[33 Pa.B. 1581]
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PART D(1). MOTION PROCEDURES Rule 344. Motions and Answers.
A. Generally. All motions and answers shall be made orally on the record or in writing. An answer to a motion is not required unless ordered by the court or otherwise provided in these rules. Failure to answer shall not constitute an admission of the well-pleaded facts alleged in the motion.
B. Represented juvenile. If counsel represents a juvenile, the attorney shall make or file all motions and answers.
C. Requirements for motions. All motions shall comply with the following requirements:
1) The person making the motion shall sign a written motion. The signature shall constitute a certification that the motion is made in good faith. An oral motion shall be made on the record and the oral motion shall constitute a certification that the motion is made in good faith.
2) The motion shall state with particularity the grounds for the motion, the facts that support each ground, and the types of relief or order requested.
3) If the motion sets forth facts that do not already appear of record in the case, a verification shall be included or an oral statement shall be given that the facts set forth in the motion are true and correct to the movant's personal knowledge, information, or belief.
4) If the motion is written, a certificate of service as required by Rule 345(C) shall be included.
D. Requirements for answers. All answers, including those that are required either by court order or otherwise required by these rules, shall comply with the following requirements:
1) The person making the answer shall sign the answer or shall reply to the motion on the record. The signature or oral answer on the record shall constitute a certification that the answer is being made in good faith.
2) The answer shall meet the allegations of the motion and shall specify the type of relief, order, or other action sought.
3) If the answer sets forth facts that do not already appear of record in the case, a verification shall be included or an oral answer shall include a statement that the facts set forth in the answer are true and correct to the respondent's personal knowledge, information, or belief.
4) If the answer is written, a certificate of service as required by Rule 345(C) shall be included.
E. Alternative relief. Any motion may request such alternative relief as may be appropriate.
F. Waiver of relief. The failure, in any motion, to state a type of relief or order, or a ground therefore, shall constitute a waiver of such relief, order, or ground.
Comment Under paragraph (A), oral motions and answers are permitted because of the emphasis on prompt disposition in Juvenile Court. Answers to written motions may be made orally if the answer complies with the requirements of this rule.
Under paragraphs (C)(4) and (D)(4), a certificate of service is required for all written motions and answers. See Rule 345(B) for service of documents and Rule 345(C) for certificates of service.
Rule 345. Filing and Service.
A. Filings.
1) Generally. Except as otherwise provided in these rules, all written motions, and any notice or document for which filing is required, shall be filed with the clerk of courts.
2) Clerk of courts' duties. Except as provided in paragraph (A)(3), the clerk of courts shall docket a written motion, notice, or document when it is received and record the time of filing in the docket. The clerk of courts promptly shall transmit a copy of these papers to such person as may be designated by the court.
3) Filings by represented juveniles. In any case in which a juvenile is represented by an attorney, if the juvenile submits for filing a written motion, notice, or document that has not been signed by the juvenile's attorney, the clerk of courts shall not file the motion, notice, or document in the juvenile case file or make a docket entry, but shall forward it promptly to the juvenile's attorney.
4) Method of filing. Filing may be accomplished by:
a) personal delivery to the clerk of courts; or
b) mail addressed to the clerk of courts, provided, however, that filing by mail shall be timely only when actually received by the clerk within the time fixed for filing.
B. Service.
1) Generally. The party filing the document shall serve all parties concurrently with the filing.
2) Method of service to parties. Service on the parties shall be by:
a) personal delivery of a copy to a party's attorney, or, if unrepresented, the party; or
b) mailing a copy to a party's attorney or leaving a copy for the attorney at the attorney's office; or
c) in those judicial districts that maintain in the courthouse assigned boxes for counsel to receive service, leaving a copy for the attorney in the attorney's box; or
d) sending a copy to an unrepresented juvenile by first class mail addressed to the juvenile's place of residence, detention, or placement.
C. Proof of service. All documents that are filed and served pursuant to this rule shall include a certificate of service.
Comment See Rule 155 for maintaining records in the clerk of courts' office.
Under paragraph (A)(2), the court must designate a court official to process motions and other matters for appropriate scheduling and disposition.
Under paragraph (B), the party filing a document is required to serve all parties.
This rule does not affect court orders, which are to be served upon each party's attorney and the juvenile, if unrepresented, by the clerk of courts as provided in Rule 156.
For service of petitions, see Rule 331.
Rule 346. Omnibus Motion for Relief.
Unless otherwise required in the interests of justice, all requests for relief shall be included in one omnibus motion filed prior to the adjudicatory hearing.
Comment Types of relief appropriate for the omnibus motion include the following requests:
(1) for continuance;
(2) for separate or joint adjudicatory hearings;
(3) for suppression of evidence;
(4) for psychiatric examination;
(5) to dismiss a petition;
(6) to disqualify a judge;
(7) for appointment of investigator; and
(8) for pre-adjudicatory hearing conference.
The omnibus motion rule is not intended to limit other types of motions, oral or written. The earliest feasible submissions and rulings on such motions are encouraged.
For instances when the court must recuse itself, see Code of Judicial Conduct. Recusal is necessary when there is bias, prejudice, improper influence, or appearance of impropriety. Commonwealth v. Benchoff, 700 A.2d 1289 (Pa. Super. Ct. 1999).
Rule 347. Time for Omnibus Motion and Service.
A. Time. An omnibus motion shall be made as soon as practical but can be made at any time prior to the calling of the first witness at the adjudicatory hearing.
B. Service. If the omnibus motion is written, copies shall be served in accordance with Rule 345.
Comment For general requirements concerning the filing and service of motions and answers, see Rules 345.
Rule 348. Disposition of Omnibus Motions.
Unless otherwise provided in these rules, all omnibus motions shall be determined before the adjudicatory hearing. The court for the determination of omnibus motions, if necessary shall postpone the adjudicatory hearing.
Rule 350. Suppression of Evidence.
A. Motion by attorney or juvenile, if unrepresented. The juvenile's attorney or the juvenile, if unrepresented, may make a motion to the court to suppress evidence. The motion shall state specifically and with particularity the evidence sought to be suppressed, the grounds for suppression, and the supporting facts and events.
B. Timeliness. Unless the opportunity did not previously exist, or the interests of justice otherwise require, a motion to suppress shall be contained in the omnibus motion set forth in Rule 346. If a timely motion is not made, the issue of suppression of such evidence shall be deemed to be waived.
C. Findings. At the conclusion of the hearing, the court shall enter on the record a statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of the juvenile's rights, or in violation of these rules or any statute, and shall make an order granting or denying the relief sought.
D. Decision final and binding. If the court determines that the evidence shall not be suppressed, such determination shall be final, conclusive, and binding at the adjudicatory hearing, except upon a showing of evidence that was unavailable, but nothing in this rule shall prevent a juvenile from opposing such evidence at the adjudicatory hearing upon any ground except its suppressibility.
Comment This rule is designed to provide one single procedure for the suppression of evidence alleged to have been obtained in violation of the juvenile's rights. This rule extends its coverage to specific provisions in violation of the fourth, fifth, and sixth amendments of the Constitution of the United States and Article I, § 9 of the Pennsylvania Constitution. In re R.H., 791 A.2d 331 (Pa. 2002), Com v. Scott, 369 A.2d 809 (Pa. Super. Ct. 1976); Appeal of Cowell, 364 A.2d 718 (Pa. Super. Ct. 1976). See In re Gault, 387 U.S. 1 (1967).
In all cases, the burden of production is upon the Commonwealth. See In re Stoutzenberger, 344 A.2d 668 (Pa. Super. Ct. 1975), citing Commonwealth ex rel. Butler v. Rundle, 239 A.2d 426 (Pa. 1968); In re Betrand, 303 A.2d 486 (Pa. 1973).
Under paragraph (B), if a motion to suppress is not timely made, it is deemed waived. In re Cox, 402 A.2d 534 (Pa. Super. Ct. 1979). See Commonwealth v. Spriggs, 344 A.2d 880 (Pa. 1975); Commonwealth v. Wylie, 344 A.2d 491 (Pa. 1975).
With regard to the recording and transcribing of the evidence adduced at the hearing, see Rule 117. All motions to suppress are to comply with the provisions of Rules 344 and 345.
Rule 351. Adjudicatory Hearing on Separate Petitions.
A. Standards. An adjudicatory hearing may be held for:
1) offenses charged in separate petitions if the evidence of each of the offenses would be admissible in a separate adjudicatory hearing for the other;
2) offenses charged in separate petitions if the offenses charged are based on the same act or transaction;
3) juveniles charged in separate petitions if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions.
B. Procedure.
1) Oral or written notice that offenses or juveniles charged in separate petitions will be heard together shall be given to the juvenile's attorney or the juvenile, if unrepresented, prior to the adjudicatory hearing. If the notice is written, a copy of the notice shall be filed with the clerk of courts.
2) When notice has not been given under paragraph (B)(1), any party may move to consolidate the adjudicatory hearing for separate petitions. The motion shall ordinarily be included in an omnibus motion.
Comment Under the scheme set forth in this rule, it can be assumed that offenses charged in the same petition will be heard together. See Rule 332. Similarly, offenses or juveniles will be heard together if notice is given pursuant to (B)(1) of this rule. In these situations, the court may order separate hearings either when the standards in paragraph (A) are not met or pursuant to Rule 352. Absent notice pursuant to paragraph (B)(1), a motion for consolidation is required under paragraph (B)(2). A party may oppose such a motion either on the ground that the standards in paragraph (A) are not met, or pursuant to Rule 352.
Paragraph (A)(1) is based upon statutory and case law that, ordinarily, if all offenses arising from the same episode or transaction are not heard together, subsequent prosecution on any such offense not already heard may be barred. Matter of Huff, 582 A.2d 1093 (Pa. Super. Ct. 1990), citing Commonwealth v. Campana, 304 A.2d 432, vacated and remanded, 414 U.S. 808 (1973), addendum opinion on remand, 314 A.2d 854 (Pa. 1974).
Rule 352. Separate Adjudicatory Hearings for Offenses or Juveniles.
The court may order separate adjudicatory hearings for offenses or juveniles, or provide other appropriate relief, if it appears that offenses or juveniles being heard together may prejudice any party.
Comment This rule provides the procedure whereby the court may, because of prejudice to a party, order separate adjudicatory hearings for offenses or juveniles that otherwise would be properly heard together under Rule 351. A juvenile may also request separate adjudicatory hearings for offenses or juveniles on the ground that hearing them together would be improper under Rule 351.
Under Rule 346 (Omnibus Motion for Relief), any request for separate adjudicatory hearings should ordinarily be made in an omnibus motion or it is considered waived.
Rule 353. Motion for Return of Property.
A. Return for lawful possession. A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he or she is entitled to its lawful possession. Such motion shall be filed in writing and served pursuant to Rule 345.
B. Hearing. The court hearing such motion shall receive evidence on any issue of fact necessary for its decision. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.
C. Joint motion. A motion to suppress evidence under Rule 350 may be joined with a motion under this rule.
Comment A motion for the return of property should not be confused with a motion for the suppression of evidence, governed by Rule 350. However, if the time and effect of a motion brought under the instant rule would be, in the view of the court hearing the motion, substantially the same as a motion for suppression of evidence, the court may dispose of the motion in accordance with Rule 350.
Nothing in this rule is intended to prohibit the court from directing a more appropriate court to hear these motions. For example, a judicial district may have a motions court or specially designed court that hears all motions, including juvenile cases.
Pursuant to Rule 100, only motions for return of property derived from juvenile delinquency cases are appropriate for the juvenile court.
PART D(2). ADJUDICATORY SUMMONS AND NOTICES PROCEDURES Rule 360. Summons and Notices.
A. Summons. The court shall issue a summons compelling the juvenile and the juvenile's guardian to appear for the adjudicatory hearing.
B. Notices. The court shall give notice of the adjudicatory hearing to:
1) the attorney for the Commonwealth;
2) the juvenile's attorney; and
3) the juvenile probation office.
C. Requirements. The general summons and notices procedures of Rule 114 shall be followed.
Comment Section 6335 of the Juvenile Act provides that the court shall direct the issuance of a summons to the juvenile, guardian, and any other persons as appears to the court to be proper and necessary parties to the proceedings. 42 Pa.C.S. § 6335.
The attorney for the Commonwealth or the juvenile probation officer should notify the victim of the hearing. See Victim's Bill of Rights, 18 P. S. § 11.201.
Other persons may be subpoenaed to appear for the hearing. See 42 Pa.C.S. § 6333.
Rule 362. Requirements of the Summons.
The summons shall:
1) be in writing;
2) set forth the date, time, and place of the adjudicatory hearing;
3) instruct the juvenile about the juvenile's right to counsel, and if the juvenile cannot afford counsel, the right to assigned counsel;
4) give a warning stating that the failure to appear for the hearing may result in arrest; and
5) include a copy of the juvenile petition.
Comment Section 6335(a) of the Juvenile Act requires a copy of the petition to accompany the summons. 42 Pa.C.S. § 6335(a).
Rule 363. Service of Summons and Notices.
A. Method of Service. Summons or notices shall be served:
1) in-person; or
2) by first-class mail.
B. Time of Service.
1) Juvenile detained. If the juvenile is detained, the summons or notices shall be served no less than seven days prior to the adjudicatory hearing.
2) Juvenile not detained. If the juvenile is not detained, the summons or notices shall be served no less than fourteen days prior to the adjudicatory hearing.
Comment Pursuant to Rule 360, the juvenile and the juvenile's guardian should be served a summons, and the attorney for the Commonwealth, the juvenile's attorney, and the juvenile probation officer should receive notices.
Rule 364. Failure to Appear on the Summons.
If any summoned person fails to appear for the adjudicatory hearing and the court is assured that sufficient notice was given, the court may issue a warrant of arrest.
PART E. CONSENT DECREE Rule 370. Consent Decree.
At any time after the filing of a petition and before the entry of an adjudication order, the court may, upon agreement of the attorney for the Commonwealth and the juvenile's attorney or the juvenile, if unrepresented, suspend the proceedings, and continue the juvenile under supervision in the juvenile's home, under terms and conditions negotiated with the juvenile probation office. The order of the court continuing the juvenile under supervision shall be known as a consent decree.
Comment See 42 Pa.C.S. § 6340(a).
A consent decree is a device for placing an allegedly delinquent juvenile under supervision of the juvenile probation office prior to, and as an alternative to, adjudication, thus avoiding potential stigma attached to an adjudication of delinquency. Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981).
Before placing the juvenile on a consent decree, the victim(s) of the offense should be consulted. See Victim's Bill of Rights, 18 P. S. § 11.201 et seq.
Rule 371. Objection to Consent Decree.
When the juvenile or the attorney for the Commonwealth objects to a consent decree, the court shall proceed to findings, adjudication, and disposition.
Comment A consent decree may not be used unless the attorney for the Commonwealth consents and the juvenile agrees to accept the conditions required by the court. If the attorney for the Commonwealth objects to a consent decree or the juvenile refuses to accept the conditions required by the court, the court should proceed to findings, adjudication, and disposition. In re Bosket, 590 A.2d 774 (Pa. Super. Ct. 1991). See also 42 Pa.C.S. § 6340(b).
See Chapter Four introduction for the stages of the juvenile delinquency process.
See also Victim's Bill of Rights, 18 P. S. § 11.201 et seq.
Rule 372. Consent Decree Hearing.
At the consent decree hearing, the court shall explain on the record or in writing the:
1) terms, conditions, and duration of the consent decree pursuant to Rule 373; and
2) consequences for violating the conditions of the consent decree, which include, if prior to discharge by the juvenile probation officer or expiration of the consent decree, a new petition is filed against the juvenile, or the juvenile otherwise fails to fulfill express terms and conditions of the decree, the petition under which the juvenile was continued under supervision may, in the discretion of the attorney for the Commonwealth following consultation with the juvenile probation officer, be reinstated and the juvenile held accountable as if the consent decree had never been entered.
Comment Under this rule, it is expected that the attorney for the Commonwealth should consult with the juvenile probation officer before revoking the consent decree. The consent decree should only be revoked if the juvenile fails to meet the conditions of the program or new charges have been filed against the juvenile.
If a juvenile violates the conditions of the consent decree, double jeopardy does not attach and bar subsequent prosecution. See Commonwealth v. Szebin, 785 A.2d 103 (Pa. Super. Ct. 2001). In Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981), the Supreme Court viewed a consent decree in the same fashion as Accelerated Rehabilitative Disposition. See also In re John W., 446 A.2d 621 (Pa. Super. Ct. 1982).
See also 42 Pa.C.S. § 6340.
Rule 373. Conditions of Consent Decree.
A. Terms and conditions. The court may place upon the juvenile any reasonable conditions that are consistent with the protection of the public interest. The conditions of the consent decree shall provide a balanced attention to the:
1) protection of the community;
2) juvenile's accountability for the offenses committed; and
3) development of the juvenile's competencies to enable the juvenile to become a responsible and productive member of the community.
B. Duration of consent decree. A consent decree shall remain in force for no more than six months as agreed upon unless the juvenile is discharged sooner upon motion. Upon motion, the court may:
1) discharge the juvenile at an earlier time; or
2) extend the time period not to exceed an additional six months.
Comment If the juvenile fails to accept the conditions required by the court pursuant to paragraph (A), the case should proceed to findings, adjudication, and disposition. See Comment to Rule 371.
Nothing in this rule is intended to prevent the juvenile probation officer from being the movant for consent decree. For Rules on Motions, see Rule 344.
Paragraph (B) departs from the Juvenile Act, 42 Pa.C.S. § 6340(c), in that an agreement for a consent decree of less than six months is allowed.
PART F. PRESERVATION OF TESTIMONY AND EVIDENCE Rule 380. Preservation of Testimony After Commencement of Proceedings.
A. By Court Order.
1) At any time after the commencement of proceedings, upon motion of any party, and after notice and hearing, the court may order the taking and preserving of the testimony of any witness who may be unavailable for the adjudicatory hearing or for any other proceeding, or when due to exceptional circumstances, it is in the interests of justice that the witness' testimony be preserved.
2) The court shall state on the record the grounds on which the order is based.
3) The court's order shall specify the time and place for the taking of the testimony, the manner in which the testimony shall be recorded and preserved, and the procedures for custody of the recorded testimony.
4) The testimony shall be taken in the presence of the court, the attorney for the Commonwealth, the juvenile, and the juvenile's attorney, unless otherwise ordered.
5) The court shall rule on the admissibility of the preserved testimony if it is offered into evidence at the adjudicatory hearing or other judicial proceeding.
B. By agreement of the parties.
1) At any time after the commencement of proceedings, the testimony of any witness may be taken and preserved upon the express written agreement of the attorney for the Commonwealth, the juvenile, and the juvenile's attorney.
2) The agreement shall specify the time and place for taking the testimony, the manner in which the testimony shall be recorded and preserved, and the procedures for custody of the recorded testimony.
3) The testimony shall be taken in the presence of the attorney for the Commonwealth, the juvenile, and the juvenile's attorney, unless they otherwise agree.
4) The agreement shall be filed with the clerk of courts pursuant to Rule 345(A).
5) The court shall rule on the admissibility of the preserved testimony if it is offered into evidence at the adjudicatory hearing or other judicial proceeding.
Comment This rule is intended to provide the means by which testimony may be preserved for use at a current or subsequent stage in the proceedings, which includes the taking of a deposition during the adjudicatory hearing to be used at a later stage of the adjudicatory hearing.
When testimony is to be preserved by video recording, see also Rule 381.
Commencement of proceedings includes any action after the submission of a written allegation. See Rule 200 (Commencement of Proceedings).
This rule does not address the admissibility of the preserved testimony. The court must decide all questions of admissibility. See the Pennsylvania Rules of Evidence. Also see, e.g., Judicial Code § 5917, 42 Pa.C.S. § 5917 (1982); Commonwealth v. Scarborough, 421 A.2d 147 (Pa. 1980); Commonwealth v. Stasko, 370 A.2d 350 (Pa. 1977).
''May be unavailable,'' as used in paragraph (A)(1), is intended to include situations in which the court has reason to believe that the witness will be unable to be present or to testify at the adjudicatory hearing or other proceedings, such as when the witness is dying, or will be out of the jurisdiction and therefore cannot be effectively served with a subpoena, or may become incompetent to testify for any legally sufficient reason.
Under paragraph (A)(4), the court should preside over the taking of testimony. The court, however, may order that testimony be taken and preserved without the court's presence when exigent circumstances exist or the location of the witness renders the court's presence impracticable. Furthermore, nothing in this rule is intended to preclude the juvenile's attorney, the juvenile, and the court from agreeing on the record that the court need not be present. Paragraph (B)(3) permits the attorney for the Commonwealth, the juvenile, and the juvenile's attorney to determine among themselves whether the court should be present during the taking of testimony. That determination should be made a part of the written agreement required by paragraph (B)(1).
Nothing in this rule is intended to preclude the juvenile from waiving his or her presence during the taking of testimony.
The means by which the testimony is recorded and preserved are within the discretion of the court under paragraph (A) and the parties under paragraph (B), and may include the use of electronic or photographic techniques such as videotape or digital video diskette. There are, however, additional procedural requirements for preservation of testimony by video recording mandated by Rule 381.
The party on whose motion testimony is taken should normally have custody of and be responsible for safeguarding the preserved testimony. That party should also promptly provide a copy of the preserved testimony to any other party. Additionally, this rule is not intended to conflict with the requirements of the Pennsylvania Rules of Judicial Administration. For reporting and transcripts by court-employed reporters, see the Pa.Rs.J.A. Nos. 5000.1--5000.13.
When testimony is taken under this rule, the proceeding should afford the parties full opportunity to examine and cross-examine the witness. Counsel should not reserve objections at the time of the adjudicatory hearing.
Paragraphs A(5) and B(5) are intended to guard against pre-adjudicatory hearing disclosure of potentially prejudicial matters.
For the definition of ''court,'' see Rule 110.
Rule 381. Preservation of Testimony by Video Recording.
A. When the testimony of a witness is taken and preserved pursuant to Rule 380 by means of video recording, the testimony shall be recorded simultaneously by a stenographer.
B. The following technical requirements shall be made part of the court order required by Rule 380(A) or the written agreement provided in Rule 380(B):
1) The video recording shall begin with a statement on camera that includes the:
a) operator's name and business address;
b) name and address of the operator's employer;
c) date, time, and place of the video recording;
d) caption of the case;
e) name of the witness;
f) party on whose behalf the witness is testifying; and
g) nature of the judicial proceedings for which the testimony is intended.
2) The court and all parties shall identify themselves on camera.
3) The witness shall be sworn on camera.
4) If the length of the testimony requires the use of more than one video recording, the end of each video recording and the beginning of each succeeding video recording shall be announced on camera.
5) At the conclusion of the witness' testimony, a statement shall be made on camera that the testimony is concluded. A statement shall also be made concerning the custody of the video recording(s).
6) Statements concerning stipulations, exhibits, or other pertinent matters may be made at any time on camera.
7) The video recording shall be timed by a digital clock on camera that continually shows the hour, minute, and second of the testimony.
8) All objections and the reasons for them shall be made on the record. When the court presides over the video recording of testimony, the court's rulings on objections shall also be made on the record.
9) When the court does not preside over the video recording of testimony, the video recording operator shall keep a log of each objection, referenced to the time each objection is made. All rulings on objections shall be made before the video recording is shown at any judicial proceeding.
10) The original video recording shall not be altered.
Comment This rule provides the basic technical requirements for taking and preserving testimony by video recording under Rule 380. The list of requirements is not intended to be exhaustive. Rather, it is recommended that all recording by video be carefully planned and executed, and that in addition to complying with the basic requirements, each court order or written agreement for the video recording of testimony be tailored to the nature of the case and the needs of the parties.
Generally, the camera should focus on the witness to the extent practicable.
Under paragraph (B)(9), the court may rule on objections by either reviewing pertinent sections of the video recording, aided by the video operator's log, or by reviewing the stenographic transcript required by paragraph (A).
Any editing procedure ordered by the court or agreed upon by the parties may be used as long as it comports with current technology and does not alter the original video recording. Paragraph (B)(10) is intended to insure preservation of the original video, thereby providing for those situations in which a dispute arises over editing procedures.
This rule authorizes the use of video recording devices only for the preservation of testimony under Rule 380. It is not intended to affect other rules governing recording devices.
Rule 384. (Reserved).
PART G. TRANSFER FOR CRIMINAL PROSECUTION Rule 390. Notice of Request for Transfer to Criminal Proceedings.
After a petition is filed but before the first scheduled adjudicatory hearing, any notice of a request for transfer to criminal proceedings pursuant to 42 Pa.C.S. § 6355 shall be filed and served on:
1) the juvenile;
2) the juvenile's guardian;
3) the juvenile's attorney; and
4) the juvenile probation office.
Comment The Juvenile Act gives the juvenile the opportunity to petition the court for transfer to criminal proceeding as reflected in this rule. See 42 Pa.C.S. § 6355(c). The court should use caution when a juvenile petitions the court for transfer to criminal proceedings. The court should inquire if the petition has been knowingly, intelligently, and voluntarily made.
The charges requested to be transferred must be classified as ''delinquent acts,'' pursuant to 42 Pa.C.S. § 6302 (definition of ''delinquent acts'') and must comply with the requirements as set forth in 42 Pa.C.S. § 6355 (transfer to criminal proceedings). Any offense excluded from the definition of ''delinquent acts,'' paragraph (2) of the definition of ''delinquent act'' in 42 Pa.C.S. § 6302, should originate in criminal proceedings and may be transferred to delinquency proceedings, if so determined by the court. See 42 Pa.C.S. § 6322 (Transfer from Criminal Proceedings). For juveniles charged in criminal proceedings, the Rules of Criminal Procedure are applicable. See also Rule 100 on Scope of Rules. Also, any juvenile previously found guilty in criminal proceedings, for any charge other than a summary offense, should be charged in criminal proceedings for all subsequent offenses. See paragraph (2)(v) of the definition of ''delinquent act'' in 42 Pa.C.S. § 6302 and 42 Pa.C.S. § 6355(d).
The court should conduct a transfer hearing no sooner than three days after the notice of request for transfer to criminal proceedings is served unless the time requirement is waived. See Rule 394(A).
Rule 391. Time Restrictions for Detention of Juveniles Scheduled for Transfer Hearing.
A. Generally. The detention requirements of Rules 240, 241, 242, and 243 shall be followed for juveniles scheduled for a transfer hearing except for the time restrictions provided in paragraph (B) of this rule.
B. Time Restrictions. If the transfer hearing is not held within ten days of the filing of the request for transfer to criminal proceedings, the juvenile shall be released except as provided in paragraphs (B)(1) and (B)(2).
1) A juvenile may be detained for an additional single period not to exceed ten days when the court determines that:
a) evidence material to the case is unavailable, including a psychological or psychiatric evaluation;
b) due diligence to obtain such evidence or evaluation has been exercised;
c) there are reasonable grounds to believe that such evidence or evaluation will be available at a later date; and
d) the detention of the juvenile would be warranted.
2) A juvenile may be detained for successive ten-day intervals if the result of delay is caused by the juvenile. The court shall state on the record if failure to hold the hearing resulted from delay caused by the juvenile. Delay caused by the juvenile shall include, but not be limited to:
a) delay caused by the unavailability of the juvenile or the juvenile's attorney;
b) delay caused by any continuance granted at the request of the juvenile or the juvenile's attorney; or
c) delay caused by the unavailability of a witness resulting from conduct by or on behalf of the juvenile.
Comment The filing of a request for transfer to criminal proceedings resets the ten-day clock for a hearing for the juvenile in detention. The transfer hearing must be held within ten days of the filing of a request for transfer to criminal proceedings, not ten days from the date of detention for the juvenile. This time requirement is different than the time requirement for the adjudicatory hearing under Rule 240(D).
Under Paragraph (B)(1), the case may be extended for only one single period of ten days. However, under paragraph (B)(2) when the juvenile causes delay, the case may be extended for successive ten-day intervals.
Rule 394. Transfer Hearing.
A. Scheduling. The court shall conduct a transfer hearing no sooner than three days after the notice of request for transfer to criminal proceedings is served unless this time requirement is waived.
B. Findings. At the hearing, the court shall determine whether:
1) the juvenile is fourteen years old or older at the time of the alleged delinquent act;
2) notice has been given pursuant to Rule 390;
3) there is a prima facie showing of evidence that the juvenile committed a felony delinquent act;
4) there are reasonable grounds to believe that transfer of the case for criminal prosecution will serve the public interest by considering all the relevant factors; and
5) there are reasonable grounds to believe that the juvenile is not committable to an institution for the mentally retarded or mentally ill.
Comment The transfer hearing ordinarily has two phases. The first phase of the transfer hearing is the ''prima facie phase.'' The court should determine if there is a prima facie showing of evidence that the juvenile committed a delinquent act and if an adult committed the offense, it would be considered a felony. If a prima facie showing of evidence is found, the court proceeds to the second phase, known as the ''public interest phase.'' During the ''public interest phase,'' the court should determine if the juvenile is amenable to treatment, supervision, and rehabilitation as a juvenile and what is in the public's interest.
In determining public interest, the court should balance the following factors: 1) the impact of the offense on the victim or victims; 2) the impact of the offense on the community; 3) the threat posed by the juvenile to the safety of the public or any individual; 4) the nature and circumstances of the offense allegedly committed by the juvenile; 5) the degree of the juvenile's culpability; 6) the adequacy and duration of dispositional alternatives available under the Juvenile Act and in the adult criminal justice system; and 7) whether the juvenile is amenable to treatment, supervision, or rehabilitation as a juvenile by considering the following factors: a) age; b) mental capacity; c) maturity; d) the degree of criminal sophistication exhibited by the juvenile; e) previous records, if any; f) the nature and extent of any prior delinquent history, including the success or failure of any previous attempt by the juvenile court to rehabilitate the juvenile; g) whether the juvenile can be rehabilitated prior to the expiration of the juvenile court jurisdiction; h) probation or institutional reports, if any; and 8) any other relevant factors.
The burden of establishing by a preponderance of evidence that the public interest is served by the transfer of the case to criminal court and that the juvenile is not amenable to treatment, supervision, and rehabilitation in the juvenile system rests with the Commonwealth unless: 1) a deadly weapon as defined in 18 Pa.C.S. § 2301 (relating to definitions) was used and the juvenile was fourteen years of age at the time of the offense; or the juvenile was fifteen years of age or older at the time of the offense and was previously adjudicated delinquent of a crime that would be considered a felony if committed by an adult; and 2) there is a prima facie case that the juvenile committed a delinquent act that, if committed by an adult, would be classified as rape, involuntary deviate sexual intercourse, aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) or (2) (relating to aggravated assault), robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii)(relating to robbery), robbery of motor vehicle, aggravated indecent assault, kidnapping, voluntary manslaughter, an attempt, conspiracy or solicitation to commit any of these crimes or an attempt to commit murder as specified in paragraph (2)(ii) of the definition of ''delinquent act'' in 42 Pa.C.S. § 6302. If the preceding criteria are met, then the burden of proof rests with the juvenile. See 42 Pa.C.S. § 6355.
If the court determines that the juvenile is amenable to treatment, supervision, and rehabilitation in the juvenile system and there are sufficient resources available to treat, rehabilitate, and supervise the juvenile at the present time, the court should proceed to an adjudicatory hearing under Rule 406 or accept an acknowledgment pursuant to Rule 407. If the court determines that the juvenile is not amenable to treatment, supervision, and rehabilitation in the juvenile system and the transfer of the juvenile to criminal proceedings would serve the public interest, an information should be filed and bail should be determined. See Rules 395 and 396.
For detention time requirements for juveniles scheduled for a transfer hearing, see Rule 391.
Rule 395. Procedure to Initiate Criminal Information.
Once a juvenile has been transferred to criminal proceedings, the case shall proceed pursuant to Pa.R.Crim.P. 565.
Comment The transfer hearing serves as the preliminary hearing, therefore, the attorney for the Commonwealth may file the criminal information after the issuance of the transfer order. See Pa.R.Crim.P. 565 for presentation of information without the preliminary hearing.
For any procedural questions concerning a juvenile whom has been transferred to criminal proceedings, see the Pennsylvania Rules of Criminal Procedure.
Rule 396. Bail.
If transfer to criminal proceedings is ordered at the conclusion of the transfer hearing, the juvenile court judge shall determine bail for the juvenile. The bail rules in the Pennsylvania Rules of Criminal Procedure shall apply.
Comment See Pa.Rs.Crim.P. 520 through 536.
If the juvenile cannot post bail, the judge should issue a commitment order so the juvenile may be detained in an adult prison.
CHAPTER 4. ADJUDICATORY HEARING
404. Prompt Adjudicatory Hearing.
406. Adjudicatory Hearing.
407. Acknowledgments.
408. Ruling on Offenses.
409. Adjudication of Delinquency. Under these rules and the Juvenile Act, 42 Pa.C.S. § 6301 et seq., the juvenile process is broken down into several stages once a petition has been filed. First, the court is to hold an adjudicatory hearing, governed by Rule 406 or receive an acknowledgment from the juvenile of the offenses, governed by Rule 407. Second, after hearing the evidence or receiving an acknowledgment, the court is to rule on the offenses pursuant to Rule 408, stating with particularity the gradings and counts of each offense. Next, after ruling on the offenses or entering its findings, the court is to determine if the juvenile is in need of treatment, supervision, or rehabilitation pursuant to Rule 409. Finally, if the court finds that the juvenile is in need of treatment, supervision, or rehabilitation, the court is to hold a dispositional hearing as provided for in Rule 512 and is to enter a dispositional order under Rule 515.
Rule 404. Prompt Adjudicatory Hearing.
A. Detained juvenile. If the juvenile is detained, an adjudicatory hearing shall be held within ten days of the filing of the petition. If the adjudicatory hearing is not held within ten days, the juvenile shall be released unless the exceptions of Rule 240(D) apply.
B. Non-detained juvenile. If the juvenile is not detained, the adjudicatory hearing shall be held within a reasonable time.
Rule 406. Adjudicatory Hearing.
A. Manner of hearing. The court shall conduct the adjudicatory hearing without a jury, in an informal but orderly manner. The court may permit closing summaries.
B. Recording. The adjudicatory hearing shall be recorded. The recording shall be transcribed:
1) at the request of the parties;
2) pursuant to a court order; or
3) when there is an appeal.
Comment Under paragraph (A), the juvenile does not have the right to trial by jury. McKeiver v. Pennsylvania, 403 U.S. 528 (1971).
The court may allow the attorney for the Commonwealth, the juvenile's attorney, and the juvenile, if unrepresented, in some or every case, to make closing summaries.
Rule 407. Acknowledgments.
A. Acknowledgments. At any time after a petition is filed, the juvenile may tender an acknowledgment of the facts, adjudication of delinquency, and/or disposition.
1) Agreements. If the juvenile, the attorney for the Commonwealth, and the juvenile probation officer agree with the terms of a tender of acknowledgment, the tender shall be presented to the court.
2) Order. If the court accepts a tender, an order of adjudication of delinquency and disposition may be entered.
3) Withdrawal of acknowledgment.
a) If the court does not accept the tender, the case shall proceed to the next stage of the proceedings as if no tender had been made.
b) An acknowledgment cannot be withdrawn after the court enters the disposition order.
B. Incriminating statements. An incriminating statement made by a juvenile in the discussions or conferences incident thereto an acknowledgment shall not be used against the juvenile over objection in any criminal proceeding or hearing under the Juvenile Act, 42 Pa.C.S. § 6301 et seq.
Comment Under paragraph (A)(3), if the disposition agreed upon by the juvenile, the attorney for the Commonwealth, and the juvenile probation officer is unavailable or the court does not agree with the terms of the tender, the case is to proceed as if no tender had been made.
Under paragraph (B), any acknowledgments made by the juvenile may not be used against the juvenile in any proceeding.
The court may allow the juvenile to acknowledge an adjudication of delinquency without an adjudicatory hearing if: 1) the acknowledgment of the charge(s) is in writing; 2) the juvenile has spoken with an attorney; 3) the court asks the juvenile if he or she understands what he or she is doing and if the juvenile understands the nature of the offenses; 4) the court asks the juvenile if he or she has any questions about acknowledging the facts or delinquency based upon the charges; 5) the court feels, upon talking with the juvenile, that he or she is making a knowing, intelligent and voluntary decision; 6) the court asks the guardians if they have talked to their child about acknowledging the facts or delinquency; 7) the court finds there is a factual and legal basis for the acknowledgment; and 8) the court feels the juvenile understands the disposition that could be imposed.
Rule 408. Ruling on Offenses.
A. Within seven days of hearing the evidence on the petition or accepting an acknowledgment under Rule 407, the court shall enter a finding by specifying which, if any, offenses, including gradings and counts thereof, alleged in the petition were committed by the juvenile.
B. If the court finds the juvenile did not commit the alleged delinquent acts, the court shall dismiss the charges and release the juvenile, if detained.
C. If the court finds that the juvenile committed any delinquent act, the court shall proceed as provided in Rule 409.
Rule 409. Adjudication of Delinquency.
A. Adjudicating the juvenile delinquent. Once the court has ruled on the offenses as provided in Rule 408, the court shall conduct a hearing to determine if the juvenile is in need of treatment, supervision, and rehabilitation.
1) If the court determines that the juvenile is not in need of treatment, supervision, and rehabilitation, jurisdiction shall be terminated and the juvenile shall be released, if detained.
2) If the court determines that the juvenile is in need of treatment, supervision, and rehabilitation, the court shall enter an order adjudicating the juvenile delinquent and proceed in determining a proper disposition under Rule 512.
B. Timing.
1) If the juvenile is in detention, the court shall hold the hearing and make its finding within twenty days of the ruling on the offenses under Rule 408.
2) If the juvenile is not in detention, the court shall hold the hearing and make its finding within sixty days of the ruling on the offenses under Rule 408.
C. Extending Time of Hearing by Agreement. The time restrictions under paragraphs (B)(1) and (B)(2) may be extended if there is an agreement by both parties.
Comment Under paragraph (A), absent evidence to the contrary, evidence of the commission of acts that constitute a felony is sufficient to sustain a finding that the juvenile is in need of treatment, supervision, and rehabilitation. See 42 Pa.C.S. § 6341(b).
For dispositional hearing procedures, see Chapter Five.
This rule addresses adjudicating the juvenile delinquent or releasing the juvenile from the court's jurisdiction. This stage is different from finding the juvenile committed a delinquent act under Rule 408.
CHAPTER 5. DISPOSITIONAL HEARING
PART A. SUMMONS AND NOTICES OF THE DISPOSITIONAL HEARING
500. Summons and Notices of the Dispositional Hearing.
PART B. DISPOSITIONAL HEARING AND AIDS
510. Prompt Dispositional Hearing.
512. Dispositional Hearing.
513. Aids in Disposition.
515. Dispositional Order.
516. Service of the Dispositional Order.
PART C. INTER-STATE TRANSFERS OF DISPOSITION
520. (Reserved).
521. (Reserved).
PART A. SUMMONS AND NOTICES OF THE DISPOSITIONAL HEARING Rule 500. Summons and Notices of the Dispositional Hearing.
A. Summons. The court shall issue a summons compelling the juvenile and the juvenile's guardian to appear for the dispositional hearing.
B. Notices. The court shall give notice of the dispositional hearing to:
1) the attorney for the Commonwealth;
2) the juvenile's attorney; and
3) the juvenile probation office.
C. Requirements. The general summons and notices procedures of Rule 114 shall be followed.
Comment Section 6335(a) of the Juvenile Act provides that the court shall direct the issuance of a summons to the juvenile, guardian, and any other persons as appears to the court to be proper and necessary parties to the proceedings. 42 Pa.C.S. § 6335(a).
The attorney for the Commonwealth or the juvenile probation officer should notify the victim of the hearing. See Victim's Bill of Rights, 18 P. S. § 11.201 et seq.
Other persons may be subpoenaed to appear for the hearing. See 42 Pa.C.S. § 6333.
PART B. DISPOSITIONAL HEARING AND AIDS Rule 510. Prompt Dispositional Hearing.
A. General rule. If the juvenile is detained, the dispositional hearing shall be held no later than twenty days after the adjudication of delinquency.
B. Continuances. The dispositional hearing may be continued, if necessary, for additional periods not to exceed twenty days each.
Comment Under paragraph (B), if there is a continuance, the court should review the juvenile's case every twenty days until there is a final dispositional order.
See 42 Pa.C.S. § 6341(b).
Rule 512. Dispositional Hearing.
A. Manner of hearing. The court shall conduct the dispositional hearing in an informal but orderly manner.
1) Evidence. The court shall receive all evidence helpful in determining the questions presented, including oral and written reports, and relied upon to the extent of its probative value even though not otherwise competent in the adjudicatory hearing.
2) Opportunity to be heard. Before deciding disposition, the court shall give the juvenile and the victim an opportunity to speak.
B. Recording. The dispositional hearing shall be recorded. The recording shall be transcribed:
1) at the request of the parties;
2) pursuant to a court order; or
3) when there is an appeal.
Comment Under paragraph (A)(2), for victim's right to be heard, see Victim's Bill of Rights, 18 P. S. § 11.201 et seq.
To the extent practicable, the judge or master that presided over the adjudicatory hearing for a juvenile should preside over the dispositional hearing for the same juvenile.
Rule 513. Aids in Disposition.
A. Social Study. The court may order the preparation of a social study in any case in determining disposition.
B. Examinations. The court may order the juvenile to undergo psychological, psychiatric, drug and alcohol, or any other examination, as it deems appropriate to aid in the decision for disposition.
C. Victim-Impact Statement. The victim may submit a victim-impact statement to the court. If the victim has submitted a victim-impact statement, the court shall accept and consider the victim-impact statement in determining disposition.
Comment Section 6341(e) of the Juvenile Act requires the court to receive reports and other evidence bearing on the disposition or need of treatment, supervision, and rehabilitation. In re McDonough, 430 A.2d 308 (Pa. Super. Ct. 1981).
Paragraph (C) addresses a statement submitted by the victim to the court. For the victim's opportunity to be heard, see Rule 512(A)(2). See also Victim's Bill of Rights, 18 P. S. § 11.201 et seq.
Rule 515. Dispositional Order.
A. Generally. When the court enters a disposition, the court shall issue a written order including:
1) the terms and conditions of the disposition;
2) the name of any agency or institution that the court is ordering to provide care, treatment, supervision, or rehabilitation of the juvenile;
3) the date of the order; and
4) the signature and printed name of the judge entering the order.
B. Restitution. If restitution is ordered in a case, the dispositional order shall include:
1) a specific amount of restitution to be paid by the juvenile;
2) to whom the restitution is to be paid; and
3) a payment schedule, if so determined by the court.
C. Guardian participation. The court shall include any obligation in its dispositional order imposed upon the guardian.
Comment See 23 Pa.C.S. § 5503 and 42 Pa.C.S. § 6310.
Dispositional orders should comport in substantial form and content to the Juvenile Court Judges' Commission model orders to receive funding under the federal Adoption and Safe Families Act (ASFA) of 1997 (P. L. 105-89). The model forms are also in compliance with Title IV-B and Title IV-E of the Social Security Act. For model orders, see http://www.jcjc.state.pa.us or http://www.dpw.state.pa.us or request a copy on diskette directly from the Juvenile Court Judges' Commission, Room 401, Finance Building, Harrisburg, PA 17120.
Rule 516. Service of the Dispositional Order.
Upon entry of the disposition, the court shall issue a dispositional order and the order shall be served promptly upon:
1) the juvenile;
2) the juvenile's guardian;
3) the juvenile's attorney;
4) the attorney for the Commonwealth;
5) the juvenile probation officer;
6) any agency directed to provide treatment; and
7) any other person as ordered by the court.
PART C. INTER-STATE TRANSFERS
OF DISPOSITION520. (Reserved).
521. (Reserved).
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