[35 Pa.B. 3901]
[Continued from previous Web Page] 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 defendant must be promptly released published with the Court's Order at 35 Pa.B. 3911 (July 16, 2005).
PART C. Bail Rule 520. Bail Before Verdict.
* * * * *
Comment * * * * * See Commonwealth v. Truesdale, 449 Pa. 325, 296 A.2d 829 ([Pa.] 1972), concerning the bail authority's discretion to refuse bail under paragraph (A).
Under paragraph (A), whenever the bail authority is a judicial officer in a court not of record, that officer must set forth in writing his or her reasons for refusing bail, and the written reasons must be included with the docket transcript.
Rule 117(C) requires the president judge to ensure coverage is provided to satisfy the requirements of paragraph (B).
Official Note: Former Rule 4001 adopted July 23, 1973, effective 60 days hence, replacing prior Rule 4002; amended January 28, 1983, effective July 1, 1983; Comment revised September 23, 1985, effective January 1, 1986; rescinded September 13, 1995, effective January 1, 1996, and replaced by present Rule 520. Present Rule 4001 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; Comment revised September 3, 1999, effective immediately; renumbered Rule 520 and Comment revised March 1, 2000, effective April 1, 2001; Comment revised April 1, 2005, effective October 1, 2005; Comment revised June 30, 2005, effective August 1, 2006.
Committee Explanatory Reports:
* * * * * Final Report explaining the June 30, 2005 revision of the Comment adding a cross-reference to Rule 117(C) published with the Court's Order at 35 Pa.B. 3911 (July 16, 2005).
PART C(1). Release Procedures Rule 525. Bail Bond.
(A) A bail bond is a document [executed by a defendant, and, when applicable, one or more sureties,] whereby the defendant agrees that while at liberty after being released on bail, he or she will appear at all subsequent proceedings as required and comply with all the conditions of the bail bond.
(B) At the time the bail is set, the bail authority shall
(1) have the bail bond prepared; and
(2) sign the bail bond verifying the conditions the bail authority imposed.
(C) If the defendant is unable to post bail at the time bail is set, when the bail authority commits the defendant to jail, he or she shall send the prepared and verified bail bond and the other necessary paperwork with the defendant to the place of incarceration.
(D) When the defendant is going to be released, the defendant, and, when applicable, one or more sureties, shall sign the bail bond. The official who releases the defendant also shall sign the bail bond witnessing the defendant's signature.
[(B)] (E) * * *
[(C)] (F) The defendant shall not be released until he or she [executes] signs the bail bond.
[(D) A] (G) After the defendant signs the bail bond, a copy of the bail bond shall be given to the defendant, and the original shall be included in the record.
Comment For the types of release and the conditions of release, see Rule 524.
Paragraph (G) requires the court official who accepts a deposit of bail and has the defendant sign the bail bond to include the original of the bail bond in the record of the case. See Rule 535(A) for the other contents of the record in the context of the bail deposit.
* * * * * Official Note: Former Rule 4004 adopted July 23, 1973, effective 60 days hence, replacing prior Rule 4005; rescinded September 13, 1995, effective January 1, 1996, and replaced by Rule 523. Present Rule 4004 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; renumbered Rule 525 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 clarifying the bail authority's responsibility concerning the preparation of the bail bond published with the Court's Order at 35 Pa.B. (July 16, 2005).
PART C(2). General Procedures in all Bail Cases Rule 535. Receipt for Deposit; Return of Deposit.
(A) [The issuing authority or the clerk of courts who accepts a deposit of cash in satisfaction of a monetary condition of bail shall give the depositor an itemized receipt, and shall note on the transcript or in the list of docket entries and the bail bond the amount deposited and the name of the person who made the deposit.] Any deposit of cash in satisfaction of a monetary condition of bail shall be given to the issuing authority, the clerk of courts, or another official designated by the president judge by local rule pursuant to Rule 117(C). The issuing authority, clerk, or other official who accepts the deposit shall give the depositor an itemized receipt, and shall note on the bail bond the amount deposited and the name of the person who made the deposit. The defendant shall sign the bail bond, and be given a copy of the signed bail bond.
(1) When the issuing authority accepts [such] a deposit of bail, the issuing authority shall note on the docket transcript the amount deposited and the name of the person who made the deposit. The issuing authority shall have the deposit, the docket transcript, and a copy of the bail bond [shall be] delivered to the clerk of courts.
(2) When another official is designated by the president judge to accept a bail deposit, that official shall deliver the deposit and the bail bond to either the issuing authority, who shall proceed as provided in paragraph (A)(1), or the clerk of courts, who shall proceed as provided in paragraph (A)(3).
(3) When the clerk of courts accepts the deposit, the clerk shall note in the list of docket entries the amount deposited and the name of the person who made the deposit, and shall place the bail bond in the criminal case file.
(B) When the deposit is the percentage cash bail authorized by Rule 528, the depositor shall be notified that by signing the bail bond, the depositor becomes a surety for the defendant and is liable for the full amount of the monetary condition in the event the defendant fails to appear or comply as required by these rules.
* * * * *
Comment This rule is not intended to change current practice.
When the president judge has designated another official to accept the bail deposit as provided in Rule 117, the other official's authority under Rule 117 and this rule is limited to accepting the deposit, having the defendant sign the bail bond, releasing the defendant, and delivering the bail deposit and bail bond to the issuing authority or the clerk of courts.
A deposit of cash to satisfy a defendant's monetary bail condition that is made by a person acting as a surety for the defendant may not be retained to pay for the defendant's court costs and/or fines. See Commonwealth v. McDonald, 476 Pa. 217, 382 A.2d 124 ([Pa.] 1978).
Given the complexities of posting real estate to satisfy a monetary condition of release, posting of real estate may not be feasible outside the normal business hours.
* * * * * When cash bail that is deposited in a bank pursuant to paragraph (C) is retained by a county in an interest-bearing account, case law provides that the county retains the earned interest. See Crum v. Burd, 131 Pa. Cmwlth. 550, 571 A.2d 1 ([Pa. Commw.] 1989), allocatur denied 525 Pa. 649, 581 A.2d 574 ([Pa.] 1990).
* * * * * Official Note: Former Rule 4015, previously Rule 4009, adopted November 22, 1965, effective June 1, 1966; renumbered Rule 4015, former paragraph (b) integrated into paragraph (a) and new paragraph (b) adopted July 23, 1973, effective 60 days hence; rescinded September 13, 1995, effective January 1, 1996, and replaced by present Rule [535] 4015. Present Rule 4015 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; renumbered Rule 535 and amended March 1, 2000, effective April 1, 2001; amended April 20, 2000, effective July 1, 2000; amended March 3, 2004, 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 new paragraph (E) concerning the interplay with Rules 130(B) (former Rule 21(B)) and 555 (former Rule 300) published with Court's Order at 30 Pa.B. 2219 (May 6, 2000).
* * * * * Final Report explaining the June 30, 2005 changes to the rule correlative to new Rule 117 published with the Court's Order at 35 Pa.B. 3911 (July 16, 2005).
CHAPTER 10. RULES OF CRIMINAL PROCEDURE FOR THE PHILADELPHIA MUNICIPAL COURT Rule 1000. Scope of Rules.
* * * * * (B) Any procedure that is governed by a statewide [rule of criminal procedure, but which] Rule of Criminal Procedure that is not specifically covered in Chapter 10[,] or by a Philadelphia local rule adopted pursuant to Rule 105 shall be governed by the relevant statewide rule.
* * * * * Official Note: Rule 6000 adopted December 30, 1968, effective January 1, 1969; amended March 28, 1973, effective March 28, 1973; amended July 1, 1980, effective August 1, 1980; renumbered Rule 1000 and amended March 1, 2000, effective April 1, 2001; amended 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 to paragraph (B) concerning local rules published with the Court's Order at 35 Pa.B. 3911 (July 16, 2005).
FINAL REPORT1
New Pa.R.Crim.P. 117, Amendments to Pa.Rs.Crim.P. 131, 132, 430, 431, 441, 509, 519, 525, and 535, Revision of the Comment to Pa.R.Crim.P. 520, and Renumbering Rule 117 as Rule 118 and Rule 118 as Rule 119
Coverage: Issuing Warrants; Preliminary Arraignment and Summary Trial; Arrests Without Warrant and Release; and Setting and Accepting Bail On June 30, 2005, effective August 1, 2006, upon the recommendation of the Criminal Procedural Rules Committee, the Court adopted new Pa.R.Crim.P. 117 (Coverage: Issuing Warrants; Preliminary Arraignments and Summary Trials; and Setting and Accepting Bail); amended Pa.Rs.Crim.P. 131 (Location of Proceedings Before Issuing Authority), 132 (Continuous Availability and Temporary Assignment of Issuing Authorities), 430 (Issuance of Arrest Warrant), 431 (Procedure When Defendant Arrested with Warrant), 441 (Procedure Following Arrest without Warrant), 509 (Use of Summons or Warrant of Arrest in Court Cases), 519 (Procedure in Court Cases Initiated by Arrest without Warrant), 525 (Bail Bond), and 535 (Receipt for Deposit; Return of Deposit); approved the revision of the Comment to Rule 520 (Bail Before Verdict); and renumbered current Rule 117 as Rule 118 and current Rule 118 as Rule 119. The changes 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.
I. INTRODUCTION
New Rule of Criminal Procedure 117 provides a clear set of procedures governing the requirements for providing adequate coverage by issuing authorities and other officials within the judicial districts to perform the services required by the Criminal Rules. In addition, the correlative changes to Rules 131, 132, 430, 431, 441, 509, 519, 520, 525, and 535 more clearly explain what the services are that require coverage.
As explained more fully in the following background discussion, these rule changes are the culmination of several years of work by
* the Criminal Procedural Rules Committee (the Committee)
* the Special Courts Administration Subcommittee of the Supreme Court's Intergovernmental Task Force to Study the District Justice System (the Subcommittee)
* the Supreme Court's District Justice Task Force Ad Hoc Committee (the Ad Hoc Committee) and
* a joint Subcommittee of Criminal Procedural Rules Committee members and District Justice Task Force Ad Hoc Committee members (the Joint Subcommittee).
The work of each of these groups identified the problems encountered by the judicial districts in meeting the current Rule 132 requirements that (1) the president judge of each judicial district must ensure the availability at all times within the judicial district of at least one issuing authority, paragraph (A)(1), and (2) the issuing authority assigned to be on duty after business hours shall set bail and shall accept deposits of bail in any case pending in any magisterial district within the judicial district. These rule changes, the product of a hard fought compromise, provide a workable resolution for these problems that is fair and equitable for defendants and issuing authorities specifically, and the bench, bar, law enforcement, and the public generally.
II. BACKGROUND
For a number of years, most recently in 2001, the Committee, pursuant to Rule 105 (Local Rules), has been reviewing local rules that have limited the night time and weekend availability of issuing authorities. We learned from this review, in most cases, the president judges are implementing these local rules to accommodate specific problems with providing Rule 132 coverage within their judicial districts, such as geography,2 unavailability of one or more magisterial district judges in their judicial districts,3 and limited police resources.4 Although the Committee thought these local rules may have some merit, we were concerned because the local rules conflicted with the requirements of paragraphs (A)(1) and (A)(2) of Rule 132 (Continuous Availability and Temporary Assignment of Issuing Authorities). After consulting with the president judges who had promulgated the local rules, we initiated a review of possible means to address their problems and concerns.
As the Committee was considering this matter, on November 1, 2001, the Court's Intergovernmental Task Force to Study the District Justice System released the Report of the Special Courts Administration Subcommittee. One of the issues the Court directed the Subcommittee to address was night and weekend duty coverage.5 After completing its review, the Subcommittee recommended to the Court that changes be implemented that would provide a menu of coverage options from which president judges could choose in order to provide the required coverage, based on the after-hours responsibilities of magisterial district judges required by rule, case law, and statute, and the types of things for which a magisterial district judge is typically called out to handle.
Following the release of the Task Force's Report, the Court appointed the Ad Hoc Committee to develop implementation strategies for specific recommendations contained in the Task Force's Report, including the recommendation about night and weekend duty coverage. The Ad Hoc Committee met several times during 2002, and developed a draft of proposed changes to the Rule 132 Comment providing the president judges with a suggested menu of coverage options to use in meeting the Rule 132 requirements based on the needs of their respective judicial districts. The Court asked the Committee to review this proposal and directed both Committees to work together on this matter. In late 2002, a Joint Subcommittee of the two Committees was convened to develop a proposal that would incorporate the respective views of the Committee, the Subcommittee, and the Ad Hoc Committee.
The Joint Subcommittee debated at length the merits of the Ad Hoc Committee's proposal for a Rule 132 Comment revision and the Committee's suggestions for changes to Rule 132, and eventually settled on a compromise procedure the members agreed provides some flexibility to the president judges in determining the manner of coverage for their respective judicial districts, is fair to the defendants and the issuing authorities, and provides a mechanism for the Court to continue to monitor the various systems of coverage. The Joint Subcommittee submitted its recommendation to the Committee in March 2003.
At several meetings, the Committee reviewed the Joint Subcommittee's recommendation, as well as the Report of the Special Courts Administration Subcommittee of the Court's Intergovernmental Task Force to Study the District Justice System and the Ad Hoc Committee's proposal. Using the Joint Subcommittee's recommendation as the starting point, the Committee developed this proposal encompassing the goals of the Joint Subcommittee's recommendation. The Committee members believe the proposal (1) will alleviate the concerns articulated by some members of the Committee, and of the bench and bar, that any changes to the continuous availability requirements would lead to abuses in the methods of coverage within the judicial districts and denials of the defendants' rights to a prompt preliminary arraignment; (2) provides clear guidance to the president judges and magisterial district judges who have been struggling to comply with present Rule 132(A), giving president judges reasonable options and flexibility for providing the required coverage without unduly burdening the magisterial district judges or the judicial districts while encouraging continuous, ''24/7,'' coverage, with the preference that the president judges continue current night courts and on-call systems; and (3) satisfies the directive from the Court to address night and weekend coverage.
III. DISCUSSION
Because the problems with providing coverage by issuing authorities identified by the Subcommittee and the Ad Hoc Committee stem from the Rule 132(A) requirements, the Committee began its analysis with Rule 132. We agreed the continuous availability provisions of Rule 132 raise two issues: (1) whether available ''at all times'' in paragraph (A)(1) means ''24 x 7'' availability in all cases; and (2) whether the bail requirement in paragraph (A)(2) means that issuing authorities must be the individuals who are to accept after-hour deposits of monetary bail. In order to understand the application of the availability requirement, the Committee, as did the Subcommittee and the Ad Hoc Committee,6 looked to the Criminal Rules themselves, to the extent that the specific rules address when an issuing authority must be available. We noted the rules requiring coverage break down into four categories:
* Rules requiring continuous or ''24/7'' availability of an issuing authority.
* Rules requiring availability of an issuing authority outside normal business hours.
* Rules requiring availability of an issuing authority during official business hours.
* Rules requiring continuous or ''24/7'' availability of a court official.
(1) Rules requiring continuous or ''24/7'' availability of an issuing authority: We identified two rules that come within this category, Rules 203 (Requirements for Issuance) (search warrants) and 513 (Requirements of Issuance) (arrest warrants).7 Although there is no specific provision in either rule for when an issuing authority must be available to issue warrants, the consensus is that an issuing authority must be available whenever a search or arrest warrant is requested.
(2) Rules requiring availability of an issuing authority outside normal business hours: The rules in this category all affect the amount of time a defendant is detained following an arrest before appearing before the issuing authority, requiring the issuing authority to conduct an immediate trial in summary cases or a preliminary arraignment in court cases8 without unnecessary delay or set collateral or bail. Included in this category are Rule 431(D)(1), (2) (Procedure When Defendant Arrested with Warrant) and Rule 441(C) (Procedure Following Arrest without Warrant) that require immediate trials or that collateral be set in summary cases following an arrest; Rule 516 (Procedure in Court Cases When Warrant of Arrest is Executed Within Judicial District of Issuance) that requires the issuing authority to conduct a preliminary arraignment without unnecessary delay following execution of an arrest warrant within the county; Rule 517(A) (Procedure in Court Cases When Warrant of Arrest is Executed Outside Judicial District of Issuance) that requires the issuing authority to set bail without unnecessary delay following execution of an arrest warrant outside the county;9 and Rule 519(A)(1) (Procedure in Court Cases Initiated by Arrest Without Warrant) that requires the issuing authority to receive complaints and conduct a preliminary arraignment without unnecessary delay following an arrest without a warrant.
(3) Rules requiring availability of an issuing authority during official business hours: The rules in this category require the issuing authorities to perform the functions of the office of the issuing authority but do not have the same impact on a defendant's liberty as the rules in category (2), and therefore these duties ordinarily will be performed during the normal business hours of the issuing authority's office. The list of rules is extensive, but examples include Rules 456 (Default Procedures: Restitution, Fines, and Costs) that requires the issuing authority to conduct an immediate default hearing or set bail whenever a defendant appears pursuant to a 10-day notice or is arrested on a warrant for failure to pay costs and fines in a summary case, and 430 (Issuance of Arrest Warrant) that provides the procedures for issuing arrest warrants in summary cases.
(4) Rules requiring continuous or ''24/7'' availability of a court official: A related category of coverage includes any rules that affect the defendant's liberty and therefore require availability on a continuous or ''24/7'' basis by a court official, but not necessarily the issuing authority. Rule 520 (Bail Before Verdict) fits into this category because it requires that a defendant to be admitted to bail on any day and at any time, but does not specifically require that it be an issuing authority who accepts the bail deposit.
From our discussions about these rules and Rule 132(A), and the input we received from magisterial district judges and common pleas court judges, the Committee realized there is a great deal of confusion about how the Rule 132(A) continuous availability requirements apply to these different Criminal Rules. The members agreed, if the rule governing the availability of issuing authorities was broken down into the categories we enumerate above, the confusion could be eliminated, the rule would provide more guidance to the bench and bar in determining the issuing authorities' responsibilities, and the rule would be helpful from an administrative perspective. We also thought the issue of continuous availability and the rule categorization would be easier to understand if the provisions are in a separate rule. Furthermore, Rule 132 is a rule specifically for issuing authorities.10 With the inclusion of a category of rules applicable to more than issuing authorities, it makes sense to have a separate rule in the general business of the courts section, Chapter 1 Part A. Accordingly, the availability/coverage provisions in Rule 132(A) have been moved into a separate new rule, new Rule 117.11 The title for this new rule, ''Coverage: Issuance of Warrants; Preliminary Arraignments and Summary Trials; Setting and Accepting Bail,'' reflects the categories of services requiring coverage we have identified in the rules. We have used the new term, ''coverage,'' to describe more generally the concept of an official being available to conduct the court's business and provide the services required by the rules.
A. NEW RULE 117
New Rule 117 retains the provisions from Rule 132(A) that place on the president judges the responsibility for ensuring that the coverage needs of the judicial districts are met. Paragraph (A) enumerates the coverage requirements for issuing authorities, separating the requirements into the three categories we identified above: (1) continuous, or ''24/7,'' coverage by issuing authorities to handle search warrants and arrest warrants, paragraph (A)(1); (2) one of the systems of coverage provided in the rule to conduct summary trials and preliminary arraignments following arrests,12 set collateral or bail, and accept complaints, paragraph (A)(2); and (3) for all other matters handled by the issuing authorities, coverage during normal business hours, paragraph (A)(3).13
Paragraph (B) sets forth the only systems of coverage that a president judge may chose from for the conduct of the proceedings enumerated in paragraph (A)(2).14 The president judge is given the responsibility to select one or a combination of systems of coverage that will work the best in his or her judicial district. The rule makes it clear that the president judge must consider the rights of the defendant and the judicial resources and the needs of the judicial district in making this selection. Paragraph (B) also requires the president judge to promulgate a local rule pursuant to Rule 105 to enact the selected system of coverage.
The fifth paragraph of the Comment provides a gloss on the provisions of paragraph (B), emphasizing the importance of balancing the rights of the defendant with the judicial districts' resources and coverage needs, and the obligations of the prosecution. Also included in this portion of the Comment are references to the statewide rule requirements for prompt proceedings and the pertinent case law to alert the president judges to the importance of these issues when establishing a system of coverage.
Paragraph (C) addresses the members' conclusion that Rule 520 does not require the magisterial district judge to personally handle the proffer of the bond or other security. The president judge is required to promulgate a local rule that provides for the continuous, or ''24/7,'' coverage by the official or officials designated by the president judge to accept bail pursuant to Rule 520(B). The Comment explains that the designated official does not have to be limited to an issuing authority or an employee of the clerk of courts, and includes a cross-reference to Rule 535(A). See discussion below of the correlative amendments.
The Rule 117 Comment includes several other explanatory provisions.15 As noted in the fourth paragraph, the use of advanced communication technology to facilitate providing the coverage required by paragraph (A) is encouraged. This provision also explains an issuing authority is ''available'' when he or she is able to communicate in person or by using advanced communication technology with the individual requesting services.
The seventh paragraph of the Comment cross-references 61 P. S. § 798 (Temporary Detention of Prisoners), that provides:
Sheriffs, constables, members of the State constabulary, or other persons authorized by the laws of this Commonwealth to make arrests, hereafter shall have the use, for a period not to exceed forty-eight hours, of borough and township lockups and city or county prisons, for the detention of prisoners until they can be disposed of according to law, if found necessary by the officer in charge,to provide guidance to the police when they must detain a defendant pursuant to the rules.16
The ninth paragraph of the Comment includes a provision cautioning, given the complexities of posting realty for bail, that the posting of real estate may not be feasible outside normal business hours.17
The eleventh and twelfth paragraphs highlight the importance and purpose of the local rule requirements in paragraphs (B) and (C), explaining in the eleventh paragraph that the properly promulgated local rules ensure the designation information is published and readily available to members of the bench, bar, law enforcement, and public, and provide the means for the Committee and the Court to monitor the systems of coverage. The twelfth paragraph recommends the president judges include in these local rules other relevant information such as the normal business hours of the issuing authorities or special locations that have been designated, thus providing adequate and easily accessible notice of this information.
Included as the last paragraph of the Comment is a reference to the continuous coverage requirements for issuing authorities to handle emergency petitions under the Protection from Abuse Act, 23 Pa.C.S. § 6110, and the Rule of Civil Procedure Governing Actions and Proceedings before District Justices 1203.
B. CORRELATIVE CHANGES
A number of correlative changes have been made that accommodate the procedures in new Rule 117(C). From our review of all the issues and concerns related to the continuous availability of issuing authorities, and the obvious confusion about what the rules' require, the Committee concluded several of the Criminal Rules should be amended to more clearly establish the coverage requirements for the procedures set forth in the rules. We also took this opportunity to streamline and update some of the arrest procedures in both summary and court case.
1. Summary Case Arrest Procedures
A major issue raised with the Committee concerns the continuous availability requirement as applied to summary trials--the requirement a defendant be taken before the proper issuing authority without unnecessary delay following an arrest--and the tension between the detention of defendants in summary cases and the availability of issuing authorities to conduct the summary trials. Communications with the Committee indicated strong views on both sides of the issue--those concerned about defendants in summary cases being unnecessarily detained pending the summary trial, and those concerned about the unnecessary burden on the magisterial district courts and the police in these cases involving less serious offenses. Sensitive to these concerns, the Committee explored possible changes to lessen the burden on the minor judiciary and police while protecting the rights of the defendant.
The Committee reviewed the summary warrant procedures in Rules 430 and 431, and noted that most of the cases when summary arrest warrants are authorized under Rules 430 and 431 are cases in which the defendant has failed to do something--failed to pay the fines and costs or failed to appear--cases more akin to the bench warrant cases in common pleas court. As with court cases, the Committee thought these summary bench warrant situations should be treated differently procedurally than the warrants issued to initiate summary cases. Although a defendant arrested pursuant to a bench warrant is entitled to a hearing within a reasonable amount of time, the Committee does not believe these cases fall within the constitutional requirement of appearing before the issuing authority without unnecessary delay that applies to arrests that initiate the proceedings.
Another aspect of the issues related to the summary warrant procedures concerns when the warrants are executed. From time to time, the Committee has examined the feasibility of limiting the execution of summary case arrest warrants to specific hours, such as between 6 am and 10 pm, similar to what other jurisdictions provide in their rules.18 The Committee considered that the basis for summary case warrants ordinarily does not necessitate the warrant be executed at all hours; rather, it would be reasonable to establish a time range when the warrant may be executed, which could fall either during the normal business hours of the issuing authority or at such times that a defendant would not be unnecessarily detained.
a. Rule 430
Having agreed that the summary case rules should distinguish between warrants that initiate proceedings, ''arrest warrants,'' and warrants issued when a defendant has failed to do something, ''bench warrants,'' the Committee has divided Rule 430 into two sections: warrants to initiate summary proceedings and warrants that would be issued in all the other circumstances enumerated in Rule 430. Paragraph (A) addresses only the warrants that initiate proceedings, paragraphs (A)(2) and (A)(3) of the current rule. New paragraph (B) addresses bench warrants, incorporating the provisions of current Rule 430(A)(1), (B), (C), and (D).
b. Rule 431
Rule 431 currently sets forth the procedures to be used when a summary case warrant is executed. Several changes have been made to the rule that incorporate the new distinction between arrest warrants and bench warrants, and establish new procedures for bench warrants.
Paragraph (A) has been amended to be an introductory paragraph applicable to all summary case warrants issued for the arrest of the defendant. Tying the execution of summary case warrants to the Rule 117 coverage procedures, a time frame of 6 am to 10 pm has been established as the time when an issuing authority should be available to conduct the summary trial following the execution of a summary case warrant, paragraph (B), or to conduct the bench warrant hearing following the execution of a bench warrant, paragraph (C). The president judge is given the authority to provide by local rule that this time frame may be extended. Accordingly, when a warrant is executed between the hours of 6 am to 10 pm, the police officer is to proceed as provided in paragraphs (B) or (C). When a warrant is executed outside the hours of 6 am to 10 pm, the police officer is required to first call the issuing authority to find out when he or she will be available pursuant to Rule 117 to conduct the proceeding. The Committee believes establishing this time frame and requiring that the police officer communicate with the issuing authority before executing a warrant after-hours will alleviate many of the concerns expressed to the Committee by significantly reducing the number of times a issuing authority is called out after-hours to conduct a summary trial. The Comment includes the suggestion that the issuing authority may indicate on the warrant when the issuing authority will be available for the police officer to bring the defendant in for a summary trial or bench warrant hearing if the warrant is executed outside the hours of 6 am to 10 pm.
Paragraph (B) sets forth the procedures when the warrant initiates proceedings. The procedures are, for the most part, the procedures in current Rule 431. Noting the rule encourages the police officer to accept the defendant's plea and the fines and costs or collateral rather than taking the defendant before the issuing authority, the Committee agreed to limit the cases when the police officer may take the defendant in to those cases in which the defendant is unable to pay, further emphasizing that accepting the pleas and payments is the preferred procedure in summary cases.
Paragraph (C) sets forth the new bench warrant procedures. New paragraph (C)(1) enumerates the same options to be considered when executing a summary bench warrant that are in current Rule 431(B), with the three payment options set out first to encourage the police to accept payments rather than taking the defendant into custody. New paragraph (C)(2) is the same as current Rule 431(C).
Paragraph (C)(3) establishes the new procedures when a defendant is taken into custody on a bench warrant in a summary case, requiring the defendant to be taken before the proper issuing authority for a bench warrant hearing when the issuing authority is ''available pursuant to Rule 117,'' and permitting the use of two-way simultaneous audio-visual communication to conduct the hearing. The Comment points out that the president judge, in determining the system of coverage for his or her judicial district pursuant to Rule 117, may require the defendant to be taken to night court if there is an 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 the opportunity to pay the full amount of fines and costs.
c. Rule 441
The changes to Rule 441 are the same as or comparable to the Rule 519 changes discussed more fully below--the prompt release provisions are mandatory if the criteria in paragraph (B) are met, the residency requirement is deleted as no longer necessary, and the meaning of ''reasonable grounds'' in paragraph (B)(3) is explained in the Comment.
In addition to the changes correlative to the Rule 519 changes, paragraph (C) has been amended by adding a reference to Rule 117, and the last sentence of the first paragraph of the Comment concerning completion of post-arrest procedures has been deleted because it is unnecessary and mischievous.
2. Arrest Warrants in Court Cases
A number of correlative changes have been made to Rules 509 (Use of Summons or Warrant of Arrest in Court Cases) and 519 (Procedure in Court Cases Initiated by Arrest Without Warrant) that address a major area of concern raised in correspondence with the Committee: what ''continuous coverage'' means in the context of arrests in court cases, and whether magisterial district judges are required to make themselves available immediately for every call for services from law enforcement, regardless of whether the nature of the matter really necessitates immediate availability.
The Committee noted that (1) the substantive and procedural requirements for a prompt preliminary arraignment are only triggered when there has been an arrest, and (2) Rules 509 and 519 provide for non-custodial proceedings--the use of summonses in Rule 509 and the release provisions in Rule 51919 --in certain cases involving misdemeanors. After reviewing these ''exceptions'' to the arrest procedures, the current criteria in Rules 509 and 519 when these exceptions may be used, and the offenses that are graded misdemeanors, the Committee agreed Rules 509 and 519 should be amended to encourage the use of summonses whenever appropriate to reduce the number of cases in which an issuing authority is going to have to be available to conduct preliminary arraignments. The Committee considered providing the same grade of misdemeanor as the trigger for the mandatory summons provisions in Rule 509 and the trigger for the release provisions in Rule 519, and that the grade should be all first degree misdemeanors. However, given the seriousness of many of the first degree misdemeanors, the Committee ultimately decided to modify the outside limit for the triggers in Rules 509 and 519 to be misdemeanors of the second degree except for DUI cases in which case the outside limit would be a misdemeanor of the first degree in cases arising under 75 Pa.C.S. § 3802.20 See Rule 509(1) and Rule 519(B)(1)(a).
a. Rule 509
In addition to the changes to Rule 509(1) that require the issuing authority to issue a summons and not a warrant when 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, the following correlative changes have been made to Rule 509:
(1) paragraph (2)(a) restates the requirements for issuance of an arrest warrant to be when ''one or more of the offenses charged is a felony or murder;''
(2) a new paragraph (2)(c) adds, as another consideration for when an arrest warrant should be issued rather than a summons, cases in which the defendant poses a threat of any physical harm to any other person or to himself or herself; and
(3) current paragraph (4) has been deleted as no longer necessary in view of the changes to paragraphs (1) and (2).
b. Rule 519
Several correlative changes also have been made to Rule 519(B). The procedure permitting the prompt release following an arrest without a warrant in Rule 519(B) was originally added to the rules in 1979 to apply only to drunk driving cases in the discretion of the police officer.21 The reasons offered in the Committee's 1981 explanatory Report in support of the prompt release provision--the substantial burden the requirement of a prompt preliminary arraignment in misdemeanor cases places on the local police, the magisterial district judges, and the defendant--remain valid today.
Considering this background into the prompt release provisions and the issues related to arrests and the continuous availability of issuing authorities to conduct preliminary arraignments, the Committee reassessed the discretionary aspect of the release provision and the criteria that must be met for release. We agreed once the police officer determines the defendant meets the criteria for release, the prompt release should be mandatory. From the members' experience and from our research, we did not discern any reasons in support of maintaining the discretionary nature of the release provision. Accordingly, paragraph (B) has been amended to require the police officer to release the defendant when the defendant satisfies the criteria set forth in the rule.
In reviewing the five criteria set forth in paragraph (B)(1), the members concluded the residency requirement in paragraph (a) and the criteria that the defendant does not demand to be taken before the issuing authority in paragraph (e) are unnecessary because these two criteria are considerations when making a judgment whether there are reasonable grounds to believe the defendant will appear as required, the criteria in paragraph (d). In view of these considerations, Rule 519(B) has been amended to require the police officer to promptly release a defendant following an arrest without a warrant when (1) the most serious offense is a misdemeanor of the second degree or a misdemeanor of the first degree in cases arising under 75 Pa.C.S. § 3802; (2) the defendant poses no threat of immediate physical harm to any other person or to himself or herself; and (3) the arresting officer has reasonable grounds to believe the defendant will appear as required. The Comment includes an explanation of what would be considered ''reasonable grounds'' as a guide to the police officer.
3. Bail-related Procedures
a. Rule 525
Several correlative amendments have been made to Rule 525. First, a new paragraph (B) has been added requiring the issuing authority to have the bail bond prepared at the time bail is set, and to sign the bail bond verifying the conditions the bail authority has imposed. New paragraph (C) directs the issuing authority to send the prepared and verified bail bond with the defendant to the jail in those cases in which the defendant is unable to post bail. Finally, as an added precaution against potential abuses, new paragraph (D) sets forth the additional requirement that the official who releases the defendant when the bail is posted must sign the bail bond indicating he or she released the defendant.
Rule 535
The correlative amendments to Rule 535 make it clear bail may be accepted by the issuing authority, the clerk of courts, or another official designated by the president judge. Paragraph (A) has been divided into subparagraphs setting forth the procedures applicable to the acceptance of bail deposits by the issuing authority, the clerk of courts, and the other official designated by the president judge. Paragraphs (A)(1) and (3) are taken from current paragraph (A). Paragraph (A)(2) is new and requires the other official to deliver the deposit and bail bond to the issuing authority or the clerk of courts to ensure proper processing of the bail deposit.
(C) CONFORMING CHANGES
1. Rule 131
The phrase ''at all times'' has been deleted from Rule 131(A) to avoid any possible misconstruction that this language in some way overrides what is provided in new Rule 117.
2. Rule 132
Rule 132(A) has been deleted since this is now covered in new Rule 117, and the title changed ''Temporary Assignment of Issuing Authorities.'' In addition, the provisions in the Comment addressing paragraph (A) have been deleted.
3. Rule 520
The Rule 520 Comment has been revised to include a cross-reference to Rule 117(C), tying the requirements of paragraph (B) that ''a defendant may be admitted to bail on any day and at any time'' to the provisions Rule 117(C) that requires the president judge by local rule to ensure coverage is provided pursuant to Rule 520(B).
(D) PHILADELPHIA MUNICIPAL COURT
As we developed the continuous availability package, the Committee received communications from Philadelphia Municipal Court concerning the impact the proposed changes would have on that court. We agreed that summary and court cases in Philadelphia Municipal Court should not be subject to the changes being proposed for Rules 431, 441, 509, and 519. To make this clear in the rules, several cross-references to Municipal Court procedures have been added to the Comments as follows:
(1) Rules 431 and 441: ''For the procedures in summary cases within the jurisdiction of Philadelphia Traffic Court or Philadelphia Municipal Court, see Chapter 10.''
(2) Rule 509: ''See Rule 1003 (Procedure in Non-Summary Municipal Court Cases), paragraph (C), for the procedures for issuing a summons and a warrant in Philadelphia.''
(3) Rule 519: ''See Rule 1003 (Procedure in Non-Summary Municipal Court Cases) for procedures in Philadelphia Municipal Court.''
Rule 1000(B) has been amended to specifically permit Philadelphia Municipal Court to enact local rule provisions that elaborate on their procedures that are different from the statewide procedures. This local rule requirement provides the Court and the Committee with the ability to monitor the local procedures as permitted by Rule 105.
[Pa.B. Doc. No. 05-1322. Filed for public inspection July 15, 2005, 9:00 a.m.] _______
1 The Committee's Final Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the Committee's explanatory Final Reports.
2 For example, some judicial districts are rural, with many mountainous roads that are difficult to traverse during the winter months, making the transport of defendants at night to the on-call district justice unsafe and difficult for the police.
3 For example, in the less populated judicial districts, there are many fewer magisterial district judges to provide coverage, and when the one on-call magisterial district judge is located at the opposite end of the judicial district from the location of an arrest, the defendant and police can face travel times as long as 2 or 3 hours. In addition, when one magisterial district judge is ill and another on vacation, the remaining magisterial district judge ends up being on-call 24 hours a day for a week or two at a time, making it difficult for the magisterial district judge to properly perform his or her duties.
4 For example, in the less populated judicial districts and the multi-county judicial districts, where the on-call duty magistrate could be located one or two hours away from the municipality where the offense occurred, when the municipality has only one or two police officers on duty, taking one away to transport the defendant before the duty magisterial district judge puts a significant strain on the limited police resources.
5 The Court, in its directive to the Intergovernmental Task Force to Study the District Justice System, has acknowledged there is a need for some procedural changes in providing for afterhours coverage to alleviate some of the burdens on magisterial district judges and the strains on the judicial system encountered in some of the judicial districts while continuing to protect the rights of the defendants. The Court's directive was interpreted as suggesting that a relaxation of the twenty-four hour/seven day a week (''24/7'') system would not be inappropriate as long as the changes are consistent with the rules and law.
6 See, e.g., page 35 of the Report of the Special Courts Administration Subcommittee of the Court's Intergovernmental Task Force to Study the District Justice System.
7 The Committee also noted that, although not a Criminal Rule, disposition of emergency Protection From Abuse petitions, 23 Pa.C.S. § 6101 et seq., is another proceeding that necessitates continuous or ''24/7'' availability by an issuing authority.
8 See also Rule 540 (Preliminary Arraignment) that permits an issuing authority to conduct the preliminary arraignment using two-way simultaneous audio-visual communication.
9 Rule 518 authorizes the use of advanced communication technology for a preliminary arraignment or posting of bail when the warrant in executed outside the judicial district.
10 Rule 132 is located in Chapter 1 Part C (Issuing Authorities, Venue, Location, and Recording of Proceedings).
11 To accommodate new Rule 117, current Rule 117 would be renumbered Rule 118, and current Rule 118 would be renumbered Rule 119.
12 At the preliminary arraignment, the issuing authority is required to set bail and if not previously done, to make a probable cause determination. These duties also are contemplated within the requirements of paragraph (A)(2), as explained in the Comment.
13 We use the term ''issuing authority'' in Rule 117 to make it clear that the provisions of Rule 117 apply not only to magisterial district judges but to all members of the minor judiciary and common pleas court judges when sitting as magisterial district judges.
14 The systems of coverage permitted in paragraph (B) are similar to the menu of options proposed by the Subcommittee in its Report to the Court. See page 34 et seq. of the Report of the Special Courts Administration Subcommittee of the Court's Intergovernmental Task Force to Study the District Justice System.
15 The Comment is lengthy. The detail is necessary because new Rule 117 provides a significant change from what has been the rule for coverage by issuing authorities for at least 30 years. In addition, this area of law has been the source of much confusion and debate. The Committee believes providing the bench and bar with as much guidance as possible will aid in the smooth transition to the new procedures.
16 The same cross-reference is included in the Comments to Rules 431 and 441.
17 A similar cautionary provision is being added to the Rule 535 Comment.
18 We also discussed a procedure used in other jurisdictions that requires the police officer to release the defendant on ROR when the warrant is executed after these hours. However, in view of the other changes the Committee is proposing, this suggestion was not deemed necessary.
19 Rule 519 requires summons be issued following any release under this rule.
20 Rule 519(B) as originally adopted by the Court applied only to DUI cases, and was subsequently expanded to apply to all cases in which the most serious offense was a misdemeanor of the second degree, the most serious grading for a DUI offense at that time. The DUI statute, 75 Pa.C.S. § 3802, was amended in 2004 to increase some of the penalties to misdemeanors of the first degree
21 See discussion of the historical development of this procedure in the Committee's explanatory Reports at 9 Pa.B. 2326 (July 14, 1979), 11 Pa.B. 495 (January 31, 1981), and 24 Pa.B. 4342 (August 27, 1994).
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