THE COURTS

PART I.  GENERAL

[234 PA. CODE CH. 50]

Rule 86, Police Officer's Presence at Summary Trial De Novo; No. 242; Criminal Procedural Rules Doc. No. 2

[29 Pa.B. 2776]

   The Criminal Procedural Rules Committee has prepared a Final Report explaining the May 14, 1999 amendments to Rule of Criminal Procedure 86 concerning the police officer's presence at the summary trial de novo. 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 2166 (May 11, 1996), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 674), 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. 86 is 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, 1999.

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 86.  Appeals.

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   (G)  When a defendant appeals after conviction by an issuing authority in any summary proceeding, upon the filing of the transcript and other papers by the issuing authority, the case shall be heard de novo by the appropriate division of the court of common pleas as the president judge shall direct. In appeals from summary proceedings arising under the Vehicle Code or local traffic ordinances, other than parking offenses, the law enforcement officer who observed the alleged offense must appear and testify. [Unless the presence of the law enforcement officer is waived in open court by the defendant, the failure of the officer to appear and testify shall result in a dismissal of the charges.] The failure of a law enforcement officer to appear and testify shall result in the dismissal of the charges unless:

   (1)  the defendant waives the presence of the law enforcement officer in open court on the record;

   (2)  the defendant waives the presence of the law enforcement officer by filing a written waiver signed by the defendant and defense counsel, or the defendant if proceeding pro se, with the clerk of courts; or

   (3)  the trial judge determines that good cause exists for the law enforcement officer's unavailability and grants a continuance.

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   Official Note:  Adopted July 12, 1985, effective January 1, 1986; [Comment] revised September 23, 1985, effective January 1, 1986; January 1, 1986 effective dates extended to July 1, 1986; amended February 2, 1989, effective March 1, 1989; amended March 22, 1993, effective January 1, 1994; amended October 28, 1994, effective as to cases instituted on or after January 1, 1995; amended February 27, 1995, effective July 1, 1995; amended October 1, 1997, effective October 1, 1998; amended May 14, 1999, effective July 1, 1999.

Comment

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   When the only issues on appeal arise solely from an issuing authority's determination after a default hearing pursuant to Rule 85, the matter must be heard de novo by the appropriate judge of the court of common pleas and only those issues arising from the default hearing are to be considered. It is not intended to reopen other issues not properly preserved for appeal. A determination after a default hearing would be a final order for purposes of these rules.

   The 1999 amendment of paragraph (G), made in response to Commonwealth v. Hightower, 652 A.2d 873 (Pa. Super. 1995), permits the court to continue the case if there is good cause for the officer's unavailability.

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Committee Explanatory Reports:

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   Final Report explaining the October 1, 1997 amendments published with the Court's Order at 27 Pa.B. 5408 October 18, 1997).

   Final Report explaining the May 14, 1999 amendments to paragraph (G) concerning the police officer's presence published with the Court's Order at 29 Pa.B. 2776 (May 29, 1999).

FINAL REPORT¹

Amendment to Pa.R.Crim.P. 86 (Appeals)

Presence of Law Enforcement Officer at Trial De Novo

   On May 14, 1999, effective July 1, 1999, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended paragraph (G) of Pa.R.Crim.P. 86 (Appeals). This amendment expands on the exceptions to the dismissal sanction prescribed in paragraph (G) when a police officer fails to appear to include those situations when there is good cause for the absence and the trial judge grants a continuance.

Discussion

   Rule 86(G) requires that in appeals from summary proceedings under the Vehicle Code or local traffic ordinances, other than parking offenses, the law enforcement officer who observed the offense must appear and testify. Paragraph (G) also provides that the failure of the officer to appear and testify must result in a dismissal of the charges unless the defendant, in open court, waives the law enforcement officer's presence. The Committee undertook a review of the Rule 86(G) dismissal provisions in view of Commonwealth v. Hightower, 652 A.2d 873 (Pa. Super. 1995), appeal denied, 665 A.2d 467 (Pa. 1995), the first case to interpret the ''dismissal'' requirement of Rule 86(G) as being absolute.

   In Hightower, the trial court granted two continuances of the trial de novo, one due to the officer's wife's sudden illness and hospitalization, and the other to accommodate the officer's scheduled vacation. The defendant contended that the trial court abused its discretion by granting a continuance when a dismissal was required. The Superior Court agreed, holding that under Pa.R.Crim.P. 86(G), when ''an officer fails to appear to testify, the charges must be dismissed unless the defendant waives the officer's presence in open court. No other exception to this rule is provided.'' Id. at 873-874.

   Although the Committee felt that the Hightower opinion was a fair reading of present Rule 86(G), we also agreed that the language of paragraph (G) was not intended to preclude a court from granting a continuance when a valid reason exists for the officer's unavailability. Accordingly, paragraph (G) has been amended by adding a ''good cause'' exception, and by separating into subparagraphs the waiver and good cause exceptions to the dismissal requirement. The amendment to paragraph (G) also makes it clear that the defendant may waive the officer's presence either in open court on the record or by filing with the clerk of courts a written waiver that is signed by the defendant and defense counsel, if any. In addition, the Comment has been revised to include an explanation that the new language was added in response to the Hightower opinion.

[Pa.B. Doc. No. 99-853. Filed for public inspection May 28, 1999, 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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