extended to July 1, 1986; amended August 9, 1994, effective January 1, 1995; amended May 14, 1999, effective July 1, 1999.
Comment [This rule replaces previous Rule 62.]
* * * * * 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 May 14, 1999 amendments to paragraph (c)(1) and the Comment published with the Court's Order at 29 Pa.B. ____ (May 29, 1999).
PART VI. GENERAL PROCEDURES IN SUMMARY CASES Rule 81. Collateral.
[(a)] (A) ***
[(b)] (B) ***
[(c)] (C) ***
Official Note: Adopted July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; Comment revised February 1, 1989, effective July 1, 1989; Comment revised May 14, 1999, effective July 1, 1999.
Comment [This rule is substantially new. It is, in part, derived from the bail or security provisions of previous Rules 52A.2.(b), 55.2, 57(b)(1), and 64.4. ]
The term ''collateral'' is intended to convey the dual purpose of the amount of money that is deposited. First, the amount deposited is used as bail to secure the defendant's appearance at the summary trial. Second, the amount deposited is used as security, and may be forfeited in the event of a conviction to satisfy any fine and costs.
A defendant may not be penalized or denied a hearing because he or she cannot pay the full amount of the fine and costs as collateral.
Although this rule permits an issuing authority to fix collateral in an amount up to the full amount of fine and costs, the issuing authority is not required to fix collateral or any particular amount of collateral, and may set an amount less than the fine and costs. The issuing authority may also release the defendant on recognizance when the issuing authority has reasonable grounds to believe that the defendant will appear or the defendant is without adequate resources to deposit collateral. To request a lower amount of collateral or to be released on recognizance, the defendant must appear personally before the issuing authority to enter a plea, as provided in Rules 58, 63, and 68.
For the purpose of paragraph (b), any guaranteed arrest bond certificate issued by an automobile club or association pursuant to 40 P. S. § 837 (1959) would constitute a ''cash equivalent.''
Committee Explanatory Reports:
Final Report explaining the May 14, 1999 Comment revisions published with the Court's Order at 29 Pa.B. 2775 (May 29, 1999).
FINAL REPORT1
Amendments to Pa.R.Crim.P. 71 (Procedure Following Arrest Without Warrant and Revision of the Comment to Pa.R.Crim.P. 81 (Collateral)
PROCEDURE FOLLOWING ARREST WITHOUT WARRANT On May 14, 1999, effective July 1, 1999, the Supreme Court, upon the recommendation of the Criminal Procedural Rules Committee, amended Pa.R.Crim.P. 71 to clarify that the rule does not require an immediate trial following an arrest without a warrant when a defendant is not capable of proceeding, and approved the revision of the Comment to Pa.R.Crim.P. 81 to clarify that the term ''collateral'' serves a dual purpose--bail, to insure the defendant's appearance at trial, and security, so the money deposited can be forfeited at the conclusion of the case if necessary and applied to any fine and costs.
Background
The Committee received several inquiries concerning the pretrial detention of individuals who are arrested for public drunkenness and are a danger to themselves. From communications with members of the minor judiciary, the Committee learned that this matter has been a recurring problem for the local municipalities. The correspondents noted that a contributing factor to the overall problem is the immediate trial requirement in paragraph (C) of Rule 71 (Procedure Following Arrest Without Warrant), which, if strictly construed, provides only two exceptions to holding an immediate trial--when the defendant or the Commonwealth requests a postponement, or when the defendant's criminal record has to be ascertained. The correspondents questioned whether an issuing authority could delay the immediate trial in situations in which the defendant is not capable of proceeding, such as when an individual is arrested for public drunkenness and is too intoxicated to understand the nature of the proceedings. The correspondents also commented that there was a great deal of confusion concerning the authority to incarcerate a defendant who is unable to post collateral.
Although the Committee was sympathetic to the correspondents' concerns about the problems they are encountering with public drunkenness, the members did not think that the resolution should be by the Criminal Rules governing summary cases providing for pretrial detention of defendants charged with public drunkenness. We did, however, conclude that the questions concerning immediate trials and collateral needed to be addressed.
Discussion of Rule Changes
(1) Rule 71 (Procedure Following Arrest Without Warrant)
The Committee reviewed the Rule 71 history. The history was clear that the rule was intended to encourage immediate trials in summary cases because, given the relatively minor nature of the infractions and sentences, defendants should not be unnecessarily detained before trial. However, we found nothing in the history that addressed the issue of whether summary trials should be held in cases in which a defendant is not capable of proceeding.
The Committee discussed the matter, and applying general criminal law principles, concluded that the obvious answer is that no criminal trial should ever be held when a defendant is incompetent and unable to proceed. In view of this, the members were troubled that some members of the minor judiciary are under the impression that Rule 71 precludes them from postponing the summary trial in those cases in which the defendant was incapable of proceeding. Turning to Rule 71, the Committee noted that paragraphs (C)(1) and (C)(2) seemed to be the source of the confusion by setting forth only two situations as exceptions to the immediate trial requirement, and that the problem could be easily resolved by an expansion of the rule.
In view of these considerations, the following clarifying changes have been made to Rule 71. First, paragraph (C)(1) has been amended to include, as one of the exceptions to the immediate trial requirement, the situation in which the defendant is not capable of proceeding. In addition, paragraph (C)(1) has been amended to make it clear that, in any of the situations enumerated in the paragraph, the defendant must be given the opportunity to deposit collateral for his or her appearance at trial.
(2) Collateral
The Committee also reviewed the Rule 81 history concerning collateral, which is summarized in the Committee's 1983 explanatory Report describing the proposed amendments to Chapter 50. This proposal included the addition of the term ''collateral'' to the rules. See 13 Pa.B. 2948 (10/1/83). As explained in the Report, the term ''collateral'' replaced the terms ''bail'' and ''security'' in summary cases because it conveyed the dual purpose of the amount of money that is deposited: ''First, the amount posted is used as bail to secure the defendant's appearance at the summary trial. Second, the amount posted is used as security when it is forfeited after conviction to satisfy any fine and costs.'' Id. at 2963.
In view of this published rule history, which distinctly articulates the scope and application of collateral in summary cases, the Committee did not think an amendment to Rule 81 was necessary. Furthermore, for the same reasons that Rule 71 requires an immediate trial in the ordinary summary case--the minor nature of the infractions and sentences, the members did not want to encourage pretrial detentions in summary cases, and agreed that Rule 81 should not provide that a defendant may be detained for failing to deposit collateral. However, in view of the obvious confusion among members of the minor judiciary concerning detention and collateral, the Rule 81 Comment has been revised by the inclusion of the historical explanation concerning the meaning and application of collateral in summary cases.
[Pa.B. Doc. No. 99-852. Filed for public inspection May 28, 1999, 9:00 a.m.] _______
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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