THE COURTS
Title 234--RULES
OF CRIMINAL PROCEDURE
[234 PA. CODE CHS. 1, 2, 4 AND 5]
Coverage: Issuing Warrants; Preliminary Arraignment and Summary Trial; Arrests Without Warrant and Release; and Setting and Accepting Bail
[34 Pa.B. 4412] The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania adopt new Pa.R.Crim.P. 117 (Coverage: Issuing Warrants; Preliminary Arraignments and Summary Trials; and Setting and Accepting Bail),1 make correlative amendments to Pa.Rs.Crim.P. 131, 132, 431, 441, 509, 519, 525, and 535, and approve the correlative revision of the Comment to Pa.R.Crim.P 203. This supplemental proposal modifies the original proposal published in 33 Pa.B. 5607 (11/15/03) and in the Atlantic Reporter advanced sheets at 833 A.2d (11/21/03). This supplemental proposal resulted from the Committee's further review of the proposed rule changes in response to the extensive correspondence received after publication of our original explanatory Report addressing the continuous availability of issuing authorities by, inter alia, requiring the president judge of each judicial district to ensure sufficient availability of issuing authorities to provide the services required by the Criminal Rules. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.
The following explanatory Supplemental Report highlights the Committee's considerations in formulating this supplemental proposal. Please note that the Committee's Supplemental Report 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 Supplemental Report. Additions are shown in bold; deletions are in bold and brackets.
We request that interested persons submit suggestions, comments, or objections concerning this proposal in writing to the Committee through counsel,
Anne T. Panfil, Chief Staff Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
5035 Ritter Road, Suite 100
Mechanicsburg, PA 17055
fax: (717) 795-2106
e-mail: criminal.rules@pacourts.usno later than Monday, September 20, 2004.
By the Criminal Procedural Rules Committee
JOHN J. DRISCOLL,
Chair
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES
PART A. Business of the Courts Rule 117. Coverage: Issuing Warrants; Preliminary Arraignments and Summary Trials; and Setting and Accepting Bail.
(A) The president judge of each judicial district shall ensure sufficient availability of issuing authorities to provide the services required by the Rules of Criminal Procedure as follows:
(1) continuous coverage for the issuance of search warrants pursuant to Rule 203 and arrest warrants pursuant to Rule 513;
(2) coverage using one or a combination of the systems of coverage set forth in paragraph (B) to: (a) conduct summary trials or set collateral in summary cases following arrests with a warrant issued pursuant to Rule 430(A) as provided in Rule 431(B)(3) and following arrests without a warrant as provided in Rule 441(C);
(b) conduct preliminary arraignments without unnecessary delay whenever a warrant of arrest is executed within the judicial district pursuant to Rule 516;
(c) set bail without unnecessary delay whenever an out-of-county warrant of arrest is executed within the judicial district pursuant to Rule 517(A);
(d) accept complaints and conduct preliminary arraignments without unnecessary delay whenever a case is initiated by an arrest without warrant pursuant to Rule 519(A)(1); and
(3) coverage during normal business hours for all other business.
(B) The president judge, taking into consideration the rights of the defendant and the judicial district's resources and coverage needs, by local rule promulgated pursuant to Rule 105, shall establish one or a combination of the following systems of coverage to provide the services enumerated in paragraph (A)(2):
(1) a traditional on-call system providing continuous coverage;
(2) an ''after-hours court'' or a ''night court'' staffed by an on-duty issuing authority and staff;
(3) a regional on-call system; or
(4) a schedule of specified times for after-hours coverage when the ''duty'' issuing authority will be available to conduct business.
(C) The president judge of each judicial district, by local rule promulgated pursuant to Rule 105, shall ensure that coverage is provided pursuant to Rule 520(B) to admit defendants to bail on any day and at any time in any case pending in any magisterial district within the judicial district.
Comment By this rule, the Supreme Court is clarifying the responsibility of president judges in supervising their respective judicial districts to ensure compliance with the statewide Rules of Criminal Procedure to prevent the violation of the rights of defendants caused by the lack of availability of the issuing authority. See also Rule 116 (General Supervisory Powers of President Judge) and Rule 131 (Location of Proceedings Before Issuing Authority).
Paragraph (A), derived from former Rule 132(A) (Continuous Availability), clarifies that it is the president judge's responsibility to make sure that there are issuing authorities available within his or her judicial district (1) on a continuous basis to issue search and arrest warrants, paragraph (A)(1); (2) pursuant to one or a combination of the systems of coverage enumerated in paragraph (B) to conduct summary trials and preliminary arraignments, and perform related duties, paragraph (A)(2); and (3) during normal business hours to conduct all other business of the minor judiciary, paragraph (A)(3). It is expected that the president judge will continue the established procedures in the judicial district or establish new procedures to ensure sufficient availability of issuing authorities consistent with this paragraph.
By providing the alternate systems of coverage in paragraph (B), this rule recognizes the differences in the geography and judicial resources the judicial districts.
An issuing authority is ''available'' pursuant to paragraph (A) when he or she is able to communicate in person or by using advanced communication technology (''ACT'') with the person requesting services pursuant to this rule. See Rule 103 for the definition of ACT. Concerning the use of ACT, see Rule 118 (Use of Two-Way Simultaneous Audio-Visual Communication in Criminal Proceedings). See also Rules 203, 513, 518, and 540 providing for the use of ACT to request and obtain warrants and conduct preliminary arraignments.
Nothing in this rule limits an issuing authority from exercising sound judicial discretion, within the parameters established by the president judge pursuant to paragraph (B), in deciding how to respond to a request for services outside normal business hours. See, e.g., Rule 203(E) that requires, when a search warrant is being requested for a nighttime search, that the affidavits show reasonable cause for such nighttime search; Rule 509(1) and (2) that authorize the use of summonses instead of warrants in certain court cases; and Rule 519(B) that requires the police officer to release a defendant arrested without a warrant in certain specified court cases.
In determining which system of coverage to elect, the president judge must consider the rights of the defendant, see, e.g. Commonwealth v. Duncan, 525 A.2d 1177 (Pa. 1987), and the judicial district's resources and coverage needs, as well as the obligations of the police and attorney for the Commonwealth to ensure the defendant is brought before an issuing authority without unnecessary delay as required by law, see, e.g., Rules 431, 441, 516, 517, and 519. See also Commonwealth v. Perez, A.2d (Pa. 2004).
The proceedings enumerated in paragraph (A)(2) include (1) setting bail before verdict pursuant to Rule 520(A) and Rule 540, and either admitting the defendant to bail or committing the defendant to jail, and (2) determining probable cause whenever a defendant is arrested without a warrant pursuant to Rule 540(C).
Pursuant to paragraph (C), the president judge also is responsible for making sure there is an issuing authority or other designated official available within the judicial district on a continuous basis to accept bail pursuant to Rule 520(B). The president judge, by local rule, may continue established procedures or establish new procedures for the after-hours acceptance of deposits of bail by an issuing authority, a representative of the office of the clerk of courts, or such other individual designated by the president judge. See Rule 535(A). Given the complexities of posting real estate to satisfy a monetary condition of release, posting of real estate may not be feasible outside normal business hours.
When the president judge designates another official to accept bail deposits, that official's authority is limited under this rule to accepting the bail deposit, and under Rule 525 to releasing the defendant upon execution of the bail bond. Pursuant to Rule 535(A), the official is authorized only to have the defendant execute the bail bond and to deliver the bail deposit and bail bond to the issuing authority or clerk of courts.
The local rule requirements in paragraphs (B) and (C) (1) ensure there is adequate notice of (a) the system of coverage, thereby providing predictability in the issuing authority's duty schedule, and (b) the official authorized to accept bail, (2) promote the efficient administration of justice, and (3) provide a means for the Supreme Court to monitor the times and manner of coverage in each judicial district.
The local rules promulgated pursuant to this rule should include other relevant information, such as what are the normal business hours of operation or any special locations designated by the president judge to conduct business, that will assist the defendants, defense counsel, attorneys for the Commonwealth, police, and members of the public.
Concerning other requirements for continuous coverage by issuing authorities in Protection from Abuse Act cases, see 23 Pa.C.S. § 6110 and Pa.R.C.P.D.J. 1203.
Official Note: Former Rule 117 adopted September 20, 2002, effective January 1, 2003; renumbered Rule 118 , 2004, effective , 2004. New Rule 117 adopted , 2004, effective , 2004.
Committee Explanatory Reports:
Report explaining new Rule 117 published at 33 Pa.B. 5613 (November 12, 2003). Supplemental Report explaining the post-publication changes published at 34 Pa.B. 4421 (August 14, 2004).
Rule [117] 118. Court Fees Prohibited For Two-Way Simultaneous Audio-Visual Communication.
* * * * * Official Note: New Rule 117 adopted September 20, 2002, effective January 1, 2003; renumbered Rule 118 , 2004, effective , 2004.
Committee Explanatory Reports:
* * * * * Report explaining the renumbering of Rule 117 as Rule 118 published at 33 Pa.B. 5613 (November 12, 2003). Supplemental Report explaining the post-publication changes published at 34 Pa.B. 4421 (August 14, 2004).
Rule [118] 119. Use of Two-Way Simultaneous Audio-Visual Communication in Criminal Proceedings.
* * * * *
Comment * * * * * Nothing in this rule is intended to limit any right of a defendant to waive his or her presence at a criminal proceeding in the same manner as the defendant may waive other rights. See, e.g., Rule 602 Comment. Negotiated guilty pleas when the defendant has agreed to the sentence and probation revocation hearings are examples of hearings in which the defendant's consent to proceed using two-way simultaneous audio-visual communication would be required. Hearings on post-sentence motions, bail hearings, bench warrant hearings, extradition hearings, and Gagnon I hearings are examples of proceedings that may be conducted using two-way simultaneous audio-visual communication without the defendant's consent. It is expected the court or issuing authority would conduct a colloquy for the defendant's consent when the defendant's constitutional right to be physically present is implicated.
* * * * * Official Note: New Rule 118 adopted August 7, 2003, effective September 1, 2003; renumbered Rule 119 and Comment revised , 2004, effective , 2004.
Committee Explanatory Reports:
* * * * * Report explaining the renumbering of Rule 118 as Rule 119 published at 33 Pa.B. 5613 (November 12, 2003). Supplemental Report explaining the revision of the second paragraph of the Comment published at 34 Pa.B. 4421 (August 14, 2004).
PART C. Venue, Location, and Recording of Proceedings Before Issuing Authority Rule 131. Location of Proceedings Before Issuing Authority.
(A) An issuing authority within the magisterial district for which he or she is elected or appointed shall have jurisdiction and authority [at all times] to receive complaints, issue warrants, hold preliminary arraignments, set and receive bail, issue commitments to jail, and hold hearings and summary trials.
* * * * *
Comment * * * * * Paragraph (B) of this rule is intended to facilitate compliance with the requirement that defendants be represented by counsel at the preliminary hearing. Coleman v. Alabama, 399 U.S. 1[, 90 S.Ct. 1999] (1970).
* * * * * Official Note: Formerly Rule 156, paragraph (a) adopted January 16, 1970, effective immediately; paragraph (a) amended and paragraph (b) adopted November 22, 1971, effective immediately; renumbered Rule 22 September 18, 1973, effective January 1, 1974; renumbered Rule 131 and amended March 1, 2000, effective April 1, 2001; amended March 12, 2002, effective July 1, 2002; amended May 10, 2002, effective September 1, 2002; amended , 2004, effective , 2004.
Committee Explanatory Reports:
* * * * * Report explaining the proposed deletion in paragraph (A) of ''at all times'' published at 33 Pa.B. 5613 (November 12, 2003.) Supplemental Report explaining the post-publication changes published at 34 Pa.B. 4421 (August 14, 2004).
Rule 132. [Continuous Availability and] Temporary Assignment of Issuing Authorities.
[(A) Continuous Availability
(1) The president judge of each judicial district shall be responsible for insuring the availability at all times within the judicial district of at least one issuing authority.
(2) The issuing authority assigned to be on duty after business hours shall set bail as provided in Chapter 5 Part C, and shall accept deposits of bail in any case pending in any magisterial district within the judicial district.
(B) Temporary Assignment
(1)] (A) The president judge may assign temporarily the issuing authority of any magisterial district to serve another magisterial district whenever such assignment is needed:
[(a)] (1) to satisfy the requirements of [paragraph (A)(1)] Rule 117;
[(b)] (2) * * *
[(c)] (3) * * *
[(d)] (4) * * *
* * * * * [(2)] (B) * * *
[(3)] (C) A motion may be filed requesting a temporary assignment under [paragraph (B)(1)] this rule on the ground that the assignment is needed to insure fair and impartial proceedings. Reasonable notice and opportunity to respond shall be provided to the parties.
[(4)] (D) A motion shall be filed requesting a temporary assignment under paragraph [(B)(1)(c)] (A)(3) whenever the attorney for the Commonwealth elects to proceed under Rule 544(B) following the refiling of a complaint.
Comment [This rule is intended to impose the responsibility on the president judge to prevent the violation of the rights of defendants caused by the lack of availability of the issuing authority.
Paragraph (A)(2) requires an issuing authority on duty after business hours to set bail, as provided by law, and to accept deposits of bail in any case pending in any magisterial district within the judicial district, so that a ''defendant may be admitted to bail on any date and at any time.'' Rule 520(B).
Nothing in this rule is intended to preclude judicial districts from continuing established procedures or establishing new procedures for the after-hours acceptance of deposits of bail by a representative of the clerk of courts' office.]
The provisions of former paragraph (A) (Continuous Availability) were incorporated into new Rule 117 in 2004.
Paragraphs [(B)(1)(b)] (A)(2) and [(3)] (C) make explicit the authority of president judges to assign issuing authorities when necessary to insure fair and impartial proceedings, and to provide a procedure for a party to request such an assignment. Temporary assignment in this situation is intended to cover what might otherwise be referred to as ''change of venue'' at the district justice level. See, e.g., Sufrich v. Commonwealth, 447 A.2d 1124 (Pa. Cmwlth. 1982).
The motion procedure of paragraph [(B)(3)] (C) is intended to apply when a party requests temporary assignment to insure fair and impartial proceedings. The president judge may, of course, order a response and schedule a hearing with regard to such a motion. However, this paragraph is not intended to require ''a formal hearing . . . beyond the narrow context of a motion for temporary assignment of issuing authority to insure fair and impartial proceedings predicated upon allegations which impugn the character or competence of the assigned issuing authority and which seek the recusal of the assigned issuing authority.'' See Commonwealth v. Allem, 532 A.2d 845 (Pa. Super. 1987) (filing and service of the written motion and answer, and allowance of oral argument were more than adequate to meet the rule's requirements).
Paragraphs [(B)(1)(c)] (A)(3) and [(4)] (D) govern those situations in which the attorney for the Commonwealth, after refiling the complaint following the withdrawal or dismissal of any criminal charges at, or prior to, a preliminary hearing, determines that the preliminary hearing should be conducted by a different issuing authority. See also Rule 544 (Reinstituting Charges Following Withdrawal or Dismissal). Under Rule 544, the president judge may designate another judge within the judicial district to handle reassignments.
* * * * * Official Note: Formerly Rule 152, adopted January 16, 1970, effective immediately; amended and renumbered Rule 23 September 18, 1973, effective January 1, 1974; amended October 21, 1983, effective January 1, 1984; amended February 27, 1995, effective July 1, 1995; amended October 8, 1999, effective January 1, 2000; renumbered Rule 132 and amended March 1, 2000, effective April 1, 2001; amended , 2004, effective , 2004.
Committee Explanatory Reports:
* * * * * Report explaining the proposed changes to the rule correlative to the changes in proposed new Rule 117 published at 33 Pa.B. 5613 (November 12, 2003.) Supplemental Report explaining the post-publication changes published at 34 Pa.B. 4421 (August 14, 2004).
CHAPTER 2. INVESTIGATIONS
PART A. Search Warrant Rule 203. Requirements for Issuance.
* * * * *
Comment * * * * * Paragraph (B) does not preclude oral testimony before the issuing authority, but it requires that such testimony be reduced to an affidavit prior to issuance of a warrant. All affidavits in support of an application for a search warrant must be sworn to before the issuing authority prior to the issuance of the warrant. ''Sworn'' includes ''affirmed.'' See Rule 103. The language ''sworn to before the issuing authority'' contemplates, when advanced communication technology is used, that the affiant would not be in the physical presence of the issuing authority. See paragraph (C).
Paragraph (D) changes the procedure discussed in Commonwealth v. Crawley, 223 A.2d 885 (Pa. Super. 1966), aff'd per curiam 247 A.2d 226 (Pa. 1968). See Commonwealth v. Milliken, 300 A.2d 78 (Pa. 1973).
Ordinarily, a law enforcement officer requesting a search warrant should make the request during the normal business hours of the issuing authority. When circumstances necessitate obtaining a search warrant outside normal business hours, the law enforcement officer must contact the proper issuing authority to determine when the issuing authority will be available to issue the search warrant. See Rule 117 (Coverage: Issuing Warrants; Preliminary Arraignments and Summary Trials; and Setting and Accepting Bail).
* * * * * Official Note: Rule 2003 adopted March 28, 1973, effective for warrants issued 60 days hence; renumbered Rule 203 and amended March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; Comment revised , 2004, effective , 2004.
Committee Explanatory Reports:
* * * * * Report explaining the proposed changes to the rule correlative to the changes in proposed new Rule 117 published at 33 Pa.B. 5613 (November 12, 2003.) Supplemental Report explaining the post-publication changes published at 34 Pa.B. 4421 (August 14, 2004).
CHAPTER 4. PROCEDURES IN SUMMARY CASES
PART D. Arrest Procedures In Summary Cases
PART D(1). Arrests With a Warrant Rule 430. Issuance of [Arrest] Warrant.
(A) ARREST WARRANTS INITIATING PROCEEDINGS
A warrant for the arrest of the defendant shall be issued when:
[(1) the defendant fails to respond to a citation or summons that was served upon the defendant personally or by certified mail return receipt requested;
(2)] (1) the citation or summons is returned undelivered; or
[(3)] (2) * * *
[(4) the defendant has failed to appear for the execution of sentence as required in Rule 454(E)(3).]
(B) BENCH WARRANTS
(1) A bench warrant shall be issued when the defendant fails to respond to a citation or summons that was served upon the defendant personally or by certified mail return receipt requested; or
[(B)] (2) A bench warrant [for the arrest of the defendant] may be issued when a defendant has entered a not guilty plea and fails to appear for the summary trial, if the issuing authority determines, pursuant to Rule 455(A), that the trial should not be conducted in the defendant's absence.
[(C)] (3) A bench warrant [for the arrest of the defendant] may be issued when:
[(1)] (a) * * *
[(2)] (b) * * *
[(3)] (c) * * *
[(D)] (4) No warrant shall issue under paragraph [(C)] (B)(3) unless the defendant has been given notice in person or by first class mail that failure to pay the amount due or to appear for a hearing may result in the issuance of [an arrest] a bench warrant, and the defendant has not responded to this notice within 10 days. Notice by first class mail shall be considered complete upon mailing to the defendant's last known address.
Comment Personal service of a citation under paragraph [(A)] (B)(1) is intended to include the issuing of a citation to a defendant as provided in Rule 400(A) and the rules of Chapter 4, Part B(1).
When the defendant is under 18 years of age, and the defendant has failed to respond to the citation, the issuing authority must issue a summons as provided in Rule 403(B)(4)(a). If the juvenile fails to respond to the summons, the issuing authority should issue [an arrest] a warrant as provided in either paragraph (A)(1) [and (2)] or (B)(1).
[An arrest] A bench warrant may not be issued under paragraph [(A)] (B)(1) when a defendant fails to respond to a citation or summons that was served by first class mail. See Rule 451.
[Rule 454 provides that the issuing authority is to direct any defendant who is sentenced to a term of imprisonment to appear for the execution of sentence on a date certain following the expiration of the 30-day stay required by Rule 461. Paragraph (A)(1)(d) was added in 2003 to make it clear that an issuing authority should issue a warrant for the arrest of any defendant who fails to appear for the execution of sentence.]
Ordinarily, pursuant to Rule 455, the issuing authority must conduct a summary trial in the defendant's absence. However, if the issuing authority determines that there is a likelihood that the sentence will include imprisonment or that there is other good cause not to conduct the summary trial, the issuing authority may issue a bench warrant for the arrest of the defendant pursuant to paragraph (B)(2) in order to bring the defendant before the issuing authority for the summary trial.
The [arrest] bench warrant issued under paragraph [(C)] (B)(3) should state the amount required to satisfy the sentence.
When a defendant is arrested pursuant to paragraph [(C)] (B)(3), the issuing authority must conduct a hearing to determine whether the defendant is able to pay the amount of restitution, fine, and costs that is due. See Rule 456.
If the defendant is under 18 years of age and has not paid the fine and costs, the issuing authority must issue the notice required by paragraph [(D)] (B)(4) to the defendant and the defendant's parents, guardian, or other custodian informing the defendant and defendant's parents, guardian, or other custodian that, if payment is not received or the defendant does not appear within the 10-day time period, the issuing authority will certify notice of the failure to pay to the court of common pleas as required by the Juvenile Act, 42 Pa.C.S. § 6302, definition of ''delinquent act,'' paragraph (2)(iv). Thereafter, the case will proceed pursuant to the Juvenile Act instead of these rules.
* * * * * Official Note: Rule 75 adopted July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; amended January 31, 1991, effective July 1, 1991; amended April 18, 1997, effective July 1, 1997; amended October 1, 1997, effective October 1, 1998; amended July 2, 1999, effective August 1, 1999; renumbered Rule 430 and amended March 1, 2000, effective April 1, 2001; amended February 28, 2003, effective July 1, 2003; Comment revised August 7, 2003, effective July 1, 2004; amended , 2004, effective , 2004.
Committee Explanatory Reports:
* * * * * Report explaining proposed new Rule 117 published at 33 Pa.B. 5613 (November 12, 2003.) Supplemental Report explaining the proposed changes distinguishing between warrants that initiate proceedings and bench warrants in summary cases published at 34 Pa.B. 4421 (August 14, 2004).
Rule 431. Procedure When Defendant Arrested With Warrant.
(A) [A] When a warrant of arrest is issued for a defendant in a summary case, the warrant:
(1) shall be executed by a police officer as defined in Rule 103[.] ; and
(2) shall be executed only between the hours of 6 a.m. and 10 p.m., unless the time period is extended by the president judge by local rule enacted pursuant to Rule 105, or when the proper issuing authority determines extraordinary circumstances exist that necessitate the execution of the warrant at another time.
(B) Arrest Warrants Initiating Proceedings
(1) When [a] an arrest warrant [of arrest] is executed, the police officer shall either:
[(1)] (a) * * *
[(2)] (b) * * *
[(3) accept from the defendant the amount of restitution, fine, and costs due as specified in the warrant if the warrant is for collection of restitution, fine, and costs after a guilty plea or conviction;] or
[(4)] (c) if the defendant is unable to pay, cause the defendant to be taken without unnecessary delay before the proper issuing authority.
[(C)] (2) When the police officer accepts restitution, fine, and costs, or collateral under paragraphs (B)(1) [(2), or (3),] (a) or (b) the officer shall issue a receipt to the defendant setting forth the amount of restitution, fine, and costs, or collateral received and return a copy of the receipt, signed by the defendant and the police officer, to the proper issuing authority.
[(D)] (3) When the defendant is taken before the issuing authority under paragraph (B)[(4)] (1)(c),
[(1)] (a) * * *
[(2)] (b) * * *
[(a)] (i) * * *
[(b)] (ii) the defendant's criminal record must be ascertained prior to trial as specifically required by statute for purposes of grading the offense charged, in which event the defendant shall be given the opportunity to deposit collateral for appearance on the new date and hour fixed for trial, which shall be after the issuing authority's receipt of the required information[; or].
[(c) the warrant was issued for the collection of restitution, fine, and costs after a guilty plea or conviction, in which event the issuing authority shall proceed as specified in Rule 456.
(3)] (c) * * *
(4) The issuing authority immediately shall vacate the arrest warrant and order that notice of the vacated warrant promptly be given to all computer networks into which the arrest warrant has been entered.
(C) Bench Warrants
(1) When a bench warrant is executed, the police officer shall either:
(a) accept from the defendant a signed guilty plea and the full amount of the fine and costs if stated on the warrant;
(b) accept from the defendant a signed not guilty plea and the full amount of collateral if stated on the warrant;
(c) accept from the defendant the amount of restitution, fine, and costs due as specified in the warrant if the warrant is for collection of restitution, fine, and costs after a guilty plea or conviction; or
(d) if the defendant is unable to pay, promptly take the defendant for a hearing on the bench warrant as provided in paragraph (C)(3).
(2) When the defendant pays the restitution, fines, and costs, or collateral, the police office shall issue a receipt to the defendant setting forth the amount of restitution, fine, and costs received and return a copy of the receipt, signed by the defendant and the police officer, to the proper issuing authority.
(3) When the defendant does not pay the restitution, fines, and costs, or collateral, the defendant promptly shall be taken before the proper issuing authority if available for a bench warrant hearing.
(a) The bench warrant hearing may be conducted using two-way simultaneous audio-visual communication.
(b) If the bench warrant hearing cannot be conducted promptly after the arrest:
(i) the defendant shall be lodged in the county jail pending the hearing; and
(ii) the authority in charge of the county jail promptly shall notify the proper issuing authority that the defendant is being held pursuant to the bench warrant.
(c) The bench warrant hearing shall be conducted no later than the end of the next business day.
(i) If the warrant was issued for the collection of restitution, fine, and costs after a guilty plea or conviction, the issuing authority shall proceed as specified in Rule 456.
(ii) At the conclusion of the bench warrant hearing following the disposition of the matter, the judicial officer immediately shall vacate the bench warrant and order that notice of the vacated warrant promptly be given to all computer networks into which the bench warrant has been entered.
(d) If a bench warrant hearing is not held within the time limits in paragraph (C)(3)(c),
(i) the bench warrant shall expire by operation of law;
(ii) the individual promptly shall be given written notice to appear before the proper issuing authority on the next business day and shall be released from custody; and
(iii) notice of the expired warrant promptly shall be given to all computer networks into which the bench warrant has been entered.
Comment For the procedure in court cases following arrest with a warrant initiating proceedings, see Rules 516 [and], 517, and 518.
* * * * * When the proper issuing authority makes the determination in paragraph (A)(2) that extraordinary circumstances exist requiring the warrant to be executed at a time outside the 6 am to 10 pm time limitation, the defendant must be taken before that issuing authority and the case proceed pursuant to these rules.
For what constitutes a ''proper'' issuing authority, see Rule 130.
Delay of trial under paragraph [(D)(2)(b)] (B)(3)(ii) is required by statutes such as 18 Pa.C.S. § 3929 (pretrial fingerprinting and record-ascertainment requirements).
* * * * * If the defendant is 18 years of age or older when the default in payment occurs, the issuing authority must proceed under these rules.
For the procedures required before [an arrest] a bench warrant may issue for a defendant's failure to pay restitution, a fine, or costs, see Rule 430[(D)] (B)(4). When contempt proceedings are also involved, see Chapter 1 Part D for the issuance of arrest warrants.
[For what constitutes a ''proper'' issuing authority, see Rule 130.]
For the procedures when a bench warrant is issued in court cases, see Rule 117.
Concerning an issuing authority's availability, see Rule 117 (Coverage: Issuing Warrants; Preliminary Arraignments and Summary Trials; and Setting and Accepting Bail). Pursuant to Rule 117(B), when establishing the system of coverage best suited for the judicial district, the president judge may require defendants arrested on summary case bench warrants after hours to be taken to the established night court where the defendant would be given a notice to appear in the proper issuing authority's office the next business day or be permitted to pay the full amount of fines and costs.
When a defendant appears in the proper issuing authority's office the next business day following a release pursuant to paragraph (C)(3)(d)(ii), if the issuing authority is unavailable or the summary trial cannot be conducted at that time, the defendant should be given a notice of when to appear for the trial or the opportunity to pay the fines and costs.
* * * * * Official Note: Rule 76 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; Comment revised January 31, 1991, effective July 1, 1991; amended August 9, 1994, effective January 1, 1995; amended October 1, 1997, effective October 1, 1998; amended July 2, 1999, effective August 1, 1999; renumbered Rule 431 and amended March 1, 2000, effective April 1, 2001; amended August 7, 2003, effective July 1, 2004; amended , 2004, effective , 2004.
Committee Explanatory Reports:
* * * * * Report explaining proposed new Rule 117 published at 33 Pa.B. 5613 (November 12, 2003.) Supplemental Report explaining the proposed changes distinguishing between procedures for warrants that initiate proceedings and bench warrants procedures in summary cases published at 34 Pa.B. 4421 (August 14, 2004).
PART D(2). Arrests Without Warrant Rule 441. Procedure Following Arrest Without Warrant.
* * * * * (B) When a defendant has been arrested without a warrant, the arresting officer [may, when the officer deems it appropriate,] shall promptly release the defendant from custody when the following conditions have been met:
[(1) the defendant is a resident of the Commonwealth;
(2)] (1) the defendant poses no threat of immediate physical harm to any other person or to himself or herself; and
[(3)] (2) the arresting officer has reasonable grounds to believe that the defendant will appear as required [; and].
[(4) the defendant does not demand to be taken before an issuing authority.]
A citation shall be issued to the defendant at the time of release and thereafter the case shall proceed in accordance with Rules 405--409 as if the proceedings had been instituted by issuing a citation to the defendant.
(C) When the defendant has not been released from custody under paragraph (B),
(1) if the arrest is made during the normal business hours of the proper issuing authority, the defendant shall be taken without unnecessary delay before the issuing authority where a citation shall be filed against the defendant, and
[(1)] (a) * * *
[(2)] (b) * * *
[(a)] (i) * * *
[(b)] (ii) * * *
(2) If the arrest is made outside the normal business hours of the proper issuing authority, before taking the defendant to the issuing authority, the police officer promptly shall contact the issuing authority to determine when the issuing authority will be available, as provided in Rule 117, to proceed under this rule.
* * * * *
Comment This rule [provides] was amended in 2004 to require the arresting police officer [with a choice to be made based upon the criteria set forth in paragraph (B). Under the rule, the police will either] to promptly arrange for the defendant's release [or, if it is necessary to detain the defendant, provide for immediate trial] if the two criteria set forth in paragraph (B) are met. Prompt release allows for the completion of any post-arrest procedures authorized by law.
''Reasonable grounds'' as used in paragraph (B)(2) would include such things as concerns about the validity of the defendant's address, the defendant's prior contacts with the criminal justice system, and the police officer's personal knowledge of the defendant.
The 2004 amendments added the requirement when a defendant in a summary case cannot be released pursuant to paragraph (B), if the arrest occurs outside the normal business hours of the proper issuing authority, before taking the defendant before the issuing authority, the police officer must contact the issuing authority to determine when the issuing authority will be available to conduct the proceedings. See Rule 117 (Coverage: Issuing Warrants; Preliminary Arraignments and Summary Trials; and Setting and Accepting Bail).
* * * * * With regard to the ''proper'' issuing authority as used in these rules, see [Rule] Rules 103 and 130.
For the procedure in court cases initiated by arrest without warrant, see Rule 518.
Concerning an issuing authority's availability, see Rule 117 (Coverage: Issuing Warrants; Preliminary Arraignments and Summary Trials; and Setting and Accepting Bail).
Official Note: Rule 71 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 August 9, 1994, effective January 1, 1995; amended May 14, 1999, effective July 1, 1999; renumbered Rule 441 and amended March 1, 2000, effective April 1, 2001; amended August 7, 2003, effective July 1, 2004; amended , 2004, effective , 2004.
Committee Explanatory Reports:
* * * * * Report explaining proposed new Rule 117 published at 33 Pa.B. 5613 (November 12, 2003.) Supplemental Report explaining the proposed changes concerning release of defendant following arrest and procedures when defendant is not released published at 34 Pa.B. 4421 (August 14, 2004).
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1 To accommodate new Rule 117, current Rules 117 and Rule 118 are being renumbered Rule 118 and Rule 119 respectively.
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