[35 Pa.B. 2214]
[Continued from previous Web Page]
PART C. PETITION Rule 330. Petition: Filing, Contents, Function.
A. Certification. The District Attorney of any county may require that an attorney for the Commonwealth shall file all petitions. If the District Attorney elects to require an attorney for the Commonwealth to file the petition, the District Attorney shall file a certification with the court of common pleas. The certification shall:
1) state that an attorney for the Commonwealth shall file petitions; and
2) specify any limitations on the filing or classes of petitions.
B. Filings. In every delinquency proceeding, the attorney for the Commonwealth or the juvenile probation officer shall file a petition with the clerk of courts if it has been determined that informal adjustment or another diversionary program is inappropriate.
C. Petition contents. Every petition shall set forth plainly:
1) the name of the petitioner;
2) the name, date of birth, and address, if known, of the juvenile, or if unknown, a description of the juvenile;
3) a statement that:
a) it is in the best interest of the juvenile and the public that the proceedings be brought; and
b) the juvenile is in need of treatment, supervision, or rehabilitation;
4) the date when the offense is alleged to have been committed; provided, however:
a) if the specific date is unknown, or if the offense is a continuing one, it shall be sufficient to state that it was committed on or about any date within the period of limitations; and
b) if the date or day of the week is an essential element of the offense alleged, such date or day shall be specifically set forth;
5) the place where the offense is alleged to have been committed;
6) a) i) a summary of the facts sufficient to advise the juvenile of the nature of the offense alleged; and
ii) the official or customary citation of the statute and section, or other provision of law which the juvenile is alleged to have violated, but an error in such citation shall not affect the validity or sufficiency of the written allegation; or
b) a certification that the juvenile has not complied with the sentence imposed for a conviction of a summary offense.
7) the name and age of any conspirators, if known;
8) a statement that the acts were against the peace and dignity of the Commonwealth of Pennsylvania or in violation of an ordinance of a political subdivision;
9) a notation if criminal laboratory services are requested in the case;
10) a verification by the petitioner that the facts set forth in the petition are true and correct to the petitioner's personal knowledge, information, or belief, and that any false statements are subject to the penalties of the Crimes Code, 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities;
11) the signature of the petitioner and the date of the execution of the petition;
12) the whereabouts of the juvenile and if taken into custody, the date and time thereof; and
13) the name and address of the juvenile's guardian, or if unknown, the name and address of the nearest adult relative.
Comment Under paragraph (A), the District Attorney may file a certification with the court of common pleas stating that only an attorney for the Commonwealth may file a petition. If a certification has not been filed, then an attorney for the Commonwealth or a juvenile probation officer may file a petition.
A private citizen has the right to file a written allegation, not a petition. The written allegation commences the proceedings in the juvenile system. See Rule 200. The case should progress in the same manner as any other case in the juvenile system. If the written allegation is disapproved, the private citizen may file a motion challenging the disapproval with the court of common pleas. See Comment to Rule 233.
Informal adjustment or other diversionary programs should be considered before a petition is filed. Once a petition is filed, informal adjustment is not permitted. See Commonwealth v. J.H.B., 760 A.2d 27 (Pa. Super. Ct. 2000).
Petitions should be filed without unreasonable delay. See Commonwealth v. Dallenbach, 729 A.2d 1218 (Pa. Super. Ct. 1999).
The contents of a petition are the same as a written allegation except for the additional requirements in paragraphs (C)(12) and (13).
Official Note: Rule 330 adopted April 1, 2005, effective October 1, 2005.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 330 published with the Court's Order at 35 Pa.B. 2214 (April 16, 2005).
Rule 331. Service of Petition.
A. Copy. Upon the filing of a petition, a copy of the petition shall be served promptly upon the juvenile, the juvenile's guardian, the juvenile's attorney, the attorney for the Commonwealth, and the juvenile probation officer.
B. Service to juvenile and guardian. The service of the petition to the juvenile and the juvenile's guardian shall be by first-class mail or delivered in-person.
C. Service to attorneys and juvenile probation officer. The service of the petition to the juvenile's attorney, attorney for the Commonwealth, and juvenile probation officer shall be by first-class mail or delivered in-person unless all individuals otherwise agree upon an alternative method.
Comment The purpose of paragraph (A) is to insure the juvenile and the juvenile's attorney have notice of the allegations to prepare the case adequately. If the juvenile is detained, service is to follow immediately after the filing of the petition. See Rule 242(D) for the twenty-four hour filing requirement.
Alternative methods of service that may be utilized under paragraph (C) could be electronic transmission, facsimile, county agency inter-office mail, and other similar methods.
Official Note: Rule 331 adopted April 1, 2005, effective October 1, 2005.
Rule 332. Multiple Offenses in Petition.
A. Different incidents. When more than one offense is alleged to have been committed within a judicial district by a juvenile arising from different delinquent episodes, one petition may be filed. However, each incident shall be described separately in conformity with the requirements of Rule 330(C)(4)--(6).
B. Same incidents. When more than one offense is alleged to have been committed within a judicial district by a juvenile arising from the same delinquent episode, a single petition shall be filed.
Comment The purpose of paragraph (A) is to permit one petition for multiple offenses arising from different delinquent episodes. The offenses are to be stated with particularity to inform the juvenile of the allegations. See Rule 330(C)(4) through (6) for specific requirements.
Under paragraph (B), a single petition is to be submitted for offenses arising from the same delinquent episode.
Official Note: Rule 332 adopted April 1, 2005, effective October 1, 2005.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 332 published with the Court's Order at 35 Pa.B. 2214 (April 16, 2005).
Rule 333. Separate Petitions.
When more than one juvenile is alleged to have participated in the commission of an offense, a separate petition for each juvenile shall be filed.
Comment If there are conspirators to any of the alleged offenses, the names and ages, if known, of all conspirators are to be referenced in the petition. See Rule 330(C)(7).
Hearings on the petitions may be consolidated for such further action as may be required by Rule 351.
Official Note: Rule 333 adopted April 1, 2005, effective October 1, 2005.
Rule 334. Amendment of Petition.
A. Amendment.
1) The court shall allow a petition to be amended when there is a defect in:
a) form;
b) the description of the offense;
c) the description of any person or property; or
d) the date alleged.
2) The court shall not allow a petition to be amended if the petition alleges a different set of events or offenses, where the elements or defenses are materially different from the elements or defenses to the offense originally petitioned.
B. Continuance. Upon amendment, the court may:
1) grant a continuance of the adjudicatory hearing; or
2) order other relief as is necessary in the interests of justice.
Comment For continuances, see Rule 122.
Official Note: Rule 334 adopted April 1, 2005, effective October 1, 2005.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 334 published with the Court's Order at 35 Pa.B. 2214 (April 16, 2005).
Rule 335. Withdrawal of Petition.
The attorney for the Commonwealth may withdraw the petition. The withdrawal shall be filed with the clerk of courts.
Comment See Rule 345 for the procedures on filings and service.
Official Note: Rule 335 adopted April 1, 2005, effective October 1, 2005.
Rule 336. Re-Filing of the Petition After Withdrawal or Dismissal.
A. Re-filing. The attorney for the Commonwealth may re-file a petition after the petition has been withdrawn pursuant to Rule 335 or dismissed by the court.
B. Motion for dismissal. The court may entertain a motion by the juvenile to dismiss the re-filed petition.
Comment A juvenile may be rearrested after the allegations have been dismissed prior to jeopardy attaching if the statute of limitations has not expired. Cf. Commonwealth v. Revtai, 532 A.2d 1 (Pa. 1987). The petition should be dismissed upon a finding that the attorney for the Commonwealth acted to harass the juvenile, the offenses are beyond the statute of limitations, or there is some other prejudice to the juvenile. See Commonwealth v. Chermansky, 552 A.2d 1128 (Pa. Super. Ct. 1989). See also Commonwealth v. Thorpe, 701 A.2d 488 (Pa. 1997).
If a petition is re-filed, the procedures of Rule 330 are to be followed. It may be necessary to have a detention hearing under the procedures of Rule 240(C).
Official Note: Rule 336 adopted April 1, 2005, effective October 1, 2005.
PART D. PROCEDURES FOLLOWING FILING OF PETITION Rule 340. Pre-Adjudicatory Discovery and Inspection.
A. Informal. Before either party can seek any disclosure or discovery under these rules, counsel for the parties shall make a good faith effort to resolve all questions of discovery, and to provide information required or requested under these rules as to which there is no dispute. When there are items requested by one party that the other party has refused to disclose, the demanding party may make an appropriate motion to the court. Such motion shall be made as soon as possible prior to the adjudicatory hearing. In such motion, the party shall state that a good faith effort to discuss the requested material has taken place and proved unsuccessful. Nothing in this rule shall delay the disclosure of any items agreed upon by the parties pending resolution of any motion for discovery.
B. Mandatory disclosure by the Commonwealth. In all cases, on request by the juvenile's attorney or the juvenile, if unrepresented, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the juvenile's attorney or the juvenile, if unrepresented, all of the followingrequested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the juvenile's attorney or the juvenile, if unrepresented, to inspect and copy or photograph such items.
1) Any evidence favorable to the juvenile that is material either to adjudication or to disposition, and is within the possession or control of the attorney for the Commonwealth;
2) any written confession or inculpatory statement, or the substance of any oral confession or inculpatory statement, and the identity of the person to whom the confession or inculpatory statement was made that is in the possession or control of the attorney for the Commonwealth;
3) the circumstances and results of any identification of the juvenile by voice, photograph, or in-person identification;
4) any results or reports of scientific tests, expert opinions, and written or recorded reports of polygraph examinations or other physical or mental examinations of the juvenile that are within the possession or control of the attorney for the Commonwealth;
5) any tangible objects, including documents, photographs, fingerprints, or other tangible evidence; and
6) the transcripts and recordings of any electronic surveillance, and the authority by which the said transcripts and recordings were obtained.
C. Discretionary. Upon motion of the attorney for the Commonwealth, the juvenile's attorney, or the juvenile, if unrepresented, for pre-adjudicatory discovery, the court may order, subject to the juvenile's right against self-incrimination, any discovery upon a showing that the evidence is material to the preparation of the case and that the request is reasonable.
D. Continuing Duty to Disclose. If, prior to or during the adjudicatory hearing, either party discovers additional evidence or material previously requested or ordered to be disclosed by it, which is subject to discovery or inspection under this rule, or the identity of an additional witness or witnesses, such party promptly shall notify the opposing party or the court of the additional evidence, material, or witness.
E. Remedy. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the juvenile, or it may enter such other order as it deems just under the circumstances.
F. Protective orders. Upon a sufficient showing, the court may, at any time, order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. Upon motion of any party, the court may permit the showing to be made, in whole or in part, in the form of a written statement to be inspected by the court. If the court enters an order granting relief, the entire text of the statement shall be sealed and preserved in the records of the court to be made available to the appellate court(s) in the event of an appeal.
G. Work Product. Disclosure shall not be required of legal research or of records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the attorney for the Commonwealth or the juvenile's attorney, or members of their legal staffs.
Comment The purpose of paragraph (A) is to encourage an informal discovery process. Only when the informal process fails and there is a general dispute as to discovery, should a motion to compel discovery be made. Motions may be oral or written, see Rule 344.
For provisions under paragraph (B)(2), see Commonwealth v. Burke, 781 A.2d 1136 (Pa. 2001).
Rule 800 suspends § 5720 of the Wiretapping and Electronic Surveillance Control Act, 18 P. S. § 5720 as being inconsistent with this Rule only insofar as the section may delay disclosure to the juvenile seeking discovery under paragraph (B)(6).
Under paragraph (C), the following are examples of evidence that may be material to the preparation of the case: 1) the names and contact information of eyewitnesses; 2) all written or recorded statements, and substantially verbatim oral statements, of eyewitnesses; 3) all written and recorded statements, and substantially verbatim oral statements, made by the juvenile, and by conspirators or accomplices, whether such individuals have been charged or not; and 4) any other evidence specifically identified, provided the requesting party can additionally establish that its disclosure would be in the interests of justice, including any information concerning any person involved in the case who has received either valuable consideration, or an oral or written promise or contract for valuable consideration, for information concerning the case, or for the production of any work describing the case, or for the right to depict the character of the person in connection with his or her involvement in the case.
Any evidence or material requested cannot interfere with the juvenile's right against self-incrimination.
Under paragraph (C), the court has discretion, upon motion, to order an expert who is expected to testify at the adjudicatory hearing to prepare a report. However, these provisions are not intended to require a prepared report in every case. The court should determine, on a case-by-case basis, whether a report should be prepared. For example, a prepared report ordinarily would not be necessary when the expert is known to the parties and testifies about the same subject on a regular basis. On the other hand, a report might be necessary if the expert is not known to the parties or is going to testify about a new or controversial technique.
Whenever the rule makes reference to the term ''identification,'' or ''in-person identification,'' it is understood that such terms are intended to refer to all forms of identifying a juvenile by means of the juvenile's person being in some way exhibited to a witness for the purpose of an identification: e.g., a line-up, stand-up, show-up, one-on-one confrontation, one-way mirror, etc. The purpose of this provision is to make possible the assertion of a rational basis for a claim of improper identification based upon Stovall v. Denno, 388 U. S. 293 (1967) and United States v. Wade, 388 U. S. 218 (1967).
This rule is not intended to affect the admissibility of evidence that is discoverable under this rule or evidence that is the fruits of discovery, nor the standing of the juvenile to seek suppression of such evidence.
It is intended that the remedies provided in paragraph (E) apply equally to the Commonwealth and the juvenile, as the interests of justice require.
The provision for a protective order, paragraph (F), does not confer upon the Commonwealth any right of appeal not presently afforded by law.
It should also be noted that as to material which is discretionary with the court, or which is not enumerated in the rule, if such information contains exculpatory evidence as would come under the Brady rule, it is to be disclosed. Nothing in this rule is intended to limit in any way disclosure of evidence constitutionally required to be disclosed.
In addition to information requested under this rule, an attorney has the right to inspect all court records and files, including probation records and reports. See Rule 160.
Official Note: Rule 340 adopted April 1, 2005, effective October 1, 2005.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 340 published with the Court's Order at 35 Pa.B. 2214 (April 16, 2005).
Rule 341. Notice of Alibi Defense.
A. Notice by the juvenile's attorney or juvenile, if unrepresented. A juvenile who intends to offer the defense of alibi at the adjudicatory hearing shall, at least two days prior to the adjudicatory hearing, give the attorney for the Commonwealth notice of the intention to claim such defense. Such notice shall include specific information as to the place or places where the juvenile claims to have been at the time of the alleged offense and the names and contact information of witnesses whom the juvenile intends to call in support of such claim.
B. Failure to Give Notice. If the juvenile fails to give notice of an alibi defense as required by this rule, or omits any witness from such notice, the court at the adjudicatory hearing may exclude the testimony of any omitted witness, or may exclude entirely any evidence offered by the juvenile for the purpose of proving the defense, except testimony by the juvenile, or may grant a continuance to enable the Commonwealth to investigate such evidence, or may make such other order as the interests of justice require.
C. Impeachment. A juvenile may testify concerning an alibi notwithstanding that the juvenile has not given notice, but if the juvenile has given notice and testifies concerning his or her presence at the time of the offense at a place or time different from that given in the notice, the juvenile may be cross-examined concerning such notice.
D. Disclosure of Reciprocal Witnesses. Prior to the adjudicatory hearing, the attorney for the Commonwealth shall disclose to the juvenile's attorney or the juvenile, if unrepresented, the names and contact information, that have not been previously disclosed, of all persons the Commonwealth intends to call as witnesses to disprove or discredit the juvenile's claim of alibi.
E. Failure to Supply Reciprocal Notice. If the attorney for the Commonwealth fails to disclose a list of its witnesses as required by this rule, or omits any witness, the court at the adjudicatory hearing may exclude the testimony of any omitted witness, or may exclude any evidence offered by the Commonwealth for the purpose of disproving the alibi, or may grant a continuance to enable the defense to investigate such evidence, or may make such other order as the interests of justice require.
Official Note: Rule 341 adopted April 1, 2005, effective October 1, 2005.
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, 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.
Official Note: Rule 344 adopted April 1, 2005, effective October 1, 2005.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 344 published with the Court's Order at 35 Pa.B. 2214 (April 16, 2005).
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 court 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 the other party 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 166 for maintaining records in the clerk of courts.
Under paragraph (A)(2), the court is to 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 the other party.
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 167.
For service of petitions, see Rule 331.
Official Note: Rule 345 adopted April 1, 2005, effective October 1, 2005.
Rule 346. Omnibus Motion for Relief.
Unless otherwise required in the interests of justice, all pre-adjudicatory 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, made pre-adjudication or during the adjudicatory hearing, including those traditionally called motions in limine, which may affect the admissibility of evidence or the resolution of other matters. The earliest feasible submissions and rulings on such motions are encouraged.
For instances when the court is to 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. 1997).
Official Note: Rule 346 adopted April 1, 2005, effective October 1, 2005.
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 Rule 345.
Rule 800 suspends § 5720 of the Wiretapping and Electronic Surveillance Control Act, 18 P. S. § 5720 as being inconsistent with this Rule only insofar as the time frame for making a motion to suppress is concerned.
Official Note: Rule 347 adopted April 1, 2005, effective October 1, 2005.
Rule 348. Disposition of Omnibus Motions.
Unless otherwise provided in these rules, all omnibus motions shall be determined before the adjudicatory hearing. If necessary for the determination of the omnibus motion, the court may postpone the adjudicatory hearing.
Official Note: Rule 348 adopted April 1, 2005, effective October 1, 2005.
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, §§ 8 & 9 of the Pennsylvania Constitution. In re R.H., 791 A.2d 331 (Pa. 2002), Commonwealth v. Scott, 369 A.2d 809 (Pa. Super. Ct. 1976); In re 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 Betrand, 303 A.2d 486 (Pa. 1973); In re Stoutzenberger, 344 A.2d 668 (Pa. Super. Ct. 1975), citing Commonwealth ex rel. Butler v. Rundle, 239 A.2d 426 (Pa. 1968).
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 proceeding, see Rule 127.
All motions to suppress are to comply with the provisions of Rules 344 and 345.
To join this motion with a motion for return of property, see Comment to Rule 353.
Rule 800 suspends § 5720 of the Wiretapping and Electronic Surveillance Control Act, 18 P. S. § 5720 as being inconsistent with this Rule only insofar as the time frame for making a motion to suppress is concerned.
Official Note: Rule 350 adopted April 1, 2005, effective October 1, 2005.
Rule 351. Adjudicatory Hearing on Separate Petitions.
A. Standards. An adjudicatory hearing may be held for:
1) offenses alleged in separate petitions if the evidence of each of the offenses would be admissible in a separate adjudicatory hearing for the other;
2) offenses alleged in separate petitions if the offenses alleged are based on the same act or transaction;
3) juveniles alleged 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 alleged 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 ordinarily shall be included in an omnibus motion.
Comment Under the scheme set forth in this rule, it can be assumed that offenses alleged 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 are not heard together, subsequent prosecution on any such offense not already heard may be barred. In re 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).
Official Note: Rule 351 adopted April 1, 2005, effective October 1, 2005.
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 ordinarily is to be made in an omnibus motion or it is considered waived.
Official Note: Rule 352 adopted April 1, 2005, effective October 1, 2005.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 352 published with the Court's Order at 35 Pa.B. 2214 (April 16, 2005).
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.
Official Note: Rule 353 adopted April 1, 2005, effective October 1, 2005.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 353 published with the Court's Order at 35 Pa.B. 2214 (April 16, 2005).
PART D(2). ADJUDICATORY SUMMONS AND NOTICE PROCEDURES Rule 360. Summons and Notice.
A. Summons. The court shall issue a summons compelling the juvenile and the juvenile's guardian to appear for the adjudicatory hearing.
B. Notice. 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 notice procedures of Rule 124 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 for 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.
Official Note: Rule 360 adopted April 1, 2005, effective October 1, 2005.
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 is without financial resources or otherwise unable to employ 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).
Official Note: Rule 362 adopted April 1, 2005, effective October 1, 2005.
Rule 363. Service of Summons and Notice.
A. Method of Service. The summons or notice 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 notice 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 notice 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 notice.
Official Note: Rule 363 adopted April 1, 2005, effective October 1, 2005.
Rule 364. Failure to Appear on the Summons.
If any summoned person fails to appear for the adjudicatory hearing and the court finds that sufficient notice was given, the court may issue a bench warrant.
Official Note: Rule 364 adopted April 1, 2005, effective October 1, 2005.
PART E. CONSENT DECREE Rule 370. Consent Decree.
A. 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.
B. The court shall explain on the record or in writing:
1) the terms, conditions, and duration of the consent decree pursuant to Rule 373; and
2) the consequences for violating the conditions of the consent decree, which include 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 if:
a) prior to discharge by the juvenile probation officer or expiration of the consent decree, there is a filing of a new petition against the juvenile; or
b) the juvenile otherwise fails to fulfill express terms and conditions of the decree.
Comment See 42 Pa.C.S. § 6340.
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 consent decree, the victim(s) of the offense should be consulted. See Victim's Bill of Rights, 18 P. S. § 11.201 et seq.
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 allegations 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).
Official Note: Rule 370 adopted April 1, 2005, effective October 1, 2005.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 370 published with the Court's Order at 35 Pa.B. 2214 (April 16, 2005).
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 is to 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 Rule 401 for the findings that are to be made in the juvenile delinquency process.
See also Victim's Bill of Rights, 18 P. S. § 11.201 et seq.
Official Note: Rule 371 adopted April 1, 2005, effective October 1, 2005.
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:
1) the protection of the community;
2) the juvenile's accountability for the offenses committed; and
3) the 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 rule 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. See Rule 800.
Official Note: Rule 373 adopted April 1, 2005, effective October 1, 2005.
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 is to 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 the 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.R.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 for 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 120.
Official Note: Rule 380 adopted April 1, 2005, effective October 1, 2005.
Committee Explanatory Reports:
Final Report explaining the provisions of Chapter three, Part F published with the Court's Order at 35 Pa.B. 2214 (April 16, 2005).
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:
a) the operator's name and business address;
b) the name and address of the operator's employer;
c) the date, time, and place of the video recording;
d) the caption of the case;
e) the name of the witness;
f) the party on whose behalf the witness is testifying; and
g) the nature of the judicial proceedings for which the testimony is intended.
2) The court and the persons 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 persons.
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 persons 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.
Official Note: Rule 381 adopted April 1, 2005, effective October 1, 2005.
Committee Explanatory Reports:
Final Report explaining the provisions of Chapter three, Part F published with the Court's Order at 35 Pa.B. 2214 (April 16, 2005).
[Continued on next Web Page]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
