THE COURTS
Title 234--RULES
OF CRIMINAL PROCEDURE
[234 PA. CODE CHS. 1, 4, 5 AND 10]
Order Promulgating New Rule 117; Amending Rules 131, 132, 430, 431, 441, 509, 519, 525, and 535; Approving the Revision of the Comment to Rule 520; and Renumbering Rule 117 as Rule 118 and Rule 118 as Rule 119; No. 324 Criminal Procedural Rules; Doc. No. 2
[35 Pa.B. 3901] The Criminal Procedural Rules Committee has prepared a Final Report explaining the June 30, 2005 promulgation of new Rule of Criminal Procedure 117; the changes to Rules of Criminal Procedure 131, 132, 430, 431, 441, 509, 519, 520, 525, and 535; and the renumbering of current Rule 117 as Rule 118 and current Rule 118 as Rule 119. The changes, which will be effective August 1, 2006, clarify the requirements for coverage to provide the services required under the Criminal Rules, and place the responsibility of ensuring sufficient availability of issuing authorities and other officials to provide the services required by the Criminal Rules on the president judge of each judicial district. The Final Report follows the Court's Order.
Order Per Curiam:
Now, this 30th day of June, 2005, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 33 Pa.B. 5607 (November 15, 2003) and 34 Pa.B. 4412 (August 14, 2004), and in the Atlantic Reporter (Second Series Advance Sheets, Vols. 833 and 853), and a Final Report to be published with this Order:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that:
(1) New Rule of Criminal Procedure 117 is promulgated;
(2) Rules of Criminal Procedure 131, 132, 430, 431, 441, 509, 519, 525, and 535 are amended;
(3) the revision of the Comment to Rule of Criminal Procedure 520 is approved; and
(4) Rules of Criminal Procedure 117 and 118 are renumbered Rules 118 and 119 respectively, all in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective August 1, 2006.
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 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 509, paragraphs (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, 514 Pa. 395, 525 A.2d 1177 (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, 577 Pa. 360, 845 A.2d 779 (2004).
When the police must detain a defendant pursuant to these rules, 61 P. S. § 798 provides that the defendant may be housed for a period not to exceed 48 hours in ''the borough and township lockups and city or county prisons.''
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 June 30, 2005, effective August 1, 2006. New Rule 117 adopted June 30, 2005, effective August 1, 2006.
Committee Explanatory Reports:
Final Report explaining the provisions of the new rule published with the Court's Order at 35 Pa.B. (July 16, 2005).
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 June 30, 2005, effective August 1, 2006.
Committee Explanatory Reports:
* * * * * Final Report explaining the June 30, 2005 renumbering of Rule 117 as Rule 118 published with the Court's Order at 35 Pa.B. 3911 (July 16, 2005).
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 June 30, 2005, effective August 1, 2006.
Committee Explanatory Reports:
* * * * * Final Report explaining the June 30, 2005 renumbering of Rule 118 as Rule 119 and the revision of the second paragraph of the Comment published at 35 Pa.B. 3911 (July 16, 2005).
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 June 30, 2005, effective August 1, 2006.
Committee Explanatory Reports:
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. [1477] 1478 (March 18, 2000).
* * * * * Final Report explaining the June 30, 2005 deletion in paragraph (A) of ''at all times'' published with the Court's Order at 35 Pa.B. 3911 (July 16, 2005).
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 ensuring 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) * * *
[(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 (Coverage: Issuing Warrants; Preliminary Arraignments and Summary Trials; and Setting and Accepting Bail) in 2005.
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] magisterial district level. See, e.g., Sufrich v. Commonwealth, 68 Pa. Cmwlth. 42, 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, 367 Pa. Super. 173, 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] 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 June 30, 2005, effective August 1, 2006.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. [1477] 1478 (March 18, 2000).
Final Report explaining the June 30, 2005 changes to the rule correlative to the changes in procedure in new Rule 117 published with the Court's Order at 35 Pa.B. 3911 (July 16, 2005).
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) * * *
[(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:
(a) 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) the defendant has failed to appear for the execution of sentence as required in Rule 454(E)(3).
(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.
* * * * * 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 Rules of Juvenile Court Procedure and 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; Comment revised April 1, 2005, effective October 1, 2005; amended June 30, 2005, effective August 1, 2006.
Committee Explanatory Reports:
* * * * * Final Report explaining the June 30, 2005 changes distinguishing between warrants that initiate proceedings and bench warrants in summary cases published with the Court's Order at 35 Pa.B. 3911 (July 16, 2005).
Rule 431. Procedure When Defendant Arrested With Warrant.
(A) [A] When a warrant [of arrest] is issued pursuant to Rule 430 in a summary case, the warrant shall be executed by a police officer as defined in Rule 103.
(1) If the warrant is executed between the hours of 6 a.m. and 10 p.m., the police officer shall proceed as provided in paragraphs (B) or (C).
(2) If the warrant is executed outside 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, the police officer shall call the proper issuing authority to determine when the issuing authority will be available pursuant to Rule 117.
(B) Arrest Warrants Initiating Proceedings
(1) When [a] an arrest warrant [of arrest] is executed, the police officer shall either:
[(1)] (a) * * *
[(2)] (b) accept from the defendant a signed not guilty plea and the full amount of collateral if stated on the warrant; or
[(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) the Commonwealth is not ready to proceed, or the defendant requests a postponement or is not capable of proceeding, and in any of these circumstances, the defendant shall be given the opportunity to deposit collateral for appearance on the new date and hour fixed for trial; or
[(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) * * *
(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 pursuant to paragraph (C)(1), the police officer 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 when available pursuant to Rule 117 for a bench warrant hearing. The bench warrant hearing may be conducted using two-way simultaneous audio-visual communication.
Comment For the procedure in court cases following arrest with a warrant initiating proceedings, see Rules 516 [and], 517, and 518.
Section 8953 of the Judicial Code, 42 Pa.C.S. § 8953, provides for the execution of warrants of arrest beyond the territorial limits of the police officer's primary jurisdiction. See also Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 ([Pa.] 1985).
Nothing in paragraph (A) is intended to preclude the issuing authority when issuing a warrant pursuant to Rule 430 from authorizing in writing on the warrant that the police officer may execute the warrant at any time and bring the defendant before that issuing authority for a hearing under these rules.
For what constitutes a ''proper'' issuing authority, see Rule 130.
Delay of trial under paragraph [(D)(2)(b)] (B)(3)(b)(ii) is required by statutes such as 18 Pa.C.S. § 3929 (pretrial fingerprinting and record-ascertainment requirements).
* * * * * When the police must detain a defendant pursuant to this rule, 61 P. S. § 798 provides that the defendant may be housed for a period not to exceed 48 hours in ''the borough and township lockups and city or county prisons.''
In cases in which a defendant who is under 18 years of age has failed to ''comply with a lawful sentence'' imposed by the issuing authority, the Juvenile Act requires the issuing authority to certify notice of the failure to comply to the court of common pleas. See the definition of ''delinquent act,'' paragraph (2)(iv), in 42 Pa.C.S. § 6302. Following the certification, the case is to proceed pursuant to the Rules of Juvenile Court Procedure and the Juvenile Act instead of these rules.
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 a [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 150.
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.
Concerning the defendant's right to counsel and waiver of counsel, see Rules 121 and 122.
For the procedures in summary cases within the jurisdiction of Philadelphia Traffic Court or Philadelphia Municipal Court, see Chapter 10.
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; Comment revised April 1, 2005, effective October 1, 2005; amended June 30, 2005, effective August 1, 2006.
Committee Explanatory Reports:
* * * * * Final Report explaining the June 30, 2005 changes distinguishing between procedures for warrants that initiate proceedings and bench warrants procedures in summary cases published with the Court's Order at 35 Pa.B. 3911 (July 16, 2005).
PART D(2). Arrests Without a 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.]
* * * * * (C) When the defendant has not been released from custody under paragraph (B),
(1) the defendant shall be taken without unnecessary delay before the issuing authority when available pursuant to Rule 117 where a citation shall be filed against the defendant, and
[(1)] (a) * * *
[(2)] (b) * * *
[(a)] (i) * * *
[(b)] (ii) * * *
[(3)] (2) * * *
Comment This rule [provides] was amended in 2005 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. Prompt release allows for the completion of any post-arrest procedures authorized by law] if the two criteria set forth in paragraph (B) are met.
''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.
Delay of trial under paragraph [(C)(2)(b)] (C)(1)(b)(ii) is required by statutes such as 18 Pa.C.S. § 3929 (pretrial fingerprinting and record-ascertainment requirements). Although the defendant's trial may be delayed under this paragraph, the requirement that the defendant be taken without unnecessary delay before the proper issuing authority remains unaffected. See also Rules 408, 413, and 423.
* * * * * For the procedure in court cases initiated by arrest without warrant, see Rule 518.
For the procedures in summary cases within the jurisdiction of Philadelphia Traffic Court or Philadelphia Municipal Court, see Chapter 10.
Concerning an issuing authority's availability, see Rule 117 (Coverage: Issuing Warrants; Preliminary Arraignments and Summary Trials; and Setting and Accepting Bail).
When the police must detain a defendant pursuant to this rule, 61 P. S. § 798 provides that the defendant may be housed for a period not to exceed 48 hours in ''the borough and township lockups and city or county prisons.''
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 June 30, 2005, effective August 1, 2006.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. [1477] 1478 (March 18, 2000).
* * * * * Final Report explaining the June 30, 2005 changes concerning release of defendant following arrest and procedures when defendant is not released published with the Court's Order at 35 Pa.B. 3911 (July 16, 2005).
CHAPTER 5. PRETRIAL PROCEDURES IN COURT CASES
PART B(1). Complaint Procedures Rule 509. Use of Summons or Warrant of Arrest in Court Cases.
If a complaint charges an offense [which] that is a court case, the issuing authority with whom it is filed shall:
(1) issue a summons and not a warrant of arrest in cases in which the most serious offense charged is [punishable by a sentence to imprisonment of not more than one year] a misdemeanor of the second degree or a misdemeanor of the first degree in cases arising under 75 Pa.C.S. § 3802, except as set forth in paragraph (2);
(2) issue a warrant of arrest when:
(a) [the offense charged is punishable by a sentence to imprisonment of more than five years] one or more of the offenses charged is a felony or murder; or
* * * * * (c) the issuing authority has reasonable grounds for believing that the defendant poses a threat of physical harm to any other person or to himself or herself; or
(d) the summons has been returned undelivered; or
[(d)] (e) * * *
[(e)] (f) the identity of the defendant is unknown[;] or
(3) issue a summons or a warrant of arrest, within the issuing authority's discretion, when the offense charged does not fall within any of the categories specified in paragraphs (1) or (2)[; or] .
[(4) when a defendant is charged with more than one offense and one of such offenses is punishable by a sentence to imprisonment for more than five years, issue a warrant of arrest.]
Comment This rule provides for the mandatory use of a summons instead of a warrant in court cases except in the special circumstances [as specified therein] enumerated in paragraphs (2) and (3).
Before a warrant may be issued pursuant to paragraph (2)[(c)](d) when a summons is returned undelivered, the summons must have been served as provided in Rule 511(A), and both the certified mail and the first class mail must have been returned undelivered.
When a defendant has been released pursuant to Rule 519(B), the issuing authority must issue a summons.
See Rule 1003 (Procedure in Non-Summary Municipal Court Cases), paragraph (C), for the procedures for issuing a summons and a warrant in Philadelphia.
It is expected when a case meets the requirements for the issuance of a summons, the police officer will proceed during the normal business hours of the proper issuing authority except in extraordinary circumstances. See Rule 117 (Coverage: Issuing Warrants; Preliminary Arraignments and Summary Trials; and Setting and Accepting Bail).
The procedure in paragraph (3) allows the issuing authority to exercise discretion in whether to issue a summons or an arrest warrant depending on the circumstances of the particular case. Appropriate factors for issuing a summons rather than an arrest warrant will, of course, vary. Among the factors that may be taken into consideration are the severity of the offense, the continued danger to the victim, the relationship between the defendant and the victim, the known prior criminal history of the defendant, etc. However, in all cases in which the defendant has been released pursuant to Rule [518] 519(B), a summons shall be issued.
Official Note: Original Rule 108 adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 108 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 102 and amended September 18, 1973, effective January 1, 1974; amended December 14, 1979, effective April 1, 1980; Comment revised April 24, 1981, effective July 1, 1981; amended October 22, 1981, effective January 1, 1982; renumbered Rule 109 and amended August 9, 1994, effective January 1, 1995; renumbered Rule 509 and amended March 1, 2000, effective April 1, 2001; Comment revised August 24, 2004, effective August 1, 2005; amended June 30, 2005, effective August 1, 2006.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. [1477] 1478 (March 18, 2000).
* * * * * Final Report explaining the June 30, 2005 amendments concerning in which cases a summons or a warrant are issued published with the Court's Order at 35 Pa.B. 3911 (July 16, 2005).
PART B(3). Arrest Procedures in Court Cases
(b). Arrests Without Warrant Rule 519. Procedure in Court Cases Initiated by Arrest Without Warrant.
* * * * * (B) RELEASE
(1) [When the arresting officer deems it appropriate, the] The arresting officer [may] shall promptly release from custody a defendant who has been arrested without a warrant, rather than taking the defendant before the issuing authority, when the following conditions have been met:
(a) the most serious offense charged is a misdemeanor of the second degree or a misdemeanor of the first degree in cases arising under 75 Pa.C.S. § 3802;
(b) [the defendant is a resident of the Commonwealth;
(c)] the defendant poses no threat of immediate physical harm to any other person or to himself or herself; and
[(d)] (c) the arresting officer has reasonable grounds to believe that the defendant will appear as required[; and].
[(e) the defendant does not demand to be taken before an issuing authority.]
(2) When a defendant is released pursuant to paragraph (B)(1), a complaint shall be filed against the defendant within 5 days of the defendant's release. Thereafter, the issuing authority shall issue a summons, not a warrant of arrest, [shall be issued and the case] and shall proceed as provided in Rule 510.
Comment See Rule 1003 (Procedure in Non-Summary Municipal Court Cases) for procedures in Philadelphia Municipal Court.
Paragraph (A) requires that the defendant receive a prompt preliminary arraignment. See Rule 540 (Preliminary Arraignment).
* * * * * Paragraph (B)(1) [provides an exception to the requirement that a defendant be afforded a preliminary arraignment after a warrantless arrest. It permits an] requires the arresting officer, in specified circumstances, to release a defendant rather than take the defendant before an issuing authority for preliminary arraignment. [Prior to 1994, this exception applied to all DUI cases, but in other cases was only available at the election of individual judicial districts. With the 1994 amendments, the exception is now an option available to arresting officers statewide and] Prior to the 2005 amendments, the release provision in paragraph (B) was optional. With the 2005 amendments, release is mandatory if the three criteria are met, and this requirement may not be [prohibited] modified by local rule.
''Reasonable grounds'' as used in paragraph (B)(1)(c) 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.
Pursuant to paragraph (B), the police will either promptly arrange for the defendant's release or, if it is necessary to detain the defendant, proceed pursuant to paragraph (A). See Rule 117 (Coverage: Issuing Warrants; Preliminary Arraignments and Summary Trials; and Setting and Accepting Bail).
Prompt release allows, of course, for the administration of any sobriety tests pursuant to the Vehicle Code, 75 Pa.C.S. § 1547, and for the completion of any procedures authorized by law.
With respect to ''necessary'' delay, see, e.g., Commonwealth v. Williams, 484 Pa. 590, 400 A.2d 1258 ([Pa.] 1979).
[Appropriate circumstances for following the procedure under paragraph (B)(1) may vary. Among the factors that may be taken into account are whether the defendant resides in the Commonwealth, and whether he or she can safely be released without danger to self or others.]
By statute, a defendant may not be released but must be brought before the issuing authority for a preliminary arraignment when a police officer has arrested the defendant for failure to comply with the registration requirements for sexual offenders, see 18 Pa.C.S. § 4915(E)(2), or when a police officer has arrested [a] the defendant in a domestic violence case, [the defendant may not be released but must be brought before the issuing authority for preliminary arraignment. See] see 18 Pa.C.S. § 2711. See also 23 Pa.C.S. § 6113(c) of the Protection from Abuse Act.
* * * * * Official Note: Original Rule 118 and 118(a) adopted June 30, 1964, effective January 1, 1965, suspended January 31, 1970, effective May 1, 1970. New Rule 118 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 130 September 18, 1973, effective January 1, 1974; amended December 14, 1979, effective April 1, 1980; amended April 24, 1981, effective July 1, 1981; amended January 28, 1983, effective July 1, 1983; Comment revised July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; renumbered Rule 102 and amended August 9, 1994, effective January 1, 1995; Comment revised September 26, 1996, effective immediately; renumbered Rule 518 and amended March 1, 2000, effective April 1, 2001; renumbered Rule 519 and amended May 10, 2002, effective September 1, 2002; amended June 30, 2005, effective August 1, 2006.
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