THE COURTS
Title 234—RULES OF CRIMINAL PROCEDURE
[234 PA. CODE CHS. 1, 5, 6, 9 AND 10]
Order Adopting New Rules 556—556.12, Amending Rules 103, 540, 544, 547, 560, 573, 646 and 1003 and Revising the Comments to Rules 542, 578, 582, 648 and 903 of the Rules of Criminal Procedure; No. 414 Criminal Procedural Rules Doc.
[42 Pa.B. 4140]
[Saturday, July 7, 2012]
Order Per Curiam
And Now, this 21st day of June, 2012, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 41 Pa.B. 5538 (October 15, 2011), and in the Atlantic Reporter (Third Series Advance Sheets, Vol. 27), 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 Pennsylvania Rules of Criminal Procedure 556 through 556.12 are adopted;
(2) Pennsylvania Rules of Criminal Procedure 103, 540, 544, 547, 560, 573, 646, and 1003 are amended; and
(3) the comments to Pennsylvania Rules of Criminal Procedure 542, 578, 582, 648, and 903 are revised,
all in the following form.
It Is Further Ordered that a court of common pleas may proceed by indicting grand jury upon written order from the Supreme Court approving this method of proceeding in that judicial district. If a judicial district intends to utilize the indicting grand jury provided for by these rules, the President Judge or designee shall first petition this Court for approval.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective in 180 days.
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 103. Definitions.
The following words and phrases, when used in any Rule of Criminal Procedure, shall have the following meanings:
* * * * * INDICTMENT is [a bill of indictment which has been approved by a grand jury and properly returned to court, or which has been endorsed with a waiver as provided in former Rule 215] the instrument holding the defendant for court after a grand jury votes to indict and authorizing the attorney for the Commonwealth to prepare an information.
INFORMATION is a formal written [accusation] statement charging the commission of an offense [made] signed and presented to the court by the attorney for the Commonwealth[, upon which a defendant may be tried, which replaces the indictment in all counties since the use of the indicting grand jury has been abolished] after a defendant is held for court, is indicted by the grand jury, or waives the preliminary hearing or a grand jury proceeding.
* * * * *
Comment The definitions of arraignment and preliminary arraignment were added in 2004 to clarify the distinction between the two proceedings. Although both are administrative proceedings at which the defendant is advised of the charges and the right to counsel, the preliminary arraignment occurs shortly after an arrest before a member of the minor judiciary, while an arraignment occurs in the court of common pleas after a case is held for court and an information is filed.
The definition of indictment was amended in 2012 consistent with the adoption of the new indicting grand jury rules in Chapter 5 Part E. Under the new rules, the indictment is the functional equivalent of an issuing authority's order holding the defendant for court and that forms the basis for the information that is prepared by the attorney for the Commonwealth. Formerly, an indictment was defined as a bill of indictment that has been approved by a grand jury and properly returned to court, or which has been endorsed with a waiver as provided in former Rule 215.
The definition of information was added to the rules as part of the implementation of the 1973 amendment to PA. CONST. art. I, § 10, permitting the substitution of informations for indictments. The term ''information'' as used here should not be confused with prior use of the term in Pennsylvania practice as an instrument which served the function now fulfilled by the complaint.
[The definition of bill of indictment was deleted in 1993 as no longer necessary because all courts of common pleas have abolished the indicting grand jury and now provide for the initiation of criminal proceedings by information. See PA. CONST. art. I, § 10 and 42 Pa.C.S. § 8931. Some pending cases, however, may have been instituted prior to the abolition of the indicting grand jury. For this reason, the definition of indictment has been retained in this rule.]
* * * * * Official Note: Previous Rules 3 and 212 adopted June 30, 1964, effective January 1, 1965, suspended January 31, 1970, effective May 1, 1970; present Rule 3 adopted January 31, 1970, effective May 1, 1970; amended June 8, 1973, effective July 1, 1973; amended February 15, 1974, effective immediately; amended June 30, 1977, effective September 1, 1977; amended January 4, 1979, effective January 9, 1979; amended July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; amended August 12, 1993, effective September 1, 1993; amended February 27, 1995, effective July 1, 1995; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; renumbered Rule 103 and Comment revised March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; amended March 3, 2004, effective July 1, 2004; amended April 30, 2004, effective July 1, 2004; amended August 24, 2004, effective August 1, 2005; amended February 4, 2005, effective immediately; amended May 6, 2009, effective immediately; amended June 21, 2012, effective in 180 days.
Committee Explanatory Reports:
* * * * * Final Report explaining the June 21, 2012 amendments modifying the definitions of ''indictment'' and ''information'' published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
CHAPTER 5. PRETRIAL PROCEDURES IN COURT CASES
PART D. Proceedings in Court Cases Before Issuing Authorities Rule 540. Preliminary Arraignment.
* * * * * (E) The issuing authority shall not question the defendant about the offense(s) charged but shall read the complaint to the defendant. The issuing authority shall also inform the defendant:
(1) of the right to secure counsel of choice and the right to assigned counsel in accordance with Rule 122;
(2) of the right to have a preliminary hearing, except in cases being presented to an indicting grand jury pursuant to Rule 556.2; and
(3) if the offense is bailable, the type of release on bail, as provided in [Chapter] Chapter 5 Part C of these rules, and the conditions of the bail bond.
(F) Unless the preliminary hearing is waived by a defendant who is represented by counsel, or the attorney for the Commonwealth is presenting the case to an indicting grand jury pursuant to Rule 556.2, the issuing authority shall:
(1) fix a day and hour for a preliminary hearing which shall not be [less than 3 nor more than 10 days after the preliminary arraignment,] later than 14 days after the preliminary arraignment if the defendant is in custody and no later than 21 days if not in custody unless:
* * * * *
Comment * * * * * Under paragraph (A), the issuing authority has discretion to order that a defendant appear in person for the preliminary arraignment.
* * * * * Nothing in this rule is intended to address public access to arrest warrant affidavits. See Commonwealth v. Fenstermaker, 515 Pa. 501, 530 A.2d 414 ([Pa.] 1987).
* * * * * The 2012 amendment to paragraph (F) conforms this rule with the new procedures set forth in Chapter 5, Part E, permitting the attorney for the Commonwealth to proceed to an indicting grand jury without a preliminary hearing in cases in which witness intimidation has occurred, is occurring, or is likely to occur.
See Rule 1003(D) for the procedures governing preliminary arraignments in the Municipal Court.
Official Note: Original Rule 119 adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 119 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 140 September 18, 1973, effective January 1, 1974; amended April 26, 1979, effective July 1, 1979; amended January 28, 1983, effective July 1, 1983; rescinded August 9, 1994, effective January 1, 1995. New Rule 140 adopted August 9, 1994, effective January 1, 1995; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; renumbered Rule 540 and amended March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; amended August 24, 2004, effective August 1, 2005; amended June 21, 2012, effective in 180 days.
Committee Explanatory Reports:
* * * * * Final Report explaining the June 21, 2012 amendments concerning indicting grand juries published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
Rule 542. Preliminary Hearing; Continuances.
* * * * *
Comment * * * * * In cases in which summary offenses are joined with misdemeanor, felony, or murder charges, pursuant to paragraph (F), during the preliminary hearing, the issuing authority is prohibited from proceeding on the summary offenses, including the taking of evidence on the summary offenses, or adjudicating or disposing of the summary offenses[, or adjudicating or disposing of the summary offenses] except as provided in Rule 543(F).
For the contents of the transcript, see Rule 135.
See Chapter 5 Part E for the procedures governing indicting grand juries. Under these rules, a case may be presented to the grand jury instead of proceeding to a preliminary hearing. See Rule 556.2.
Official Note: Former Rule 141, previously Rule 120, adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970; revised January 31, 1970, effective May 1, 1970; renumbered Rule 141 and amended September 18, 1973, effective January 1, 1974; amended June 30, 1975, effective July 30, 1975; amended October 21, 1977, effective January 1, 1978; paragraph (D) amended April 26, 1979, effective July 1, 1979; amended February 13, 1998, effective July 1, 1998; rescinded October 8, 1999, effective January 1, 2000. Former Rule 142, previously Rule 124, adopted June 30, 1964, effective January 1, 1965, suspended effective May 1, 1970; present rule adopted January 31, 1970, effective May 1, 1970; renumbered Rule 142 September 18, 1973, effective January 1, 1974; amended October 22, 1981, effective January 1, 1982; effective date extended to July 1, 1982; amended July 12, 1985, effective January 1, 1986, effective date extended to July 1, 1986; rescinded October 8, 1999, effective January 1, 2000. New Rule 141, combining former Rules 141 and 142, adopted October 8, 1999, effective January 1, 2000; renumbered Rule 542 and Comment revised March 1, 2000, effective April 1, 2001; amended August 24, 2004, effective August 1, 2005; amended March 9, 2006, effective September 1, 2006; amended May 1, 2007, effective September 4, 2007, and May 1, 2007 Order amended May 15, 2007; amended January 27, 2011, effective in 30 days; amended June 21, 2012, effective in 180 days.
Committee Explanatory Reports:
* * * * * Final Report explaining the June 21, 2012 revision of the Comment concerning indicting grand juries published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
Rule 544. Reinstituting Charges Following Withdrawal or Dismissal.
(A) When charges are dismissed or withdrawn at, or prior to, a preliminary hearing, or when a grand jury declines to indict and the complaint is dismissed, the attorney for the Commonwealth may reinstitute the charges by approving, in writing, the [refiling] re-filing of a complaint with the issuing authority who dismissed or permitted the withdrawal of the charges.
(B) Following the [refiling] re-filing of a complaint pursuant to paragraph (A), if the attorney for the Commonwealth determines that the preliminary hearing should be conducted by a different issuing authority, the attorney shall file a Rule 132 motion with the clerk of courts requesting that the president judge, or a judge designated by the president judge, assign a different issuing authority to conduct the preliminary hearing. The motion shall set forth the reasons for requesting a different issuing authority.
Comment This rule provides the procedures for reinstituting criminal charges following their withdrawal or dismissal at, or prior to, the preliminary hearing as provided in Rule 543, or after the complaint is dismissed when a grand jury declines to indict.
The authority of the attorney for the Commonwealth to reinstitute charges that have been dismissed at the preliminary hearing is well established by case law. See, e.g., McNair's Petition, 324 Pa. 48, 187 A. 498 ([Pa.] 1936); Commonwealth v. Thorpe, 549 Pa. 343, 701 A.2d 488 ([Pa.] 1997). This authority, however, is not unlimited. First, the charges must be reinstituted prior to the expiration of the applicable statute(s) of limitations. See Commonwealth v. Thorpe, 549 Pa. 343, 701 A.2d 488 ([Pa.] 1997). In addition, the courts have held that the reinstitution may be barred in a case in which the Commonwealth has repeatedly rearrested the defendant in order to harass him or her, or if the rearrest results in prejudice. See Commonwealth v. Thorpe, 549 Pa. 343, 701 A.2d 488 ([Pa.] 1997); Commonwealth v. Shoop, 420 Pa. Super. 606, 617 A.2d 351 ([Pa. Super.] 1992).
The decision to reinstitute charges must be made by the attorney for the Commonwealth. Therefore, in cases in which no attorney for the Commonwealth was present at the preliminary hearing, the police officer may not [refile] re-file the complaint without the written authorization of the attorney for the Commonwealth. See Rule 507 (Approval of Police Complaints and Arrest Warrant Affidavits by Attorney for the Commonwealth—Local Option) for procedures for prior approval of complaints.
Pursuant to paragraph (A), in the usual case, charges will be reinstituted by filing a complaint with the issuing authority who dismissed or permitted the withdrawal of the charges. However, there may be cases in which the attorney for the Commonwealth determines that a different issuing authority should conduct the preliminary hearing, such as when an error of law is made by the issuing authority in finding that the Commonwealth did not sustain its burden to establish a prima facie case. Paragraph (B) requires that, in these cases, the attorney for the Commonwealth must file a petition with the court of common pleas requesting that the president judge, or a judge designated by the president judge, assign a different issuing authority to conduct the preliminary hearing. For the procedure for requesting assignment of a different issuing authority, see Rule 132.
See Chapter 5 Part E for the procedures governing indicting grand juries. If the attorney for the Commonwealth is reinstituting the charges after a complaint is dismissed when a grand jury has declined to indict, the complaint should be re-filed with the issuing authority with whom the original complaint was filed.
See Chapter 5 Part F(1) for the procedures governing motions.
Official Note: Original Rule 123, adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 123 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 143 September 18, 1973, effective January 1, 1974; amended January 28, 1983, effective July 1, 1983; amended August 9, 1994, effective January 1, 1995; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; renumbered Rule 142 October 8, 1999, effective January 1, 2000. New Rule 143 adopted October 8, 1999, effective January 1, 2000; renumbered Rule 544 and amended March 1, 2000, effective April 1, 2001; amended June 21, 2012, effective in 180 days.
Committee Explanatory Reports:
* * * * * Final Report explaining the June 21, 2012 amendments to paragraph (A) concerning indicting grand juries published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
Rule 547. Return of Transcript and Original Papers.
(A) When a defendant is held for court, or after the issuing authority receives notice that the case will be presented to the indicting grand jury and closes out the case, the issuing authority shall prepare a transcript of the proceedings. The transcript shall contain all the information required by these rules to be recorded on the transcript. It shall be signed by the issuing authority, and have affixed to it the issuing authority's seal of office.
(B) The issuing authority shall transmit the transcript to the clerk of the proper court within 5 days after holding the defendant for court or after closing out the case upon receipt of the notice that the case will be presented to the indicting grand jury.
(C) In addition to this transcript the issuing authority shall also transmit the following items:
* * * * * (5) a request for the court of common pleas to issue a bench warrant as required in Rule 543(D)(3)(b); [and]
(6) notice informing the court of common pleas that the defendant has failed to comply with the fingerprint order as required in Rule 543(D)(3)(b)(ii)[.] ; and
(7) a copy of the notice that the case will be presented to the indicting grand jury.
Comment See Rule 135 for the general contents of the transcript. There are a number of other rules that require certain things to be recorded on the transcript to make a record of the proceedings before the issuing authority. See, e.g., Rules 542 and 543.
When the case is held for court pursuant to Rule 543(D)(3), the issuing authority must include with the transcript transmittal a request for the court of common pleas to issue a bench warrant.
When the case is held for court pursuant to Rule 543(D)(3)(b)(ii), the issuing authority must include with the transcript transmittal a notice to the court of common pleas that the defendant has not complied with the fingerprint order issued pursuant to Rule 510(C)(2). See Rule 543(D)(3)(b)(ii). The court of common pleas must take whatever actions deemed appropriate to address this non-compliance.
See Chapter 5 Part E for the procedures governing indicting grand juries. Pursuant to Rule 556.2(A)(3), the judge is required to notify the issuing authority that the case will be presented to the indicting grand jury. Pursuant to Rule 556.11(A), upon receipt of the notice, the issuing authority is required to close out the case in his or her office, and forward it to the court of common pleas for all further proceedings. When the case is transmitted to the court of common pleas, the clerk of courts should associate the transcript and other documents transmitted by the issuing authority with the motion and order filed pursuant to Rule 556.2(A)(5).
Official Note: Formerly Rule 126, adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970; revised January 31, 1970[;], effective May 1, 1970; renumbered Rule 146 and amended September 18, 1973, effective January 1, 1974; amended October 22, 1982, effective January 1, 1982; amended July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; renumbered Rule 547 and amended March 1, 2000, effective April 1, 2001; amended August 24, 2004, effective August 1, 2005; amended May 1, 2007, effective September 4, 2007, and May 1, 2007 Order amended May 15, 2007; amended July 10, 2008, effective February 1, 2009; amended June 21, 2012, effective in 180 days.
Committee Explanatory Reports:
* * * * * Final Report explaining the July 10, 2008 amendments to paragraph (C)(6) concerning the fingerprint order published at [37] 38 Pa.B. 3975 (July 26, [2007] 2008).
Final Report explaining June 21, 2012 amendments to paragraph (A) and adding paragraph (C)(7) concerning indicting grand juries published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
PART E. Indicting Grand Jury (Editor's Note: Rules 556—556.12 are new and printed in regular type to enhance readability.)
Rule
556. Indicting Grand Jury. 556.1 Summoning Panels of Grand Jurors. 556.2. Proceeding by Indicting Grand Jury Without Preliminary
Hearing.
556.3. Composition and Organization of the Indicting Grand Jury. 556.4. Challenges to Grand Jury and Grand Jurors. 556.5. Duration of Indicting Grand Jury. 556.6. Administering Oath to Grand Jury and Foreperson. 556.7. Administration of Oath to Witnesses; Court Personnel. 556.8. Recording of Testimony Before Indicting Grand Jury. 556.9. Who May Be Present During Sessions of Indicting Grand Jury. 556.10. Secrecy; Disclosure. 556.11. Proceedings When Case Presented to Grand Jury. 556.12. Waiver of Grand Jury Action. Rule 556. Indicting Grand Jury.
Each of the several courts of common pleas may proceed with an indicting grand jury pursuant to these rules only in cases in which witness intimidation has occurred, is occurring, or is likely to occur.
Comment This rule was adopted in 2012 to permit the use of an indicting grand jury as an alternative to the preliminary hearing but only in cases in which witness intimidation has occurred, is occurring, or is likely to occur.
The Supreme Court, by Order issued with the promulgation of the new Rules of Criminal Procedure governing the indicting grand jury, requires that each of the judicial districts must petition the Court for permission to resume using the indicting grand jury, but only as provided in these rules.
The rules in Chapter 5 Part E apply only to the indicting grand jury and do not apply to any county, regional, or statewide investigating grand jury.
Official Note: New Rule 556 adopted June 21, 2012, effective in 180 days.
Committee Explanatory Reports:
Final Report explaining the new rule published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
Rule 556.1 Summoning Panels of Grand Jurors.
(A) When the court of common pleas elects to proceed with an indicting grand jury, the president judge, or president judge's designee, shall order one or more grand juries to be summoned for the purpose of issuing indictments or shall order that the sitting investigating grand jury shall sit as the indicting grand jury.
(B) The judge shall order the officials designated by law to summon prospective jurors to summon such number of jurors who are eligible by law as the judge deems necessary to serve as a panel for grand jury service.
(C) The summons shall be made returnable on such date as is ordered by the court.
Comment Pursuant to paragraph (A), the president judge, or president judge's designee, may order that an investigating grand jury that is sitting will also serve in the capacity of the indicting grand jury.
The number of persons who may be summoned is left to the discretion of the president judge or the president judge's designee to accommodate the needs of the judicial district.
The qualification, selection, and summoning of prospective jurors, as well as related matters, are generally dealt with in 42 Pa.C.S. §§ 4501—4503, 4521—4527, and 4531—4532.
Official Note: New Rule 556.1 adopted June 21, 2012, effective in 180 days.
Committee Explanatory Reports:
Final Report explaining the new rule published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
Rule 556.2. Proceeding by Indicting Grand Jury Without Preliminary Hearing.
(A) After a person is arrested or otherwise proceeded against with a criminal complaint, the attorney for the Commonwealth may move to present the matter to an indicting grand jury instead of proceeding to a preliminary hearing.
(1) The motion shall allege facts asserting that witness intimidation has occurred, is occurring, or is likely to occur.
(2) The motion shall be presented ex parte to the president judge, or the president judge's designee.
(3) Upon receipt of the motion, the president judge, or the president judge's designee, shall review the motion. If the judge determines the allegations establish probable cause that witness intimidation has occurred, is occurring, or is likely to occur, the judge shall grant the motion, and shall notify the proper issuing authority.
(a) Upon receipt of the notice from the judge that the case will be presented to the indicting grand jury, the issuing authority shall cancel the preliminary hearing, close out the case before the issuing authority, and forward the case to the court of common pleas as provided in Rule 547 for all further proceedings.
(b) Once the case has been forwarded to the court of common pleas, the case shall not be remanded to the issuing authority.
(4) The order granting the motion or the order denying the motion, and the motion shall be sealed.
(5) The attorney for the Commonwealth shall file the sealed order and the sealed motion with the clerk of courts.
(B) If not already assigned, the president judge shall assign one of the judges in the judicial district to serve as the supervising judge for the indicting grand jury.
(C) If the motion is granted, the case shall be presented to the grand jury within 21 days of the date of the order, unless:
(1) the grand jury proceedings are waived by the defendant with the consent of the attorney for the Commonwealth; or
(2) the attorney for the Commonwealth elects not to present the case to a grand jury.
If the case is not presented to the grand jury as provided in this paragraph, the defendant is entitled to a preliminary hearing in the court of common pleas.
Comment An accused in Pennsylvania ordinarily has the right to a preliminary hearing before he or she may be indicted by the grand jury. See Commonwealth v. Hoffman, 396 Pa. 491, 152 A.2d 726 (1959). However, the 2012 amendments to the rules permit the attorney for the Commonwealth to proceed to the indicting grand jury without first presenting the matter to an issuing authority for a preliminary hearing but only in cases in which witness intimidation has occurred, is occurring, or is likely to occur.
Concerning the requirements in paragraph (A)(1), see paragraph (A)(2)(g) of Rule 575 (Motions) that requires, inter alia, any motion that sets forth facts that do not already appear of record in the case to be verified by the sworn affidavit of some person having knowledge of the facts or by the unsworn written statement of such a person that the facts are verified subject to the penalties for unsworn falsification to authorities under the Crimes Code § 4904, 18 Pa.C.S. § 4904.
Pursuant to paragraph (A)(2), the president judge may designate another judge to receive motions from the attorney for the Commonwealth. It is anticipated that this designee will be the judge designated to be the supervising judge of the grand jury.
Pursuant to paragraph (A)(3)(a) and (A)(3)(b), after the issuing authority receives notice that the case will be presented to the grand jury, the case before the issuing authority is closed out and forwarded to the court of common pleas for all further proceedings. This provision is consistent with the general rule that once a case has been forwarded to the court of common pleas, the case is not permitted to be remanded to the issuing authority.
See Rule 556.11 for the procedures when a case is presented to the grand jury.
See Rule 556.12 for the procedures for the defendant to waive the grand jury proceedings.
If, after a motion to proceed to a grand jury is granted, the attorney for the Commonwealth elects not to present the case to the grand jury, the case will proceed as any other criminal case following the preliminary arraignment, except that the proceedings will be conducted in the court of common pleas. See Rules 541—547.
Official Note: New Rule 556.2 adopted June 21, 2012, effective in 180 days.
Committee Explanatory Reports:
Final Report explaining the new rule published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
Rule 556.3. Composition and Organization of the Indicting Grand Jury.
(A) There initially shall be impaneled to serve on an indicting grand jury 23 legally qualified jurors and a minimum of 7 and not more than 15 legally qualified alternates. During its term, the indicting grand jury shall consist, as provided hereinafter, of not less than 15 nor more than 23 legally qualified jurors, and the remaining alternates.
(B) When an indicting grand jury is to be impaneled, the supervising judge in charge of the grand jury shall examine prospective jurors to determine which prospective jurors to excuse for cause. After prospective grand jurors have been excused for cause, the reduction to the minimum of 30 or maximum of 38 shall take place by random drawing in the following manner: 30 to 38 jurors shall be selected by random drawing, of which the first 23 jurors so selected shall be designated permanent grand jurors and the next 7 to 15 jurors shall be designated alternate jurors. Alternate jurors shall replace permanent jurors in the sequence in which the alternate jurors are selected.
(C) Alternate jurors shall attend and participate in sessions of the grand jury but they may not attend or participate in the deliberations and voting until such time as they may be appointed as permanent grand jurors as provided in paragraph (D).
(D) The court shall have the power to permanently excuse a permanent or alternate grand juror for cause at any time during the term of the indicting grand jury. For each such excused permanent grand juror, the court shall appoint a new permanent grand juror from among the available alternates.
(E) Fifteen permanent members of the grand jury shall constitute a quorum, but an affirmative vote of 12 permanent members of the grand jury shall be required to indict.
(F) Whenever the number of permanent grand jurors, including alternates who have been appointed to replace permanent grand jurors, becomes less than 15, the term of the indicting grand jury shall be considered at an end.
(G) The supervising judge shall appoint one of the grand jurors as foreperson and another juror as the deputy foreperson, who will act in the foreperson's absence. The grand jury shall select one of its members as a secretary to assist the foreperson in keeping a record of the action of the grand jury.
Comment To accommodate the possibility that a grand jury would serve the dual function of both an investigating and indicting grand jury, see Rule 556.1(A), the procedures in this rule comport to the procedures in Rule 222 (Composition and Organization of the Investigating Grand Jury).
The term ''permanent grand juror'' is used to distinguish grand jurors with the power to vote from alternate grand jurors. The purpose of providing a built-in system of alternates is to ensure the smooth functioning of the grand jury throughout its term and to provide that alternates, when made permanent grand jurors, will be fully cognizant of all the proceedings before the grand jury.
It is intended that no alternate may be appointed as a temporary substitute for a permanent grand juror, and that the court will excuse permanent grand jurors only when necessary and in the interests of justice. However, whenever a permanent juror is excused for cause and an alternate is available to become a permanent grand juror, the court must substitute an alternate for the excused permanent grand juror. It is intended that such substitution be made in the order of the alternate jurors' numerical designation.
Official Note: New Rule 556.3 adopted June 21, 2012, effective in 180 days.
Committee Explanatory Reports:
Final Report explaining the new rule published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
Rule 556.4. Challenges to Grand Jury and Grand Jurors.
(A) Challenges
The attorney for the Commonwealth or a defendant may challenge the grand jury on the ground that it was not lawfully drawn, summoned, or selected, and may challenge an individual juror on the ground that the juror is not legally qualified.
(1) The challenge shall be in the form of a written motion and shall allege the ground upon which the challenge is made.
(2) If a challenge to an individual grand juror is sustained, the juror shall be discharged and replaced with an alternate juror.
(B) Motion to Dismiss
(1) The attorney for the Commonwealth or a defendant may move to dismiss the information filed following the grand jury's vote to indict the defendant based on the following grounds:
(a) an objection to the grand jury or on an individual juror's lack of legal qualification, unless the court has previously ruled on the same objection under paragraph (A);
(b) the evidence did not establish a prima facie case that an offense has been committed and the defendant committed the offense;
(c) lack of jurisdiction of the grand jury; or
(d) expiration of the statute of limitations.
(2) The judge shall not dismiss the information on the ground that a grand juror was not legally qualified if the record shows that at least 12 qualified jurors concurred in the indictment.
(C) Any motion under paragraph (A) or paragraph (B) shall be made as part of the omnibus pretrial motion.
Comment Concerning the right to challenge the array of the grand jury, see Commonwealth v. Dessus, 423 Pa. 177, 188, 224 A.2d 188, 194 (1966), in which the Court held, inter alia, that ''the law . . . must not deprive an accused of any of his legal or Constitutional rights-in this case the right to promptly (a) challenge the array of the grand jury and (b) prove by legally competent evidence that one or more of the grand jurors should be disqualified for cause.''
Nothing in this rule is intended to limit the availability of habeas corpus review as provided by law.
Nothing in this rule is intended to require notice to the defendant of the time and place of the impaneling of a grand jury, or to give the defendant the right to be present for the selection of the grand jury.
Official Note: New Rule 556.4 adopted June 21, 2012, effective in 180 days.
Committee Explanatory Reports:
Final Report explaining the new rule published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
Rule 556.5. Duration of Indicting Grand Jury.
(A) The length of the grand jury term shall be determined by the president judge, or the president judge's designee, but shall not exceed 18 months, unless an order for discharge is entered earlier by the supervising judge upon determination by the grand jury, by majority vote, that its business has been completed, or an extension is granted pursuant to paragraph (B).
(B) At the end of its original term or any extension thereof, if the grand jury determines by majority vote that it has not completed its business, it may request the supervising judge to extend its term for an additional period of 6 months. No grand jury term shall exceed 24 months from the time the grand jury was originally summoned.
(1) The supervising judge shall grant a request for extension unless the judge determines that such request clearly is without basis.
(2) Failure to grant an extension of term under this rule may be appealed by the attorney for the Commonwealth to the Supreme Court in the manner prescribed by general rule.
(3) If an appeal is taken, the grand jury shall continue to exercise its powers pending the disposition of the appeal.
(C) At any time within the original term of a grand jury, or any extension thereof, if the supervising judge determines that the grand jury is not conducting proper indicting activity, the judge may order that the grand jury be discharged.
(1) An order of discharge under this rule shall not become effective less than 10 days after the date on which the order is issued and actual notice given to the attorney for the Commonwealth and the foreperson of the grand jury.
(2) The order may be appealed by the attorney for the Commonwealth to the Supreme Court in the manner prescribed by general rule.
(3) If an appeal is taken, the grand jury shall continue to exercise its powers pending the disposition of the appeal.
Comment The procedures governing the duration of the indicting grand jury are consistent with the procedures for investigating grand juries as set forth in 42 Pa.C.S. § 4546.
Official Note: New Rule 556.5 adopted June 21, 2012, effective in 180 days.
Committee Explanatory Reports:
Final Report explaining the new rule published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
Rule 556.6. Administering Oath to Grand Jury and Foreperson.
(A) After the selection of the members of the grand jury, the supervising judge shall administer the oath separately to the foreperson and deputy foreperson and then to the other grand jurors. The supervising judge shall then charge the grand jury concerning its duties.
(B) The supervising judge shall administer the oath to the grand jury in substantially the following form:
''You, as grand jurors, do solemnly swear that you will make diligent inquiry with regard to all matters brought before you as well as such things as may come to your knowledge in the course of your duties; that you will keep secret all that transpires in the jury room except as authorized by law; that you will neither approve any indictment or present any person for hatred, envy or malice, or refuse to approve any indictment or present any person for love, fear, favor, or any reward or hope thereof; and that you will present all things truly to the court as they come to your knowledge and understanding.''(C) The supervising judge shall administer the oath to the foreperson and deputy foreperson in substantially the following form:
''You, as foreperson, do solemnly swear that you will make diligent inquiry with regard to all matters as shall be given you in charge; that you will keep secret all that transpires in the jury room, except as authorized by law; that you will neither approve any indictment or present any person for hatred, envy or malice, or refuse to approve any indictment or present any person for love, fear, favor, or any reward or hope thereof; and that you will present all things truly to the court as they come to your knowledge and understanding.''
Comment It is intended that all grand jurors, including alternate grand jurors, will be sworn at this time.
Official Note: New Rule 556.6 adopted June 21, 2012, effective in 180 days.
Committee Explanatory Reports:
Final Report explaining the new rule published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
Rule 556.7. Administration of Oath to Witnesses; Court Personnel.
(A) Each witness to be heard by the indicting grand jury shall be sworn by the foreperson before testifying.
(B) All court personnel who are to be present during any portion of the grand jury proceedings, and all others who assist in the proceedings, shall be sworn to secrecy by the supervising judge prior to their participation.
Comment When it is necessary to give constitutional warnings to a witness, the warnings and the oath must be administered by the supervising judge. As to warnings that the court may have to give to the witness when the witness is sworn, see, e.g., Commonwealth v. McCloskey, 443 Pa. 117, 277 A.2d 764 (1971).
Official Note: New Rule 556.7 adopted June 21, 2012, effective in 180 days.
Committee Explanatory Reports:
Final Report explaining the new rule published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
Rule 556.8. Recording of Testimony Before Indicting Grand Jury.
(A) Proceedings before an indicting grand jury, other than the deliberations and voting of the grand jury, shall be recorded by a court reporter or by a suitable recording device, and a transcript made.
(B) The supervising judge shall retain control of the recording device and the original and all copies of the transcript, and shall maintain their secrecy.
(C) When physical evidence is presented before the indicting grand jury, the supervising judge shall establish procedures for supervising custody.
Comment This rule requires that the supervising judge retain control over the transcript of the indicting grand jury proceedings and all copies thereof, as the record is transcribed, until such time as the transcript is released as provided in these rules.
Official Note: New Rule 556.8 adopted June 21, 2012, effective in 180 days.
Committee Explanatory Reports:
Final Report explaining the new rule published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
Rule 556.9. Who May Be Present During Sessions of Indicting Grand Jury.
(A) The attorney for the Commonwealth, the alternate grand jurors, the witness under examination, and a stenographer may be present while the indicting grand jury is in session. Counsel for the witness under examination may be present as provided by law.
(B) The supervising judge, upon the request of the attorney for the Commonwealth or the grand jury, may order that an interpreter, security officers, and such other persons as the judge may determine are necessary to the presentation of the evidence may be present while the indicting grand jury is in session.
(C) All persons who are to be present while the indicting grand jury is in session shall be identified in the record, shall be sworn to secrecy as provided in these rules, and shall not disclose any information pertaining to the grand jury except as provided by law.
(D) No person other than the permanent grand jurors may be present during the deliberations or voting of the grand jury.
Comment It is intended in paragraph (B) that when the supervising judge authorizes a certain individual to be present during a session of the indicting grand jury, the person may remain in the grand jury room only as long as is necessary for that person to assist the grand jurors.
See also Rule 556.10 concerning secrecy and disclosure of indicting grand jury proceedings.
Nothing in these rules precludes the supervising judge from permitting a witness to testify using two-way simultaneous audio-visual communication.
Official Note: New Rule 556.9 adopted June 21, 2012, effective in 180 days.
Committee Explanatory Reports:
Final Report explaining the new rule published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
Rule 556.10. Secrecy; Disclosure.
(A) Secrecy
(1) All evidence, including exhibits and all testimony presented to the grand jury, is subject to grand jury secrecy, and no person may disclose any matter occurring before the grand jury, except as provided in paragraph (B).
(2) A violation of grand jury secrecy rules may be punished as a contempt of court.
(B) Disclosure
No person may disclose any matter occurring before the grand jury, except as provided below.
(1) Attorney for the Commonwealth:
Upon receipt of the certified transcript of the proceedings before the indicting grand jury, the supervising judge shall furnish a copy of the transcript to the attorney for the Commonwealth for use in the performance of official duties.
(2) Defendant in a Criminal Case:
If a defendant in a criminal case has testified before the indicting grand jury concerning the subject matter of the charges against him or her, upon application of such defendant, the supervising judge shall order that the defendant be furnished with a copy of the transcript of such testimony.
(3) Witnesses:
(a) A grand jury witness may disclose his or her testimony unless the attorney for the Commonwealth obtains an order from the supervising judge that the interests of justice dictate otherwise.
(b) The attorney for the Commonwealth may request that the supervising judge delay the disclosure of a grand jury witness' testimony, but such delay in disclosure shall not be later than the conclusion of direct testimony of that witness at trial.
(4) Other Disclosures:
(a) Disclosure of grand jury material or matters, other than the grand jury's deliberations and the vote of individual jurors, may be made to any law enforcement personnel that an attorney for the Commonwealth considers necessary to assist in the enforcement of the criminal law.
(b) Upon motion, and after a hearing into relevancy, the supervising judge may order that a transcript of testimony before an indicting grand jury, or physical evidence before the indicting grand jury, may be released to an investigative agency under such conditions as the supervising judge may impose.
(5) Pretrial Discovery:
Pretrial discovery in cases indicted by a grand jury is subject to Rule 573. Pretrial discovery does not include testimony or other evidence that would disclose the identity of any witness or victim who has been intimidated, is being intimidated, or who is likely to be intimidated. Disclosure of such testimony or other evidence shall be only as ordered by the supervising judge.
(C) The supervising judge shall close to the public any hearing relating to grand jury proceedings to the extent necessary to prevent disclosure of a matter occurring before a grand jury. Records, orders, and subpoenas relating to grand jury proceedings shall be kept under seal to prevent the unauthorized disclosure of a matter occurring before a grand jury.
Comment The attorney for the Commonwealth has an affirmative duty to provide the defendant with any testimony before the indicting grand jury and any physical evidence presented to the grand jury that is exculpatory to the defendant consistent with the line of cases beginning with Brady v. Maryland, 373 U.S. 83 (1963), and the refinements of the Brady standards embodied in subsequent judicial decisions.
Paragraph (B) establishes the limitations on pretrial discovery in cases in which a defendant has been indicted by a grand jury information. Although the Criminal Rules generally recognize the defendant's right to have pretrial discovery to be able to prepare his or her case, given the nature of the cases presented to the grand jury, see Rule 556, this rule places with the supervising judge the responsibility of determining when testimony and other evidence that would disclose the identity of any witness or victim who has been intimidated, is being intimidated, or who is likely to be intimidated will be discoverable.
Paragraph (B)(3)(b) permits the supervising judge to delay the time for the disclosure of a grand jury witness' testimony upon the request of the attorney for the Commonwealth. Under no circumstances may the extension be later than the completion of the witness' direct testimony at trial.
The supervising judge may grant a continuance to enable the defendant to review the grand jury testimony as the interests of justice require.
Official Note: New Rule 556.10 adopted June 21, 2012, effective in 180 days.
Committee Explanatory Reports:
Final Report explaining the new rule published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
Rule 556.11. Proceedings When Case Presented to Grand Jury.
(A) A grand jury has the authority to:
(1) inquire into violations of criminal law through subpoenaing witnesses and documents; and
(2) based upon evidence it has received, including hearsay evidence as permitted by law, or upon a presentment issued by an investigating grand jury, if the grand jury finds the evidence establishes a prima facie case that (1) an offense has been committed and (2) the defendant has committed it, indict defendant for an offense under the criminal laws of the Commonwealth of Pennsylvania; or
(3) decline to indict.
(B) After a grand jury has considered the evidence presented, the grand jury shall vote whether to indict the defendant. The affirmative vote of at least 12 grand jurors is required to indict.
(C) In cases in which the grand jury votes to indict, an indictment shall be prepared setting forth the offenses on which the grand jury has voted to indict. The indictment shall be signed by the grand jury foreperson, or deputy foreperson if the foreperson is unavailable, and returned to the supervising judge.
(D) Upon receipt of the indictment, the supervising judge shall:
(1) provide a copy of the indictment to the Commonwealth authorizing the attorney to prepare an information pursuant to Rule 560; and
(2) forward the indictment to the clerk of courts, or issue an arrest warrant, if the subject of the indictment has not been arrested on the charges contained in the indictment.
(E) At the request of the attorney for the Commonwealth, the supervising judge shall order the indictment to be sealed.
(F) In cases in which the grand jury does not vote to indict, the foreperson promptly and in writing shall so report to the supervising judge who immediately shall dismiss the complaint and shall notify the clerk of courts of the dismissal.
Comment Nothing in this rule is intended to preclude the investigating grand jury, when sitting as an indicting grand jury and as part of its determination of whether to indict, from considering evidence already presented to it during an investigation.
When the grand jury votes to indict the defendant, the vote to indict is the functional equivalent of holding the defendant for court following a preliminary hearing. In these cases, the matter will proceed in the same manner as when the defendant is held for court following a preliminary hearing. See, e.g., Rules 547 and 560.
The indictment required by paragraph (C) no longer serves the traditional function of an indictment, but rather serves as an instrument authorizing the attorney for the Commonwealth to file an information. See Rule 103.
Concerning hearsay evidence before the indicting grand jury, see Commonwealth v. Dessus, 423 Pa. 177, 224 A.2d 188 (1966).
In cases in which the grand jury has declined to indict and the complaint has been dismissed, the attorney for the Commonwealth may reinstitute the charges as provided in Rule 544.
Official Note: New Rule 556.11 adopted June 21, 2012, effective in 180 days.
Committee Explanatory Reports:
Final Report explaining the new rule published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
Rule 556.12. Waiver of Grand Jury Action.
(A) A defendant, with the consent of the attorney for the Commonwealth and the approval of the supervising judge, may waive action by the grand jury and consent to be bound over to court. If the defendant is represented by counsel,
(1) the defendant thereafter is precluded from raising the sufficiency of the Commonwealth's prima facie case unless the parties have agreed at the time of the waiver that the defendant later may challenge the sufficiency.
(2) If the defendant waives the action of the grand jury by way of an agreement, made in writing or on the record, and the agreement is not accomplished, the defendant may challenge the sufficiency of the Commonwealth's prima facie case.
(B) The waiver shall be in writing and signed by the defendant and defense attorney, if any, and shall certify that:
(1) the defendant voluntarily waives the grand jury action and consents to be bound over to court, and
(2) when represented by counsel, the defendant understands that by waiving action by grand jury, he or she is thereafter precluded from raising challenges to the sufficiency of the prima facie case.
Comment Nothing in this rule is intended to preclude a waiver of action by the grand jury by way of agreement in which both parties agree to the preservation of the defendant's ability to raise the sufficiency of the Commonwealth's prima facie case at a subsequent proceeding. Any such agreement must be in writing or made on the record.
Official Note: New Rule 556.12 adopted June 21, 2012, effective in 180 days.
Committee Explanatory Reports:
Final Report explaining the new rule published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
PART [E] F. Procedures Following a Case Held for Court Rule 560. Information: Filing, Contents, Function.
(A) After the defendant has been held for court following a preliminary hearing or an indictment, the attorney for the Commonwealth shall proceed by preparing an information and filing it with the court of common pleas.
* * * * *
Comment * * * * * See Rule 543(D) for the procedures when a defendant fails to appear for the preliminary hearing. When the preliminary hearing is held in the defendant's absence and the case is held for court, the attorney for the Commonwealth should proceed as provided in this rule.
See Chapter 5 Part E for the procedures governing indicting grand juries. As explained in the Comment to Rule 556.11, when the grand jury indicts the defendant, this is the functional equivalent to holding the defendant for court following a preliminary hearing.
Official Note: Rule 225 adopted February 15, 1974, effective immediately; Comment revised January 28, 1983, effective July 1, 1983; amended August 14, 1995, effective January 1, 1996; renumbered Rule 560 and amended March 1, 2000, effective April 1, 2001; Comment revised April 23, 2004, effective immediately; Comment revised August 24, 2004, effective August 1, 2005; Comment revised March 9, 2006, effective September 1, 2006; amended June 21, 2012, effective in 180 days.
Committee Explanatory Reports:
* * * * * Final Report explaining the March [3] 9, 2006 Comment revision concerning joinder of summary offenses with misdemeanor, felony, or murder charges published with the Court's Order at 36 Pa.B. 1392 (March 25, 2006).
Final Report explaining the June 21, 2012 amendments to paragraph (A) concerning indicting grand juries published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
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