THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
[234 PA. CODE CH. 1]
Proposed Amendments to Pa.R.Crim.P. 107
[35 Pa.B. 1556] The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Pa.R.Crim.P. 107 (Contents of Subpoena) to clarify the procedures for issuance of subpoenas by the judges of the courts of common pleas, the Philadelphia Municipal Court, and the minor judiciary. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.
The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's 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 amendments precedes the Report.
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 Friday, April 8, 2005.
By the Criminal Procedural Rules Committee
NICHOLAS J. NASTASI,
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 107. Issuance of Subpoena; Contents of Subpoena.
(A) Court of Common Pleas
(1) Upon the request of a party, the clerk of courts shall issue a subpoena. The subpoena shall be signed and under the seal of the court, but otherwise blank. The party requesting the subpoena shall fill in the contents of the subpoena required in paragraph (C) before the subpoena is served.
(2) The subpoena shall be served in the same manner as notices are served on parties pursuant to Rule 576(B)(2).
(B) Minor Judiciary
(1) Upon the request of an attorney for the Commonwealth or the attorney for the defendant, the issuing authority shall issue a subpoena. The subpoena shall be signed and under the seal of the issuing authority, but otherwise blank. The attorney requesting the subpoena shall fill in the contents of the subpoena required in paragraph (C) before the subpoena is served.
(2) Upon the request of a defendant proceeding pro se, a law enforcement officer, or a private criminal complainant, the issuing authority may issue a subpoena.
(a) The individual requesting the subpoena shall provide the issuing authority with the information required in paragraph (C).
(b) If the subpoena is to be issued, the issuing authority shall fill in the information provided.
(c) The subpoena shall be signed and under the seal of the issuing authority.
(3) The subpoena shall be served in the same manner as a subpoena in a civil matter pursuant to Pa. R.C.P.D.J. No. 214(C) (Subpoena; Issuance; Service).
(C) Contents of Subpoena
A subpoena in a criminal case shall:
(1) order the witness named to appear before the court or issuing authority at the date, time, and place specified, and to bring any items identified or described [The subpoena shall also];
(2) state on whose behalf the witness is being ordered to testify; and
(3) state the identity, address, and phone number of the attorney, if any, who applied for the subpoena.
Comment [The form of subpoena was deleted in 1985 because it is no longer necessary to control the specific form of subpoena by rule.]
The subpoenas issued by the judges of the Philadelphia Municipal Court should be issued pursuant to paragraph (A).
It is intended that the subpoena [shall] will be used not only for [trial] summary trials or trials in the courts of common pleas and the Philadelphia Municipal Court, but also for any other stage of the proceedings before the minor judiciary, Philadelphia Municipal Court, or common pleas court when a subpoena is issuable, including preliminary hearings, hearings in connection with pretrial and post-trial motions, etc.
When the subpoena is for the production of documents, records, or things, these should be specified.
When issuing a subpoena pursuant to paragraph (B)(2), the issuing authority may limit the scope of the subpoena to persons, documents, or things that are relevant to the cause of action before the issuing authority.
All subpoenas must be signed by a judge of the court issuing the subpoena. The signature may be in any of the forms of signature authorized in the Rule 103 definition of signature.
See 42 Pa.C.S. § 1725.1 concerning costs to be charged by the minor judiciary.
Official Note: Previous Rule 9016 adopted January 28, 1983, effective July 1, 1983; rescinded November 9, 1984, effective January 2, 1985. Present Rule 9016 adopted November 9, 1984, effective January 2, 1985; renumbered Rule 107 and amended March 1, 2000, effective April 1, 2001; amended , 2005, effective , 2005.
Committee Explanatory Reports:
* * * * * Report explaining the proposed changes concerning issuance of subpoenas published at 35 Pa.B. 1557 (March 5, 2005).
REPORT
Proposed Amendments to Pa.R.Crim.P. 107
Procedures for Issuance and Service of Subpoena The changes to Rule of Criminal Procedure 107 being proposed by the Criminal Procedural Rules Committee were developed at the request of the Supreme Court. In correspondence from Chief Justice Cappy, the Committee was instructed to work in conjunction with the Minor Court Procedural Rules Committee to ''study the question of whether District Justices may issue subpoenas in blank.''1 To accomplish this directive, a joint subcommittee of the Minor Court Rules Committee and Criminal Rules Committee was formed to assist the two Committees in addressing the issue of blank subpoenas. The Joint Subcommittee's recommendations have been approved for publication by both Committees.
I. Background
The Joint Subcommittee reviewed the Rules of Criminal Procedure (Criminal Rules), the Rules of Civil Procedure (Civil Rules), and the Rules of Civil Procedure Governing Actions and Proceedings Before Magisterial District Judges (MDJ Rules). The only Criminal Rule that addresses subpoenas is Rule 107 (Contents of Subpoena). Rule 107 only sets forth the mandatory contents of a subpoena, and provides no guidance concerning the issuance of subpoenas in blank. Paragraph (a) of Civil Rule 234.2 (Subpoena. Issuance. Service. Compliance. Fees. Prisoners) provides that the prothonotary issue a subpoena in blank when requested by a party.2 MDJ Rules 213 (Subpoena to Attend and Testify) and 214 (Subpoena; Issuance; Service) specify the information to be contained in the subpoena, including the name and service address of the person being subpoenaed; the date, time, and place at which the person is to appear; and a description of any documents or things the person is to produce. This information must be contained in the subpoena at the time of issuance. The official Note to Rule 214 specifically provides that magisterial district judges may not issue subpoenas in blank. The Joint Subcommittee also looked at the statutory provisions addressing subpoenas3 and the case law, but did not find any provisions concerning the issue of blank subpoenas.
The Joint Subcommittee discussed at length the pros and cons of the minor judiciary issuing subpoenas in blank, noting that (1) there are no statewide rules establishing pretrial motions practice in proceedings before the magisterial district judges; (2) there is no procedural mechanism to quash a subpoena in a magisterial district court; (3) many individuals who request subpoenas from the magisterial district judges are proceeding pro se; and (4) subpoenas always are issued in blank in the courts of common pleas. In view of these observations and the existing statewide procedures governing subpoenas in civil cases before the minor judiciary and the courts of common pleas, the Joint Subcommittee agreed that subpoenas in criminal cases should be issued in blank when the request for a subpoena is from an attorney. The members also agreed to continue the practice in common pleas court that all subpoenas are issued in blank, but in proceedings before the minor judiciary, when a defendant proceeding pro se, a law enforcement officer, or a private criminal complainant requests a subpoena, the procedures set forth in MDJ Rules 214 and 215 should be applied to criminal cases; the issuing authority should be given discretion whether to issue the subpoena, and the issuing authority must fill in the contents of the subpoena before issuing it to the defendant, law enforcement officer, or private complainant.
II. Discussion of Proposed Rule Changes
The Committee is proposing the following amendments to Criminal Rule 107. First, to retain the contents provisions and to clearly distinguish the procedures for the issuance of subpoenas by the common pleas court and the minor judiciary, Rule 107 will be divided into three sections: the procedures for issuing subpoenas in common pleas court are set forth in paragraph (A), the procedures for issuing subpoenas by the minor judiciary are set forth in paragraph (B), and the current requirements for the contents of a subpoena are set forth in paragraph (C).
Paragraph (A)(1) requires the clerk of courts to issue a subpoena upon the request of a party. The subpoena is to be signed by a judge and otherwise blank. The requesting party is required to fill in the contents of the subpoena set forth in paragraph (C) before serving the subpoena. Paragraph (A)(2) addresses service of the subpoena by cross-referencing Rule 576(B)(2), which sets forth the methods of service by the parties.
Paragraph (B) (1) requires the issuing authority to issue a subpoena in blank upon the request of an attorney for the Commonwealth or an attorney for the defendant. The remaining procedures in paragraph (B)(1) are the same as the procedures in paragraph (A)(1). When the request for a subpoena is by a defendant proceeding pro se, a law enforcement officer, or a private complainant, the issuing authority is given some discretion in paragraph (B)(2) comparable to the discretion given magisterial district judges in civil cases pursuant to MDJ Rule 214--the requesting individual must provide the information required by paragraph (C) for the contents of the subpoena, and the issuing authority is required to fill in the subpoena with this information. All subpoenas issued by a member of the minor judiciary must be signed by the issuing authority. Paragraph (B)(3) cross-references MDJ Rule 214(C) for the service requirements when a subpoena is issued by a member of the minor judiciary.
Paragraph (C), which sets forth the contents of the subpoena in current Rule 107, has been amended to make it clear that the contents of the subpoena are the same whether the subpoena is issued pursuant to paragraph (A) or pursuant to paragraph (B).
The Rule 107 Comment has been revised to include an explanation that subpoenas issued by Philadelphia Municipal Court judges are to be issued as provided in paragraph (A). In addition, the Comment emphasizes that the subpoenas must be signed by a judge of the issuing court (common pleas court, Philadelphia Municipal Court, or magisterial district courts), and includes a cross-reference to the Criminal Rule 103 definition of ''signature'' to make it clear that the subpoena may be signed using any of the forms of signature set forth in Rule 103.
During its discussions of the procedures for issuing subpoenas, the Joint Subcommittee considered imposing a nominal fee for each subpoena issued by the minor judiciary either by rule or Court order to cover the cost of printing and mailing the subpoenas. Research did not uncover any statutory provisions specific to fees for subpoenas that would provide guidance. We did note that in 42 Pa.C.S. § 1725.1 (Costs), paragraph (c) (Unclassified costs or charges) provides:
the costs to be charged by the minor judiciary in the following instances not readily classifiable shall be as follows . . . (5) any other issuance not otherwise provided for in this subsection . . . . $13.50 [this amount is subject to change annually pursuant to subparagraph (f).]
We reasoned that issuing a subpoena could be interpreted as coming within the scope of subparagraph (c)(5), and if the cost is assessed, the number of frivolous subpoenas would be reduced. Accordingly, as a guide to the members of the bench and bar, a reference to this statutory provision has been added to the Comment.
[Pa.B. Doc. No. 05-411. Filed for public inspection March 4, 2005, 9:00 a.m.] _______
1 See the November 12, 2003 Order in In Re: District Justice Sandra L. Stevanus, James B. Yelovich, Petitioner, No. 60 WM 2003.
2 See also Civil Rules 234.1, 234.4, 234.5, and 234.6 for other procedures related to subpoenas in civil cases.
3 See 42 Pa.C.S. §§ 5904 (Subpoena of Witnesses) and 5905 (Subpoenas).
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